Winnebago County v. D.E.W.

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.
July 26, 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. 2023AP215 Cir. Ct. No. 2022ME335

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

IN THE MATTER OF THE MENTAL COMMITMENT OF D.E.W.:

WINNEBAGO COUNTY,

PETITIONER-RESPONDENT,

V.

D.E.W.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Winnebago County:
SCOTT C. WOLDT, Judge. Affirmed.
No. 2023AP215

¶1 GUNDRUM, P.J.1 Darren2 appeals from an order of the circuit
court ordering the involuntary administration of medication and treatment under
WIS. STAT. § 51.61. He contends Winnebago County failed to present sufficient
evidence to support the involuntary medication order. For the following reasons,
we disagree and affirm.

Background

¶2 Winnebago County filed a petition to extend Darren’s commitment
and for the involuntary administration of medication. As relevant to this appeal, a
final hearing on the petition produced the following evidence.

¶3 Dr. Thomas Michlowski testified that he is a psychiatrist serving as
the medical director at the Wisconsin Resource Center (WRC). He had reviewed
Darren’s treatment records and personally examined Darren on a number of
occasions between Darren’s admission to WRC on August 24, 2022, and the date
of the hearing, October 20, 2022, including the morning of the hearing itself.
From this, Michlowski opined that Darren suffers from schizoaffective disorder,
which Michlowski indicated in Darren’s case amounts to “a substantial disorder of
… [p]redominantly, thought,” and which “grossly impair[s] … [p]redominantly
[his] behavior and capacity to recognize reality.”

¶4 Michlowski opined that Darren is dangerous, explaining that his
medical records “reflect on multiple incidences of dangerousness” but specifically

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(d) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
2
Darren is a pseudonym.

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noting that “going back a number of years,” as Darren himself relayed to
Michlowski, “he beat a man to death with a baseball bat” and “at that time he was
off his medication and not in his right mind,” in addition to other violent
incidences “involving a number of fights, breaking someone’s nose, hitting
someone in the head, hitting his girlfriend, and other episodes.” Michlowski
testified that Darren’s violent behavior is “absolutely” driven by his mental illness,
his illness can be treated with medication, and as related to court proceedings,
medication would “help him” with assisting counsel and preparing for court
proceedings.

¶5 Michlowski expressed that Darren is not competent to refuse
medication. When asked, “[w]ere the advantages, disadvantages, as well as
alternatives to accepting medication explained to [Darren]? And can you please
cite one of the advantages?” (emphasis added) Michlowski responded:

[O]ne of the advantages would be [to] help him with his
thought processes so that he could think in a more logical
way and be able to carry a concept to its logical conclusion
in a socially acceptable way and help him not to believe
that people are persecuting him in various ways.

And there are other advantages, and those would be …
to help him control his mood and his affect, which is quite
problematic.

¶6 When asked to “cite one of the disadvantages covered with [Darren],
regarding medication,” Michlowski responded, “Well … no medication is free of
side effects. So there could be common side effects that [a]ffect the central
nervous system such as dizziness, lightheadedness, the gastrointestinal system,
upset stomach. And then more serious general metabolic effects such as
developing diabetes, which I discussed in detail with [Darren].” (Emphasis
added.) When asked, “what alternatives were discussed,” Michlowski stated that

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“[a]lternatives were individual therapy, group therapy, various programs that are
conducted at WRC.”

¶7 When asked if Darren is “capable of expressing an understanding of
those advantages, disadvantages, and alternatives,” (emphasis added) Michlowski
stated, “No,” and expounded that Darren’s

mental illness precludes his being able to process that
information such—and for the purpose of weighing the
benefits and disadvantages and applying such to his mental
illness. For example, he told me on admission that he
would take medication and then after several days he
refused. And, when I asked him, he stated I don’t need
medication. I just need it to help me sleep, that I really
don’t need medication at all. And he reinforced that this
morning.

(Emphasis added.) Michlowski further testified that when he spoke with Darren,
even as recently as the morning of the hearing,

you can’t conduct a rational conversation. He focuses on,
you have to give me more food. I want a bag meal,
otherwise I won’t take a—the bag meal means
supplemental food—otherwise I’m not going to take my
medication….

And I explained to him that a side effect of medication
could be diabetes. We have to watch very carefully. And
he doesn’t need so many extra calories.

¶8 In its written order for involuntary medication and treatment, the
circuit court determined that “[m]edication or treatment will have therapeutic
value,” Darren “needs medication or treatment,” “[t]he advantages, disadvantages,
and alternatives to medication have been explained” to Darren, and “[d]ue to
mental illness” he “is not competent to refuse psychotropic medication or
treatment because [he] is … substantially incapable of applying an understanding
of the advantages, disadvantages and alternatives to his … condition in order to

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No. 2023AP215

make an informed choice as to whether to accept or refuse psychotropic
medications.” Darren appeals.

Discussion

¶9 Darren contends the County failed to meet its burden of proving by
clear and convincing evidence that he was incompetent to refuse medication under
WIS. STAT. § 51.61(1)(g)4.a. and b. See WIS. STAT. § 51.20(13)(e). We do not
disturb a circuit court’s findings of fact unless they are clearly erroneous, and we
accept all reasonable inferences from those facts. Outagamie County v. Melanie
L., 2013 WI 67, ¶38, 349 Wis. 2d 148, 833 N.W.2d 607. “In evaluating whether
the County met its burden of proof, a court must apply facts to the statutory
standard in … § 51.61(1)(g)4.[a. and ]b.… Applying facts to the standard [is a]
question[] of law that this court reviews independently.” Melanie L., 349 Wis. 2d
148, ¶39.

¶10 “[U]nder WIS. STAT. § 51.61, a person has the right to refuse
medication unless a court determines that the person is incompetent to make such
a decision.” Id., ¶53. As relevant to this case, the County establishes a person’s
incompetency to refuse medication by showing that due to mental illness

and after the advantages and disadvantages of and
alternatives to accepting the particular medication … have
been explained to the individual, one of the following is
true:

a. The individual is incapable of expressing an
understanding of the advantages and disadvantages of
accepting medication or treatment and the alternatives.

b. The individual is substantially incapable of applying an
understanding of the advantages, disadvantages and
alternatives to his … mental illness … in order to make an
informed choice as to whether to accept or refuse
medication or treatment.

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No. 2023AP215

See § 51.61(1)(g)3., 4.; WIS. STAT. § 51.20(13)(e).

¶11 Darren first contends the County failed to present sufficient evidence
showing that Michlowski reasonably explained to him “the advantages and
disadvantages of and alternatives to accepting the particular medication.” See
WIS. STAT. § 51.61(1)(g)4. Michlowski’s testimony was insufficient, he argues,
because Michlowski did not testify as to the name of the particular medication he
discussed with Darren and because he “did not clearly testify” that he explained
the advantages, disadvantages and alternatives of the medication to Darren.
Rather, Darren states that Michlowski “only listed the perceived advantages; his
testimony does not reveal whether he in fact communicated those advantages to
Darren, let alone whether his explanation was ‘reasonable’ under the facts of this
case.”

¶12 We disagree with Darren. While Michlowski did not testify to the
name of the specific medication he was referring to, it is clear from the totality of
his testimony that he was referring to some “particular medication.” See
Winnebago County v. P.D.G., No. 2022AP606-FT, unpublished slip op. ¶28
(WI App Sept. 7, 2022) (determining that the evidence was not insufficient to
satisfy the statutory requirement simply because a particular medication’s name
was not uttered on the stand when there is “[a] reasonable inference from [the
examiner’s] testimony … that there was some ‘particular medication’ that was
used for treating [the committee] and that [the examiner] discussed the advantages
and disadvantages of it with [the committee]”).3 Additionally, Michlowski’s
answers related to the advantages, disadvantages and alternatives directly followed

3
Pursuant to WIS. STAT. RULE 809.23(3)(b), this opinion is cited for persuasive value.

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No. 2023AP215

specific questions about what Michlowski, respectively, “explained to,” “covered
with,” and “discussed” with Darren. Furthermore, Michlowski detailed specific
advantages (better thought processes and mood control), disadvantages
(“dizziness, lightheadedness, the gastrointestinal system, upset stomach” and, as
discussed “in detail,” the risk of developing diabetes), and alternatives (“individual
therapy, group therapy, various programs that are conducted at WRC”) that he
explained to, covered with, and discussed with Darren. We conclude that the
context in which Michlowski provided his responses supports the circuit court’s
conclusion that “[t]he advantages, disadvantages, and alternatives to medication
have been explained” to Darren.4

¶13 Darren also contends the County failed to show he was either
“incapable of expressing an understanding of the advantages and disadvantages of
accepting medication or treatment and the alternatives” or “substantially incapable
of applying an understanding of the advantages, disadvantages and alternatives to
his … mental illness … in order to make an informed choice as to whether to
accept or refuse medication or treatment.” We conclude the County sufficiently
showed both.

¶14 In Winnebago County v. Christopher S., 2016 WI 1, 366 Wis. 2d 1,
878 N.W.2d 109, our supreme court approved of the circuit court’s determination

4
Related to explaining the disadvantages of the medication to him, Darren asserts that
Michlowski’s testimony on this is “incomplete and fails to track actual DHS [Department of
Health Services] guidelines.” Because he fails to develop an argument related to any significance
of this and because this contention is raised for the first time on appeal, we do not address it. See
ABKA Ltd. P’ship v. Board of Rev., 231 Wis. 2d 328, 349 n.9, 603 N.W.2d 217 (1999) (we do
not address undeveloped arguments); State Farm Mut. Auto. Ins. Co. v. Hunt, 2014 WI App
115, ¶32, 358 Wis. 2d 379, 856 N.W.2d 633 (“Arguments raised for the first time on appeal are
generally deemed forfeited.” (citation omitted)).

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No. 2023AP215

that the requirements of WIS. STAT. § 51.61(1)(g)4.b. had been satisfied in a
circumstance similar to that before us. In that case, the testifying doctor,
Dr. Keshena, opined in largely conclusory fashion that Christopher was not
competent to refuse medication, providing almost no explanation as to why she
determined this was so. Keshena’s testimony went as follows:

Q. Dr. Keshena, in the course of your treatment of
[Christopher] have you had an opportunity to explain to
him the advantages, disadvantages, and alternatives to the
medication?

A. Yes.

Q. And after you’ve done that, in your opinion would he
be substantially incapable or substantially capable
of applying an understanding of the advantages,
disadvantages, and alternatives to his own conditions in
order to make an informed choice as to whether to accept
or refuse psychotropic medication?

A. He’s not capable.

Q. So you're saying he’s substantially incapable?

A. Yes.

Christopher S., 366 Wis. 2d 1, ¶54 (alteration in original). On cross-examination,
she testified that Christopher “was previously on lithium” and had informed her
“he didn’t have any side effects from that medication, but he thought it was a
placebo.” Id., ¶56 n.28.

¶15 Keshena provided a conclusory opinion, with no significant
elaboration as to why she held that opinion. See id., ¶¶54, 56. Nonetheless, the
court held that “[b]ecause these statements mirrored the statutory standard, they
met the statutory standard” and determined the circuit court did not err in

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No. 2023AP215

concluding that the County had proven that Christopher was incompetent to refuse
medication. Id., ¶56.5

¶16 Similarly, in the case now before us, immediately after Michlowski
testified to having explained to Darren the advantages, disadvantages, and
alternatives to accepting the recommended medication, questioning continued:

5
The Christopher S. court also referenced a report by another doctor, Dr. Musunuru,
noting that the report “also tracked the statutory language” and “made six key findings:”

(1) “the advantages and disadvantages and the alternatives to
accepting particular medication [were] explained to the subject
in detail[]”; (2) “the subject did not appear to understand the
explanation”; (3) “the subject holds patently false beliefs about
the treatment recommended medications, which prevent an
understanding of the legitimate risks and benefits”; (4) “due to
the subject's mental illness, the subject is substantially incapable
of applying an understanding of the advantages, disadvantages,
and alternatives to make an informed choice as to accept or
refuse medications”; (5) “the subject has no insight into his
illness due to his mental illness”; and (6) “the subject is not
competent to refuse psychotropic medications.”

Winnebago County v. Christopher S., 2016 WI 1, ¶55, 366 Wis. 2d 1, 878 N.W.2d 109
(alterations in original).

In the factual background section of the Christopher S. decision, the court did write that
“Musunuru also found that ‘the subject holds patently false beliefs about the treatment
recommended medications, which prevent an understanding of the legitimate risk and benefits.
They are denial of illness and trust in his delusions.’” Id., ¶15. If Musunuru provided factual
details related to this, the court did not deem such important to include. We also note that if the
report provided elaboration as to why Musunuru “f[ou]nd[]” as he did, the court also did not
deem such elaboration important to include in its “Discussion” section but only determined it
important to note that the report “tracked the statutory language” and then included the specific
conclusory language used by Musunuru that tracked the statute language. Id., ¶55.

In the end though, it appears the Christopher S. court determined Keshena’s testimony,
limited as it was, to be sufficient to meet the statutory standard because it “mirrored the statutory
standard.” Id., ¶56. We observe this to be so because in the first paragraph of the “Discussion”
section, the court held that the circuit court did not err when it determined the County had
established Christopher was incompetent to refuse medication because “the medical expert’s
undisputed testimony”—referencing “testimony,” not a “report,” and using the singular of
“expert’s”—“sufficiently addressed and met the requirements outlined in WIS. STAT.
§ 51.61(1)(g)4.b.” Christopher S., 366 Wis. 2d 1, ¶24 (emphasis added).

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No. 2023AP215

[County:] In your medical opinion, is [Darren] capable of
expressing an understanding of those advantages,
disadvantages, and alternatives?

[Michlowski:] No….

[County:] Why isn’t he?

[Michlowski:] Because his mental illness precludes his
being able to process that information … for the purpose of
weighing the benefits and disadvantages and applying such
to his mental illness.

Michlowski then provided an example, noting that Darren “told me on admission that he

would take medication and then after several days he refused. And, when I asked him, he

stated I don’t need medication. I just need it to help me sleep, that I really don’t need

medication at all. And he reinforced that this morning.” Michlowski subsequently

testified that “you can’t conduct a rational conversation” with Darren.

¶17 We conclude the circuit court did not err in determining that Darren
was not competent to refuse medication. The record sufficiently shows that
because of his mental illness, “and after the advantages and disadvantages of and
alternatives to accepting the particular medication … ha[d] been explained” to
him, he was “incapable of expressing an understanding of the advantages and
disadvantages of accepting medication or treatment and the alternatives.” See
WIS. STAT. § 51.61(1)(g)4.a. We conclude this because Michlowski’s testimony
“mirrored the statutory standard” of § 51.61(1)(g)4.a., and thus, in accordance
with Christopher S., it “met the statutory standard.” See Christopher S., 366
Wis. 2d 1, ¶56. Additionally, Michlowski indicated he concluded this “[b]ecause
[Darren’s] mental illness precludes his being able to process that information,” and
Michlowski also subsequently testified that “you can’t conduct a rational
conversation” with Darren. While more detail by Michlowski might have been
helpful to the County in persuading the court that he was credible and his findings

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No. 2023AP215

sound, according to Christopher S., they are not necessary. As long as the court
finds the witness credible and the statutory standard considered, the incompetency
determination holds.

¶18 The County also showed that Darren is “substantially incapable of
applying an understanding of the advantages, disadvantages and alternatives to his
… mental illness … in order to make an informed choice as to whether to accept
or refuse medication or treatment,” see WIS. STAT. § 51.61(1)(g)4.b., as the circuit
court indicated in its written order. The “substantially incapable” standard of
§ 51.61(1)(g)4.b. is a “less rigorous standard” than the “incapable” standard of
§ 51.61(1)(g)4.a. “[S]ubstantially incapable” means that “to a considerable
degree, a person lacks the ability or capacity to apply an understanding of the
advantages and disadvantages of medication to his or her own condition.”
Melanie L., 349 Wis. 2d 148, ¶70. Our supreme court explained in Melanie L.
that “applying an understanding” “requires a person to make a connection between
an expressed understanding of the benefits and risks of medication and the
person’s own mental illness.” Id., ¶71.

¶19 Again, Michlowski testified that Darren’s “mental illness precludes
his being able to process [the medication advantages, disadvantages, and
alternatives] … for the purpose of weighing the benefits and disadvantages and
applying such to his mental illness.” Michlowski provided a supportive example
of how Darren indicated upon admission to WRC that he would take the provided
medication yet just days later he refused to take the medication and indicated he
“really d[id]n’t need medication at all,” despite having previously been “not in his
right mind” and beaten a man to death with a baseball bat when he was off his
medication. Michlowski testified that Darren’s violent behavior is “absolutely”

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No. 2023AP215

driven by his mental illness, but the testimony indicates Darren’s detachment from
reality prevents him from understanding that.

¶20 Based upon Michlowski’s testimony, the circuit court found that
Darren’s mental illness “impairs his behavior and capacity to recognize and apply
the facts that he’s getting, the information that he’s getting, to his situation.”
Again, in its written order, the court indicated Darren “is … substantially
incapable of applying an understanding of the advantages, disadvantages and
alternatives to his … condition in order to make an informed choice as to whether
to accept or refuse psychotropic medications.” Even though Michlowski’s
testimony did not precisely track the statutory language in every respect, we
nonetheless conclude that the evidence presented by the County also sufficiently
supports the court’s determination that Darren was not competent to refuse
medications under WIS. STAT. § 51.61(1)(g)4.b.6 Whether the additional evidence
supporting Michlowski’s opinions is thin or plentiful, the court here found
Michlowski credible, so his testimony as to both subdivs. a. and b. carried the day.

By the Court.—Order affirmed.

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

6
Darren also contends the circuit court erred in admitting testimony from Michlowski
regarding Darren’s purported statement to a nurse that he had lied about medication side effects.
Even if the court did err in admitting this testimony, we conclude the error was harmless as there
was sufficient other evidence that WIS. STAT. § 51.61(1)(g)4.a. and b. were met. Darren also
insists “the circuit court clearly relied on [the hearsay] evidence, as when it asserted that Darren
was ‘using’ the medication issue as a ‘tool to get what he wants.’” While Michlowski did testify
that Darren’s medical records contained entries from nurses supporting this, Michlowski also
indicated that Darren had directly told him the same thing—that he would try to bargain with his
medication to get more food. Statements by Darren to Michlowski would be admissible as
admissions and not precluded as hearsay.

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