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COURT OF APPEALS
NOTICE
DECISION
DATED AND FILED                                                   This opinion is subject to further editing.   If
published, the official version will appear in
the bound volume of the Official Reports.
January 31, 2012
A party may file with the Supreme Court a
A. John Voelker                                                                                                      petition to review an adverse decision by the
Acting Clerk of Court of Appeals                                                                                     Court of Appeals.   See WIS. STAT. § 808.10
                                                                                                                     and RULE 809.62.
                                                                                                                     Cir. Ct. No.   2011GN7
Appeal No.                                                        2011AP1978
STATE OF WISCONSIN                                                                                                   IN COURT OF APPEALS
DISTRICT III
IN THE MATTER OF THE GUARDIANSHIP AND PROTECTIVE PLACEMENT OF
GREGORY M.:
OUTAGAMIE COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES,
PETITIONER-RESPONDENT,
V.
GREGORY M.,
RESPONDENT-APPELLANT.
APPEAL from an order of the circuit court for Outagamie County:
MITCHELL J. METROPULOS, Judge.   Affirmed.




No.   2011AP1978
¶1                                                                                            MANGERSON, J.1    Gregory  M.  appeals  an  order  for  protective
placement.   He contends the evidence in support of the protective placement order
was insufficient.   We disagree and affirm.
BACKGROUND
¶2                                                                                            In January 2011, Outagamie County petitioned the circuit court for
guardianship of Gregory’s person and estate, as well as protective placement.   At
the  hearing  on  the  petition,  the  County  called  two  witnesses:    Dr.  Thomas
Altepeter, a clinical psychologist, and Steve Schotten, a clinical therapist.
¶3                                                                                            Altepeter testified he administered cognitive tests to Gregory and
each test placed him at a range consistent with mild to moderate dementia.   On one
test of mathematical skills, Gregory, who at the time was fifty-one years old,
scored at the level of a seven and one-half year old.    Altepeter explained that
Gregory’s dementia was a permanent condition caused by his chronic substance
abuse and prior head injuries.   Gregory’s head injuries had occurred within the last
two to three years.   Specifically, Gregory fell down a flight of stairs and, while
riding his bicycle, was struck on two separate occasions by a vehicle.    Each
incident involved  alcohol.    His  most recent  injury caused brain  bleeding  and
resulted in a two-week hospital stay.   Although Altepeter conceded he did not
know when Gregory last consumed alcohol or drugs, Altepeter explained Gregory
“has a long history of alcohol and drug dependence” and “if he’s not using at this
point, it’s probably got more to do with the controlled environment he’s in.”
1   This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2).  All references
to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
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No.   2011AP1978
¶4                                                                                       Altepeter opined that Gregory was incompetent and in need of both a
guardian of his person and estate.   As to protective placement, Altepeter opined
that  Gregory  was  not  capable  of  adequately  providing  for  his  own  care  and
custody, and has a primary need for residential care and custody in a supervised
setting.    When  asked  what  type  of  setting  would  be  appropriate  to  maintain
Gregory’s  safety,  Altepeter  responded  that  Gregory  needed                          “a  structured
environment  that  would                                                                 …  provide  him  with  regular  food                                  …  care  and
supervision.”    He explained that Gregory needed twenty-four-hour supervision
because of his dementia and cognitive limitations as well as his substance abuse.
Altepeter elaborated:
[Gregory   is]   not   able   to   handle   problem-solv[ing]
situations.   He might be able to handle some of the routine
daily things of life, but handling emergencies or situations
that might come up if he were independent, he would be at
risk to either be taken advantage of or perhaps not exercise
resources that are available to him.
He recommended placement at a community based residential facility or group
home.
¶5                                                                                       Schotten testified the County became involved with Gregory, who is
homeless, after the warming shelter reported concerns with Gregory’s functioning.
Specifically, the shelter reported Gregory was calling with questions ten to twelve
times a day.   Schotten explained the emergency shelter had rented Gregory a motel
room; however, the motel wanted Gregory to leave after he “started [a fire] in his
microwave drying tobacco.”
¶6                                                                                       Schotten opined that, although Gregory is independent with most
daily  living  activities—he  can  eat,  walk,  bathe,  dress  himself,  and  use  the
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No.   2011AP1978
telephone  unassisted—protective  placement  was  necessary  due  to  deficits  in
Gregory’s short-term memory.   Schotten explained:
[F]rom my contact with [Gregory], again, I’d see a deficit
in more the short-term memory just from day to day.   I’ve
had to repeat certain stories and the reason for actually
guardianship and protective placement.   Those concern me
just,  again,  because  of,  you  know,  again,  his  own
apartment,  emergencies  coming  up,  leaving,  you  know.
Things  on  that  type  of  thing  would  be  …  obviously  a
dangerous situation for him.
¶7    When  asked  on cross-examination for  an example  of  a  situation
where  Gregory  had  placed  himself  in  danger,  Schotten  gave  the  example  of
Gregory’s  microwave  fire.    He  conceded,  however,  that  he  lacked  personal
knowledge of the fire.   Schotten later testified that Gregory’s head injuries, which
were caused by Gregory’s  “judgments” were other examples of his dangerous
behavior.
¶8                                                                                       Gregory’s  guardian  ad  litem  recommended  the  court  order  a
guardian  of  the  person  and  estate,  but  order  protective  services  instead  of
protective placement.   Specifically, the GAL argued the County had not shown
that, without the protective placement, Gregory “would suffer irreparable harm,
injury, or possibly even death.”   She stated that Gregory “is very high functioning
in his activities of daily living and that with a guardian being appointed for the
person and the estate, I believe that he will be able to function and be able to live
independently and with some protective services.”
¶9                                                                                       The court determined Gregory was incompetent and in need of a
guardian of his person and estate.   As for placement, the court determined:
In this case what the Court sees is a dangerousness that has
been documented over the last few months, last couple of
years.   We have an individual that’s a chronic alcoholic and
drug  abuser  who’s  homeless,  who  does  not  have  the
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No.   2011AP1978
cognitive  ability  to  really  care  for  himself  in  any
meaningful way other than the bare minimums of life.   If
…  this  Court  was  just  to  say  there’s  been  no  recent
showing of dangerousness to the level of permanent injury,
irreparable  harm  or  death,  it’s  likely that  history would
repeat itself and [Gregory] will find himself intoxicated or
drugged up and will risk being injured again like he has in
the  past.  The  doctor  indicated  that  if  there  are  further
instances of alcohol and drug use, that will cause further
damage  to  his  cognitive  functioning.    If  there  are  head
injuries  that  are  sustained,  there’ll  be  further  cognitive
functioning delays, an increase of dementia.    And given
[Gregory’s]  history,  it  is  likely  that  he  will  become  a
danger to himself again.   The only reason he hasn’t become
a significant danger to himself recently is it appears that
he’s  been  in  controlled  settings,  emergency  shelter,
warming shelter, and they require sobriety.   If we do not
keep [Gregory] in a situation where he is supervised, he’s
likely to relapse and continue to drink. …
I would find that based on his history of drug and alcohol
abuse and his injuries related to that abuse and the relative
recent past that he is at this time a danger to himself and he
is in need of protective placement.
DISCUSSION
¶10                                                                                     On appeal, Gregory contests only the order for protective placement.
He asserts the County failed to offer sufficient evidence to meet its burden of
proving  he  needed  to  be  protectively  placed.    Before  an  individual  may  be
protectively placed, the County must prove, by clear and convincing evidence, all
of the following:
(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
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No.   2011AP1978
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.
See WIS. STAT. §§   55.08(1)(a)-(d), 55.10(4)(d).
¶11    Gregory concedes he is incompetent and his dementia is a permanent
condition.   He asserts, however, the County failed to prove he has a primary need
for residential care and custody, or that he poses a substantial risk of serious harm
to himself under the dangerousness standard.
¶12    When we review a protective placement order, the circuit court’s
factual findings will not be overturned unless they are clearly erroneous.   See WIS.
STAT. § 805.17(2).   However, whether the evidence supports protective placement
is a question of law that we review independently.   Walworth Cnty. v. Therese B.,
2003 WI App 223, ¶6, 267 Wis. 2d 310, 671 N.W.2d 377.
I.  Residential Care and Custody
¶13    Gregory first asserts the County failed to prove he has a “primary
need for residential care and custody.”   See WIS. STAT. § 55.08(1)(a).   We have
interpreted that phrase to mean an individual has a primary need:                        “(1) to have his
or her daily needs 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. DHHS v. Susan H., 2010 WI App 82, ¶16, 326 Wis. 2d 246, 785
N.W.2d 677.
¶14    Gregory argues the evidence does not support a determination that
he has a primary need for residential care and custody because, unlike the ward in
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No.   2011AP1978
Susan H., who “require[d] assistance with all her activities of daily living,” see
id.,                                                                                    ¶¶4,  6, Gregory is ambulatory and able to perform most activities of daily
living with little or no assistance.   He also asserts that the evidence shows he is
able to provide for his daily needs by relying, in part, on services available to the
homeless.
¶15    While we agree the evidence shows Gregory is able to perform most
daily living activities with little or no assistance, Susan H. does not stand for the
proposition that an individual needs to be completely dependent on others for all
aspects of daily living in order for the individual to be protectively placed.   See,
e.g., Milwaukee Cnty. Prot. Servs. Mgmt. Team v. K.S., 137 Wis. 2d 570, 576,
405 N.W.2d 78 (1987) (“Protective placement may result from a mere inability to
live independently in the community.”).
¶16    Here,  Altepeter  specifically  opined  that,  in  his  expert  opinion,
Gregory has a primary need for residential care and custody.   Altepeter explained
that he was concerned with Gregory’s memory deficits and cognitive limitations.
To maintain Gregory’s safety, Altepeter opined Gregory needed twenty-four-hour
supervision in a facility that provides him with food and care, and would monitor
his  substance  abuse.                                                                  Altepeter  expressed  concern  that  if  Gregory  lived
independently, he would be unable to handle emergency situations and risked
being exploited.   The evidence supports the court’s determination that Gregory has
a primary need for residential care and custody.
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No.   2011AP1978
II.  Substantial Risk of Serious Harm
¶17    Gregory  next  asserts  the  County failed  to  prove  Gregory  “is  so
totally incapable  of  providing for  his  …  own care  or  custody as to create  a
substantial risk of serious harm to himself ....”   See WIS. STAT. § 55.08(1)(c).   He
argues that Altepeter failed to specifically opine Gregory was “so totally incapable
of providing for his own care or custody as to create a substantial risk of serious
harm  to  himself.”     See  Therese  B.,                                                     267  Wis.   2d   310,   ¶13   (medical  or
psychological opinion needed on each element).   He also contends that Altepeter
lacked current information about whether Gregory was using alcohol or drugs and
there was no evidence that Gregory’s microwave fire posed a danger to anyone.
¶18    We  conclude  that,  although  Altepeter  never  explicitly  opined
Gregory “was so totally incapable of providing for his own care or custody as to
create a substantial risk of serious harm to himself,” his testimony nevertheless
supports  that  determination.    Specifically,  Altepeter  testified  that  to  maintain
Gregory’s safety he needed to be under twenty-four-hour supervision.   Altepeter
explained Gregory was not capable of adequately providing for his own care and
custody because of his substance abuse, cognitive limitations, memory deficits,
and lack of problem-solving skills.   Gregory has suffered three significant head
injuries  in  the  past  two  to  three  years,  and  the  resulting  trauma,  as  well  as
substance  abuse,  caused  his  current  dementia.    On  appeal,  Gregory concedes
“there [is] no dispute … his accidents related to the use of alcohol.”   Altepeter
expressed concern that because of Gregory’s “substantial history of alcohol and
drug abuse and probably dependence,” there was a “risk [he] would … try to seek
those substances.”   He warned that further substance abuse or head trauma would
worsen Gregory’s dementia.
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No.   2011AP1978
¶19    The record adequately supports the conclusion that Gregory is so
totally incapable of providing for his own care or custody as to create a substantial
risk  of  serious  harm  to  himself.    Although  Altepeter  did  not  know  whether
Gregory was using alcohol or drugs at the time he was detained, “the [protective
placement] statute does not require that dangerousness be proven by recent acts or
omissions.”   See K.N.K. v. Buhler, 139 Wis. 2d 190, 203, 407 N.W.2d 281 (Ct.
App. 1987).   We agree with the circuit court that “his history of drug and alcohol
abuse and his injuries related to that abuse and the relative recent past [show] that
he is at this time a danger to himself.”
By the Court.—Order affirmed.
                                                                                        This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                                                                               (b)4.
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