Racine County v. D. S.

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.
August 6, 2025
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. 2025AP758-FT Cir. Ct. No. 1990ME124D

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

IN THE MATTER OF THE MENTAL COMMITMENT OF D.S.:

RACINE COUNTY,

PETITIONER-RESPONDENT,

V.

D.S.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Racine County:
JESSICA E.H. LYNOTT, Judge. Affirmed.
No. 2025AP758-FT

¶1 NEUBAUER, P.J.1 D.S., referred to herein by the pseudonym
Donna, appeals from orders extending her involuntary commitment by one year
under WIS. STAT. § 51.20 and continuing involuntary medication and treatment
during that time. Donna argues that the circuit court erred in determining that
Racine County (the County) had proven that she is dangerous under the second,
third, and fourth standards, § 51.20(1)(a)2.b., c., and d., and the recommitment
alternative set forth in § 51.20(1)(am). Donna also argues that the court erred in
finding that the County had proven that she received an adequate explanation of
the advantages, disadvantages, and alternatives to the medications she is receiving
involuntarily. For the reasons explained below, this court affirms the orders.

BACKGROUND

¶2 Donna has a lengthy treatment history and has been involuntarily
committed since 2006. In January 2025, the County filed a petition to extend
Donna’s involuntary commitment along with a memorandum from her case
worker detailing Donna’s commitment history and a report from Dr. Marshall J.
Bales, a psychiatrist and licensed physician who has treated Donna for several
years. In the petition, the County invoked WIS. STAT. § 51.20(1)(am), alleging
that Donna was “dangerous because there is a substantial likelihood, based on
[her] treatment record, that [she] would be a proper subject for commitment if
treatment is withdrawn.” Bales, in his examination report, opined that Donna was
mentally ill and was dangerous under the second, third, and fourth standards under
§ 51.20(1)(a)2.b.-d., along with the recommitment alternative in § 51.20(1)(am).

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.

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¶3 The circuit court held a hearing on the County’s petition on
February 13, 2025, at which Bales and Angela Townsend, Donna’s case manager,
testified. Bales testified that Donna has schizoaffective disorder, which he
described as “a severe and persistent mental illness.” Bales testified that, during
his examination, Donna displayed “manic features and psychotic features,”
presented as “[n]onsensical, manic, disorganized in thinking,” exhibited “flight of
ideas,” and was “really vocal about wanting off of psychotropic medications.” He
testified that he “truly [has] difficulty seeing how [Donna] could function” in an
outpatient capacity and that she “was not at all giving [him] the impression that
she would be stable” living by herself in a residence “for more than—at most, a
day or so before there would be [a] police crisis or some other intervention.”

¶4 The County also questioned Bales about his opinions concerning
Donna’s dangerousness under WIS. STAT. § 51.20. Under the second standard for
dangerousness, an individual is dangerous when he or she “[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 .…”
Sec. 51.20(1)(a)2.b. Because Donna was committed involuntarily and receiving
treatment at the time of the hearing, the County opted to establish dangerousness
by showing “a substantial likelihood, based on the subject’s individual’s treatment
record, that the individual would be a proper subject for commitment if treatment
were withdrawn.” Sec. 51.20(1)(am).

¶5 When asked whether Donna met the second standard for
dangerousness and whether there was a substantial probability that she would be a
proper subject for treatment if treatment were withdrawn, Bales said she would be
and further testified that Donna has “been known to be aggressive when she goes

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off her medications” and that she “has been known to use street drugs.” Bales
acknowledged that Donna has not displayed “recent dangerousness” because of
her medications but stated that absent continued commitment and medication
orders, “this is going to get dangerous, and the only question is how.” The only
specific conduct that Bales referenced was an incident he learned of in her records
in which Donna reportedly threw silverware “in the direction of a peer” the
previous summer. On cross-examination, he reaffirmed his view concerning
Donna’s likely course of conduct if her commitment and medication orders did not
continue, explaining that Donna would “stop her medications and become even
more psychotic and symptomatic and will become dangerous in some way.”

¶6 Under the third standard for dangerousness, an individual is
dangerous if he or she “[e]vidences such impaired judgment … that there is a
substantial probability of physical impairment or injury to himself or herself or
other individuals.” WIS. STAT. § 51.20(1)(a)2.c. When asked whether Donna
satisfied this standard, Bales responded, “Yes.” The County did not specifically
ask for, and Bales did not volunteer, a factual basis for this opinion.

¶7 Finally, under the fourth standard for dangerousness, an individual is
dangerous if he or she “[e]vidences behavior … that, due to mental illness, he or
she is unable to satisfy basic needs for nourishment, medical care, shelter or safety
… so that a substantial probability exists that death, serious physical injury,
serious physical debilitation, or serious physical disease will imminently ensue” in
the absence of prompt and adequate treatment. WIS. STAT. § 51.20(1)(a)2.d.
When asked whether Donna satisfied this standard, Bales responded affirmatively,
noting Donna’s unwillingness to pursue voluntary mental health care and her
desire to refrain from taking antipsychotic medications.

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¶8 With respect to medication, Bales identified five medications in his
report that Donna was receiving: Depakote, Clozaril, Geodon, Lamictal, and
Cogentin. In the report, Bales indicated he had discussed the following
advantages of medication with Donna: “[s]tabilization of mood, improvement in
reality orientation, improvement in sleep patterns, decrease in irritability and
agitation, [and] decrease in anxiety.” He also indicated that he had discussed
certain disadvantages, including weight gain, “occasional issues with movement
… such as tremors, restlessness, or tardive dyskinesia; occasional mild sedation,
[and] occasional gastrointestinal issues.” Finally, the report indicates that Bales
also discussed several alternatives to medication with Donna, namely
“[p]sychotherapy, group therapy, [and] stress management tactics.” Bales’ report
was received into evidence without objection.

¶9 At the recommitment hearing, Bales confirmed that he had explained
to Donna the advantages, disadvantages, and alternatives to the recommended
medication and treatment and agreed that, due to her mental illness, she is unable
to express an understanding of those advantages, disadvantages, and alternatives.
But Bales also expressed “alarm[]” that her medication regimen had been “left the
same year after year.” He indicated that he had sought an explanation from her
care providers for the lack of any medication changes but had not received any
response. In terms of specific adjustments, Bales testified that he would increase
her dosages of Clozaril and Lamictal if he were her treating doctor. He also
referred to “other changes” he would make but did not elaborate further. Bales
maintained that Donna’s mental illness is “treatable” and that she “may get more
benefit from some medication adjustments.”

¶10 When asked whether, even with adjustments to her medications,
“there is a substantial probability that [Donna] would be a danger to herself or

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No. 2025AP758-FT

others[,]” Bales agreed and testified that “[Donna] will not stay [at the treatment
facility]” voluntarily and that, while he “[didn’t] want to speculate on how
[Donna] would be dangerous” if she was not committed, “she would be
[dangerous].”

¶11 Townsend, Donna’s case manager since 2016, testified that
recommitment would be appropriate for Donna “due to her lack of insight into her
mental illness and the need for medications.” Townsend held a videoconference
with Donna on September 14, 2024. Townsend testified that, while Donna was
calm at the start of the conversation, she eventually became “agitated and
emotional[,]” “demanded that [Townsend] contact[] the police so that the FBI
could pick her up and take her to Madison,” and “accused [Townsend] of making
her fat.” Townsend testified that “[d]ue to [Donna] being emotional and agitated,
[Townsend] had to end the meeting.” Townsend agreed with Bales that Donna
would not take medications voluntarily.

¶12 At the conclusion of the hearing, the circuit court determined that
there was substantial likelihood that Donna would become dangerous under the
second, third, and fourth standards if her treatment were withdrawn. The court
found that Donna’s “throwing” of “silverware at or near someone” would
“certainly” satisfy the second standard of dangerousness to others. The court also
found that there was sufficient evidence of dangerousness under the third and
fourth standards, relying on Bales’ assessment that Donna was “nonsensical,”
“manic,” that she “[could not] function outpatient safely,” and that her comments
regarding “wanting to be in Madison and having a soda pop” indicated a level of
irrationality inconsistent with safely living independently.

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¶13 The circuit court ordered Donna’s commitment to be extended,
finding that she was mentally ill and dangerous under the second, third, and fourth
standards in combination with the recommitment alternative under WIS. STAT.
§ 51.20(1)(am). The court also issued an order for involuntary medication and
treatment, finding that Donna was “not competent to refuse psychotropic
medication or treatment because [she] is incapable of expressing an understanding
of the advantages and disadvantages of accepting medication or treatment and the
alternatives[.]” The court also found that Donna was “substantially incapable of
applying an understanding of the advantages, disadvantages and alternatives to
[her] condition in order to make an informed choice as to whether to accept or
refuse psychotropic medications.”

DISCUSSION

¶14 An individual may be committed involuntarily if the petitioner
proves by clear and convincing evidence that the individual is mentally ill, a
proper subject for treatment, and dangerous. WIS. STAT. § 51.20(1)(a), 13(e).
Section 51.20 sets forth five standards under which an individual may be found
dangerous, all of which require proof of “recent acts, omissions, or behavior.”
Sauk County v. S.A.M., 2022 WI 46, ¶5, 402 Wis. 2d 379, 975 N.W.2d 162; see
also § 51.20(1)(a)2.a.-e.

¶15 To extend a commitment, the petitioner must establish the same
three elements—mental illness, suitability for treatment, and dangerousness.
Langlade County v. D.J.W., 2020 WI 41, ¶31, 391 Wis. 2d 231, 942 N.W.2d 277.
However, an individual who has been involuntarily committed and treated
immediately prior to extension proceedings “may not have exhibited any recent
overt acts or omissions demonstrating dangerousness because the treatment

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No. 2025AP758-FT

ameliorated such behavior[.]” Portage County v. J.W.K., 2019 WI 54, ¶19, 386
Wis. 2d 672, 927 N.W.2d 509. Consequently, WIS. STAT. § 51.20 “provides a
different avenue for proving dangerousness”: in lieu of recent acts or behavior, the
petitioner may establish dangerousness by proving “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[.]”
J.W.K., 386 Wis. 2d 672, ¶19 (first quotation); § 51.20(1)(am) (second quotation).
However, the County must still prove that the individual is dangerous because one
of the five criteria for commitment under § 51.20(1)(a)2.a.-e. would recur if
treatment were withdrawn. J.W.K., 386 Wis. 2d 672, ¶24.

¶16 A petition to extend an involuntary commitment must be supported
by a written evaluation of the individual that sets forth the examiner’s opinion on
whether the individual meets the criteria for continued commitment. See WIS.
STAT. § 51.20(13)(g)2r. If a circuit court concludes that sufficient evidence
supports recommitment, it must “make specific factual findings with reference to
[the standard(s) under] § 51.20(1)(a)2. on which the recommitment is based.”
D.J.W., 391 Wis. 2d 231, ¶40.

I. Dangerousness

¶17 On appeal, Donna argues that the circuit court erred in finding that
Donna is dangerous under the second, third, and fourth standards in combination
with the recommitment alternative. Whether the court erred in determining that
there was sufficient evidence to establish dangerousness under these standards is a
question of law that we review de novo. See K.N.K. v. Buhler, 139 Wis. 2d 190,
198, 407 N.W.2d 281 (Ct. App. 1987).

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No. 2025AP758-FT

¶18 As to this first issue, this court concludes that the County did not
provide sufficient evidence to prove dangerousness under the second standard.
However, sufficient evidence was presented to establish dangerousness under the
third and fourth standards, together with the WIS. STAT. § 51.20(1)(am)
recommitment alternative.

¶19 In concluding that the second standard had been satisfied, the circuit
court relied on Bales’s testimony that Donna had been “aggressive historically”
and that “without medication … she’s been known to get assaultive.” However,
general allegations of past aggressive behavior fall short of the specific, factual
findings which are necessary to support a finding of dangerousness. See D.J.W.,
391 Wis. 2d 231, ¶59. The court also relied on Bales’s assertion that he had
learned of the incident in which Donna allegedly “threw silverware at another
peer.” But the County elicited almost no detail about this incident. It is not clear
from the testimony what type of silverware was thrown, whether it was made of
plastic, metal, or some other material, how close it came to hitting someone, or
how forcefully it was thrown.2 Absent such detail, all that remains are Bales’s
undeveloped assertions that Donna had been aggressive in the past and would be

2
The silverware incident is mentioned in the memorandum from Townsend that was
filed with the County’s recommitment petition. Although the circuit court referred to the
memorandum in its oral ruling, the County did not introduce it into evidence at the recommitment
hearing, and the court referred to it only in identifying materials that Bales had reviewed in
preparing his report. Because the report was not admitted into evidence, and the court does not
appear to have directly relied on its contents in its oral ruling, this court will not consider the
report in determining whether the County met its burden of establishing dangerousness. See
Langlade County v. D.J.W., 2020 WI 41, ¶7 n.4, 391 Wis. 2d 231, 942 N.W.2d 277 (observing
that because doctor’s report was not received in evidence at recommitment hearing, County’s
evidence consisted solely of doctor’s testimony); Washington Cnty. Hum. Servs. Dep’t v. Z.A.Y.,
No. 2023AP447, unpublished slip. op. ¶16 (WI App Sept. 13, 2023) (disregarding evidence relied
upon by circuit court to establish dangerousness that came from examining doctor’s review of
individual’s records because doctor’s report setting forth observations from record review was not
admitted into evidence).

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No. 2025AP758-FT

dangerous in some (unspecified) manner if her treatment stopped. This court
concludes that the evidence was not sufficient to establish, to a clear and
convincing degree, that if Donna’s treatment were withdrawn, she would present
“a substantial probability of physical harm to other individuals …” See WIS.
STAT. § 51.20(1)(a)2.b.

¶20 Although the County did not meet its burden to establish
dangerousness under the second standard, the circuit court did not err when it
found that the County had satisfied the third and fourth standards for
dangerousness. The record contains extensive evidence that Donna possesses
“impaired judgment” such that, if her treatment were withdrawn, “there is a
substantial probability of physical impairment or injury to … herself or other
individuals.” See WIS. STAT. § 51.20(1)(a)2.c. Likewise, under the fourth
standard, there is sufficient evidence that, absent treatment, Donna’s mental illness
would render her “unable to satisfy basic needs for nourishment, medical care,
shelter or safety” such that there is a “substantial probability” of “death, serious
physical injury, serious physical debilitation, or serious physical disease will
imminently ensue” in the absence of “prompt and adequate treatment” of her
mental illness. See § 51.20(1)(a)2.d.

¶21 Bales’s report documents statements by Donna that evidence her
impaired judgment and inability to provide for her own basic needs. He
documents, for example, that Donna stated “all she needed was soda pop and
money[,]” and that “medications were not good for the mind.” He also noted that
Donna has “spoken delusionally about the FBI” and has “ongoing mood swings.”

¶22 Bales provided additional evidence on these points during his
hearing testimony. He noted, for example, that Donna could not provide much

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family history or background during his examination due to her “disorganization
of thought.” He described her as being “[n]onsensical, manic, disorganized in
thinking” and exhibiting a “flight of ideas” during the examination. He described
how she “just wants soda pop and her own apartment to be set up for her in
Madison.” Her presentation led Bales to conclude “that she would [not] be stable
in that kind of arrangement for more than … a day or so” before “police … or
some other intervention[]” would be necessary. And, Bales testified that he had
“difficulty seeing how she could function” even in an outpatient setting. Finally,
Bales affirmed multiple times that Donna would not voluntarily continue taking
medication. Townsend concurred with this assessment; in her view, Donna lacked
insight into her mental illness and would not voluntarily medicate.

¶23 Taken together, this evidence was sufficient to establish, under the
third standard, that if her treatment were withdrawn, Donna would not continue to
medicate voluntarily and, as a result, would exhibit “impaired judgment” that
would give rise to “a substantial probability of physical impairment or injury to …
herself ….” See WIS. STAT. § 51.20(1)(a)2.c. Similarly, under the fourth
standard, Bales’ report and the hearing testimony established that, if Donna’s
treatment were withdrawn, her mental illness would leave her unable to satisfy her
basic needs and give rise to a substantial probability of “death, serious physical
injury, serious physical debilitation, or serious physical disease ….” See
§ 51.20(1)(a)2.d. The circuit court did not err in determining that there was
sufficient evidence to satisfy the third and fourth standards.

¶24 Donna does not directly challenge this evidence, but instead argues
that, since the third and fourth standards for dangerousness provide that a
substantial probability of impairment, injury, or harm does not exist if an
individual “may be provided protective placement or protective services under”

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Wisconsin’s guardianship statute, WIS. STAT. ch. 55, the County “should have
been required to explain why an alternative set of court orders was insufficient.”
To support this argument, Donna cites to Dane County v. Kelly M., 2011 WI App
69, ¶3, 333 Wis. 2d 719, 798 N.W.2d 697. In Kelly M., this court held that
“individuals who are not already under [a Chapter 55 order] but who are a proper
subject of such an order, come within the ch. 55 exclusion in the fifth standard [for
dangerousness under WIS. STAT. § 51.20] if there are placement or services
available under ch. 55 that would be effective ….” Kelly M., 333 Wis. 2d 719, ¶3.

¶25 This court is not persuaded by Donna’s argument. First, Kelly M.
did not establish that before a determination of dangerousness under the third and
fourth standards can be made, a petitioner must show that placement or services
under a guardianship is unavailable or insufficient. Nor did Kelly M. establish,
despite Donna’s assertions, that the County would bear the burden of establishing
the same. Even so, the circuit court did find in this case that there was “no
guardian to lend any assurance to this court or to Dr. Bales that [Donna] would be
cared for properly if not in a locked facility.” Further, Donna did not argue that
the County must prove that protective placement or services is unavailable prior to
a determination of dangerousness at the recommitment hearing. She raises it for
the first time on appeal, and her argument is thinly developed. For these reasons,
this court declines to address it further. See Gibson v. Overnite Transp. Co., 2003
WI App 210, ¶9, 267 Wis. 2d 429, 671 N.W.2d 388 (“Generally, we will not
consider on appeal arguments not made to the trial court.”); Wal-Mart Real Estate
Business Trust v. Merrill, 2023 WI App 14, ¶32, 406 Wis. 2d 663, 987 N.W.2d
764 (“We need not consider arguments that are undeveloped ….”).

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II. Medication Order

¶26 Donna also argues that the involuntary medication order must be
reversed because the County failed to prove that Donna received an adequate
explanation of the advantages, disadvantages, and alternatives with respect to
involuntary medication. Specifically, Donna argues that the “evidence does not
show the particular medication discussed with Donna during her … conversation
with Dr. Bales[]” and that “Dr. Bales’ description of side effects was insufficient.”

¶27 Under Wisconsin law, an individual is not competent to “refuse
medication or treatment if, because of mental illness … and after the advantages
and disadvantages of and alternatives to accepting the particular medication …
have been explained … [t]he individual is incapable of expressing an
understanding of the advantages and disadvantages” of that medication or
treatment. WIS. STAT. § 51.61(1)(g)4.a. Our supreme court has recognized the
importance of “[a]ttention to detail” on the “issue of competency in a hearing on
an involuntary medication order” and that such hearings “cannot be perfunctory
under the law.” In re Melanie L., 2013 WI 67, ¶94, 349 Wis. 2d 148, 833 N.W.2d
607. A person “subject to a[n] … involuntary medication order is entitled to
receive … a reasonable explanation of proposed medication. The explanation
should include why a particular drug is being prescribed, what the advantages of
the drug are expected to be,” possible side effects of the drug, and “reasonable
alternatives to the prescribed medication.” Id., ¶67. The County “must prove that
the person is substantially incapable of applying an understanding of the
advantages and disadvantages of particular medication to her own mental illness.”
See id., ¶94 (emphasis added).

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¶28 Dr. Bales’ report identifies five medications that Donna is receiving
and indicates that he explained certain advantages, disadvantages, and alternatives
to those medications to Donna. He explained that the advantages included
“[s]tabilization of mood, improvement in reality orientation, improvement in sleep
patterns, decrease in irritability and agitation,” and a “decrease in anxiety.” He
explained the possible disadvantages were “[m]etabolic issues, such as weight
gain; occasional issues with movement problems, such as tremors, restlessness, or
tardive dyskinesia; occasional mild sedation[]” and “occasional gastrointestinal
issues.” The report also states that he identified “[p]sychotherapy, group therapy,”
and “stress management tactics” as alternatives to the recommended treatment to
Donna.

¶29 Donna argues, however, that Dr. Bales’ report and testimony lacked
sufficient specificity to comply with Melanie L., which requires that the
explanation of treatment “should include why a particular drug is being
prescribed,” along with that particular drug’s advantages, disadvantages, and
alternatives. 349 Wis. 2d 148, ¶67 (emphasis added). She contends that the drugs
she is receiving have many more than the four possible adverse side effects listed
in the report, and that Bales did not explain in his testimony which medications he
explained to her.

¶30 What seems clear from the record is that Bales identified the
medications Donna is currently receiving and explained to her the advantages and
disadvantages associated with those medications, as well as several treatment
alternatives to medication. Although Bales did not specifically testify that he
addressed each medication with Donna, it is reasonable to infer from his report
and testimony that he did so. Moreover, though there may be more adverse side
effects associated with the medications than are listed in Bales’s report, this court

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does not believe that it would be appropriate to require examining physicians to
discuss with involuntarily committed individuals every side effect that has ever
been associated with a particular medication. The severity and likelihood of
adverse side effects manifesting in a particular patient are matters of professional
medical judgment. Requiring a physician to identify and discuss every side effect
ever associated with a particular drug would, in this court’s view, unduly burden
the examination process and frustrate an individual’s ability to develop, much less
express or apply, an understanding of the advantages and disadvantages of the
medication to his or her particular circumstances. Absent a clear directive from
our supreme court, this court is unwilling to impose such an obligation.

¶31 Having said that, this court is concerned about Bales’ testimony that
he was alarmed that Donna’s medications had not been changed in years. Bales
testified that he was so concerned that he attempted, without success, to reach the
director of the facility in which Donna is confined about her medications. He
testified that, if he were her treating physician, he would increase her dosages of
Lamictal and Clozaril and would make other unspecified changes to her
medications. This testimony is of concern given Melanie L.’s recognition that an
involuntarily committed individual is entitled to “a reasonable explanation of
proposed medication.” Melanie L., 349 Wis. 2d 148, ¶67 (emphasis added).
Bales’ testimony suggests he would propose different medications, but there is no
evidence that he discussed with Donna the medications that he would actually
propose or recommend. Instead, his report and testimony appear to indicate only
that Bales and Donna discussed her current medication regimen. However,
because Bales is not Donna’s treating physician, and this court understands the
County’s recommitment request to be premised on her continuing on her current
medication regimen, this court concludes that the evidence is sufficient to show

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that she received an adequate explanation of the advantages, disadvantages, and
alternatives associated with those medications.

¶32 For these reasons, the circuit court’s orders extending Donna’s
involuntary commitment and permitting involuntary medication and treatment are
affirmed.

By the Court.—Orders affirmed.

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

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