Waukesha County v. I.R.T.

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.
November 4, 2020
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. 2020AP996-FT Cir. Ct. No. 2017ME246

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

IN THE MATTER OF THE MENTAL COMMITMENT OF I.R.T.:

WAUKESHA COUNTY,

PETITIONER-RESPONDENT,

V.

I.R.T.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Waukesha County:
LLOYD V. CARTER, Judge. Affirmed.
No. 2020AP996-FT

¶1 REILLY, P.J.1 I.R.T. appeals from an order of the circuit court
extending his involuntary commitment. I.R.T. argues that Waukesha County (the
County) failed to establish that he is dangerous pursuant to WIS. STAT.
§ 51.20(1)(a), (am), and that the circuit court’s recommitment order erroneously
relied on hearsay evidence. We conclude that the evidence supports the circuit
court’s conclusion that I.R.T. is mentally ill, is a proper subject for treatment, and
would be a proper subject for commitment if treatment were withdrawn. See
§ 51.20(1)(a)1.-2., (am). Accordingly, we affirm.

BACKGROUND

¶2 I.R.T. was first subject to an emergency detention and involuntary
commitment and involuntary medication and treatment orders in 2017. These
orders have since been renewed. On September 19, 2019, the County filed for an
extension of I.R.T.’s commitment. The circuit court scheduled a hearing and
appointed doctors to examine I.R.T. I.R.T. did not respond to the examiners’
attempts to contact him, and they were forced to complete their evaluations based
on the available records.

¶3 I.R.T. also did not appear at the hearing on October 8, 2019. The
circuit court issued a capias, finding good cause to continue the hearing due to
I.R.T.’s failure to appear, and tolled the expiration of the commitment order. On
November 4, 2019, I.R.T. was taken into custody, and the recommitment hearing
was held on November 5, 2019. At that time, the circuit court offered I.R.T. the

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(d) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version.

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No. 2020AP996-FT

option to adjourn the hearing to allow the examiners to evaluate him in person, but
he declined.

¶4 The County called three witnesses to testify: Danielle Weber, a
clinical therapist with Waukesha County Health and Human Services; Dr. Rada
Malinovic, M.D., a staff psychiatrist at the Waukesha County Mental Health
Center; and Dr. Peder Piering, Psy.D., the examining psychologist. The County
introduced all of the experts’ reports into evidence. The testimony revealed that
I.R.T was homeless, going by an alias, and had not complied with any conditions
of his treatment order since April 2019. Each expert recommended an extension
of the orders.

¶5 I.R.T. did not present witnesses to rebut the experts’ testimony, but
he did elect to testify on his own behalf. When asked why he did not want to take
medication, his response was rambling and hard to follow:

Because I’m a strong believer and—I feel like—I take
medication. Don’t know 100 percent if I’m right or
wrong—It hurts my feelings the way I feel—I felt kind of
lost. Even this kind of upset, and it never should have. It’s
really painful. I don’t know anyone who even—that really
basically puts any medications like that. And to be viewed
as good, that’s wrong, especially if you don’t have 100
percent. But just—That’s why. And to call someone
and—calls back—or whatever or maybe father says it, then
maybe he should be. If he don’t say it—Talk a little
slower—something else. That is wrong.

When asked to clarify his statement, I.R.T. again had difficulty expressing his
thoughts, explaining that “I think it’s wrong to put someone on medication for
being spiritual, for things that you don’t have 100 percent true or tell the truth” and
that it was “wrong” to “tell me if I’m mentally able or mentally ill, no man should
call another person mentally ill if they don’t have 100 percent proof.” He went on:

You guys know the system. I don’t handle it the right way.
So obviously, I’m doing some things right. And obviously,

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No. 2020AP996-FT

it’s for a loser. So when I do wear all white, it is for the
right reasons, which would remind me that’s what I was
expecting out of the judge sometimes. Now that I know—
spiritually. Speak in God’s name. That’s all I have to say.

¶6 The circuit court found that the evidence was clear and convincing
that I.R.T. met the statutory requirements for extending the orders, granted the
County’s request, and entered orders for a one-year extension of involuntary
commitment and involuntary medication and treatment.2 I.R.T. appeals.

Standard of Review

¶7 Involuntary commitments are governed by WIS. STAT. § 51.20. To
involuntarily commit a person, the county has the burden to prove by clear and
convincing evidence that the person is (1) mentally ill, (2) a proper subject for
treatment, and (3) dangerous. See § 51.20(1)(a)1.-2., (13)(e); Langlade County v.
D.J.W., 2020 WI 41, ¶¶23, 29, 391 Wis. 2d 231, 942 N.W.2d 277; Fond du Lac
County v. Helen E.F., 2012 WI 50, ¶20, 340 Wis. 2d 500, 814 N.W.2d 179. The
circuit court may extend the individual’s commitment for up to one year.
Sec. 51.20(13)(g)1.; D.J.W., 391 Wis. 2d 231, ¶31. These same standards apply
where the county seeks to extend the commitment, except it may satisfy the
showing of dangerousness by demonstrating “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.” Sec. 51.20(1)(am);
D.J.W., 391 Wis. 2d 231, ¶32.

2
I.R.T. does not challenge or make any specific arguments regarding the order for
involuntary medication and treatment on appeal. We will address it no further.

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No. 2020AP996-FT

¶8 WISCONSIN STAT. § 51.20(1)(am) recognizes that “an individual’s
behavior might change while receiving treatment” and, accordingly, “provides a
different avenue for proving dangerousness if the individual has been the subject
of treatment for mental illness immediately prior to commencement of the
extension proceedings,” as the individual “may not have exhibited any recent overt
acts or omissions demonstrating dangerousness because the treatment ameliorated
such behavior.” Portage County v. J.W.K., 2019 WI 54, ¶19, 386 Wis. 2d 672,
927 N.W.2d 509. In that way, § 51.20(1)(am) is an “alternative evidentiary path,
reflecting a change in circumstances occasioned by an individual’s commitment
and treatment.” J.W.K., 386 Wis. 2d 672, ¶19. “However, dangerousness remains
an element to be proven to support both the initial commitment and any
extension.” Id.; see also D.J.W., 391 Wis. 2d 231, ¶34.

¶9 We review an extension order as a mixed question of fact and law.
D.J.W., 391 Wis. 2d 231, ¶24. We will uphold the court’s findings of fact unless
clearly erroneous. Id. Whether the facts in the record satisfy the statutory
standard for recommitment, however, is a question of law that this court reviews
de novo. Id., ¶25.

Hearsay

¶10 I.R.T. first argues that the circuit court’s recommitment order
erroneously relied on hearsay evidence. I.R.T. indicates that all the witnesses at
the hearing testified to facts that they had no personal knowledge of; specifically,
they described the events that led to I.R.T.’s initial commitment, and Weber

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No. 2020AP996-FT

testified about information from I.R.T.’s parents regarding his condition in 2019.3
According to I.R.T., pursuant to S.Y. v. Eau Claire County, 156 Wis. 2d 317, 457
N.W. 2d 326 (Ct App. 1990), “an examining doctor is permitted to rely on
inadmissible hearsay in forming his opinion, but the underlying hearsay is still
inadmissible.” We disagree that the circuit court relied on inadmissible hearsay.

¶11 Under WIS. STAT. § 907.03, an expert may rely on otherwise
inadmissible evidence, such as hearsay, if the evidence is of the type experts
typically rely on to form opinions. Looking to the statutes, WIS. STAT.
§ 51.20(1)(am) provides that the determination of whether an individual would be
a proper subject for commitment if treatment were withdrawn is based on a review
of the individual’s treatment records, and § 51.20(9)(a)5. provides examiners the
authority to review the individual’s treatment records to formulate his or her
opinions. See also Walworth County v. Therese B., 2003 WI App 223, ¶¶8, 17,
19-22, 267 Wis. 2d 310, 671 N.W.2d 377; Walworth Cnty. DHHS v. M.M.L.,
No. 2014AP2845, unpublished slip op. ¶¶15-18 (WI App July 15, 2015).

¶12 I.R.T. only specifically discusses Piering’s testimony, arguing that
Piering “only met briefly with [I.R.T.] in 2018, so he did not have first-hand
knowledge about the [events leading to I.R.T.’s initial commitment].” Piering
testified that he reached his opinion as to whether I.R.T.’s commitment should be
extended based on a review of the records, including “records of staff” and his
own prior evaluations in 2017 and 2018, as well as his personal observations based

3
I.R.T. acknowledges that trial counsel failed to object to this testimony at the hearing,
but he argues that under State v. Jorgensen, 2008 WI 60, ¶1, 310 Wis. 2d 138, 754 N.W.2d 77,
we may review the issue for plain error affecting his substantial rights. In the interest of finality,
we will address this issue briefly.

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No. 2020AP996-FT

on his meeting with I.R.T. in 2018. I.R.T does not argue that the records reviewed
by Piering, or any of the experts, were not proper records under WIS. STAT.
§ 907.03, and, in fact, Piering testified that this was “the type of information
usually relied on in the field for this type of evaluation.” Piering was asked to
provide the basis for his opinion that an extension of I.R.T.’s commitment was
appropriate, and he responded with general statements regarding I.R.T.’s past
behavior, which were supplemented by statements in his written report entered
into evidence. We do not agree, therefore, that these statements were offered for
the truth of the matter asserted, see WIS. STAT. § 908.01(3), but were offered only
to demonstrate the basis for his opinion. Further, in reaching its conclusion to
extend I.R.T.’s commitment, the circuit court did not rely on the underlying
hearsay facts; instead, it relied on the opinion testimony of Piering as to I.R.T.’s
dangerousness. See WIS. STAT. § 907.04. There was no error.4

Involuntary Commitment

¶13 I.R.T. next argues that there was insufficient evidence for the circuit
court to make a finding that he is dangerous.5 Although I.R.T. argued at the

4
Although I.R.T. briefly mentions Weber’s testimony regarding the report from I.R.T.’s
parents, he fails to develop this argument. Regardless, for similar reasons to those discussed
above, we conclude Weber was able to rely on the parents’ statements regarding I.R.T.’s
condition in 2019 in support of her opinion as to I.R.T.’s decompensation and that the orders
should be extended.
5
As an initial matter, I.R.T. faults the County and the circuit court for failing to specify
“which dangerousness prong it was attempting to prove.” I.R.T. acknowledges, however, that
WIS. STAT. § 51.20(1)(a)2.b. or d. are “two potentially applicable prongs.” In Langlade County
v. D.J.W., 2020 WI 41, ¶¶40-41, 391 Wis. 2d 231, 942 N.W.2d 277, our supreme court clarified
that “going forward circuit courts in recommitment proceedings are to make specific factual
findings with reference to the subdivision paragraph of § 51.20(1)(a)2. on which the
recommitment is based.” We have said previously, however, that the “going forward” language
precludes retroactive application to decisions of the circuit courts prior to D.J.W.’s release. See
Winnebago County v. S.H., 2020 WI App 46, ¶14, 393 Wis. 2d 511, 947 N.W.2d 761.

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hearing that the County did not have “100 percent proof” that he was mentally ill
and stated that he was being medicated for “being spiritual,” on appeal, I.R.T. does
not appear to contest the circuit court’s findings that he is mentally ill and is a
proper subject for treatment. See WIS. STAT. § 51.20(1)(a)1. I.R.T. only
challenges the finding that he is dangerous.

¶14 The testimony received at the hearing was as follows. Weber
testified that she began overseeing I.R.T.’s case in May 2018 to monitor his
treatment compliance. She explained that I.R.T. had not been in compliance since
April 2019: he had not taken medications, worked with outpatient prescribers, or
notified the County of his address or location. According to Weber, I.R.T. stopped
complying after his parole ended in an unrelated criminal case and he left his
group home. Weber’s report also explained that I.R.T.’s adoptive parents reported
that he was “experiencing increased paranoia, including thoughts that he is being
poisoned, and he acknowledged to them that he has been hearing voices.”

¶15 Malinovic testified that she met with I.R.T. briefly on the morning of
the hearing, “[a]nd in [her] brief interaction with [I.R.T], he’s quite—he was
somewhat agitated, he was hyperverbal, he was delusional.” Malinovic further
noted that “attempts” were made to discuss the advantages and disadvantages of
and alternatives to medication with I.R.T., but Malinovic “couldn’t get a word in,”
and I.R.T. said, “[W]hy are you putting me on a medication for being spiritual. I
don’t forgive people who inject me with medications.” Malinovic opined that
I.R.T was incapable of expressing an understanding of the advantages and
disadvantages of and alternatives to medication, and that it “would … be
necessary to have a medication[] order,” presumably because I.R.T. would refuse

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No. 2020AP996-FT

to take the medication without the order.6 In her report, Malinovic explained that
I.R.T. had “been off of medications for many months” and opined that I.R.T.
“needs to be re-stabilized” for “[a]t least 2 weeks, likely longer.”

¶16 Piering testified that he was “unable to meet with [I.R.T.] as …
[I.R.T.’s] whereabouts were unknown.” His report, then, was based on a record
review. Piering had also completed a report for I.R.T. in 2017 and 2018, and he
“actually spoke with [I.R.T.] in 2018.” Piering opined “to a reasonable degree of
professional certainty” that I.R.T. suffers from a treatable mental illness—bipolar
disorder7—and that he is a proper subject for treatment and requires medication
management. He explained that the symptoms of I.R.T.’s illness include “a
history of psychotic symptoms including paranoia, auditory hallucinations,
command hallucinations, delusional thinking, some threatening behavior, and
difficulty monitoring his mood.” When asked for the basis of his opinion that
I.R.T. would be a proper subject for commitment if treatment were withdrawn,
Piering generally referenced I.R.T.’s “longstanding psychiatric history,” “history
of noncompliance,” “history of psychotic symptoms[,] and threatening behaviors
toward others.” His written report provided more detail for the basis of his
opinion, indicating that I.R.T.

6
Although I.R.T. does not challenge the order for involuntary medication and treatment
on appeal, we note that Piering also testified that he did provide the required explanations about
medications to I.R.T. in 2018, and he believes I.R.T. is substantially incapable of applying an
understanding of the advantages, disadvantages, and alternatives to medication in order to make
an informed choice. See Outagamie County v. Melanie L., 2013 WI 67, ¶¶53-54, 349 Wis. 2d
148, 833 N.W.2d 607; WIS. STAT. § 51.61(1)(g)4.
7
Piering testified that I.R.T. suffers from bipolar disorder, but also mentioned a
diagnosis of schizoaffective disorder in his report. Malinovic also testified that I.R.T.
“historically has carried a diagnosis of schizoaffective disorder.”

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No. 2020AP996-FT

was reportedly terrorizing one of the staff member[s] and
actively hallucinating, talking about God, Devil, Satan. He
cornered the staff member and made her stand there stating
“bad things would happen” if she moved. He reports
hearing God’s/Jesus’ voice telling him to do “good things”
and Satan telling him to do “bad things.” He also lunged at
a staff worker…. He is guarded and warned staff he could
“blow up at any time.”

Piering also stated in his report that I.R.T. “was removed from his parents’ home
in his late teens because they were afraid he would kill his family. He has an
explosive temper.”

¶17 The circuit court did not err when it concluded that I.R.T is
dangerous. The basis of I.R.T.’s argument on appeal is that the evidence related to
I.R.T.’s dangerousness was based on “hearsay accounts of a singular event that
had occurred more than two years earlier” and that he had “managed” without the
County’s assistance for the six months prior to the most recent order, as he had
refused to comply with the court order then in effect. According to I.R.T.,
“[t]reatment was withdrawn, and [he] did not once again become a proper subject
for commitment because he was not dangerous during that time period.”

¶18 We have indicated that the purpose of WIS. STAT. § 51.20(1)(am) is

to avoid the ‘revolving door’ phenomena whereby there
must be proof of a recent overt act to extend the
commitment but because the patient was still under
treatment, no overt acts occurred and the patient was
released from treatment only to commit a dangerous act
and be recommitted ... [in] a vicious circle of treatment,
release, overt act, recommitment.

Winnebago County v. S.H., 2020 WI App 46, ¶9, 393 Wis. 2d 511, 947 N.W.2d
761 (alteration in original; citation omitted). This is why evidence presented
under the statute is rooted in the individual’s treatment record. See § 51.20(1)(am)
(“[T]he requirements of a recent overt act, attempt or threat to act … may be
satisfied by a showing that there is a substantial likelihood, based on the subject

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individual’s treatment record, that the individual would be a proper subject for
commitment if treatment were withdrawn.” (emphasis added)). As we stated in
S.H., “neither the statute nor the applicable case law requires an expert or circuit
court to speculate on the precise course of an individual’s impending
decompensation by identifying specific future dangerous acts or omissions the
individual might theoretically undertake without treatment” or at what point that
decompensation might take place. See S.H., 393 Wis. 2d 511, ¶13. Therefore,
“[d]angerousness in an extension proceeding can and often must be based on the
individual’s precommitment behavior, coupled with an expert’s informed opinions
and predictions (provided, of course, that there is a proper foundation for the
latter).” Id.

¶19 The court found that I.R.T. had not received treatment for six
months and that he had “in fact decompensated.” The experts’ discussion of
I.R.T’s recent decompensation, resulting from his failure to comply with his
treatment, was linked to his prior incidents involving dangerous behavior. The
court concluded that, based on the experts’ testimony, I.R.T. is mentally ill and a
proper subject for treatment, and further found that the dangerousness component
had been met. As the record on appeal supports this conclusion, the circuit court
correctly found that “there is a substantial likelihood, based on the subject
individual’s treatment record” that I.R.T. is dangerous pursuant to WIS. STAT.
§ 51.20(1)(a)2. such that he “would be a proper subject for commitment if
treatment were withdrawn.” See § 51.20(1)(am). We affirm.

By the Court.—Order affirmed.

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

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