Racine Cnty. v. B.L.M. (In re B.L.M.)

1

IN THE MATTER OF THE GUARDIANSHIP AND PROTECTIVE PLACEMENT OF B.L.M.: v. B.L.M., RESPONDENT-APPELLANT.

No. 2023AP757

Court of Appeals of Wisconsin, District II

November 22, 2023

This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)4.

Appeal from an order of the circuit court for Racine County: Cir Ct. No. 2000GN206 Wynne P. Laufenberg, Judge. Affirmed.

LAZAR J. ^[1]

¶1 Bonnie^[2] appeals from the 2021 order continuing her protective placement. She raises (for the first time) the question of whether the circuit court lost competency to proceed with the review of her protective placement under Wis.Stat. ch. 55 when it failed to appoint (or reappoint) a guardian ad litem under § 55.18 after Racine County filed an annual report in 2021. She further contends that this was a violation of a statutory time limit, and as such her challenge was not waived when she did not raise it before the circuit court. The County notes that a guardian ad litem was appointed in 2019 and never discharged until 2022, when a new guardian ad litem was appointed. It argues that the circuit court retained competency over Bonnie's protective placement proceedings because the court was not required to reappoint a guardian ad litem each year and that Bonnie either waived her right to challenge competency on appeal or that any errors below in that regard were harmless.

¶2 After a careful review of statutory provisions and relevant case law, this court concludes that the circuit court was not required to reappoint a guardian ad litem each year. The circuit court retained competency, and there is no potential violation of a statutorily mandated time limit. Thus Bonnie's challenge could be-and was-waived when it was not raised in the circuit court. Accordingly, this court affirms the order of the circuit court.

BACKGROUND

¶3 As far back as 2000, the County first filed a petition for guardianship for Bonnie when she was found unresponsive and ataxic.^[3] She was diagnosed with alcohol dementia^[4] and significant memory impairment and found to be unable to live independently. Since at least 2005, Bonnie has also been placed in protective placement in Racine County (most often in a locked facility).

¶4 Every year before this appeal, the County filed petitions and annual reports seeking to maintain Bonnie's protective placement and the guardians ad litem filed responsive reports. The Record shows that the first guardian ad litem (GAL) Report, by Attorney Francis J. Endejan, was filed in June 2006.^[5] Attorney Endejan filed a second GAL Report in May 2007.^[6] On March 13, 2008, Attorney Endejan was discharged as guardian ad litem by court order. On April 30, 2008, the probate court commissioner appointed Attorney Walter Joseph Kryshak as Bonnie's new guardian ad litem. No County petition had been filed nor were there any pending hearings at that time. On September 8, 2008, Attorney Kryshak filed his first GAL Report^[7] following the County's August 15, 2008 petition for annual review of protective placement.

¶5 On April 21, 2009, a new guardian ad litem (James W. Pruitt) was appointed.^[8] On August 4, 2009, the County filed its petition for annual review, and Attorney Pruitt filed his GAL Report^[9] on September 8, 2009. For the next nine years, Attorney Pruitt filed GAL Reports following each petition for annual review by the County.^[10] All GAL Reports were on the same state forms with the same certification.^[11] Only one time during those ten years was Attorney Pruitt appointed again as Bonnie's guardian ad litem.

¶6 Attorney Noah Wishau was appointed^[12] guardian ad litem on June 12, 2019. From 2019 through 2022 (when a new^[13] guardian ad litem was appointed), Attorney Wishau filed three GAL Reports following petitions for review by the County, all but one within thirty days from the petition filing date. (The petition dates and GAL Report dates are as follows: August 27, 2019, and September 16, 2019; September 18, 2020, and October 19, 2020; and August 19, 2021, and October 18, 2021.)

¶7 All of Bonnie's guardians ad litem used the same form for their GAL Reports: Wisconsin State Form GN-4110. While the form was revised four times over the course of Bonnie's guardianship and protective placement, it consistently contained the boilerplate certification that the report was being filed within thirty days after appointment of a guardian ad litem. In almost every filing since 2006, that certification was inaccurate in Bonnie's case. There is no way to modify or remove that line from the form.

¶8 Bonnie's appeal looks back only to 2019 when Attorney Wishau was appointed as her fifth guardian ad litem. She asserts that, because his appointment was not made again in 2020 (after the County filed its September 2020 petition for review and continuation of Bonnie's protective placement) or in 2021 (after the County's August 2021 petition) the circuit court lost competency to hold the review hearing following Attorney Wishau's October 18, 2021 GAL Report. The circuit court did hold a due process hearing on December 20, 2021, and ordered a continuation of Bonnie's protective placement that same date.

¶9 The court also ordered continuation of protective placement on October 28, 2022. Bonnie appealed on May 2, 2023, challenging the December 2021 circuit court order. Bonnie's competency challenge is first raised before this court.

STANDARD OF REVIEW

¶10 This court reviews independently the question of law whether a circuit court has lost competency. Village of Trempealeau v. Mikrut, 2004 WI 79, ¶7, 273 Wis.2d 76, 681 N.W.2d 190. "Whether an objection to the competency of the circuit court can be waived is also a question of law that [this court] review[s] de novo." Id. Likewise, questions involving statutory interpretation are questions of law that this court reviews de novo. Fond du Lac County v. Helen E.F., 2012 WI 50, ¶10, 340 Wis.2d 500, 814 N.W.2d 179; Reyes v. Greatway Ins. Co., 227 Wis.2d 357, 364-65, 597 N.W.2d 687 (1999); see also State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶¶44-51, 271 Wis.2d 633, 681 N.W.2d 110. "Finally, when engaging in statutory interpretation, [this court is] assisted by prior decisions that have examined the relevant statutes." State v. Soto, 2012 WI 93, ¶20, 343 Wis.2d 43, 817 N.W.2d 848.

¶11 To the extent that there are any circuit court findings of fact that are on appeal, they are not to be overturned unless they are "clearly erroneous." Walworth County v. Therese B., 2003 WI.App. 223, ¶21, 267 Wis.2d 310, 671 N.W.2d 377 (quoting Coston v. Joseph P., 222 Wis.2d 1, 22, 586 N.W.2d 52 (Ct. App. 1998)). A circuit court's "factual findings will be upheld as long as they are supported by any credible evidence or reasonable inferences that can be drawn therefrom." Insurance Co. of N. Am. v. DEC Int'l, Inc., 220 Wis.2d 840, 845, 586 N.W.2d 691 (Ct. App. 1998) (quoting Schreiber v. Physicians Ins. Co. of Wis., 217 Wis.2d 94, 102, 579 N.W.2d 730 (Ct. App. 1998), aff'd, 223 Wis.2d 417, 588 N.W.2d 26 (1999)).

DISCUSSION

¶12 The legislature took care to enact a statutory provision to provide a protective placement system for certain vulnerable citizens that was "designed to encourage independent living and to avoid protective placement whenever possible." County of Dunn v. Goldie H., 2001 WI 102, ¶29, 245 Wis.2d 538, 629 N.W.2d 189 (quoting Wis.Stat. § 55.02). The purpose of Wis.Stat. ch. 55 is spelled out in § 55.001:

The legislature recognizes that many citizens of the state because of serious and persistent mental illness, … developmental disabilities, or other like incapacities, are in need of protective services or protective placement. [These services] should, to the maximum degree of feasibility … allow the individual the same rights as other citizens, and … protect the individual from financial exploitation, abuse, neglect, and self-neglect. This chapter is designed to establish those protective services and protective placements, to assure their availability to all individuals 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, financial exploitation, neglect, and self-neglect.

¶13 Our supreme court, concerned that protective placements under Wis.Stat. ch. 55 were "indefinite in duration and thereby [were] tantamount to a life sentence to a nursing home or other custodial setting," held that the former statutory provisions violated equal protection because there were "no periodic, automatic reexaminations of the need for continued placement." State ex rel. Watts v. Combined Cmty. Servs. Bd., 122 Wis.2d 65, 76-77, 362 N.W.2d 104 (1985). Accordingly, "[t]he Watts court established rules for extending Chapter 55 protective placements." Goldie H., 245 Wis.2d 538, ¶25.

It required an annual review by a judicial officer and the appointment of a guardian ad litem, who is to meet with the protectively placed person, review the protective service agency's report, and after consultation with the protectively placed individual, report to the court with recommendations regarding the need for protective placement.

Id.

¶14 This appeal asks this court to examine part of that annual judicial review procedure and challenges the competency of the circuit court due to the fact that a guardian ad litem was not reappointed every year for Bonnie.

I. The circuit court did not lose competency.

¶15 "The circuit court's competency refers to its 'ability to exercise the subject matter jurisdiction vested in it' by Article VII, Section 8 of the Wisconsin Constitution." State v. Green, 2021 WI.App. 18 ¶64, 396 Wis.2d 658, 957 N.W.2d 583 (quoting Mikrut, 273 Wis.2d 76,...