Sheboygan County v. M.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.
May 12, 2021
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. 2021AP6 Cir. Ct. No. 2006ME163

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

IN THE MATTER OF THE MENTAL COMMITMENT OF M.W.:

SHEBOYGAN COUNTY,

PETITIONER-RESPONDENT,

V.

M.W.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Sheboygan County:
KENT R. HOFFMANN, Judge. Reversed and remanded.
No. 2021AP6

¶1 GUNDRUM, J.1 M.W. appeals from an order of the circuit court
extending her involuntary mental health commitment and also challenges an order
for involuntary medication and treatment. She argues that the circuit court failed
to specifically identify the WIS. STAT. § 51.20(1)(a)2. subdivision paragraph or
paragraphs on which it based its recommitment and medication orders, the County
failed to present sufficient evidence that M.W. was “dangerous” pursuant to WIS.
STAT. ch. 51, and the County failed to provide M.W. with sufficient notice of the
standard of dangerousness under which it was pursuing her recommitment. We
reverse on the first ground, but only after addressing the “notice” issue.

Background

¶2 M.W. has been the subject of commitment orders under WIS. STAT.
ch. 51 since 2006. In August 2020, the County filed the present petition to extend
M.W.’s mental health commitment. The County also sought an involuntary
medication and treatment order. Prior to the hearing on the recommitment, M.W.
filed a motion in limine seeking inter alia notice forty-eight hours prior to the
recommitment hearing of which standard of dangerousness under WIS. STAT.
§ 51.20(l)(a)(2)a.-e. the County intended to proceed.

¶3 The circuit court held a hearing on the petition on October 9, 2020.
The court denied M.W.’s motion in limine concluding, as relevant here, that
nothing required the County to “identify precisely which [standard of
dangerousness it is] going to proceed under and the doctor’s report does have that
information contained in it.” Dr. Marshall Bales, the independent examiner who

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(d) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.

2
No. 2021AP6

interviewed M.W., and Emilee Sesing, the case worker assigned to M.W., testified
for the County at the recommitment hearing. M.W. also testified.

¶4 The circuit court granted the County’s petition for recommitment
and entered an order for involuntary treatment and medication. The court
concluded that the County proved by clear and convincing evidence that M.W.
suffers from a mental illness, that she would be a proper subject for commitment if
treatment were withdrawn, and that she is a danger to herself or others. M.W.
appeals.2

Discussion

¶5 As relevant here, for the circuit court to order an extension of
M.W.’s involuntary mental health commitment, the County had to prove by clear
and convincing evidence that she is mentally ill, a proper subject for treatment,
and dangerous pursuant to WIS. STAT. §§ 51.20(1)(a)2., 51.20(1)(am). See
§ 51.20(1)(a), (13)(e); see also Waukesha County v. J.W.J., 2017 WI 57, ¶20, 375
Wis. 2d 542, 895 N.W.2d 783 (“Upon each petition to extend a term of
commitment, a county must establish the same elements [as an initial
commitment] with the same quantum of proof.”). M.W. does not dispute the
circuit court’s conclusions that she is mentally ill and a proper subject for
treatment. She insists, however, that the court erred in concluding the County met
its burden to prove she is dangerous. Additionally, M.W. argues that the County
failed to provide her with sufficient notice of the standard of dangerousness under
§ 51.20(1)(a)2. under which it was pursuing her recommitment, and that the court

2
Although M.W. challenges the circuit court order for involuntary medicine and
treatment, she does not address that order separately.

3
No. 2021AP6

failed to comply with the requirement set forth by our supreme court in Langlade
County v. D.J.W., 2020 WI 41, ¶¶40, 45, 59, 391 Wis. 2d 231, 942 N.W.2d 277,
that it identify the statutory standard of dangerousness it relied upon in ordering
M.W.’s recommitment.

¶6 Whether the County has met its burden of proof to support M.W.’s
recommitment presents a mixed question of law and fact. See J.W.J., 375 Wis. 2d
542, ¶15. “[T]he circuit court’s findings of fact are reviewed for clear error, but
application of those facts to the statute and interpretation of the statute are
reviewed independently.” Winnebago County v. Christopher S., 2016 WI 1, ¶50,
366 Wis. 2d 1, 878 N.W.2d 109. “Due process determinations are questions of
law we decide de novo.” Waukesha County v. S.L.L., 2019 WI 66, ¶10, 387
Wis. 2d 333, 929 N.W.2d 140 (citation omitted).

Notice

¶7 M.W. asserts that her due process rights were violated because the
County failed to identify in advance of the recommitment hearing a specific WIS.
STAT. § 51.20(1)(a)2. paragraph(s) under which it was seeking recommitment.
With regard to proceedings under WIS. STAT. ch. 51, a harmless error rule applies.
See Winnebago County v. A.A.L., No. 2020AP1511, unpublished slip op. ¶13 (WI
App Mar. 24, 2021)3; see also sec. 51.20(10)(c) (“The court shall, in every stage
of an action, disregard any error or defect in the pleadings or proceedings that does
not affect the substantial rights of either party.”).

3
Any unpublished cases referred to in this decision are relied upon because of their
persuasive value. See WIS. STAT. RULE 809.23(3)(b).

4
No. 2021AP6

¶8 In this case, Dr. Bales’ report presented facts and utilized language
suggesting that subdivision paragraphs d. and e. were at issue.4 See A.A.L.,
No. 2020AP1511, ¶13 (addressing a similar “notice” issue, we observed that “the
examiners’ reports indicated [to A.A.L.] the standards the examiners believed
were applicable to A.A.L.”). We note that M.W. put forth a vigorous defense at
the hearing and, significantly, she fails to identify on appeal what if anything she
would have done differently if the County had provided more specific notice than
what it provided through the doctor’s report.5 While M.W. briefly claims that any
notice error amounted to structural error, this point is undeveloped and raised for
the first time in her reply brief, therefore we do not consider it. See ABKA Ltd.
P’ship v. Board of Rev., 231 Wis. 2d 328, 349 n.9, 603 N.W.2d 217 (1999) (“This
court will not address undeveloped arguments.”); Brooks v. Hayes, 133 Wis. 2d

4
In the section of Dr. Bales’ report entitled “Relevant information relative to
dangerousness,” Bales summarizes (after previously providing specific factual details):

This individual does not appear to be suicidal nor physically
assaultive and that is validated by the review of many recent
records, however, this individual is clearly endangered due to her
inability to care for her basic needs. She has grossly impaired
insight. There was an effort made to set her up with an
apartment independently, but reportedly that "lasted 24 hours."
She cannot care for herself adequately due to her severe manic
and psychotic condition. She has a tendency to not pursue
voluntary treatment either and if left untreated is going to suffer
severe mental, emotional or physical harm that is going to affect
her ability to function independently in the community. If she
were to have her commitment allowed to expire, in my opinion,
she will almost certainly be endangered in a very short order.
She will stop her medications as well and will become a proper
subject for commitment quickly.

(Emphasis added.)
5
The most M.W. asserts on appeal is that “had she known under which standard of
dangerousness the County was going to pursue the recommitment, she may have prepared
differently, including possibly calling different witnesses.” (Emphasis added.)

5
No. 2021AP6

228, 241, 395 N.W.2d 167 (1986) (“The general rule is that this court will not
consider arguments raised for the first time on appeal or review.”). We conclude
that M.W.’s substantial rights were not affected by the County’s failure to provide
greater specificity with regard to the subsections under which it was pursuing her
recommitment. See also Winnebago County v. D.D.A., No. 2020AP1351,
unpublished slip op. ¶11 (WI App Dec. 23, 2020).

Failure to follow D.J.W. “requirement”

¶9 One year ago, in Langlade County v. D.J.W., our supreme court
unambiguously stated, repeatedly, that it was instituting a new “requirement” that
“going forward” “circuit courts in recommitment proceedings are to make specific
factual findings with reference to the subdivision paragraph of [WIS. STAT.]
§ 51.20(1)(a)2. on which the recommitment is based.” D.J.W., 391 Wis. 2d 231,
¶¶40, 45, 59 (emphasis added). The court noted the “important liberty interest at
stake” with a recommitment and further added that where involuntary medication
is a possibility, “[t]he stakes of a recommitment proceeding are further
heightened,” adding that “[a]dministration of psychotropic drugs is no small
matter.” Id., ¶43 & n.7. As we stated after D.J.W. “[t]hese cases should be held
to the highest legal standards.” A.A.L., No. 2020AP1511, ¶17. The reasons for
this are to “provide[] clarity and extra protection to patients regarding the
underlying basis for a recommitment,” “ensure that recommitments are based on
sufficient evidence,” “clarify issues raised on appeal of recommitment orders,”
and “ensure the soundness of judicial decision-making, specifically with regard to
challenges based on the sufficiency of the evidence.” D.J.W., 391 Wis. 2d 231,
¶¶42–44.

6
No. 2021AP6

¶10 In this case, the record shows, and the County acknowledges that the
circuit court failed to state the subdivision paragraph of WIS. STAT. § 51.20(1)(a)2.
on which it based M.W.’s recommitment. Furthermore, in its ruling, the court
failed to clearly track the necessary elements of any particular subdivision
paragraph and state how the evidence satisfied those elements. In D.J.W., our
supreme court fully intended to do away with the “guesswork” of WIS. STAT.
ch. 51 proceedings and require the circuit courts to be clear and specific, for the
reasons already stated. D.J.W., 391 Wis. 2d 231, ¶45 (“In the future, such
guesswork will be avoided by our newly instituted requirement for specific factual
findings with reference to a subdivision paragraph of § 51.20(1)(a)2.”). Such
clarity and specificity is lacking in the court’s ruling in this case, and we will not
engage in guesswork to determine whether the County provided sufficient
evidence to satisfy the dangerousness requirement of § 50.20(1)(a)2. See Rock
Cnty. DHS v. J.E.B., 2020AP1954-FT, unpublished slip op. ¶26 (WI App Apr. 7,
2021) (“The County essentially asks that [we] engage in the kind of ‘guesswork’
that D.J.W. seeks to avoid. [We] decline to engage in such guesswork on
appeal.”).

¶11 Oftentimes evidence presented at a recommitment hearing will relate
to more than one subdivision paragraph of WIS. STAT. § 51.20(1)(a)2. Elements
from one paragraph may be met with some of the evidence referenced by the
circuit court and elements of a different paragraph may be met with the same or
different evidence referenced by the court. D.J.W. made it clear that it is not the
job of an appellate court to try to piece together court comments like pieces of a
jigsaw puzzle in an effort to figure out what the picture is. The circuit court
should state precisely under what subdivision paragraph the court is determining
dangerousness and, of course, identify the specific elements necessary for a

7
No. 2021AP6

determination of dangerousness under that subdivision paragraph and the evidence
that meets the various elements.

¶12 The County asserts that despite the circuit court failing to “specify
by statute number which of the standards under [WIS. STAT.] § 51.20(1)(a)2.a.-e.
M.W. would become dangerous under if treatment were withdrawn[,]” we can
nonetheless divine that the court found that M.W. would become dangerous under
§ 51.20(1)(a)2.e. This is not clear from the record and, as stated, we will not
engage in the “guesswork” that our supreme court attempted to end with its
decision in D.J.W. While it is true that the circuit court here at one point stated
“there is a substantial probability that if left untreated she is going to lack the
services necessary for her health or safety” and this statement tracked some of the
language from subdivision paragraph e., other key parts of subdivision paragraph
e. are absent. For example, subdivision paragraph e. requires a finding not only
that there is a “substantial probability that [M.W.] will, if left untreated, lack
services necessary for … her health or safety” but immediately thereafter
continues with “and suffer severe mental, emotional, or physical harm that will
result in the loss of [her] ability to function independently in the community or the
loss of cognitive or volitional control over … her thoughts or actions.” We can
find no language in the court’s decision clearly referencing this latter, but critical,
language.

¶13 Furthermore, in its ruling, the circuit court discusses “recent acts” by
M.W. demonstrating her “impaired judgment,” particularly related to “recent acts”
of a “delusional” phone call M.W. had with Dr. Bales and an incident months
earlier in which M.W. “eloped” from the treatment facility she was at and made
her way to New Mexico with her boyfriend. The court found Dr. Bales’ testimony
credible related to M.W. being “a danger to herself or others.” This language

8
No. 2021AP6

could have been an attempt by the court to make a finding of dangerousness under
subdivision paragraph c., which requires that the individual “[e]vidences such
impaired judgment, manifested by evidence of a pattern of recent acts or
omissions, that there is a substantial probability of physical impairment or injury
to himself or herself or other individuals.” See WIS. STAT. § 51.20(1)(a)2.c.
(emphasis added).

¶14 In J.E.B., 2020AP1954-FT, we recently addressed an issue similar
to this. As in this case, in J.E.B., it was “undisputed that the circuit court did not
cite any” of the subdivision paragraphs a.-e. See J.E.B., 2020AP1954-FT, ¶21.
Despite the fact that some of the court’s comments could be construed to “tie
back” or “allude” to a specific paragraph, we held that such comments were
“insufficient” and failed to “satisfy” the D.J.W. requirement that the court make
“specific factual findings” regarding a standard in a particular paragraph “‘with
reference to’ that paragraph.” J.E.B., 2020AP1954-FT, ¶¶23, 25 (citation
omitted). Our remedy was to “reverse the court’s recommitment and involuntary
medication orders” and “remand [the] matter to the circuit court with directions to
follow the dictates of D.J.W.” Id., ¶27. We added that

[i]f, on remand, and after further review of the evidence,
D.J.W., and the five dangerousness standards in WIS. STAT.
§ 51.20(1)(a)2.a.-e., the circuit court again determines that
the County has met its burden of showing current
dangerousness under § 51.20(1)(a)2., then the court must
“make specific factual findings with reference to the
subdivision paragraph of WIS. STAT. § 51.20(1)(a)2. on
which the recommitment is based” as required by D.J.W.

Id. (citation omitted). We follow this same remedy in this case and thus reverse
and remand.

By the Court.—Order reversed and remanded.

9
No. 2021AP6

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

10