Marathon County v. T. R. H.

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.
March 14, 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. 2022AP1394 Cir. Ct. No. 2015ME181

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

IN THE MATTER OF THE MENTAL COMMITMENT OF T. R. H.:

MARATHON COUNTY,

PETITIONER-RESPONDENT,

V.

T. R. H.,

RESPONDENT-APPELLANT.

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

¶1 STARK, P.J.1 Thomas2 appeals from a recommitment order and an
associated order for the involuntary administration of his medication and

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2021-22). All
references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
No. 2022AP1394

treatment. Thomas argues that these orders must be reversed because, in finding
him dangerous, the circuit court failed to reference a specific statutory subdivision
paragraph in WIS. STAT. § 51.20(1)(a)2. and failed to make the required factual
findings as mandated by Langlade County v. D.J.W., 2020 WI 41, 391 Wis. 2d
231, 942 N.W.2d 277. Additionally, Thomas argues that Marathon County failed
to prove by clear and convincing evidence that he was dangerous.

¶2 We conclude that the circuit court found Thomas was dangerous
under WIS. STAT. § 51.20(1)(a)2.c.; however, we further conclude that the court’s
finding in that regard was clearly erroneous because the County failed to meet its
burden to prove that Thomas was dangerous as required for recommitment under
that subdivision paragraph. We therefore reverse the recommitment and
involuntary medication and treatment orders.3

BACKGROUND

¶3 Thomas was initially committed in 2015, and he has remained under
commitment since that time. In January 2022, the County filed a petition for
Thomas’s recommitment. At the time of the petition, Thomas was seventy-one

2
For ease of reading, we refer to the appellant in this confidential appeal using a
pseudonym, rather than his initials.
3
Thomas separately argues that the involuntary medication and treatment order must be
reversed because the County did not provide sufficient testimony to meet its burden of proof.
However, an order allowing for the involuntary administration of medication and treatment
requires the existence of a valid commitment order. See WIS. STAT. § 51.61(1)(g)3. Because we
reverse the commitment order, reversal of the associated involuntary medication order is also
required and we need not address Thomas’s separate argument regarding that order. 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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years old, living independently, taking care of his daily needs and finances without
assistance, and was receiving outpatient services.

¶4 The County called Drs. John Coates and Courtney Derus as
witnesses at the recommitment hearing. Both doctors wrote reports prior to the
hearing, but neither of the doctors’ reports were admitted into evidence. No
treatment records were submitted as evidence at the hearing. Thomas also
testified at the hearing.

¶5 Thomas was scheduled to meet with Dr. Coates prior to the hearing,
but Coates testified that Thomas failed to appear. Thomas later testified that he
was ill at the time of his scheduled appointment with Coates. Coates stated that he
last met with Thomas in August 2021. While Coates agreed that it was possible
Thomas had improved since that time, he testified that he did not have a recent
opportunity to assess Thomas. Coates did recall that when they last met, Thomas
was taking medication and was stable enough to remain in the community but
“still was symptomatic.”

¶6 Doctor Coates testified that he reviewed Thomas’s treatment records
to prepare his report and testify at the hearing. He diagnosed Thomas with
schizophrenia, paranoid type, explaining that the condition qualified as a
substantial disorder of mood or thought that is treatable, mainly with psychotropic
medication. Coates testified that, in the past, Thomas had problems with
delusions, paranoia, and disorganized thinking. Additionally, Coates testified that
he believed Thomas had a history of treatment noncompliance and Thomas had
been hospitalized multiple times. Coates stated that Thomas had been on the same
medication for “a couple of years.”

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¶7 Doctor Coates acknowledged that “over the past few years there has
been some stability” for Thomas, but Coates noted he believes Thomas “continues
to have persecutory, grandiose delusions and … social impairment.” If treatment
were withdrawn, Coates testified that it was his belief Thomas would “become a
danger to himself.” Coates explained that when treatment has been withdrawn
from Thomas in the past, Thomas has shown “some social impairment,” but
without treatment, Thomas mainly presents “a danger to himself in terms of lack
of self-care.” Specifically, Coates testified that when Thomas “goes off his
medication[,] his thinking becomes grossly disorganized,” he faces “mood
instability” and “gets to a point where he just cannot properly socialize. He has
trouble interacting with others.” As an example of this behavior, Coates stated
that he has seen Thomas with “facial makeup on” while “acting very, very
bizarre.”

¶8 Doctor Coates opined that if Thomas were not under a commitment
order, he would likely stop taking his medication. Coates testified that he believes
Thomas is “incompetent to apply a good understanding of the advantages and
disadvantages” of his medication due to Thomas’s “lack of insight and impaired
judgment.” Coates also opined that there was a substantial probability Thomas
would develop impaired judgment if treatment were withdrawn, and his impaired
judgment was likely to result in further harm to either Thomas’s own physical
health or the health of others.

¶9 Doctor Derus testified that she was also unable to meet with Thomas
prior to the hearing. Thomas later explained that he had attempted to attend the
examination with Derus at 1:30 p.m. on a Friday but that “[Derus] wouldn’t see
[him]” as she thought he was untidy. Similar to Coates, Derus testified that she
last met with Thomas in August 2021 and had not seen him since that time. Derus

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also reviewed Thomas’s treatment records to prepare her report and her testimony.
Derus testified that Thomas’s treatment records indicated that, in the past, he had
“demonstrated a lack of treatment compliance due to a lack of insight about his
mental illness and some paranoia.” The prior paranoia that Thomas had exhibited,
Derus explained, was in regard to his treatment providers who he thought were
“retaliating or threatening him.”

¶10 Doctor Derus diagnosed Thomas with schizophrenia, a condition she
also stated qualified as a substantial disorder of mood or thought and a mental
illness that can be improved with treatment. Derus opined that if treatment were
withdrawn, Thomas would present a substantial probability of harm to himself or
others. Derus explained that Thomas’s records “indicate that he has [a] history of
delusions that are paranoid in nature and he could become dangerous due to his
lack of reality testing.” She further testified that Thomas “has an inability to
function adequately in the community.” If Thomas were not under court-ordered
commitment and treatment, Derus testified that based upon his past history, there
was a substantial probability of Thomas’s judgment becoming impaired, and that
impaired judgment was likely to result in physical impairment to Thomas. Lastly,
Derus testified that she believed Thomas was not competent to accept or refuse
medication due to his mental illness.

¶11 Thomas testified that, at the time of the hearing, he lived in a rental
unit that he paid for on his own. He was not working, but he testified that he had
hobbies and collected social security retirement income monthly, and he stated the
monthly amount he received from social security. Thomas testified that he had no
difficulty managing his own finances, and that he had his own bank account and
credit card. Thomas explained he had a cell phone that he operated by himself.
He also testified that he knew his own credit score and stated that number when

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asked. If he became ill or injured, Thomas that testified he knew how to get
himself to the hospital. Furthermore, Thomas stated he had not fallen recently.

¶12 Thomas further testified that he owned a car, which he drove to court
for the hearing. He explained that no one helped him with his living situation and
he completed his own shopping. Thomas testified that he was able to
independently dress and bathe himself, and take his medication. He stated that he
currently took ten milligrams of Olanzapine and that the medication makes him
“focus” and become “more stable.” If he were not under a commitment order,
Thomas testified that he would still take his medication and see his doctor, noting
that he liked his current doctor. Thomas further testified that he had no recent
suicidal thoughts or thoughts about harming others.

¶13 The circuit court concluded that Thomas was mentally ill and had a
treatable condition. Relying on the testimony of Drs. Coates and Derus, the court
found that the County presented clear and convincing evidence in support of
Thomas’s recommitment. The court stated that “the big issue here is not so much
what [Thomas’s] current level of functioning is, but it’s to look forward to what
his level of functioning would be if treatment were withdrawn.” Mentioning how
“both doctors testified that historically [Thomas] has not indicated a willingness to
take his medications,” the court determined that the doctors believed Thomas
presented “a substantial likelihood that he would become a proper subject for
treatment if treatment were withdrawn based upon an impaired judgment.” The
court further noted that Thomas presented “a substantial probability of physical
impairment to himself.”

¶14 “[B]ased upon the opinions of the doctors,” the circuit court also
stated that Thomas was “substantially incapable of applying an understanding of

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the … advantages and disadvantages of medication” “due to his mental illness.”
The court ordered a twelve-month extension of Thomas’s commitment. At the
end of its ruling, the court addressed Thomas stating that “it’s no comment as to
how you’re doing now, you’re doing well, and I think it’s just appropriate that you
continue on the course you’re on.”

¶15 After the hearing, the circuit court entered written orders for the
extension of Thomas’s commitment and allowing for the involuntary
administration of his medication and treatment. The court checked a box in the
written extension order stating that Thomas was dangerous because there was “a
substantial probability of physical impairment or injury to himself … or other
individuals due to impaired judgment.” The form also stated that this risk was
manifested or shown in Thomas by “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.” Thomas now appeals from both
orders.

DISCUSSION

¶16 Thomas does not dispute that he is mentally ill and a proper subject
for treatment. He challenges only the circuit court’s conclusion that he is
dangerous. Whether a petitioner has “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, but whether those
facts satisfy the statutory standard of dangerousness is a question of law that we
review de novo. Marathon County v. D.K., 2020 WI 8, ¶18, 390 Wis. 2d 50, 937
N.W.2d 901; WIS. STAT. § 805.17(2). “[A] finding of fact is clearly erroneous

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No. 2022AP1394

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).

¶17 For an individual to be recommitted, the petitioner must prove that
the individual fulfills three requirements: “the subject must be (1) mentally ill;
(2) a proper subject for treatment; and (3) dangerous to themselves or others.”
Sheboygan County v. M.W., 2022 WI 40, ¶¶17-18, 402 Wis. 2d 1, 974 N.W.2d
733; WIS. STAT. § 51.20(1)(a)1.-2. “Upon each petition to extend a term of
commitment, a county must establish the same elements with the same quantum of
proof.” Waukesha County v. J.W.J., 2017 WI 57, ¶20, 375 Wis. 2d 542, 895
N.W.2d 783.

¶18 There are five ways a petitioner can meet its burden to prove
dangerousness. Outagamie County v. Michael H., 2014 WI 127, 359 Wis. 2d
272, 856 N.W.2d 603; WIS. STAT. § 51.20(1)(a)2.a.-e. Each recommitment
hearing requires proof of “current dangerousness,” and “[i]t is not enough that [an]
individual was at one point dangerous.” D.J.W., 391 Wis. 2d 231, ¶34 (citation
omitted). “[C]ircuit courts in recommitment [hearings] are to make specific
factual findings with reference to the subdivision paragraph of § 51.20(1)(a)2. on
which the recommitment is based.” Id., ¶40.

¶19 “Because an individual’s behavior might change while receiving
treatment, WIS. STAT. § 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 a recommitment hearing. M.W., 402 Wis. 2d 1, ¶19
(citation omitted). Section 51.20(1)(am) allows a petitioner to prove
dangerousness by showing that there is “a substantial likelihood, based on the

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subject individual’s treatment record, that the individual would be a proper subject
for commitment if treatment were withdrawn.” This alternative path does not
change the requirement that the petitioner prove, by clear and convincing
evidence, that the individual in question is mentally ill, a proper subject for
treatment, and currently dangerous. Waupaca County v. K.E.K., 2021 WI 9, ¶26,
395 Wis. 2d 460, 954 N.W.2d 366, cert. denied, 142 S. Ct. 594 (2021).

¶20 Thomas argues that the recommitment order must be reversed
because the circuit court failed to comply with D.J.W.’s requirement that the court
make factual findings regarding his dangerousness with reference to the specific
subdivision paragraph in WIS. STAT. § 51.20(1)(a)2. on which his recommitment
was based. Additionally, Thomas notes that the County, in its petition and at the
recommitment hearing, did not reference a subdivision paragraph under which it
sought his recommitment.

¶21 The County concedes the latter point, acknowledging that it failed to
specify—at least by specific statutory reference—the dangerousness standard on
which it relied in seeking Thomas’s recommitment. However, the County argues
that the circuit court complied with D.J.W.’s requirement because it restated the
language of WIS. STAT. § 51.20(1)(a)2.c. in its oral ruling, and the written order
contained language that mirrored § 51.20(1)(a)2.c. as well.

¶22 Based upon the circuit court’s oral ruling and its written order, we
agree with the County and conclude that the court found Thomas dangerous under
WIS. STAT. § 51.20(1)(a)2.c. Section 51.20(1)(a)2.c. states that an individual can
be found dangerous if he or she “evidences such impaired judgment … that there
is a substantial probability of physical impairment or injury to himself or herself or
other individuals.” In its written order, the court checked a box that stated Thomas

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presented “a substantial probability of physical impairment or injury to
himself … or other individuals due to impaired judgment.” That language
mirrored part of the wording in § 51.20(1)(a)2.c. And in its oral ruling, the court
found, based on the doctors’ testimony, that Thomas presented “a substantial
likelihood that he would become a proper subject for treatment if treatment were
withdrawn based upon an impaired judgment and … a substantial probability of
physical impairment to himself.” Again, this language mirrored the dangerousness
standard set forth in § 51.20(1)(a)2.c.

¶23 Under D.J.W., however, the circuit court was not merely required to
identify which dangerousness standard it relied on in finding Thomas dangerous;
the court was also required “to make specific factual findings” referencing a
subdivision paragraph in WIS. STAT. § 51.20(1)(a)2. on which the recommitment
was based. See D.J.W., 391 Wis. 2d 231, ¶3 (emphasis added). Here, we
conclude the court failed to make the required factual findings.

¶24 The County argues that the circuit court implicitly adopted the
findings and conclusions of Drs. Coates and Derus4 regarding dangerousness,
specifically emphasizing the doctors’ opinions regarding Thomas’s level of
functioning if treatment were to be withdrawn. Moreover, the County points out
that the court noted, in its ruling, Thomas’s historical unwillingness to continue his
medication and the connection between that unwillingness and Thomas’s impaired
judgment, leading Thomas to be dangerous to himself or others.

4
The County, in its briefing, states “the findings and conclusions of Doctors Coates and
Starr.” (Emphasis added.) Given that the two testifying doctors in this case were Coates and
Dr. Derus, we assume that the County meant to refer to Derus.

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¶25 While the County correctly notes that the circuit court relied upon
both doctors’ findings and conclusions in finding Thomas dangerous, the court
made no specific factual findings in support of its dangerousness determination.
The doctors’ testimony failed to provide any evidence as to how Thomas would
become dangerous to himself or others if treatment were withdrawn, and the court
did not cite any evidence establishing that factor in its oral ruling and written
order.

¶26 Doctor Coates testified that he believed Thomas would cease taking
his medication if he were not under a commitment order. Should that occur,
Coates opined that Thomas would then possibly experience disorganized thinking,
mood instability, and impaired judgment, and could become delusional and
paranoid. Based on Thomas’s history from an unspecified time, Coates also
testified that when Thomas stopped taking his medication in the past, he exhibited
a lack of self-care, antisocial behavior, and had difficulty interacting with others.
Dr. Derus testified that Thomas “has an inability to function adequately in the
community,” and if Thomas were not under court-ordered commitment and
treatment, there was a substantial probability of Thomas’s judgment becoming
impaired, with that impaired judgment likely to result in physical harm to Thomas.

¶27 However, there was no evidence presented—and, accordingly, the
circuit court made no findings—as to how these behaviors and possible future
symptoms would cause physical impairment or injury to Thomas, or otherwise
make him a danger to himself or others. As a result, the doctors’ testimony was
insufficient for the court to make a factual finding that there was “a substantial
likelihood that [Thomas] would become a proper subject for treatment if treatment
were withdrawn based upon an impaired judgment.” The court merely repeated

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the statutory language without relying upon any facts in the record, which is
insufficient to comply with D.J.W.

¶28 Even if we were to conclude that the circuit court made specific
factual findings with reference to the subdivision paragraph of WIS. STAT.
§ 51.20(1)(a)2.c. on which the recommitment was based, we would conclude that
such findings are clearly erroneous. As Thomas contends, the County failed to
prove there was a substantial likelihood that he would be a proper subject for
commitment if treatment were withdrawn. Thomas correctly argues that
dangerousness “cannot be assumed from [a] prior commitment order” and that the
County “provided no evidence of dangerous acts that meet the standard in WIS.
STAT. § 51.20(1)(a)2.c.” Thomas further argues that each recommitment must be
based on “current, dual findings of mental illness and dangerousness.” See
Portage County v. J.W.K., 2019 WI 54, ¶21, 386 Wis. 2d 672, 927 N.W.2d 509.

¶29 The County asserts that it presented sufficient evidence for
Thomas’s recommitment under WIS. STAT. § 51.20(1)(am) and that Thomas
improperly focuses solely on whether the County presented evidence of his recent
acts or omissions evidencing his dangerousness. It claims that the circuit court
properly relied on the doctors’ testimony about Thomas’s long-standing history of
mental illness that was accompanied by problems with delusions, paranoia, and
disorganized thinking when treatment was withdrawn. The County contends that
the doctors in this case testified regarding Thomas’s previous behaviors and
continuing patterns, and the court then reasonably relied on that testimony when
making its required findings. According to the County, behavior prior to, or
earlier in, a commitment is a proper basis for a finding of current dangerousness
under the recommitment standard because “[d]angerousness in an extension
proceeding can and often must be based on the individual’s precommitment

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behavior, coupled with an expert’s informed opinions and predictions.”
Winnebago County v. S.H., 2020 WI App 46, ¶13, 393 Wis. 2d 511, 947 N.W.2d
761. The County therefore argues that the evidence was sufficient in this case to
support a finding that Thomas is currently dangerous if treatment were withdrawn.

¶30 We disagree and conclude that the evidence presented at the hearing
was insufficient to prove, by clear and convincing evidence, that Thomas would be
a proper subject for commitment under WIS. STAT. § 51.20(1)(a)2.c. if his
treatment were withdrawn. The County presented no evidence about Thomas’s
past dangerousness. Further, it failed to present any evidence about how Thomas
was dangerous in the past when he was not receiving treatment, or how Thomas
would likely become dangerous at this time if treatment were withdrawn such that
there would be “a substantial probability of physical impairment or injury to
himself … or other individuals.” See § 51.20(1)(a)2.c.

¶31 The County argues that it provided sufficient evidence of how
Thomas would become dangerous to himself or others if his treatment were
withdrawn. Specifically, it points to Dr. Coates’ testimony that Thomas becomes
“grossly disorganized” “when [he] is off his medications” and that Thomas
experiences “mood instability” and disorganized thoughts. In the past, and
without treatment, Coates testified that Thomas reached a point where he could
not interact with others or care for himself.

¶32 The County, however, presented no evidence as to when these prior
symptoms occurred or how they caused Thomas to become a danger to himself or
others. Likewise, the County provided no specifics as to how Thomas has failed
to care for himself in the past or why his ability to interact with others caused a
“substantial probability of physical impairment or injury to himself … or other

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individuals.” See WIS. STAT. § 51.20(1)(a)2.c. At most, the evidence showed that
Thomas has previously failed to maintain his self-care, has exhibited paranoia and
had delusions, and may have not interacted in a socially appropriate manner.
None of these behaviors—especially without evidence of specific incidents—
clearly and convincingly show that Thomas was dangerous under § 51.20(1)(a)2.c.
at the time of the recommitment hearing, or would likely become so if his
treatment were withdrawn. See § 51.20(1)(am).

¶33 Accordingly, the County failed to present clear and convincing
evidence that Thomas was dangerous under WIS. STAT. § 51.20(1)(a)2.c. and
(1)(am). We therefore reverse the recommitment order and the associated
involuntary medication order.

By the Court.—Orders reversed.

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

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