Fond du Lac County v. J.L.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 24, 2021
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. 2020AP2049-FT Cir. Ct. No. 2018ME91

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

IN THE MATTER OF THE MENTAL COMMITMENT OF J.L.H.:

FOND DU LAC COUNTY,

PETITIONER-RESPONDENT,

V.

J.L.H.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Fond du Lac County:
PETER L. GRIMM, Judge. Reversed and cause remanded.
No. 2020AP2049-FT

¶1 GUNDRUM, J.1 J.L.H. appeals from an order of the circuit court
extending her involuntary mental health commitment and challenges an order for
involuntary medication and treatment. She argues that Fond du Lac County failed
to establish that she is dangerous and thus that the circuit court erred in ordering
her recommitment and the involuntary administration of medication and treatment.
Based upon the record before us, we must agree.

Background

¶2 J.L.H., age 51, suffers from cognitive and physical deficits related to
a stroke she experienced at age sixteen and is also diagnosed with organic
delusional disorder including manic and psychotic disorders. She has received
mental health treatment for decades and is under a protective placement order,2
living in a group home, and under an outpatient commitment order.

¶3 In April 2020, the County filed a petition for an extension of J.L.H.’s
mental health commitment. Following an evidentiary hearing in May 2020, the
circuit court entered orders extending the commitment and authorizing the

1
This appeal is 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
The County asserts in its briefing on appeal that J.L.H. is not under a protective
placement order, but it provides no record citations in support of this assertion. The circuit court
found that J.L.H. is “in placement and she has a guardianship and protective placement.” We
conclude that this finding is not clearly erroneous as it is supported by the uncontroverted
testimony of the County’s only witness, Dr. Natalie Krah, who agreed in her cross-examination
testimony that J.L.H. “is currently protectively placed at” a group home facility. Furthermore, in
Dr. Krah’s report, which the County submitted with its “Application for Extension of
Commitment,” Dr. Krah states that J.L.H. “is under guardianship and has a protective placement
order.” Thus, for purposes of this appeal, we must treat it as fact that J.L.H. is under a protective
placement order.

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No. 2020AP2049-FT

involuntary administration of medication and treatment for one year. J.L.H.
appeals.3

Discussion

¶4 J.L.H. contends that the circuit court erred in extending her mental
health commitment and the involuntary administration of medication and
treatment to her. For the following reasons, we agree.

¶5 As relevant to this appeal, an individual is a proper subject for
involuntary commitment for treatment under WIS. STAT. § 51.20(1) if he or she is
(1) “mentally ill or, except as provided under subd. 2.e., drug dependent or
developmentally disabled,” (2) “is a proper subject for treatment,” and (3) “is
dangerous because he or she does any of the following [subd. 2.a.-d. or]:”

e. For an individual, other than an individual who is
alleged to be drug dependent or developmentally disabled,
after the advantages and disadvantages of and alternatives
to accepting a particular medication or treatment have been
explained to him or her and because of mental illness,
evidences either incapability of expressing an
understanding of the advantages and disadvantages of
accepting medication or treatment and the alternatives, or
substantial incapability of applying an understanding of the
advantages, disadvantages, and alternatives to his or her
mental illness in order to make an informed choice as to
whether to accept or refuse medication or treatment; and
evidences a substantial probability, as demonstrated by both
the individual's treatment history and his or her recent acts
or omissions, that the individual needs care or treatment to
prevent further disability or deterioration and a substantial
probability that he or she will, if left untreated, lack
services necessary for his or her health or safety and suffer
severe mental, emotional, or physical harm that will result
in the loss of the individual's ability to function
3
Although J.L.H. challenges the circuit court order for involuntary medicine and
treatment, she does not address that order separately.

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No. 2020AP2049-FT

independently in the community or the loss of cognitive or
volitional control over his or her thoughts or actions. The
probability of suffering severe mental, emotional, or
physical harm is not substantial under this subd. 2. e. if
reasonable provision for the individual's care or treatment
is available in the community and there is a reasonable
probability that the individual will avail himself or herself
of these services or if the individual may be provided
protective placement or protective services under ch. 55.

Sec. 51.20(1)(a)1., 2.a.-e. (emphasis added).

¶6 For a recommitment, as in this case, the County must prove these
same three elements of WIS. STAT. § 51.20(1) by clear and convincing evidence,
but there is “an additional manner of proving dangerousness provided by WIS.
STAT. § 51.20(1)(am).” See Langlade County v. D.J.W., 2020 WI 41, ¶32, 391
Wis. 2d 231, 942 N.W.2d 277. This is “[b]ecause an individual’s behavior might
change while receiving treatment” and the individual “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.” Id., ¶¶32-33 (citation omitted).
WIS. STAT. § 51.20(1)(am) states in relevant part:

[I]f the individual has been the subject of outpatient
treatment for mental illness, developmental disability, or
drug dependency immediately prior to commencement of
the proceedings as a result of a commitment ordered by a
court under this section … the requirement[] of a … pattern
of recent acts or omissions under par. (a) 2. … e. … may
be satisfied by a showing 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.

(Emphasis added.)

¶7 “[D]angerousness,” however, “remains an element to be proven to
support both the initial commitment and any extension.” D.J.W., 391 Wis. 2d

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No. 2020AP2049-FT

231, ¶33 (citation omitted). “The evidentiary pathway set forth by [para.] (1)(am)
... does not change the elements or quantum of proof required.” D.J.W., 391
Wis. 2d 231, ¶34 (citation omitted). “Para. (1)(am) … mandates that circuit courts
ground their conclusions in the subdivision paragraphs of subd. 2.,” and courts
must “provide specific factual findings with reference to the subdivision paragraph
of [WIS. STAT.] § 51.20(1)(a)2. on which the recommitment is based.” D.J.W.,
391 Wis. 2d 231, ¶¶41, 43.

¶8 As the plain language of WIS. STAT. § 51.20(1)(am) indicates and as
relevant to this case, this subdivision only provides for a substitute method of
“satisf[ying]” the subd. (1)(a)2.e. requirement of “recent acts or omissions”; it
does not undermine other aspects of (1)(a)2.e. Thus, the County still needed to
prove the following (1)(a)2.e. requirement:

a substantial probability … that the individual needs care or
treatment to prevent further disability or deterioration and a
substantial probability that he or she will, if left untreated,
lack services necessary for his or her health or safety and
suffer severe mental, emotional, or physical harm that will
result in the loss of the individual’s ability to function
independently in the community or the loss of cognitive or
volitional control over his or her thoughts or actions.

Sec. 51.20(1)(a)2.e. (emphasis added). Because of this, the circuit court’s finding
in this case that “the [§ 51.20(1)](am) standard is also satisfied by the evidence,”
does nothing to undermine the effect of this other (1)(a)2.e. provision: “The
probability of suffering severe mental, emotional, or physical harm is not
substantial under this subd. 2.e. … if the individual may be provided protective
placement or protective services under [WIS. STAT.] ch. 55.” (Emphasis added.)

¶9 In this case, the circuit court found—and such finding is supported
by the testimony and report of the County’s only witness, Dr. Krah—that J.L.H. is

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No. 2020AP2049-FT

(or at least at the time of the hearing “was”) “in placement and she has a
guardianship and protective placement.” Based upon the plain language of WIS.
STAT. § 51.20(1)(a)2.e., it might initially appear that this finding alone means the
County failed to meet its burden to establish dangerousness; however, we are
bound by our prior holding in Dane County v. Kelly M., 2011 WI App 69, 333
Wis. 2d 719, 798 N.W.2d 697, upon which J.L.H. relies heavily and which
compels us in a different direction.

¶10 In Kelly M., “Dane County filed a petition for involuntary
commitment of Kelly for treatment under WIS. STAT. § 51.20(1).” Id., ¶4. Kelly
had “diagnoses of developmental disability and bipolar affective disorder” and
“[a]t the time the petition was filed, she had a guardian and was subject to an order
for protective placement and services under WIS. STAT. ch. 55.” Id. Among other
findings, the circuit court found “that there was a substantial probability that harm
would come to Kelly or others if she was not treated.” Id., ¶6. The court ordered
an outpatient commitment under § 51.20(1)(a)2.e. with a condition that Kelly
“take all psychotropic medication prescribed for her.” Id.

¶11 On appeal, we specifically examined the relationship between WIS.
STAT. § 51.20(1)(a)2.e. and WIS. STAT. ch. 55. We noted that subd. 2.e. provides
that in the “situation” where “the individual may be provided protective placement
or protective services under ch. 55”—the “ch. 55 exclusion”—“the ‘probability of
suffering severe mental, emotional, or physical harm is not substantial.’”
Kelly M., 333 Wis. 2d 719, ¶18 (emphasis added). We held that this exclusion “is
intended to address a situation in which the probability of the requisite harm
would be reduced so that it would not be substantial.” Id., ¶21. “The evident
purpose as expressed in the text,” we continued, “is to avoid commitment for

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No. 2020AP2049-FT

treatment if it is reasonably probable … that placement or services available under
WIS. STAT. ch. 55 will provide the needed treatment.” Id.

¶12 We further stated that

an order for the involuntary administration of psychotropic
medications, with consent of a guardian, is a protective
service under [WIS. STAT.] ch. 55. §§ 55.12(9) & 55.14(2).
Involuntary administration of psychotropic medication
under § 55.14(1)(a) means: placing the medication in the
individual’s food or drink “with knowledge that the
individual protests receipt of the ... medication”; forcible
restraint in order to administer the medication; and
requiring the individual to take the medication “as a
condition of receiving privileges or benefits.” If an order is
issued under § 55.14 and one of these methods results in
the successful administration of the medication, there is no
need for commitment under the fifth standard for this
purpose. It is not reasonable to read the fifth standard to
permit commitment for involuntary administration of
psychotropic medication even if an order could be obtained
under § 55.14 and the order would make commitment
unnecessary.

Kelly M., 333 Wis. 2d 719, ¶25 (emphasis added). We added:
if a § 55.14 order has not been effective in providing
involuntary administration of medication or it is not
reasonably probable that such an order will be, then it does
not come within the [ch. 55] exclusion. The reason is that
the exclusion, as we have already explained, is intended
only for a service that reduces or will reduce the probability
of the requisite harm to less than a substantial probability.
If an order under § 55.14, including § 55.14(9), does not
meet this criterion, the exclusion does not apply and the
[subd. 2.e.] fifth standard is available, assuming all other
requirements are met.

Kelly M., 333 Wis. 2d 719, ¶29. We concluded:

The legislature has decided that commitment under the fifth
standard is not available if ch. 55 placement or services
will reduce the probability of requisite harm to less than a
substantial probability. If this is the case, the County does
not have the option of avoiding this route on the ground of
efficiency.

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No. 2020AP2049-FT

Kelly M., 333 Wis. 2d 719, ¶30 (emphasis added).

¶13 We also determined in Kelly M. that, considering the WIS. STAT.
§ 51.20(1)(a)2.e. “may be provided” language in “[t]he probability of suffering
severe mental, emotional, or physical harm is not substantial under this subd. 2.e.
… if the individual may be provided protective placement or protective services
under [WIS. STAT.] ch. 55,” the ch. 55 exclusion may apply not only to an
individual under a ch. 55 protective placement or protective services order but also
“to an individual who is not yet subject to a ch. 55 order but who is eligible for
one.” Kelly M., 333 Wis. 2d 719, ¶32 (emphasis added). Thus, as relevant to this
case, even if J.L.H. was not under a ch. 55 protective placement at the time of the
hearing in this case, if she was “eligible for one,” the holding of Kelly M. still
would apply to her case. See id.

¶14 We then stated in Kelly M. that we would have remanded the case
back to the circuit court to “rule on the scope of the [WIS. STAT.] ch. 55
exclusion,” “make findings on whether an order under WIS. STAT. § 55.14 would
be effective for Kelly,” and determine “whether Kelly’s guardian would have
consented,” however, Kelly had died, so further proceedings on these matters were
unnecessary. Kelly M., 333 Wis. 2d 719, ¶33.

¶15 In the case now before us, the court found that J.L.H. was under a
WIS. STAT. ch. 55 placement, but made no findings consistent with Kelly M.
related to whether the ch. 55 exclusion applies to her case. Consistent with the
procedure we indicated as appropriate in Kelly M., we reverse and remand this
case back to the circuit court for further proceedings consistent with this decision
and Kelly M.

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No. 2020AP2049-FT

By the Court.—Order reversed and cause remanded.

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

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