Background
P.A.E., an adult woman with a history of schizophrenia, bipolar disorder, conversion disorder, anxiety disorder, and an unspecified cognitive disorder, has been subject to a guardianship of her person since May 2021. She was protectively placed under Wisconsin’s Chapter 55 in July 2022. La Crosse County petitioned in May 2024 for the second annual review of her protective placement, and a due process hearing was held in August 2024 in the La Crosse County Circuit Court.
At the hearing, the County presented two witnesses: Dr. Michael Lace, a psychologist who examined P.A.E. via a 45-minute Zoom session eleven days before the hearing, and Tonya Olson, P.A.E.’s corporate guardian who visits her once every three months. Dr. Lace testified that P.A.E. exhibited severely impaired memory, limited insight and judgment, and an inability to understand her medical conditions or the need for her current level of care. He opined that she would need 24/7 assistance but acknowledged that if such care were available in the community, protective services rather than placement might suffice. Olson expressed concern that without placement, P.A.E. might fail to take her medications, shower, make it to the bathroom in time, attend doctor’s appointments, or care for wounds on her legs.
The circuit court granted the County’s petition to continue the protective placement, relying partly on evidence from prior proceedings that P.A.E. had weighed 100 pounds and was found covered in feces before her initial placement in 2022. The court found that P.A.E.’s improved condition was attributable to her placement and that discontinuing it would put her in “mortal danger.” P.A.E. appealed, challenging solely whether the County satisfied the third statutory criterion under Wis. Stat. § 55.08(1)(c).
The Court’s Holding
The Court of Appeals, District IV, reversed the circuit court’s order in a single-judge decision by Judge Kloppenburg. The court held that La Crosse County failed to prove by clear and convincing evidence that P.A.E. was “so totally incapable of providing for her own care or custody as to create a substantial risk of serious harm to herself or others,” as required by Wis. Stat. § 55.08(1)(c). Under controlling precedent, the risk of harm must be substantial, specific, foreseeable, and serious — mere speculation about difficulties an individual may encounter is insufficient.
The court methodically addressed each category of evidence. The circuit court’s reliance on P.A.E.’s pre-placement condition in 2022 was insufficient because the record contained no finding or evidence that she was likely to revert to that condition absent continued placement, particularly given her guardianship and available protective services. The testimony about potential medication noncompliance failed because neither the County nor the court identified what medications P.A.E. takes or what specific symptoms or behaviors would follow from stopping them. Evidence that P.A.E. might not shower, miss doctor’s appointments, or fail to tend to leg wounds was deemed too vague to demonstrate serious harm, and was more properly evidence of a primary need for residential care and custody under § 55.08(1)(a) — a criterion P.A.E. did not dispute.
The court also rejected the County’s argument that P.A.E. would revert to her prior condition, noting that the hearing evidence actually showed P.A.E. was actively engaged in discussions about her medications, appointments, daily living, and even seeking employment. Dr. Lace’s general concern that P.A.E. might “forget to do things that could create dangerous situations” was found too vague and speculative to satisfy the statutory standard.
Key Takeaways
- To continue a protective placement under Wis. Stat. § 55.08(1)(c), the County must present clear and convincing evidence of a specific, foreseeable, and serious harm — generalized concerns about self-neglect or vague risks of “dangerous situations” are legally insufficient.
- Evidence of medication noncompliance does not meet the § 55.08(1)(c) standard without additional testimony identifying the specific medications at issue and the particular symptoms or harms that would result from stopping them.
- An individual’s poor condition before initial protective placement cannot, standing alone, sustain a continuation order at annual review; the County must present evidence that the individual is likely to return to that condition absent placement, accounting for guardianship and available protective services.
- Self-care deficits such as failure to shower, miss medical appointments, or tend to minor wounds may support a finding of primary need for residential care and custody under § 55.08(1)(a), but they do not, without more, establish a substantial risk of serious harm under § 55.08(1)(c).
Why It Matters
This decision reinforces that Wisconsin’s annual protective placement review process must be a meaningful, evidence-based inquiry rather than a rubber stamp of the prior order. Courts and counties cannot rely on historical conditions or generalized clinical concern to justify continued deprivation of an individual’s liberty; they must build a current, specific record connecting the individual’s present incapacities to foreseeable and serious harm. The circuit court itself acknowledged at the hearing that the County would need more particularized testimony going forward — the Court of Appeals made that obligation binding by reversing the order.
For practitioners, the decision is a reminder that the four criteria in § 55.08(1) are distinct and cumulative. Evidence sufficient to establish one criterion — here, a primary need for residential care and custody — does not automatically satisfy another, such as the substantial risk of serious harm requirement. Counties seeking to continue protective placements must present testimony that explicitly links an individual’s specific deficits to identifiable, serious, and foreseeable consequences.