COURT OF APPEALS

DECISION

DATED AND FILED

August 18, 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. 2022AP229 Cir. Ct. No. 2013GN2P

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

IN THE MATTER OF THE GUARDIANSHIP AND 

PROTECTIVE PLACEMENT OF R.D.S.:

CLARK COUNTY,

 PETITIONER-RESPONDENT,

 V.

R. D. S.,

 RESPONDENT-APPELLANT.

APPEAL from order of the circuit court for Clark County: 

LYNDSEY BRUNETTE, Judge. Reversed and cause remanded with directions. 
No. 2022AP229

2

¶1 KLOPPENBURG, J.1 R.D.S. appeals the circuit court’s order 

continuing his protective placement in a group home pursuant to WIS. STAT.

§ 55.08(1). R.D.S. argues that: (1) the circuit court improperly shifted the burden 

of proof; and (2) there was insufficient evidence presented at the hearing to 

support a continuation of R.D.S’s protective placement. As explained below, the 

record establishes that Clark County Community Services (the County) failed to 

prove by clear and convincing evidence that the standards for continuing 

protective placement were met.2 Accordingly, I reverse the order continuing 

R.D.S.’s protective placement.

¶2 R.D.S. requests that, if this court reverses the order for continued 

protective placement, the court “remand this matter to the circuit court with 

directions to enter an order allowing R.D.S. to live with his parents, with 

protective services.” The County does not respond to R.D.S.’s request or 

otherwise address the remedy in the event of reversal, which I deem as a 

concession that R.D.S.’s requested remedy is appropriate. See Schlieper v. DNR, 

188 Wis. 2d 318, 322, 525 N.W.2d 99 (Ct. App. 1994) (explaining that “[t]his 

 

1

 This case initially involved both a petition for permanent guardianship under WIS.

STAT. ch. 54 and a petition for protective placement under WIS. STAT. ch. 55. Because this 

appeal involves only the protective placement order, it is decided by one judge pursuant to WIS.

STAT. § 752.31(2)(d) (2019-20). See Waukesha County v. Genevieve M., 2009 WI App 173, ¶5, 

322 Wis. 2d 131, 776 N.W.2d 640 (per curiam) (“appeals which involve only a protective 

placement order ... will be assigned for decision by one court of appeals judge.”). 

The parties completed briefing of this appeal on July 8, 2022. 

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

noted.

2

 Because this conclusion is dispositive, I do not address R.D.S.’s burden-shifting 

argument. See Barrows v. American Family Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436, 

842 N.W.2d 508 (2013) (“An appellate court need not address every issue raised by the parties 

when one issue is dispositive.”).
No. 2022AP229

3

court has held that respondents cannot complain if propositions of appellants are 

taken as confessed which respondents do not undertake to refute”). Accordingly, I 

also remand to the circuit court with directions to enter an order allowing R.D.S. 

to live with his parents, with protective services.

3

BACKGROUND

¶3 R.D.S. was first placed in a group home pursuant to an order for 

protective placement in 2013, and since then he has lived in that group home 

pursuant to orders continuing his protective placement. In May 2021, the County 

filed a petition for an annual review of the status of R.D.S.’s protective placement. 

¶4 The circuit court held a Watts4 hearing in August 2021. Three 

witnesses testified at the hearing: the psychologist who examined R.D.S. before 

the hearing (whose report was also entered into evidence), the assistant manager of 

the group home where R.D.S. is protectively placed, and R.D.S. Their testimony 

is described in detail blow. After the close of evidence, the County argued that 

R.D.S.’s protective placement be continued, R.D.S.’s counsel argued that the 

County failed to meet its burden of showing that the standards for continuing 

 

3 The parties do not argue, and it does not appear from the record, that the order being 

reversed has expired. Accordingly, the requested remedy of reversal and remand with directions 

is not precluded by our supreme court’s recent ruling that, with respect to a recommitment order 

under WIS. STAT. ch. 51, if the order being reversed has expired, “the circuit court lacks 

competency to conduct any proceedings on remand. Therefore, reversal is the appropriate 

remedy in this case.” Matter of Commitment of M.W., 2022 WI 40, ¶4, 402 Wis. 2d 1, 974 

N.W.2d 733. 

4

 State ex rel. Watts v. Combined Cmty. Servs. Bd. of Milwaukee Cnty., 122 Wis. 2d 65, 

362 N.W.2d 104 (1985) (requiring an annual review of the necessity of a hearing and, if 

necessary, a “full due process hearing” on the need for continued protective placement). 
No. 2022AP229

4

protective placement were met, and the guardian ad litem recommended that the 

court order protective services in lieu of protective placement. 

¶5 The circuit court granted the County’s petition for continued

protective placement of R.D.S., and this appeal followed. 

DISCUSSION

¶6 Decisions on protective placement are within the sound discretion of 

the circuit court. Anna S. v. Diana M., 2004 WI App 45, ¶7, 270 Wis. 2d 411, 

678 N.W.2d 285. “The circuit court’s factual findings will not be overturned 

unless clearly erroneous.” Coston v. Joseph P., 222 Wis. 2d 1, 22, 586 N.W.2d 

52, 61 (Ct. App. 1998); see WIS. STAT. § 805.01(2). The issue of whether the 

evidence satisfies the legal standard for protective placement is a question of law 

that we review de novo. Coston, 222 Wis. 2d 23.

¶7 Before a circuit court can order the protective placement of an 

individual, it must find by clear and convincing evidence that the individual meets 

all four standards in WIS. STAT. § 55.08(1). WIS. STAT. § 55.10(4)(d). Those 

standards are as follows:

(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 
No. 2022AP229

5

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.

Sec. 55.08(1).

¶8 Here, R.D.S. challenges only whether the third standard, WIS. STAT.

§ 55.08(1)(c), was proven by clear and convincing evidence. Specifically, R.D.S. 

argues that the County failed to present sufficient evidence to show that his mental 

illness has resulted in his being “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.” WIS. STAT. § 55.08(1)(c). 

¶9 At the August 2021 hearing, the County’s expert witness, licensed 

psychologist Dr. Michael Lace, testified that, in preparation for the hearing, Lace

met with R.D.S. by telephone for approximately forty-five minutes and reviewed 

R.D.S.’s most recent evaluation in 2018. Lace also prepared a report that was 

entered into evidence. 

¶10 Lace testified that his main concern is R.D.S.’s limited “insight and 

judgment” in terms of his denying that he has any mental health-related issues and 

his not knowing what medications he is taking. Lace opined that, based on 

R.D.S.’s lack of awareness of both his mental illness and his medications, without 

24-hour supervision, R.D.S. would not likely comply with his medications and 

treatment, and he would likely “decompensate and perhaps end up in the hospital”

and become “more paranoid, and have a recurrence of []similar symptoms.” Lace 

testified that R.D.S. made no specific comments indicating that he does not want 

to take his medications or would not take them without supervision, nor did Lace 

see any specific instances in the record of any issue with R.D.S. not taking his 
No. 2022AP229

6

medications. Lace testified that he believes that “residential care and custody ... 

would be the best fit” in order to help R.D.S. with “medication management,” but 

also that protective services could be appropriate “if someone is working closely 

with him.” Lace testified that there would be safety issues if R.D.S. “was 

completely cut off from services ... and didn’t have any protective services at the 

very least.”

¶11 Also at the August 2021 hearing, Riley Meyers, assistant manager at 

the group home where R.D.S. is protectively placed, testified that R.D.S. prepares 

a sandwich for his breakfast and that the group home staff cook R.D.S.’s other 

meals, prompt him to shower more than once a week, and administer his 

medications. Meyers testified that she has not seen R.D.S. cook meals but that he 

could if he was willing to learn, though he might forget to turn off the oven; that 

he has no personal hygiene issues other than not showering more than once a 

week; and that he is generally compliant with taking his medications and could 

potentially learn to manage his own medications. Meyers testified that she is 

aware of no inappropriate behaviors during R.D.S.’s visits with his parents at their 

home. 

¶12 As the third witness at the August 2021 hearing, R.D.S. testified that 

he wants the circuit court to discontinue his protective placement and that he

would go live with his parents. He testified that he lives at his parents’ home one 

week each month, and that when he is there he takes his medication in labeled 

packets. He testified that, if he went to his parents’ home he would take all the 

medications he is prescribed, even though he believes that he does not need them, 

and that he would not oppose the court ordering that someone come to his parents’ 

home and make sure that he is taking his medications every day. He testified that 

he used to cook meals for the group home residents, that he showers twice a week 
No. 2022AP229

7

and does not need to be prompted, and that he takes his medications without being 

prompted. 

¶13 The evidence presented at the hearing and credited by the circuit 

court identified the following three concerns with not continuing R.D.S.’s 

protective placement at the group home: (1) medication management, given his 

lack of awareness of either his mental illness or the medications he takes to 

address his mental illness; (2) showering; and (3) meal preparation. 

¶14 As to (1), the psychologist testified that, if R.D.S. did not properly 

take his medication, he could decompensate, become more paranoid, and need to 

be hospitalized. However, there was no evidence that R.D.S. was not compliant 

with taking his medication, or that he did not properly do so when he lived with 

his parents for one week each month. Nor was there evidence as to whether, and 

how, by “decompensating” and becoming “more paranoid,” R.D.S. would be at 

substantial risk of endangering himself or others. As to (2), the group home 

assistant manager testified that R.D.S. showered unprompted no more than once a 

week. However, there was no evidence that his doing so caused any hygiene 

problem. As to (3), the assistant manager testified that R.D.S. did not prepare his 

meals other than a sandwich for breakfast, and that while he could learn to cook he 

might forget to turn off the oven. However, there was no evidence of his being 

forgetful or of his not eating properly when he lived with his parents for one week 

each month. This evidence was not sufficient to meet the County’s burden to 

prove by clear and convincing evidence that, due to his mental illness, R.D.S. was 

“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.” WIS. STAT.

§ 55.08(1)(c).
No. 2022AP229

8

¶15 The County’s arguments to the contrary are unavailing. The County 

argues that R.D.S.’s testimony about properly taking his medication and caring for 

himself while at his parents’ home is uncorroborated. However, this argument is 

refuted by the record. The psychologist testified that there is no indication of 

medication management issues in the record that he reviewed, and the group home 

assistant manager testified that there is no indication of inappropriate behaviors by 

R.D.S. while at his parents’ home. 

¶16 The County argues that R.D.S.’s testimony about an old, undisputed 

multi-million dollar judgment in favor of his prior business constitutes a 

“preoccupation” that is a “symptom of his longstanding impairments relating to 

his mental illness.” However, the County does not explain how this 

“preoccupation” shows a substantial risk of danger to R.D.S. or others.

¶17 The County argues that the circuit court found the group home 

assistant manager’s testimony more credible than R.D.S.’s as to his showering no 

more than once per week. However, as stated, the County points to no evidence 

that such a practice poses any risk of danger to R.D.S. The County asserts that the 

assistant manager testified that R.S.D. needed to be prompted to shower even once 

per week. This assertion misrepresents her testimony. She testified that he “just 

wants to [shower] once a week” and group home staff prompt him “to take more

showers during the week.” 

¶18 The County argues that the circuit court properly weighed the 

evidence as to whether R.D.S. is incapable of providing for his own care or 

custody. However, as explained, there is little if any evidence showing that R.D.S. 

is so incapable as to be at substantial risk of endangering himself; the testimony 

described above does not constitute clear and convincing evidence to that effect.
No. 2022AP229

9

¶19 The County argues that the evidence of R.D.S.’s unwillingness to 

perform activities of daily living reflects his mental illness and proves his inability 

to do so. However, while it may reflect R.D.S.’s mental illness, there is no 

evidence that R.D.S. is unwilling to or does not perform the activities identified as 

concerns so as to risk his health and safety. That is, there is no evidence that he is 

not compliant with taking his medication, either at the group home or at his 

parents’ home; there is no evidence that his showering no more than once per 

week endangers him; and there is no evidence that he does not eat properly when 

away from the group home at his parents’ home. 

¶20 The County argues that it is sufficient that the psychologist testified 

that R.D.S.’s unawareness of his mental illness and medication needs means that, 

if he were not protectively placed, there is a risk that he could endanger himself by 

not properly taking his medications. However, as explained above, the 

psychologist did not specify what danger would ensue from R.D.S’s improperly 

managing his medications, and could not identify any indication that R.D.S. had 

been or indicated he would be noncompliant with taking his medications.

¶21 In sum, the County fails to show that it presented sufficient evidence 

to meet its burden of proving, by clear and convincing evidence, that the 

dangerousness standard in WIS. STAT. § 55.08(1)(c) was met.

CONCLUSION

¶22 For the reasons stated, the August 2021 order for protective 

placement is reversed, and this case is remanded to the circuit court with directions 

to enter an order allowing R.D.S. to live with his parents, with protective services.

By the Court.—Order reversed and cause remanded with directions.
No. 2022AP229

10

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)4.