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COURT OF APPEALS DECISION DATED AND RELEASED SEPTEMBER 4, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-1229-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
IN THE MATTER OF THE
GUARDIANSHIP
& PROTECTIVE
PLACEMENT OF SARA J. W.:
ONEIDA COUNTY,
Petitioner-Appellant,
v.
SARA J. W.,
Respondent-Respondent.
APPEAL from an order of
the circuit court for Oneida County:
ROBERT E. KINNEY, Judge. Affirmed.
CANE, P.J. Oneida County appeals the circuit court's
order that Sara J. W. be protectively placed in the sixteen-bed facility
attached to the Midwest Rehabilitation Center in Waterford, Wisconsin.[1] On appeal, the County asserts that the order
is inconsistent with the funding restrictions included in 1995 Wis. Act
92. However, the Act does not apply to
this case because the cause of action arose prior to its effective date. The order is affirmed.
The facts are
undisputed. Sara J. W. is a
forty-five-year-old woman with severely impaired judgment and impulse control
as a result of a stroke she suffered in 1989 during brain surgery. Her family brought her to Oneida County in
1992, and she was admitted to a nursing home in Rhinelander. In 1994, she was moved to a nursing home in
Woodruff to be closer to her family.
On
January 26, 1995, she was moved to Katewood Place, a fifteen-bed community
based residential facility (CBRF) in Woodruff, because of behavioral
problems. Less than seven months later
she was given a thirty-day notice to leave the facility because her behavior
was detrimental to other residents.
Between September 1,
1995, and October 4, 1995, Sara J. W. resided with her family. On October 4, 1995, she was admitted to St.
Mary's Hospital because her family was unable to care for her and believed she
needed professional help. Sara J. W.
was moved to the hospital's mental health center on October 10, 1995. On October 30, 1995, she was discharged.
Oneida County filed a
petition for guardianship and for protective placement on October 30,
1995. At the petition hearing on
November 6, 1995, the court found Sara J. W. incompetent and ordered that she
be protectively placed in a nursing home.
However, the County failed to find a nursing home that would accept
her. She resided with family until
December 8, 1995, when she was left by her family at the Oneida County
Sheriff's Department. As a result, she
was admitted to the mental health center at St. Mary's Hospital.
On December 11, 1995,
the court found probable cause and ordered that Sara J. W. be involuntarily
committed for treatment. She was then
transferred to the Midwest Rehabilitation Center Hospital in Waterford to be
evaluated. On December 28, 1995, after
it was determined that Sara J. W. was not a proper candidate for an involuntary
mental commitment, the County's petition for guardianship and for protective
placement was dismissed. Sara J. W.
remained at the Midwest Rehabilitation Center.
On February 9, 1996, the
County filed a motion to transfer Sara J. W. to the Outagamie County Health
Care Center. The guardian advised the
County that both she and Sara J. W. objected to the transfer, and preferred
placement in a CBRF.
At
the March 7, 1996, placement hearing, the County asserted that the only
feasible placement for Sara J. W. was Outagamie County Health Center, because
the cost of a CBRF placement would exceed both the cost of a nursing home and
the County's available funds.[2] The court continued the hearing until March
27, 1996, requesting that further funding information be presented at that
time.
On March 27, 1996, no
additional funding sources were presented.
The court ruled that the least restrictive placement for Sara J. W. was
the sixteen-bed CBRF attached to the Midwest Rehabilitation Center, that 1995
Wis. Act 92 was vague, and that the Act did not prohibit holding the County
liable for the additional costs of the placement ordered.
On May 6, 1996, the
County filed a petition for supervisory writ.
In response, Sara J. W. asserted that 1995 Wis. Act 92 was inapplicable
to her case because the guardianship and protective placement proceedings were
filed on October 27 and October 30, 1995, before the statute's effective
date. This court agreed and denied the
petition. The County now appeals the
circuit court's placement order.
The issue is whether
1995 Wis. Act 92 applies to this case.
The County asserts that it does.
The construction and interpretation of a statute and its application to
the facts presents a question of law, which this court reviews de novo. State v. Keith, 175 W.2d 75,
78, 498 N.W.2d 865, 866 (Ct. App. 1993).
Wis. Act 92 created the following funding provision:
The
appropriate county department designated under s. 55.02 shall, within the
limits of available state and federal funds and of county funds required to be
appropriated to match state funds, provide for the reasonable program needs
of persons who are protectively placed ....
Section
55.045, Stats. (emphasis
added). The Act effectively limits the
County's funding obligations for protective placements to programs within the
limits of available state and federal funds and of matching County funds, and
prohibits the court from requiring a county to provide additional funding to
protectively place a person.
1995 Wis. Act 92 became
effective on December 16, 1995. As
stated in § 10(1) of the Act, "This act first applies to a cause of action
that arises on the effective date of this subsection." A cause of action arises when "there
exists a claim capable of enforcement, a suitable party against whom it may be
enforced, and a party with a present right to enforce it." Pritzlaff v. Archdiocese of Milwaukee,
194 Wis.2d 302, 315, 533 N.W.2d 780, 785 (1995).
In a protective
placement case, a claim capable of enforcement exists when the individual meets
the criteria for protective placement established in § 55.06(2), Stats.[3] The trial court protectively placed Sara J.
W. on November 6, 1995. At that time,
the protective placement claim was capable of enforcement by court order, Sara
J. W. was the appropriate party against whom the placement would be enforced,
and the County exercised its present right to enforce the protective placement. Thus, the cause of action arose prior to
December 16, 1995, the Act's effective date.
The Act is prospective
in its application. The general rule in
Wisconsin is that "legislation is presumed to be prospective unless the
statutory language clearly reveals by express language or necessary implication
an intent that it apply retroactively."
State v. DILHR, 101 Wis.2d 396, 403, 304 N.W.2d 758, 761
(1981). Neither the language nor the
history of 1995 Wis. Act 92 demonstrates legislative intent that the Act be
retroactive.
Because 1995 Wis. Act 92
does not apply to this case, its constitutionality is not addressed by this
opinion. The circuit court's order is
therefore affirmed.
By the Court.—Order
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)4, Stats.
[2] Whereas the average cost of a nursing home in Wisconsin is $2,325 per month, the two appropriate CBRF placements known to the parties cost $6,018 per month, or $206 per day. Placement at the CBRF attached to the Midwest Rehabilitation Center Hospital costs $175 per day.
[3]
In pertinent part, § 55.06(2), Stats.,
provides the following:
(2) The department, an
agency, a guardian or any interested person may petition the circuit court to
provide protective placement for an individual who:
(a) Has a primary need for
residential care and custody;
....
(c) As a result of
developmental disabilities, infirmities of aging, chronic mental illness or
other like incapacities, is so totally incapable of providing for his or her
own care or custody as to create a substantial risk of serious harm to oneself
or others. Serious harm may be
occasioned by overt acts or acts of omission; and
(d) Has a disability which is permanent or likely to be permanent.