Rock County v. J. B.

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.
April 14, 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 Nos. 2021AP1157 Cir. Ct. No. 2020ME305

2021AP1883

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

IN THE MATTER OF THE CONDITION OF J. B.:

ROCK COUNTY,

PETITIONER-RESPONDENT,

V.

J. B.,

RESPONDENT-APPELLANT.

APPEALS from orders of the circuit court for Rock County:
DERRICK A. GRUBB and JEFFREY KUGLITSCH, Judges. Affirmed.
Nos. 2021AP1157
2021AP1883

¶1 NASHOLD, J.1 In this consolidated appeal, “Justin”2 challenges his
commitment order and subsequent extension order. Justin argues that the circuit
court relied on inadmissible hearsay evidence of current dangerousness in the
initial commitment proceeding. I conclude that Justin forfeited this challenge and,
accordingly, affirm the initial commitment order.

¶2 Justin further argues that his extension order was in error because
counsel appeared on his behalf at the hearing and stipulated to the basis for
recommitment. Justin asks this court to require an affirmative waiver process for
ensuring that the appearance through counsel and all such stipulations are
knowing, intelligent, and voluntary. See State v. Smith, 2012 WI 91, ¶54, 342
Wis. 2d 710, 817 N.W.2d 410. I decline to do so absent any authority creating, or
permitting this court to impose, such a requirement. Accordingly, I affirm the
extension order.

BACKGROUND

¶3 On November 16, 2020, law enforcement emergently detained Justin
after his father, with whom he lived, reported that Justin had not eaten or had
anything to drink for four days. Justin was taken to the emergency room at Mercy
Hospital and treated for hypovolemia, dehydration, and renal function problems.
The next day, Justin was transferred to the Winnebago Mental Health Institute
(WMHI).

1
These appeals are decided by one judge pursuant to WIS. STAT. § 752.31(2)(d) (2019-
20). All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
2
For ease of reading, I refer to the appellant using a pseudonym rather than his initials.

2
Nos. 2021AP1157
2021AP1883

¶4 That same day, the circuit court found probable cause to believe that
Justin was a danger to himself or to others. The court ordered Justin’s continued
detention at WMHI and involuntary medication and treatment, pending the final
hearing. The court appointed psychiatrists Marshall Bales and Leslie Taylor to
examine Justin.

¶5 On November 25, 2020, the circuit court held the final hearing on
Justin’s involuntary commitment. Bales testified that he had attempted to
interview Justin at WMHI, but although Justin was “wide awake,” he simply
“stared straight ahead” and “never said one word” to Bales. Bales described
Justin’s state as “elective mutism and/or possibly an element of catatonia.”
Therefore, Bales based his expert opinion on Justin’s medical records from
WMHI, the statement of detention, and “some Rock County Human Services
reports”; he also spoke with Justin’s father and the nurses at WMHI.

¶6 Bales testified that he believed Justin to be suffering from a mental
illness: an “[u]nspecified psychotic disorder.” Bales explained that he “would
have been able to be more specific had [Justin] spoken to me.” Bales opined,
however, that based on the collateral sources he reviewed and his own
observations, Justin likely had paranoid schizophrenia, an illness causing “a
substantial disorder of thought, mood, [and] perception.” Bales testified that
Justin’s condition was treatable and that Justin was a proper subject for treatment.

¶7 Bales further testified that Justin was dangerous under the statutory
standards. He described Justin’s history and symptoms:

[W]hen he will talk and when he is interactive [at WMHI],
he is very paranoid. And with that, he will not eat properly
nor drink properly. He will also get disorganized thoughts.
Yet, at the same time, he will get very paranoid. And this

3
Nos. 2021AP1157
2021AP1883

has gone on for at least four years, largely untreated, and so
basically, though recently, he’s been eating so poorly,
drinking so poorly that there was a detention. He was …
catatonic and … so that’s why he was detained. Yet, even
during his admission, he had to be sent to the emergency
room for IV fluids due to low blood volume and
dehydration. So that’s where I think it’s gotten
dangerous ….

¶8 Bales also testified that Justin would be unable to care for himself
without treatment. Bales noted, “[I]t’s unclear whether [Justin’s] going to be able
to live with his father again.” Moreover, “even with parent[al] support from his
father,” Justin was not eating or drinking properly “to the point where it [was]
medically dangerous.” Bales explained,

It’s estimated to be four to five days [that Justin
went without eating], and then when he went to [WMHI],
he continued to not eat and drink, and when he would
finally allow vital signs, he had a pulse of 160, and he had
to be sent to the emergency room [two days after being
admitted to WMHI] for several liters of IV fluid.

Bales explained that “[t]his lack of eating and drinking is from a psychiatric
reason, nothing medical like Covid or anything like that.” Bales noted that Justin
had been “improving” during the week he was detained at WMHI and that a nurse
informed him that Justin was “beginning to eat and drink.”

¶9 Thus, Bales testified that Justin was dangerous under “Standard 4”
because his “mental illness impairs his judgment and behavior and his capacity to
meet the demands of life.” See WIS. STAT. § 51.20(1)(a)2.d. (an individual is
dangerous where he or she “[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” or serious physical

4
Nos. 2021AP1157
2021AP1883

harm will “imminently ensue” without prompt treatment). Bales noted that other
commitment standards might apply as well.

¶10 During this portion of testimony, the County asked Bales if he
believed that Justin “is a danger to himself or others,” and Bales responded,
“There’s no indication that he’s been suicidal. But his father has feared for his
safety.” (Emphasis added.) Justin’s counsel objected to this testimony on hearsay
grounds, since Bales had no firsthand knowledge of the father’s fear for his safety.
The court overruled the objection.

¶11 Bales further testified that Justin was not competent to refuse
medication or treatment because he did not “appear to understand … the
advantages, disadvantages, and alternatives to psychotropic medication” and did
not “accept[] that he has a mental illness and that’s the reason he rejects taking
medications or seeking professional care.” See WIS. STAT. § 51.61(1)(g)4. (setting
forth the criteria for ordering involuntary medication and treatment). Bales
explained that Justin “only takes his medications because he has to.” Bales also
testified that Justin “would not continue eating if he was not under a commitment
order,” based on “[t]he pattern.” Bales explained, “When he’s not getting
treatment, for weeks he was not eating well, he was isolating in his father’s
basement, and … then I believe that with treatment, he’s beginning to hydrate, to
take calories, and … I just think that without treatment, he’ll go back to the way he
was.” Bales recommended a locked inpatient psychiatric unit as the least
restrictive treatment setting.

¶12 At the close of Bales’s testimony, Justin’s counsel objected to
admitting Bales’s report into evidence. Although the argument is somewhat
unclear, counsel appears to have raised two separate but related grounds for the

5
Nos. 2021AP1157
2021AP1883

objection. First, counsel argued that only Bales’s testimony—and not his report—
was the type of “evidence that should be considered by the court.” Second,
counsel argued that “[t]here’s multiple layers … of hearsay in the report.” The
court overruled the objection. Counsel then noted, “I’m going to be making the
same objection probably for Dr. Taylor’s report.” Counsel provided the court with
citations to case law discussing an expert’s reliance on hearsay (discussed in more
detail below), and she stated that she would “make [the objection] in my closing
argument.”

¶13 Taylor’s testimony largely echoed Bales’s. Taylor explained that
Justin “refused to come to the interview room,” so she based her expert opinion on
his WMHI records and her conversation with Justin’s father. She testified that a
diagnosis of schizophrenia was “appropriate” “[g]iven the history that was in the
records and from his father, and then also … [Justin] was hospitalized in Chicago
briefly and then he was diagnosed with schizophrenia at that time.”

¶14 Taylor further testified that Justin was a danger to himself:

Before his admission [to WMHI it] had been five days
[since he ate or drank]. I don’t know when he resumed
eating or drinking while he was at [WMHI]. But initially,
they were so concerned about him that they were giving
him a diagnosis of possible catatonia, which is a life-
threatening psychiatric emergency. He was refusing the
treatment for that, which is Ativan. So I think they were on
sort of the precipice of having to do IV fluids or IV Ativan
to make sure that he wouldn’t die at [WMHI].

Taylor explained that the medical emergency occurred “when [Justin] was first
admitted,” at which time “he was refusing to talk, he was refusing to eat or drink,
and he was just kind of lying on the floor without moving.”

6
Nos. 2021AP1157
2021AP1883

¶15 Taylor also testified that WMHI had to “force[] meds because
[Justin] was refusing” and that he was refusing medication “[p]rior to the order to
treat.” Taylor agreed with Bales’s assessment that the least restrictive treatment
setting was a locked inpatient psychiatric unit.

¶16 At the close of Taylor’s testimony, Justin’s counsel reiterated her
argument that the expert reports should not be admitted into evidence. Counsel
stated, “Again, just multiple levels of hearsay in the report, and we heard
Dr. Taylor testify today, so her testimony in court should be the evidence
considered by the court.” The court overruled the objection, explaining,

[I]t’s always been the court’s experience here that experts
are allowed to rely on inadmissible evidence as a basis for
forming their decisions and their opinions. And they put
this report together at the court’s instruction, and we rely
on those reports …. And while I agree the testimony is
relevant here, obviously, but the testimony dovetails with
the report. And even though there might be some hearsay
statements in there, I don’t think that invalidates the entire
report because the doctors, as experts, are able to use that in
forming their opinions.

¶17 Justin testified as well. He explained that just before he was
emergently detained, he had been “intermittently fasting” for “a few days” for
“religious” reasons. He testified that he had had “reduced caloric intake” during
those days but that he had continued to drink fluids. Justin testified that he
experienced “unpleasant” side effects from medication and that he preferred “a
holistic solution” rather than drugs. When asked if he had ever been diagnosed
with a mental illness in any State, Justin responded, “Possibly, but … that’s not
completely certain whether it was actually a diagnosis or not.” Justin admitted
that he was hospitalized in another State “a year or two ago,” but he could not
“exactly recall” why.

7
Nos. 2021AP1157
2021AP1883

¶18 In her closing argument, Justin’s counsel appeared to argue that
there was no non-hearsay evidence of Justin’s current dangerousness. Counsel
asserted that, under the case law,

[the experts] are able to rely upon reports for their
diagnosis for a mental issue, but not on the issue of
dangerousness. Both doctors, they did not personally view
[Justin] not eating or not drinking…. We have no evidence
of any violent behavior or serious threats by [Justin] or that
he’s made threats to anybody else. It’s solely based on
[Justin’s] not eating and not drinking.

¶19 The circuit court determined that, by clear and convincing evidence,
Justin met the statutory criteria for commitment under WIS. STAT. § 51.20(1)(a).
Specifically, regarding dangerousness, the court explained,

The doctors indicated here [that] it was four days or so
[without food or water]. And [Justin] got himself
dehydrated, he got himself into a position on the day that
Dr. Bales saw him that he was so dehydrated that he had to
go and be treated in the emergency room … with IV fluids
for dehydration, and it got so bad that his pulse rate got up
to 160. And these are clearly records the doctor can rely
on. That put him in a tachycardia[-]type situation, which is
dangerous. And because he’s not able to take care of
himself … in that regard[] and is not able to satisfy his
basic needs for nourishment, I believe that [the] fourth
standard certainly is appropriate here.

….

And again, Dr. Taylor’s suggestion [was] that his
impaired judgment … create[s] physical impairment or
injury[.] I think the same tachycardia and dehydration, the
catatonic state that he was in certainly fits the bill here. So
I think clearly both the third and fourth prongs are met.
Arguably, the fifth prong is [also] met.

The court further determined that Justin met the statutory criteria for involuntary
medication and treatment. See WIS. STAT. § 51.61(1)(g)4. The court ordered

8
Nos. 2021AP1157
2021AP1883

Justin to six months’ locked inpatient treatment at WMHI, along with involuntary
medication and treatment.

¶20 Five months later, the County petitioned to extend Justin’s
commitment. At the recommitment hearing, Justin appeared by counsel. Justin’s
counsel stipulated to a nine-month recommitment based on a new report by
Taylor, who had evaluated Justin in connection with the recommitment
proceeding. Counsel stipulated that Justin was dangerous under “the third or
fourth standard based on [Justin’s] pre-commitment behaviors.” See WIS. STAT.
§ 51.20(1)(a)2.c., d. Counsel further “ask[ed] for a medication order in this
matter, which is supported by the report of Dr. Taylor.” The circuit court found
that, based on Taylor’s report, there was a sufficient basis under § 51.20(1)(a)2.c.
and (am) to extend Justin’s commitment. The court entered a nine-month order
for recommitment and an order for medication and treatment. Justin appealed the
initial commitment order and the recommitment order, and this court granted
Justin’s motion to consolidate the appeals.

DISCUSSION

I. Principles of Law and Standards of Review.

¶21 A county initiating a WIS. STAT. ch. 51 involuntary commitment
must prove, by clear and convincing evidence, that the subject individual is:
(1) mentally ill; (2) a proper subject for treatment; and (3) dangerous under one of
five statutory standards, as set forth in WIS. STAT. § 51.20(1)(a)2.a.-e. Portage
County v. J.W.K., 2019 WI 54, ¶17, 386 Wis. 2d 672, 927 N.W.2d 509;
§ 51.20(1)(a), (13)(e). Each of these “dangerousness” standards requires evidence
of recent acts or omissions demonstrating a substantial probability of danger to the

9
Nos. 2021AP1157
2021AP1883

individual or to others—either because the individual will directly cause injury or
because the individual cannot satisfy his or her basic needs. Winnebago County
v. S.H., 2020 WI App 46, ¶8, 393 Wis. 2d 511, 947 N.W.2d 761;
§ 51.20(1)(a)2.a.-e.

¶22 An extension proceeding requires proof of the same three elements,
“except that instead of proving dangerousness under [WIS. STAT.]
§ 51.20(1)(a)2.a.-e., the county may rely on the ‘alternative evidentiary path’ of
§ 51.20(1)(am).” S.H., 393 Wis. 2d 511, ¶8 (quoting J.W.K., 386 Wis. 2d 672,
¶19); § 51.20(13)(g)3. Paragraph (am) “recognizes that an individual receiving
treatment may not have exhibited any recent overt acts or omissions demonstrating
dangerousness because the treatment ameliorated such behavior.” J.W.K., 386
Wis. 2d 672, ¶19. Accordingly, the county need not point to any recent acts,
omissions, or behavior, and may instead “show[] 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).

¶23 Review of a commitment or extension order presents a mixed
question of fact and law. S.H., 393 Wis. 2d 511, ¶10; Marathon County v. D.K.,
2020 WI 8, ¶¶17-18, 390 Wis. 2d 50, 937 N.W.2d 901. The appellate court
upholds factual findings unless clearly erroneous, but it reviews de novo whether
those facts satisfy the statutory standard for recommitment. S.H., 393 Wis. 2d
511, ¶10.

10
Nos. 2021AP1157
2021AP1883

II. Justin Forfeited His Argument that the Circuit Court Improperly Relied on
Hearsay Evidence to Determine Dangerousness, and any Improper Reliance
on the Reports was Harmless Error.

¶24 Justin argues that there is insufficient evidence of current
dangerousness supporting his initial commitment because most or all of the
evidence on dangerousness was inadmissible hearsay.3 Justin acknowledges that
Bales and Taylor were permitted to rely on inadmissible hearsay in forming their
opinions. See WIS. STAT. § 907.03. He argues, however, that these experts
impermissibly acted as conduits for the underlying information, such that the
circuit court relied on numerous facts that were not properly in evidence. See
State v. Coogan, 154 Wis. 2d 387, 399-400, 453 N.W.2d 186 (Ct. App. 1990) (an
expert may not “act[] as a conduit for inadmissible evidence”). Accordingly,
Justin contends, the court violated his due process rights by admitting and relying
on inadmissible hearsay evidence to support his commitment.

¶25 I do not reach the merits of this argument because I agree with the
County that it is forfeited. See State v. Huebner, 2000 WI 59, ¶¶10-11 & n.2, 235
Wis. 2d 486, 611 N.W.2d 727 (objections not made to the circuit court are
generally deemed forfeited, and the issue will not be considered on appeal); WIS.
STAT. § 901.03(1)(a) (“Error may not be predicated upon a ruling which admits …
evidence unless ... a timely objection or motion to strike appears of record, stating

3
The orders appealed from are both expired; however, Justin raises various arguments as
to why his appeal is not moot or why a mootness exception applies. See Marathon County v.
D.K., 2020 WI 8, ¶¶19, 23, 390 Wis. 2d 50, 937 N.W.2d 901. The County agrees that this appeal
is not moot and asks this court to address the merits of the appeal. Given the County’s
concession, I do not address the mootness issue. See State v. Tillman, 2005 WI App 71, ¶18, 281
Wis. 2d 157, 696 N.W.2d 574 (the appellate court’s role is generally limited to addressing the
issues raised by appellate counsel).

11
Nos. 2021AP1157
2021AP1883

the specific ground of objection, if the specific ground was not apparent from the
context.”).

¶26 Justin made only one specific hearsay objection to the experts’
testimony. This occurred after Bales testified that Justin’s father “has feared for
his safety”; Justin objected on the grounds that Bales only knew of this fact
through records and his conversation with the father. Ultimately, however, the
court did not commit Justin because he posed a danger to his father or others but
because his refusing food and water had caused medical danger to himself.
Accordingly, any circuit court error in admitting Bales’s testimony that Justin’s
father “has feared for his safety” was harmless. See WIS. STAT. § 901.03(1)
(“Error may not be predicated upon a ruling which admits or excludes evidence
unless a substantial right of the party is affected”); Martindale v. Ripp, 2001 WI
113, ¶32, 246 Wis. 2d 67, 629 N.W.2d 698 (“For an error ‘to affect the substantial
rights’ of a party, there must be a reasonable possibility that the error contributed
to the outcome of the action or proceeding at issue.”).

¶27 Aside from this one objection, and contrary to Justin’s arguments on
appeal, Justin did not raise any hearsay challenge to either expert’s testimony.
Moreover, although Justin did object to the admission of the experts’ reports (and
reiterated this argument in closing), he did so generally, arguing that the reports
contained “multiple layers” of hearsay and that, because the witnesses testified,
the circuit court was precluded from relying on their reports. Justin did not direct
the court to any specific hearsay contained in the reports.4

4
Likewise, on appeal, Justin does not point to any specific hearsay contained in the
reports.

12
Nos. 2021AP1157
2021AP1883

¶28 There are important principles supporting the forfeiture rule that are
in play here. Abiding by the forfeiture rule “allow[s] circuit courts to correct
errors in the first instance, provid[es] circuit courts and parties with fair notice of
an error and an opportunity to object, and prevent[s] attorneys from ‘sandbagging’
errors by not raising them during trial and alleging reversible error upon review.”
See State v. Mercado, 2021 WI 2, ¶35, 395 Wis. 2d 296, 953 N.W.2d 337 (internal
quotation marks and quoted source omitted). Had Justin objected to specific
testimony or statements in the reports supporting dangerousness (for example, the
experts’ statements that Justin had not eaten or had anything to drink for four
days), the County may have been able to introduce that evidence through other
means or explain why a hearsay exception applied. It is fundamentally unfair to
the County to consider objections that are raised for the first time on appeal, where
a timely objection may have resulted in the admission of that evidence.

¶29 Moreover, on appeal, Justin does not separately argue that admitting
the experts’ reports (as opposed to the experts’ testimony) caused the court to rely
on inadmissible hearsay. For the sake of completeness, however, I have reviewed
the reports and conclude that they largely duplicate the experts’ trial testimony. In
fact, generally speaking, the trial testimony is more detailed. Accordingly, I agree
with the County that any error in admitting the reports was harmless. See
Martindale, 246 Wis. 2d 67, ¶32.5

5
Justin does not argue that any exceptions to the forfeiture rule apply. See State v.
Mercado, 2021 WI 2, ¶37, 395 Wis. 2d 296, 953 N.W.2d 337 (a reviewing court may reverse
unobjected-to errors on plain error grounds, in the interest of justice, or because of ineffective
assistance of counsel). Accordingly, I do not consider any exceptions to the forfeiture rule. See
Tillman, 281 Wis. 2d 157, ¶18.

(continued)

13
Nos. 2021AP1157
2021AP1883

III. Reversal is not Warranted Based on Justin’s Counsel Appearing on Justin’s
Behalf and Stipulating to His Recommitment.

¶30 Justin did not personally appear at the extension hearing and instead
appeared by counsel, who stipulated to a ninth-month recommitment and a
corresponding medication and treatment order. On appeal, Justin does not argue
that he was in fact denied notice or the opportunity to be personally present. Nor
does he argue that he did not consent to the stipulations or that his attorney acted
contrary to his wishes in this regard. Instead, Justin asks this court to graft onto
the commitment process certain criminal law procedural safeguards (an on-the-
record colloquy and/or use of a written advisement and waiver of rights form) that
must occur before the individual facing commitment may waive the right to be
present at the hearing or stipulate to the elements of recommitment. See, e.g.,
State v. Brown, 2006 WI 100, ¶¶23-34, 293 Wis. 2d 594, 716 N.W.2d 906 (guilty
plea colloquy); State v. Klessig, 211 Wis. 2d 194, 206, 564 N.W.2d 716 (1997)
(colloquy for waiver of the right to counsel); State v. Smith, 2012 WI 91, ¶¶52-57,
342 Wis. 2d 710, 817 N.W.2d 410 (the right to a jury determination of the
elements of the crime must be affirmatively waived).

¶31 Justin presents no law or authority mandating such requirements in
the WIS. STAT. ch. 51 context or permitting this court to create such requirements.
As such, I conclude that no error stems from the circuit court’s failure to conduct
the extension hearing in the manner Justin proposes. See Young v. Young, 124

In addition, because I conclude that Justin’s initial commitment was proper, I do not
address his argument that the invalidity of his initial commitment causes his recommitment to be
invalid, including his attempt to distinguish the holding of J.W.K. on the effect of a prior invalid
commitment order. See Portage County v. J.W.K., 2019 WI 54, ¶¶15, 21-28, 386 Wis. 2d 672,
927 N.W.2d 509 (holding that the reversal of a prior extension order would not invalidate the
subsequent extension order).

14
Nos. 2021AP1157
2021AP1883

Wis. 2d 306, 312, 369 N.W.2d 178 (Ct. App. 1985) (this court may “refuse to
consider an argument without legal authority specifically supporting the relevant
propositions”). Accordingly, I affirm the extension order.

By the Court.—Orders affirmed.

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

15