COURT OF APPEALS
DECISION
DATED AND FILED
September 9, 2009
David
R. Schanker
Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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DISTRICT II
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In the matter of the guardianship and protective placement of Stanley W. F.:
Waukesha County Department of Health & Human Services,
Petitioner-Respondent,
v.
Stanley W. F.,
Respondent-Appellant.
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APPEAL
from an order of the circuit court for Waukesha County: donald
j. hassin, jr., Judge. Affirmed.
¶1 ANDERSON, J. Stanley W. F. contends that the circuit
court erred in determining the evidence presented at the Watts
review hearing justified his continued protective placement. We disagree with the reliance on Zander
v. County of Eau Claire, 87 Wis. 2d 503, 275 N.W.2d 143 (Ct. App. 1979), by Stanley, the State, and
the circuit court. We hold that the
diagnosis of Stanley’s
degenerative brain disorder was improperly overlooked by the court. We do not affirm the circuit court on the
grounds it relied upon for its ruling, nonetheless, because the diagnosis of
Stanley’s degenerative brain disorder is still on record and presently
unchallenged, we are ultimately able to affirm that Stanley is in need of continued
protective placement. See Linda L. v. Collis, 2006 WI App 105,
¶63, 294 Wis.
2d 637, 718 N.W.2d 205 (court may affirm on grounds different than those relied
on by the circuit court).
¶2 Protective placement began for Stanley
on November 9, 2007, when the Waukesha
county circuit court granted the contested petition for protective placement. The finding by the circuit court of a
degenerative brain disorder was the underlying basis for the protective
placement. Waukesha County Department of
Health & Human Services filed a petition for the required annual review on
September 12, 2008. The circuit court,
at the protective placement review hearing on December 12, 2008, found Stanley continued to meet
the criteria for protective placement pursuant to Wis. Stat. § 55.08(1) and ordered the continuation of Stanley’s protective
placement. Stanley appeals.
¶3 On appeal, Stanley
contends his primary need is for active treatment, rather than protective
placement. Stanley also challenges the finding that he
has a disability that is permanent or likely to be permanent, as he asserts the
disability from his alcoholism is not permanent and may be treated. The premise of Stanley’s
appeal is Zander, 87 Wis.
2d at 514. As Stanley’s
incompetency and disability stem from his degenerative brain disorder, we find Zander
inapplicable to Stanley’s
situation. See id.
¶4 Wisconsin Stat. § 55.08(1)
requires the following elements to be found in order to warrant continued
protective placement:
(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.
¶5 The elements of protective placement set out in Wis. Stat. § 55.08(1) are
questions of fact. See Wis. Stat. § 55.10(4)(d). We review the circuit court’s findings under
the clearly erroneous standard. Wis. Stat. § 805.17(2). “[T]he higher question regarding the
necessity for protective placement [is] one of law because it involves the
application of the facts as found by the court to a statutory concept.” K.N.K v. Buhler, 139 Wis. 2d 190, 198, 407 N.W.2d 281 (Ct. App. 1987) (citing Nottelson
v. DILHR, 94 Wis.
2d 106, 115-16, 287 N.W.2d 763 (1980)).
Questions of law are reviewed independently from a circuit court’s
conclusions. Ball v. District No. 4, Area Bd.,
117 Wis. 2d
529, 537, 345 N.W.2d 389 (1984).
¶6 At the 2007 hearing establishing protective placement and a
permanent guardianship, the State introduced a report by Dr. Pamela McMurray
diagnosing Stanley with a degenerative brain disorder, possibly alcohol induced
dementia or Alzheimer’s type dementia. The
circuit court at the aforementioned hearing stated, “I’m satisfied it’s not
limited to an alcohol issue, but we are dealing with a question as it relates
to a brain disorder.” The parties failed
to introduce this report into evidence at the 2008 review hearing and the
circuit court did not take judicial notice of the report sua sponte. As the report is the underlying basis for Stanley’s protective
placement, it should have been addressed at the review hearing.
¶7 The circuit court, as well as an appellate court, properly
takes judicial notice of prior proceedings and determinations insofar as they
are germane to a determination of the issues.
See Swan Boulevard Dev. Corp. v. Cybulski, 14 Wis. 2d 169, 171, 109 N.W.2d 671 (1961). Accordingly, we take judicial notice of the
2007 hearing and the evidence therein establishing Stanley’s degenerative brain disorder. See id. Stanley
declined to contest the diagnosis at his 2008 review hearing. Indeed, the pertinent issue appeared to shift
from Stanley’s degenerative brain disorder
diagnosis at the 2007 hearing to addressing Stanley’s alcoholism and what category of
alcoholic he falls into under Zander. See Zander, 87 Wis. 2d at 514.
¶8 The following factors must be met for a continuation of
protective placement for an individual in Stanley’s situation: the individual has a primary need for
residential custody and care; the individual has been determined to be
incompetent by a circuit court; 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; the individual has a disability that is permanent
or likely to be permanent. See Wis.
Stat. § 55.08(1).
¶9 The circuit court determined Stanley’s primary need to be residential care
and custody. Dr. Arun Parikh testified that
the objective of Stanley’s
care is to be “keep[ing] him in a place where he cannot have access to
alcohol. It would … have to be a locked
facility, and it can be either [sic] treatment program or a living situation.” Dr. Parikh anticipates the results of Stanley’s use of alcohol
to be “[death] or a diabetic coma.”
¶10 The circuit court has determined Stanley to be incompetent as a result of a
degenerative brain disorder and appointed a guardian. At present, Stanley does not assert competency. Dr. Parikh testified Stanley is not capable of handling “his
current freedom, his treatment level, and his medical
decision[-]making.” Furthermore, Dr.
Parikh testified that Stanley
is unable to make a knowing and voluntary choice about his alcohol use. This incompetency causes Stanley to contribute to situations with
risks of substantial harm.
¶11 Testimony from the expert witnesses at the 2008 hearing raised
examples of harmful behavior exhibited by Stanley:
inviting prostitutes back to his
apartment, threatening behavior to other residents and staff at his facility,
and taking his electric scooter out and about to purchase alcohol. The predicted consequences associated with
alcohol use for Stanley
include a probability of death or a comatose state. The substantial risk of serious harm exists in
the consequences for Stanley
of alcohol consumption, let alone the risk to other residents from his
threatening behavior.
¶12 Stanley’s
disability stems from his degenerative brain disorder. Stanley
did not contest this diagnosis at the 2008 hearing and there is nothing in the
record to indicate the disorder is anything but permanent. Indeed, the 2007 comprehensive evaluation
established a progressive cognitive impairment diagnosed by neuropsychologist
Dr. McMurray.
¶13 We are satisfied Stanley’s
circumstances and unchallenged diagnosis of degenerative brain disorder necessitate
protective placement. In so concluding,
we affirm on different grounds than the circuit court’s decision that Stanley’s alcoholism
merits his protective placement. See Linda
L., 294 Wis.
2d 637, ¶63. Stanley’s diagnosis of a degenerative brain
disorder, relied upon in 2007 by the court for its initial protective placement
order, still stands. The 2008 proceeding
provided evidence that the consequences of such a diagnosis continue to be
present. The order of Stanley’s continued protective placement is
affirmed.
By the
Court.—Order affirmed.
This opinion will not be published. See
Wis. Stat. Rule 809.23(1)(b)4.