Jackson County v. W. G.

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 5, 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. 2020AP961 Cir. Ct. No. 2019ME21

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

IN THE MATTER OF THE CONDITION OF W.G.:

JACKSON COUNTY,

PETITIONER-RESPONDENT,

V.

W.G.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Jackson County:
ANNA L. BECKER, Judge. Reversed.
No. 2020AP961

¶1 GRAHAM, J.1 W.G. appeals an involuntary recommitment order
entered pursuant to WIS. STAT. § 51.20 and an involuntary medication order
entered pursuant to WIS. STAT. § 51.61(1)(g)4. He contends that both orders
should be reversed because the evidence was insufficient to show that he was
“dangerous” to himself or others, as that term is defined in § 51.20(1)(a)2. and
(1)(am). I conclude that Jackson County failed to meet its burden to show that
W.G. was dangerous, and therefore, I reverse both orders.

BACKGROUND

¶2 In June of 2019, W.G. was involuntarily committed for mental
health treatment pursuant to WIS. STAT. § 51.20 for a period of six months. He
spent this commitment period in a group home setting.

¶3 In November of 2019, the County filed a petition to recommit W.G.
The County alleged that W.G. was mentally ill and drug dependent, a proper
subject for treatment, and dangerous to himself or others. See WIS. STAT.
§ 51.20(1)(a). W.G. disputed that he was dangerous as that term is defined in the
statute.

¶4 During the recommitment hearing, the County called Dr. Stephen
Dal Cerro as its sole witness.2 Dr. Dal Cerro is a clinical psychologist who had
examined W.G. and reviewed his medical file. Dr. Dal Cerro testified that W.G.

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(d) (2017-18).
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise noted.
2
The County filed a report prepared by Dr. Dal Cerro, but it was not entered into
evidence at the hearing. Accordingly, I do not consider it. See Langlade Cnty. v. D.J.W., 2020
WI 41, ¶7 n.4, 391 Wis. 2d 231, 942 N.W.2d 277.

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“suffers from schizoaffective disorder” and a “psychotic disorder” of
“longstanding duration,” as well as a “rather severe substance use disorder.” He
testified that W.G. has “benefited from medication for his schizoaffective
disorder.”

¶5 Dr. Dal Cerro testified that W.G. has “impaired” cognitive
functioning and a “reliable pattern of relapsing into substance abuse, which
exacerbates his psychotic disorder, with a tendency to go off his medications.” He
also testified that due to “substance use disorder and psychosis,” W.G.’s “thought
process becomes distorted and he’s unable to act in his own best interests in
regards to medication and other aspects of treatment.” However, Dr. Dal Cerro
did not offer any examples from W.G.’s treatment history to support these
statements.

¶6 Finally, Dr. Dal Cerro testified that W.G. “needs ongoing and total
supervision” and “the structure and the assistance that he receives at the group
home” or else there would be a “risk of relapse.” Yet Dr. Dal Cerro
acknowledged that he was unaware of what services W.G. would be able to access
in the community if the commitment were ended.

¶7 W.G. testified at the recommitment hearing on his own behalf. He
testified that prior to his initial commitment, he had been attempting to get
treatment, but the facility he went to did not have room for him. He testified that
since the start of his commitment, he has not “hit anybody” and has not had
suicidal thoughts. He described his mental health issues, stating that he sometimes
sees a “green haze” or a “shadow” that isn’t there, and hears a “train” that varies in
loudness. When these things happen, he “usually go[es] to [group home] staff or
to somebody that [he] can trust with it and explain[s] what’s going on.”

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¶8 W.G. testified that if his commitment expired, he would continue to
stay in the group home “until [he] felt comfortable to go on [his] own,” which, he
acknowledged, “might be a year or two.” He testified that his current medications
eliminated his craving for opiates and that he wanted to continue taking these
medications. He also testified that he had a job at which he worked twenty hours
per week.

¶9 At the close of the hearing, the circuit court recommitted W.G. for a
period of twelve months and issued an involuntary medication order. As the court
explained, “The concern that I think is raised here is the likelihood of relapse.” It
observed that W.G. is “making continuous improvement,” but is “still seeing
residual symptoms of psychosis.” The court stated that “psychosis can lead to
relapse, and then it ends up in an endless cycle with a relapse triggering more of
the psychosis … and it builds into a disaster … and I don’t want to see [W.G.] at
the steps of suicide.”

DISCUSSION

¶10 W.G. argues that the evidence was insufficient to prove that he was
dangerous and that the circuit court erred by issuing the recommitment and
involuntary medication orders. Review of a circuit court’s decision to commit an
individual pursuant to WIS. STAT. § 51.20 presents “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. I will uphold the circuit court’s findings of fact unless clearly erroneous, but
whether those facts satisfy the statutory standard is a question of law that I review
independently of the circuit court’s determination. Id. The parties agree that if I
determine that the involuntary commitment order was entered in error, the

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involuntary medication order should be vacated as well. See WIS. STAT.
§ 51.61(1)(g).

¶11 To commit an individual for involuntary treatment under Chapter 51,
the County must prove all required facts by “clear and convincing evidence.”
Langlade Cnty. v. D.J.W., 2020 WI 41, ¶23, 391 Wis. 2d 231, 942 N.W.2d 277.
Among other things, the County must prove that the individual is “dangerous” to
themself or others. WIS. STAT. § 51.20(1)(a)2. Dangerousness may be shown in
any of five ways listed in § 51.20(1)(a)2.

¶12 In an initial commitment proceeding, each of these five standards
require the County to identify “recent” acts or omissions showing dangerousness.
WIS. STAT. § 51.20(1)(a)2.; Portage Cnty. v. J.W.K, 2019 WI 54, ¶17, 386 Wis.
2d 672, 927 N.W.2d 509. In a recommitment proceeding, however, the County is
not required to identify acts or omissions that were “recent.” Instead, this
requirement “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.”
Section 51.20(1)(am). The standard in paragraph (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.

¶13 Even though WIS. STAT. § 51.20(1)(am) allows the court to view
dangerousness through a different “lens” in a recommitment hearing, D.J.W., 391
Wis. 2d 231, ¶50, that paragraph nevertheless “mandates that circuit courts ground
their conclusions” in one of the five dangerousness standards provided in

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No. 2020AP961

§ 51.20(1)(a)2., id., ¶41. In other words, the County must still prove
dangerousness under one of those five standards, even though it need not identify
recent acts or omissions showing dangerousness and may instead make a showing
that there is a “substantial likelihood … that the individual would be a proper
subject for commitment if treatment were withdrawn.” Id.3

I. Summary of the Parties’ Arguments

¶14 W.G. argues that the County failed to prove that he was dangerous.
He acknowledges that the County need not show recent acts or omissions because
it proceeded under WIS. STAT. § 51.20(1)(am). However, he points out that
neither the County nor the circuit court specified any of the statutory
dangerousness standards as the basis for the recommitment in the proceedings
below. W.G. addresses each of the five standards in turn, and he argues that the
evidence presented at the hearing did not satisfy any of these standards.

¶15 In its appellate response brief, the County again fails to specify any
of the five dangerousness standards as the basis for W.G.’s recommitment, and it
does not argue that the evidence demonstrates that W.G. was dangerous under any
of these five standards. It instead argues that W.G. was dangerous under WIS.
STAT. § 51.20(1)(am) because there was a “substantial likelihood” that he “would

3
In D.J.W., our supreme court directed that in all recommitment proceedings “going
forward,” circuit courts must “make specific factual findings with reference to the subdivision
paragraph of § 51.20(1)(a)2. on which the recommitment is based.” 2020 WI 41, ¶40, 391 Wis.
2d 231, 942 N.W.2d 277. I recognize that W.G.’s recommitment hearing occurred several
months before D.J.W. was decided, and therefore, that the circuit court was unable to benefit
from its guidance during W.G.’s recommitment proceeding. However, both parties agree that the
substantive law set forth in D.J.W. applies to this appeal.

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No. 2020AP961

be a proper subject for commitment if treatment were withdrawn.”4 This
argument is unavailing because, as demonstrated above and in D.J.W.,
§ 51.20(1)(am) is not a standalone dangerousness standard.

¶16 The County has the burden of proof, and it cannot prevail unless it
demonstrates that W.G. is dangerous under one of the five standards set forth in
WIS. STAT. § 51.20(1)(a)2. It is difficult to see how the County could meet this
burden when, even on appeal, it does not identify any dangerousness standard it
believes is satisfied by the evidence in this case. Because the County does not
respond to any of W.G.’s separate arguments about the five dangerousness
standards, I could determine that the County has conceded its failure to prove
dangerousness under any of those standards. See Schlieper v. DNR, 188 Wis. 2d
318, 322, 525 N.W.2d 99 (Ct. App. 1994) (respondent’s failure to respond to an
appellant’s arguments may be taken as a concession).

¶17 Nevertheless, giving the County the benefit of the doubt, the
questions it asked during the recommitment hearing suggest that it may have been
proceeding under the so-called “fifth standard” of dangerousness, which is set
forth in WIS. STAT. § 51.20(1)(a)2.e.5 Accordingly, although I deem the County’s

4
The County also contends that we should reject W.G.’s appeal because “[t]he
recommitment order W.G. challenges will expire on December 2, 2020” and will therefore “be
moot.” To be sure, an appeal of a commitment order that has expired may be moot, and appellate
courts generally decline to address moot issues. See Marathon Cnty. v. D.K., 2020 WI 8, ¶¶19-
20, 390 Wis. 2d 50, 937 N.W.2d 901. But W.G.’s commitment has not yet expired, and
therefore, the issues that W.G. raises are not currently moot.
5
Some of the County’s questions at the recommitment hearing appear to track the
language of the fifth dangerousness standard. For example, the County asked the testifying
psychologist whether there was “a substantial probability that if the commitment were ended that
[W.G.] would need more care or treatment to prevent disability or deterioration specifically
relating to health and safety.” This mirrors language of the fifth standard, which requires the
County to show a “substantial probability … that the individual needs care or treatment to prevent
(continued)

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No. 2020AP961

arguments on the first four dangerousness standards conceded, I analyze whether
the County met its burden under the fifth standard.

II. The Fifth Dangerousness Standard

¶18 The statutory language setting forth the fifth dangerousness standard
is dense, and its requirements are difficult to parse. To summarize, the fifth
standard addresses individuals whose mental illness prevents them from
understanding the advantages and disadvantages of treatment and who pose a
danger to themselves because there is a substantial probability that their condition
will deteriorate without treatment.6 WIS. STAT. § 51.20(1)(a)2.e.; see also D.J.W.,
391 Wis. 2d 231, ¶62 (J. Roggensack, dissenting); State v. Dennis H., 2002 WI
104, ¶¶18-26, 255 Wis. 2d 359, 647 N.W.2d 851 (parsing the statutory language
and describing the elements of the fifth standard).

¶19 Stated more fully, WIS. STAT. § 51.20(1)(a)2.e. provides that an
individual is dangerous under the fifth standard if:

For an individual, other than an individual who is
alleged to be drug dependent or developmentally disabled,

further disability or deterioration and a substantial probability that he or she will, if left untreated,
lack services necessary for his or her health or safety ….” WIS. STAT. § 51.20(1)(a)2.e.
6
The fifth dangerousness standard applies only to individuals who are mentally ill. The
County alleges that W.G. is both mentally ill and drug dependent, and “the fifth [dangerousness]
standard may be used to involuntarily commit persons with dual diagnoses of mental illness and
either drug dependency or developmental disability.” Dane Cnty. v. Kelly M., 2011 WI App 69,
¶14, 333 Wis. 2d 719, 798 N.W.2d 697.

W.G. argues that the County failed to satisfy the fifth standard because it took the
position that his drug addiction, rather than his mental illness, might prevent him from seeking
treatment. I do not address this argument because the other issues set forth below are dispositive.
See Barrows v. American Family Ins. Co., 2014 WI App 11, ¶9, 352 Wis. 2d 436, 842 N.W.2d
508 (2013) (“An appellate court need not address every issue raised by the parties when one issue
is dispositive.”).

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No. 2020AP961

after the advantages and disadvantages of and alternatives
to accepting a particular medication or treatment have been
explained to him or her and because of mental illness,
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 or her
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 or her recent
acts or omissions, that the individual needs care or
treatment to prevent further disability or deterioration and a
substantial probability that he or she will, if left untreated,
lack services necessary for his or her 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 or her 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 or herself
of these services ….

(Emphasis added.) I do not attempt to fully consider all of the fifth standard’s
requirements because the County appears not to have met its burden of proof in at
least two respects.

¶20 First, the fifth dangerousness standard requires proof that there is a
“substantial probability, as demonstrated by [] the individual’s treatment history
… that the individual needs care or treatment to prevent further disability or
deterioration ….”7 But the County did not identify any incidents in W.G.’s
“treatment history” showing that he “needs care or treatment to prevent further

7
As discussed above, even though WIS. STAT. § 51.20(1)(a)2.e. also requires “recent
acts or omissions,” the County did not need to identify recent acts or omissions in this case
because it was proceeding under § 51.20(1)(am).

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No. 2020AP961

disability or deterioration.” Indeed, very little evidence of W.G.’s treatment
history was introduced at the hearing, aside from testimony that he was receiving
treatment at the group home and that the treatment was going well. To be sure,
Dr. Dal Cerro testified that W.G. had a “reliable pattern of relapsing into substance
abuse,” and that due to his “substance use disorder and psychosis,” his “thought
process becomes distorted and he’s unable to act in his own best interests in
regards to medication and other aspects of treatment.” But these are conclusory
statements, made without reference to any specific incidents in W.G.’s treatment
history.8

¶21 I recognize that in commitment proceedings, the parties and the
circuit court are often well aware of an individual’s treatment history, and that a
county may be inclined to introduce summary testimony rather than point to
specifics. However, commitment proceedings implicate fundamental liberty
interests, and their procedural requirements must not be taken lightly. See D.J.W.,
391 Wis. 2d 231, ¶¶42-43. To the extent that the County was proceeding under
the fifth dangerousness standard, it was required to demonstrate W.G.’s need for
care or treatment by reference to his “treatment history,” and the vague
generalizations introduced at the hearing do not appear to satisfy this requirement.
However, I need not definitively resolve this issue, because as I now explain,

8
Dr. Dal Cerro was more specific when testifying about W.G.’s cognitive abilities,
noting that W.G.’s “history of drug abuse as well as a closed-head injury and possible other
things have resulted in declines in his general mental ability so that his mental ability is in the
borderline range ….” But this testimony does not address the question the statute asks, which is
whether there is a “substantial probability” that W.G. “needs care or treatment to prevent further
disability or deterioration ….” WIS. STAT. § 51.20(1)(a)2.e. (emphasis added). And even if it
did, it is far from the “clear and convincing evidence” the commitment statute requires.
Section 51.20(13)(e).

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No. 2020AP961

W.G.’s unrebutted testimony shows that he was not “dangerous” under the fifth
standard.

¶22 The fifth dangerousness standard “contains an explicit limitation on
its reach: ‘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 or herself of these services,’” the individual is not dangerous
under that standard. Dennis H., 255 Wis. 2d 359, ¶25 (quoting WIS. STAT.
§ 51.20(1)(a)2.e.). W.G. offered uncontroverted testimony that he had been
seeking treatment before being committed, and that he would remain at the group
home and continue to receive treatment even if his commitment expired. The
circuit court made no finding that W.G. was not credible, and the County offered
no evidence or argument to suggest that, despite his testimony, W.G. would not
actually be willing or able to continue to receive treatment at the group home. Dr.
Dal Cerro testified that W.G. would be at risk of deteriorating if he left the group
home, but the State offered no evidence or argument to suggest that W.G. would
be likely to leave.

¶23 The circuit court did not make any findings at all on this issue, and
the uncontroverted evidence demonstrates a reasonable probability that W.G.
would avail himself of the care and treatment available in the community.
Accordingly, the County has not met its burden to show that W.G. was dangerous
under the fifth standard.

CONCLUSION

¶24 For all these reasons, I conclude that the County failed to meet its
burden to show by clear and convincing evidence that W.G. was dangerous to

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No. 2020AP961

himself or others. I therefore reverse the circuit court’s recommitment order and
involuntary medication order.9

By the Court.—Orders reversed.

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

9
Three days before W.G.’s reply brief was received for filing on Friday October 9, 2020,
W.G. filed a motion to advance submission of this appeal and to summarily dispose of the appeal.
Submission occurred on Monday, October 12, 2020, without the need for an order by the court. I
deny the motion to advance submission as moot, and I also deny the motion for summary
disposition.

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