Adams County v. D.R.D.

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.
January 28, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2020AP1426 Cir. Ct. No. 2020ME4

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

IN THE MATTER OF THE MENTAL COMMITMENT OF D.R.D.:

ADAMS COUNTY,

PETITIONER-RESPONDENT,

V.

D. R. D.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Adams County:
DANIEL G. WOOD, Judge. Affirmed.

¶1 FITZPATRICK, P.J.1 D.R.D. appeals orders of the Adams County
Circuit Court authorizing D.R.D.’s involuntary commitment and requiring D.R.D.

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.
No. 2020AP1426

to undergo treatment and take prescribed medication pursuant to WIS. STAT.
§§ 51.20(1)(a) and 51.61(1)(g)3.2 D.R.D. raises the following two arguments on
appeal: (1) her procedural due process rights were violated because the County
did not provide her sufficient notice of which standards of dangerousness under
§ 51.20(1)(a)2. the County would seek to prove at the evidentiary hearing; and
(2) the County failed to establish by clear and convincing evidence that she is
“dangerous,” as required by § 51.20(1)(a)2. and (13)(e). I affirm.

BACKGROUND

¶2 There is no dispute regarding the following material facts.

¶3 On January 29, 2020, Adams County Sheriff’s Deputy Jacob Nielsen
responded to a 911 call from D.R.D.’s residence “for a report of a suicidal
subject.” Dispatch reported the following information to Nielsen: “[J.B.] has a …
gun stating he wants to kill her. Caller is outside. Emotional unstable. [J.B.] has
been drinking.” When Nielsen arrived at D.R.D.’s residence, J.B. was gone and
D.R.D. “was yelling that she had been shot and was dying” and she made
statements that “she was dead.” Nielsen did not observe any injuries on D.R.D.
As a result of that incident, Nielsen filed a statement of emergency detention
pursuant to WIS. STAT. § 51.15(1), and D.R.D. was transported by ambulance to a
hospital.

2
An order directing an individual to take prescribed medication and undergo
recommended treatment may be entered if the individual is committed under WIS. STAT. ch. 51
and the circuit court finds, following an evidentiary hearing, that the individual is not competent
to refuse medication or treatment. See WIS. STAT. § 51.61(1)(g)3. D.R.D. challenges the
commitment order which underlies the order for medication and treatment. D.R.D. does not
argue that the circuit erred in finding that she is not competent to refuse medication and
treatment. I therefore do not reach that issue and will not further mention the medication order
unless required for context.

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¶4 The signed statement of emergency detention commenced the
proceeding for D.R.D.’s involuntary commitment for mental health treatment
under WIS. STAT. § 51.20. See WIS. STAT. § 51.15(5); Milwaukee Cnty.
Combined Cmty. Servs. Bd. v. Haskins, 101 Wis. 2d 176, 191, 304 N.W.2d 125
(Ct. App. 1980) (concluding the involuntary commitment of an individual is
commenced by signing an emergency detention statement). Chapter 51 permits a
county to commit an individual if the county proves, by clear and convincing
evidence, that the individual has a mental illness, is a proper subject for treatment,
and is “dangerous” as defined by at least one of five standards set forth in
§ 51.20(1)(a)2. See § 51.20(1)(a).

¶5 A probable cause hearing concerning D.R.D.’s involuntary
commitment was held on February 3, 2020. Near the end of that hearing, the
circuit court concluded that there was probable cause to believe that D.R.D. was
mentally ill, was a proper subject for treatment, and that D.R.D. “present[ed] a
danger to herself or others.” The circuit court did not specifically state the
statutory standard of dangerousness that applied, nor did the court check the box
on the form order indicating that there was probable cause that D.R.D. was
dangerous under the “fifth standard” of dangerousness under WIS. STAT.
§ 51.20(1)(a)2.e. The court also concluded that there was probable cause to
believe that D.R.D. needed medication and was not competent to refuse
psychotropic medication. The court ordered the continued detention of D.R.D.
and the administration of medication. The circuit court set the matter for an
evidentiary hearing to be held February 12, 2020.

¶6 In preparation for the evidentiary hearing, the County filed with the
circuit court a witness list which indicated that Dr. Nicholas Starr, a psychologist;
Dr. John Coates, a licensed physician; and Deputy Nielson would testify at the

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hearing. In addition, reports prepared by Dr. Starr and Dr. Coates recommending
D.R.D.’s involuntary commitment were submitted to the court eight days before
the evidentiary hearing The doctors agreed in their separate reports that D.R.D.
was “dangerous.” As detailed in the reports, Dr. Starr concluded that D.R.D.
qualified for that designation under the first and fifth statutory standards of
dangerousness described in WIS. STAT. § 51.20(1)(a)2., and Dr. Coates concluded
that D.R.D. qualified under the fifth standard.

¶7 Both Dr. Starr and Dr. Coates testified at the evidentiary hearing.
Consistent with their separate reports, both doctors testified that D.R.D. has a
mental illness, is a proper subject for treatment, and is “dangerous,” and both
recommended D.R.D.’s involuntary commitment. More specific content of their
testimony is discussed at greater length in the Discussion section below.

¶8 The circuit court determined that D.R.D. is mentally ill, a proper
subject for treatment, and dangerous. The court entered an order on February 12,
2020, committing D.R.D. for six months to the care and custody of the Adams
County Department of Health and Human Services.

¶9 On March 3, 2020, D.R.D. filed with the circuit court a notice of
intent to pursue post-disposition relief. On April 6, 2020, the Adams County
Register in Probate was informed by letter that D.R.D.’s current counsel had been
appointed by the State Public Defender as appellate counsel for D.R.D. On
July 17, 2020, counsel filed a motion requesting additional time to file a notice of
appeal or motion for post-disposition relief. As requested, this court entered an
order extending the time to file a post-disposition motion or notice of appeal in
this matter to August 17, 2020. The circuit court’s six-month commitment order
expired on August 12, 2020. A notice of appeal was filed on August 17, 2020. To

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No. 2020AP1426

my knowledge, neither party requested an accelerated briefing schedule, and the
parties’ briefs were filed between November 3 and December 23, 2020. This
matter was assigned to me on January 5, 2021. The parties have not stated
whether there has been a recommitment of D.R.D.

DISCUSSION

¶10 D.R.D. raises two issues on appeal. D.R.D. argues that: (1) she was
denied her due process rights because the County did not provide her with
adequate notice of which of the five standards of dangerousness under WIS. STAT.
§ 51.20(1)(a)2. would be at issue at the final hearing; and (2) the evidence adduced
at that final hearing was not sufficient to support the circuit court’s determination
that she was “dangerous” to herself or others. Before addressing these issues, I
first explain the standard of review and the statutory framework for an involuntary
commitment, and then, because the appealed order of involuntary commitment has
expired, I take up the question of whether D.R.D.’s appeal is moot.

I. Standard of Review and the Statutory Framework for an
Involuntary Commitment.

¶11 Review of a WIS. STAT. ch. 51 involuntary commitment presents a
mixed question of fact and law. This court upholds a circuit court’s findings of
fact unless those findings are clearly erroneous. Waukesha Cnty. v. J.W.J., 2017
WI 57, ¶15, 375 Wis. 2d 542, 895 N.W.2d 783. Whether the facts as found by the
circuit court fulfill the statutory requirements for an involuntary commitment
presents a question of law that this court reviews de novo. Id. “A determination
of dangerousness [in the context of a ch. 51 commitment] is not a factual
determination, but a legal one based on underlying facts.” Langlade Cnty. v.
D.J.W., 2020 WI 41, ¶47, 391 Wis. 2d 231, 942 N.W.2d 277.

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No. 2020AP1426

¶12 Under WIS. STAT. § 51.20(1)(a), a circuit court may order the initial
commitment of an individual if the petitioner shows, by clear and convincing
evidence, that the individual is:

(1) mentally ill;

(2) a proper subject for treatment; and

(3) currently dangerous under one of five alternative dangerousness
standards set forth in the statutory subpart.

See § 51.20(1)(a)1.-2. and (13)(e); Portage Cnty. v. J.W.K., 2019 WI 54, ¶17, 386
Wis. 2d 672, 927 N.W.2d 509. With regard to the third element noted above,
which is the only element at issue in this appeal, § 51.20(1)(a)2.a.-e. identifies five
different means of demonstrating dangerousness, each of which includes a
requirement of recent acts or omissions establishing that the individual is a danger
to himself or others. See § 51.20(1)(a)2.a.-e.; D.J.W., 391 Wis. 2d 231, ¶30;
J.W.K., 386 Wis. 2d 672, ¶17.

¶13 I next explain why D.R.D.’s appeal is not moot even though the
commitment order from which D.R.D. appeals has expired.

II. D.R.D.’s Appeal is not Moot.

¶14 Mootness is a question of law that this court reviews de novo.
Marathon Cnty. v. D.K., 2020 WI 8, ¶16, 390 Wis. 2d 50, 937 N.W.2d 901. “An
issue is moot when its resolution will have no practical effect on the underlying
controversy.” Id., ¶19 (quoting J.W.K., 386 Wis. 2d 672, ¶11). Generally, this

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No. 2020AP1426

court does not reach issues that are moot but may overlook mootness under certain
circumstances that are not at issue here.3 Id. An appeal of an expired initial
commitment order may be moot. Id., ¶22; Winnebago Cnty. v. Christopher S.,
2016 WI 1, ¶¶30, 32, 366 Wis. 2d 1, 878 N.W.2d 109. However, when a person
remains subject to the collateral consequence of the commitment order of the
prohibition against possessing any firearms after the order has expired, an expired
commitment order is “not moot.” D.K., 390 Wis. 2d 50, ¶¶22, 25 (explaining that
a decision in D.K.’s favor would void the firearms band and would thus have a
practical effect). Here, the involuntary commitment order expired on August 12,
2020. However, the involuntary commitment order contained a restriction
prohibiting D.R.D. from possessing any firearm. That restriction was not
terminated with the expiration of the involuntary commitment order, and D.R.D.
remains subject to the firearms ban. As the County concedes, because a decision
in D.R.D.’s favor would void the firearms ban, D.R.D.’s appeal of the involuntary
commitment is not moot. See id., ¶25.

¶15 I now address the issues raised by D.R.D. on appeal.

3
We may overlook mootness if the issue falls into one of the following five exceptions:

(1) the issue is of great public importance; (2) the issue involves
the constitutionality of a statute; (3) the issue arises often and a
decision from this court is essential; (4) the issue is likely to
recur and must be resolved to avoid uncertainty; or (5) the issue
is likely of repetition and evades review.

Marathon Cnty. v. D.K., 2020 WI 8, ¶19, 390 Wis. 2d 50, 937 N.W.2d 901.

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No. 2020AP1426

I. D.R.D. Forfeited Her Due Process Challenge.

¶16 D.R.D. contends that she was denied procedural due process because
she did not receive sufficient notice of which standards of dangerousness the
County would seek to prove at the evidentiary hearing.

¶17 In Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972) (vacated
and subsequently reinstated), a federal court concluded that an individual subject
to involuntary commitment must receive notice of the involuntary commitment
proceedings “sufficiently in advance of scheduled court proceeding so that
reasonable opportunity to prepare will be afforded.”4 Id. at 1092 (quoting In re
Gault, 387 U.S. 1, 33 (1967)). Among other things, the individual must be
informed of “the standard upon which he [or she] may be detained.” Id.

¶18 D.R.D. argues that the County did not sufficiently identify, prior to
the evidentiary hearing, which of the dangerousness standards set forth in WIS.
STAT. § 51.20(a)2.a.-e. the County believed were satisfied by her conduct. D.R.D.
argues that the County thus failed to satisfy Lessard’s statement that D.R.D. be
given notice of “the standard upon which [s]he may be detained” sufficient to
allow her a “reasonable opportunity to prepare” for the commitment hearing. See
Lessard, 349 F. Supp. at 1092.

4
The federal court held in Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972) that
Wisconsin’s laws then in place providing for civil commitments of those alleged to be mentally
ill were constitutionally deficient. Following Lessard, the Wisconsin legislature modified the law
governing mental health and enacted new emergency detention and involuntary commitment
statutes. See 1975 Wis. Act 430, § 11; Outagamie Cnty. v. Michael H., 2014 WI 127, ¶26, 359
Wis. 2d 272, 856 N.W.2d 603.

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No. 2020AP1426

¶19 But, D.R.D. concedes that she did not raise this due process claim
before the circuit court, and she did not request in the circuit court further
specificity regarding the statutory standards at issue or an adjourned hearing to
prepare based on that further specificity. An issue that is raised for the first time
on appeal will generally not be considered. Arsand v. City of Franklin, 83 Wis.
2d 40, 55, 264 N.W.2d 579 (1978). “It is a fundamental principle of appellate
review that issues must be preserved at the circuit court.” State v. Huebner, 2000
WI 59, ¶10, 235 Wis. 2d 486, 611 N.W.2d 727; see also Vollmer v. Luety, 156
Wis. 2d 1, 10, 456 N.W.2d 797 (1990) (stating that “‘[o]ne of the rules of well
nigh universal application established by courts in the administration of the law is
that questions not raised and properly presented for review in the [circuit] court
will not be reviewed on appeal’” (quoted source omitted)). This concept is known
as the “forfeiture rule” because issues not preserved in the circuit court are deemed
forfeited.5 Huebner, 235 Wis. 2d 486, ¶11 and n.2. “The [forfeiture] rule is not
merely a technicality or a rule of convenience; it is an essential principle of the
orderly administration of justice.” Id. (citing Freytag v. Commissioner of
Internal Revenue, 501 U.S. 868, 894-95 (Scalia, J., concurring) (citing 9 C.
Wright and A. Miller, Federal Practice and Procedure § 2472 at 455 (1971))).
“The rule promotes both efficiency and fairness, and ‘go[es] to the heart of the
common law tradition and the adversary system.’” Id. (quoting State v. Caban,
210 Wis. 2d 597, 604-05, 563 N.W.2d 501 (1997)). This rule of forfeiture
prevents circuit courts from being “blindside[d]” by appellate courts and gives

5
The Wisconsin Supreme Court has recognized that the previously used phrase,
“‘waiver rule’ is imprecise,” and it is “better to label” this as the “‘forfeiture rule[]’ because it
refers to the forfeiture of a right by silence rather than the intentional relinquishment of a known
right.” State v. Huebner, 2000 WI 59, ¶11 n.2, 235 Wis. 2d 486, 611 N.W.2d 727.

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No. 2020AP1426

circuit courts the ability to “correct any error with minimal disruption of the
judicial process, eliminating the need for appeal.”6 Townsend v. Massey, 2011 WI
App 160, ¶¶25-26, 338 Wis. 2d 114, 808 N.W2d 155 (quoting State v. Ndina,
2009 WI 21, ¶30, 315 Wis. 2d 653, 761 N.W.2d 612); see also State v. Rogers,
196 Wis. 2d 817, 827, 539 N.W.2d 897 (Ct. App. 1995) (explaining that the
forfeiture rule is based on a policy of judicial administration).

¶20 D.R.D. argues that, in spite of her forfeiture of her due process
argument, I should nevertheless address the merits of that argument. I decline to
do so based on the important reasons just summarized in the case law regarding
why we have the forfeiture rule. In addition, the forfeiture rule “prevents
attorneys from ‘sandbagging’ errors, or failing to object to an error for strategic
reasons,” and later stating that the error is grounds for reversal. See Huebner, 235
Wis. 2d 486, ¶12. These reasons are sufficient to deny D.R.D.’s request.

¶21 Even beyond those reasons, D.R.D. refuses to address whether the
reports of Dr. Starr and Dr. Coates, which D.R.D. had available to her eight days
before the evidentiary hearing, provided sufficient notice to satisfy due process.
Those reports provided express notification of all the facts upon which the County
proceeded at the evidentiary hearing and of the standards of dangerousness which
the circuit court ultimately found were satisfied. However, D.R.D. ignores this
question entirely. See State v. Pettit, 171 Wis. 2d 627, 646-67, 492 N.W.2d 633

6
When a claim is forfeited, that issue is typically addressed in the context of ineffective
assistance of counsel. State v. Counihan, 2020 WI 12, ¶28, 390 Wis. 2d 172, 938 N.W.2d 530.
“That is, the defendant must demonstrate that counsel’s failure to object constituted deficient
performance and that such deficient performance prejudiced the defendant.” Id.; see Strickland
v. Washington, 466 U.S. 668, 687 (1984).

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No. 2020AP1426

(Ct. App. 1992) (stating an appellate court will not decide issues that are
inadequately briefed).

¶22 Moreover, D.R.D. does not identify any facts that would support a
conclusion that she was deprived of a reasonable opportunity to prepare for the
evidentiary hearing. D.R.D. does not argue how, if at all, the alleged lack of
specificity from the County about the dangerousness standard inhibited her ability
to prepare her defense, and she does not identify any pretrial investigations she
could have done, or trial strategies she could have employed, if she had been
provided different notification of the dangerousness standards. See id.

¶23 Accordingly, I conclude that D.R.D.’s due process argument is
forfeited, and therefore do not address whether the County violated D.R.D.’s due
process rights as argued by D.R.D.

II. Sufficiency of the Evidence.

¶24 D.R.D. contends that the County failed to establish by clear and
convincing evidence that she is dangerous under WIS. STAT. § 51.20(1)(a)2. I now
recount the material testimony and the circuit court’s findings and conclusions
from the evidentiary hearing.

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No. 2020AP1426

A. Material Testimony and the Circuit Court’s Findings and Conclusions.

¶25 Dr. Starr testified to the following.7 He met with D.R.D. to conduct
an evaluation of D.R.D. while she was at the VA Hospital in Tomah. During the
evaluation, D.R.D. told Dr. Starr that Starr was “interrupt[ing] her geological
studies,” that “she was getting a master’s degree,” and that she was “being held
hostage.” Dr. Starr observed that D.R.D. was “hyper verbal” and “had a hard time
controlling herself.” Dr. Starr’s in-person meeting with D.R.D. ended after five
minutes because D.R.D. became “increasingly aggressive” and refused to further
participate in the evaluation.

¶26 As part of his evaluation of D.R.D., Dr. Starr reviewed D.R.D.’s
records at the VA Hospital and spoke with hospital staff. D.R.D.’s hospital
records “indicated that [D.R.D.] was making suicidal comments” while at the
hospital. The records also indicated that D.R.D. reported to staff that she “hears
the voice of God,” and “hears different voices on the left side of her brain and the
right side of her brain.”

¶27 Based on his review of D.R.D.’s records, discussions with staff, and
his personal observations, Dr. Starr came to the conclusion that D.R.D. suffers
from “unspecified bipolar disorder” and that she was a proper subject for in-
patient treatment Dr. Starr also stated that D.R.D. was a danger to herself or to
others based upon her suicidal comments and untreated mental illness, and that she

7
D.R.D. interrupted the testimony of Dr. Starr by making her own objection even though
she was represented by counsel. Later at the evidentiary hearing, D.R.D. continually interrupted
the circuit court’s findings and conclusions. After circuit court patiently dealt with D.R.D.’s
continued interruptions, D.R.D. was removed from the courtroom for the final, brief portion of
the evidentiary hearing.

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No. 2020AP1426

was not competent or capable of refusing to take prescribed medication because
D.R.D. “was actively manic and psychotic.”

¶28 Dr. Coates testified to the following. He met with D.R.D. at the VA
hospital for approximately twenty-five minutes. Dr. Coates also reviewed
D.R.D.’s records from that hospital. During Dr. Coates’ meeting with D.R.D.,
D.R.D. claimed that “she was a descendent of Moses,” she was “being treated at
Walter Reed [H]ospital,” she “was being used for … human trafficking,” and she
had “been hearing the voices of family members … that[] [are] deceased.”
According to Dr. Coates, D.R.D. demonstrated “a combination of some mood
instability, delusions, [and] hallucinations,” which “are all signs and symptoms of
a psychotic illness.” Dr. Coates opined that D.R.D. shows signs of a psychotic
disorder, either a bipolar disorder or schizophrenia.

¶29 Dr. Coates stated that D.R.D. was dangerous to herself because
“[w]hen she’s in an acute psychotic stage she’s unable to independently care for
herself [and provide for her basic needs] or properly socialize” and the behavior of
someone who is psychotic is unpredictable in terms of whether that person will act
on his or her delusion and “what type of behavior might surface.” Dr. Coates
opined that D.R.D. is a proper subject for treatment and that D.R.D. was not
capable of making an informed decision as to whether to accept or reject treatment
and medication. Dr. Coates also stated that D.R.D. needed inpatient treatment at
that time.

¶30 Near the end of the evidentiary hearing, the circuit court determined
that the parties’ sole dispute concerned whether D.R.D. is a danger to herself or
others. In other words, D.R.D. did not dispute that she has a mental illness and is

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a proper subject for treatment. The circuit court found as follows regarding
D.R.D.’s dangerousness:

Dr. Starr testified … that [D.R.D.] is or was at the time of
[his examination of D.R.D.] suicidal or had presented as
very recently suicidal in his review of the file and during
his conversation with her. Dr. Coates testified to a more
generalized danger to self and also alluded to danger to
others in part related to the inherent unpredictability of the
illness and the current manifestation of the illness.

¶31 The court found that, based upon the testimony of Dr. Starr and
Dr. Coates, as well as the testimony of Deputy Nielsen who recounted at the
hearing the events that led to D.R.D.’s emergency commitment (as has already
been described), D.R.D. “does at this time present a danger to herself or others.”8

¶32 D.R.D. challenges the circuit court’s finding that Dr. Starr testified
that, at the time he attempted to examine D.R.D., she was, or had been very
recently, suicidal. D.R.D. argues that the statement of emergency detention and
the attached report make no reference to suicide or an intent on D.R.D.’s part to
harm herself and that Dr. Starr must have “misunderstood” the information
contained in the those documents D.R.D.’s argument goes to the issue of
Dr. Starr’s credibility. That is to say, D.R.D. is arguing that Dr. Starr’s testimony
that D.R.D. was suicidal is not credible.

¶33 The circuit court is the ultimate arbiter of a witness’s credibility.
Cogswell v. Robertshaw Controls Co., 87 Wis. 2d 243, 250, 274 N.W.2d 647
(1979). This court will not overturn a credibility determination on appeal unless

8
The circuit court did not specify which statutory dangerousness standard it found had
been satisfied in the sense that the circuit court’s ruling did not explicitly refer to a specific
statutory subpart at that point in the proceeding. I address that in more detail later in this opinion.

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No. 2020AP1426

the testimony upon which it is based is inherently or patently incredible or in
conflict with the uniform course of nature or with fully established or conceded
facts. Global Steel Prods. Corp. v. Ecklund Carriers, Inc., 2002 WI App 91, ¶10,
253 Wis. 2d 588, 644 N.W.2d 269.

¶34 At the evidentiary hearing, Dr. Starr was questioned as follows on
direct examination about D.R.D. being suicidal:

[Question]: Along with your attempt to talk with
[D.R.D.] did you review any records at the VA hospital?

[Dr. Starr]: I did, yes.

[Question]: And … did you also besides reviewing
records did you talk to any of the staff at the hospital?

[Dr. Starr]: I did, yes.

[Question]: Based on your review of the records
and discussions … were you able to determine to a
reasonable degree of … psychiatric certainty whether or not
[D.R.D.] suffers from a mental illness at this time?

[Dr. Starr]: Yes.

….

[Question]: … do you believe that [D.R.D.] is a
danger to herself or to others?

[Dr. Starr]: I do believe.

[Question]: And tells us how or why you believe
that?

[Dr. Starr]: The records indicated that she was
making suicidal comments ….

(Emphasis added.)

¶35 Dr. Starr did not specify exactly in that last answer what “records”
he was referring to. However, leading up to that point in Dr. Starr’s testimony,

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No. 2020AP1426

Dr. Starr testified that he had reviewed D.R.D.’s records at the VA Hospital. The
questions and Dr. Starr’s answers immediately following Dr. Starr’s reference to
the hospital’s records refer generally to “records.” No reference is made in the
surrounding testimony to the statement of emergency detention or the report
attached to that statement. The only logical conclusion from the record and the
circuit court’s findings is that Dr. Starr’s general references to “records” were to
the records of the VA Hospital. D.R.D. does not argue, or point to any evidence,
that records of the VA Hospital did not contain references to D.R.D. making
suicidal comments or that Dr. Starr otherwise falsely testified that VA Hospital
records indicated that D.R.D. was suicidal. Accordingly, I conclude that the
circuit court’s credibility determination concerning Dr. Starr’s testimony is not
clearly erroneous and therefore uphold that finding. See id.

B. The Evidence Was Sufficient to Support the Circuit Court’s Order for
D.R.D.’s Involuntary Commitment.

¶36 When reviewing whether evidence is sufficient to support findings
made by the circuit court without a jury, this court will not reverse those findings
unless those are contrary to the great weight and clear preponderance of the
evidence. See Cogswell, 87 Wis. 2d at 249.

¶37 To repeat, dangerousness may be shown by any of the five standards
listed in WIS. STAT. § 51.20(1)(a)2. The circuit court did not explicitly specify the
standard or standards of dangerousness it found applied by calling out at the

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No. 2020AP1426

hearing a statutory subpart.9 However, I agree with the County that the court,
through its discussion of Dr. Starr’s testimony and its other findings, found that at
least the first standard, § 51.20(1)(a)2.a., applied. I now address the sufficiency of
the evidence under that standard.

¶38 A person is dangerous within the meaning of WIS. STAT.
§ 51.20(1)(a)2.a. if the individual “[e]vidences a substantial probability of physical
harm to himself or herself as manifested by evidence of recent threats of or
attempts at suicide or serious bodily harm.” Sec. 51.20(1)(a)2.a. Dr. Starr
testified that records from the VA Hospital, where D.R.D. was being detained,
indicated that D.R.D. had made statements that the circuit court reasonably saw as
suicidal threats within the context of D.R.D.’s behaviors. As explained above, the
circuit court found this testimony of Dr. Starr credible, and there is nothing in the
record to suggest otherwise. I conclude that the above-mentioned evidence was
sufficient to prove that there was a substantial probability of D.R.D. causing

9
In Langlade Cnty. v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277, the
supreme court held that “going forward circuit courts in recommitment proceedings are to make
specific factual findings with reference to the subdivision paragraph of WIS. STAT.
§ 51.20(1)(a)2. on which recommitment is based.” D.J.W., 391 Wis. 2d 231, ¶¶3, 43. D.J.W.
was issued on April 24, 2020. D.R.D. acknowledges that her evidentiary hearing was held before
D.J.W. was issued and that the supreme court “expressly limited its imposition of the requirement
that circuit courts specify which of the five standards of dangerousness their rulings are based on
to future cases,” that is to say, in hearings that take place after D.J.W was issued. (Emphasis
added.) However, D.R.D. argues that “due process requires that the D.J.W. requirement apply to
her case as well.” Fatal to D.R.D.’s argument is D.R.D.’s failure to present this court with any
argument as to why due process requires that the holding in D.J.W. be applied retroactively to her
case, contrary to our supreme court’s binding directive that its holding apply prospectively. See
Associates Fin. Servs. Co. of Wis., Inc. v. Brown, 2002 WI App 300, ¶4 n.3, 258 Wis. 2d 915,
656 N.W.2d 56 (stating this court does not consider conclusory assertions and undeveloped
arguments) and Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997) (holding that
the court of appeals is bound by supreme court decisions). Accordingly, I reject this argument.

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No. 2020AP1426

physical harm to herself as manifested by evidence that D.R.D. had made recent
threats of suicide.10

¶39 Accordingly, I conclude that the evidence was sufficient to support
the circuit court’s order granting D.R.D.’s commitment.

CONCLUSION

¶40 For the foregoing 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.

10
Because I conclude that the evidence was sufficient to prove that D.R.D. was
dangerous under the first standard, I need not address the County’s argument that the evidence
was sufficient to prove that D.R.D. was also dangerous under the fifth standard. See Sweet v.
Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983) (if a decision on one point disposes
of the appeal, the court will not decide other issues raised).

18