COURT OF APPEALS

DECISION

DATED AND FILED

November 28, 2023

Samuel A. Christensen

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. 2022AP2035 Cir. Ct. No. 2019GN50

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

IN THE MATTER OF THE GUARDIANSHIP 

AND PROTECTIVE PLACEMENT OF J. M.:

DOUGLAS COUNTY,

 PETITIONER-RESPONDENT,

 V.

J. M.,

 RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Douglas County: 

KELLY J. THIMM, Judge. Affirmed. 
No. 2022AP2035

2

¶1 HRUZ, J.1 James2appeals an order continuing his protective 

placement pursuant to WIS. STAT. ch. 55. James argues that Douglas County 

presented insufficient evidence for the circuit court to issue the order. 

Specifically, James contends the County’s evidence was insufficient as a matter of 

law because it was required to present testimony from a medical professional, and 

it failed to do so. James separately argues that the County violated his due process 

rights by failing to present testimony from a qualified medical professional. 

Alternatively, he argues that the evidence was insufficient because the County 

failed to present testimony from anyone with personal knowledge of James’ needs 

or care. 

¶2 We agree with the County that no statute or binding precedent 

requires a medical professional to testify in order for a circuit court to continue a 

protective placement when there is a prior guardianship order, admitted evidence 

in the record that the ward suffers from an incapacity, and the court previously 

found that the ward suffers from an incapacity. Thus, the lack of testimony by a 

medical professional did not violate James’ due process rights. We further 

conclude that the record before the court in this proceeding was sufficient for the 

court to order that James’ protective placement be continued. We therefore affirm.

 

1

 This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(d) (2021-22). 

All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.

2

 For ease of reading, we refer to the appellant in this confidential matter using a 

pseudonym, rather than his initials. 
No. 2022AP2035

3

BACKGROUND

¶3 In February 2020, the circuit court ordered that James be placed 

under guardianship and that he be protectively placed. The comprehensive 

evaluation submitted with the County’s petitions noted that James had been 

diagnosed with dementia. The evaluation was written by Jennifer Paananen, a 

social worker at the County’s Department of Health and Human Services, and it 

referred to Dr. Isaac Hunt as James’ “attending physician.” The evaluation noted 

that Paananen had accompanied James to his neuropsychological testing with 

Hunt, wherein Hunt reported James’ diagnosis of dementia.

3

¶4 Among other things, the comprehensive evaluation noted that James 

was referred to the County in October 2019 after a “noticeable decline in his 

cognition over the past few months.” This decline included his mismanagement of 

financial, dietary and medical affairs (including his failing to take his medications,

despite him often claiming that he did take them), “dramatic mood shifts, memory 

impairments, and concerns for his overall welfare and ... isolation.” It also noted 

a specific instance where Paananen was at James’ home when James suddenly lost 

consciousness and collapsed, hitting his head as he fell, and needed to be taken to 

the hospital. 

 

3

 The record is unclear as to whether Dr. Hunt’s report was ever admitted into evidence 

and whether the circuit court had taken judicial notice of this report at prior proceedings. 

Notably, the record lacks the transcript for the hearing wherein we presume Hunt’s report would 

have been first introduced into evidence, and the minutes of that hearing do not specify that the 

report was admitted into evidence. Regardless, as will be explained below, we do not directly 

rely on Hunt’s report in support of our conclusion that the County provided sufficient evidence to 

establish that James was in need of continued protective placement. Instead, we rely on 

Paananen’s comprehensive evaluation, the County’s annual reports, the circuit court’s prior 

findings, and the fact that, on appeal, James does not appear to contest that he has an incapacity, 

but only appears to argue that he is not so incapacitated that he needs protective placement. 
No. 2022AP2035

4

¶5 In March 2021—following the County having submitted an annual 

report pursuant to WIS. STAT. § 55.18 and the circuit court having conducted a due 

process hearing—the circuit court ordered James’ continued protective placement. 

The annual report noted James’ numerous medical diagnoses (including his 

dementia); his verbal outbursts and other increased negative behaviors caused by 

his dementia (including a recent physical incident with another resident at his 

former care facility); his history of falls and unsteady gait; his need for support on 

handling medication, finances and bathing; and his voicing of “suicidal ideations.” 

At the conclusion of the due process hearing, the court noted, among other things,

James’ history and meeting of the required elements for a continued protective 

placement, James’ expulsions from and denied access to various care facilities, 

and James’ urination in heating ducts. 

¶6 In February 2022, the County filed another annual petition for 

continued protective placement for James, which is the petition at issue in this 

appeal. It was again accompanied by an annual report from the County, written by 

one of its social workers. That report detailed James’ current condition and issues 

with his care and well-being. Among other things, its author noted that James 

required: being checked on every thirty minutes “due to his recent increase in 

aggression and physical altercations with another male resident”; staff assistance 

with his behavior and mood swings; “meal preparation as he is unable to safely 

use kitchen appliances”; medication management; and reminders for showering. 

The author did state that James is able to independently perform a number of life 

tasks. 

¶7 In March 2022, the corporate guardian, Twin Ports Guardianship and 

Payee Services (Twin Ports), filed an annual report on James’ condition that noted 

James had “exhibited challenging behavior.” Twin Ports also reported that James 
No. 2022AP2035

5

“had an increase in agitation, [an] inability to manage anger[,] ... increased 

memory loss over the past year,” and “frequently refuse[d] his medications.” A 

guardian ad litem (GAL) was appointed for James, and the GAL submitted an 

annual report stating that James was contesting the continued protective 

placement, that James “believe[d] he [could] live independently,” and that he 

“requested an attorney.” The GAL’s report further stated that James “continue[d]

to need protective placement” and that his “violent behaviors” were escalating. 

¶8 In May 2022, a full due process hearing was held at which James 

and Jan Cummings, an individual employed by Twin Ports, both testified. 

Cummings testified that Twin Ports has served as James’ guardian since his initial 

protective placement in 2020. In her role as James’ guardian, Cummings testified

that she is responsible for finding and retaining placement for James and that she 

works with the facility where James lives to schedule and arrange medical 

appointments and treatment for him. 

¶9 Cummings additionally testified that James had been diagnosed with 

dementia and that there had been no changes in that diagnosis in the past year. 

Cummings noted that James “had increased behavioral disturbances and 

impulsivity due to dementia,” which resulted in “altercations with other residents 

at the facility [where he was being housed]” and, ultimately, “two or three 30-day 

notices to seek alternate placement.” Specifically, Cummings noted that these 

prior eviction notices from the facilities were “due to physical aggression” and 

“destruction of property.” 

¶10 Cummings further testified that prior to James’ protective placement, 

he “was not taking his medications correctly” nor was he “eating his meals.” She 

explained that James could not cook independently, noting, in part, that he would 
No. 2022AP2035

6

fail to refrigerate milk and would keep expired food in his refrigerator. Cummings 

expressed concern about James using a stove and stated he “would [probably not]

remember to ... turn the stove off.” Regarding James’ housing, Cummings 

testified that she did not believe James “would have the follow-through to look at 

alternative housing” and that he “doesn’t have the ability, due to the dementia,” to 

secure housing on his own. Cummings testified that she believed James requires 

“24-hour-a-day supervision.” 

¶11 Cummings also testified that she believed James would be at risk if 

not protectively placed because he has “poor decision-making capabilities,” does

not “have insight into his degree of dementia,” and “doesn’t understand ... the 

altercations he has with different residents.” Due to these issues, Cummings stated 

that James “needs supervision,” especially regarding his “medication, assistance 

with medical appointments ... [and] meal preparation.” Cummings further

testified that James “can dress independently,” but he “needs some reminders to 

change clothes regularly” and “for showering.” 

¶12 James testified that he “does not feel he needs protective placement” 

and has “never had issues taking [his] current medications.” Regarding preparing 

meals and shopping, James testified he had “done [that] for many years,” and he 

would be able to do that on his own. When asked about Cummings’ testimony 

that he was diagnosed with dementia, James answered, “False.” James also 

testified that he hit another resident “twice” but stated that the other resident 

“swung first.” James further noted that he contested “about 80% of what 

Cummings has to say,” referred to her as “an outright liar,” and suggested that 

both he and Cummings take polygraph tests. 
No. 2022AP2035

7

¶13 The circuit court concluded that the County had met its burden of 

proof, by clear and convincing evidence, that James continued to meet the 

standards for protective placement.4 The court noted that it found Cummings’

testimony credible. In doing so, the court specifically noted the fact that James 

had repeatedly been evicted from care facilities, thereby requiring the corporate 

guardian to find new placements for him. According to the court, the “problem is, 

as we know with dementia, dementia doesn’t get better, it gets worse or stays the 

same.” The court further found that James was “certainly not so far gone with 

dementia that he’s not able to do certain things,” but the court noted that while in 

the community in the past James had “refused some interventions when he needed 

[them]. He wasn’t eating his meals [and] he wasn’t taking his medications.” 

¶14 In the written order continuing James’ protective placement, the 

circuit court prefaced its findings by stating that they were made “[a]fter 

consideration of the reports and other documents on file.” James now appeals. 

DISCUSSION 

¶15 James argues that the County presented insufficient evidence to 

establish his continued need for protective placement because the County did not 

provide any testimony from a medical professional to establish any of the elements 

 

4

 Brief oral argument was presented before the circuit court by all parties, as well as by 

the guardian ad litem. Of note, the GAL recommended continued placement, stating that he 

would have a pretty big concern that given [James’] history with 

behaviors and ... striking another resident or getting into a 

physical altercation, I certainly would have some concerns if he 

were independent in the community that there would be a great 

danger of interpersonal issues and problems. And I don’t think 

that would be safe or appropriate for him.
No. 2022AP2035

8

in WIS. STAT. § 55.08(1) and that the County’s failure to provide testimony from a 

medical professional violated his due process right. Additionally, James argues 

that the evidence was insufficient because the County failed to present any 

testimony from a witness who had personal knowledge of James’ current 

condition. 

¶16 Our review of a protective placement presents a mixed question of 

fact and law. A circuit court’s findings of fact for a protective placement “shall 

not be set aside unless clearly erroneous.” WIS. STAT. § 805.17(2). A finding of 

fact is clearly erroneous when it is “against the great weight and clear 

preponderance of the evidence.” Royster-Clark, Inc. v. Olsen’s Mill, Inc., 2006 

WI 46, ¶12, 290 Wis. 2d 264, 714 N.W.2d 530. Whether the evidence supports a 

protective placement is a question of law that we review de novo. Coston v. 

Joseph P., 222 Wis. 2d 1, 23, 586 N.W.2d 52 (Ct. App. 1998). Whether an 

individual has been denied his or her right to due process is a question of 

constitutional fact that we review de novo. See State v. Tulley, 2001 WI App 236, 

¶5, 248 Wis. 2d 505, 635 N.W.2d 807. 

¶17 For protective placement to be ordered, there must be “a 

comprehensive evaluation of the individual sought to be protected, if such an 

evaluation has not already been made.” WIS. STAT. § 55.11(1). An annual review 

is required when a person is protectively placed, and a hearing, including a full 

due process hearing, is required if requested. State ex rel. Watts v. Combined 

Cmty. Servs. Bd. of Milwaukee Cnty., 122 Wis. 2d 65, 85, 362 N.W.2d 104 

(1985); WIS. STAT. § 55.18. Holding such a hearing “allows the circuit court to 

make informed findings of fact in support of the need for continuation of 

placement.” County of Dunn v. Goldie H., 2001 WI 102, ¶32, 245 Wis. 2d 538, 

629 N.W.2d 189. The County is also required to submit “a written evaluation” of 
No. 2022AP2035

9

the individual that becomes “part of the permanent record of the individual” as a 

part of the annual review. Sec. 55.18(1).

¶18 In its annual review, the petitioner must show, by clear and 

convincing evidence, that the individual in protective placement continues to 

satisfy the following four elements in WIS. STAT. § 55.08(1):

(a) The individual has a primary need for residential care 

and custody.

(b) The individual 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.

Id.

¶19 After the annual review hearing, a circuit court has three 

choices: (1) “order the continuation of the protective placement in the facility in 

which the individual resides at the time of the hearing”; (2) “order transfer of the 

individual to a protective placement that is the least restrictive environment”; or 

(3) “terminate the protective placement.” See WIS. STAT. § 55.18(3)(e). If the 

court orders the continuation of protective placement, it is required to “include in 

the order the information relied upon as a basis for the order” and must “make 

findings based on the standards under [WIS. STAT. §] 55.08(1) in support of the 

need for continuation of the protective placement.” Sec. 55.18(3)(e)1.
No. 2022AP2035

10

I. Sufficiency of the Evidence 

¶20 James argues that the County presented insufficient evidence for 

three of the four elements in WIS. STAT. § 55.08(1).5 Before addressing James’

arguments in this regard, we note his fundamental misapprehension regarding the 

evidence upon which a circuit court can rely when determining whether to order 

that a protective placement be continued. Namely, we note that all reports and 

documents that have been admitted into evidence in the individual’s prior 

protective placement proceedings may be relied upon, in addition to any witness 

testimony introduced during the individual’s due process hearing. See WIS. STAT.

§ 902.01 (allowing a court to take judicial notice of adjudicative facts); see also

Price County v. C.W., No. 2023AP18-FT, unpublished slip op. ¶¶21, 24 (WI App 

Sept. 6, 2023).

6 This reality is especially true for documentation submitted in 

conjunction with the petition under review—such as the required comprehensive 

evaluation from the initial placement and the required annual written review 

pursuant to WIS. STAT. §§ 55.11(1) and 55.18(1), respectively. See also WIS.

STAT. § 55.12(1). Here, those documents were the comprehensive evaluation 

written by Paananen and the County’s February 2022 annual report. 

¶21 To the extent the record shows relatively recent opinions from 

qualified medical professionals—here, Dr. Hunt’s 2019 dementia diagnosis that 

was witnessed by Paananen (as included in Paananen’s report) and was found by 

the circuit court in its prior order for guardianship—and there is no evidence that 

 

5

 James does not challenge the circuit court’s finding of incompetency, and, therefore, 

we address only the other three elements. 

6

 Unpublished opinions authored by a single judge and issued on or after July 1, 2009, 

may be cited for their persuasive value. See WIS. STAT. RULE 809.23(3)(b).
No. 2022AP2035

11

the opinions therein are stale or that the placed individual’s underlying conditions 

or needs have materially changed, the court can rely upon those opinions, subject 

to any contrary evidence that is submitted. If the placed individual wishes to 

challenge the continuing vitality of such opinions, he or she can request an 

independent evaluation under WIS. STAT. § 55.18(3)(b)3., as well as call his or her 

own witnesses under WIS. STAT. § 55.10(4)(c).

7

 

¶22 As to James’ threshold argument that the County was required to 

present testimony from a medical professional to establish at least some of the 

elements in WIS. STAT. § 55.08(1) for an individual facing continued protective 

placement, he does not cite to any statute or case directly supporting that notion. 

The County argues that there is no authority requiring a medical professional to 

testify in support of an order continuing an individual’s protective placement, and 

we agree. 

¶23 James points to Walworth County v. Therese B., 2003 WI App 223, 

267 Wis. 2d 310, 671 N.W.2d 377, which held that “the government must present 

a witness who is qualified by experience, training and independent knowledge of 

the [individual]’s mental health to give a medical or psychological opinion on 

 

7

 To be sure, over time, evidence is more likely to become stale—including medical 

diagnoses and, perhaps, even findings of permanency—and a placed individual’s conditions or 

needs can change, thereby requiring a petitioner to provide updated and more robust information 

to the circuit court in order to prove that the individual still continues to meet the elements in 

WIS. STAT. § 55.08(1). 
No. 2022AP2035

12

each” element.8Id., ¶13. Therese B., however, concerned an initial protective 

placement that occurred alongside a guardianship. WISCONSIN STAT. ch. 55

governs protective placements, while WIS. STAT. ch. 54 governs guardianships. A 

medical opinion is required for the appointment of a guardian, but there is no such 

corresponding requirement for a continued protective placement order. See WIS.

STAT. § 54.10(2)(b)2; see generally ch. 55. Indeed, nothing in the statutory 

requirements for an annual review under WIS. STAT. § 55.18(1)(a) or a hearing 

under § 55.18(3) even suggests that the reviewer or any testifying witnesses must 

have medical expertise. The legislature could have easily imposed such a 

requirement, but it did not do so. Thus, we are not persuaded that Therese B.

requires a medical professional’s testimony at a continued protective placement 

hearing to prove that an individual continues to meet the elements under WIS.

STAT. § 55.08(1). 

¶24 In sum, neither WIS. STAT. § 55.18 nor controlling case law requires

testimony from a qualified medical professional at each annual due process 

hearing, nor do those authorities limit the circuit court to reviewing and relying 

upon only the testimony and other evidence from that hearing. There is no 

precedent or statutory basis to exclude reports and other documentation that have 

been previously admitted into evidence from the circuit court’s consideration of 

whether the individual continues to meet the elements for a protective placement. 

 

8

 James, in fact, cites Wood County v. James D., No. 2013AP1378, unpublished slip op. 

¶14 (WI App Nov. 7, 2013), a case quoting Walworth County v. Therese B., 2003 WI App 223, 

¶13, 267 Wis. 2d 310, 671 N.W.2d 377, for this premise. However, we do not find this 

unpublished case to be persuasive, we question whether it properly applied Therese B., and we 

determine that it is factually distinct from the case at hand. Therefore, we review only Therese B.

in our analysis. See WIS. STAT. RULE 809.23(3)(b) (this court has no duty to distinguish or 

otherwise discuss unpublished cases). 
No. 2022AP2035

13

As mentioned, this reality is especially true for the statutorily required documents, 

such as the written evaluation by the County under § 55.18(1) and the 

comprehensive evaluation under WIS. STAT. § 55.11(1). Further, we note that, on 

appeal, James does not contest that he is incompetent. He appears to only argue 

that his incompetence does not rise to the level of requiring protective placement. 

¶25 In his reply brief, James discusses two cases in his attempt to further 

argue that a medical professional’s testimony is required to provide sufficient 

evidence for a continued protective placement. Both cases are unpublished, and 

we note that this court has no duty to distinguish or otherwise discuss either case. 

See WIS. STAT. RULE 809.23(3)(b). Regardless, we note that J.C. v. R.S., 

No. 2022AP1215, unpublished slip op. (WI App Feb. 16, 2023), concerned a 

problem with the underlying guardianship, which is not at issue here. As already 

mentioned, James also cites Wood County v. James D., No. 2013AP1378, 

unpublished slip op. (WI App Nov. 7, 2013), which we do not find persuasive. In 

particular, the court there never explained why the requirements in Therese B.—

which, again, concerned an initial protective placement that occurred alongside a 

WIS. STAT. ch. 54 guardianship proceeding—apply to a continued protective 

placement.

¶26 With the foregoing in mind, we note the County’s argument that 

Cummings’ testimony and James’ testimony provided sufficient evidence for the 

circuit court to conclude that James met the elements for protective placement. 

While we agree that there was sufficient evidence in the record for the court to 

conclude that James met those elements, we do not agree that Cummings’

testimony—even coupled with James’ testimony—alone was sufficient.
No. 2022AP2035

14

¶27 The record, however, provides additional evidence of James’

condition to supplement Cummings’ and James’ testimony, thereby allowing the 

circuit court to determine that James satisfied the four required elements in WIS.

STAT. § 55.08(1). The various annual agency reports and the initial required 

comprehensive evaluation collectively contain doctors’ medical opinions and 

support the court’s findings that James satisfied the elements for continued 

protective placement under § 55.08(1). The court was allowed to rely on the 

record and the court’s own previously found adjudicative facts to determine 

whether James’ condition continued to meet those elements. 

¶28 Despite our recognizing the foregoing, the circuit court failed to 

make a record of much of this reliance. We note that we can only infer from the 

court’s findings that it relied on documents in the record—namely Paananen’s 

comprehensive evaluation, the annual reports on James’ condition, and the court’s 

prior finding that James suffers from a degenerative brain disorder—to determine 

that James met the elements for continued protective placement, especially as to 

the permanency of his condition. This omission gives us pause. As already stated, 

a court is allowed to review the documents admitted into evidence and its 

previously established adjudicative facts to establish that an individual has met the 

elements of protective placement. The court should, however, explain on the 

record that it is basing its findings, at least in part, on previously admitted 

documents within the record or prior adjudicative facts, and also explain why and 

how it is doing so. While we note that the court’s findings here were sufficient, 

we urge circuit courts in future cases to make a more complete record of their 

reliance on such documents and prior findings within the record when analyzing 

whether the petitioner has met its burden to show that an individual continues to 

meet the elements for protective placement.
No. 2022AP2035

15

¶29 We now turn specifically to James’ arguments on appeal and the 

relevant record. James first challenges the evidence showing that he has a primary 

need for residential care and custody under WIS. STAT. § 55.08(1)(a). The 

statutory phrase “primary need for residential care and custody” applies to an 

individual who has a primary need: “(1) to have his or her daily needs be provided 

for in a residential setting; and (2) to have someone else exercising control and 

supervision in that residential setting for the purpose of protecting the person from 

abuse, financial exploitation, neglect, and self-neglect.” Jackson Cnty. Dep’t of 

Health & Hum. Servs. v. Susan H., 2010 WI App 82, ¶¶11, 16, 326 Wis. 2d 246, 

785 N.W. 2d 677 (citation omitted).

¶30 James contends that Cummings’ testimony that he needs reminders 

“for various tasks” and her concern about James cooking for himself does not 

mean that he has such needs. James further contends that even if he has dementia,

that fact alone does not establish a primary need for residential care and custody,

and the County did not provide testimony about “what form” of dementia he has 

or “how it impacted his ability to meet his daily needs.” Instead, James points to 

the fact that Cummings testified that she knew James was able to bathe and feed

himself, dress himself and use the bathroom by himself.

¶31 James largely fails to engage with the rest of Cummings’ testimony 

showing that he does have a primary need for residential care and custody. That 

testimony, coupled with the reports admitted into evidence in prior hearings and 

prior judicial findings, support the circuit court’s conclusion that James has a 

primary need for residential care and custody. Cummings testified that James “has 

had increased behavioral disturbances and impulsivity,” multiple “altercations 

with other residents,” multiple eviction notices due to “physical aggression” and 

“destruction of property,” and she had concerns of fire hazards due to him 
No. 2022AP2035

16

probably forgetting to “turn the stove off.” The County’s annual reports stated 

that James had verbal outbursts, a history of falls and an unsteady gait, mood 

swings, suicidal ideations, and that he is unable to use kitchen appliances safely. 

The comprehensive evaluation prepared by Paananen provided evidence of James 

previously falling and hitting his head, mismanagement of financial, dietary and 

medical affairs; and concerns about his isolation. Thus, the record contained 

evidence of James’ need for residential care and custody that went far beyond

concerns about him cooking for himself and needing reminders for various tasks. 

There was no evidence suggesting any of James’ needs had decreased.

¶32 Additionally, and as the County points out, James has “a history of 

physical altercations against vulnerable adults,” shown in part when he admitted to 

hitting another resident. We agree. Both the record and Cummings’ testimony 

show this to be true. The circuit court found Cummings’ testimony credible, and 

its findings of fact as to this element were not clearly erroneous. The County’s 

annual reports noted an increase in aggression and physical altercations with other 

adult residents. James himself admitted that, in response to another resident 

making an obscene gesture at him at his current residence, “I hit—I hit him twice. 

He went down.” We also cannot ignore that James himself established that he has 

no insight into his impairments, insomuch as he testified at the due process hearing

that it was “[f]alse” that he had been diagnosed with dementia, contrary to the 

court’s findings in that regard. This evidence—along with Cummings’ testimony 

and the rest of the documents previously admitted into evidence—was sufficient to 

show that James continues to have a primary need for residential care and custody. 

¶33 James next argues that the County failed to establish that his 

incapacity would result in a substantial risk of harm. See WIS. § 55.08(1)(c). 

Citing K.N.K. v. Buhler, 139 Wis. 2d 190, 202, 407 N.W.2d 281 (Ct. App. 1987), 
No. 2022AP2035

17

James argues that the “harm envisioned may not be based on mere speculation but 

must be directly foreseeable from the overt acts or omissions of the individual.” 

James alleges that the “only evidence suggestive of risk of harm is the fact that 

[James] allegedly got in a fight and that he was being evicted for it.” Recognizing 

that James did concede at the hearing that he hit another resident, James argues 

that even if he did get into a fight, “acting in self-defense doesn’t establish that 

[James’] actions created a substantial risk of harm to himself or others.” 

¶34 James is incorrect that the circuit court’s finding of a substantial risk 

of harm is “based on mere speculation.” Both the established record as well as

Cummings’ and James’ testimony show various ways in which James presents a 

substantial risk of harm to himself and others due to his dementia diagnosis. 

Cummings expressly testified that due to James’ dementia, he would be unable to 

secure housing on his own. She further testified that James was not eating his 

meals, could not cook independently, had poor decision-making capabilities, and 

had issues with physical aggression and getting into altercations with other 

residents. Paananen’s comprehensive evaluation described an incident where 

James fell and hit his head, as well as his mismanagement of medical, dietary and 

financial affairs. The County’s reports from 2021 and 2022 described James’ risk 

of falls, his verbal outbursts, and other increasingly harmful behaviors caused by 

his dementia. Both of the County’s reports also referenced incidents of James 

getting into physical altercations with other residents. 

¶35 All of this evidence from Cummings’ testimony, and the record 

more generally, is not mere speculation but instead provides a factual basis for a 

finding that James presents a substantial risk of harm to himself and others 

because he is incapable of providing for himself and is physically aggressive 

toward others. It is undisputed that James recently fought someone, as James 
No. 2022AP2035

18

conceded during the hearing that he did hit another resident at least “twice.” It is 

largely irrelevant that this conduct was purportedly in “self-defense” because it 

shows that James has had issues with physical aggression that create a substantial 

risk of harm, and the record supports the County’s argument that James has had a 

history of this behavior. The circuit court found Cummings’ testimony credible.

Based on her testimony and the established case record, the court could reasonably 

find that these risks of harm are present because of James’ dementia.

Accordingly, the evidence was sufficient for the court to find that James satisfies

the element in WIS. STAT. § 55.08(1)(c). 

¶36 Relatedly, James argues that “the County presented zero evidence 

from a medical professional regarding the nature of [his] condition and whether it 

was permanent or likely to be permanent.” Citing again to Therese B., James 

argues that the decision to order protective placement is “essentially a medical 

question that turns on the meaning of facts interpreted by expert psychiatrists and 

psychologists.” See Therese B., 267 Wis. 2d 310, ¶16.

¶37 While James is correct that no medical professional testified at the 

latest due process hearing regarding the element of permanency, as previously 

mentioned, such medical testimony was not required. Instead, there is ample 

evidence in the record of the permanency of James’ condition. The two annual 

County reports, the GAL’s reports, and the comprehensive evaluation refer to

doctors’ medical opinions that James’ condition is permanent. In addition, the 

circuit court’s permanency finding in the guardianship order support the court’s 

current finding that James’ condition is permanent. Additionally, as mentioned 

previously, Therese B. concerned both a guardianship and an initial protective 

placement and is therefore materially distinguishable from this case. In fact, in 

context, the quote that James cites states in full, “In a guardianship and protective 
No. 2022AP2035

19

placement proceeding, the finder of fact might make a decision that will result in a 

life sentence to a nursing home. That decision is essentially a medical question 

that turns on the meaning of facts interpreted by expert psychiatrists and 

psychologists.” See id. (emphasis added). The court, in its findings here, was 

allowed to rely on adjudicated facts previously found by it and the reports 

previously admitted into evidence to determine whether James’ condition was 

permanent or was likely to be permanent, and its permanency finding here was not 

clearly erroneous. 

¶38 Finally, to the extent James advances an insufficiency of the 

evidence challenge solely based on Cummings’ purported lack of personal 

knowledge regarding James’ condition or experiences at the facility, we reject it. 

As explained above, the record as a whole before the circuit court shows that when 

the court ruled on the County’s petition for continued protective placement, the 

evidence of record in the case was sufficient for the court to determine that James 

required continued protective placement. There is no basis for us to conclude that 

the court’s credibility finding regarding Cummings’ testimony was clearly 

erroneous—regardless of any perceived lack of personal knowledge—especially 

given the documentary materials in the record. See State v. Sloan, 2007 WI App 

146, ¶21, 303 Wis. 2d 438, 736 N.W.2d 189 (“The [circuit] court is the sole arbiter 

of credibility issues and will be sustained if facts in the record support the court’s 

conclusions.”).

II. Due Process 

¶39 James separately argues that the County’s failure to present 

testimony from a medical professional at the hearing violated his due process 

rights. Specifically, and again citing Therese B., James contends that because no 
No. 2022AP2035

20

medical professional testified, he “was denied his statutory right to cross-examine 

[a medical professional] on the nature of the alleged diagnosis,” including whether 

that diagnosis meant that James “required residential care,” “caused aggressive 

behaviors,” “impacted his ability to perform necessary daily activities,” and 

“whether it was permanent or likely to be permanent.” James argues that 

Cummings was merely a corporate guardian acting as “a conduit for the medical 

opinion of others.” 

¶40 The County responds that because there is no explicit right to an 

examination by a physician or psychologist as part of the annual review under 

WIS. STAT. § 55.18, James was not denied due process. To the extent the County

perceives a categorical rule in this regard, it is slightly incorrect. Namely, 

§ 55.18(3)(b)3. requires that if an individual requests an independent review, it 

shall be granted. James, however, did not request an independent evaluation. 

¶41 James was also entitled to present witnesses at the hearing pursuant 

to WIS. STAT. § 55.10(4)(c). James could have called Dr. Hunt, Paananen or one 

of the social workers who wrote the annual County reports, or other authors of the 

documents in the record. Instead, James chose to leave the evidence in those 

documents virtually unrefuted. James was not denied his statutory right to 

cross-examine any witnesses; further, he chose to not call those witnesses to 

question their opinions and findings—including their continued vitality.

¶42 As to any purported due process violation that occurred due to the 

circuit court hearing only Cummings’ testimony, the County responds that James 

failed to object during the hearing based on either the foundation or hearsay
No. 2022AP2035

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grounds now alleged.

9

 We agree that James failed to object to Cummings’

testimony or her qualifications below and, therefore, has forfeited his argument 

about her acting as “a conduit for the medical opinion of others.” See State v. 

Counihan, 2020 WI 12, ¶25, 390 Wis. 2d 172, 938 N.W.2d 530 (“Forfeiture is the 

failure to make the timely assertion of a right.”). We are especially confident in 

this approach given that similar arguments were raised by James’ counsel at the 

conclusion of the March 2021 due process hearing; yet, a year later, counsel failed 

to object prior to, or during, Cummings’ testimony at issue here. Furthermore, the 

circuit court deemed Cummings’ testimony to be credible, and there is no

evidence to dispute that finding, much less show that it was clearly erroneous. See

Sloan, 303 Wis. 2d 438, ¶21.

¶43 More importantly, and as explained above, there is no requirement in 

the WIS. STAT. ch. 55 statutory scheme that requires the petitioner to have a 

medical professional testify at a full due process hearing for a continued protective 

placement. There is no case law mandating such a requirement. As previously 

explained, James’ only cited authority—Therese B.—concerned an initial

protective placement (and guardianship), which does require the testimony of a 

medical expert. Under the circumstances of this case—namely, a continued

protective placement where James was already subject to a guardianship order and 

the circuit court could rely upon other evidence in the record and its prior 

findings—we conclude that James’ due process rights were not violated. 

 

9

 It was only in James’ closing argument that his trial counsel suggested, in passing, that 

there was a concern as to the foundation for Cummings’ testimony or that her testimony was

hearsay. The circuit court had closed evidence at that point, and any objection raised in those 

regards was untimely. Both below and on appeal, the real challenge derived from any foundation 

concerns is that of the sufficiency of the evidence before the court. 
No. 2022AP2035

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By the Court.—Order affirmed.

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

RULE 809.23(1)(b)4.