2022 WI App 62

COURT OF APPEALS OF WISCONSIN

PUBLISHED OPINION

Case No.: 2022AP765-FT

Complete Title of Case: 

IN THE MATTER OF THE GUARDIANSHIP AND PROTECTIVE PLACEMENT 

OF P.B.:

RACINE COUNTY,

 PETITIONER-RESPONDENT,

 V.

P. B.,

 RESPONDENT-APPELLANT.

Opinion Filed: November 30, 2022

Submitted on Briefs: August 18, 2022

Oral Argument: 

JUDGES: Gundrum, P.J., Neubauer and Lazar, JJ.

Concurred:

Dissented:

Appellant

ATTORNEYS: On behalf of the respondent-appellant, the cause was submitted on the 

brief of Colleen Marion. Assistant state public defender, Madison. 

Respondent

ATTORNEYS: On behalf of the petitioner-respondent, the cause was submitted on the 

brief of Sarah M. Kidd, assistant corporation counsel, Racine. 
2022 WI App 62

COURT OF APPEALS

DECISION

DATED AND FILED

November 30, 2022

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

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. 

Appeal No. 2022AP765-FT Cir. Ct. No. 2021GN58

STATE OF WISCONSIN IN COURT OF APPEALS

IN THE MATTER OF THE GUARDIANSHIP AND PROTECTIVE PLACEMENT OF P.B.:

RACINE COUNTY,

 PETITIONER-RESPONDENT,

 V.

P.B.,

 RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Racine County: 

KRISTIN M. CAFFERTY, Judge. Vacated and cause remanded with directions. 

Before Gundrum, P.J., Neubauer and Lazar, JJ. 

¶1 NEUBAUER, J. P.B. appeals from orders entered by the circuit 

court appointing a guardian over her person and estate, directing her protective 

placement in an unlocked facility, and denying her postdisposition motion to vacate 
No. 2022AP765-FT

2

the guardianship and protective placement orders. P.B. argues that she was denied 

her right to attend the guardianship and protective placement hearing in person. The 

guardianship and protective placement statutes give certain rights to individuals 

who are the subject of guardianship or protective placement petitions, including the 

“right to be present” at the final hearing on the petitions. See WIS. STAT.

§§ 54.42(5), 55.10(4) (2019-20).1 The statutes also require a petitioner (here, the 

County) to ensure that the individual who is the subject of a petition “attends” the 

final hearing, unless the individual’s guardian ad litem waives the attendance. WIS.

STAT. §§ 54.44(4)(a), 55.10(2). For the reasons below, we conclude that these 

statutes protect an individual’s right to be physically present in the room where the 

hearing is held. Because the County failed to ensure that P.B. was afforded an 

opportunity to attend her final hearing in person, and her guardian ad litem did not 

waive her attendance, the circuit court lacked competency to rule on the petitions. 

Thus, we vacate the orders and remand for a hearing that complies with the statutes.

BACKGROUND

¶2 On May 6, 2021, the County filed a petition for temporary and 

permanent guardianship over P.B. under WIS. STAT. ch. 54 and a petition for 

protective placement under WIS. STAT. ch. 55. The next day, after hearing testimony 

from an investigator for the County and from P.B., the circuit court granted 

temporary protective placement and appointed P.B.’s daughter as her temporary 

guardian. The court also signed the County’s proposed order setting a final hearing 

on the petitions for May 28, 2021, to be held via Zoom, a web-based conferencing 

 

1

 All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise 

noted.
No. 2022AP765-FT

3

platform that is used for audio and video conferencing.2 The court later changed the 

hearing date to June 2, 2021, and informed P.B. that a 

guardian ad litem (GAL) had been appointed to represent her interests at the hearing. 

¶3 The GAL prepared a report in connection with the final hearing, but 

did not file it until after the hearing had concluded. In the report, the GAL advised 

that he had informed P.B. of certain rights, including her right to “be present at the 

hearing.” The report also indicated that P.B. intended to contest competency and 

protective placement. The GAL further advised that, in his opinion, P.B. “can 

attend the hearing in court.” The GAL did not check the box on the report waiving 

P.B.’s attendance. 

¶4 At the start of the June 2 hearing, P.B., her counsel, and several other 

participants appeared by Zoom. P.B. was located at the facility where she was being 

temporarily detained. Due to technical difficulties, P.B. lost her video connection 

midway through the hearing and thereafter participated only by audio. P.B.’s 

counsel participated from another location. 

¶5 At the end of the hearing, the circuit court announced its decision. 

Based upon the testimony and other evidence presented, the court determined that 

P.B. was in need of guardianship and protective placement. 

¶6 P.B. filed a postdisposition motion asking the circuit court to vacate 

the guardianship and protective placement orders because she was not permitted to 

attend the final hearing in person and did not consent to participate by video 

conference. In support, P.B. cited WIS. STAT. §§ 54.44(4) and 55.10(2), which 

 

2

 Dave Johnson, What Is Zoom and How Does It Work?, LIFEWIRE: TECH FOR HUMANS

(Feb. 11, 2021), https://www.lifewire.com/what-is-zoom-and-how-does-it-work-4800476.
No. 2022AP765-FT

4

instruct the party seeking guardianship or protective placement to ensure that the 

individual for whom guardianship or protective placement is sought “attends the 

hearing,” unless the individual’s guardian ad litem waives the attendance. See 

§§ 54.44(4)(a), 55.10(2). In her motion, P.B. noted that her GAL had neither waived 

her attendance nor provided reasons why she was unable to attend. 

¶7 The County opposed P.B.’s motion, arguing that the circuit court had 

authority to conduct the hearing by video or teleconference under WIS. STAT.

§§ 885.58 and 885.60. The County also relied on P.B.’s failure to object to 

proceeding via Zoom pursuant to § 885.60(2)(d), despite knowing in advance that 

the court planned to conduct the hearing using that technology. 

¶8 The circuit court denied P.B.’s motion. The court determined that 

P.B. had a right to attend the final hearing under the guardianship and protective 

placement statutes, but noted that those “statutes do not use the term ‘physically 

present.’” The court then turned to WIS. STAT. § 885.60(2)(a) and determined that 

it does grant a right to be physically present, but concluded that P.B. had waived 

that right by not objecting to attending via Zoom before the hearing.3 

DISCUSSION

 

3

 In her postdisposition motion, P.B. also argued that the many technical problems that 

occurred during the hearing violated the statutory standards established for video conferencing, that 

the circuit court impermissibly admitted hearsay evidence at the hearing, and that the County did 

not prove by clear and convincing evidence that she needed a guardian or protective placement. 

The court rejected these arguments, stating that P.B. was able to “meaningfully attend[] the 

hearing” despite the technical difficulties and that no party objected to continuing the hearing via 

Zoom when P.B.’s video connection was lost. The court further rejected P.B.’s argument that it 

had improperly admitted hearsay evidence and affirmed its prior determination that the County had 

presented sufficient evidence for the guardianship and protective placement. P.B. challenges each 

of these aspects of the court’s ruling on appeal, but we decline to address them because our ruling 

on the court’s lack of competency is sufficient to decide the appeal. See Sweet v. Berge, 113 

Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983) (when one issue is dispositive of an appeal, we 

need not discuss other issues).
No. 2022AP765-FT

5

I. Applicable Legal Standards

¶9 This appeal requires us to interpret and apply provisions in the 

guardianship and protective placement statutes, WIS. STAT. chs. 54 and 55, and 

provisions in WIS. STAT. ch. 885 addressing the use of video conferencing in circuit 

court proceedings. We review the circuit court’s interpretation of those statutes de 

novo. Jefferson County v. Joseph S., 2010 WI App 160, ¶4, 330 Wis. 2d 737, 795 

N.W.2d 450. 

¶10 Our goal in interpreting a statute “is to determine what the statute 

means so that it may be given its full, proper, and intended effect.” State ex rel. 

Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 

110. We begin with the statutory language, which “is given its common, ordinary, 

and accepted meaning.” Id., ¶45. Because context and “the structure of the statute 

in which the operative language appears” are also important in determining 

meaning, we interpret statutory language “in the context in which it is used; not in 

isolation but as part of a whole; in relation to the language of surrounding or closelyrelated statutes; and reasonably, to avoid absurd or unreasonable results.” Id., ¶46. 

¶11 “The purposes underlying a statute are also useful in ascertaining a 

statute’s meaning.” State v. Soto, 2012 WI 93, ¶20, 343 Wis. 2d 43, 817 N.W.2d 

848. “Finally, when engaging in statutory interpretation, we are assisted by prior 

decisions that have examined the relevant statutes.” Id.

II. WISCONSIN STAT. §§ 54.44(4)(a) and 55.10(2) require physical 

presence at a final hearing.

¶12 We begin our analysis with the statutes that address hearings in 

guardianship and protective placement actions. As relevant here, WIS. STAT.

§ 54.44(1)(a) requires a circuit court to hear a petition for guardianship within ninety 
No. 2022AP765-FT

6

days after it is filed. The individual over whom guardianship is sought—referred to 

in the statute as the “proposed ward or ward”—has certain statutory rights, including 

“the right to be present” at the hearing and “the right to have any hearing regarding 

the guardianship conducted in a location and manner that is accessible to the” 

individual. WIS. STAT. § 54.42(5), (6). Section 54.44(4)(a) requires the petitioner 

to make sure the individual “attends” the hearing, unless the attendance is waived: 

 (4) PRESENCE OF PROPOSED WARD OR WARD. (a) Adult 

proposed ward or ward. The petitioner shall ensure that the 

proposed ward or ward attends the hearing unless the 

attendance is waived by the guardian ad litem. In 

determining whether to waive attendance by the proposed 

ward or ward, the guardian ad litem shall consider the ability 

of the proposed ward or ward to understand and 

meaningfully participate, the effect of the attendance of the 

proposed ward or ward on his or her physical or 

psychological health in relation to the importance of the 

proceeding, and the expressed desires of the proposed ward 

or ward. If the proposed ward or ward is unable to attend the 

hearing because of residency in a nursing home or other 

facility, physical inaccessibility, or a lack of transportation 

and if the proposed ward or ward, guardian ad litem, 

advocate counsel, or other interested person so requests, the 

court shall hold the hearing in a place where the proposed 

ward or ward may attend.

Sec. 54.44(4)(a). 

¶13 As in the guardianship context, an individual who is the subject of a 

petition for protective placement also has “the right to be present” at the hearing on 

the petition. See WIS. STAT. § 55.10(4) (applying right to be present in WIS. STAT.

§ 54.42(5) to hearing for protective placement). Using language similar to WIS.

STAT. § 54.44(4)(a), § 55.10(2) also requires the petitioner to make sure the 

individual over whom protective placement is sought “attends” the hearing, unless 

the attendance is waived:

 (2) ATTENDANCE. The petitioner shall ensure that the 

individual sought to be protected attends the hearing on the 
No. 2022AP765-FT

7

petition unless, after a personal interview, the guardian ad 

litem waives the attendance and so certifies in writing to the 

court the specific reasons why the individual is unable to 

attend. In determining whether to waive attendance by the 

individual, the guardian ad litem shall consider the ability of 

the individual to understand and meaningfully participate, 

the effect of the individual’s attendance on his or her 

physical or psychological health in relation to the importance 

of the proceeding, and the individual’s expressed desires. If 

the individual is unable to attend a hearing only because of 

residency in a nursing home or other facility, physical 

inaccessibility, or lack of transportation, the court shall, if 

requested by the individual, the individual’s guardian ad 

litem, the individual’s counsel, or other interested person, 

hold the hearing in a place where the individual is able to 

attend.

Sec. 55.10(2). “Failure to ensure the attendance of the respondent at a hearing 

absent a valid waiver by the guardian ad litem causes the [circuit] court to lose 

competency to proceed on the petition.” Joseph S., 330 Wis. 2d 737, ¶5. 

¶14 P.B.’s appeal raises the question whether her right to “attend” the final 

hearing entitled her to be physically present in the room where the hearing took 

place, absent a valid waiver. To answer this question, we must determine the 

meaning of the phrase “attends the hearing” in WIS. STAT. §§ 54.44(4)(a) and 

55.10(2). Neither WIS. STAT. ch. 54 or 55 defines the term “attends,” and no 

published Wisconsin decision has considered its meaning in the context of a 

proceeding in which the participants appear through video-conference technology. 

Thus, we look to the word’s “common, ordinary, and accepted meaning,” Kalal, 

271 Wis. 2d 633, ¶45, and may consult dictionary definitions in our analysis, 

Stroede v. Society Ins., 2021 WI 43, ¶12, 397 Wis. 2d 17, 959 N.W.2d 305 (“[W]e 

often consult a dictionary in order to guide our interpretation of the common, 

ordinary meanings of words.”). 
No. 2022AP765-FT

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¶15 The definition of “attends” that appears most applicable is “to be 

present at” or to “go to.” Attend, WEBSTER’S THIRD NEW INTERNATIONAL 

DICTIONARY (unabr. 1993). Being “present at” or “go[ing] to” a hearing suggests

that the individual is physically present at the location where the hearing takes 

place.4

¶16 Other language in WIS. STAT. §§ 54.44(4)(a) and 55.10(2) supports 

the conclusion that “attends” connotes physical presence. Kalal, 271 Wis. 2d 633, 

¶46 (statutory language is not construed in isolation, but rather “in the context in 

which it is used” and “as part of a whole”). Specifically, each statute provides that 

if the individual cannot attend a hearing “because of residency in a nursing home or 

other facility, physical inaccessibility, or” lack of transportation, the circuit court 

must, upon request, “hold the hearing in a place” where the individual can attend. 

Sec. 54.44(4)(a), 55.10(2). In other words, the statutes require the court to change 

the location of the hearing if the individual cannot “attend” because of where the 

individual resides, because the individual cannot physically access the hearing 

location, or because the individual does not have transportation to the hearing 

location. The statutory directive to change the location of the hearing if any of these 

circumstances exists appears intended to ensure the individual can attend the hearing 

in person.

¶17 P.B. also cites a related statute, WIS. STAT. § 885.60(2)(a), which 

pertains to a circuit court’s use of video conferencing technology. See Soto, 343 

Wis. 2d 43, ¶21 (identifying § 885.60 as “related” to criminal statute governing 

presence of a defendant at certain proceedings). Section 885.60 permits the use of 

 

4

 Our analysis is equally applicable to the statutory right to be “present” at the hearing, 

which as relevant here means “being before, beside, with, or in the same place as someone or 

something.” Present, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (unabr. 1993).
No. 2022AP765-FT

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video-conferencing technology in criminal and certain civil proceedings, including 

protective placement proceedings under WIS. STAT. ch. 55. Importantly, however, 

§ 885.60(2)(a) provides that “a respondent in a [protective placement] matter ... is 

entitled to be physically present in the courtroom at all ... dispositional hearings.”5 

Consistent with this entitlement, the statute specifies that a court’s use of videoconferencing technology is “[s]ubject to” the right to be physically present. 

Sec. 885.60(1). 

¶18 The County notes that “the guardianship and protective placement 

statutes do not use the term ‘physically present,’” unlike WIS. STAT. § 885.60(2)(a). 

To the extent this observation is intended to mean that the phrase “attends the 

hearing” means something other than physical presence, we disagree. First, as 

discussed above, § 885.60(2)(a) affirms that “attends” means that a respondent in a 

protective placement action is entitled to be physically present at all dispositional 

hearings. Second, § 885.60 “was fully derived from a Supreme Court rule through 

a legislative delegation under WIS. STAT. § 751.12.” Soto, 343 Wis. 2d 43, ¶32 

(citing S. CT. ORDER 07-12, 2008 WI 37, 305 Wis. 2d xli (eff. July 1, 2008)). 

“Section 751.12 prohibits the supreme court from abridging, enlarging or modifying 

the substantive rights of any litigant when creating a Supreme Court rule under 

§ 751.12(1).” Soto, 343 Wis. 2d 43, ¶32. Thus, § 885.60(2)(a) cannot enlarge or 

diminish the statutory right to “attend” a final hearing under WIS. STAT. chs. 54 and 

 

5

 An official comment to Wisconsin Supreme Court Order 07-12, which created 

subchapter III of WIS. STAT. ch. 885, makes clear that the availability and convenience of videoconferencing technology may not override the right to be physically present at the dispositional 

hearing: “It is the intent of [WIS. STAT. §] 885.60 to scrupulously protect the rights of criminal 

defendants and respondents in matters which could result in loss of liberty ... by preserving to such 

litigants the right to be physically present in court at all critical stages of their proceedings.” S. CT.

ORDER 07-12, 2008 WI 37, 305 Wis. 2d xli, xlvii-xlviii (eff. July 1, 2008). 
No. 2022AP765-FT

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55. This makes clear that the right recognized in WIS. STAT. §§ 54.44(4)(a) and 

55.10(2) is a right to be physically present at the hearing.

¶19 We also consider the purpose and effect of the guardianship and 

protective placement statutes. See Soto, 343 Wis. 2d 43, ¶20. Guardianship and 

protective placement are statutorily created mechanisms that can result in the 

significant curtailment of an individual’s physical liberty and decision-making 

authority. Proceedings under these statutes implicate significant liberty interests 

given the potential extent and duration of these restrictions: 

We have recognized that a “huge liberty interest” is at stake 

in a protective placement proceeding because [protective 

placements] “are indefinite in duration and thereby are 

tantamount to a life sentence to a nursing home or other 

custodial setting.” We have also recognized the restrictions 

on liberty that are attendant upon a declaration of 

incompetency in a guardianship proceeding.

Joseph S., 330 Wis. 2d 737, ¶13 (quoting Walworth County v. Therese B., 2003 

WI App 223, ¶12, 267 Wis. 2d 310, 671 N.W.2d 377). Not only are the stakes high 

for the individual, the determinations that must be made to support the appointment 

of a guardian or protective placement are among the most difficult that “a judge is 

called upon to make.” See Bryn v. Thompson, 21 Wis. 2d 24, 28, 123 N.W.2d 505 

(1963). Given this difficulty, we construed the predecessor to WIS. STAT.

§ 54.44(4)(a) as “reflect[ing] a legislative judgment that ... a declaration of 

incompetency and the attendant restrictions on a proposed ward’s liberty, not be 

made without whatever input the proposed ward is able to give.” Knight v. 

Milwaukee County, 2002 WI App 194, ¶3, 256 Wis. 2d 1000, 651 N.W.2d 890. 

WISCONSIN STAT. §§ 54.44(4)(a) and 55.10(2) reflect a similar legislative judgment 

and protect an individual’s right to be physically present in the room where a final 

guardianship or protective placement hearing is held.
No. 2022AP765-FT

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¶20 The County’s arguments that physical presence is not required are not 

persuasive. The County argues that WIS. STAT. § 885.60 allowed it to arrange for 

P.B. to appear at the hearing by video conference, unless she objected and asserted 

her right to be physically present. We disagree. 

¶21 Again, the use of video-conference technology is expressly “[s]ubject 

to” an individual’s right “to be physically present in the courtroom.” WIS. STAT.

§ 885.60(1), (2)(a). WISCONSIN STAT. §§ 54.44(4)(a) and 55.10(2) require the 

petitioner to make sure the individual over whom guardianship and protective 

placement is sought “attends” the hearing, unless the individual’s GAL waives that 

right.6 Waiver, in this context, requires “some affirmative relinquishment on the 

part of the holder.” See Soto, 343 Wis. 2d 43, ¶37. Here, there is no dispute that 

P.B.’s GAL did not waive her right to attend the hearing. Absent such a waiver, the 

County acted contrary to the statutes by failing to ensure that P.B. appeared in 

person. 

¶22 Moreover, the specific provision in WIS. STAT. § 885.60 upon which 

the County relies, § 885.60(2)(d), is not applicable to a respondent’s appearance via 

video conference. Section 885.60(2)(d) addresses an individual’s ability to object 

to the testimony of other witnesses being presented via video conference, not his or 

her own remote appearance. This conclusion flows from the text and structure of 

the four paragraphs in § 885.60(2). Paragraph (2)(a) recognizes the right of a 

criminal defendant or a person in certain civil proceedings to be “physically present 

in the courtroom at all trials and sentencing or dispositional hearings.” Sec. 

885.60(2)(a). Paragraph (2)(b) permits the proponent of a witness to file a notice of 

 

6

 WISCONSIN STAT. § 55.10(2) goes further and requires the guardian ad litem to certify in 

writing both the individual’s waiver and “the specific reasons why the individual is unable to

attend.” 
No. 2022AP765-FT

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intent to present the witness’s testimony via video conference and gives “[a]ny other 

party” to the proceeding ten days to file an objection. Sec. 885.60(2)(b). Paragraph 

(2)(c) states that if a plaintiff or petitioner files an objection, the court “shall 

determine the objection in the exercise of its discretion” under certain statutory 

criteria. Sec. 885.60(2)(c). In contrast, paragraph (2)(d) states that if a defendant 

or respondent files an objection, and the proceeding is one in which “he or she is 

entitled to be physically present in the courtroom, the court shall sustain the 

objection.” Sec. 885.60(2)(d). 

¶23 Our supreme court has explained the intent of these provisions as 

follows:

[WISCONSIN STAT. § 885.60] is also intended to preserve 

constitutional and other rights to confront and effectively 

cross-examine witnesses. It provides the right to prevent the 

use of videoconferencing technology to present such adverse 

witnesses, but rather require that such witnesses be 

physically produced in the courtroom.

S. CT. ORDER 07-12, 305 Wis. 2d at xlviii. This statement of intent confirms that

§ 885.60(2) addresses the presentation of witness testimony through video 

conference, not the attendance of respondents like P.B. The County’s failure to 

ensure the physical presence of P.B. at the hearing, absent a valid waiver by the 

GAL pursuant to WIS. STAT. §§ 54.44(4)(a) and 55.10(2), “cause[d] the [circuit] 

court to lose competency to proceed on the petition.” Joseph S., 330 Wis. 2d 737, 

¶5.

¶24 Finally, the County flags a statement by the circuit court in its written 

decision that P.B.’s hearing “was conducted during a global pandemic ... and 

videoconference was an option that allowed the [c]ourt to conduct the hearing in a 

manner protecting all litigants.” We note this statement to acknowledge that our 
No. 2022AP765-FT

13

supreme court issued several orders in light of the COVID-19 pandemic that 

suspended most in-person proceedings in circuit courts, but those orders were 

terminated effective May 21, 2021, twelve days before the final hearing in this case. 

See In Re the Matter of Modification of Circuit Court and Municipal 

Accommodations that Were Required Because of the COVID-19 Pandemic (S. Ct. 

Order issued May 21, 2021). No party has brought to our attention any pandemicrelated order that precluded P.B. from being physically present at her final hearing. 

CONCLUSION

¶25 WISCONSIN STAT. §§ 54.44(4)(a) and 55.10(2) afford P.B. the right to 

be physically present in the courtroom for her final hearing. The County did not 

fulfill its statutory responsibility to ensure her in-person appearance and her GAL 

did not waive her right to appear. Accordingly, the circuit court lacked competency 

to issue the guardianship and protective placement orders. Those orders are vacated, 

and this case is remanded to the circuit court so that a hearing may be conducted in 

accordance with these statutes.

By the Court.—Orders vacated and cause remanded with directions.