Dunn County v. JUDY K.

2002 WI 87, 647 N.W.2d 799, 254 Wis. 2d 383, 2002 Wisc. LEXIS 486
CourtWisconsin Supreme Court
DecidedJuly 3, 2002
Docket00-3135
StatusPublished
Cited by6 cases

This text of 2002 WI 87 (Dunn County v. JUDY K.) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dunn County v. JUDY K., 2002 WI 87, 647 N.W.2d 799, 254 Wis. 2d 383, 2002 Wisc. LEXIS 486 (Wis. 2002).

Opinions

ANN WALSH BRADLEY, J.

¶ 1. This case is before the court on certification pursuant to Wis. Stat. § (Rule) 809.61 (1999-2000).1 Dunn County appeals from an order requiring the County to take affirmative steps to seek funding to support the cost of Judy K.'s protective placement and to develop community-based placement resources appropriate for Judy K.2 The County asserts that under Wis. Stat. § 55.06(9)(a), it cannot be required to contribute any funds to Judy K.'s placement costs. We disagree and conclude that the County is required to make an affirmative showing of a good faith, reasonable effort to find and fund an appropriate placement in accordance with the factors outlined in § 55.06(9)(a). Because the County failed to make such a showing at the time of the final hearing on placement, we affirm the circuit court's order.

[389]*389I

¶ 2.

Judy K. is a 56-year-old developmental^ disabled woman. While living in a supervised apartment setting through Aurora Residential Alternatives, she began experiencing deterioration in her walking ability. She fell eleven times and sustained a severe head injury as a result of one of her falls. Dunn County filed a petition requesting that she be protectively placed.3

¶ 3. Before the final hearing on the petition could be held, Judy K. was transferred to the Trempealeau County Health Care Center pursuant to an emergency placement order. At the hearing on permanent placement, the parties stipulated to a finding of the need for placement, and the circuit court received evidence in support of the finding. Judy K.'s adversary counsel, her guardian, and her guardian ad litem all indicated that issues remained with respect to whether the Trempea-leau County Health Care Center was the least restrictive environment appropriate for Judy K.

¶ 4. The circuit court found that as of the hearing date, the parties were unaware of appropriate alternatives for placement. Accordingly, the court ordered further assessment of Judy K. and the preparation of placement proposals. The court set a date for a continued hearing approximately two and one-half months later.

¶ 5. At the continued hearing, the County conceded that at least two of the proposed placement options were appropriate for Judy K. and less restrictive. However, its position was that Judy K. should [390]*390remain at the Trempealeau County Health Care Center where there was no additional cost to the County. Judy K.'s guardian ad litem and adversary counsel advocated for a placement proposal that Judy K. reside in a Hudson facility through Community Living Specialists.

¶ 6. The circuit court reserved a final decision, ordered briefing, and conducted an evidentiary hearing approximately one week later. Dennis Ciesielski, the long-term support supervisor with the County's Department of Human Services, testified at the hearing.

¶ 7. Ciesielski explained that Judy K. received funding through the CIP IA program,4 and that when she was in a supervised apartment setting at Aurora, the cost was $125.57 per day, which represented a consolidation of county, state, and federal funds. The $125.57 included $125.00 of federal and state dollars. The remaining $0.57 was comprised of county funds and additional federal funds at a ratio of approximately [391]*39141% to 59%.5 Thus, the County's contribution was approximately $0.24 per day.

¶ 8. In addition, Ciesielski stated that the County was unwilling to place Judy K. in a setting that would cost more than $125.57 per day. He acknowledged that the Hudson facility currently was the only facility that would provide the least restrictive placement for Judy K. The average daily cost for the Hudson facility was $224.22 per resident. When asked if an appropriate placement for $125.57 was viable, Ciesielski responded that he could not say without further study.

¶ 9. The circuit court subsequently ordered that Judy K. be transferred to the Hudson facility. In addition, the court required the County to take affirmative steps to seek additional federal, state, local, or other funding to support the cost of Judy K.’s placement. Finally, the court ordered the County to develop community-based placement resources appropriate for Judy K. and others on a County waiting list.

¶ 10. The County appealed, arguing that Judy K. should have been permanently placed in the Trempea-leau County Health Care Center because no community placements were available within the limits of state and federal funds and county funds required to be appropriated to match state funds. Section 55.06(9)(a) provides in part: "The county may not be required to provide funding, in addition to its funds that are required to be appropriated to match state funds, in order to protectively place an individual." Based on this statutory language, the County asserted that the amount of County funds required under the statute for Judy K.'s placement was zero.

[392]*392¶ 11. The court of appeals certified the County's appeal to this court. It interpreted the circuit court's decision to place three affirmative obligations on the County: (1) to exhaust all potential additional sources of federal funding to support placement in the least restrictive environment; (2) to exhaust all potential sources of increased state funding; and (3) to affirmatively seek to develop additional community-based placements within the constraints of state and federal funding.

¶ 12. In addition, the court of appeals noted that § 55.06(9)(a) recently was amended by 1995 Wis. Act 92 and that "several other appeals had been commenced in [the court of appeals] challenging protective placements on the ground that they exceed the spending limits authorized by 1995 Wis. Act 92." We accepted certification, and the County renews its arguments here.

II

¶ 13. The question we address is whether in a protective placement pursuant to § 55.06(9)(a), a county may be required to make affirmative efforts to find and fund an appropriate placement. This requires the interpretation and application of a statute, a question of law subject to independent appellate review. Waukesha County v. Steven H., 2000 WI 28, ¶ 16, 233 Wis. 2d 344, 607 N.W.2d 607. The legal backdrop for this question is set by a decision of this court and subsequent legislative action.

¶ 14. In D.E.R. v. La Crosse County, 155 Wis. 2d 240, 242, 455 N.W.2d 239 (1990), the court addressed whether the circuit court erred in failing to order placement for two developmentally disabled persons in the least restrictive environment, as required by Wis. [393]*393Stat. § 55.06(9)(a) (1987-88), on the sole ground of lack of funding. The court concluded that the legislature did not intend to limit a county board's duty to fund protective placements under ch. 55 to the funds the county receives in state and federal funding and the funds the county appropriates to match state funds. Id.

¶ 15. In support of its conclusion, the court observed that there was no provision in ch. 55 that required the circuit court to consider the availability and source of funds when placing an individual in the least restrictive environment.

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Dunn County v. JUDY K.
2002 WI 87 (Wisconsin Supreme Court, 2002)

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Bluebook (online)
2002 WI 87, 647 N.W.2d 799, 254 Wis. 2d 383, 2002 Wisc. LEXIS 486, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dunn-county-v-judy-k-wis-2002.