Ozaukee County v. J. J. W.
CourtCourt of Appeals of Wisconsin
Date FiledNovember 11, 2026
Docket2026AP000928
StatusUnpublished
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Full Opinion
COURT OF APPEALS
DECISION NOTICE
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.
November 11, 2026
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2026AP928 Cir. Ct. No. 2020GN25
STATE OF WISCONSIN IN COURT OF APPEALS
IN THE MATTER OF THE PROTECTIVE PLACEMENT OF J.J.W.:
OZAUKEE COUNTY,
PETITIONER-RESPONDENT,
V.
J.J.W.,
RESPONDENT-APPELLANT.
APPEAL from an order of the circuit court for Ozaukee County:
SANDY A. WILLIAMS, Judge. Affirmed.
¶1 GROGAN, J.1 J.J.W. appeals from a WIS. STAT. ch. 55 order
continuing his protective placement. J.J.W. contends Ozaukee County did not
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(d) (2023-24).
All references to the Wisconsin Statutes are to the 2023-24 version.
No. 2026AP928
present sufficient evidence to support the order for continued protective placement
because it failed to call a medical or psychological expert to testify at the
January 5, 2026 hearing. Because the evidence is sufficient to uphold the circuit
court’s order, this court affirms.
BACKGROUND
¶2 In May 2020, following WIS. STAT. ch. 51 commitments, the County
filed petitions requesting that J.J.W. be placed under permanent guardianship and
protective placement. Dr. Michael Kula, a psychologist, evaluated J.J.W. and
submitted a report to the circuit court recommending it grant both petitions.
J.J.W.’s court-appointed guardian ad litem (GAL) also filed a report indicating
that J.J.W. needed the guardianship and protective placement. J.J.W. then asked
the court to order an independent medical examination (IME), which it granted.
Dr. Michelle Andrade conducted the IME and submitted a report to the court
recommending protective placement. The Ozaukee County Department of Human
Services (DHS) filed a report with the court recommending that it appoint a
guardian for J.J.W. and order protective placement. After a July 2020 hearing on
the petitions, the court granted both, finding that J.J.W. needed a guardian and
protective placement. He has continued under the guardianship and protective
placements with annual reviews.
¶3 In August 2025, the County filed its annual petition for review of
J.J.W.’s protective placement. The Ozaukee County DHS also filed its annual
report with the circuit court, indicating J.J.W.’s continued need for protective
placement. The report identifies his diagnosis as schizoaffective disorder, bipolar
type, as well as other conditions not relevant here. It stated: J.J.W. “reports
hearing voices constantly and experiencing delusions[,]” and recommended that
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J.J.W.’s protective placement be continued. J.J.W.’s GAL filed a report indicating
that he continues to meet the standards for protective placement and recommended
that protective placement be continued. However, the GAL advised that J.J.W.
objected to continuing the protective placement and requested adversary counsel.
¶4 Once adversary counsel was appointed, J.J.W. requested an IME,
which the circuit court ordered. Dr. Jeffrey Marcus conducted the IME, after
which, J.J.W.’s counsel informed the court that Dr. Marcus’s report would not be
filed with the court, and Dr. Marcus would not be called to testify at J.J.W.’s due
process hearing. The court held a due process hearing for continued protective
placement on January 5, 2026, at which two witnesses testified: the program
administrator at J.J.W.’s living facility and an adult protective services
investigator with the County.
¶5 The program administrator testified first. She testified J.J.W. needed
cues when doing certain activities, such as taking showers, washing his hands
before prepping food, forgetting and leaving the stove or oven on when cooking
food, and doing laundry. She also testified that she had safety concerns with
J.J.W. not using the exhaust fan, not watching the road when crossing, and picking
used cigarettes out of ashtrays to reuse them or putting the half-lit cigarettes into
containers creating a fire risk. She testified J.J.W. took medication to treat
schizophrenia to combat “[h]is voices[,]” and even with his medications, that “he
still ha[d] voices so it’s hard to say if his voices [are] more under control [and]
how much he could take care of himself or not.” She agreed that J.J.W.
“acknowledges that he has schizophrenia[.]” She concluded her testimony by
stating she believed J.J.W. would benefit from going to “a smaller facility with
more oversight because with only having one staff on, I don’t believe we can
always meet his needs.”
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¶6 Next, the County’s adult protective services investigator testified.
She testified to working with J.J.W. for three years, indicating she was familiar
with his case history. She agreed that J.J.W. generally “doesn’t really recognize
the dangers around him or gets too distracted to address those dangers.” In
response to being asked whether she believed J.J.W. “has improved to the point
that he could go and live on his own again[,]” she said “I do not.” Agreeing with
the general sentiment of the program administrator’s testimony regarding J.J.W.’s
ability to stay focused and pay attention, she stated:
[H]e can’t stay focused to complete many of [the] tasks
which would lead for concern about his independence in
the community. And even when I have gone to meet with
him in the home, in our discussions, I’ve noted that
preoccupation in his ability to respond appropriately to
questions, questions that I’ve asked he doesn’t respond to at
all and I have to ask again because he does not appear to be
hearing what I’m saying.
¶7 The circuit court found that J.J.W. had “a persistent mental illness
and in part because of that he’s unable to recognize the danger he puts himself or
others in, or the fact that he creates a dangerous situation.” The court found J.J.W.
“pose[d] a danger to himself or others … beyond a reasonable doubt,” and
evidenced this finding through the testimony:
• about the infections he gets from his improper hygiene, which
could kill him;
• that he gets distracted either by the voices in his head or when
baking, which could cause a fire;
• that he could set the fire alarm off by turning off the exhaust
fan, which could endanger people or allow others to get hurt;
and
• that he does not watch for oncoming traffic before crossing
the street.
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No. 2026AP928
The court concluded by stating, “he may be capable of completing a task, but the
problem is his mental illness,” and that it “would be doing a disservice if [the
court] terminated the protective placement and allowed [instead only] protective
services because that’s not enough to make sure that [J.J.W.] would be safe.” The
court found that the County had satisfied its burden for continued protective
placement for J.J.W.
¶8 The circuit court then entered a written order finding that “[a]fter
consideration of the reports and other documents on file, all factors required by the
statutes, and such additional information presented[,]” J.J.W. had a serious and
persistent mental illness and other like incapacities that made him “so totally
incapable of providing for the ward’s own care or custody as to create a substantial
risk of serious harm to the ward or others.” J.J.W. appeals this order.
DISCUSSION
¶9 “Appellate review of the sufficiency of the evidence to support a
protective placement order presents a mixed question of fact and law.” Racine
County v. R.P.L., 2026 WI 26, ¶15, 421 Wis. 2d 224, 37 N.W.3d 545. “Appellate
courts uphold a circuit court’s factual findings unless they are clearly erroneous,
and we review de novo the sufficiency of the evidence to meet the requirements
for continued protective placement.” Id.
¶10 This case involves the extension of a protective placement order.
“‘[C]ivil commitment for any purpose constitutes a significant deprivation of
liberty that requires due process protection.’” Langlade County v. D.J.W., 2020
WI 41, ¶42, 391 Wis. 2d 231, 942 N.W.2d 277 (quoting Addington v. Texas, 441
U.S. 418, 425 (1979)). “Freedom from physical restraint is a fundamental right
that ‘has always been at the core of the liberty protected by the Due Process
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Clause from arbitrary governmental action.’” State v. Post, 197 Wis. 2d 279, 302,
541 N.W.2d 115 (1995) (quoting Foucha v. Louisiana, 504 U.S. 71, 80 (1992)).
Accordingly, J.J.W. “has a huge liberty interest at stake because ‘[p]rotective
placements ... are the only involuntary commitments under Wisconsin law that are
indefinite in duration and thereby are tantamount to a life sentence to a nursing
home or other custodial setting.’” Walworth County v. Therese B., 2003 WI App
223, ¶12, 267 Wis. 2d 310, 671 N.W.2d 377 (alteration in original; citation
omitted).
¶11 The legislature expressed the importance of protecting one’s liberty
and due process when it enacted the protective placement statute. See WIS. STAT.
§ 55.001 (“This chapter is designed … to place the least possible restriction on
personal liberty and exercise of constitutional rights consistent with due
process[.]”). A circuit court may order an individual into protective placement
only when the following standards are met:
(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 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.
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WIS. STAT. § 55.08(1)(a)-(d). The court must find the County proved each of
these standards “by clear and convincing evidence[.]” WIS. STAT. § 55.10(4)(d).
If all four standards are met, then the protective placement “shall be provided in
the least restrictive environment and in the least restrictive manner consistent with
the needs of the individual to be protected[.]” WIS. STAT. § 55.12(3).
¶12 The sole issue presented here is whether the protective placement
order was supported by sufficient evidence. J.J.W. does not contest WIS. STAT.
§ 55.08(1)(a) or (b), and, therefore, this court need not analyze whether sufficient
evidence supports those factors. Rather, J.J.W. contends the County failed to
establish that § 55.08(1)(c) and (d) were proven because the County did not
present the opinion of a medical doctor or psychologist. J.J.W. says Therese B.
requires such testimony in order to satisfy the requisites for protective placement.
The County responds that it was not required to present “expert medical
testimony” in an annual protective placement review. It says Therese B. requires
expert testimony only “for the appointment of a guardian” and that “no such
corresponding requirement” is needed for “a continued protective placement
order.” It says that the evidence presented at the hearing, together with the prior
reports in the Record, “was sufficient to continue the protective placement.” This
court agrees with the County.
¶13 Therese B. does not stand for the unequivocal proposition that
medical expert testimony is required to satisfy the requisites of continuing a
protective placement during an annual review. Although J.J.W. is correct that
Therese B., 267 Wis. 2d 310, ¶13, held that “the government must present a
witness who is qualified by experience, training and independent knowledge of
[the protectee’s] mental health to give a medical or psychological opinion on each
of these elements,” Therese B. did not involve a continuing protective placement
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No. 2026AP928
during an annual review. Rather, it dealt with both an initial protective placement
and a guardianship proceeding. Id., ¶¶2-3. Here, J.J.W.’s guardianship has been
in place since 2020, and he has undergone annual protective placement reviews
ever since. This appeal involves only the review of a protective placement order.
He does not challenge his guardianship.
¶14 The court of appeals has repeatedly rejected J.J.W.’s argument that
Therese B. requires medical expert testimony for ch. 55 continuing protective
placement orders. See Douglas County v. J.M., No. 2022AP2035, unpublished
slip op., ¶23 (WI App Nov. 28, 2023) (“A medical opinion is required for the
appointment of a guardian, but there is no such corresponding requirement for a
continued protective placement order.” (alteration in original)); see also Douglas
County v. M.L., No. 2022AP141, unpublished slip op., ¶16 n.5 (WI App
Dec. 28, 2023) (“Therese B. is distinguishable because it concerned a
guardianship proceeding in tandem with an initial protective placement[.]”); see
also Price County v. C.W., No. 2023AP18-FT, unpublished slip. op., ¶20 (WI App
Sept. 6, 2023) (“[A] medical opinion is required for the appointment of a guardian,
see WIS. STAT. § 54.10(2)(b)2., but there is no such corresponding statutory
requirement for a protective placement order.”). J.J.W. has failed to present this
court with any reason to rule differently than the aforementioned cases.
¶15 Having concluded that Therese B. does not control, however, does
not resolve the issue presented in this appeal. This court still needs to analyze
whether the County presented sufficient evidence for the circuit court to continue
J.J.W.’s protective placement order. As noted, the County presented two
witnesses to testify at J.J.W.’s due process hearing—the program administrator
and the County’s adult protective services investigator. The County contended
that through these witnesses, the statutory requirements to continue protective
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placement were satisfied. It pointed out that the circuit court found the County
had shown “close to beyond a reasonable doubt” that J.J.W. posed a “danger to
himself or others[.]” The court’s finding was based on the testimony from the
hearing, reasoning that infections from his “improper hygiene” could kill him;
how he gets distracted, either from the voices or when using the oven or stove, and
how this could lead to a fire; how the “chaos [that] can occur” from alarms going
off could endanger others and cause damage; and how he does not watch for
oncoming traffic when crossing the street. In its written order—which notes that
in addition to the testimony from the hearing, the court considered “the reports and
other documents on file”—it found that J.J.W. continued to meet the standards for
protective placement because he: (1) had “a primary need for residential care and
custody”; (2) had a “serious and persistent mental illness” and “other like
incapacities”; (3) was “so totally incapable of providing for the ward’s own care or
custody as to create a substantial risk of serious harm to the ward or others”; and
(4) the “disability [was] permanent or likely to be permanent.”
¶16 After reviewing the Record, this court concludes the evidence was
sufficient to satisfy WIS. STAT. § 55.08(1)(c) and (d).2 The program administrator
testified that J.J.W. took medication to treat schizophrenia to combat “[h]is
voices.” She also testified that J.J.W. “acknowledges that he has schizophrenia[.]”
The administrator testified J.J.W. needed cues when doing certain activities, such
as properly taking showers to prevent infection, washing his hands before
preparing food, forgetting and leaving the stove or oven on when cooking food,
not leaving the building when smoke alarms go off, causing the fire alarm to go
2
Again, J.J.W. does not challenge WIS. STAT. § 55.08(1)(a) or (b), likely because the
Record conclusively shows these elements are satisfied as well.
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No. 2026AP928
off, and putting half-lit cigarettes into the cigarette butt bin. The circuit court
found that this led to fire hazards, risk of death, and risk of harm to others.
¶17 The circuit court also heard testimony from the County adult
protective services investigator who testified that J.J.W. “doesn’t really recognize
the dangers around him or gets too distracted to address those dangers.” In
addition, the court indicated it reviewed all the reports and documents in the
Record. Although the court did not identify a specific report, the Record contains
many—including the physician and psychologists reports from 2020, and the
County’s and GAL’s annual reports which contain a multitude of facts to satisfy
the requisites of WIS. STAT. § 55.08(1)(c) and (d). Thus, there is more than
sufficient evidence to support the court’s determinations that, as a result of his
serious and persistent mental illness, J.J.W. is so incapable of providing for his
own care that it creates a substantial risk of serious harm not only to himself, but
to those around him.
¶18 There is also sufficient evidence and reports in the Record to
establish J.J.W.’s condition, schizophrenia, was “likely to be permanent.” There is
certainly nothing in the Record to demonstrate that J.J.W.’s schizophrenia is no
longer present or that the diagnosis and opinions from the earlier reports are no
longer accurate. J.J.W. himself acknowledged having schizophrenia. J.J.W. takes
medication to treat that condition, and despite the treatment, he is still hearing
voices and having delusions.
¶19 Accordingly, J.J.W. has failed to convince this court that the circuit
court erred.
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By the Court.—Order affirmed.
This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.
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