Sauk County v. A. D. S.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
November 17, 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. 2022AP550 Cir. Ct. No. 2019ME28

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

IN RE THE COMMITMENT OF A. D. S.:

SAUK COUNTY,

PETITIONER-RESPONDENT,

V.

A. D. S.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Sauk County:
MICHAEL P. SCRENOCK, Judge. Affirmed.

¶1 FITZPATRICK, J.1 A.D.S. appeals both an order for a civil
recommitment and an involuntary administration of medication order entered by

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. 2022AP550

the Sauk County Circuit Court pursuant to WIS. STAT. ch. 51. I affirm the orders
of the circuit court.2

¶2 A.D.S. was more than fifty years old when he was held on an
emergency detention in 2019. At that time, a probable cause hearing was held
before the same circuit judge whose orders are on appeal in this matter. A
physician testified at that time that A.D.S. suffered from elaborate delusions. As
some examples, A.D.S. held the belief that he was “an electric person” wired to a
cell phone that monitors him “like a lie detector.” Further, according to the
physician, A.D.S. could not meet his basic needs. Among other things, A.D.S.
was filthy and ran a risk of infections. The law enforcement officer who
interacted with A.D.S. at the relevant time testified at that hearing that A.D.S. was
intoxicated, homeless in the winter, and made statements not based in reality.
Orders for a civil commitment of A.D.S. and for the involuntary administration of
medication were granted in 2019.

¶3 In 2021, there was a request for a recommitment of A.D.S. brought
pursuant to the petition of Sauk County. Dr. Taylor, a psychiatrist for
approximately thirty years, testified as to her expert opinions regarding A.D.S.,
and I now summarize her pertinent testimony.

2
A notice of appeal was filed in this matter on March 25, 2022, six months after the
circuit court entered its orders on October 25, 2021. This court granted two requests for an
extension to file A.D.S.’s brief-in-chief and, as a result, A.D.S. filed his brief-in-chief
approximately ten weeks after that brief was initially due. The final brief in this appeal was filed
on October 20, 2022, and this opinion is issued less than one month later. In addition, no party
argues that this appeal is moot although the orders on appeal expired five days after the final brief
was filed in this appeal.

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¶4 A.D.S. suffers from schizophrenia. A.D.S. is aware that he has been
diagnosed with that mental illness, but A.D.S. is unable to understand how his
schizophrenia affects him. He is also unable to understand the necessity for
medication and treatment of that illness. In other words, A.D.S. does not have
insight into his mental illness.

¶5 A.D.S. reacts well to his medication, and the medication allows him
to live in a group home. During their conversation, A.D.S. told Dr. Taylor that he
does not believe his medication makes any difference for him. A.D.S. has told his
“treatment team” and Dr. Taylor that, without a recommitment, he will stop taking
his medication. As a result, Dr. Taylor testified it is likely that, without a
recommitment order, A.D.S. will, in fact, stop taking his medication.

¶6 Without the medication, A.D.S.’s mental state will deteriorate, and
he will become a proper subject for treatment due to his impaired judgment and
inability to meet his basic needs for his own health and safety. If A.D.S. does not
take his medication, he will have a recurrence of symptoms and behaviors
resulting from his schizophrenia. Those behaviors include hearing voices and
other symptoms of his illness that he had in the past which would become
prominent again. According to Dr. Taylor, “[t]hat would lead him to
decompensate and eventually he would end up in a hospital.” Dr. Taylor also
noted that A.D.S. has abused alcohol as a result of his mental illness.
Summarizing, Dr. Taylor opined that, if A.D.S. does not take his medication as
prescribed, he will become a danger to himself due to his impaired judgment.

¶7 Dr. Taylor discussed medications with A.D.S., but he was unable to
apply an understanding of the advantages, disadvantages, and alternatives to

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No. 2022AP550

medication due to his mental illness. Also, A.D.S. was unable to understand that
his medication is necessary and therapeutic in treating his illness.

¶8 Kayla Thomas worked with A.D.S. as a social worker and
psychotherapist for about a year prior to the October 2021 hearing. Based on her
experience working with A.D.S., Ms. Thomas testified that A.D.S. lacks insight
into his mental illness and does not understand how his mental illness affects him.
In her opinion, there is a high probability he will discontinue medication without a
recommitment order and a medication order in place.

¶9 A.D.S. testified at the October 2021 hearing. On direct examination,
A.D.S. stated that he is willing to continue to work with Ms. Thomas and take his
medication. However, on cross-examination, A.D.S. testified that he does not
believe he has a mental illness, does not need medication, and has discontinued his
medication in the past when a commitment order has expired.

¶10 After the close of testimony and arguments of counsel at the October
2021 hearing, the circuit court made findings of fact which I now summarize.
When A.D.S. does not take his medication, he is unable to care for himself. An
example of this lack of care includes the incidents in the winter of 2019 when he
was found outside and unable to care for himself. At that time, A.D.S. was
“drinking too much and the alcohol was impairing his functioning as well.” When
A.D.S. takes his medication, he does not experience effects of schizophrenia to the
extent that those effects render him dangerous to himself. The circuit court
correctly noted the important factual issue in the case: What it “really comes
down to, I think as it did last year, [is] whether the [c]ourt believes that [A.D.S.]
will remain on his medications if not under a commitment.” Even if A.D.S.

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No. 2022AP550

continues to work with Ms. Thomas, “that in and of itself doesn’t guarantee that
he’ll actually take his medications.”

¶11 The court found credible Dr. Taylor’s testimony that A.D.S. told her
that he would not continue to take his medication if he is not under a commitment
order, and the court credited Dr. Taylor’s opinion that A.D.S. will not continue on
his medication if removed from the commitment order. The circuit court gave
weight to Dr. Taylor’s testimony that A.D.S. has a lack of insight into how
schizophrenia affects his thinking, and that he cannot articulate in what way his
schizophrenia impairs his judgment.3 The circuit court found not credible
A.D.S.’s testimony that he will continue to take the medication even if not ordered
to do so.

¶12 The circuit court further determined that, if A.D.S. does not take his
medication, “he would then be unable to satisfy his basic needs for nourishment,
medical care, shelter, or safety such that there would be a substantial probability of
death, serious physical injury, or serious physical debilitation that would ensue,
particularly in the winter here in Wisconsin.”

¶13 The circuit court entered an order for recommitment and entered an
order for the involuntary administration of medication. A.D.S. appeals those
orders of the circuit court.

¶14 “To prevail in a recommitment proceeding, the County must prove
the same elements necessary for the initial commitment by clear and convincing

3
The circuit court further noted that, in 2019 when A.D.S. was found in the cold and
unable to care for himself, there was a guardianship in place, but that “was not sufficient … to
protect [A.D.S.] from himself.”

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No. 2022AP550

evidence—that the patient is (1) mentally ill; (2) a proper subject for treatment;
and (3) dangerous to themselves or others.” Langlade Cnty. v. D.J.W., 2020 WI
41, ¶31, 391 Wis. 2d 231, 942 N.W.2d 277 (citing WIS. STAT. § 51.20(1)(a),
(13)(e)). A.D.S. does not dispute that the County proved the first two elements.

¶15 A portion of the circuit court order was based on WIS. STAT.
§ 51.20(1)(a)2.c. which states in pertinent part: “[A.D.S.] [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.”4 In addition, there is an interplay of
§ 51.20(1)(am) with § 51.20(1)(a)2.c. Germane to this situation, our supreme
court has stated:

In a recommitment proceeding, however, there is an
additional manner of proving dangerousness provided by
WIS. STAT. § 51.20(1)(am). “Because an individual’s
behavior might change while receiving treatment,
[]§ 51.20(1)(am) 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 ....” [Portage
Cnty. v. J.W.K., 2019 WI 54, ¶19, 386 Wis. 2d 672, 927
N.W.2d 509]. Pursuant to § 51.20(1)(am),

If the individual has been the subject
of inpatient treatment for mental illness …
immediately prior to commencement of the
proceedings as a result of … a commitment
or protective placement ordered by a court
under this section … the requirements of a
recent overt act, attempt or threat to act
under par. (a)2.a. or b., pattern of recent acts
or omissions under par. (a)2.c. or e., or
recent behavior under par. (a)2.d. may be
satisfied by a showing that there is a
4
The County does not contend on appeal that there is a substantial probability of injury
to other individuals under that statutory subpart.

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No. 2022AP550

substantial likelihood, based on the subject
individual’s treatment record, that the
individual would be a proper subject for
commitment if treatment were withdrawn.

WISCONSIN STAT. § 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, 927 N.W.2d 509. “However,
dangerousness remains an element to be proven to support
both the initial commitment and any extension.” Id.

Indeed, “[t]he County must prove the individual ‘is
dangerous.’” Id., ¶24 (citing WIS. STAT. § 51.20(1)(a)2.
and (13)(g)3.). It is not enough that the individual was at
one point dangerous. Thus, “[e]ach extension hearing
requires proof of current dangerousness.” Id. The
evidentiary pathway set forth by sub. (1)(am)
“acknowledges that an individual may still be dangerous
despite the absence of recent acts, omissions, or behaviors
exhibiting dangerousness outlined in § 51.20(1)(a)2.a.-e.”
but it “does not change the elements or quantum of proof
required.” Id.

D.J.W., 391 Wis. 2d 231, ¶¶32-34. In addition, our supreme court has stated that,
in a recommitment proceeding, the standard for dangerousness must be “viewed
through the lens of § 51.20(1)(am).” Id., ¶50.

¶16 Regarding this court’s standard of review, our supreme court has
held as follows:

Whether the County has met its burden is a mixed
question of law and fact. Waukesha [Cnty.] v. J.W.J.,
2017 WI 57, ¶15, 375 Wis. 2d 542, 895 N.W.2d 783. First,
we will uphold a circuit court’s findings of fact unless they
are clearly erroneous. Id. A finding of fact is clearly
erroneous if it is against the great weight and clear
preponderance of the evidence. Metro[politan] Assocs. v.
City of Milwaukee, 2018 WI 4, ¶62, 379 Wis. 2d 141, 905
N.W.2d 784.

Second, we review whether the facts satisfy the
statutory standard. J.W.J., 375 Wis. 2d 542, ¶15, 895

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No. 2022AP550

N.W.2d 783. In our review, we interpret and apply WIS.
STAT. § 51.20. Statutory interpretation and application are
questions of law that we review independently of the
determinations rendered by the circuit court.
Metro[politan] Assocs., 379 Wis. 2d 141, ¶24, 905 N.W.2d
784.

Id., ¶¶24-25.

¶17 A.D.S. appears to make three separate arguments on appeal, each of
which I reject.5

¶18 A.D.S.’s first argument is that, regardless of the terms of WIS. STAT.
§ 51.20(1)(am) and the portions of D.J.W. quoted above, a recommitment order
must be based on a finding that A.D.S. is currently dangerous. According to
A.D.S., such a finding requires evidence of recent acts of A.D.S. evidencing
dangerousness while he is taking his prescribed medication. From those premises,
A.D.S. contends that the evidence presented at the recommitment hearing was
insufficient. That contention misconstrues D.J.W. and misses the mark.
Section 51.20(1)(am) and the above-quoted portions of D.J.W. make clear that
recent acts or omissions are not necessary in these circumstances if it is
determined that A.D.S. would be a danger to himself if treatment is withdrawn.
There was sufficient evidence on that point.

¶19 Second, A.D.S. argues that it is “pure speculation” that A.D.S. will
stop taking his medication if not ordered to do so. The record and the circuit
court’s findings of fact undermine that assertion. The circuit court made a finding

5
There is no separate argument from A.D.S. specific to the medication order. Further, I
reject the County’s argument that A.D.S. did not sufficiently preserve his argument regarding
sufficiency of the evidence. I agree with A.D.S. that, pursuant to WIS. STAT. § 809.30(2)(h),
sufficiency of the evidence arguments may be raised for the first time on appeal.

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No. 2022AP550

of fact that A.D.S. will not continue taking his medication unless ordered to do so.
Findings of fact are not set aside by an appellate court unless those findings are
clearly erroneous. WIS. STAT. § 805.17(2). When the circuit court acts as the
finder of fact, it is the ultimate arbiter of the credibility of the witnesses and the
weight to be given to the testimony. Plesko v. Figgie Int’l, 190 Wis. 2d 764, 775,
528 N.W.2d 446 (Ct. App. 1994). It was up to the circuit court to determine the
credibility of the witnesses, including A.D.S., regarding whether A.D.S. would
continue to take his medication. There is more than enough in the record to
sustain those credibility findings that are properly left to the circuit court.

¶20 Third, A.D.S. argues that looking back to, and considering, events in
2019 regarding A.D.S.’s actions and inactions at that time is reversible error.
According to A.D.S., those events from two years before the October 2021 hearing
do not support the assertions by the County advanced in the circuit court and on
appeal regarding how A.D.S. will act if his medication is withdrawn. This
argument fails.

¶21 In briefing in this court, A.D.S. concedes that the applicable statutes
do not set any time limit regarding when such evidence becomes “stale” and,
therefore, can no longer support a circuit court’s determination. A.D.S.’s
argument can also be rejected for two other reasons. The circuit court’s
consideration of events two years before the October 2021 hearing is not such
ancient history that it should reasonably be ignored. That is certainly relevant
evidence as it is the last time A.D.S. was off his medication and a clear indicator
of the effect on him of not taking his prescribed medication. Next, even if the
2019 events are not considered, the County still prevails because the County is not
required as part of its proof to delineate the precise course of decompensation of
A.D.S. and the precise dangerous acts or omissions that will occur when A.D.S.

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No. 2022AP550

stops taking his medication. Winnebago Cnty. v. S.H., 2020 WI App 46, ¶13, 393
Wis. 2d 511, 947 N.W.2d 761.

¶22 For those reasons, the orders of the circuit court are affirmed.

By the Court.—Orders affirmed.

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

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