Shawano County v. S. L. V.

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.
August 17, 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. 2021AP223 Cir. Ct. No. 2020ME39

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

IN THE MATTER OF THE MENTAL COMMITMENT OF S. L. V.:

SHAWANO COUNTY,

PETITIONER-RESPONDENT,

V.

S. L. V.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Shawano County:
WILLIAM F. KUSSEL, JR., Judge. Reversed.

¶1 STARK, P.J.1 Susan2 appeals from an order for involuntary
commitment under WIS. STAT. § 51.20, as well as an order for involuntary

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2019-20). All
references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2021AP223

medication and treatment. As an initial matter, Susan contends that this appeal is
not moot, even though the underlying orders have expired. She then contends that
Shawano County violated her right to due process by failing to identify, either
before or during the final commitment hearing, the statutory standard under which
it sought to prove that she was dangerous. Susan also argues that the County
failed to establish dangerousness by clear and convincing evidence under any of
the five statutory standards, and that the circuit court failed to make specific
factual findings with reference to the statutory basis for its determination of
dangerousness, as required by Langlade County v. D.J.W., 2020 WI 41, 391
Wis. 2d 231, 942 N.W.2d 277.

¶2 We conclude Susan’s appeal is not moot because she remains
subject to at least one collateral consequence of the commitment order—namely, a
firearms ban. We further conclude that reversal is warranted because the circuit
court failed to make the specific factual findings required by D.J.W. We therefore
reverse both the commitment order and the associated order for involuntary
medication and treatment.

BACKGROUND

¶3 Susan gave birth to a child on June 11, 2020. On June 13, Susan
was taken into custody pursuant to a statement of emergency detention and
admitted to a psychiatric facility. Her child was removed from her care on the
same day. The statement of emergency detention alleged that Susan was not
taking her prescribed medications and had a “distorted view of reality.” Following

2
For ease of reading, we refer to the appellant in this confidential matter using a
pseudonym, rather than her initials.

2
No. 2021AP223

a hearing on June 17, the Langlade County Circuit Court found probable cause to
believe that Susan met the criteria for involuntary commitment under WIS. STAT.
§ 51.20. The court then transferred venue to Shawano County, where Susan lived.

¶4 Psychiatrists Marshall Bales and Sangita Patel were subsequently
appointed to examine Susan. In his report of examination, Bales opined that
Susan is mentally ill, with a diagnosis of schizoaffective disorder with active
psychotic symptoms. He also opined that Susan is dangerous under the fourth and
fifth standards set forth in WIS. STAT. § 51.20(1)(a)2.3 Patel similarly opined in
3
Under the fourth standard, an individual is dangerous if 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, serious physical injury, serious physical debilitation,
or serious physical disease will imminently ensue unless the
individual receives prompt and adequate treatment for this
mental illness.

WIS. STAT. § 51.20(1)(a)2.d. Under the fifth standard, an individual is dangerous if, after the
advantages, disadvantages, and alternatives to accepting a particular medication or treatment have
been explained to him or her, the individual

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 independently in the
community or the loss of cognitive or volitional control over his
or her thoughts or actions.

(continued)

3
No. 2021AP223

her report that Susan suffers from schizophrenia. She asserted that Susan is
dangerous under the third and fourth standards in § 51.20(1)(a)2.4

¶5 A final commitment hearing took place on June 23, 2020. During
the hearing, Bales testified that due to her mental illness, Susan is disorganized in
her thinking, which is a “major impairment.” He described Susan as agitated and
delusional, with “some paranoia.” Bales testified that Susan’s mental illness is
treatable, but she lacks insight into her condition and is therefore unable to
understand and apply the advantages and disadvantages of receiving medication
and treatment.

¶6 When asked on cross-examination to identify recent acts that showed
Susan was dangerous under either the fourth or fifth standard, Bales responded
that Susan “was talking delusionally” after giving birth; there was concern about
the baby’s safety, which led to the baby being removed from Susan’s care; and
“doctors intervened before … there was injury to the baby from some type of
neglect or to [Susan] herself.” Bales conceded, however, that Susan was
physically healthy, that he was not aware of any recent actions Susan had taken
that put either herself or the baby in danger, and that she had not been “imminently
dangerous with suicidal or threatening behavior.”

¶7 Patel testified that because of her mental illness, Susan was
“significantly impaired,” was not aware of what was going on around her, and was

Sec. 51.20(1)(a)2.e.
4
Under the third standard, an individual is dangerous if he or she “[e]vidences such
impaired judgment, manifested by evidence of a pattern of recent acts or omissions, that there is a
substantial probability of physical impairment or injury to himself or herself or other individuals.”
WIS. STAT. § 51.20(1)(a)2.c.

4
No. 2021AP223

delusional. As a result, Patel did not believe Susan could care for herself or her
child. She opined that Susan’s condition is treatable, but Susan has “[n]o insight
into her illness” and is “not able to apply how the medications would benefit her
because she doesn’t believe she has a mental illness.” On cross-examination, Patel
conceded that she had no “specific examples” of recent acts or omissions showing
that Susan was dangerous to herself or others. Instead, Patel testified that Susan’s
delusions, which were consistent with schizophrenia, “lead[] me to believe that
she’s incapable of caring [for] and she could harm the child.”

¶8 The circuit court ultimately concluded, in an oral ruling, that Susan
was mentally ill and a proper subject for treatment. The court also concluded that
Susan was dangerous, stating:

[S]o the question then comes about if—whether this person
is—had some recent acts or admissions which would
attempt to show that they are a danger to themselves or
others.

[Bales and Patel] were able to find through the impairment
that the acts or admissions that [Susan] just recently has
had delusions and does not understand reality, bizarre
behavior.

One of the admissions [is] that she stopped taking this
medication that caused this problem, admission she’s
doing—that she’s not taking care of herself and has come
to a point where she’s now delusional and bizarre behavior
and not understanding reality and if the person cannot
understand reality and see the reason to take medication
they’re a danger to themself or others, then they can’t care
for a child.

They don’t have an understanding of reality. The
defendant themselves or the respondent themself is a
danger to themself because of these admissions—of these
admissions and that is delusional, bizarre behavior, the
failure to get treatment for it and if she does not take the
medication the witnesses took a position she’d be more
dangerous to herself or others.

5
No. 2021AP223

¶9 The circuit court therefore entered an order involuntarily committing
Susan for a period of six months. The court also determined that Susan was not
competent to refuse medication and, accordingly, entered an order for involuntary
medication and treatment during the period of her commitment. Susan now
appeals.

DISCUSSION

I. Mootness

¶10 In her brief-in-chief on appeal, Susan argues that even though the
commitment and involuntary medication orders underlying this appeal have
expired, the appeal is not moot, and we should therefore address the merits of her
appellate arguments. Mootness presents a question of law that we review
independently. Portage Cnty. v. J.W.K., 2019 WI 54, ¶10, 386 Wis. 2d 672, 927
N.W.2d 509. An issue is moot when its resolution will have no practical effect on
the underlying controversy. Id., ¶11. We generally decline to address moot
issues. Id., ¶12.

¶11 An appeal from an expired commitment order is moot, unless the
order results in collateral consequences that persist even after the order has
expired. See id., ¶¶14, 28 & n.11; Marathon Cnty. v. D.K., 2020 WI 8, ¶¶22-25,
390 Wis. 2d 50, 937 N.W.2d 901. Susan asserts that even though the relevant
orders in this case have expired, she remains subject to various collateral
consequences caused by those orders. In particular, Susan notes that the
commitment order prohibits her from possessing firearms and expressly states that
the firearms ban does not terminate upon expiration of the commitment order, but
instead “shall remain in effect until lifted by the court.” In D.K., our supreme
court concluded that an appeal from an expired initial commitment order was not

6
No. 2021AP223

moot because “a decision in [the appellant’s] favor would void the firearms ban
and therefore have a ‘practical effect’” on the appellant. D.K., 390 Wis. 2d 50,
¶25.

¶12 The County has not filed a brief in this appeal. As such, it has not
responded to Susan’s argument that her appeal is not moot because the firearms
ban in the commitment order is a collateral consequence that persists even though
the order has expired. “Arguments not rebutted on appeal are deemed conceded.”
Shadley v. Lloyds of London, 2009 WI App 165, ¶26, 322 Wis. 2d 189, 776
N.W.2d 838. We therefore deem the County to have conceded that Susan’s appeal
is not moot, and we proceed to address the merits of her appellate arguments.

II. Susan’s appellate arguments

¶13 To involuntarily commit an individual under WIS. STAT. ch. 51, the
petitioner has the burden to show by clear and convincing evidence that the
individual is: (1) mentally ill; (2) a proper subject for treatment; and
(3) dangerous to himself or herself or to others. WIS. STAT. § 51.20(1)(a)1.-2.,
(13)(e). In an initial commitment proceeding, the petitioner must establish
dangerousness by showing that the subject individual is dangerous under at least
one of the five standards set forth in § 51.20(1)(a)2.a.-e. See D.J.W., 391 Wis. 2d
231, ¶30; J.W.K., 386 Wis. 2d 672, ¶17.

¶14 As noted above, Susan raises three arguments on appeal, each of
which pertains to the issue of dangerousness. First, Susan argues the County
violated her right to due process by failing to identify, either before or during the
final commitment hearing, under which of the five standards in WIS. STAT.
§ 51.20(1)(a)2. it sought to establish that she was dangerous. Second, Susan
argues that the County failed to establish dangerousness by clear and convincing

7
No. 2021AP223

evidence under any of the five statutory standards. Finally, Susan contends that
reversal is required because the circuit court failed to make specific factual
findings with reference to the statutory basis for its determination of
dangerousness, as required by D.J.W.

¶15 We need not address Susan’s first two arguments because we agree
with her third, and narrowest, argument that reversal is warranted because the
circuit court failed to comply with its obligations under D.J.W. See Miesen v.
DOT, 226 Wis. 2d 298, 309, 594 N.W.2d 821 (Ct. App. 1999) (court of appeals
“should decide cases on the narrowest possible grounds”); Turner v. Taylor, 2003
WI App 256, ¶1 n.1, 268 Wis. 2d 628, 673 N.W.2d 716 (court of appeals need not
address all issues raised by the parties if one is dispositive). In D.J.W., our
supreme court held that, “going forward[,] circuit courts in recommitment
proceedings are to make 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, ¶3. The court explained that this requirement serves two
purposes. Id., ¶42. First, it “provides clarity and extra protection to patients
regarding the underlying basis for a recommitment” by “ensur[ing] that
recommitments are based on sufficient evidence.” Id., ¶¶42-43. Second, it
facilitates meaningful appellate review of recommitment orders by clarifying the
basis for recommitment so that the appellate court does not have to engage in
“guesswork” and by providing a “more substantial record” for the appellate
court’s consideration. Id., ¶¶44-45.

¶16 D.J.W. was issued on April 24, 2020. The final commitment
hearing in this case took place on June 23, 2020—approximately two months later.
Although D.J.W. addressed a recommitment order, rather than an initial
commitment order like the one at issue in this case, we have recently stated that

8
No. 2021AP223

“we see no reason why the [D.J.W.] court’s mandate [regarding specific factual
findings with reference to the relevant subdivision paragraph of WIS. STAT.
§ 51.20(1)(a)2.] would not apply for initial commitments as well.” Winnebago
Cnty. v. A.A.L., No. 2020AP1511, unpublished slip op. ¶17 n.8 (WI App Mar. 24,
2021).5 “The ‘purpose of making specific factual findings’ is equally applicable to
initial commitments.” Id. (citing D.J.W., 391 Wis. 2d 231, ¶¶42-44).

¶17 The circuit court in this case did not make specific factual findings
with reference to the subdivision paragraph of WIS. STAT. § 51.20(1)(a)2. under
which it found Susan to be dangerous, as required by D.J.W. Instead, the court
merely found that: (1) Susan “recently has had delusions and does not understand
reality, bizarre behavior”; (2) Susan had stopped taking her medication, which
resulted in her “not taking care of herself” and exhibiting “delusional and bizarre
behavior and not understanding reality”; and (3) if a person cannot understand
reality and “see the reason to take medication,” then that person is “a danger to
themself or others” and “can’t care for a child.” The court then concluded that
Susan was dangerous because she did not have an understanding of reality,
because of her “delusional, bizarre behavior” and her “failure to get treatment for
it,” and because the experts had testified that “if she does not take the
medication … she’d be more dangerous to herself or others.”

¶18 As the above summary shows, the circuit court did not specify under
which subdivision paragraph of WIS. STAT. § 51.20(1)(a)2. it found Susan to be
dangerous. Moreover, the court did not make specific factual findings

5
See WIS. STAT. RULE 809.23(3)(b) (permitting the citation of authored, unpublished
opinions issued after July 1, 2009, for their persuasive value).

9
No. 2021AP223

corresponding to the elements of any of the five statutory standards of
dangerousness set forth in § 51.20(1)(a)2. On this record, we agree with Susan
that the court failed to comply with its obligations under D.J.W. In addition, we
again observe that the County has not filed a brief in this appeal. As such, the
County has not responded to Susan’s argument that the court was required, and
failed, to comply with D.J.W., and we therefore deem that point conceded. See
Shadley, 322 Wis. 2d 189, ¶26.

¶19 We further agree with Susan that outright reversal of the
commitment and involuntary medication orders is the appropriate remedy for the
circuit court’s error, rather than a remand for the court to comply with D.J.W.
WISCONSIN STAT. § 51.20(7)(c) sets forth time limits for a circuit court to hold a
final hearing on a petition for involuntary commitment. A circuit court generally
loses competency to enter an involuntary commitment order if the final hearing is
not held within the statutory time limits.6 See State ex rel. Lockman v.
Gerhardstein, 107 Wis. 2d 325, 328-39, 320 N.W.2d 27 (Ct. App. 1982); see also
Jefferson Cnty. v. S.M.S., No. 2020AP814, unpublished slip op. ¶12 (WI App
Mar. 11, 2021).

¶20 Here, the circuit court held a final hearing on the County’s petition
to involuntarily commit Susan within the statutory time limits, but it failed to
comply with its obligations under D.J.W. during that hearing, and it therefore
failed to enter a valid commitment order. At this point, the statutory time limits
for holding a final commitment hearing have long since passed, and, as a result,

6
An exception to this rule exists if the delay is caused by conduct or manipulation
perpetuated by the subject individual. See Milwaukee Cnty. v. Edward S., 2001 WI App 169, ¶9,
247 Wis. 2d 87, 633 N.W.2d 241. That exception, however, is not applicable in this case.

10
No. 2021AP223

the court now lacks competency to conduct further proceedings on the County’s
petition. A remand for the court to comply with its obligations under D.J.W.
would therefore serve no purpose, as the court now lacks competency to do so. In
addition, we again note that by failing to file a brief in this appeal, the County has
conceded that outright reversal is the appropriate remedy for the court’s failure to
comply with D.J.W. See Shadley, 322 Wis. 2d 189, ¶26.

¶21 Accordingly, we reverse outright the circuit court’s order
involuntarily committing Susan. Because we reverse the involuntary commitment
order, reversal of the involuntary medication and treatment order is also
warranted, as an order for involuntary medication and treatment can only exist
during the term of a valid commitment. See WIS. STAT. § 51.61(1)(g)3.

By the Court.—Orders reversed.

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

11