Vilas County Department of Human Services v. N. J. P.

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.
December 15, 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. 2019AP1567 Cir. Ct. No. 2019ME7

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

IN THE MATTER OF THE MENTAL COMMITMENT OF N. J. P.:

VILAS COUNTY DEPARTMENT OF HUMAN SERVICES,

PETITIONER-RESPONDENT,

V.

N. J. P.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Vilas County:
NEAL A. NIELSEN III, Judge. Affirmed.

¶1 SEIDL, J.1 John2 appeals orders committing him to inpatient
treatment and involuntary medication for a period of six months. He argues the

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2017-18). All
references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
No. 2019AP1567

Vilas County Department of Human Services (the Department) failed to establish
by clear and convincing evidence that he is dangerous under any of the five
standards set forth by WIS. STAT. § 51.20(1)(a)2. We agree with the circuit court
that there is clear and convincing evidence that John is dangerous under the fourth
standard, § 51.20(1)(a)2.d. Therefore, we affirm.

BACKGROUND

¶2 On January 28, 2019, investigator Brian Rates of the Lac du
Flambeau Tribal Police Department filed a “Statement of Emergency Detention by
Law Enforcement Officer,” stating that he had cause to believe that John was
mentally ill and could cause physical harm to himself or others. According to the
detention statement, police department staff had observed John on January 25,
2019, “acting very suspicious as he was video taping the inside of the Police
Department and staff, through the lobby window.” Rates subsequently made
contact with John in a nearby parking lot.

¶3 Rates observed John to have “very dirty, torn, ragg[ed]y clothing.”
Rates had prior knowledge that John was not allowed at the homeless shelter in the
area due to a recent incident involving him. Accordingly, Rates asked John where
he was currently staying, to which he responded with “very erratic” statements
that “did not make logical sense.” In Rates’ opinion, John acted “extremely
paranoid.” After consulting with a Vilas County crisis screener, Rates detained
John pursuant to WIS. STAT. § 51.15 because of John’s suspicious behavior,
incoherent statements, and failure to dress for the subzero temperatures at the time.

2
Following N.J.P.’s lead, and pursuant to policy underlying WIS. STAT. RULE 809.86,
we refer to him using the pseudonym “John.”

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¶4 On January 30, 2019, the circuit court held a probable cause hearing.
The court found there was probable cause to believe John was mentally ill, a
proper subject for treatment, and dangerous to himself or others. The court
additionally ordered the involuntary administration of medication, finding
probable cause to believe that John was not competent to refuse psychotropic
medication or treatment because, due to his mental illness, he was “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.”

¶5 A final hearing was held on February 8, 2019. Two witnesses
testified at the hearing, Drs. Marshal Bales and Shari Weyenberg, both of whom
had filed written reports with the circuit court prior to the hearing.

¶6 Doctor Bales testified he is a psychiatrist with Outagamie County
and evaluated John at the Winnebago Mental Health Institute on January 31, 2019.
Bales opined that John had bipolar disorder, was “clearly in a manic psychotic
state,” and had some borderline personality traits. Additionally, Bales testified
that John’s thought, mood, and perception were substantially impaired and that his
judgment, behavior, capacity to recognize reality, and ability to meet the ordinary
demands of life were grossly impaired. Bales also testified that he believed John
was a proper subject for treatment.

¶7 According to Dr. Bales, John was dangerous “in a number of ways.”
Relevant to the issues on appeal, Bales testified John would not pursue voluntary
treatment. Bales further opined that John would “not … be able to live anywhere.
No one can handle him. No homeless shelters. Maybe the jail. But he[] doesn’t

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have active criminal issues right now. So I just think this is dangerous and he just
will not get the help he needs.”

¶8 Further, Dr. Bales opined that John was not capable of applying and
understanding the advantages and disadvantages of treatment. Bales explained:

I spoke to the nurse today[] [f]rom his psychiatric unit and
[the nurses believe] he’s been cheeking and spitting out his
medications …. [A]nd with my discussion with him as
well[,] [h]e just couldn’t have any kind of rational
discussion about his medication. He said he was allergic to
all of the psychiatric medications. All of them. And he just
was irrational. He denies mental illness. But then he wants
to blame everybody that tried, the police, the doctors that
call[] him mentally ill. He wants to, you know, it’s just
irrational and paranoid. And he’s also manic with this.

Accordingly, Bales thought a medication order was necessary because John would
not take medications voluntarily. Bales admitted on cross-examination that the
nurses did not know “for sure” whether John had been “cheeking his meds,” but
Bales testified such conduct was “highly suspected,” in part because John made
irrational comments about the side effects of certain medicines. Thus, Bales
opined that John “needs to get back on his medications and he can transition to
outpatient care once they say he’s stable.”

¶9 Doctor Weyenberg is a psychologist who also examined John in
person prior to the hearing. She opined that John had paranoia and met the
standard for schizophrenia. Weyenberg testified that John’s condition
substantially impaired his thought, mood, perception, orientation and/or memory.
In her view, John’s judgment, behavior, capacity to recognize reality, and ability
to meet the ordinary demands of life were grossly impaired by his illnesses.
Weyenberg further opined that an involuntary medication order was necessary

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because John was incapable of applying and understanding the advantages and
disadvantages of receiving psychotropic medications.

¶10 Additionally, Dr. Weyenberg testified John was a proper subject for
treatment and was dangerous “[t]o himself as far as [his] ability to care for
himself.” She explained that her opinion of him being dangerous to himself was
based on John’s condition at the time of his emergency detention, when “he was
wearing clothes that were raggedy, dirty. He had poor hygiene…. [H]e was
making comments of paranoia. And … he went out with little clothing. Just a
T-shirt. A torn shirt in 20 below zero weather.”

¶11 At the close of evidence, the circuit court concluded that the
Department “clearly” had met its burden of demonstrating John suffered from a
mental illness and that his condition was treatable. The court remarked, however,
that whether he was dangerous to himself or others was “razor close.” Although
the court determined there was insufficient evidence that John was dangerous to
others, it ultimately concluded that John was a danger to himself.

¶12 The circuit court found that John, due to the extremely cold weather
on the day of his emergency detention, “put himself in a situation where there was
a threat of serious physical harm to himself. Based on his grossly impaired
judgment.” It stated that “it’s clear to the Court from [the doctors’] testimony and
reports that without adequate treatment, [John’s] condition will deteriorate. That
means on his own, his circumstances will not improve.” It explained further:

I do find that recent acts of or omissions by [John] due to
his mental illness, he’s unable to satisfy basic needs for
shelter or safety. And perhaps for nourishment or medical
care because he doesn’t have any insight into his
psychiatric needs to a degree that there is a substantial
probability that he could suffer serious physical
debilitation. Unless he receives that prompt and adequate

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No. 2019AP1567

treatment for his illness, he doesn’t recognize the need.
Doesn’t recognize the degree of severity of his illness. And
specifically opposes taking medications that will without
question provide him relief from current … symptoms and
help him. So very close case I think from the element of
dangerousness. But I do find sufficient dangerousness
based on the factors that I’ve just addressed.

¶13 Accordingly, the circuit court ordered John committed for six
months. The court also ordered John to undergo involuntary medication and
treatment during the entire commitment period. John now appeals.3

DISCUSSION

¶14 In order to commit John under WIS. STAT. ch. 51, the Department
has the burden to show by clear and convincing evidence that he meets one of the
five statutory standards of dangerousness set forth in WIS. STAT. § 51.20(1)(a)2.
See Langlade Cnty. v. D.J.W., 2020 WI 41, ¶23, 391 Wis. 2d 231, 942 N.W.2d
277 (citing WIS. STAT. § 51.20(13)(e)). Whether the Department presented
sufficient evidence that John is dangerous under one of the five statutory standards
is a mixed question of law and fact. See id., ¶¶23-24. We will uphold a circuit
court’s findings of fact unless they are clearly erroneous. Id., ¶24. Whether the
facts satisfy the statutory standard of dangerousness is a question of law that we
review independently. Id., ¶25.

3
Although John indicates in his notice of appeal that he is appealing both the order for
commitment and the order for involuntary medication and treatment, he does not develop a
separate argument regarding the reversal of the latter order. His position appears to be that if his
commitment is unlawful, the involuntary medication and treatment order would then be unlawful
as well. Because John makes no developed argument on whether the Department proved the
criteria of WIS. STAT. § 51.61(1)(g)4. for the circuit court to order his involuntary medication and
treatment, we do not further address that issue. See Industrial Risk Insurers v. American Eng’g
Testing, Inc., 2009 WI App 62, ¶25, 318 Wis. 2d 148, 769 N.W.2d 82 (stating that this court will
not abandon its neutrality to develop arguments for a party).

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¶15 As a threshold matter, the parties dispute which standard of
dangerousness is at issue on appeal. The fourth statutory standard of
dangerousness requires the Department to demonstrate that John

[e]vidences behavior manifested by recent acts or
omissions that, due to mental illness, he … is unable to
satisfy basic needs for nourishment, medical care, shelter or
safety without prompt and adequate treatment so that a
substantial probability exists that death, serious physical
injury, serious physical debilitation, or serious physical
disease will imminently ensue unless [he] receives prompt
and adequate treatment for this mental illness ….

WIS. STAT. § 51.20(1)(a)2.d. For John to be found dangerous under the fifth
standard, § 51.20(1)(a)2.e., the Department must demonstrate that

after the advantages and disadvantages of and alternatives
to accepting a particular medication or treatment have been
explained to him … and because of mental illness, [John]
evidences either incapability of expressing an
understanding of the advantages and disadvantages of
accepting medication or treatment and the alternatives, or
substantial incapability 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;
and evidences a substantial probability, as demonstrated by
both the individual’s treatment history and his … recent
acts or omissions, that the individual needs care or
treatment to prevent further disability or deterioration and a
substantial probability that he … will, if left untreated, lack
services necessary for his … health or safety and suffer
severe mental, emotional, or physical harm that will result
in the loss of the individual’s ability to function
independently in the community or the loss of cognitive or
volitional control over his … thoughts or actions. The
probability of suffering severe mental, emotional, or
physical harm is not substantial under this subd. 2.e. if
reasonable provision for the individual’s care or treatment
is available in the community and there is a reasonable
probability that the individual will avail himself … of these
services ….

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¶16 The circuit court determined John was dangerous under the fourth
standard: “I do find that recent acts of or omissions by [John] due to his mental
illness, he’s unable to satisfy basic needs for shelter or safety.” The written
commitment order is consistent with the court’s oral pronouncement, in which it
notes John “evidences behavior within one or more of the standards under
§§ 51.20(1) or (1m), Wis. Stats. (except for proceedings under §51.20(1)(a)2.e.,
Wis. Stats.)”—i.e., the fifth standard. John thus argues in his brief-in-chief that the
court erred because the Department failed to present sufficient evidence that he
was dangerous under the fourth standard.

¶17 Surprisingly, the Department responds that we should affirm John’s
commitment only on the fifth standard of dangerousness. In other words, it makes
no appellate argument that there is clear and convincing evidence John is
dangerous under the fourth standard. In fact, the Department maintains that the
fourth standard “is inapplicable to the case at bar,” even though the circuit court
determined John dangerous under the fourth standard. As a result, John argues in
his reply brief that the Department has conceded that there is insufficient evidence
of dangerousness to commit John under the first four statutory standards. See
State v. Hurley, 2015 WI 35, ¶61 n.20, 361 Wis. 2d 529, 861 N.W.2d 174.

¶18 However, we are not bound by a party’s alleged concession,
particularly one involving a question of law. See id.; see also Cramer v.
Eau Claire Cnty., 2013 WI App 67, ¶11, 348 Wis. 2d 154, 833 N.W.2d 172.
Under the circumstances of this case, we decline to deem the Department to have
conceded that there was insufficient evidence to commit John under the fourth
standard by its failure to respond to his arguments in his brief-in-chief. The
Department’s position that the fourth standard is inapplicable to the facts of this
case belies the record and plainly ignores the circuit court’s decision. We

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therefore proceed to address the merits of John’s argument regarding the
sufficiency of the evidence on his commitment under the fourth standard, and we
decline to address the Department’s argument and John’s arguments in his reply
brief regarding the fifth standard. See Sweet v. Berge, 113 Wis. 2d 61, 67, 334
N.W.2d 559 (Ct. App. 1983) (observing that this court need not address an issue
when resolution of another issue is dispositive to the appeal).

¶19 We conclude the Department presented clear and convincing
evidence that John is dangerous under the fourth standard. John’s recent inability
to properly dress himself to be outside with temperatures twenty degrees below
zero and his inability to live at a homeless shelter or some similar location because
“[n]o one can handle him” are evidence that he is unable to satisfy his basic needs
for shelter or safety.

¶20 Additionally, Drs. Bales’ and Weyenberg’s testimony provided
evidence that John’s inability to satisfy his basic needs is caused by his mental
illness. Bales testified John’s thought, mood, and perception were substantially
impaired and that his judgment, behavior, capacity to recognize reality, and ability
to meet the ordinary demands of life were grossly impaired. Similarly,
Weyenberg testified John’s condition substantially impaired his thought, mood,
perception, orientation and/or memory and that John’s judgment, behavior,
capacity to recognize reality, and ability to meet the ordinary demands of life were
grossly impaired. The doctors’ testimony provides a reasonable explanation to
why John was outside in subzero temperatures without proper attire, and, thus, is
evidence that John cannot satisfy his basic needs due to his mental illness.

¶21 Finally, the doctors’ testimony provided evidence that a substantial
probability exists in which John could incur imminent death, serious physical

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injury, debilitation, or disease unless he received prompt and adequate treatment
for his mental illness. After meeting with John in person, both doctors opined that
he cannot care for himself because his judgment and capacity to recognize reality
are substantially impaired. Accordingly, a reasonable inference from John being
outside in temperatures twenty degrees below zero without proper clothing is that
he lacks the capacity to recognize situations in which he faces a substantial
probability of, at a minimum, serious physical injury or debilitation. We therefore
agree with the circuit court that there is clear and convincing evidence that John is
dangerous under WIS. STAT. § 51.20(1)(a)2.d.

By the Court.—Orders affirmed.

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

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