Trempealeau County Department of Social Services v. C. J.

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.
October 11, 2022
A party may file with the Supreme Court a
Sheila T. Reiff 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. 2022AP286 Cir. Ct. No. 2021ME7

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

IN THE MATTER OF THE MENTAL COMMITMENT OF C. J.:

TREMPEALEAU COUNTY DEPARTMENT OF SOCIAL SERVICES,

PETITIONER-RESPONDENT,

V.

C. J.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Trempealeau County:
RIAN RADTKE, Judge. Reversed.

¶1 STARK, P.J.1 Carter2 appeals an order extending his involuntary
commitment under WIS. STAT. § 51.20. Carter argues that the circuit court failed

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2019-20). All
references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2022AP286

to find that he was dangerous under any of the specific dangerousness standards
set forth in § 51.20(1)(a)2. as required by Langlade County v. D.J.W., 2020 WI
41, 391 Wis. 2d 231, 942 N.W.2d 277. Carter further argues that the Trempealeau
County Department of Social Services failed to prove by clear and convincing
evidence that he met the required elements for recommitment. We agree that the
court violated D.J.W.’s mandate by failing to find that Carter was dangerous under
any of the statutory standards. We therefore reverse the recommitment order.

BACKGROUND

¶2 In March 2021, Carter was detained by law enforcement after
officers performed a welfare check on Carter and his girlfriend. Carter’s girlfriend
informed officers that Carter had threatened to kill himself and her, was purposely
driving recklessly, and had threatened to drive to Washington, D.C., to kill
President Biden and Vice President Harris. After he was brought to a hospital,
Carter demonstrated further signs of psychosis. The Department shortly after filed
a WIS. STAT. ch. 51 involuntary commitment petition. The circuit court held a
hearing on the Department’s petition, and ordered Carter involuntarily committed
for six months.

¶3 Prior to the expiration of the initial commitment, the Department
petitioned to extend Carter’s commitment for an additional twelve months. In
support of the petition, the Department filed a report from a psychiatrist,
Dr. J. Scott Persing. In preparation of the report, Persing reviewed Carter’s
records and interviewed Carter. In the report, Persing describes Carter’s past

2
For ease of reading, we refer to the appellant in this confidential appeal using a
pseudonym, rather than his initials.

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behavior that led to his original commitment and he explains that, at the time of
Carter’s initial hospital admission, Carter was in a “psychotic” state and
“displayed disorganized thinking.” Persing notes that, since his discharge from
the hospital and transfer to a group home, Carter had “not required assistance with
urgent appointments, crisis services, or [had a] repeat psychiatric hospitalization.”
Persing further notes that Carter was administering his own medication voluntarily
under supervision.

¶4 During Persing’s interview with Carter, Carter stated that he “has no
issues with schizophrenia symptoms, specifically, delusions or hallucinations” and
has “no interest in harming himself [or] anyone else.” Additionally, Persing
reports that Carter “denies any suicidal or homicidal thoughts.” However, Persing
then notes that “[r]ecords from informal communication … indicate that [Carter]
continues to have ongoing psychotic symptoms.” These records describe Carter’s
symptoms as “talking about the radio telling him good and bad things about his
girlfriend” and as Carter having “delusions about doing illicit work for the
government.”

¶5 Persing’s report was received into evidence during the subsequent
recommitment hearing. During the hearing, Persing testified that Carter is
currently diagnosed with paranoid schizophrenia. He stated that “[t]o the best of
my knowledge, [Carter’s] been fully compliant” with the treatment program.
Persing also testified that Carter “has not caused significant problems at his
current placement in the group home” which is evidence of improvement from
before Carter was committed. During the interview, Carter told Persing that he
was taking his medication. Nevertheless, Persing stated he did not believe that
Carter “exhibits insight into the advantages and disadvantages and his need for
medication.” Persing testified that despite Carter’s self-reporting that he had no

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current issues “with schizophrenia symptoms, specifically delusions or
hallucinations,” Carter was still “experiencing symptoms.” Persing also testified
that Carter does not feel “there’s any need for treatment, that it was a situational
episode.”3

¶6 Persing opined that Carter would be a proper subject for
commitment if treatment were withdrawn. Persing explained that “at this point
[Carter is] not fully in remission in my opinion with regard to control of his
symptoms” and that the symptoms would return if treatment were withdrawn.
Persing further stated that the “fact that [Carter’s] not had his symptoms treated to
baseline, that he is having these auditory hallucinations, as well, … makes me
quite concerned that he could act out some of what’s in his head about that.” On
cross-examination, Persing acknowledged that he had not personally observed any
symptoms of delusion or psychosis while working with Carter, but the symptoms
were “reported to me by an unbiased source regarding these occurring and being
forwarded out of concern that the patient would not volunteer the information
himself.” Persing did not further elaborate as to the identity of this source.

¶7 Carter also testified at the recommitment hearing. He stated that he
understood he is diagnosed with paranoid schizophrenia, but that his “symptoms
have alleviated.” Describing his past symptoms, Carter stated he was “not only

3
The Department’s briefing fails, at various points, to cite to the record and cites solely
to the appendix or lacks any citation at all. On appeal, a party must include appropriate factual
references to the record in its briefing. WIS. STAT. RULE 809.19(1)(d)-(e). The appendix is not
the record. See United Rentals, Inc. v. City of Madison, 2007 WI App 131, ¶1 n.2, 302 Wis. 2d
245, 733 N.W.2d 322. This court has no obligation to scour the record to review arguments
unaccompanied by adequate record citation. Roy v. St. Lukes Med. Ctr., 2007 WI App 218, ¶10
n.1, 305 Wis. 2d 658, 741 N.W.2d 256. We admonish counsel that future violations of the Rules
of Appellate Procedure may result in sanctions. See WIS. STAT. RULE 809.83(2).

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hearing voices but … was completely delusional at that time.” Carter stated that
the last time he experienced similar symptoms was six months ago. When asked
about the specific events leading to his commitment, Carter described them as
“uncalled[]for” and “not right.” Carter explained that he was hesitant to speak
with Persing about the events leading to his commitment and his past symptoms
because he was afraid that what he told Persing would be presented as something
Carter was currently feeling and would be used against him. If he were to be
released, Carter stated he has “stable living” and he is “hoping to get [his] career
back” and go back to being a father to his children.

¶8 Carter testified about his medication, stating that he currently takes
prescribed risperidone twice a day. Carter explained that throughout his
commitment he voluntarily administered the medication to himself, and that he
would request the medication from staff in the morning and at night. He testified
that he started his current medication “about five months ago,” that “[t]he
medication entirely alleviates those symptoms that [he] was previously having,”
and that if “it wasn’t for [his] past [he] would have no idea how much this
medication is actually helping.” Carter reported “no negative side effects from
this medication” but stated that “the prior medication, Haldol, … did have side
effects.” Carter testified that he plans “on continuing to take this medication even
after commitment ends,” and he would “continue going to the pharmacy to pick up
this medication because this medication is working.” Carter stated that “The best
way I can explain it is I don’t feel it.” He acknowledged that he was one-hundred
percent certain he had a problem and that the problem is offset by medication.

¶9 Based upon Persing’s report and testimony, the circuit court found
that Carter suffers from paranoid schizophrenia, which is a treatable mental
illness. The court noted there had been no new crisis during the prior commitment

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and that Persing testified that Carter had shown improvement. Nevertheless, the
court found that there was a substantial likelihood that Carter would be a proper
subject for commitment if treatment were withdrawn. Specifically relying on
Persing’s “collateral information” that Carter continued to have delusional beliefs
and auditory hallucinations, the court expressed concern that if treatment were
withdrawn, Carter could act out the original auditory hallucinations that led him to
be initially committed, making him a danger to himself or others. The court also
found Carter competent to refuse medication. The court recommitted Carter for
one year and he now appeals.

DISCUSSION

¶10 Carter argues that this court must reverse the recommitment order
based on the circuit court’s failure to identify the specific subdivision paragraph of
WIS. STAT. § 51.20(1)(a)2. under which the court found him to be dangerous. He
further asserts that the Department failed to present clear and convincing evidence
that he was currently dangerous. In a recommitment hearing, the petitioner has the
burden to prove by clear and convincing evidence all required facts. WIS. STAT.
§ 51.20(13)(e); Waukesha County v. J.W.J., 2017 WI 57, ¶19, 375 Wis. 2d 542,
895 N.W.2d 783. Whether the Department has met its burden of proof to extend
Carter’s commitment presents a mixed question of law and fact. See J.W.J., 375
Wis. 2d 542, ¶15. The circuit court’s findings of fact will be upheld unless they
are clearly erroneous, but whether the facts satisfy the statutory standard is a
question of law that we review de novo. See id.

¶11 Civil commitments constitute “a significant deprivation of liberty
that requires due process protection.” Portage County v. J.W.K., 2019 WI 54,
¶16, 386 Wis. 2d 672, 927 N.W.2d 509. To prevail in a recommitment hearing,

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the petitioner must prove by clear and convincing evidence that the subject
is: “(1) mentally ill; (2) a proper subject for treatment; and (3) dangerous to
themselves or others.” Sheboygan County v. M.W., 2022 WI 40, ¶¶17, 18, 402
Wis. 2d 1, 974 N.W.2d 733. Here, Carter only argues that the Department failed
to meet its burden to show that he is dangerous to himself or others.

¶12 In an initial commitment hearing, dangerousness can be established
any one of five separate ways. WIS. STAT. § 51.20(1)(a)2. Each of the five
dangerousness standards requires the Department to identify evidence of recent
acts or omissions demonstrating that the individual is a danger to himself, herself
or to others. J.W.K., 386 Wis. 2d 672, ¶17.

¶13 In a recommitment hearing, the petitioner is not required to identify
recent acts or omissions to demonstrate dangerousness. Instead, the
dangerousness requirement can be satisfied in part by “showing that there is a
substantial likelihood, based on the subject individual’s treatment record, that the
individual would be a proper subject for commitment if treatment were
withdrawn.” WIS. STAT. § 51.20(1)(am). This paragraph recognizes “that an
individual receiving treatment may not have exhibited any recent overt acts or
omissions demonstrating dangerousness because the treatment ameliorated such
behavior, but if treatment were withdrawn, there may be a substantial likelihood
such behavior would recur.” J.W.K., 386 Wis. 2d 672, ¶19.

¶14 Despite the above principles, every recommitment hearing requires
proof of current dangerousness. D.J.W., 391 Wis. 2d 231, ¶34. Circuit courts in
recommitment hearings are therefore required to make specific factual findings
that a subject is currently dangerous by referencing a subdivision paragraph of

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WIS. STAT. § 51.20(1)(a)2. on which the recommitment is based. D.J.W., 391
Wis. 2d 231, ¶40.

¶15 Here, Carter argues the circuit court violated D.J.W.’s mandate by
failing to identify the specific subdivision paragraph of WIS. STAT. § 51.20(1)(a)2.
under which the court found him to be currently dangerous. In response, the
Department asserts, without citation to the record, that the court made a finding
that Carter was dangerous to himself and others under § 51.20(1)(a)2.a. and b., in
conjunction with § 51.20(1)(am). According to the Department, based upon
Carter’s past treatment records, the court found that Carter is not stable enough for
treatment to be withdrawn due to his lack of insight, continued auditory
hallucinations, and delusional thinking. The Department reiterates that, according
to Persing, Carter still poses a danger to himself and others, and the court therefore
“made the required findings regarding the specific statutory dangerousness
because dangerousness to self or others can only be found
under … § 51.20(1)(a)2.a. and b.”

¶16 An individual is dangerous under WIS. STAT. § 51.20(1)(a)2.a. if the
person “[e]vidences a substantial probability of physical harm to himself or herself
as manifested by evidence of recent threats of or attempts at suicide or serious
bodily harm.” Section 51.20(1)(a)2.b., in turn, permits a finding of dangerousness
if an individual

[e]vidences a substantial probability of physical harm to
other individuals as manifested by evidence of recent
homicidal or other violent behavior, or by evidence that
others are placed in reasonable fear of violent behavior and
serious physical harm to them, as evidenced by a recent
overt act, attempt or threat to do serious physical harm.

Sec. 51.20(1)(a)2.b.

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¶17 Contrary to the Department’s assertion, the circuit court did not
identify a specific statutory dangerousness standard in ordering Carter’s
recommitment. Instead, the court merely found that based upon Persing’s report
and testimony, “there [were] continued … auditory hallucinations” and it had
“concerns that [Carter] could act on those.” The court further stated that based on
“the treatment record in the past[,] that meant threats of harm to self and harm to
others.”

¶18 As Carter correctly argues, “[t]he closest the court came to
identifying a statutory dangerousness standard was when it remarked that
[Carter’s] treatment records from the past involved ‘threats of harm to self and
harm to others.’” Carter notes that this comment contains one element from each
of the dangerousness standards in WIS. STAT. § 51.20(1)(a)2.a. and b. However,
the court failed to find further facts supporting a conclusion that either
dangerousness standard was met. Although the court stated that it relied on
Persing’s report and testimony, that evidence does not permit us to infer under
which subdivision paragraph the court found Carter to be currently dangerous.

¶19 The circuit court summarily cited Persing’s report and his testimony
based upon unknown and vague source information to find that Carter continues to
experience delusions and that if treatment were withdrawn, Carter would likely
become a proper subject for commitment. The court explained the likelihood that
Carter would become a proper subject for commitment was based on the
possibility Carter could act on his delusions, and threaten to harm himself or
others as he did in the past.

¶20 Nevertheless, the Department is required to prove by clear and
convincing evidence that “the individual ‘is dangerous.’” D.J.W., 391 Wis. 2d

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231, ¶34 (citation omitted). Both Persing and the circuit court merely expressed
that Carter could be dangerous. “It is not enough that the individual was at one
point dangerous” id., and neither the Department nor the court specified how
Carter is currently dangerous.

¶21 We therefore conclude that in ordering Carter’s recommitment, the
circuit court failed to make specific factual findings referencing a subdivision
paragraph of WIS. STAT. § 51.20(1)(a)2., as required by D.J.W. Because the
recommitment order has expired, the court lacks competency to conduct any
proceedings on remand, and outright reversal of the recommitment order is the
appropriate remedy. See M.W., 402 Wis. 2d 1, ¶4. Accordingly, we reverse the
recommitment order. Because we reverse based on the court’s failure to comply
with D.J.W., we need not address Carter’s additional argument regarding the
sufficiency of the evidence. See Turner v. Taylor, 2003 WI App 256, ¶1 n.1, 268
Wis. 2d 628. 673 N.W.2d 716 (appellate court may decline to address all issues
raised by the parties if one is dispositive).

By the Court.—Order reversed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

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