RACINE COUNTY, Petitioner-Respondent, v. R.P.L., Respondent-Appellant-Petitioner.
No. 2025AP813-FT
Supreme Court of Wisconsin
Decided July 7, 2026
2026 WI 26
REVIEW of a decision of the Court of Appeals. Racine County Circuit Court (Timothy D. Boyle, J.) No. 2023GN73
¶1 SUSAN M. CRAWFORD, J. Robert1 appeals an order continuing his protective placement in an adult family home under
I. BACKGROUND
¶2 On May 31, 2023, a Meals on Wheels food delivery service worker found 65-year-old Robert lying on the floor in his Racine home and brought him to a local hospital. The hospital filed a petition for the appointment of a guardian under
¶3 In June 2024, as part of an annual review of the protective placement, Robert‘s guardian filed a written report stating that Robert continued to meet the standards for protective placement under
¶4 The circuit court held a hearing on the continuation of the protective placement on August 9, 2024. Dr. Braam was the only witness who testified and his evaluation report was received into evidence. He expressed opinions regarding Robert‘s diagnoses, his mental and physical incapacity, and the permanency of his cognitive impairments. The circuit court made findings of fact and ruled that the County had met its burden of proving by clear and convincing evidence that Robert met the criteria for protective placement. Accordingly, it entered orders for the continuation of Robert‘s guardianship and protective placement.
¶5 Robert appealed the 2024 order to continue the protective placement, arguing that the County failed to prove two of the statutory criteria at the annual review hearing: that his incapacity endangered himself or others and that his disability was permanent.4 The court of appeals rejected these arguments and affirmed the circuit court order.
II. DISCUSSION
A. MOOTNESS
¶6 As an initiаl matter, we discuss whether Robert‘s appeal of the 2024 order is moot, given that the circuit court issued another order in 2025 continuing the protective placement, which Robert did not appeal. We hold that Robert‘s appeal of the 2024 order is not moot.
¶7 Mootness is a question of law this court reviews de novo. PRN Assocs. v. DOA, 2009 WI 53, ¶25, 317 Wis. 2d 656, 766 N.W.2d 559. “An issue is moot when its resolution will have no practical effect on the underlying controversy.” Id. Accordingly, appellate courts generally do not rule on moot issues. State ex rel. Riesch v. Schwarz, 2005 WI 11, ¶12, 278 Wis. 2d 24, 692 N.W.2d 219.
¶8 The County argues that the order continuing Robert‘s protective placement in 2025—which Robert did not contest or appeal—renders his appeal moot because he is no longer subject to the 2024 protective placement order. The County contends that vacating the 2024 order would have no practical effect, noting that Robert was not assessed costs for the hospital‘s attorney‘s fees related to the filing of the petitions for protective placement and guardianship.5 As such, the County urges this court to decline to rule on the merits of this case.
¶9 Robert contends that the appeal is not moot because collateral consequences of the 2024 protective placement order persist, in the form of liability for the costs of his care. We have recognized, in a variety of contexts, that an appeal is not moot if “the direct or collateral consequences of the order persist and vacatur of that order would practically affect those consequences.” Sauk County v. S.A.M., 2022 WI 46, ¶19, 402 Wis. 2d 379, 975 N.W.2d 162 (considering collateral consequences of involuntary civil commitment order on mootness); see also State v. Theoharopoulos, 72 Wis. 2d 327, 333, 240 N.W.2d 635 (1976) (considering collateral consequences of a criminal conviction on mootness); State v. Wilhite, 2025 WI App 64, ¶1 n.1, 418 Wis. 2d 471, 27 N.W.3d 238 (considering collateral consequences of order of commitment of person found not guilty by reasоn of mental disease or defect on mootness).
¶10 A person under a protective placement pursuant to
¶11 The County concedes that Robert may be required to pay costs related to his care under the protective placement order, but argues that these potential costs are not a collateral consequence making the appeal non-moot. It contends that
¶12 Section 55.045 requires a county, within certain funding limitations, to provide for the “reasonable program needs” of individuals who are provided protective placement. It further provides that a county “may require that an individual who is provided protective placement . . . under this chapter provide reimbursement for services or care and custody received, based on the ability of the individual to pay for such costs.” The County argues that because this provision states only that a county “may” seek such reimbursement, it does not create mandatory liability as a collateral consequence of the protective placement order. We rejected a similar argument in S.A.M., holding that “it is irrelevant whether collection efforts have begun because, regardless, [the individual] remains liable solely by virtuе of § 46.10(2)‘s mandatory language (‘shall be liable‘). And . . . it is enough to overcome mootness when there is the ‘potential’ for collection actions because of the liability.” Id., ¶25. The same is true here. Although § 55.045 grants a county discretion to seek reimbursement for costs from an individual under protective placement, § 46.10(2) grants no discretion to the individual to pay those costs. Moreover, at the hearing to continue the protective placement order, Robert‘s guardian, in explaining why she sought an order for the sale of Robert‘s house, advised the court that Robert was, in fact, being assessed a “cost share” for his care.
¶13 The financial consequences to Robert of the order continuing protective placement in 2024 did not disappear when the court ordered the continuation of protective placement in 2025. Robert is “liable for the cost of the care, maintenance, services and supplies” under
B. STANDARD OF REVIEW
¶14 We next address the appellate standard of review of the sufficiency of the evidence to support a circuit court‘s order of protective placement under
¶15 Appellate review of the sufficiency of the evidence to support a protective placement order presents a mixed question of fact and law. See Walworth County v. Therese B., 2003 WI App 223, ¶21, 267 Wis. 2d 310, 671 N.W.2d 377. Appellate courts uphold a circuit court‘s factual findings unless they are clearly erroneous, and we review de novo the sufficiency of the evidence to meet the requirements for continued protective placement. See id.;
C. SUFFICIENCY OF THE EVIDENCE
¶16 Applying the mixed standard of review to Robert‘s appeal, we uphold the circuit court‘s factual findings as not clearly erroneous and conclude that the record contains sufficient evidence to meet the legal
¶17 An order for protective placement requires a County to prove by clear and convincing evidence that an individual: (1) “has a primary need for residential care and custody“; (2) “has been determined to be incompetent by a circuit court“; (3) “is so totally incapable of providing for his or her own care or custody as to create a substantial risk of serious harm to himself or herself or others” due to “developmental disability, degenerative brain disorder, serious and persistent mental illness, or other like incapacities“; and (4) “has a disability that is permanent or likely to be permanent.”
¶18 Robert argues that the County failed to prove he qualified for protective placement, challenging the circuit court‘s findings regarding the third and fourth standards under § 55.08(1)(c)–(d). Robert first argues that the County needed to prove more than the existence of a disability or vague concerns for his well-being to meet its burden of proving that he presents a substantial risk of serious harm to himself or others. Robert also argues that the evidence was insufficient to support a finding that his disability is permanent or likely to be permanent, given Dr. Braam‘s testimony regarding the “possibility” that Robert “has the ability to regain some of his cognitive abilities.” The County, on the other hand, maintains that it presented clear and convincing proof as to both elements and that the record contains sufficient evidence to support the circuit court‘s order continuing Robert‘s 2024 protective placement.
¶19 Under § 55.08(1)(c), the County must show that the “risk of serious harm” from Robert‘s incapacities is “substantial.” See K.N.K. v. Buhler, 139 Wis. 2d 190, 202, 407 N.W.2d 281 (Ct. App. 1987). This means “[t]he harm envisioned may not be based on mere speculation but must be directly foreseeable from the overt acts or omissions of the individual.” Id. However, “the statute does not require that dangerousness be proven by recent acts or omissions.” Id. at 203 (emphasis omitted).
¶20 The circuit court credited and gave weight to Dr. Braam‘s hearing testimony and professional opinions. Dr. Braam testified that Robert was diagnosed with a neurocognitive disorder due to a cerebrovascular accident (a stroke or similar incident), right-side hemiparesis, and expressive aphasia, incapacitating him both physically and mentally and causing him to have difficulty communicating. He described Robert‘s speech and language impairment as “severe.”
¶21 Dr. Braam testified that Robert‘s functional knowledge is diminished, describing him as “marginally aware of . . . what was going on.” He described Robert‘s orientation as “mildly impaired,” commenting that he was “off on the dates” and “not really able to have much of a discussion about current events.” He testified that Robert‘s attention and concentration are mildly impaired and that he has mild to moderate memory impairment. Dr. Braam testified that Robert‘s “most concerning” cognitive impairments related to his executive functioning, describing him
¶22 Dr. Braam offered his professional opinions regarding how Robert‘s incapacities affected his capability to care for himself. He explained that Robert‘s impaired critical thinking skills interfered with his ability to “protect himself from financial abuse and protect his health and safety.” He testified that, in his opinion, Robert required 24-hour supervision and monitoring “due to [his] need for assistance with activities of daily living, food preparation, transportation and organization of the transportation to medical appointments,” to name “just a few things.” He expressed the opinion that Robert needed assistance in remembering to take his medications in proper doses, due to his cognitive impairments. Dr. Braam acknowledged that Robert is prescribed a large number of medications.
¶23 The circuit court made factual findings regarding Robert‘s physical and cognitive impairments and his needs related to his care and custody based on Dr. Braam‘s largely uncontested testimony. These findings included that Robert suffered from a neurocognitive disorder, expressive aphasia, and hemiparesis. The court specifically credited and adopted Dr. Braam‘s opinions that Robert‘s critical thinking skills were impaired to the point that he is unable to make competent decisions related to his care and custody. The circuit court also found that Robert‘s incapacities left him unable to provide for his own care, including taking medication, bathing, obtaining proper food, and planning for and coordinating proper medical treatment, again crediting Dr. Braam‘s testimony regarding these limitations.8
¶24 Because these findings of fact are not against the great weight and clear preponderance of the evidence, we uphold them under the clearly erroneous standard of review and accept them as true. Our de novo review requires us to determine whether, in light of the established facts regarding Robert‘s impairments and their profound effects on his ability to care for himself, the legal standard of dangerousness was met. We conclude that the evidence was sufficient to establish, under the clear and convincing standard, that Robert‘s incapacities left him so incapable of providing for his own care or custody that he presented a danger to himself or others.
¶25 Robert also challenges the sufficiency of the evidence that his disability is permanent or likely to be permanent, as required by
¶26 Dr. Braam acknowledged that Robert‘s ability to communicate could potentially improve with therapy. He testified that communication training and use of assistive communication devices could be “extremely helpful” and “reduce his needs for guardianship.” On the other hand, he stated that such therapy would take time to learn and would reduce Robert‘s needs for assistance only if it was effective and improved his communication skills. Dr. Braam also conceded that it was difficult to assess the extent and permanency of Robert‘s cognitive impairments due to his limited ability to communicate. In addition to recommending speech therapy, he testified that a neuropsychological evaluation would provide a more complete picture of Robert‘s cognitive defects and the potential for improvement. He testified, however, that in his opinion, other interventions would not eliminate the need for a guardianship.
¶27 In making its factual findings, the circuit court discussed the inconsistencies and reservations in Dr. Braam‘s testimony regarding the permanency of Robert‘s disability. It placed more weight on Dr. Braam‘s
¶28 “It is the function of the trier of fact, and not of an appellate court, to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Barney by Lowe v. Mickelson, 2020 WI 40, ¶32, 391 Wis. 2d 212, 942 N.W.2d 891 (citation modified). The circuit court, acting as fact finder, “is the ultimate arbiter of the credibility of witnesses and a reviewing court will accept the inference drawn by the trier of fact.” Groshek v. Trewin, 2010 WI 51, ¶11, 325 Wis. 2d 250, 784 N.W.2d 163 (citation modified).
¶29 Although Dr. Braam‘s testimony suggests that Robert‘s communication abilities could be improved with appropriate therapy, the circuit court resolved the competing inferences relating to the permanency of Robert‘s disability by giving greater weight to Dr. Braam‘s testimony about Robert‘s other impairments. The circuit court reasonably inferred that even if Robert‘s communication improved, his other impairments—cognitive and physical—would cause him to continue to need assistance with both daily living activities and complex tasks such as organizing his medical care. The circuit court further inferred from Dr. Braam‘s testimony that no other intervention could potentially mitigate Robert‘s other physical and cognitive impairments. We accept the circuit court‘s reasonable inferences and uphold its findings of fact as not contrary to the great weight and clear preponderance of the evidence. In light of those factual findings, we conclude in our de novo review that the evidence was
III. CONCLUSION
¶30 Chapter 55 of the Wisconsin Statutes “is designed to establish [] protective services and protective placements, to assure thеir availability to all individuals when in need of them, and to place the least possible restriction on personal liberty and exercise of constitutional rights consistent with due process and protection from abuse, financial exploitation, neglect, and self-neglect.”
By the Court.—The decision of the court of appeals is affirmed.
RACINE COUNTY, Petitioner-Respondent, v. R.P.L., Respondent-Appellant-Petitioner.
No. 2025AP813-FT
Supreme Court of Wisconsin
Decided July 7, 2026
2026 WI 26
BRIAN K. HAGEDORN, J., with whom SUSAN M. CRAWFORD, J., joins, concurring.
I. STANDARDS OF REVIEW GENERALLY
¶32 The standard of review in a case operates as a decisional framework for reviewing the work of lower courts and other state actors. It is, at root, an exercise in apportioning power and responsibility among decisionmakers. State v. J.D.B., 2026 WI 5, ¶15, 419 Wis. 2d 383, 31 N.W.3d 314. The standard of review is a legal question, and it may be set by the legislature or an appellatе court. For example, in review of administrative proceedings, the legislature provides that an agency‘s determination of fact is accorded substantial deference, while an agency‘s interpretation of law is reviewed de novo.
¶33 At the outset, establishing the proper standard of review requires an examination of the type of issue being reviewed. Ronald R. Hofer, Standards of Review-Looking Beyond the Labels, 74 MARQ. L. REV. 231, 233 (1991). Generally speaking, decisions fall into three categories: discretion, fact, or law. J.D.B., 419 Wis. 2d 383, ¶15. With this in view, the court then examines more fundamental questions, including “which court
¶34 In some matters, the law is designed to afford flexibility to lower courts. These are matters of judgment where the law provides guidance and boundaries, but otherwise grants the decisionmaker discretion to determine the best course of action. For example, evidentiary rules grant trial courts discretion to determine whether evidence is relevant or prejudicial. State v. Johnson, 2021 WI 61, ¶33, 397 Wis. 2d 633, 961 N.W.2d 18. Similarly, the law entrusts circuit courts with broad discretion in sentencing those found guilty of crimes. State v. Gallion, 2004 WI 42, ¶17, 270 Wis. 2d 535, 678 N.W.2d 197. In handing down a sentence, circuit court judges are both empowered and encouraged to determine what justice requires. This decision comes with first-hand observation of the criminal defendant, the victim, and others impacted by the crime. The proper sentence relies peculiarly on the personal knowledge and judgment of the circuit court judge. Id., ¶18. In this circumstance, and others like it, courts review such decisions for an erroneous exercise of discretion. Under this standard, we affirm a court‘s exercisе of discretion as long as it is a decision a reasonable judge could make within the bounds of the governing law. Gudex v. Franklin Collection Service, Inc., 2026 WI 6, ¶8, 419 Wis. 2d 534, 31 N.W.3d 338.
¶35 Other decisions are questions of fact. These go to the fundamental question of what happened and which witnesses or evidence are credible. Factual questions often require judgment as well—the judgment to decide who is telling the truth and who is not, or for example, to decide who offers a more convincing explanation of a person‘s medical situation. Trial courts are uniquely designed to decide these questions. “Determining what is true as a factual matter involves evaluating witnesses and evidence and otherwise making numerous credibility judgments based on both written and in-person evidence.” J.D.B., 419 Wis. 2d 383, ¶16. Appellate courts, in contrast, “review only a cold paper record.” Id., ¶17. We are simply not institutionally competent to find facts in the ordinary course. As such, the general rule is that we accept the trial court‘s factual findings unless they are clearly erroneous. Id., ¶18. Under this standard, “a circuit court‘s finding of fact is not clearly erroneous unless it is against the great weight and clear preponderance of the evidence, even if the evidence may have presented competing factual
¶36 Finally, some decisions are questions of law. While circuit courts must determine what law to apply to the issues in a case, they are no better equipped to do so than appellate courts. Appellate courts are intentionally structured “to deliberate and decide what the law is—matters determined by reference to legal authorities such as statutes, constitutions, and precedent.” See J.D.B., 419 Wis. 2d 383, ¶17. This is why we independently review questions of law, without affording deference to the legal determination below. See id., ¶18.
¶37 These three buckets make sense in theory. In practice, however, the lines between the buckets are often blurred. That brings us to the standard of review in ch. 55.
II. THE STANDARD OF REVIEW AND CHAPTER 55
¶38 Before a person can be put into protective placement under ch. 55, the county must meet its threshold burden of proof. Walworth County v. Therese B., 2003 WI App 223, ¶7 n.3, 267 Wis. 2d 310, 671 N.W.2d 377. The county must prove that four specific requirements are met by clear and convincing evidence:
(1) PROTECTIVE PLACEMENT. A court may under s. 55.12 order protective placement for an individual who meets all of the following standards:
(a) The individual has a primary need for residential care and custody.
(b) The individual is a minor who is not alleged to have a developmental disability and on whose behalf a petition for guardianship has been submitted, or is an adult who has been determined to be incompetent by a circuit court.
(c) As a result of developmental disability, degenerative brain disorder, serious and persistent
mental illness, or other like incapacities, the individual is so totally incapable of providing for his or her own care or custody as to create a substantial risk of serious harm to himself or herself or others. Serious harm may be evidenced by overt acts or acts of omission. (d) The individual has a disability that is permanent or likely to be permanent.
¶39 This section, then, establishes a legal standard that must be met. Yet each of the four required “legal” findings, at bottom, are questions of medical or procedural fact. Paragraph (a) asks whether an individual has a “primary need” for certain medical care. Paragraph (b) is an inquiry into procedural prerequisites. Paragraph (c) articulates the criteria of dangerousness—i.e., the person is so unable to take care of themselves that they risk harming themselves or others. And para. (d) requires a court to conclude the disability is, or is likely to be, permanent. Other than para. (b), each of the other findings will depend heavily, if not entirely, on a factfinder‘s assessment of the medical evidence. It will likely require sifting through competing inferences, dueling expert reports, and otherwise assessing the credibility of expert reports and testimony.
¶40 This makes the standard of review question difficult. On the one hand, these are statutory requirements—legal standards that must be satisfied. On the other hand, these findings are essentially a series of factual determinations. Wisconsin courts have addressed this kind of situation in other contexts, but we have done so in ways that are arguably inconsistent, heightening the need for reexamination.
¶41 In State v. Garfoot, 207 Wis. 2d 214, 216–17, 221–22, 558 N.W.2d 626 (1997), we were tasked with deciding the standard of review for cases under
¶42 We recognized that although this was a legal test, “its determination is functionally a factual one: either the state has convinced the court that the defendant has the skills and abilities to be considered ‘competent,’ or it has not.” Id. at 222–23. Given its “superior ability to observe the defendant and the other evidence,” we concluded that the trial court was best positioned to make this ultimate determination. Id. at 223. Recognizing that the determination was “primarily factual,” we concluded that the clearly erroneous standard should govern review of a trial court‘s competency determination. Id. at 225.
¶43 Most recently, this court took the same approach in J.D.B. That case concerned the involuntary administration of psychotropic medication to render a defendant competent for trial. One of the questions we addressed was what standard of appellate review should govern four findings required by the Supreme Court—namely, that (1) “imрortant governmental interests are at stake“; (2) “involuntary medication will significantly further” those interests; (3) “involuntary medication is necessary to further those interests“; and (4) “administration of the drugs is medically appropriate.” Sell v. United States, 539 U.S. 166, 180–81 (2003); J.D.B., 419 Wis. 2d 383, ¶1.
¶44 Following the near-universal conclusions of our sister courts, we held that the first Sell factor should be reviewed de novo, but the remaining three Sell factors were primarily fact questions and should “not be disturbed unless they are clearly erroneous.” J.D.B., 419 Wis. 2d 383, ¶3. We explained that circuit courts were uniquely equipped and institutionally competent to make what were essentially medical determinations based on the evidence. Id., ¶¶16, 34, 40, 43. The second Sell factor, for example, “is all about the efficacy of the medicine“—a “factual determination” of “how likely a given treatment plan is to help, and not to harm the defendant.” Id., ¶¶30, 34. The third Sell factor requires the court to “determine that treatments other than medication and methods of administering medication less intrusive than involuntary medication . . . are not available.” Id., ¶39. Once again, “this finding is predominantly a medical conclusion, not a legal one.” Id., ¶40. And the
¶45 Thus, in Garfoot and J.D.B., this court recognized that certain medical questions were best understood as factual determinations, even when those conclusions were coextensive with the legal standard. And we treated them like we treat other factual determinations—accepting the trial court‘s findings unless clearly erroneous.
¶46 Based on my research, this court has never considered the standard of review in ch. 55 cases. Thus, should such an issue come to us, it would be an issue of first impression in our court. Meanwhile, the court of appeals adopted and has been applying what is called a mixed standard of review in ch. 55 cases. See Therese B., 267 Wis. 2d 310, ¶21. Under this approach, factual findings are upheld unless they are clearly erroneous, and the ultimate determination of whether the evidence supports protective placement is reviewed de novo as a question of law. Id.
¶47 This mixed standard of review works well in many contexts. For example, in a negligence case, the factual inquiry—what the person did—is reviewed under the clearly erroneous standard. The legal inquiry—what a reasonable person should have done—is reviewed de novo. See Michael S. Heffernan, Appellate Practice and Procedure in Wisconsin, § C-29 (10th ed. 2025) (discussing Millonig v. Bakken, 112 Wis. 2d 445, 450, 334 N.W.2d 80 (1983)). The same is true for a Fourth Amendment Terry stop. The facts of what happened—the nature of the stop, what was seen or heard, etc.—are factual determinations. State v. Genous, 2021 WI 50, ¶10, 397 Wis. 2d 293, 961 N.W.2d 41. But whether the stop satisfies the applicable constitutional standard is an independent legal question. Id. In these types of cases, the questions of fact and law are readily distinguishable and can easily be reviewed under different standards.
¶48 The legal prerequisites for protective placement in
¶49 Justice Crawford drew this out in oral argument, asking Robert‘s counsel why the factfinder can‘t “pick and choose among the evidence that‘s presented. Isn‘t that part of the trial court‘s job in a case like this, to resolve conflicts in the evidence?”2 Indeed. There may have been some evidence suggesting dangerousness and some suggesting the opposite. The trial court weighed the evidence and came to a conclusion as the factfinder. Why should we, as an appellate court, second-guess the reasonable inferences and credibility determinations of the factfinder? We are far less suited than the circuit court to determine Robert‘s dangerousness.
¶50 Our case today further exposes the problem. The majority faithfully applies the mixed standard of review adopted by the court of appeals and not contested by the parties. Majority op., ¶¶16–29. Starting with dangerousness, the majority evaluates the trial court‘s factual findings in depth, concluding that they are not clearly erroneous. Id., ¶¶18–23. After multiple paragraphs of examining the facts, the majority concludes: “in light of the established facts . . . We conclude . . . Robert‘s incapacities left him so incapable of providing for his own care or custody that he presented a danger to himself or others.” Id., ¶24. The same sort of approach governs the court‘s decision on the permanency challenge. Id. , ¶¶25–29. Analytically, our de novo review of the legal question is doing
¶51 In addition, adopting a clearly erroneous standard of review would place us in good company. Federal commitments with similarities to our ch. 55 cases already use the clear error standard of review that the Wisconsin Counties Association suggests we adopt. For example, “A district court‘s decision to commit an incarcerated person whose sentence is expiring under
¶52 In her dissent, Justice Protasiewicz defends the mixed standard of review. She does so in part because she reads the evidence differently, finding it insufficient, and in part because of the important liberty interests at stake. But the strength of the liberty interest does not necessarily determine the proper standard of review. In J.D.B., decided just this term, we applied the clearly erroneous standard of review to legal standards for when the state may involuntary medicate someone—an issue that surely raises important liberty interests. Thus, the question is not whether the interest is important; the question is still who is in the best position to decide. Justice Rebecca Grassl Bradley, in her dissent, likewise critiques the majority for failing to do a proper de novo review. But the dissents of both Justice Bradley and Justice Protasiewicz express disagreement not with whether the legal standards were satisfied per se, but with whether the circuit court‘s findings were the best read of the evidence. In other words, both dissents fall prey to the very problem this concurrence addresses: second-guessing the circuit court‘s factual findings. To be sure, their read of the evidence is plausible, but so is the circuit court‘s. And since the circuit court is in the better position to make the ultimate factual determination, we should not disturb its findings here, even if reasonable judges might disagree.
RACINE COUNTY v. R.P.L.
JUSTICE REBECCA GRASSL BRADLEY, dissenting
REBECCA GRASSL BRADLEY, J., dissenting.
¶54 “Of all tyrannies a tyranny sincerely exercised for the good of its victims may be the most oppressive. . . . [T4hose who torment us for our own good will torment us without end for they do so with the approval of their own conscience. They may be more likely to go to Heaven yet at the same time likelier to make a Hell of earth.” C.S. LEWIS, GOD IN THE DOCK: ESSAYS ON THEOLOGY AND ETHICS 292 (Walter Hooper ed., 1970).
¶55 Three years ago, Robert1 was admitted to the hospital after a Meals on Wheels delivery driver found him on the floor of his home. Robert had fallen in the shower. He was 65 years old at the time. The hospital filed a petition for the appointment of a guardian and for a protective placement order, which the circuit court granted. Without his consent, the State has permanently removed Robert from his home of forty years, confined him to an “adult family home”
¶56 If the law permitted the State to torment Robert for his own good, this court would have no basis to intervene. The State, however, never cleared the statutory hurdles justifying a protective placement. The majority says Robert cannot go home because his disability is permanent or likely to be permanent and creates “a substantial risk of serious harm to himself or others.” Majority op., ¶30. The record does not support the majority‘s conclusions. Most glaringly, Racine County (“the County“)
¶57 Paying only lip service to its duty to conduct a de novo review, the majority rubberstamps the lower courts’ conclusions that the County‘s evidence satisfies the statutory basis for continuing Robert‘s protective placement. The County‘s evidence fell short. Depriving Robert of a meaningful appellate review, the majority consigns Robert to a protective placement “indefinite in duration” and “tantamount to a life sentence to a nursing home or other custodial setting.” Jefferson County v. Joseph S., 2010 WI App 160, ¶13, 330 Wis. 2d 737, 795 N.W.2d 450 (quoting Walworth County v. Therese B., 2003 WI App 223, ¶12, 267 Wis. 2d 310, 671 N.W.2d 377). While undoubtedly easier on the County to place Robert in out-of-home care rather than arrange for services in his own home, the law requires the State to “place the least possible restriction on personal liberty.”
I
¶58 Before a court may order a protective placement, the court must determine the individual (1) “has a primary need for residential care and custody“; (2) “is an adult who has been determined to be incompetent by a circuit court“; (3) “is so totally incapable of providing for his or her own care or custody as to create a substantial risk of serious harm to himself . . . or others” due to a “developmental disability, degenerative brain disorder, serious and persistent mental illness, or other like incapacities“;3 and (4) “has a disability that is permanent or likely to be permanent.”
¶59 Upon determining a protective placement is appropriate, the court should “place the least possible restriction on personal liberty and exercise of constitutional rights consistent with due process and protection from abuse, financial exploitation, neglect, and self-neglect.”
¶60 At the time Robert went to the hospital in 2023, he had a major neurocognitive disorder that interfered with his ability to speak, his orientation, and his executive functioning. Robert also had hemiparesis—muscle weakness or paralysis—on his right side. Robert‘s medical issues stem, at least in part, from a prior stroke and gunshot wound. Medical professionals at the hospital ultimately ruled out a stroke but determined Robert was dehydrated, had abnormal blood pressure, and had a significant decline in his speech and language abilities. After an extended hospitalization, the hospital petitioned for a protective placement order, which the circuit court granted.
¶61 A year later, the County filed a petitiоn for the statutorily required annual review of Robert‘s protective placement. Robert challenged his protective placement. During the review hearing, the County presented only the testimony of the court-appointed expert, Dr. Steven J. Braam, a licensed psychologist. Dr. Braam conceded it was “a bit of a tricky thing to be able to get accurate information” from Robert during his examination because Robert suffered from aphasia, “which prevents him from being able to express his thoughts into words.” Dr.
¶62 Dr. Braam opined these impairments affected Robert‘s ability to live alone without a risk of harm to himself. For example, Dr. Braam testified Robert‘s impaired critical thinking skills interfered the most with his ability to make decisions for himself. Dr. Braam further explained that Robert‘s deficits interfered with his ability to protect himself from financial abuse as well as to protect his health and safety. Dr. Braam acknowledged, however, that “[w]e don‘t know how much of a concern [Robert‘s critical thinking skills] are because of the communication skills.” According to Dr. Braam, Robert needs “assistance with activities of daily living, food preparation, transportation and organization of the transportation to medical appointments.” Dr. Braam also expressed concern about Robert‘s ability to remember to take his medicine and his ability to determine what to do if he missed a dose.
¶63 When asked whether the impairments were likely to be permanent, Dr. Braam answered, “[w]e don‘t know that for sure” “because even though his impairment might be significant right now, there is a possibility that he has the ability to regain some of his cognitive abilities.” Dr. Braam further noted that Robert “has never . . . had a neuropsychological evaluation to completely map out what his cognitive deficits are and the possibility that they might improve.” Cutting against a likelihood of permanent impairment, Dr. Braam informed the circuit court, “there also appears to be some time after [Robert‘s] first medical event that he was able to function on his own[, which] would speak to his ability to regain some competency at this point in time.” Toward that end, Dr. Braam testified that “communication training and use of assistive communication devices would be extremely helpful in being able to understand” Robert and could “reduce his needs for guardianship.” Speech and language training, which the County never provided, “have the potential to vastly improve . . . [Robert‘s] communication abilities.” According to Dr. Braam, those trainings would help assess Robert‘s most concerning deficits—including his critical thinking skills and memory.
II
¶65 Whether the County has met its burden of proof to support the extension of Robert‘s protective placement presents a mixed question of fact and law. Waukesha County v. J.W.J., 2017 WI 57, ¶15, 375 Wis. 2d 542, 895 N.W.2d 783. “We uphold a circuit court‘s findings of fact unless they are clearly erroneous,” but “[w]hether the facts satisfy the statutory standard is a question of law that we review de novo.” Id. A proper de novo review leads to the inexorable conclusion that the County‘s proffered evidence fell short of meeting the statutory standard for a protective placement.4
¶67 At no point did Dr. Braam explain how Robert‘s disabilities were so serious as to create a substantial risk of serious harm requiring an out-of-home placement and depriving Robert of the option to return to the home he owned and in which he had lived for four decades. Although it is possible to speculate about the harm an individual with disabilities could face at home, the law requires more. “Mere speculation as to difficulties [a person] may encounter is not sufficient. Specific harm must be foreseeable to fulfill” the statutory requirement. Zander v. County of Eau Claire, 87 Wis. 2d 503, 515, 275 N.W.2d 143 (Ct. App. 1979). While Dr. Braam expressed concern about Robert‘s inability to provide for his own nutrition, for example, he never explained why a program like Meals on Wheels would be insufficient despite Robert having obtained his meals at home through that service in the past. Likewise, the County did not offer any evidence that Robert could not receive in-home services to aid him
¶68 Finally, the County offered no evidence that Robert‘s needs necessitated placement in a facility with 24-hour surveillance and monitored egress. The County failed to demonstrate any dangers posed by Robert‘s disabilities could not be addressed through protective services provided in his own home. Although the law requires protective services to be “provided in the least restrictive environment and in the least restrictive manner consistent with the needs of the individual to be protected and with the resources of the county department” there is no evidence the County ever tried to fulfill this statutory mandate. See
¶69 The majority does not even attempt to analyze whether the facts established that Robert was “so incapable of providing for his own care or custody that he presented a danger to himself or others” and required placement in an adult care facility. See Majority op., ¶24. The majority neglects to consider whether Robert‘s needs could be met with in-home protective services, which would “place the least possible restriction” on Robert‘s “personal liberty.” De novo review demands an appellate court review the evidence and apply the law to the facts presented, independent of a lower court‘s analysis. Even if the County had established a legal basis for protective placement, the County failed to prove an AFH would “place the least possible restriction” on Robert‘s personal liberty. See
¶70 Even if the County had established that Robert‘s needs could currently be met only in an AFH, the County failed to prove that Robert‘s disabilities are permanent or likely to be permanent. When asked whether Robert‘s impairments were likely to be permanent, Dr. Braam responded, “that‘s the difficult question because even though his impairment might be significant right now, there is a possibility that he has the ability to regain some of his cognitive abilities. We don‘t know that for sure.” Although in his report Dr. Braam checked a box indicating Robert‘s “incapacity” was permanent, Dr. Braam added the following narrative: “It is unclear [to Dr. Braam] that a thorough understanding of [Robert‘s] condition exists[,]” and “[u]ntil there is a way to fully understand his thoughts, it will not be possible to determine if he has the potential to regain
¶71 As a whole, plenty of evidence indicated that Robert‘s impairments may not be permanent. Robert demonstrated in the past an ability to regain independent functioning on his own based on his recovery from a stroke. As of the hearing date, Robert had already improved since his hospitalization after falling, having regained “some degrees of rеlative independence” according to Dr. Braam. Robert‘s history of recovery coupled with his recent improvements suggest his impairment may not be permanent, especially if Robert were given proper treatment.
¶72 The evidence suggests the County and Robert‘s guardian ad litem effectively stalled Robert‘s ability to recover by failing to offer services designed to restore his independence.6 Although Dr. Braam testified that speech and language training could reduce Robert‘s need for guardianship and protective placement, the County offered Robert nothing. The circuit court acknowledged that “communication training and other assisted techniques[] could greatly improve the well being of
¶73 Resorting to circular reasoning, the majority concludes Robert‘s “disability” is permanent or likely to be permanent because “[i]n light of [the circuit court‘s] factual findings,” the County presented sufficient evidence. Majority op., ¶29. The majority further undermines its conclusions by glossing over what it mischaracterizes as “reservations and inconsistencies” in Dr. Braam‘s testimony and deferring to the circuit court to resolve “competing inferences” from the facts. Majority op., ¶¶27–29. The majority‘s own recitation of the facts regarding permanency, however, uncovers no inconsistency in Dr. Braam‘s testimony warranting deference to the circuit court to settle.
¶74 As the majority notes, Dr. Braam said “it was difficult to assеss the extent and permanency of Robert‘s cognitive impairments due to his limited ability to communicate.” Id., ¶26. Dr. Braam also “testified that a neuropsychological evaluation would provide a more complete picture of Robert‘s cognitive defects and the potential for improvement.” Id. The majority additionally acknowledges Dr. Braam “testified that communication training and use of assistive communication devices could be ‘extremely helpful’ and ‘reduce his needs for guardianship.‘” Id. The facts recited by the majority establish that Dr. Braam‘s testimony did not support even a likelihood of permanency. While Dr. Braam could opine that Robert‘s impairment at the time of the hearing interfered with his ability to care for himself independently, Dr. Braam simply could not say whether Robert‘s impairment was likely to be permanent in light of the possibility Robert could regain some of his cognitive abilities.
¶75 Rather than address the absence of any evidence to support the likely permanence of Robert‘s neurocognitive disability, the majority relies on inferences the circuit court could have made. See Majority op., ¶29. The majority merely infers that “even if Robert‘s communication were improved with therapy, the cumulative effect of his disabilities on his functioning would leave him unable to provide for his own care and custody.” Id., ¶27. The majority does not cite any evidence supporting its conclusion, preferring to punt that question to the circuit court instead of
* * *
¶76 “Let me go home, why don‘t you let me go home?” JOHNNY CASH, I Want to Go Home, on Songs of Our Soil (Columbia Recs. Sept. 1, 1959). While Robert‘s physical disabilities may have caused the courts to reasonably question his ability to care for himself in his home, Robert never received a legally sound answer as to why the State will not let him go home. The County plainly failed to satisfy the statutory standard for a protective placement. It produced virtually no evidence that Robert‘s neurocognitive condition was likely to be permanent. The majority neuters any meaningful appellate review for Robert, and for anyone similarly situated. While the County may have meant well, the law does not permit the government‘s good intentions to trample the individual liberty of our most vulnerable citizens. I dissent.
RACINE COUNTY v. R.P.L.
JUSTICE DALLET, dissenting
REBECCA FRANK DALLET, J., dissenting.
¶77 This court has never decided what standard of review appellate courts should use when reviewing whether sufficient evidence supports a circuit court‘s protective-placement order under
¶78 For the reasons identified by the concurrence and the Wisconsin Counties Association‘s amicus brief, it might make sense for us to hold that a different, more deferential standard applies to protective-placement cases in the future. See generally Justice Hagedorn‘s concurrence, ¶53. Nevertheless, it would not be appropriate to do so in this case, since the parties took the existing standard as a given, and made no argument that we should change it. For that reason, everyone—the majority, concurrence, and dissents—all agree that we should apply the existing mixed standard of review in this case. See majority op., ¶15 n.6; Justice Hagedorn‘s concurrence, ¶31; Justice Protasiewicz‘s dissent, ¶81; Justice Rebecca Grassl Bradley‘s dissent, ¶69.
¶79 Under that mixed standard of review, I agree with Justice Protasiewicz‘s dissent, and join it in full. As she correctly explains, a de novo review makes clear that the evidence was insufficient to support the circuit court‘s order to protectively place Robert. See Justice Protasiewicz‘s dissent, ¶108. Nevertheless, I write separately to emphasize that the correct standard of review to apply in these cases remains an open question, and one that we may revisit in a future case. Accordingly, I respectfully dissent.
RACINE COUNTY v. R.P.L.
JUSTICE PROTASIEWICZ, dissenting
JANET C. PROTASIEWICZ, J., with whom REBECCA FRANK DALLET, J., joins, dissenting.
¶80 I agree that Robert‘s appeal is not moot, but I disagree that the continuation of his protective placement was supported by sufficient evidence. The majority‘s contrary conclusion rests on its misapplication of the applicable standard of review. That error results in Robert‘s protective placement order being affirmed without a meaningful de novo review of whether the County presented sufficient evidence to establish that his impairments meet the standards for dangerousness and permanence set forth in
¶81 The majority correctly identifies the two-tiered standard of review our appellate courts have used to evaluate challenges to the sufficiency of the evidence in protective placement proceedings. It purports to apply that standard, but its analysis essentially collapses the tiers into a single clear error inquiry. This is a departure from the way in which our appellate courts have applied the standard of review in protective placement and involuntary commitment appeals, but the majority declines to recognize it as such. It insists that it has conducted a de novo review of the sufficiency of the evidence and leaves for another day whether to adopt clear error as the standard of review. I am not persuaded; the clear takeaway from the opinions in this case is that Robert‘s protective placement order has received only clear error review in this court. This mismatch between what the majority says it is doing and what it actually does will, I fear, needlessly inject confusion into our protective placement jurisprudence. If clear error review (or its functional equivalent) is to govern protective placement appeals going forward, our state‘s bench and bar would benefit from a clear statement to that effect.
¶82 Instead, the majority confines itself to searching for clear error under the guise of conducting a de novo review, ignoring a substantial body of case law that recognizes an appellate court‘s obligation to independently review the sufficiency of the evidence. Because a de novo review of the County‘s evidence confirms that it was insufficient to carry the County‘s burden of proof as to dangerousness or permanence, I respectfully dissent.
I
¶83 Protective placements under
¶84 Given the importance of the individual interests at stake, and the extent to which an individual‘s liberty can be restricted, Wisconsin law imposes significant burdens that must be overcome before protective placement may be ordered. Relevant here, a petitioner seeking to start or continue protective placement for an individual must establish that the individual meets four statutory criteria. See
¶85 Appellate review of protective placement decisions provides an additional layer of protection against erroneous deprivations of liberty. Where, as here, an individual challenges the sufficiency of the evidence to support a protective placement order, our courts have applied a two-tiered standard of review. A challenge to the circuit court‘s factual findings is reviewed deferentially; we do not disturb them unless they are clearly erroneous. See
¶87 In cabining its review of the evidence to the narrow and deferential clear error inquiry, the majority misapprehends the nature of Robert‘s arguments on appeal and leaves the sufficiency-of-the-evidence analysis unfinished. Robert does not challenge the court‘s factual findings; instead, he contends that the County‘s evidence did not establish, to a clear and convincing threshold, that he continues to meet the statutory standards for dangerousness and permanence. His arguments are directed to the second part of the standard of review, which requires a reviewing court to make a legal determination—whether the County presented sufficient evidence to establish dangerousness and permanence.
¶88 The majority conducts no meaningful de novo review of the sufficiency of the evidence. Its analysis is out of step with how this court and the court of appeals have addressed sufficiency-of-the-evidence challenges in protective placement and involuntary commitment actions. When the sufficiency of the evidence in a protective placement proceeding is challenged on appeal, the reviewing court considers the testimony and other evidence underlying the circuit court‘s factual findings and evaluates whether that evidence satisfies the relevant statutory standards. See Wood County v. J.A.B., No. 2025AP220, unpublished slip op., ¶26 (Wis. Ct. App. Aug. 21, 2025).1 We consider whether the party with the burden of proof has presented evidence that is enough to meet its burden, and whether the evidence addresses each part of the statutory standard. Our court of appeals has engaged in this type of analysis repeatedly when addressing sufficiency-of-the-evidence challenges in protective placement appeals. See, e.g., Douglas County v. M.L., No. 2022AP141, unpublished slip op., ¶¶20–26 (Wis. Ct. App. Dec. 28, 2023) (summarizing evidence
¶89 We have also conducted similar de novo reviews in addressing sufficiency-of-the-evidence challenges in involuntary commitment proceedings under
¶90 In departing from the well-worn analytical path laid by these cases, the majority employs an analysis that more closely resembles the “clear error only” standard of review it purportedly declines to adopt.
II
¶91 To prove that Robert continues to be dangerous, the County had to establish that he has an incapacity that makes him “so totally incapable of providing for his . . . own care or custody as to create a substantial risk of serious harm to himself . . . or others.” See
¶92 Additionally, the risk that serious harm will come to pass must be “substantial.”
¶93 Finally, the substantial risk of serious harm must arise because the individual is “so totally incapable” of looking after “his or her own care or custody.”
¶94 Together, these three components of
¶95 The County relied exclusively on the report and testimony of Dr. Braam to meet its burden of proof. I agree with the majority that the circuit court found Braam credible and relied on his report and testimony in its oral ruling. I do not, as Justice Hagedorn posits, second-guess the circuit court‘s factual findings. Nor do I endeavor to reweigh competing bodies of evidence or draw different inferences from the circuit court. Instead, consistent with the cases discussed above that have applied the mixed standard of review, I independently examine whether the County‘s evidence is sufficient to satisfy the legal standard for dangerousness. In my view, the evidence introduced through Braam was not sufficient to establish, to a clear and convincing degree, that Robert met that standard.
¶96 As the majority notes, the evidence concerning Robert‘s dangerousness centered around his neurocognitive disorder resulting from a stroke, expressive aphasia, and hemiparesis, or muscle weakness, on the right side of his body. Majority op., ¶20. Braam described impairments in Robert‘s cognitive and physical abilities resulting from these conditions.
¶97 With regard to Robert‘s cognitive impairment, Braam expressed concern that Robert‘s ability to think critically was diminished and interfered with his ability to “evaluate complex situations.” At the hearing, Braam testified that Robert “has difficulties with higher level thinking to be able to make . . . informed decisions.” Braam acknowledged that he did not “know how much of a concern” Robert‘s critical thinking skills presented but maintained that they “interfere the most with [his] ability to make decisions” and “protect himself from financial abuse and protect his health and safety.” This evidence is too vague in light of the specificity required under the standard for dangerousness in
¶98 The closest the County gets to identifying any specific care or custody incapacity concerns Robert‘s ability to plan and take medication as scheduled. There too, however, the County did not present clear and convincing evidence to meet the statutory standard for dangerousness. Braam testified that Robert was compliant with his prescribed medications, but indicated in his report that he requires assistance with “medication planning and initiation.” At no point however, did Braam identify any of the medications Robert was taking, the dosage and frequency of each, the illnesses or conditions for which they were prescribed, or how Robert‘s mental or physical condition might be effected if he did not take them as prescribed.2 We are thus left to speculate as to the likelihood that Robert would be harmed if he became noncompliant with his medications, and the degree of harm to which that noncompliance would expose him.3
¶99 Even absent this information, it might be reasonable to infer that Robert‘s failure to take his medications as prescribed would create some risk of harm. But that would still fall short of the substantial risk of serious harm that
¶100 Turning to Robert‘s physical limitations, Braam noted in his report that Robert‘s hemiparesis causes him to experience weakness and limited range of motion on his right side and requires him to use a walker to move around. Braam also noted, in his report and his testimony, that Robert requires “assistance” with daily tasks like bathing, preparing meals, doing laundry, taking medication, and coordinating and attending medical appointments. The circuit court appears to have relied on this evidence when it identified Robert‘s “physical impairments” as impacting “his ability . . . to live independently on his own and provide the self-care associated with that.”
¶101 Braam‘s observations about Robert‘s physical limitations and his need for assistance with self-care and household tasks are insufficient as a matter of law to establish dangerousness. Braam did not explain the extent of assistance Robert requires, and the County did not present testimony from another witness about Robert‘s day-to-day functioning and limitations. We do not know whether Robert is totally reliant on staff at the adult family home where he resides, whether he can complete some tasks with minimal assistance, or something in between. These details matter; without further elaboration, a bald assertion that Robert requires “assistance” with activities of daily living does not furnish a sufficient basis to evaluate his capabilities and assess risk and harm. It falls far short of the clear and convincing evidence required to establish that he is “so totally incapable of” caring for himself that he faces “a substantial risk of serious harm.” See
III
¶102 The second criteria that Robert contests required the County to establish that he “has a disability that is permanent or likely to be permanent.” See
¶104 With respect to Robert‘s physical limitations, Braam‘s report сredited Robert‘s claim that he underwent rehabilitation following his stroke and regained the ability “to work and live on his own with support services.” Though Robert required assistance to complete daily activities at the time of Braam‘s evaluation, Braam acknowledged that Robert‘s history suggested a “potential for such improvement to occur again.” Regarding Robert‘s aphasia, as the majority acknowledges, Braam did not describe this as a permanent condition, but instead one that could be significantly improved through “communication training and use of assistive communication devices.”
¶105 When asked directly at the hearing to make a prediction about the permanency of Robert‘s impairments, Braam acknowledged that he could not do so based on the incomplete record available to him:
Well, that‘s the difficult question because even though [Robert‘s] impairment might be significant right now, there is a possibility that he has the ability to regain some of his cognitive abilities. We don‘t know that for sure. He has never to the best of my knowledge had a neuropsychological evaluation to completely map out what his cognitive deficits are and the possibility that they might improve.
It also—there also appears to be some time after his first medical event that he was able to function on his own. That would speak to his ability to regain some competency at this point in time, but there‘s just fairly large gaps in information that we don‘t know. I don‘t know that I can make any prediction about that.
¶106 Braam conceded that he lacked an understanding of Robert‘s cognitive deficits and could not offer a prediction about whether they might improve over time. He similarly acknowledged “large gaps in information” when referring to Robert‘s recovery following his stroke. This appears to relate to Robert‘s physical impairments, about which
¶107 The majority cobbles together a rationale to support the circuit court‘s decision that relies on inferences it ascribes to that court. In the majority‘s telling, the circuit court inferred that Robert would require assistance due to his cognitive and physical impairments apart from his aphasia and that no other interventions would mitigate those impairments. Majority op., ¶29. But that view of the circuit court‘s inferences is undermined by that court‘s reasoning and the evidence presented. Those inferences were not part of the court‘s meager reasoning on the issue of permanence, which turned entirely on a purported lack of “follow-up” regarding Robert‘s physical impairments in Braam‘s testimony. The majority‘s effort also unduly minimizes the nature and significance of Braam‘s concession that he could not make a prediction about the permanency of Robert‘s condition based on the record available to him. That admission compels a conclusion that the County failed to establish by clear and convincing evidence that Robert‘s impairments are, or are likely to be, permanent.
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¶108 The majority fails to faithfully apply the well-established standard of review applicable to protective placement appeals and affirms Robert‘s continued placement based on record that fails to clearly and convincingly establish that he is a danger to anyone or that his condition is likely permanent. I respectfully dissent.