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COURT OF APPEALS DECISION DATED AND RELEASED MARCH 4, 1997 |
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. 96-1773
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
IN THE MATTER OF THE
GUARDIANSHIP
AND PROTECTIVE
PLACEMENT OF
LAMOINE S.:
DUNN COUNTY DEPARTMENT
OF
HUMAN SERVICES,
Appellant,
v.
LAMOINE S.,
Respondent.
APPEAL from an order of
the circuit court for Dunn County:
DONNA J. MUZA, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
CANE, P.J. Dunn County Department of Human Services
(DCDHS) appeals an order continuing the protective placement of LaMoine S. at
the Area Nursing Home in Colfax. DCDHS
argues that the court had no jurisdiction to review the protective placement,
the placement violated § 55.045, Stats.,[1]
there was insufficient credible evidence to support the continued nursing home
placement, and the court's order for placement at a specific facility, as
opposed to a maximum level of restrictiveness, violates Wisconsin law. In the alternative, DCDHS argues that if we
do not reverse the order, we should remand for further evidentiary
proceedings. We reject these arguments
and affirm the order.
LaMoine is a
sixty-four-year-old man who is mentally retarded and diabetic. In August 1989, the court decided that
LaMoine was incompetent and in need of guardianship and protective
placement. The court appointed a
guardian and protectively placed LaMoine "at the residence of [his mother]
or at another facility of equal or less restrictive environment." As a result of annual Watts[2]
reviews, LaMoine's protective placement at his mother's home was continued most
recently in 1995.
On January 24, 1996,
LaMoine was hospitalized for health problems.
On January 30, 1996, he was discharged from the hospital into the Colfax
Area Nursing Home. This was intended as
a temporary placement for recuperative care and to stabilize LaMoine's medical
condition.
On March 5, 1996, the State
of Wisconsin Department of Health and Social Services conducted an annual
resident review of LaMoine's circumstances at the nursing home and concluded
that he could not stay there because he did not need nursing home services. Meanwhile, DCDHS was looking for a community
placement for LaMoine because his medical condition had stabilized and it
determined that he no longer needed the services of the nursing home.
Shortly thereafter,
LaMoine's mother was found to be in need of guardianship and protective
placement. She was protectively placed
at the Colfax Area Nursing Home. On
April 17, 1996, DCDHS notified LaMoine of its arrangements to transfer him on
May 1 from the nursing home to an adult family home located ten to fifteen
miles northwest of Colfax.
LaMoine and his GAL
filed written objections to the transfer.
The court scheduled a hearing for May 6, 1996, to address the proposed
transfer, and on April 30 granted LaMoine's motion for a temporary restraining
order and injunction, enjoining DCDHS from transferring LaMoine from the
nursing home to the adult family home.
At the continued
protective placement hearing on May 16, the court decided that the nursing home
was the least restrictive placement consistent with LaMoine's physical and
emotional needs, and denied the DCDHS request to move LaMoine to the adult
family home. The court also ordered
DCDHS to assist LaMoine by contacting state and federal authorities to obtain
funding for the placement at the nursing home.
DCDHS now appeals the order.
First, we consider
whether the issue of LaMoine's placement was properly before the court. DCDHS asserts that neither the guardian ad
litem nor LaMoine petitioned the court in accordance with § 55.06(9)(b), Stats.
We disagree. The construction
and interpretation of a statute and its application to the facts present a
question of law, which we review de novo.
State v. Keith, 175 Wis.2d 75, 78, 498 N.W.2d 865, 866
(Ct. App. 1993).
By statute, any
interested party may object to a proposed change in protective placement by
filing with the trial court a petition specifying the objection to the
transfer. Section 55.06(9)(b), Stats.
In relevant part, § 55.06(9)(b) provides:
Upon
petition to a court by a guardian, ward, or attorney, or other interested person
specifying objections to a transfer, the court shall order a hearing, within 96
hours after filing of the petition, to determine whether there is probable
cause to believe that the transfer is consistent with the [least restrictive
environment requirement] and is necessary for the best interests of the ward.
After DCDHS filed a
notice of transfer indicating that LaMoine would be moved from the nursing home
to the adult family home on May 1, LaMoine's GAL and his attorney filed the
following written objections to the transfer:
COMES NOW, LaMoine [S.], by his guardian
ad litem and hereby objects to the transfer from the Area Nursing Home as the
transfer is not consistent with the requirements of §55.06(9)(a), Stats[.] and
not in the ward's best interest.
COMES
NOW, Lamoine [S.], by his attorney, and hereby objects to the proposed transfer
from the Colfax Area Nursing Home; as the current placement is the preference
if LaMoine [S.], and best provides for his needs.
In
response to the objections, the court notified the parties of a May 6
protective placement hearing.
We are satisfied that
the procedures outlined in § 55.06(9)(b), Stats.,
were sufficiently complied with in this case.[3] Although they did not cite to the statute or
request a hearing, LaMoine and his GAL objected to the transfer in written
petitions that specified the reasons for their objections. The court properly responded by scheduling a
hearing, as required by statute, to review the protective placement. The court held the hearing, took testimony
from witnesses for both parties, and decided that the transfer was not
appropriate.
Next, we consider
DCDHS's argument that § 55.045, Stats.,
prohibits the court from ordering a placement that will require county funding
in excess of state and federal funds and county matching funds. This presents a question of law that we
review de novo. See Keith,
175 Wis.2d at 78, 498 N.W.2d at 866.
Section 55.045 limits the "least restrictive" options for
protective placements to those "within the limits of available state and
federal funds and of county funds required to be appropriated to match state
funds."
However, according to
its legislative history, the statute applies only to causes of action arising
on or after December 16, 1995. 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). The cause of action in a
protective placement case arises when the individual meets the standards set
forth in § 55.06(2), Stats., for
a protective placement.
It is undisputed that
the court ordered protective placement for LaMoine in August 1989. The placement was then enforceable by court
order, LaMoine was the party against whom the order was enforced, and DCDHS
exercised its right to enforce the protective placement. Therefore, the cause of action arose prior
to December 16, 1995, and the statute does not apply.
The dispositive issue on
appeal is whether LaMoine's protective placement at the nursing home is the
least restrictive placement, consistent with § 55.06(9)(a), Stats.
This is a question of fact. Fond
du Lac County v. J.G.S., Jr., 159 Wis.2d 685, 687, 465 N.W.2d 227,
228-29 (Ct. App. 1990). We will search
the record for evidence to support the court's findings of fact, and will not
overturn the court's findings of fact unless they are clearly erroneous. See id.;
§ 805.17(2), Stats. Although a persuasive argument is made to
the contrary that this is a question of law because it involves the application
of the facts to the statutory concept of "least restrictive
environment,"[4] we are bound
by precedent, and our review is restricted by the standards set forth in J.G.S.
because the issue in that case is identical to the issue presented to us
here. See State v. Solles,
169 Wis.2d 566, 570, 485 N.W.2d 457, 459 (Ct. App. 1992) (court of appeals
believes itself bound by its published precedents).
Wisconsin's protective
placement statutes are found in ch. 55, Stats. The legislative policy behind the protective
placement statutes is the following:
The legislature recognizes that many
citizens of the state, because of the infirmities of aging, chronic mental
illness, mental retardation, other developmental disabilities or like
incapacities incurred at any age, are in need of protective services. These services should ... allow the
individual the same rights as other citizens, and at the same time protect the
individual from exploitation, abuse and degrading treatment. This chapter is designed to establish those
services and assure their availability to all persons 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,
exploitation and neglect.
Section
55.001, Stats.
Section 55.06(9)(a), Stats., states in pertinent part:
Placement
... shall be made in the least restrictive environment consistent with the
needs of the person to be placed and with the placement resources of the
appropriate board .... Factors to be
considered in making protective placement shall include the needs of the person
to be protected for health, social or rehabilitative services; the level of
supervision needed; the reasonableness of the placement given the cost and the
actual benefits in the level of functioning to be realized by the individual; the
limits of available state and federal funds and of county funds required to be
appropriated to match state funds; and the reasonableness of the placement
given the number or projected number of individuals who will need protective
placement and given the limited funds available.
The Wisconsin protective
placement statutes show the legislature's intent to protect incompetent
individuals like LaMoine "whose decisions about where and how to live are
not their own." In re Agnes
T. v. Milwaukee County, 189 Wis.2d 520, 528, 525 N.W.2d 268, 270-71
(1995). As stated by our supreme court,
ch. 55, Stats., "seeks to
guarantee an incompetent individual's right to the least restrictive living
environment by ensuring that the individual does not remain institutionalized
if a less restrictive alternative is available. The statute accomplishes this goal by requiring an annual review
of each incompetent individual's living arrangement." Id. (citation omitted).
We recognize that this
is an unusual protective placement case because LaMoine requests continued
placement in the more restrictive of two potential placement settings. Nevertheless, it was the role of the court
to determine whether placement was in the least restrictive environment
consistent with LaMoine's needs and whether the transfer was necessary for his
best interests. See §
55.06(9)(b), Stats.
At the May 16, 1996,
hearing, the court heard testimony from several witnesses, including Dr. Paul
Caillier, a psychologist who conducted an independent examination of LaMoine at
LaMoine's request. Caillier recommended
that LaMoine remain in the nursing home because of his mental retardation, his
"strong and unusual attachment" to his mother, and the fact that he
was "doing extremely well from a social [and] emotional point of view in
the nursing home."
Caillier testified that
the nursing home placement was the "least restrictive setting consistent
with his mental health and emotional needs." He described LaMoine's attachment as "much the way a prepubescent
child would be bonded to a mother."
He testified that LaMoine had adequate social contacts in the nursing
home, was in the town where he grew up, and remained in contact with the local
coffee shop, local businesses, and lifelong friends because of the convenient
location of the nursing home.
Despite the evidence
presented by DCDHS to contradict Caillier's testimony, the trial court, relying
on Caillier's testimony, decided that LaMoine's nursing home placement was the
least restrictive environment consistent with his physical and emotional needs,
and ordered that LaMoine continue to be placed there. Caillier's testimony was credible evidence to support the court's
conclusion and order. Although we may
disagree with the court's conclusion and may not have made the same factual
finding, we cannot say the trial court's finding was clearly erroneous. It is the function of the trial court, and
not the appellate court, to choose between conflicting reasonable inferences. See State v. Poellinger, 153
Wis.2d 493, 506-07, 451 N.W.2d 752, 757 (1990). We must therefore affirm.
Finally, DCDHS argues
that the court's order for a specific location for placement, as opposed to a
maximum level of restrictiveness, violates Wisconsin law. DCDHS relies on In re J.R.R.,
145 Wis.2d 431, 427 N.W.2d 137 (Ct. App. 1988), to support its argument. Because the facts and statutes
involved in J.R.R. are distinguishable from this case, we
disagree with DCDHS.
J.R.R. was
an appeal from a mental recommitment order in a ch. 51, Stats., proceeding.
The issue was whether § 51.20(13)(c)2, Stats.,
allowed the court ordering the recommitment to specify the treatment method to
be used by the treating facility. The
relevant statutes directed the committing court to "order commitment to
the care and custody of the appropriate county department under s. 51.42
or 51.437 ... [which] ... shall arrange for treatment in the least restrictive
manner consistent with the requirements of the subject individual in
accordance with a court order designating the maximum level of inpatient
facility ...." Id.
at 435, 427 N.W.2d at 139 (citing §§ 51.20(13)(a)3 and 51.20(13)(c)2, Stats.) (emphasis in original). The court decided that the plain and
unambiguous statutory language obligated the court to designate the maximum
level of inpatient facility consistent with the individual's needs. Id. at 436, 427 N.W.2d at 139.
Unlike ch. 51, Stats., ch. 55 does not direct the
court to issue an order designating the maximum level of restrictiveness for a
transfer of protective placement.
Instead, § 55.06(9)(a), Stats.,
provides the following:
When
ordering placement, the court, on the basis of the evaluation and other
relevant evidence shall order the appropriate board specified under s. 55.02 or
an agency designated by it to protectively place the individual. Placement by the appropriate board or
designated agency shall be made in the least restrictive environment ....
According
to § 55.06(9)(b), "Upon petition to a court ... specifying objections to a
transfer, the court shall order a hearing ... to determine whether there is
probable cause to believe that the transfer is consistent with the requirements
specified in par. (a) and is necessary for the best interests of the
ward."
The statute contains no
language regarding the order a court may make after it conducts, as here, a §
55.06(9)(b), Stats., hearing to
determine whether a transfer is appropriate.
It is the role of the legislature, and not the courts, to
legislate. American Motors Corp.
v. DILHR, 101 Wis.2d 337, 350, 305 N.W.2d 62, 68 (1981). We will not "change the wording of a
statute to mean something which was not intended by the legislature or by the
plain language used." See id.
at 350, 305 N.W.2d at 68 (quoting Lukaszewicz v. Concrete Research, Inc.,
43 Wis.2d 335, 342, 168 N.W.2d 581, 585 (1969)).
In the absence of
statutory guidance regarding its order, it was the duty of the court to review
the evidence and determine whether the transfer was appropriate pursuant to the
standards set forth in § 55.06(9), Stats. Because the court reviewed the evidence and
determined that LaMoine's transfer to the adult family home was neither the
least restrictive environment consistent with his needs nor in his best
interests, we conclude that it properly exercised its authority to deny the
transfer, and reject the DCDHS argument to remand for further proceedings.
By the Court.—Order
affirmed.
Not recommended for
publication in the official reports.
[1] The parties refer in their briefs instead to the funding provisions of 1995 Wis. Act 92. This Act has since been codified at § 55.045, Stats., 1995-96.