Winnebago County v. L.F.-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.
May 20, 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. 2019AP2010 Cir. Ct. No. 2019ME134

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

IN THE MATTER OF THE MENTAL COMMITMENT OF L.F.-G.:

WINNEBAGO COUNTY,

PETITIONER-RESPONDENT,

V.

L. F.-G.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Winnebago County:
GARY L. BENDIX, Judge. Reversed and cause remanded.
No. 2019AP2010

¶1 REILLY, P.J.1 “Emily”2 appeals from an order extending her
involuntary commitment for twelve months and an order for involuntary
medication and treatment.3 Emily argues that Winnebago County failed to prove
by clear and convincing evidence that she is dangerous to herself or others. As the
evidence presented at Emily’s commitment hearing fails to support extending the
commitment, we reverse and remand.

¶2 WISCONSIN STAT. § 51.20 governs involuntary commitment for
treatment. To involuntarily commit a person, the County has the burden to prove
by clear and convincing evidence that the person is (1) mentally ill, (2) a proper
subject for treatment, and (3) dangerous. See § 51.20(1)(a)1.-2., (13)(e). The
same standards apply to extensions of the commitment, except the County no
longer must demonstrate proof of a recent act but may satisfy the showing of
dangerousness by demonstrating 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subject for commitment if treatment were withdrawn.” Sec. 51.20(1)(am);
Portage County v. J.W.K., 2019 WI 54, ¶19, 386 Wis. 2d 672, 927 N.W.2d 509.

¶3 Our supreme court recently explained that “[t]his paragraph
recognizes that an individual receiving treatment may not have exhibited any
recent overt acts or omissions demonstrating dangerousness because the treatment

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 parties refer to the appellant, L.F.-G., by the pseudonym “Emily,” and, for
convenience, we will as well.
3
Emily does not challenge or make any specific arguments regarding the order for
involuntary medication and treatment.

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No. 2019AP2010

ameliorated such behavior, but if treatment were withdrawn, there may be a
substantial likelihood such behavior would recur,” calling WIS. STAT.
§ 51.20(1)(am) an “alternative evidentiary path, reflecting a change in
circumstances occasioned by an individual’s commitment and treatment.” J.W.K.,
386 Wis. 2d 672, ¶19. “However, dangerousness remains an element to be proven
to support both the initial commitment and any extension.” Id. “Each extension
hearing requires the County to prove the same elements with the same quantum of
proof required for the initial commitment.” Id., ¶24. “The dangerousness
standard is not more or less onerous during an extension proceeding; the
constitutional mandate that the County prove an individual is both mentally ill and
dangerous by clear and convincing evidence remains unaltered.” Id. The statute
was designed to avoid revolving-door commitments where reoccurring cycles of
treatment, lack of treatment, and demonstrations of dangerousness would be
required. See State v. W.R.B., 140 Wis. 2d 347, 351, 411 N.W.2d 142 (Ct. App.
1987). Whether the facts in the record satisfy the statutory standard for
recommitment is a question of law that this court reviews de novo. Waukesha
County v. J.W.J., 2017 WI 57, ¶15, 375 Wis. 2d 542, 895 N.W.2d 783.

¶4 Dr. Michael Vicente, M.D., was the only witness to testify at
Emily’s commitment extension hearing.4 Vicente testified that he had been
treating Emily for three years and that Emily was diagnosed with schizoaffective

4
We recognize that the record also includes a “Report of Examination” written by
Dr. Marshall J. Bales, M.D. We note that this report contains evidence pertaining to Emily’s
condition that was relevant to the issue in this case. However, Bales never testified at the hearing,
and this report was not entered into evidence. Accordingly, we do not consider the contents of
the report in our decision. We acknowledge that the report was likely read by the court and the
parties, but it was never entered into evidence. If Vicente could not offer an opinion as to
Emily’s dangerousness based on her treatment history, then Bales’ report should have been
entered into evidence either through his testimony or by stipulation.

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No. 2019AP2010

disorder, which affects areas of thought, mood, and perception. Vicente further
testified that those areas were “grossly” affected and that Emily’s “judgment,
behavior, and capacity to recognize reality” were impaired. According to Vicente,
Emily does not believe she has a mental health issue; therefore, she would not
comply with treatment without a commitment order as she “does not believe she
needs treatment.” As to the specific issue in this case, Vicente testified that if
treatment were withdrawn, Emily “would … become a proper subject for
commitment” as “[i]n my previous treatment with her, when she was off
commitment, she stopped her treatment and became acutely psychotic again.”

¶5 We conclude that Vicente’s testimony failed to establish that Emily
is dangerous and, thus, a proper subject for commitment if treatment is withdrawn
pursuant to WIS. STAT. § 51.20(1)(am). The County argues that “[w]e can assume
that [Emily’s] behavior during the acutely psychotic period of non-treatment was
dangerous because she eventually became the subject of an involuntary
commitment that required the recommitment hearing at issue.” With all due
respect, no we cannot. An involuntary mental commitment requires proof of a
substantial likelihood of dangerousness by clear and convincing evidence, not
assumptions or inferences. As our supreme court explained,

Each extension hearing requires proof of current
dangerousness. It is not enough that the individual was at
one point a proper subject for commitment. The County
must prove the individual “is dangerous.” The alternate
avenue of showing dangerousness under [§ 51.20(1)(am)]
does not change the elements or quantum of proof required.
It merely acknowledges that an individual may still be
dangerous despite the absence of recent acts, omissions,
or behaviors exhibiting dangerousness outlined in
§ 51.20(1)(a)2.a.-e.

J.W.K., 386 Wis. 2d 672, ¶24 (citation omitted).

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No. 2019AP2010

¶6 We also find a recent unpublished, but authored, opinion of this
court persuasive in its discussion of this issue. See WIS. STAT. RULE 809.23(3)(b).
In Waupaca County v. K.E.K, No. 2018AP1887, unpublished slip op. ¶¶23-25
(WI App Sept. 26, 2019), this court explained that the County must prove a
substantial likelihood that the subject will harm himself or herself or others in the
absence of treatment, and we agree that this is the correct reading of the statute.
WISCONSIN STAT. § 51.20(1)(am) requires a “showing that there is a substantial
likelihood” that the person “would be a proper subject for commitment if
treatment were withdrawn,” and a person is a proper subject for commitment if the
County establishes that the person is (1) mentally ill, (2) a proper subject for
treatment, and (3) dangerous. See § 51.20(1); see also K.E.K., No. 2018AP1887,
unpublished slip op. ¶25 (“[R]ecommitment requires a finding that, if treatment
were withdrawn, there is a substantial probability that the individual would be
dangerous under at least one of the five alternative dangerousness standards in the
initial commitment test.”).

¶7 It was the County’s burden to show that Emily is a proper subject for
commitment—which is to say that Emily is mentally ill, that she would be a
proper subject for treatment, and that she is dangerous—if treatment were
withdrawn. What we know is that when Emily “was off commitment, she stopped
her treatment and became acutely psychotic again” and that she does not believe
she needs treatment. All Vicente’s testimony establishes is that Emily is mentally
ill and that she would be a proper subject for treatment. There is no information
pertaining to how her “acutely psychotic” state would impact her behavior such
that there is a substantial likelihood that she would be currently dangerous,
pursuant to WIS. STAT. § 51.20(1)(a)2.a.-e., if treatment was withdrawn. See
J.W.K., 386 Wis. 2d 672, ¶24. Vicente simply parroted back the language of the

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No. 2019AP2010

statute without any explanation of why Emily would be dangerous if treatment
was withdrawn. Accordingly, the County failed to establish that Emily was a
proper subject for commitment by clear and convincing evidence.5

By the Court.—Orders reversed and cause remanded.

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

5
We recognize that prior to the release of this decision our supreme court released its
decision in Langlade County v. D.J.W., 2020 WI 41, ___ Wis. 2d ___, ___ N.W.2d ___. After
D.J.W. was released, Emily filed a motion for summary reversal with this court on April 30,
2020, seeking reversal of the involuntary recommitment order based on the lack of “specific
factual findings” under WIS. STAT. § 51.20(1)(a)2. as required pursuant to D.J.W. The County
filed a response on May 12, 2020, arguing that the holding in D.J.W. may not be applied to this
case. Under the circumstances, we conclude that Emily’s motion for summary reversal is moot.
The holding in D.J.W. does not impact our decision in this case. We conclude that the County
failed to establish that Emily is dangerous under either the law prior to D.J.W. or the law under
D.J.W.

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