La Crosse County v. J. M. A.

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 21, 2019
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. 2019AP1258-FT Cir. Ct. No. 1994ME489

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

IN THE MATTER OF THE MENTAL COMMITMENT OF J. M. A.:

LA CROSSE COUNTY,

PETITIONER-RESPONDENT,

V.

J. M. A.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for La Crosse County:
ELLIOTT M. LEVINE, Judge. Affirmed.
No. 2019AP1258-FT

¶1 NASHOLD, J.1 J.M.A. appeals an order extending his involuntary
commitment. He argues that La Crosse County failed to adduce clear and
convincing evidence that he was dangerous, as required by WIS. STAT. § 51.20.
The circuit court’s order is affirmed.

BACKGROUND

¶2 On October 31, 2018, the County filed a petition to extend J.M.A.’s
involuntary commitment. J.M.A. contested the petition, and the circuit court held
an evidentiary hearing.

¶3 Dr. Gail Tasch, the psychiatrist who was appointed to perform an
evaluation of J.M.A., testified at the hearing. Her testimony and report were the
only evidence introduced at the hearing. Because J.M.A. refused to meet with
Dr. Tasch, her opinion was based on a review of J.M.A.’s medical records and on
discussions with some of his health-care providers, including J.M.A.’s previous
psychiatrist.

¶4 In her report and testimony, Dr. Tasch stated that J.M.A. had
paranoid schizophrenia, a history of psychosis, fixed delusions, aggression, and
noncompliance with treatment. She also testified that, approximately six months
prior to the hearing, J.M.A. had threatened to kill his previous psychiatrist,
Dr. Katie Fassbinder, and lock his own relatives in a house. Dr. Fassbinder
stopped treating J.M.A. because of the threats. J.M.A.’s conduct resulted in his

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(d). In an
August 30, 2019 order, the court placed this case on the expedited appeals calendar, and the
parties have submitted memo briefs. See WIS. STAT. RULE 809.17. Briefing was complete on
October 25, 2019. All references to the Wisconsin Statutes are to the 2017-18 version unless
otherwise noted.

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admission to Winnebago Mental Health Institute. At the time of the hearing,
however, J.M.A. was living in a group home and was receiving a small amount of
psychotropic medication. Dr. Tasch’s medical opinion was that J.M.A.’s current
placement and treatment were appropriate and beneficial.

¶5 Dr. Tasch further testified that, while J.M.A.’s health was improving
with treatment, there was a substantial likelihood that J.M.A. would become
dangerous and a proper subject for commitment if treatment were withdrawn:

Q Doctor, if treatment were withdrawn at this
time, is there a substantial likelihood that [J.M.A.] would
present a danger to himself or others, and once again
become a proper subject for commitment?

A If treatment were withdrawn, it’s likely that
he could quickly deteriorate. He requires still the structure
and support of a group home.

Q And you feel if treatment were withdrawn,
then he would then pose a danger to himself or to others?

A Correct. He still voices fixed delusions
about the government and such, and there’s still some
psychosis, some psychotic thoughts are still present.

Q Doctor, are all the opinions that you’ve
given today to a reasonable degree of medical certainty?

A Yes.

Similarly, Dr. Tasch’s report states:

If treatment were withdrawn, it is likely that [J.M.A.]
would quickly deteriorate. He continues to require much
structure and support. He would benefit from his continued
treatment plan of minimal doses of medication and group
home supervision....

If treatment were withdrawn, it is likely that [J.M.A.]
would not comply with treatment, and possibly end up in
medication withdrawal. He could develop aggressive
behavior again with or without medication. He continues

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to require the structure and support of a mental health
commitment.

¶6 Following the hearing, the court issued an order extending J.M.A.’s
commitment for twelve months. This appeal follows.

DISCUSSION

I. Standing

¶7 In its response to J.M.A.’s appeal, the County argues that J.M.A.
waived his right to appeal and that he therefore lacks “standing” to pursue it. For
the reasons that follow, the County is incorrect.

¶8 At the start of the commitment extension hearing, J.M.A.’s attorney
told the circuit court that J.M.A. was “willing to stipulate to an extension of the
commitment for six months,” but indicated that it was counsel’s understanding
that the County was not willing to do that. The hearing therefore went forward on
the merits.

¶9 The County argues that, when J.M.A. said he was “willing” to
stipulate to a six-month extension, J.M.A. waived his right to appeal because “[a]
party to a civil case waives the right to appeal if he or she consents or stipulates to
the entry of a judgment.” Auer Park Corp. v. Derynda, 230 Wis. 2d 317, 322,
601 N.W.2d 841 (Ct. App. 1999). We first note that this appears to be an issue of
waiver rather than one of standing. Regardless, the County’s argument fails
because the record does not reflect that a stipulation occurred.

¶10 While it is true that J.M.A. proffered a stipulation, it is also true that
the County never accepted the proffer. The County cites no authority and makes
no argument for the proposition that a rejected proffered stipulation has the legal

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force of an accepted stipulation. Without an accepted stipulation, the rest of the
County’s argument falls; J.M.A. may pursue this appeal.

II. Commitment Extension

¶11 Review of a commitment order presents a mixed question of law and
fact. See Waukesha Cty. v. J.W.J., 2017 WI 57, ¶15, 375 Wis. 2d 542,
895 N.W.2d 783. This court upholds the circuit court’s findings of fact unless
those findings are clearly erroneous, but reviews the application of those facts to
the statutory standards de novo. Id.

¶12 To extend an involuntary civil commitment, the petitioner must
show that the subject of the commitment is: (1) mentally ill; (2) a proper subject
for treatment; and (3) dangerous. Portage Cty. v. J.W.K., 2019 WI 54, ¶18, 386
Wis. 2d 672, 927 N.W.2d 509. The petitioner bears the burden of proving each of
these elements by clear and convincing evidence. See id.; see also WIS. STAT.
§ 51.20(13)(e). For purposes of this appeal, J.M.A. does not dispute that he is
mentally ill and is a proper subject for treatment. Instead, he contends that the
County did not produce clear and convincing evidence that he is dangerous within
the meaning of the statute.

¶13 Under Wisconsin’s involuntary commitment statute, a petitioner
may prove that an individual is dangerous if the individual meets one of five
different standards. See WIS. STAT. § 51.20(1)(a)2.a.-e.; see also J.W.K., 386 Wis.
2d 672, ¶17. Each standard requires proof of “recent acts or omissions
demonstrating that the individual is a danger to himself or to others.” J.W.K., 386
Wis. 2d 672, ¶17. However, when the petitioner is seeking an extension of a
preexisting commitment, the petitioner may satisfy the recent acts or omissions
requirement “by a 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.” WIS. STAT. § 51.20(1)(am); see
also J.W.K., 386 Wis. 2d 672, ¶19. The supreme court has interpreted this
provision as an “alternative evidentiary path” to meet the dangerousness
requirement that “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.

¶14 At the evidentiary hearing, the circuit court made the following
findings of fact: (a) J.M.A. was mentally ill; (b) J.M.A. was a proper subject for,
and would benefit from, treatment; and (c) J.M.A. had recently been improving.
The court did not discuss whether J.M.A. was dangerous. However, after the
hearing, the circuit court issued a written order extending J.M.A.’s commitment
using Wisconsin’s standardized ME-911 “Order of Commitment/Extension of
Commitment/Dismissal” form. The ME-911 form contains a section where the
circuit court indicates whether the grounds for an extension of commitment have
been met and, if so, what those grounds are. In this case, the court checked the
box indicating that the grounds for an extension of commitment had been met.
The grounds included a finding that J.M.A. was “dangerous because the subject
evidences behavior within one or more of the standards under §§51.20(1) or (1m),
Wis. Stats.”

¶15 J.M.A. argues that Dr. Tasch’s testimony and report did not
constitute clear and convincing evidence that J.M.A. was dangerous. In support of
this contention, he argues that, although Dr. Tasch unambiguously testified that
withdrawing treatment would likely render J.M.A. dangerous, Dr. Tasch’s opinion

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was merely “conclusory” insofar as Dr. Tasch did not explain, in detail, exactly
how and why J.M.A. would become dangerous. J.M.A. also asserts that a finding
of dangerousness cannot be based on his prior threats to his former psychiatrist
and family members because the threats were not sufficiently tied to his mental
illness and the record shows that this behavior coincided with methamphetamine
use.2

¶16 J.M.A.’s arguments are not persuasive. First, J.M.A. has not
established that a “conclusory” expert opinion on an ultimate issue cannot rise to
the level of clear and convincing evidence. However, even assuming that he is
correct, Dr. Tasch’s opinion in this case was not conclusory. Dr. Tasch reviewed
J.M.A.’s medical records and spoke with members of his medical team.
Following her review, she detailed J.M.A.’s symptoms, the ameliorating effect
that treatment was having on J.M.A., and her opinion that withdrawing treatment
would likely cause J.M.A. to “quickly deteriorate” and that he could “develop
aggressive behavior again.” In short, far from being merely “conclusory,”
Dr. Tasch’s opinion was well supported. Moreover, to the extent the court’s order
extending J.M.A.’s commitment relied on evidence of J.M.A.’s threats to kill his
former psychiatrist and confine family members, J.M.A. has failed to establish that
consideration of this conduct was erroneous simply because J.M.A.’s use of
methamphetamines may have contributed to these threats.

2
In his reply brief, J.M.A. raises the additional argument that there was insufficient
evidence that his threats placed anyone in “reasonable fear” of harm. See WIS. STAT.
§ 51.20(1)(a)2.b. (dangerousness can be shown by “evidence that others are placed in reasonable
fear of violent behavior and serious physical harm to them, as evidenced by a recent overt act,
attempt or threat to do serious physical harm” (emphasis added)). However, because J.M.A. first
raises this issue in his reply brief, the court will not address it. See Bilda v. County of
Milwaukee, 2006 WI App 57, ¶20 n.7, 292 Wis. 2d 212, 713 N.W.2d 661.

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¶17 Based on the foregoing, J.M.A. has failed to establish that the circuit
court erred in extending his commitment for twelve months.

By the Court.—Order affirmed.

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

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