Marathon County v. L. A. R.

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.
December 29, 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. 2022AP1226-FT Cir. Ct. No. 2022ME10

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

IN THE MATTER OF THE MENTAL COMMITMENT OF L. A. R.,

MARATHON COUNTY,

PETITIONER-RESPONDENT,

V.

L. A. R.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Marathon County:
LAMONT K. JACOBSON, Judge. Affirmed.

¶1 STARK, P.J.1 Laura2 appeals from orders for her WIS. STAT. ch. 51
commitment and the involuntary administration of medication and treatment.3 She
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(d) (2019-20).
Further, this is an expedited appeal under WIS. STAT. RULE 809.17 (2019-20). All references to
the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2022AP1226-FT

argues that Marathon County failed to provide clear and convincing evidence that
she was dangerous under WIS. STAT. § 51.20(1)(a)2.d. We disagree and affirm the
circuit court’s orders.

BACKGROUND

¶2 In January 2022, Laura was emergently detained based upon a
substantial probability that she would harm herself or others. After a hearing, the
circuit court found probable cause to believe that Laura met the standards for
commitment and an involuntary medication order.

¶3 Three witnesses testified at Laura’s final hearing: Dr. Marshall
Bales; Dr. Dennis Elmergreen; and Lily, Laura’s thirty-four-year-old daughter.
Prior to the hearing, both doctors submitted reports to the circuit court based upon
their interviews with Laura. Both doctors testified at the hearing that Laura
suffered from bipolar disorder with manic features. The doctors also both testified
that Laura was dangerous, that her judgment was impaired, and that her mental
illness was treatable.

¶4 At the hearing, Doctor Bales opined, consistent with his report, that
based upon a recent episode between Laura and Lily, Laura was dangerous under
the second standard for dangerousness, WIS. STAT. § 51.20(1)(a)2.b., as she
presented a substantial probability of harm to others or placed others in reasonable

2
For ease of reading, we refer to the appellant and her family members in this
confidential appeal using pseudonyms, rather than their 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. Laura does not raise any argument on
appeal that is specific to her involuntary medication order, but if the commitment order were
reversed, reversal of the associated involuntary medication order would also be required.

2
No. 2022AP1226-FT

fear of violent behavior or physical harm. Bales testified, however, that Laura’s
“main dangerousness” was under the fourth standard, § 51.20(1)(a)2.d. As to this
latter opinion, he stated that during his interview with Laura, she was defensive,
angry, accusatory, hyperverbal, manic, and dysphoric. Bales further testified that
Laura has suffered from bipolar disorder for over thirty years. He opined that
Laura was unable to care for her own basic needs, based in part upon three
episodes of Laura running out of gas in the bitter cold, because she thought she
was driving an electric car, and her knocking at strangers’ doors in the cold
presenting as very vulnerable. Bales further based his opinion on the fact that
Laura’s home was in disarray, that she had tape on the electrical outlets, and that
Laura was being maintained in her home through the assistance of both her
husband (who made sure the bills were paid), and her daughters.

¶5 On cross-examination, Doctor Bales testified that he was unaware of
Laura recently needing to be hospitalized for injuries to herself. Nevertheless,
Bales testified that he believes Laura presents as “very, very vulnerable” and is
unable to satisfy her basic needs based on her recent erratic behavior.

¶6 Doctor Elmergreen opined that during his interview with Laura, she
“appeared to be quite delusional” and “actively psychotic.” In his report and
during his testimony, Elmergreen opined that Laura was dangerous under WIS.
STAT. § 51.20(1)(a)2.b., noting that she would present a substantial probability of
physical impairment or injury to herself or others due to her impaired judgment.

¶7 Lily expressed concern about Laura’s mental health based on
Laura’s recent behavior. Specifically, Lily testified about an incident that
occurred when she went to Laura’s home in January 2022. During that visit,
Laura stated she was worried that someone had broken into her home and that

3
No. 2022AP1226-FT

Lily’s aunt had shot and killed someone. According to Lily, Laura then accused
her of working for the police, and Laura demanded that Lily take her to the police
station to prove that Lily did not work for the police. Lily further explained that
Laura cornered and pushed Lily against a wall, pulled Lily’s hair, punched her a
few times, and tried ripping Lily’s glasses off, saying that she did not need glasses
because Lily had LASIK surgery. Lily stated that when she ran to her car, Laura
followed her while yelling at her, accusing her of stealing Laura’s car, and hitting
the car while asking to be let in. While Lily testified that she was not injured as a
result of this incident, she stated that she fears her mother and that she is worried
about her mother’s own health and safety.

¶8 During her testimony, Lily also confirmed that Laura had recently
run out of gas during severely cold weather on three separate occasions because
Laura believed her car was electric. Lily also testified about other behavior she
found concerning, such as when Laura started a fire in her own home and called
the fire department, and when Laura flooded an entire room in her home by
leaving the water running.

¶9 The circuit court found both that Laura was mentally ill, as she
suffered from bipolar disorder, and that Laura’s mental illness was treatable. The
court concluded that despite the testimony regarding the incident involving Laura
and Lily, Laura was not dangerous under WIS. STAT. § 51.20(1)(a)2.b. The court
nevertheless found that Laura’s aggressive behavior toward Lily could be
considered by the court as evidence relevant to the other dangerousness standards.
It then relied, in part, on Lily’s testimony to conclude the County had proved by
clear and convincing evidence that Laura was dangerous under § 51.20(1)(a)2.d.
Specifically, the court stated that Laura’s

4
No. 2022AP1226-FT

aggressive behavior toward … another individual, could
carry over into aggressive behavior when cars run out of
gas or the Fire Departments arrive, and I think then there is
clear and convincing evidence that there is a substantial
risk of danger to herself based upon all of those facts being
considered together.

The court ordered Laura to be committed for six months and ordered an associated
involuntary medication order. Laura now appeals.

DISCUSSION

¶10 To commit an individual under WIS. STAT. ch. 51, the circuit court
must find that the individual is mentally ill, a proper subject for treatment, and
currently dangerous under one or more of five separate dangerousness standards.
WIS. STAT. § 51.20(1)(a). Whether the County has met its burden to prove that
these elements have been satisfied presents a mixed question of law and fact.
Waukesha County 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.” Langlade County v. D.J.W., 2020 WI 41, ¶24, 391 Wis. 2d 231, 942
N.W.2d 277. “[A] finding of fact is clearly erroneous when ‘it is against the great
weight and clear preponderance of the evidence.’” Phelps v. Physicians Ins. Co.
of Wis., 2009 WI 74, ¶39, 319 Wis. 2d 1, 768 N.W.2d 615 (citation omitted).
Second, we determine “[w]hether the facts satisfy the statutory standard[, which]
is a question of law that we review de novo.” J.W.J., 375 Wis. 2d 542, ¶15.

¶11 On appeal, Laura does not challenge the sufficiency of the evidence
supporting the circuit court’s findings that she is mentally ill and that her illness is
treatable. She does, however, argue that the court erred in concluding the County
proved by clear and convincing evidence that she is dangerous under WIS. STAT.

5
No. 2022AP1226-FT

§ 51.20(1)(a)2.d.4 That statute provides that an individual is dangerous if the
person

[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.

Id.

¶12 Laura argues the County failed to prove that “death, serious physical
injury, serious physical debilitation, or serious physical disease” would ensue if
she were not committed. See id. She asserts the evidence establishes only that she
called the fire department on one occasion, flooded a room in her home by leaving
the water running on another occasion, and ran out of gas in her car three times in
cold weather. Laura contends there is no evidence that any of these incidents
caused her harm, nor are they situations that were deadly or had the potential to
cause “death, serious physical injury, serious physical debilitation, or serious
physical disease.” See id.

¶13 We conclude that the County met its burden to prove Laura is
currently dangerous under WIS. STAT. § 51.20(1)(a)2.d. Although Laura argues
that neither she nor anyone else was injured by her actions, the commitment
statute does not require that actual injury occur in order to prove current

4
The circuit court found Laura dangerous under only WIS. STAT. § 51.20(1)(a)2.d.
While the County argued at the commitment hearing that Laura met the elements for
dangerousness under § 51.20(1)(a)2.b. and 2.c., the County does not renew these arguments on
appeal, and we therefore do not address them.

6
No. 2022AP1226-FT

dangerousness. Section 51.20(1)(a)2.d. requires only a substantial probability that
physical harm will immediately ensue unless Laura receives prompt and adequate
treatment. The record supports the circuit court’s conclusion that due to her
mental illness, Laura was a substantial risk of danger to herself without prompt
and adequate treatment.

¶14 The circuit court noted that Laura had recently run out of gas in cold
weather because she thought she was driving an electric car. The court
commented that while one such occasion would not be unreasonable, three such
occurrences did not make rational sense. Further, Dr. Bales’ report stated that
Laura was found “knock[ing] on strangers’ doors and then accus[ing] them of
lying about who they were.” The court also noted Lily’s testimony concerning
both Laura’s statement that she had started a fire in her home—which resulted in
the fire department being called—and Laura had flooded a room in her home by
leaving a faucet running. According to both doctors’ testimony, these events
occurred at a time when Laura was actively delusional. The evidence also showed
that Laura’s home was in disarray, and she required family assistance to live there.
Finally, the court discussed Laura’s physically aggressive conduct and delusional
behavior toward Lily.

¶15 The above evidence supports the circuit court’s conclusion that, as a
result of her mental illness, Laura is unable to satisfy her basic needs for shelter
and safety and that she is therefore currently dangerous as provided in WIS. STAT.
§ 51.20(1)(a)2.d. Accidentally starting a fire and flooding a room in her home
while delusional placed Laura at risk of serious physical harm. Laura’s impaired
judgment interfered with her ability to operate a motor vehicle, causing her to
repeatedly run out of gas. As the court noted, doing so on one occasion would not
be concerning; however, doing so repeatedly in bitterly cold weather because she

7
No. 2022AP1226-FT

incorrectly believed she was driving an electric car placed Laura at risk of physical
injury. Laura’s confrontational and delusional behavior to Lily and to strangers
also placed Laura at risk of imminent physical harm. Further, the antagonistic and
physically aggressive behavior Laura exhibited toward Lily while delusional
reasonably led the court to conclude that Laura would be aggressive toward others,
which may provoke harm to Laura when dealing with others such as fire
department personnel or strangers.

¶16 Laura cites Milwaukee County v. Cheri V., No. 2012AP1737,
unpublished slip op. (WI App Dec. 18, 2012),5 in support of her argument that the
circuit court erred in concluding that she was dangerous because her behaviors
would provoke another individual to harm her. She asserts Cheri V. held that
evidence of behavior which might provoke another individual to harm the subject
of the petition for commitment is not evidence of dangerousness. The facts in
Cheri V., however, are materially distinguishable from those in this case.

¶17 In Cheri V., an individual sought treatment at a mental health
facility, during which she became “very upset, very angry” and started confronting
other patients and “finger pointing.” Id., ¶3. The nurse at the facility stated that as
a result, she became concerned for Cheri’s safety and that of the other patients and
she put Cheri in restraints. Id. In reversing the circuit court’s dangerousness
finding and commitment order, we stated that “yelling at and pointing a finger at
another person, irrespective of how dangerous that other person might be” is not
evidence sufficient to meet any of the dangerousness standards “unless there is

5
Unpublished opinions authored by a single judge and issued on or after July 1, 2009,
may be cited for their persuasive value. See WIS. STAT. RULE 809.23(3)(b).

8
No. 2022AP1226-FT

evidence that the subject of a potential commitment order is trying to goad that
other person in order to have that person kill or harm the subject (as in ‘suicide by
cop’).” Id., ¶7.

¶18 In the instant action, however, the evidence shows that Laura’s
impaired judgment and delusional behavior caused her to do more than merely
become very upset and “point fingers” at others. On more than one occasion,
Laura became confrontational and belligerent when dealing with others. In
addition, Laura approached random strangers’ homes and accused whomever
answered the door of lying to her. Of most concern to the circuit court was
Laura’s physical attack of Lily while Laura was upset and actively delusional.
The court could reasonably conclude that Laura could place herself at risk of
serious bodily harm by provoking a response from others to her aggressive and
confrontational behavior when she was delusional, similar to the “goading”
scenario discussed in Cheri V. See id.

¶19 The circuit court concluded that it was substantially probable that
Laura would seriously harm herself without prompt and adequate treatment
because she was unable to satisfy her basic needs for shelter and safety due to her
mental illness. These findings are not clearly erroneous. The County met its
burden of proving Laura was dangerous to herself under WIS. STAT.
§ 51.20(1)(a)2.d., and we therefore affirm.

By the Court.—Orders affirmed.

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

9