Barron County v. K. L.

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 9, 2022
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. 2021AP133 Cir. Ct. No. 2013ME26

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

IN THE MATTER OF THE MENTAL COMMITMENT OF K. L.:

BARRON COUNTY,

PETITIONER-RESPONDENT,

V.

K. L.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Barron County:
MAUREEN D. BOYLE, Judge. Affirmed.

¶1 HRUZ, J.1 Kayla2 appeals from an order extending her WIS. STAT.
ch. 51 involuntary commitment and from an order for involuntary medication and

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.
No. 2021AP133

treatment. Kayla contends that these orders must be reversed because the circuit
court failed to specify the subdivision paragraph of WIS. STAT. § 51.20(1)(a)2.
under which it found her to be dangerous, as required by Langlade County v.
D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277. In response,
Barron County (“the County”) argues that the court’s failure to reference a specific
subdivision paragraph of § 51.20(1)(a)2. was harmless because Kayla has not
challenged the sufficiency of the evidence to support the court’s determination of
dangerousness and because it is clear, based on the court’s findings and the record,
that the court found Kayla to be dangerous under § 51.20(1)(a)2.d.

¶2 We agree that, under the circumstances of this case, any error by the
circuit court in failing to reference a specific subdivision paragraph of WIS. STAT.
§ 51.20(1)(a)2. was harmless. We therefore affirm the court’s order extending
Kayla’s involuntary commitment and the order for involuntary medication and
treatment.3

BACKGROUND

¶3 In March 2013, Kayla was taken into custody pursuant to a
statement of emergency detention. A stipulated commitment order was entered on
March 12, 2013, for a period of six months. On September 4, 2013, the parties

2
For ease of reading, we use a pseudonym when referring to the appellant in this
confidential matter.
3
Kayla does not separately challenge the order for involuntary medication and treatment.
She argues only that the recommitment order was erroneously entered due to the circuit court’s
failure to specify the subdivision paragraph of WIS. STAT. § 51.20(1)(a)2. under which it found
her to be dangerous. Kayla does not dispute that, under the specific circumstances of this case, if
the recommitment order was valid, then the involuntary medication order was also valid. We
therefore confine our analysis to the validity of the recommitment order, without separately
addressing the involuntary medication order.

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stipulated to a one-year extension of Kayla’s commitment. Additional orders
extending Kayla’s commitment were entered in March 2014, February 2015,
February 2016, May 2016, May 2017, April 2018, April 2019, and April 2020.

¶4 On May 12, 2020, the County filed the petition to extend Kayla’s
commitment that is at issue in this appeal. The petition did not specify under
which subdivision paragraph or paragraphs of WIS. STAT. § 51.20(1)(a)2. the
County believed Kayla to be dangerous. The petition merely alleged that Kayla
was dangerous because there was a substantial likelihood, based on her treatment
record, that she would be a proper subject for commitment if treatment were
withdrawn. See § 51.20(1)(am).

¶5 A recommitment hearing took place before the circuit court on
July 1, 2020. At the hearing, psychiatrist William Platz testified that he had
examined Kayla in March 2020 and had subsequently reviewed her treatment
records and discussed her care with her treatment team. Platz’s written report was
received into evidence during the recommitment hearing.

¶6 Doctor Platz opined that Kayla suffers from schizophrenia, which
can result in delusions and hallucinations. He testified that Kayla exhibits
paranoia and threatening behavior, and he specifically noted that Kayla had
threatened to punch her case manager during the previous year. Platz also testified
that Kayla suffers from impaired judgment or behavior and that she shows no
insight into her condition.

¶7 With respect to the issue of dangerousness, Dr. Platz opined, based
on Kayla’s treatment records, that there was a substantial likelihood that Kayla
would again become a proper subject for commitment if treatment were
withdrawn. More specifically, Platz agreed that without treatment, Kayla “would

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be unable to satisfy her basic needs for … nourishment, medical care, shelter, or
safety.” Platz also agreed that if treatment were withdrawn, there was a
substantial probability “that serious injury or serious debilitation might
[imminently] ensue.” In addition, Platz testified that without treatment, Kayla’s
impaired judgment “would result in [a] substantial probability of physical harm to
herself or others.”

¶8 In support of those conclusions, Dr. Platz noted that Kayla’s
treatment records showed she had a history of disorganized thinking and had been
unable to care for herself in the past. Platz also noted that Kayla had been
hospitalized at a behavioral health unit in November 2019 after “exhibiting
dangerous behaviors towards herself,” specifically, “severe weight loss and lack of
ability [to] care for herself.” During that hospitalization, it was noted that Kayla
had multiple broken ribs, but Kayla did not know how those injuries had occurred.
Following Kayla’s November 2019 hospitalization, she was admitted to a group
home and was subsequently transferred to a second group home. Platz testified
that the most recent records from Kayla’s group home indicated that she was
having a difficult time caring for herself and completing basic activities of daily
living.

¶9 Doctor Platz also observed that while living independently prior to
the November 2019 hospitalization, Kayla had presented as being disheveled and
wearing clothes that did not fit her properly, and she often entered public areas
without appropriate attire. Platz specifically noted that Kayla had received a
public nuisance citation within the past year for exposing herself to other residents
of her apartment building.

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¶10 Doctor Platz opined that without psychotropic medications, there
was a “high probab[ility]” that Kayla’s paranoia toward others and her current
behaviors would escalate. He noted that Kayla had a history of being threatening
toward others when symptomatic, and he opined that such behavior would once
again be a concern if treatment were withdrawn. Platz also opined that, without a
commitment order, Kayla would “discontinue psychiatric services, experience an
increase in paranoia and disorganized behavior, and she [would] not have the case
management services for assistance in maintaining her household.”

¶11 Amelia Collins, Kayla’s case manager through the Barron County
Department of Health and Human Services, also testified at the recommitment
hearing. Collins testified that when Kayla was living independently, Kayla missed
two scheduled appointments with her treating physician and six scheduled
appointments with Collins. Kayla also missed nine appointments to receive an
injectable medication used to treat her schizophrenia. Kayla told Collins that she
did not believe she needed medications because her condition was “spiritual.” On
one occasion, Kayla threatened to punch Collins if Collins came into one of
Kayla’s appointments.

¶12 Collins further testified that in November 2019, Kayla was admitted
to an inpatient psychiatric unit for approximately two weeks after Kayla’s landlord
reported that Kayla was presenting in the common areas of her apartment building
inappropriately dressed, with poor hygiene and grooming, and displaying odd
behaviors. At that time, Kayla had lost twenty-four pounds over the prior

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ten-month period.4 After Kayla was discharged from inpatient treatment, she was
transferred to a group home, with the plan being that she would return to her
apartment upon discharge from the group home. That did not occur, however,
because staff at the group home reported two instances in which Kayla was
“unconscious and unresponsive.” Kayla was therefore transferred to a different
group home to ensure that she was medically stable.

¶13 Collins testified that the County’s ultimate plan was for Kayla to
return to her apartment. Collins explained, however, that precautions related to
the COVID-19 pandemic were making it difficult to meet that goal. In addition,
Collins testified that Kayla was not yet able to perform activities of daily living
independently. Collins explained that Kayla presented in public without
appropriate clothes, causing her to expose herself, presented with poor hygiene
and grooming, and was not oriented to time. Collins acknowledged that Kayla had
made progress in those areas while in the group home, but she explained that
Kayla required “prompts” from the group home’s staff to complete activities of
daily living, such as showering, performing hygiene-related tasks, and preparing
meals. Collins also testified that, in the fall of 2019, Kayla’s landlord informed
Collins that if Kayla did not “get mental health care,” the landlord would likely
pursue eviction because Kayla “was making the apartment [building] … not
livable for other residents.”

4
During her testimony at the recommitment hearing, Kayla asserted that she is five feet,
four inches tall, that she previously weighed 147 pounds, and that she “got down to 110 pounds”
because she wanted to lose weight. Kayla’s daughter testified that Kayla has “always been a thin
girl.” Nevertheless, Kayla’s daughter stated she found it “surprising” that Kayla had reportedly
lost twenty-four pounds “over a year.”

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¶14 Collins recommended that Kayla’s commitment be extended for a
period of one year. She specifically testified that, without treatment, Kayla would
be unable to satisfy her basic needs. Upon questioning by the court, Collins
agreed that the “concern” regarding Kayla was that “if she’s not showing up for
her appointments to get her medication, … she’s not eating, she’s not caring for
herself,” that behavior “will result in another hospitalization.”

¶15 Kayla and her daughter also testified at the recommitment hearing.
Thereafter, during its closing argument, the County asserted the evidence showed
that Kayla was dangerous under WIS. STAT. § 51.20(1)(am) because there was a
“substantial likelihood, based on [her] treatment record, that [she] would be a
proper subject for [c]ommitment if treatment were withdrawn.” In support of that
proposition, the County cited Dr. Platz’s testimony that Kayla “would become a
danger to herself if treatment were withdrawn, based on her impaired judgment
and her inability to care for herself and satisfy her basic needs.” The County also
cited Collins’ testimony “along the same lines, that the concern was … by not
eating, not caring for herself, not taking her medications as required, it would
result in re-hospitalizations.” The County argued Collins’ testimony showed that
when Kayla is “on her own,” she “isn’t able to care for herself and provide for her
daily needs.” The County also argued that, without the “safety net” provided by
her commitment, Kayla “may not follow through with her [c]ourt-[o]rdered
medications, may not follow through with her doctor’s appointments.”

¶16 Based on Dr. Platz’s testimony and report, the circuit court found
that Kayla was mentally ill and a proper subject for treatment. Turning to the
issue of dangerousness, the court noted the County was required to establish a
“substantial likelihood,” based on Kayla’s treatment records, that Kayla would

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No. 2021AP133

again be a proper subject for commitment if treatment were withdrawn. See WIS.
STAT. § 51.20(1)(am).

¶17 In support of its conclusion that Kayla was dangerous under that
standard, the circuit court noted the evidence showed that Kayla’s condition had
deteriorated in November 2019, when Kayla was missing scheduled appointments
to receive her injectable medication. The court also noted it was concerning that
Kayla had presented with broken ribs at that time, but she did not know how she
had sustained those injuries. The court further found that Kayla’s failure to dress
appropriately, which caused her to expose herself to others, created “a danger to
herself.”

¶18 The circuit court also found that Kayla had made threats toward
Collins and was clearly “paranoid about certain things.” The court stated,
however, that its concern regarding Kayla’s dangerousness was not so much
related to her being a danger to others as it was related to Kayla “just not being
able to care for herself.” The court explained, “[T]hat’s what was demonstrated
back in November, and which appears to still be somewhat of an issue; maybe not
as significant as it was back in November, but it’s still there.” The court further
stated it had “no doubt” that if Kayla stopped taking her medications, she “would
not be able to care for herself” and “would significantly deteriorate such that she
would, once again, be a proper subject for [c]ommitment.” The court therefore
concluded that the County had “met its burden in terms of the ‘dangerousness’
criteria.”

¶19 Accordingly, the circuit court entered an order extending Kayla’s
commitment for a period of one year. The court also entered an order for

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involuntary medication and treatment during the period of Kayla’s commitment.
Kayla now appeals from both orders.5

DISCUSSION

I. Mootness

¶20 Kayla acknowledges that the commitment order and the order for
involuntary medication and treatment at issue in this appeal have expired. Kayla
asserts that this appeal is not moot, however, pursuant to our supreme court’s
recent decision in Sauk County v. S.A.M., 2022 WI 46, ___ Wis. 2d ___, 975
N.W.2d 162.

¶21 S.A.M. held that an appeal from a recommitment order is not moot
“when the direct or collateral consequences of the order persist and vacatur of that
order would practically affect those consequences.” Id., ¶19. “[W]hether a
collateral consequence renders an appeal not moot turns on the existence of a
‘causal relationship’ between a legal consequence and the challenged order.” Id.,
¶20. The S.A.M. court concluded that “such a causal relationship exists between a
recommitment order and at least two collateral consequences: (1) the firearms ban
[contained in a recommitment order]; and (2) the [committed individual’s] liability
for the cost of care.” Id.

5
This appeal was placed on hold pending our supreme court’s decisions in Sheboygan
County v. M.W., 2022 WI 40, ___ Wis. 2d ___, 974 N.W.2d 733, and Sauk County v. S.A.M.,
2022 WI 46, ___ Wis. 2d ___, 975 N.W.2d 162. After those decisions were issued, Kayla filed
an amended reply brief addressing their impact on this appeal, and the County filed a sur-reply
brief.

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¶22 More specifically, the S.A.M. court concluded that the continued
effect of a firearms ban contained in a recommitment order is a collateral
consequence of that order because “[p]revailing on appeal would vacate the
recommitment order and practically alter a committed person’s ‘record and
reputation’ for dangerousness, a factor a reviewing court must consider when
weighing a petition to cancel a firearms ban.” Id., ¶23 (quoting WIS. STAT.
§ 51.20(13)(cv)1m.b.). In addition, “if a committed person succeeds in vacating
an expired recommitment order, the fact that the recommitment order no longer
exists might influence the reviewing court’s weighing of whether restoring gun
rights would be consistent with the ‘public interest.’” Id. (quoting
§ 51.20(13)(cv)1m.b.).

¶23 With respect to liability for the cost of care, the S.A.M. court noted
that, by statute, a committed person “shall be liable for the cost of the care,
maintenance, services and supplies” related to each commitment period. Id., ¶24
(quoting WIS. STAT. § 46.10(2)). “If the underlying commitment order is vacated,
however, the liability tied to that particular commitment period no longer exists.”
Id. The court therefore held that “a direct causal relationship exists between
vacating an expired recommitment order and removing the liability it creates,
sufficient to render recommitment appeals not moot.” Id.

¶24 Kayla asserts that as a result of the recommitment order at issue in
this appeal, she “will continue to suffer the same collateral consequences as
S.A.M.” We agree that because Kayla continues to suffer these collateral
consequences, this appeal is not moot, even though the recommitment order has
expired. In addition, we note that in its sur-reply brief, the County does not
dispute that S.A.M.’s holding and analysis compel a conclusion that this appeal is
not moot. We therefore address the merits of Kayla’s appellate arguments.

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II. D.J.W. violation

¶25 “For a person to be subject to a [WIS. STAT. ch.] 51 involuntary
commitment, three elements must be fulfilled: the subject individual must be
(1) mentally ill; (2) a proper subject for treatment; and (3) dangerous to [himself or
herself] or others.” D.J.W., 391 Wis. 2d 231, ¶29. The petitioner must prove each
of these elements by clear and convincing evidence. Id.

¶26 In an initial commitment proceeding, the petitioner must establish
that the subject individual is dangerous under one of the five subdivision
paragraphs in WIS. STAT. § 51.20(1)(a)2. D.J.W., 391 Wis. 2d 231, ¶30. Each of
those subdivision paragraphs requires the petitioner to “identify recent acts or
omissions demonstrating that the individual is a danger to himself [or herself] or to
others.” Portage County v. J.W.K., 2019 WI 54, ¶17, 386 Wis. 2d 672, 927
N.W.2d 509; see also § 51.20(1)(a)2.a.-e.

¶27 During a recommitment proceeding, however, the petitioner is not
required to identify “recent” acts or omissions demonstrating dangerousness.
Instead, the dangerousness requirement in a recommitment proceeding “may be
satisfied by a showing 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.” WIS. STAT. § 51.20(1)(am). The
recommitment standard in § 51.20(1)(am) “recognizes that an individual receiving
treatment may not have exhibited any recent overt acts or omissions demonstrating
dangerousness because the treatment ameliorated such behavior, but if treatment
were withdrawn, there may be a substantial likelihood such behavior would
recur.” J.W.K., 386 Wis. 2d 672, ¶19.

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¶28 WISCONSIN STAT. § 51.20(1)(am) therefore serves as an “alternative
evidentiary path” to establish dangerousness in a recommitment proceeding.
J.W.K., 386 Wis. 2d 672, ¶19. Nevertheless, § 51.20(1)(am) “mandates that
circuit courts ground their conclusions [regarding dangerousness] in the
subdivision paragraphs of [§ 51.20(1)(a)2.]” D.J.W., 391 Wis. 2d 231, ¶41. In
other words, “even though the petitioner need not identify recent acts or omissions
showing dangerousness” in a recommitment proceeding, “the petitioner must still
prove a substantial likelihood that the subject individual would be dangerous
under one of the five standards set forth in § 51.20(1)(a)2.a.-e. if treatment were
withdrawn.” Eau Claire County v. J.M.P., No. 2020AP2014-FT, unpublished
slip op. ¶11 (WI App June 22, 2021).6

¶29 To ensure that circuit courts ground their recommitment orders in
the five dangerousness standards set forth in WIS. STAT. § 51.20(1)(a)2.a.-e., our
supreme court held in D.J.W. 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.” D.J.W., 391
Wis. 2d 231, ¶40. The court explained that this requirement serves two purposes.
Id., ¶42. “First, it provides clarity and extra protection to patients regarding the
underlying basis for a recommitment.” Id. “Second, a requirement of specific
factual findings with reference to a subdivision paragraph of … § 51.20(1)(a)2.
will clarify issues raised on appeal of recommitment orders and ensure the

6
An unpublished opinion issued on or after July 1, 2009, that is authored by a single
judge or a member of a three-judge panel may be cited for its persuasive value. WIS. STAT. RULE
809.23(3)(b).

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soundness of judicial decision making, specifically with regard to challenges
based on the sufficiency of the evidence.” D.J.W., 391 Wis. 2d 231, ¶44.

¶30 Kayla asserts that D.J.W.’s “plain language” requires a circuit court
“to ‘reference,’ that is to actually state, which subdivision paragraph of [WIS.
STAT.] § 51.20(1)(a)2. the circuit court is basing the recommitment on.” Kayla
correctly notes that, in the instant case, the court did not specifically reference any
of the subdivision paragraphs of § 51.20(1)(a)2. in either its oral ruling or its
written order extending her commitment. Kayla therefore argues that the court
failed to comply with D.J.W., and, as a result, her recommitment order and the
associated order for involuntary medication and treatment must be reversed. In
support of this argument, Kayla cites several unpublished cases, which she claims
show that a circuit court in a recommitment proceeding must expressly reference
one of the subdivision paragraphs of § 51.20(1)(a)2., and that an appellate court
cannot infer the relevant subdivision paragraph based on the court’s findings and
the parties’ arguments. See Rock Cnty. Dep’t of Hum. Servs. v. J.E.B.,
No. 2020AP1954-FT, unpublished slip op. ¶¶25-26 (WI App Apr. 7, 2021);
Sheboygan County v. M.W., No. 2021AP6, unpublished slip op. ¶10 (WI App
May 12, 2021), rev’d, 2022 WI 40, ___ Wis. 2d ___, 974 N.W.2d 733; J.M.P.,
No. 2020AP2014-FT, ¶18.

¶31 In response, the County argues that the circuit court’s failure to
specify the subdivision paragraph of WIS. STAT. § 51.20(1)(a)2. under which it
found Kayla to be dangerous was, at most, harmless error. In support of this
claim, the County notes that Kayla has not challenged the sufficiency of the
evidence to support the court’s finding of dangerousness. The County also asserts
that the relevant subdivision paragraph of § 51.20(1)(a)2. was “self-evident from
the court’s findings and [the] record.” As such, the County contends that the

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court’s failure to comply with D.J.W. “has not prejudiced [Kayla’s] ability to
obtain meaningful appellate review.”

¶32 In response to the County’s harmless error argument, Kayla asserts
that “a circuit court’s failure to make a specific reference to the subdivision
paragraph of WIS. STAT. § 51.20(1)(a)2., is not the type of error that is subject to
harmless error review, but rather is a structural error which always requires
reversal.” Alternatively, even if a harmless error analysis could be applied in this
case, Kayla asserts that the error here was not harmless because the circuit court
“failed to make specific factual findings which would support all of the elements
for the standard which the County would have this Court infer that the circuit court
intended to rely upon.”

¶33 We reject Kayla’s argument that the circuit court committed a
structural error by failing to reference a specific subdivision paragraph of WIS.
STAT. § 51.20(1)(a)2.7 Our supreme court has explained that “there are a very
limited number of structural errors that require automatic reversal.” State v.
Pinno, 2014 WI 74, ¶49, 356 Wis. 2d 106, 850 N.W.2d 207. “Structural errors are
different from regular trial errors because they ‘are structural defects in the
constitution of the trial mechanism, which defy analysis by “harmless-error”
standards.’” Id. (citation omitted). “Structural defects affect ‘[t]he entire conduct
of the trial from beginning to end,’” and “[a]n error also may be structural because
of the difficulty of determining how the error affected the trial.” Id. (citation
omitted). In the criminal law context, for example, the “limited class” of structural

7
“Whether a particular error is structural and therefore not subject to a harmless error
review is a question of law for our independent review.” State v. Nelson, 2014 WI 70, ¶18, 355
Wis. 2d 722, 849 N.W.2d 317.

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errors includes: “complete denial of the right to counsel, a biased judge, excluding
members of the defendant’s race from a grand jury, denial of the right to
self-representation, denial of the right to a public trial, and a defective reasonable
doubt instruction.” Id., ¶50 (footnotes omitted).

¶34 We conclude a circuit court’s failure in a recommitment proceeding
to reference a specific subdivision paragraph of WIS. STAT. § 51.20(1)(a)2. does
not rise to the level of the structural errors listed above. As Chief Justice Annette
Kingsland Ziegler recently observed in her dissenting opinion in Sheboygan
County v. M.W., 2022 WI 40, ___ Wis. 2d ___, 974 N.W.2d 733, “the failure of a
circuit court to state factual conclusions upon review of an established record and
the failure to cite a statutory subsection are not structural errors in line with the
‘complete denial of the right to counsel.’” M.W., ___ Wis. 2d ___, ¶60, 974
N.W.2d at 748 (Ziegler, C.J., dissenting) (quoting Pinno, 356 Wis. 2d 106, ¶50).
To the contrary,

[a]ppellate courts are more than capable of reviewing a
record, party arguments, and circuit court reasoning to
determine if a dangerousness pathway has been met. In
addition, the failure of a circuit court to be precise in its
reasoning does not infect the entire recommitment
proceeding with a constitutional violation.[8]

8
In M.W., Sheboygan County did not seek review of the court of appeals’ conclusion
that the circuit court had violated Langlade County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942
N.W.2d 277, by failing to make reference to a specific subdivision paragraph of WIS. STAT.
§ 51.20(1)(a)2. See M.W., ___ Wis. 2d ___, ¶5 n.2, 974 N.W.2d at 734 n.2. As a result, the
majority opinion declined to address whether the circuit court’s error in that regard was harmless.
M.W., ___ Wis. 2d ___, ¶26 n.6, 974 N.W.2d at 738 n.6.

(continued)

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Id. (Ziegler, C.J., dissenting). For these reasons, we reject Kayla’s argument that
the error at issue in this appeal was structural and therefore not subject to a
harmless error analysis.

¶35 We further conclude that, under the circumstances of this case, any
error by the circuit court in failing to specify the subdivision paragraph of WIS.
STAT. § 51.20(1)(a)2. under which it found Kayla to be dangerous was harmless.9
“The standard for harmless error is the same for civil and criminal cases. The test
is whether there is a reasonable possibility that the error contributed to the
outcome of the action or proceeding at issue.” Schwigel v. Kohlmann, 2005 WI
App 44, ¶11, 280 Wis. 2d 193, 694 N.W.2d 467 (citations omitted). “A
reasonable possibility of a different outcome is a possibility sufficient to
‘undermine confidence in the outcome.’” Id. (citation omitted). Additionally, in a
recommitment proceeding “[t]he 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.” Sec. 51.20(10)(c).

In a dissenting opinion, Chief Justice Ziegler concluded that a circuit court’s error in
failing to comply with D.J.W. is subject to a harmless error analysis, and she further concluded
that the circuit court’s error in M.W. was harmless because “[t]here was substantial evidence to
support the fifth pathway on dangerousness, and both medical experts and the County argued for
application of that pathway before the circuit court.” M.W., ___ Wis. 2d ___, ¶¶46, 68, 974
N.W.2d at 742-43, 750 (Ziegler, C.J., dissenting). Justices Patience Drake Roggensack and
Rebecca Grassl Bradley joined Chief Justice Ziegler’s dissent. Id., ¶78 (Ziegler, C.J., dissenting).

Justice Brian Hagedorn filed a concurring opinion in M.W., in which he concluded the
majority had properly refused to address the harmless error issue, given the procedural posture of
the case. Id., ¶¶40-43 (Hagedorn, J., concurring). Justice Hagedorn explained that “[t]he
dissent’s broader arguments [regarding harmless error], which have some force, should await a
properly postured case.” Id., ¶43 (Hagedorn, J., concurring).
9
Whether an error in a particular case was harmless is a question of law that we review
independently. Nelson, 355 Wis. 2d 722, ¶18.

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¶36 We agree with the County that the circuit court’s error in this case
was harmless for two reasons. First, as the County notes, the D.J.W. court
implemented its requirement that circuit courts “make specific factual findings
with reference to the subdivision paragraph of WIS. STAT. § 51.20(1)(a)2. on
which the recommitment is based” in a case in which the appellant challenged the
sufficiency of the evidence to support the circuit court’s determination regarding
dangerousness. See D.J.W., 391 Wis. 2d 231, ¶¶1, 3. That context was critical to
the D.J.W. court’s reasoning. The court specifically explained that its new
requirement would “provide[] increased protection to patients to ensure that
recommitments are based on sufficient evidence” and would “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.” Id., ¶¶43-44 (emphasis added).

¶37 The D.J.W. court further explained that when a circuit court in a
recommitment proceeding does not reference a specific subdivision paragraph of
WIS. STAT. § 51.20(1)(a)2. in its decision, an appellate court is forced to engage in
“guesswork” when assessing the appellant’s sufficiency-of-the-evidence claim.
D.J.W., 391 Wis. 2d 231, ¶45. Here, however, this court is not required to engage
in such “guesswork” because Kayla has not challenged the sufficiency of the
evidence to support the circuit court’s determination regarding dangerousness.
Under these circumstances, it cannot reasonably be argued that the court’s failure

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to comply with D.J.W. contributed to the outcome of the proceeding or affected
Kayla’s substantial rights.10 See Schwigel, 280 Wis. 2d 193, ¶11; § 51.20(10)(c).

¶38 Second, we agree with the County that, although the circuit court did
not specifically cite any subdivision paragraph of WIS. STAT. § 51.20(1)(a)2., it is
clear from the record that the court found Kayla to be dangerous under
§ 51.20(1)(a)2.d. That subdivision paragraph provides that an individual is
dangerous if he or she

[e]vidences behavior manifested by recent acts or
omissions that, due to mental illness, he or she 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 the individual
receives prompt and adequate treatment for this mental
illness.

Sec. 51.20(1)(a)2.d.

¶39 During its oral ruling, the circuit court stated that if Kayla were no
longer committed, “there’s no doubt in my mind that she would stop taking her
medications; that she would not be able to care for herself, and that she would
significantly deteriorate such that she would, once again, be a proper subject for
[c]ommitment.” (Emphasis added.) In support of its determination regarding

10
The County also correctly notes that, in each of the unpublished cases that Kayla cites
in which a recommitment order was reversed based on the circuit court’s failure to comply with
D.J.W., the appellant expressly argued that the evidence was insufficient to support the court’s
determination regarding dangerousness. See Rock Cnty. Dep’t of Hum. Servs. v. J.E.B.,
No. 2020AP1954-FT, unpublished slip op. ¶1 (WI App Apr. 7, 2021); Sheboygan County v.
M.W., No. 2021AP6, unpublished slip op. ¶1 (WI App May 12, 2021), rev’d, 2022 WI 40, ___
Wis. 2d ___, 974 N.W.2d 733; Eau Claire County v. J.M.P., No. 2020AP2014-FT, unpublished
slip op. ¶1 (WI App June 22, 2021). Again, Kayla has not raised a sufficiency-of-the-evidence
argument in this appeal.

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No. 2021AP133

dangerousness, the court cited evidence regarding specific events that had
occurred in 2019, including Kayla’s failure to keep her appointments and take her
medications consistently, her presenting with broken ribs for which she had no
explanation, her exposing herself in public by not dressing appropriately, and her
failure to adequately feed and care for herself. The court explained that, based on
this evidence, it was not necessarily concerned with Kayla being a danger to other
people, but it instead believed her to be dangerous as a result of “not being able to
care for herself.”

¶40 Moreover, the County introduced evidence during the recommitment
hearing that specifically referenced the requirements set forth in WIS. STAT.
§ 51.20(1)(a)2.d. For instance, Dr. Platz testified that without treatment, Kayla
“would be unable to satisfy her basic needs for … nourishment, medical care,
shelter, or safety.” Platz further testified that if treatment were withdrawn, there
was a substantial probability “that serious injury or serious debilitation might
[imminently] ensue.” In its closing argument, the County expressly referenced
Platz’s testimony that Kayla would become a danger to herself if treatment were
withdrawn based on her inability to care for herself and satisfy her basic needs.
Platz’s testimony tracked the language of § 51.20(1)(a)2.d., and the court relied on
Platz’s testimony when reaching its decision regarding dangerousness.

¶41 Collins similarly testified that without treatment, Kayla would be
unable to satisfy her basic needs. Collins also testified that the “concern”
regarding Kayla is that “if she’s not showing up for her appointments to get her
medication, … she’s not eating, she’s not caring for herself,” that behavior “will
result in another hospitalization.” This testimony further indicated that the County
believed Kayla to be dangerous under the standard set forth in WIS. STAT.
§ 51.20(1)(a)2.d. Indeed, the County cited Collins’ testimony during its closing

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argument in support of the proposition that, when Kayla is “on her own,” she
“isn’t able to care for herself and provide for her daily needs.”

¶42 “We do not require courts to use magic words.” M.W., ___ Wis. 2d
___, ¶44, 974 N.W.2d at 742 (Ziegler, C.J., dissenting); see also Marathon
County v. D.K., 2020 WI 8, ¶66, 390 Wis. 2d 50, 937 N.W.2d 901 (Rebecca
Grassl Bradley, J., concurring) (“We do not impose a ‘magic words’ requirement
in the law and this court has repeatedly rejected them.”). Here, although the
circuit court did not specifically cite any of the subdivision paragraphs of WIS.
STAT. § 51.20(1)(a)2., it is clear from the court’s oral ruling—when viewed in the
context of the evidence and arguments presented by the County—that the court
found Kayla to be dangerous under § 51.20(1)(a)2.d. Kayla does not argue that
the evidence was insufficient for the court to find her dangerous under that
subdivision paragraph. Under these circumstances, any error by the court in
failing to reference § 51.20(1)(a)2.d. was harmless. In other words, there is no
reasonable possibility that the court’s error in failing to reference § 51.20(1)(a)2.d.
contributed to the outcome of the recommitment proceeding or affected Kayla’s
substantial rights. See Schwigel, 280 Wis. 2d 193, ¶11; § 51.20(10)(c).

¶43 Kayla argues that affirming the circuit court’s decision in this case
“will simply return … the law to the status pre-D.J.W., where appellate courts and
litigants are left guessing as to the circuit court’s reasoning in finding
dangerousness.” As explained above, however, we are not required to engage in
such guesswork in this case because Kayla has not challenged the sufficiency of
the evidence. Moreover, as we have already concluded, it is clear from the court’s
oral ruling and from the evidence and arguments presented by the County that the
court found Kayla to be dangerous under WIS. STAT. § 51.20(1)(a)2.d. Under

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No. 2021AP133

these circumstances, we are not “left guessing” as to the basis for the court’s
decision.

¶44 In summary, we conclude that a harmless error analysis may be
applied to the circuit court’s failure to state the specific subdivision paragraph of
WIS. STAT. § 51.20(1)(a)2. under which it found Kayla to be dangerous. We
further conclude that the court’s error was harmless, under the circumstances of
this case. We therefore affirm the order extending Kayla’s commitment and the
associated order for involuntary medication and treatment.

By the Court.—Orders affirmed.

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

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