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.
February 7, 2023
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. 2022AP502 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:
J. MICHAEL BITNEY, Judge. Affirmed.

¶1 GILL, J.1 Katie2 appeals a WIS. STAT. ch. 51 recommitment order
and an order for involuntary medication and treatment.3 Katie argues that the

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. 2022AP502

evidence presented by Barron County was insufficient to prove that she was
dangerous. Katie further argues that the circuit court’s findings were insufficient
to establish dangerousness and violated the requirements of Langlade County v.
D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277.

¶2 We disagree as to both issues. The County met its burden to prove
Katie was dangerous by clear and convincing evidence under WIS. STAT.
§ 51.20(1)(a)2.d. Additionally, the circuit court explicitly found in its written
order that Katie was dangerous under § 51.20(1)(a)2.d. Therefore, we affirm.

BACKGROUND

¶3 At the time of this recommitment, Katie was a sixty-one-year-old
woman who lived in a group home. Katie was initially committed in 2013 and has
been recommitted annually since then. In May 2021, the County filed a petition to
extend Katie’s commitment, which is the petition at issue in this appeal. The
County’s petition alleged that Katie was dangerous because there was a substantial
likelihood, based on her treatment record, that Katie would become a proper
subject for commitment if treatment were withdrawn.

¶4 Doctor William Platz submitted a report that was received into
evidence at the recommitment hearing. In the report, Platz opined that Katie was

2
For ease of reading, we refer to the appellant in this confidential appeal using a
pseudonym, rather than her initials.
3
An order allowing for involuntary medication and treatment requires the existence of a
valid commitment order. See WIS. STAT. § 51.61(1)(g)3. Katie challenges both her
recommitment order and her involuntary medication order; however, Katie does not raise any
arguments specifically pertaining to the involuntary medication order. Regardless, if the
commitment order were reversed, reversal of the associated involuntary medication order would
also be required.

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dangerous under the third and fourth dangerousness standards in WIS. STAT.
§ 51.20(1)(a)2.c.-d., as well as under the recommitment standard in
§ 51.20(1)(am).

¶5 At Katie’s recommitment hearing, Platz testified that Katie has a
diagnosis of schizophrenia, a treatable, chronic condition with various symptoms
including disorganized thinking, hallucinations, and delusional belief systems.
Similar to his report, Platz testified that he believed there was a substantial
likelihood Katie would become a proper subject for commitment again if
treatment were withdrawn. Platz also opined that Katie has impaired insight and
judgment as it relates to her condition. Platz further testified that Katie has had
difficulty caring for herself and making some medical decisions, and, in the past,
she has been “inappropriate in terms of her dress” and “intrusive to other clients in
the group home.”

¶6 Angela Mandera, the program manager of the group home where
Katie resides, testified at the recommitment hearing that Katie requires prompts
for grooming and hygiene, such as putting on clean clothes and brushing her teeth
and hair. Mandera further testified that sometimes Katie needs physical assistance
for certain tasks, such as making the bed, getting dressed, and eating. Mandera
stated that on two prior occasions within the past year, Katie had “cheek[ed]” her
medications instead of swallowing them. Mandera opined that it was unlikely
Katie would take her medications on her own. Mandera stated that this unlikeness
was due in part to the “level of steps” Katie would need to complete to manage
taking her medications on her own. Regarding Katie’s actions toward others,
Mandera testified that Katie “can often be extremely intrusive toward[] the other
clients and the staff in the household” and that she “needs a lot of
reminders … [to] not physically touch[] staff or other[s].” Lastly, Mandera

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testified that there were “several occasions where [Katie] ha[d] come out of her
room with her breasts exposed or walk[ed] from the bathroom to her bedroom
without any clothing on.”

¶7 Additionally, the County called Amelia Collins, a social worker
employed by the Barron County Department of Health and Human Services, to
testify at the recommitment hearing. Collins testified that the Department had
“fears that if [Katie] were to return to independent living, she would not be
complying with her medications” and would no longer engage with the
Department’s services.

¶8 Katie also testified at the hearing. Katie testified that, prior to being
committed, she had lived independently for years. Katie stated that she does not
believe that her current medications are helpful. She further stated that while she
does not like the side effects of her current medications, she would continue to
take them if released from commitment. Katie denied ever exposing herself.

¶9 The circuit court concluded that the County had established grounds
for the extension of Katie’s commitment. The court found that Katie had a
treatable mental illness and concluded that Katie “creates a substantial probability
of risk of harm to herself or others.” The court further found that Katie had
“impaired judgment” and “significantly impaired boundaries.” While the court
noted that Katie may have lived independently in the past, the court stated that

at this stage of her life, it’s clear to the [c]ourt that [Katie]
does not have the ability to be independent without creating
a substantial risk of physical harm to herself or perhaps
others. When she goes out inappropriately dressed, when
she goes out exposed, that creates a vulnerability. When
she doesn’t appreciate boundaries and makes contact with
people, that creates the risk of harm to herself or others
from reactions by people that may be either offended or
threatened by her behavior.

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As to Katie’s sense of awareness, the court noted that Katie has stated to others
that she does not believe she has a problem.

¶10 With respect to the involuntary medication order, the circuit court
found “more credible the testimony and evidence of the doctor and the other
witnesses that have shown a pattern of behavior that [Katie] is reluctant to take her
medications.” The court noted that Katie does not “like the medications that she
takes … [and] has indicated she doesn’t want to and is unwilling to continue to
take them.” Further, the court expressed concern that Katie lacks “the ability to
manage her medications” and that “if [Katie] were left to her own devices, she
would stop taking the medications, she would spiral downward, her symptoms
would become worse, and it would likely result in her injuring herself or being
rehospitalized or worse.”

¶11 At the end of the hearing, the circuit court ordered that Katie be
recommitted for twelve months, that she not possess firearms, and ordered the
involuntary administration of medication and treatment.

¶12 Afterward, the circuit court checked two boxes on its written order,
indicating that it found Katie dangerous under the third and fourth dangerousness
standards listed in WIS. STAT. § 51.20(1)(a)2. Specifically, the court checked the
box corresponding to § 51.20(1)(a)2.d., expressing that there was “a substantial
probability that death, serious physical injury, serious physical debilitation, or
serious physical disease will immediately ensue unless [Katie] receives prompt
and adequate treatment for this mental illness.” The court also checked the box
corresponding to § 51.20(1)(a)2.c., stating that Katie presented “a substantial
probability of physical impairment or injury to … herself or other individuals due
to impaired judgment.” Katie now appeals.

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No. 2022AP502

DISCUSSION

¶13 “Whether the County presented clear and convincing evidence to
justify recommitment is a mixed question of fact and law.” Sauk County v.
S.A.M., 2022 WI 46, ¶17, 402 Wis. 2d 379, 975 N.W.2d 162. A circuit court’s
findings of fact are upheld unless they are clearly erroneous. Waukesha County v.
J.W.J., 2017 WI 57, ¶15, 375 Wis. 2d 542, 895 N.W.2d 783; WIS. STAT.
§ 805.17(2). “Whether the facts satisfy the statutory standard is a question of law
that we review de novo.” J.W.J., 375 Wis. 2d 542, ¶15.

¶14 A recommitment order requires proof that an individual is mentally
ill, a proper subject for treatment, and currently dangerous. See Waupaca County
v. K.E.K., 2021 WI 9, ¶3, 395 Wis. 2d 460, 954 N.W.2d 366; WIS. STAT.
§ 51.20(1). There are “five standards by which a County can show that an
individual is dangerous.” Portage County v. J.W.K., 2019 WI 54, ¶17, 386
Wis. 2d 672, 927 N.W.2d 509; § 51.20(1)(a)2.a.-e. Each of the first four
dangerousness standards requires the County to present evidence of recent acts or
omissions demonstrating that the individual is a danger to himself or herself or to
others. Sec. 51.20(1)(a)2.a.-e. “Because an individual’s behavior might change
while receiving treatment,” § 51.20(1)(am) provides an alternative pathway for
showing current dangerousness without the requirements of recent behavior “if the
individual has been the subject of treatment for mental illness immediately prior.”
J.W.K., 386 Wis. 2d 672, ¶19. Under § 51.20(1)(am), the County must show “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.”

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No. 2022AP502

¶15 To ensure clarity, and to respect an individual’s liberty interest, in
appeals involving WIS. STAT. ch. 51 commitments, our supreme court has held
that “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. This requirement “provides increased protection to patients to ensure that
recommitments are based on sufficient evidence” and “clarif[ies] issues raised on
appeal of recommitment orders and ensure[s] the soundness of judicial decision
making.” Id., ¶¶43-44.

¶16 Katie contends that the evidence presented by the County was
insufficient to prove that she met the dangerousness standard under WIS. STAT.
§ 51.20(1)(a)2.d.4 For an individual to meet the criteria under the fourth
dangerousness standard, the individual must be

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. Katie argues that while “[w]alking about in a state of undress,
asking personal questions of residents, having difficulty making medical decisions
and caring for [oneself], needing prompts to tend to hygiene needs, [and] needing

4
The circuit court also concluded that Katie was dangerous under the third
dangerousness standard. See WIS. STAT. § 51.20(1)(a)2.c. However, because we conclude that
the evidence was sufficient under § 51.20(1)(a)2.d. we need not address this issue. See Turner v.
Taylor, 2003 WI App 256, ¶1 n.1, 268 Wis. 2d 628, 673 N.W.2d 716 (the court of appeals need
not address all issues if one issue raised by the parties is dispositive).

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No. 2022AP502

assistance to make [a] bed” may be cause for mild concern, these effects do not
amount to a substantial probability “that death, serious physical injury [or] serious
physical debilitation” will imminently ensue. See id.

¶17 We reject this argument and conclude that the County presented
sufficient evidence to establish that Katie met the fourth dangerousness standard
under WIS. STAT. § 51.20(1)(a)2.d. The County presented evidence that Katie was
unable to live independently. In particular, the witnesses for the County testified
that Katie needs assistance with basic tasks such as brushing her teeth and hair,
putting on clean clothes, making her bed, and eating. Katie also needs prompts to
encourage her to take her medications. Within the past year, Katie was also found
“to cheek her medications” at least twice. Based on this evidence, the circuit court
appropriately concluded that there was a substantial probability “that death,
serious physical injury [or] serious physical debilitation” would imminently ensue
if treatment were withdrawn. The court could logically find that, absent treatment,
Katie would not be eating on her own or appropriately maintaining her hygiene.

¶18 Katie also argues that the incidents described by the witnesses are
not necessarily evidence of current dangerousness because they could have
occurred anytime within the last year. Katie is correct that every recommitment
requires evidence of current dangerousness. See D.J.W., 391 Wis. 2d 231, ¶34
(“[e]ach extension hearing requires proof of current dangerousness.” (alteration in
original; emphasis added)). For a recommitment hearing, the County may meet
the current dangerousness standard by showing there is a substantial likelihood of
dangerousness if treatment is withdrawn. See WIS. STAT. § 51.20(1)(am).

¶19 Platz, in his report and testimony, found that without treatment Katie
would become a proper subject for commitment again, which the circuit expressly

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relied on in making its findings. Moreover, Mandera testified to the difficulties
Katie has with every day tasks, including feeding herself, and with dressing
appropriately and medication compliance. There was also testimony from
Mandera that Katie “cheek[ed]” her medication twice within the past year. Based
upon all the evidence the County presented, the circuit court reasonably concluded
that Katie demonstrated a likelihood of dangerousness if treatment were
withdrawn and that these acts met the dangerousness standard under WIS. STAT.
§ 51.20(1)(a)2.d.

¶20 Katie further notes that the County’s petition for recommitment did
not specify which standard of dangerousness was being alleged. Katie concedes,
however, that during the final hearing the County argued for a finding of
dangerousness under the third and fourth dangerousness standards. The circuit
court ultimately agreed with the County’s argument. We note that while the
County did not specify a standard of dangerousness in its petition for
recommitment, the County proved by clear and convincing evidence at the
recommitment hearing that Katie met at least one of the five dangerousness
standards. See Marathon County v. D.K., 2020 WI 8, ¶28, 390 Wis. 2d 50, 937
N.W.2d 901 (due process requires the petitioner to prove by clear and convincing
evidence that the individual is dangerous). The County met this burden when it
presented sufficient evidence of Katie meeting the dangerousness standards under
WIS. STAT. § 51.20(1)(a)2.d. As shown above, the County provided multiple
examples of Katie meeting this dangerousness standard.

¶21 Katie next argues that the circuit court’s findings were insufficient to
establish dangerousness and do not comport with the requirements of D.J.W.
Katie contends that the “statute requires that [circuit] courts make specific factual
findings with reference to the standard of dangerousness upon which the

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No. 2022AP502

recommitment is based.” Katie argues that the court made no specific findings at
all regarding dangerousness.

¶22 While the circuit court did not explicitly reference a dangerousness
standard in its oral ruling, the court’s written order—which followed its oral
decision—specified that the court concluded Katie was dangerous under WIS.
STAT. § 51.20(1)(a)2.c. and d., the third and fourth dangerousness standards.
Together with the court’s oral ruling that Katie’s behavior due to her mental
illness “create[d] a substantial probability of risk of harm to herself or others” and
that Katie “ha[d] certainly significantly impaired judgment,” the court satisfied
D.J.W.’s specificity requirements. The court’s comments at the conclusion of the
hearing, reviewed in light of the written order, show that the court considered
specific facts in connection to dangerousness. Further, there is no question which
dangerousness standards the court relied on when it ordered Katie’s
recommitment.

¶23 Katie also argues that this case is similar to C.B.O., where we held
that a circuit court’s cursory reference to “physical harm to others” was
insufficient to establish a specific standard of dangerousness under WIS. STAT.
§ 51.20(1)(a)2. because it could reference either § 51.20(1)(a)2.b. or c. See
Trempealeau County v. C.B.O., Nos. 2021AP1955, 2022AP102, unpublished slip
op. ¶29 (WI App Aug. 30, 2022).5 C.B.O. is materially distinguishable from the
case at hand. In C.B.O., “it [was] unclear from the record which standard

5
An unpublished opinion authored by a single judge or a member of a three-judge panel
and issued on or after July 1, 2009, may be cited for its persuasive value. See WIS. STAT.
RULE 809.23(3)(b).

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No. 2022AP502

provided the basis for the court’s decision.” Id. Here, the written order explicitly
lists the two dangerousness standards the court relied on as a basis for its decision.

¶24 In sum, the County met its burden to prove by clear and convincing
evidence that Katie was dangerous under WIS. STAT. § 51.20(1)(a)2.d. The circuit
court made specific factual findings related to dangerousness under that standard,
and its findings were not clearly erroneous. The court’s factual findings supported
the court’s conclusion that Katie met the requirement for recommitment under the
fourth dangerousness standard. See § 51.20(1)(a)2.d. Therefore, we affirm the
orders both for recommitment and 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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