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. December 28, 2023 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. 2022AP141 Cir. Ct. No. 2015GN14 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT III IN THE MATTER OF THE GUARDIANSHIP AND PROTECTIVE PLACEMENT OF M. L.: DOUGLAS COUNTY, PETITIONER-RESPONDENT, V. M. L., RESPONDENT-APPELLANT. APPEAL from an order of the circuit court for Douglas County: KELLY J. THIMM, Judge. Affirmed. No. 2022AP141 ¶1 HRUZ, J.^[1] Mason2 appeals an order continuing his protective placement pursuant to WIS. STAT. § 55.18. Mason asserts that the circuit court lost competency over this matter due to Douglas County failing to timely file its petition and report as required by § 55.18(1). Additionally, Mason argues that the County presented insufficient evidence to continue his protective placement by failing to present a witness qualified to opine on the four elements required by WIS. STAT. § 55.08(1). ¶2 We conclude that Mason forfeited his right to object to the timeliness of the annual petition and its impact on the circuit court’s competency. We also conclude that the record contains sufficient evidence demonstrating that Mason continues to meet the requirements for protective placement. Accordingly, we affirm. BACKGROUND ¶3 Since 2013, Mason has been hospitalized in an inpatient setting. In 2015, Mason was adjudicated incompetent, was protectively placed, and was appointed a guardian ad litem pursuant to WIS. STAT. §§ 55.02, 55.08, and 55.10.3 No. 2022AP141

In June 2021, the County filed a petition for Mason’s continued protective placement, which is the petition at issue in this case. A full due process review hearing was held in September 2021. The sole witness at the hearing was Rachael Jacobson, a community support manager employed at the secure care facility where Mason resided. ¶4 Jacobson testified that Mason had been diagnosed with “a serious and persistent mental illness.” She also stated that Mason was diagnosed with polydipsia, a condition where he “[consumes] things that should not be consumed,” including “hygiene supplies,” “cleaning supplies,” “art mediums,” and “drywall.” Further, the polydipsia caused Mason to “consume fluids in excess,” which could adversely affect his health, and necessitated Mason’s mental health facility to set a water restriction for him. Jacobson testified that Mason experienced daily paranoid or delusional thinking. Upon being asked if Mason would be a risk to himself or others if he were allowed into the community, Jacobson responded: I don’t feel that [Mason] would make the best safe choices for himself, due to historical things that he’s done in his past with—pertaining to drug use and things like that. I also do not believe that the community would be safe, due to his historical behavioral challenges where he has aggressed others and caused injury to them. ¶5 The record before the circuit court at the 2021 hearing contained a comprehensive evaluation written by Dr. Elliot Lee. This evaluation was prepared for Mason’s 2020 annual review hearing, during which the court took judicial notice of the evaluation. The evaluation diagnosed Mason with schizoaffective disorder, polydipsia, and an unknown substance-induced mild neurocognitive disorder. The evaluation also noted that Mason’s schizoaffective disorder “is likely to be permanent.” The record before the court at the 2021 hearing also No. 2022AP141

contained annual reports on Mason’s condition from 2016 through 2021. The 2016 report stated that Mason’s mental health had not improved in the last year. The 2017 report stated that Mason’s health had worsened over the year prior. The 2018-2021 reports stated that there were no changes in Mason’s health. ¶6 At the end of the 2021 hearing, the circuit court found that Mason continued to be in need of protective placement, ordered Mason’s protective placement to be continued, and concluded that his current residency was the least restrictive placement available for him. The court stated that Mason “does have a primary need for residential … placement because he can’t care for himself.” The court further explained that Mason “creates a substantial risk of harm to himself and others” and that Mason demonstrates an “inability to control himself.” The court described Mason as being in “a permanent situation as we [have] seen in the past.” ¶7 Mason now appeals. Additional facts will be provided as necessary below. DISCUSSION ¶8 Mason argues that the circuit court lost competency to hear the County’s petition for his continued protective placement due to the County failing to comply with the timing requirement to file a report for annual review pursuant to WIS. STAT. § 55.18(1). Mason further argues that the County presented insufficient evidence to establish that he continues to meet the standards for protective placement.

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I. Circuit Court Competency to Hear Petition for Continued Protective Placement ¶9 Whether the circuit court lost competency due to the timing requirement in WIS. STAT. § 55.18(1) presents an issue of statutory construction, which we review de novo. See State ex rel. Robinson v. Town of Bristol, 2003 WI App 97, ¶12, 264 Wis. 2d 318, 667 N.W.2d 14. Under § 55.18(1), a county must “annually review the status of each individual who has been provided protective placement.” Sec. 55.18(1)(a). The statute sets forth the process that a county must follow to initiate that review: [n]ot later than the first day of the 11th month after the initial order is made for protective placement for an individual and, except as provided in par. (b), annually thereafter, the county department shall do all of the following: 1. File a report of the review with the court that ordered the protective placement…. …. 2. File with the court under subd. ^[1]. a petition for annual review by the court of the protective placement ordered for the individual. ^[3]. Provide the report under subd. ^[1]. to the individual and the guardian of the individual, and to the individual’s agent under an activated power of attorney for health care, if any. Sec. 55.18(1)(a) (emphasis added). ¶10 It is undisputed that the order for Mason’s continued protective placement from the prior year was entered on June 30, 2020. Pursuant to either WIS. STAT. § 55.18(1)(a) or (b), the County was required to file its petition to continue Mason’s protective placement, or initiate a review leading to the same, No. 2022AP141

no later than May 1, 2021.4 The County filed its petition for annual review of Mason’s protective placement on June 17, 2021. Even if we assume, without deciding, that the County failed to comply with the statutory time limit in § 55.18(1)(a), we conclude that Mason forfeited his competency argument by failing to timely object to the circuit court proceeding with the review hearing. See State v. Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612. ¶11 “Whether a party has forfeited its right to raise an issue on appeal is a question of law that we review independently.” Loren Imhoff Homebuilder, Inc. v. Taylor, 2022 WI 12, ¶10, 400 Wis. 2d 611, 970 N.W.2d 831. “Wisconsin courts have ‘continuously emphasized the importance of making proper objections as a prerequisite to assert, as a matter of right, an alleged error on appeal.’” State v. Saunders, 2011 WI App 156, ¶30, 338 Wis. 2d 160, 807 N.W.2d 679 (citation No. 2022AP141

omitted). An objection to the court’s lack of competency can be forfeited if not timely raised in the circuit court. See City of Eau Claire v. Booth, 2016 WI 65, ¶11, 370 Wis. 2d 595, 882 N.W.2d 738; Village of Trempealeau v. Mikrut, 2004 WI 79, ¶30, 273 Wis. 2d 76, 681 N.W.2d 190 (holding that, generally, “challenges to the circuit court’s competency are [forfeited] if not raised in the circuit court”). ¶12 Here, any issue regarding the County’s untimely petition should have been raised prior to, or during, the annual review hearing. Mason acknowledges that he raised no contemporaneous objection to the circuit court’s competency to conduct the review hearing. ¶13 “We will not … blindside [circuit] courts with reversals based on theories which did not originate in their forum.” State v. Rogers, 196 Wis. 2d 817, 827, 539 N.W.2d 897 (Ct. App. 1995). Furthermore, addressing an issue that an appellant has raised for the first time on appeal constitutes a waste of judicial resources, both in the circuit court and on appeal. See Green v. Hahn, 2004 WI App 214, ¶21, 277 Wis. 2d 473, 689 N.W.2d 657. Indeed, by failing to raise his competency argument below, Mason allowed the court to move forward with, and ultimately complete, the due process annual review hearing and rule on the merits of the County’s petition. Accordingly, Mason failed to timely assert his right to object to the circuit court’s competency. See Ndina, 315 Wis. 2d 653 ¶29. ¶14 In reply, Mason cites Green County Department of Human Services v. H.N., 162 Wis. 2d 635, 469 N.W.2d 845 (1991), a case which held that a competency challenge based on noncompliance with statutory time limits cannot be forfeited. See id. at 656-58. We first note that H.N. is materially distinguishable from the case at hand. H.N. dealt with a dispositional order involving two children under WIS. STAT. § 48.435(6). H.N., 162 Wis. 2d at 645.

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H.N.’s dispositional order had expired prior to the extension hearing, and the case concerned the circuit court’s failure to hold a hearing prior to the expiration of the order. Id. at 642-43, 650. Our supreme court explicitly addressed its concern with the court’s failure to follow the statutory time limits, noting that if “the circuit court were allowed to conduct a hearing … the dispositional order would have to be ‘extended’ until the new hearing date,” which was “something the statutes do not permit.” Id. at 650. Thus, the court lacked competency to proceed with the hearing, as the dispositional order had already expired. Id. at 654. Conversely, here the timing issue concerned the County’s failure to timely file an annual petition for an individual whose order had yet to expire. See WIS. STAT. § 55.18(1). ¶15 Further, H.N. does not reflect the most recent Wisconsin jurisprudence on the issue of competency. See State v. Bollig, 222 Wis. 2d 558, 566, 587 N.W.2d 908 (1998) (“[N]oncompliance with a mandatory statute does not always require a loss of competence.”); see also Mikrut, 273 Wis. 2d 76, ¶27 (“[T]he common-law waiver rule applies to challenges to the circuit court’s competency, such that a challenge to the court’s competency will be deemed waived if not raised in the circuit court.”); Booth, 370 Wis. 2d 595, ¶11. Accordingly, we reject Mason’s argument that a competency challenge cannot be forfeited. II. Sufficiency of the Evidence ¶16 Mason also argues that the County failed to prove, by clear and convincing evidence, each of the four elements required for continued protective No. 2022AP141

placement under WIS. STAT. § 55.08(1)(a)-(d).5 Whether the County presented sufficient evidence to support the circuit court’s determination that Mason continues to meet the standards for protective placement presents a mixed question of fact and law. See Walworth County v. Therese B., 2003 WI App 223, ¶21, 267 Wis. 2d 310, 671 N.W.2d 377. The court’s factual findings at the continued protective placement hearing “will not be overturned unless clearly erroneous.” Coston v. Joseph P., 222 Wis. 2d 1, 22, 586 N.W.2d 52 (Ct. App. 1998). “[W]hether the evidence satisfies the legal standard for incompetency and whether the evidence supports protective placement are questions of law, which we review de novo.” Id. at 23. ¶17 For a circuit court to order a continuation of protective placement, it must find, by clear and convincing evidence, that the following elements are present: (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 No. 2022AP141

guardianship has been submitted, or is an adult who has been determined to be incompetent by a … 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. WIS. STAT. § 55.08(1); see WIS. STAT. §§ 55.10(4)(d), 55.18(3)(e). ¶18 A circuit court is required to make one of three conclusions at the end of an annual review hearing. WIS. STAT. § 55.18(3)(e)1.-3. As relevant here, if the court concludes that the individual continues to meet the requirements for protective placement and is located in the least restrictive setting possible, the court shall order the person to continue being protectively placed in the facility in which the individual resides at the time of the hearing.^[6] Sec. 55.18(3)(e)1. ¶19 Here, the circuit court concluded that Mason met the required elements for continued protective placement under WIS. STAT. § 55.18(3)(e)1., including the standards under WIS. STAT. §§ 55.08(1) and 55.12(3)-(5). The court referenced Mason’s past primary need for placement and his prior risk of harm to others, and it implied a finding of permanency. ¶20 We first summarize the evidence before the circuit court at the hearing. The court had access to—and could consider—all reports and documents No. 2022AP141

previously admitted into evidence, as well as all facts that had been adjudicated in prior proceedings. See WIS. STAT. §§ 55.11(1), 55.12(1), 55.18(1), 902.01; see also Douglas County v. J.M., No. 2022AP2035, unpublished slip op. ¶¶20-22 (WI App Nov. 28, 2023).7 These reports and documents include Dr. Lee’s 2020 comprehensive evaluation, which diagnosed Mason with schizoaffective disorder that “is likely to be permanent,” polydipsia, and an unknown substance-induced mild neurocognitive disorder; the 2016-2021 annual reports that stated Mason’s mental health had either not improved or had worsened; and the court’s order for guardianship, wherein it first found Mason incompetent. ¶21 The circuit court also heard testimony from Rachael Jacobson, who testified regarding Mason’s living situation at his secure care facility. Jacobson testified regarding the number of staff members supervising Mason and assisting him with cooking and cleaning. She noted that Mason suffers from polydipsia, experiences daily paranoid or delusional thinking, and has an unspecified diagnosis of a serious and persistent mental illness.^[8] Jacobson also testified that she believed Mason was at risk of harming himself, in that, during his protective placement, he had snorted “drywall” and “art mediums.” Further, Jacobson stated No. 2022AP141 No. 2022AP141 No. 2022AP141