|
COURT OF APPEALS DECISION DATED AND RELEASED July 5, 1995 |
NOTICE |
|
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, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
Nos. 94-2655
and 94-3038
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
No. 94-2655
IN THE MATTER OF THE
GUARDIANSHIP
AND PROTECTIVE
PLACEMENT OF
ANNA B., INCOMPETENT:
MILWAUKEE COUNTY,
Petitioner-Appellant,
v.
ANNA B.,
Respondent-Respondent.
___________________________________________________________________________
No. 94-3038
IN THE MATTER OF THE
GUARDIANSHIP
AND PROTECTIVE
PLACEMENT OF EARLIE W.:
MILWAUKEE COUNTY,
Petitioner-Appellant,
v.
EARLIE W.,
Respondent-Respondent.
APPEAL from orders of
the circuit court for Milwaukee County:
JOHN F. FOLEY, Judge and DAVID V. JENNINGS, JR., Reserve Judge. Affirmed and cause remanded with
directions.
Before Wedemeyer, P.J.,
Fine and Schudson, JJ.
PER CURIAM. Milwaukee County appeals from orders
directing that Anna B. and Earlie W. have guardians appointed and that each be
placed under protective placement in their own homes.[1] Milwaukee County claims that: (1) the trial
courts[2]
erred in ordering protective placement because the facts of each case do not
support such an order; and (2) the trial courts lacked jurisdiction to order
protective placement because proper notice was not given to Anna B. and Earlie
W. The Legal Aid Society of Milwaukee,
as court-appointed guardian ad litem for Anna B. and Earlie W., asserts
that Milwaukee County's appeal is frivolous and seeks an award of appeal costs
and sanctions.
Because the trial courts
did not err in ordering protective placement, and because Milwaukee County
waived the jurisdictional argument by not raising it prior to this appeal, we
affirm the orders. Further, because
Milwaukee County's argument on appeal is frivolous, we remand these cases to
the respective trial courts to determine the appropriate amount of appeal costs
and sanctions to be imposed.
I. BACKGROUND
The cases of Anna B. and
Earlie W. were consolidated for the purposes of appeal. In the case of Anna B., Milwaukee County
filed a petition for guardianship of her and her estate. The trial court appointed a Legal Aid
guardian ad litem for Anna B. Legal Aid
objected to the petition for guardianship because it was not accompanied by a
request for protective placement. The
matter was set for trial on September 1, 1994.
Both parties stipulated
to the admission of two psychological reports, one performed on behalf of
Milwaukee County by Dr. Joseph L. Collins. The second report resulted from an independent psychological
evaluation performed by Dr. James L. Paquette. Both reports recommended guardianship and protective placement
for Anna B. Both doctors concluded that
Anna B.'s current residential site (Anna B.'s home), with the current
level of service, which included medical care, weekly nursing service and twenty-four
hour one-to-one care by a live-in aid, was the least restrictive level of care
to meet Anna B.'s needs. The parties
also stipulated to the fact that Anna B. was incompetent and in need of
twenty-four hour care. It was
undisputed that Anna B.'s condition resulted from aging and dementia and was
permanent.
The trial court found
Anna B. to be incompetent and incapable of providing for her own care and
custody, and in need of twenty-four hour care.
The trial court ordered protective placement to Anna B.'s home with the
level of services she was currently receiving.
In the case of Earlie
W., Milwaukee County filed a petition for successor guardianship of her and her
estate. The trial court appointed a
Legal Aid guardian ad litem for Earlie W.
Legal Aid filed an objection to the petition because it did not include
a request for a protective placement order.
Trial was scheduled for November 15, 1994.
Milwaukee County filed a
motion to dismiss Legal Aid's request for protective placement. At the motion hearing, counsel for Milwaukee
County informed the court that the facts were essentially undisputed. Both parties agreed that Earlie W.
needed twenty-four hour care and was unable to care for herself. Both expert psychological reports, one
prepared on behalf of the County and the other as a result of an independent
psychological evaluation, recommended guardianship and protective placement to
Earlie W.'s home. Both experts
concluded that home placement with the twenty-four hour one-to-one care that
she was receiving was the least restrictive environment consistent with her
needs. Further, both experts concluded
that Earlie W.'s condition was attributed to aging and dementia and that her
condition was permanent.
The trial court found
that Earlie W. met the standards for protective placement. Accordingly, it denied Milwaukee County's
motion to dismiss and ordered protective placement in Earlie W.'s home.
Milwaukee County now
appeals both orders.
II. DISCUSSION
A. Ordering
Protective Placement.
Milwaukee County's
initial brief claims that the trial courts erroneously exercised their
discretion in ordering protective placement because there was no evidence to
show either ward needed to be placed in a residential facility with fifteen or
more beds. This was identical to the
argument Milwaukee County made to the trial courts. Legal Aid responded that § 55.06(9)(a), Stats., specifically provides that a
trial court can order protective placement to an individual's home. Milwaukee County's reply brief retreats from
its initial stance, claiming that it does not take the position that in-home
protective placement is forbidden.
Rather, it claims that the trial courts erroneously exercised their
discretion in these two cases because the facts in each case do not require any
type of protective placement.
Because § 55.06, Stats., provides discretion to a trial
court under these circumstances, we review its decision only to determine
whether the trial court erroneously exercised its discretion in ordering
protective placement. We will not
conclude that the trial court erred if it applied the pertinent law to the
relevant facts and reached a rational conclusion. Village of Shorewood v. Steinberg, 174 Wis.2d 191,
204, 496 N.W.2d 57, 62 (1993).
Section 55.06(2), Stats., sets forth four prerequisites
governing protective placement decisions.
The four factors that need to be present before a protective placement
order is appropriate are as follows:
(1) the ward has a primary
need for residential care and custody;
(2) the ward has been deemed
incompetent by a circuit court;
(3) “[a]s 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”; and
(4) the
ward has “a disability which is permanent or likely to be permanent.”
Section
55.06(2), Stats.
As noted above, the
facts in each case were essentially undisputed. Both individuals were deemed incompetent; both were assessed by
experts as being totally incapable of providing for their own care as a result
of infirmities of aging; and both have a disability which is permanent.
Hence, three of the four
statutory factors were undisputedly satisfied.
The final factor, whether the ward has a primary need for residential
care, was initially in dispute. At the
trial court level and in its initial brief, the County argued that “residential
care” did not contemplate placement in an individual's home. The County, however, properly recants this position
in its reply brief to this court. The
statute and case law clearly dictate that placement in an individual's home
falls within the meaning of the term “residential care.” See § 55.06(9)(a), Stats. (home placements are one
option); see also Milwaukee County Protective Servs. Management
Team v. K.S., 137 Wis.2d 570, 576-77, 405 N.W.2d 78, 81 (1987)
(subject's home may be proper location for protective placement). Based on this law and the undisputed facts,
the trial courts reasoned that a protective placement order for each woman was
appropriate. This conclusion was a
rational one. We conclude, therefore,
that the trial courts did not err in ordering protective placement for
Anna B. and Earlie W.
Milwaukee County's reply
brief essentially concedes that the trial court considered the four statutory
factors in reaching its determination, but argues that the trial court did not
engage in the additionally required step of considering public policy. The County contends that even if the four
factors delineated within the statute are satisfied, the trial court must also
consider the policy issue of whether protective placement is necessary and only
order protective placement when it is absolutely necessary for the
safety and protection of the individual.
We are perplexed by
Milwaukee County's contention. The
facts in both Anna B.'s and Earlie W.'s cases clearly show that both women
are at substantial risk if left unsupported.
Both women are not only incompetent, but also totally dependent on
others to care for them. The record
demonstrates that neither woman can eat, bathe, use the toilet, get out of bed
or attend to any of their own needs independently. The ineluctable inference from the undisputed facts reveals that
these women are in need of protection to ensure that their residential and
custodial needs will be met.
Although the trial
courts may not have utilized the magic words—“policy requires absolute
necessity”—the record upon which each court relied in ordering placement
clearly demonstrates sufficient evidence to satisfy the standard required for
such an order. Accordingly, we reject
the County's argument.
B. Jurisdiction.
The County waived its
jurisdictional argument by failing to raise this issue with the trial
court. See § 805.11(1), Stats.
C. Frivolous
Costs.
Finally, Legal Aid has
moved this court for frivolous appeal costs and sanctions pursuant to
§ 809.25(3), Stats. No response was received from the
County. Section 809.25(3)(c)2. states
that this court can conclude an appeal is frivolous if “the party's attorney
knew, or should have known, that the appeal ... was without any reasonable
basis in law or equity and could not be supported by a good faith argument for
an extension, modification or reversal of existing law.” We find this standard has been met.
Milwaukee County's main
brief asserted that protective placement required a finding that residential
care to a facility with more than fifteen beds was required. Milwaukee County argued that protective
placement could not be ordered in an individual's own residence. These arguments were proffered despite the
clear language of § 55.06(9)(a), Stats.,
and case law interpreting that statute.
K.S., 137 Wis.2d at 576-77, 405 N.W.2d at 81. We conclude that in light of the controlling
authority, Milwaukee County's attorney should have known that this appeal was
without any reasonable basis and could not be supported by a good faith
argument for a change in the current law.
Accordingly, we deem
Milwaukee County's appeal to be frivolous.
We remand these cases to the respective trial courts for a determination
as to appropriate costs and sanctions.
By the Court.—Orders
affirmed and cause remanded with directions.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.