*1
Guardianship
In Matter of the
and Protective
H.:
Placement
Dunn,
Petitioner-Respondent,
v.
Respondent-Appellant-Petitioner.
H.,
Supreme Court
25,
July
argument April
Oral
2001. Decided
No. 00-1137.
tectively placed Health Care Dunn at the summary a The circuit court conducted in 1998. Center findings requisite that she was the and made custody incompetent care and residential making aging. this In the infirmities of as the result of placement, in Dunn the authorities initial rights procedural which to H. all the afforded Goldie by entitled law. she was County Department year later, the Dunn 2. A petitioned for the court Goldie Services
of Human appointed placement. a The court continued reviewing carefully all the and, time, in after litem, ad continuing signed incoming order documentation, it did not hold a The court her findings of fact. make (1) presented
¶ 3. The issues this case are right whether Goldie a H. had to a before her (2) protective placement continued; was whether duty findings the a circuit court had make of fact to support its continuation order.
¶ 4. These issues transcend the fortunes of a sin- gle elderly County. They implicate woman in Dunn the rights persons protec- of thousands who have been tively placed in Wisconsin institutions because of age, developmen- infirmities chronic mental illness, incapacities. They tal disabilities, or similar address legislature's given concern that these citizens be the maximum freedom with the minimum restriction that their troubled conditions allow. case, In this the circuit court continued the
protective placement holding H. without summary hearing making and without factual find- ings. court determination, made correct it but way. did make it result, in the correct As a aggrieved. H. is person
¶ We is hold that entitled to a on the record his or before her
continued, and that the circuit must make factual findings support as continuation, need 55.06(1) (1999-2000).1 required by Wis. Stat. Here strictly comply the circuit court did not with these requirements. help Nonetheless, cannot but con- we case, clude circuit court's review of the reports supplemented it, submitted motion *4 discussed, in which the relevant were issues being prop- was sufficient to that H. ensure Goldie was erly for cared and that her was properly facility appropriate in a continued for her
1 subsequent All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise indicated. Consequently, affirm the decision of we
needs. appeals. court of HISTORY
I. FACTS AND PROCEDURAL Department County of Human Dunn 7. The (Dunn DHS) County petitioned first DHS or Services guardianship protective place- and circuit court for DHS 20, H. on 1998. The ment of Goldie October incompetent H. and that "substan- asserted Goldie was property caring tially incapable managing her or for of aging." physi- of of herself reason infirmities Two 14 and 15, on October cians examined Goldie H. ultimately petition they deter- filed, was and before incapacitated. her to mined be Judge Dunn Circuit Rod W. 8. When appointed petition, he John Smeltzer received the DHS Joyce Joyce E. as ad litem. filed stating that he written with the circuit court upcoming relating to H. of informed Goldie guardianship placement, and informed and adversary jury rights trial, counsel, her to a her of independent psychological presen- exams, medical and appeal. witnesses, and of and tation cross-examination proceed- Joyce that Goldie H. did contest the stated any ings rights. these and did not wish exercise of Judge 3,1998, Smeltzer held a 9. On December repre- present at H. and which Goldie was by Joyce. H. The court sented circuit found incompetent primary guard- and need for a was had custody ian and for residential care and because aging. totally It was inca- infirmities pable found she providing posed a herself substantial others, that her risk serious harm to herself or likely permanent. permanent condition was appointed agency Calls," "House a service *5 guardian, permanent Menomonie, as H.'s Goldie and it protectively placed County ordered her at the Dunn Health Care Center. year
¶ 10. later, 20,1999, Close to one on October County petitioned the Dunn DHS the circuit court for placement. annual review of Goldie H.'s report. time, At the same it filed annual review report disability asserted that Goldie H. a "has which is permanent likely permanent" totally to be and is "so incapable providing custody for her own care and as a to create substantial risk of serious harm to herself or others." It therefore recommended a continuation of guardianship protective placement. her Judge again 27,1999, 11. On October Smeltzer appointed Joyce guardian to serve as H.'s ad Joyce report litem. He ordered to file the annual ad litem November Joyce report ¶ 12. filed his on November 12. He report indicated on the form that Goldie H. continued protective placement, to meet the standards for did not finding incompetency, contest and did not request change He also indicated that he believed Goldie H. was in the least restrictive envi- Joyce ronment consistent with her needs. said that require Goldie H. did not or a full counsel due hearing, but he indicated that she was able to attend supplement Joyce form, 13. To submitted report recommending written a continuation Goldie explaining in detail her Joyce condition and the for his basis recommendation. wrote that he had met with H. and with her guardian, court-appointed and had reviewed the County of the Dunn DHS file at the and Goldie H.'s explained Dunn Health Care Center. He then incompetent
why and met he Goldie H. was believed protective placement. standards *6 memory Joyce ¶ is so asserted that "Goldie's 14. readily disability obviously impaired as make her to "disability apparent" her is so obvious as and that hearing process adversary a counsel and due make unnecessary. call, a it a case of This case is not close is disability." memory impairment and obvious Joyce's that H.'s 15. also stated agreed guardian court-appointed at House Calls with protective continued his placement. recommendation of Judge day Joyce's report, he 16. The received reports in all the Goldie H. Smeltzer reviewed about an for her He then issued order continued chambers. year. His 12 order for another November that: stated requested;
a. No additional information has appointment The of counsel not been b. requested; hearing is necessary.
c. A full due not specific not a or make The circuit court did hold findings support continuing of fact to order placement. Joyce did action not learn of the court's 13,1999, near the of On December until end November. he to hold a He asked court asserted ex v. this court's decision State rel. Watts Combined Community County, 122 Services Board Milwaukee (1985), requires 2d N.W.2d 104 courts Wis. a a the record to continue hold on County through responded its Assis- Dunn Lange, asserting Corporation P. tant Counsel Nicholas required that the was court to hold a properly protective placement. had continued the hearing,
¶ 18. The circuit court ordered which February 24, it on held At the close of the hear- ing, the court oral declared decision that it had reports reviewed considered the annual Dunn DHS and of the litem, ad as Joyce's report, issuing well as detailed written before specific its November order. court did not make findings support continuation, fact to but on March continuing previ- 31, 2000, it issued written order its ous order. appealed.
¶ 19. Goldie H. She contended circuit was hold and to findings make Nevertheless, fact. she did not contest *7 her continued appeals
¶ 20. The court of affirmed the circuit determining court, required if that even the circuit court were findings,
to hold a and make factual protec- H. did not contest the of continuation her placement by aggrieved tive and so she had not been H., circuit court order. Dunn v. Goldie of (Wis. unpublished slip op. App. Sept. 00-1137, No. Ct. 2000). granted petition
¶ 21. We Goldie H.'s for review.
II. ANALYSIS ¶ 22. This case concerns the annual review of protective placements previously have been placements ordered under Wis. Stat. Ch. 55. Protective may Chapter not be under there a ordered 55 "unless finding incompetency.. of determination .and there ais protective of a for need in accordance with (2)." 55.06(1). § sub. Wis. Stat.
545 55.06(2) § enumerates 23. Wisconsin Stat. finding person a has a for a four factors person: protective placement." Such a "need for (a) need for care primary Has a residential custody; (b) in the case of a minor who is Except disabled, has either alleged developmentally to be by determined incompetent circuit been be or has had submitted on minor's behalf for petition guardianship; (c) disabilities, developmental As of a result infirmities or aging, of chronic mental illness other totally incapable providing is so of incapacities, like custody or care or as to create for his her own or óf serious harm to oneself others. substantial risk may harm be occasioned overt acts or Serious omission; acts
(d) disability permanent Has a which is likely permanent. to be 55.06(2).
Wis. Stat. portions Watts, In court invalidated equal pro- Chapter law on grounds provide "an because it did not tection periodic reexamination the need for con- automatic civilly placement," persons while tinued Chapter guaranteed committed under 51 were process hearing. 2d at annual due Wis. extensive *8 ¶ 25. The Watts court established rules extending Chapter protective placements. at 55 Id. judicial required officer It an annual review a 84-85. appointment guardian litem, is to of a ad who the placed person, protectively the the review meet with agency's report, protective service and after consulta- protectively placed report tion with the individual, to regarding the court with recommendations the need for placement. protective addition, Id. In the Watts deci- "Upon sion declared: its review the of the guardian litem, ad the court should decide to whether appoint information, order additional whether counsel, defense and whether to hold a due full 55.06(6), summary under Stats., sec. or a hear- added). ing." (emphasis Id. 85at parties disagree meaning 26. The toas requirements.
the Watts Goldie H. claims that a circuit guardian court is report to review the ad litem's process hearing and to hold either a full due aor summary hearing to determine whether to continue protective placement. county
¶ 27. The contends that the circuit court report, must ad review litem's and then pro- make a determination whether hold a full due hearing, summary hearing, cess or no at all. "Having hearing solely 'on the record' for the sake of having hearing responsive any- 'on the record' isn't thing, procedure and adds time to the overall without adding county substance," declares. Watts, 28. We held in reaffirm, now that a
circuit court must hold some form of on the summary process hearing record —either a full due or a protective continue a The cir- —to findings cuit court must also make based on factors 55.06(2) support § enumerated in Wis. Stat. required by continuation,
need for the as Wis. Stat. 55.06(1). purpose of Wisconsin's ser- system, Chapter 55, vice is established in Wis. Stat. § 55.001: *9 recognizes many that citizens legislature state, aging, of infirmities of
of because illness, retardation, other mental mental chronic incapacities or like developmental disabilities any protective are in need of ser- age, incurred at should, to the maximum These services vices. degree .allow the individual the same feasibility.. citizens, the individ- rights .protect as other and. . and exploitation, degrading ual from abuse designed is chapter establish treatment. This availability all assure their those services and them, place and to the least persons when need liberty personal and exercise possible restriction on rights process with due of constitutional consistent abuse, neglect. exploitation and and protection from system, § 55.001. The service Wis. Stat. legislature encourage designed said, inde- "shall be living pendent to avoid possible." § 55.02. Wis. Stat. whenever necessary type is to ensure 30. Some Protectively goals placed indi- are attained. these by represented in their annual reviews viduals are guardians Watts, 122 2d at 84. If hear- ad litem. Wis. reports, guardian ings never on annual were responsibilities his or her under ad litem could fulfill filing simply completing one-page form Watts (Protec- Report Ad "Annual of Guardian Litem entitled Placement)." eight This document includes tive "yes" expla- questions It for to be marked or "no." asks only example, indicate if, nation the answers guardian protectively placed person ad litem or placement, contends is unsatisfied with the current factors in Wis. Stat. that one or more ofthe enumerated 55.06(2) present, requests a full due complete A31. ad litem could by checking indicating form boxes that he or she and *10 protectively placed the individual are satisfied with the placement findings current and do not contest the nec- essary request for continuation or a full due hearing. sign The circuit court could then review and continuing protective chambers, document in year, having any for a without contact with protectively placed person guardian litem, or the ad any guardian and without real review of ad litem's diligence, judgment. work, pro- record, A brief, on the however accountability. reliability
motes It tends to assure the protectively placed court-appointed of the individual's guardian guardian provides and ad It litem. method satisfy protectively for the circuit court to itself that the placed person to need continues care and placement, incompetent incapable continues to be caring herself, of for himself or and has a condition that 55.06(2). likely permanent. § is to be See Stat. It Wis. findings also allows the circuit court to make informed support place- fact the need for continuation of appropriate. ment when continuation is See Wis. Stat. 55.06(1). § gives
¶ 33. A also the circuit court the opportunity questions to ask ad litem individual) (and, placed protectively cases, in some appointees performed to ensure that the court's have diligently protectively placed their duties and that the receiving proper individual is care. pay- 34. We are mindful court costs and the guardians to not to
ments ad litem. It is our intention increase the costs or workload of the circuit courts. We placed protectively individuals, also do not intend that may travel, attend of whom be no condition to some summary hearings purpose. for no summary hearing is an 35. A not extensive person It on the record. is a brief question need not is in be whose hearing may may present. The in court or be held be telephone as a or video conference. A means, other such evidentiary summary hearing hearing. It is an an proper opportunity ascertain that the for the proper procedures to ensure a con- have been followed protective placement, of a make tinuation 55.06(1). findings required by Wis. Stat. Tak- factual rights protect ing a of our most few moments unacceptable is not cost to vulnerable citizens soci- *11 humanity. ety. expression It It is an of our is a person no and commitment that will be warehoused system. forgotten by legal We believe we can assure objective giving holding applica- prospective our already requires because the statute annual tion rights goal up protectively Our is to firm the review. placed persons, disrupt judicial not to calendars. although case, 36. In this circuit court did summary ordering protec- not hold a before placement specific continued or make factual tive 55.06(2), findings of the four factors in Wis. Stat. we protective continuation of Goldie H.'s conclude that its undoubtedly and does was correct require a second Judge judge 37. Smeltzer was same who
originally protectively placed ordered Goldie H. after a Joyce guardian John the same ad was represented Goldie H. in 1998. When litem who had protective Joyce of the recommended continuation only placement, standard form he submitted not report three-page report annual but also a written regarding investigation protective his of Goldie H.'s Joyce report,
¶ 38. In this stated that he had County report reviewed the annual DHS, Dunn County reviewed Goldie H.'s file at the Dunn Health Care worker, Center with her social visited H. at the Dunn Health Care Center to ascertain rights, status, her advised H. all her rights court-appointed discussed those with Goldie H.'s guardian. Joyce
¶ 39. further stated that Goldie H. remains unable improved care herself, her condition has not placement,
since her initial and her disabil- ity appears permanent likely permanent. He noted specific demonstrating incidents Goldie H.'s condition incapacity, including reported by an incident Gol- die social worker. His set forth the reasoning place- for his recommendation continued court-appointed ment and stated that Goldie H.'s guardian shared in his recommendation. knowledge circuit court had of Goldie
H. and her condition from her 1998 initial placement hearing. It had the benefit of detailed infor- demonstrating mation that Goldie H.'s ad receiving proper litem had acted to ensure she was care and that her should be continued. *12 fully
¶ apprised 41. The circuit court was steps recommendation ofthe ad litem and he had taken to at arrive his recommendation. The reasonably Joyce's report court relied on and recom- just rely thorough, mendation, aas court could on a guard- well-reasoned and recommendation of summary ian ad in litem the context of a 551 Finally, ¶ court held a on the circuit Joyce's issues were at the relevant motion which discussed.
¶ in this case the circuit conclude that 43. We Joyce by reports of the annual submitted court's review supplemented DHS, the Dunn hearing, that Goldie sufficient to ensure was motion properly continued. was H.'s specific find- did not make 44. The circuit court ings supporting order, either in the continuation of fact continuing Goldie H.'s the order February on 2000. How- or at the motion ordering continuation of ever, it is clear that protective placement, the circuit court Goldie H.'s to make the on information more than sufficient relied findings enumerated in Wis. Stat. based on the factors 55.06(1). 55.06(2), required by § We as Wis. Stat. implicitly find- that the court made those therefore find ings Mary's Hosp. Ctr., St. Med. of fact. See Schneller v. (1991). 296, 311-12, 470 162 Wis. 2d N.W.2d nothing specific case, facts ofthis 45. Under the by remanding gained this case to the circuit would be find- and enter factual hold a second report. ings guardian ad We on the litem’s based affirming appeals decision therefore affirm the court of continuing protec- the circuit court's order tive
III. CONCLUSION determining whether to We hold protective placement, a circuit court must continue summary or a hold either a full due hearing, opinion, and must make as described in this findings support the need for continuation factual *13 protective placement, by as Wis. Stat. 55.06(1). judicial In the interests administration, we hold that this reaffirmation of Watts should be applied prospectively, so as to undermine confi- placements. dence in current The annual review protec- required by protect statute will the interests of tively placed persons.
By appeals the Court.—The decision of the is affirmed. (concurring). WILCOX, P. JON J. I write
separately
majority's
because, while I concur with the
disposition
disagree
part
case,
of this
I
with its rea-
soning. agree
majority
I
with the
insofar as it concludes
(GAL)
light
thorough
that in
theof
ad litem's
report which served as the basis for the circuit court
continuing
protective placement,
order
there is no reason to remand this case to the circuit
disagree
However,
court for
I
with the
majority that State ex rel. Watts v. Combined Commu-
nity
Board,
Services
65,
122 Wis. 2d
that "there must be an annual review of each judicial placement by officer." then We established procedures that, the two a minimum, at circuit courts during must undertake each review. appoint First, the circuit court should protectively-placed duty GAL,
each individual whose it is to examine the at 84. Id. Pursuant (1) duty, placed the GAL must: "meet with the (2) individual"; "review the annual made (3) 55.06(10)(a)"; agency services under sec. guard- "explain placed his her individual and to the *14 attorney appointed, right to an to have an ian the independent pro- request a full due evaluation, and to for continued on the need cess present appropriateness placement on of the or the (4) request facility"; necessary, placement if an addi- (5) using placed individual; and of the tional evaluation fulfilling gathered pre- the of the information while all ceding duties, concerning the whether the
make a to court to the [placed] individual continues meet standards the current protective placement, whether placement is least restrictive environment con- the needs, the whether the sistent with individual's change guardian requests or status individual appointed, counsel should be placement, whether process hearing full should be and whether a due held. at 84-85.
Id. the the Second, 50. circuit must review Upon report, report. 85. the Id. at review GAL's (1) court must make at least three decisions: "whether (2) information"; to order additional "whether (3) appoint counsel"; "whether hold a defense 55.06(6), Stats., or under sec. full due summary hearing." Id. present case, In the circuit court duti- ensuring
fully procedures, thus followed these only placement precise H. received not Goldie place- requested,1 precise had but also which she extending Goldie H.'s Because the circuit court order placement H. had granted precise H. strongly question I even has requested, whether H., County Dunn v. Goldie standing appeal the order. See necessary Nonetheless, ment to meet her needs. majority of this court holds that the circuit court did enough. According majority, do to the the circuit court also was to hold a on the record so Goldie H.'s GAL could recite to the circuit court the report. facts and recommendations in his annual majority's holding ¶ 52. The on an based erro- interpretation single phrase neous of a in Watts. The majority phrase interprets the "whether to hold full process hearing.. summary hearing" due .or a in Watts to mean that the circuit court one must hold of the two types hearings during every annual review. Id. Contrary majority's interpretation, to the phrase require however, this does not the circuit court *15 every provides to hold a in Rather, case. it that may court, the circuit discretion, in its sound a hold full process hearing, summary hearing, due a or no at all. majority's interpretation, 54. Unlike the
reading meaning of Watts harmonizes the of the word delineating "whether" in each of the three clauses the decisions that the circuit court must make while reviewing the GAL to order addi- —"whether appoint tional information, whether to counsel, defense process hearing. and whether to a hold full due . .or a summary hearing." Id. In the clauses, first second (Wis. 00-1137, unpublished slip op. Case No. at App. 2-4 Ct. 2000) Sept. (holding standing H. no had to Opelt State ex Crisp, rel. v. appeal); 106, 113, 81 Wis. 2d 260 (1977) (explaining standing N.W.2d 25 in order to have to appeal, party seeking appeal the adversely to must have been judgment affected the or or order from which he she seeks to Corp. Derynda, Park v. Auer appeal); 317, 322, 230 Wis. 2d 601 (Ct. 1999) ("A App. party complain 841 N.W.2d cannot an about consents"). deliberately act to which he or she 555 being dispute is that the word "whether" there no questions "[u]sed alterna- in to introduce one indirect Dictionary Heritage English The American tive." (3d 1992). Language is, as used those ed. That question a that the cir- clauses, introduces "whether" court must decide: Should it "order additional cuit "appoint Watts, defense counsel"? information" and/or clause an Wis. 2d at And while each indicates pursue, may option to it leaves that the court choose may open possibility that the court choose alter- option to information native order additional —not appoint Thus, defense counsel. as used and/or to essentially clauses, first two the word "whether" means or not." "whether majority applied defini- 55. Had the same to the last clause—"whether
tion the word "whether" summary process hearing. . hold a full due .or a hearing" correctly understood the would have —it Upon report, court's mandate: review of the GAL Watts or not to hold a the circuit must decide whether summary hearing. process hearing Watts, due full majority applied is, 2d at That had the 122 Wis. in all definition of the word "whether" three consistent acknowledged clauses, held it would have that Watts has that the circuit court discretion decide have summary hearing in or, due or a full alternative, at all. no ¶ 56. To reach its conclusion that the last clause *16 every majority requires hearing case, the necessa- a in rily applies the a different definition of word "whether" it in the last clause than does the other two clauses. in Specifically, it "whether” in the last clause to be reads possibilities." "[u]sed The to introduce alternative Dictionary English Language Heritage the American (3d 1992). applying this defini- Thus, ed. second 2033
556 majority interprets tion the "whether," of word the the last clause to mean that the circuit court must choose possibilities: one of two alternative a full due hearing summary hearing. or a majority explain, why
¶ 57. however, fails to differently the word "whether" should be read in that last clause than it in Indeed, the other two clauses.2 majority's interpretation the conflicts with both the holding majority's disposition pre- Watts and the sent case.
¶ 58. This court indicated in Watts that a
necessary
every
paragraph
is not
in
case. In the
directly following
paragraph containing
the
the clauses
explained
issue,
at
the
court
Watts
that "the annual
necessity
hearing,
review of the
for a
and the
if
necessary, may
be
a
conducted
court commis-
added).
(emphasis
Watts,
sioner. . .."
2 I these three clauses had been statutory single provision, pre this court would entertain sumption interpreted the word "whether" should be LIRC, Harnischfeger Corp. v. See same in each clause. Wis. (1995) 650, 663, 539 2d ("attributing N.W.2d 98 the same defini tion word both times it is used in the same statute construction"). principle statutory .[a] follows.. basic *17 majority hearing.3 Majority op. ¶ the at 45. Had interpretation Watts, however, it could adhered to its "nothing gained" by that would be not have concluded remanding hearing. It H.'s case for a therefore Goldie majority recognizes that some that even the seems merely procedu- hearing a redundant cases, would be formality. ral hearings never does not mean that 60. This majority op. required. sure, See at 30. To be
should be majority posits exactly the reasons that the holding majority The it on the fact the also bases case. hearing held a on Goldie H.'s See circuit court motion 6, 36, According majority, the this majority op. at 42-45. to ¶¶ hearing "supplemented" the GAL and examined the "rel majority Id. 6. The this evant issues." at mischaracterizes eight- hearing majority to which the refers was hearing presently court: on the issue before this minute hearing during every requires on record whether Watts during At did the court no time this ask annual review. regarding propriety of any questions GAL Goldie H.'s in the placement about the facts or recommendations H.'s or Similarly, during hearing did the report. at no time annual attorney any information or opposing offer additional GAL placement. at regarding And no recommendations any findings during this did the circuit court make time relating continued of fact Goldie H.'s I majority, In contrast fail to see that this against provided any protection Goldie H. with additional way in no wrongful placement. If a such as this —which protectively-placed individual’s propriety addresses the necessary the hear- all that meet continued —is Watts, I majority grafts onto cannot ing requirement majority's hearing requirement ulti- that the help but conclude attorneys mately paid present to be may benefit no one but hearings. at such *18 many opinion, ¶¶ 30-31 itsof not most—cases will —if
require a But it does not follow from this fact hearing necessary every a is in case. Watts, In accordance I with would leave the hearing decisions of and, whether hold if a necessary, type is what hold, within the sound discretion of the Where, circuit court. as in the present provides case, the GAL the circuit court with a report supported by overwhelming evidence in favor of absolutely continued and there is no con- hearing merely court, tested issue before the would reciting involve the GAL to the court the in evidence report. spend his her annual I see no need to our money taxpayer limited court resources and for this type superfluity. In circumstances, such the inter- judicial economy outweigh ests the need for what ultimately formality. empty bewill does not Watts compel hearings circuit courts to hold on the record merely hearings to hold on the record. agree above, 62. For the I reasons set out while majority that this case not
with need be remanded placement, on Goldie H.'s continued I do agree holding with the court's that —with the exception present necessary of the case—a every Accordingly, annual review. I while concur majority's disposition present with the I case, disagree part reasoning. with its