Trempealeau County Department of Social Services v. T. M. M.

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 12, 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. 2021AP100 Cir. Ct. No. 2020ME7

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

IN THE MATTER OF THE MENTAL COMMITMENT OF T. M. M.:

TREMPEALEAU COUNTY DEPARTMENT OF SOCIAL SERVICES,

PETITIONER-RESPONDENT,

V.

T. M. M.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Trempealeau County:
RIAN RADTKE, Judge. Reversed.

¶1 HRUZ, J.1 Tiffany2 appeals from an order extending her
involuntary commitment and an order for involuntary medication and treatment,

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. 2021AP100

both entered pursuant to WIS. STAT. ch. 51. Tiffany argues that the Trempealeau
County Department of Social Services (“the County”) failed to establish that she
was dangerous under any of the standards set forth in WIS. STAT. § 51.20(1)(a)2.
She also challenges the circuit court’s determination that she was not competent to
refuse medication or treatment. Finally, Tiffany argues that the court’s ruling at
her recommitment hearing did not satisfy the requirements set forth in Langlade
County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277, because the
court failed to identify the particular subdivision paragraph under § 51.20(1)(a)2.
on which it based its dangerousness determination. We conclude that the County
failed to present sufficient evidence to establish that Tiffany was dangerous under
any of the legal standards set forth in § 51.20(1)(a)2. Accordingly, we reverse
both orders.

BACKGROUND

¶2 In February 2020, Tiffany stipulated to orders for commitment and
for involuntary medication and treatment under WIS. STAT. ch. 51. The circuit
court entered those orders, and both remained in effect for six months. This
stipulated commitment arose from an incident during which Tiffany became
convinced that a child was locked in her neighbor’s house.3 During the ensuing
confrontation between Tiffany and her neighbor, both of them called the police,
and the responding officers ultimately transported Tiffany to the hospital and

2
For ease of reading, we refer to the appellant in this confidential matter using a
pseudonym, rather than her initials.
3
Although there is some discrepancy in the record as to whether Tiffany believed her
own child was trapped in her neighbor’s home or whether she believed it was someone else’s
child, this fact is not material to our overall analysis.

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placed her under an emergency detention. After transitioning to outpatient
treatment, Tiffany was placed on another emergency detention in June 2020 and
was ultimately returned to inpatient care following an incident in which Tiffany
left her car running and was found blocks away riding a bicycle and appearing
confused. Prior to the expiration of the initial commitment order, the County filed
a petition recommending the extension of Tiffany’s commitment, and the court
ordered a psychiatrist, James Scott Persing, to examine Tiffany and prepare a
report.

¶3 The circuit court held a recommitment hearing on July 31, 2020.
Doctor Persing testified that he diagnosed Tiffany with schizoaffective disorder
based on his evaluation made in anticipation of the hearing on her commitment
extension, on his previous experience as Tiffany’s doctor, and on his review of
collateral information about her history. Persing also testified regarding his
understanding of the specific acts leading up to Tiffany’s most recent detention,
stating “[t]o my understanding, there was a lot of confusion regarding exactly
what had been occurring,” and that “[l]aw enforcement again had notes
summarizing behavior like bizarre and confused, and apparently there was concern
that she left her car running and then had it parked somewhere and then was
driving off on her bicycle.” When asked if he had any information on why those
events were concerning to law enforcement, Persing replied, “I don’t.”

¶4 Doctor Persing further testified that Tiffany was currently taking
antipsychotic medication, and he believed if treatment were withdrawn there was a
substantial probability that a “return of symptoms and eventually issues would
arise similar to what had occurred prior to her previous episodes of commitment
before.” Persing specified that a return of symptoms would include “delusional
thinking, problems with mood swings, unpredictable mood swings, and then the

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concern from a standpoint of leading up to some element of potential for
self-harm.” When asked to elaborate on the self-harm concerns for someone not
being treated for their schizoaffective disorder, Persing provided a general
description of several possible outcomes:

Everyone is a little different with regard to how that could
occur. Some people can have voices that tell them to harm
themselves or other people; some people can have
delusional thoughts that their food has been poisoned and
therefore not be taking in proper nutrition or hydration.
Other people, the insight and judgment is impacted to the
point where they’re not safe … and able to properly take
care of themselves.

¶5 Doctor Persing believed that there was a substantial probability
Tiffany would experience “those issues” if treatment were withdrawn. In support
of that opinion, he stated, “[t]he best predictor I can have of future symptoms and
behaviors is going to be what’s occurred in the past, and this has been a recurrent
issue for her.” Persing confirmed that he had noticed “those types of behaviors”
from Tiffany in the past.

¶6 Doctor Persing stated that Tiffany was not competent to understand
the medications prescribed to her because, although she understood that she had a
mental illness, she did not understand her medication options and was requesting
ineffective or harmful medications she had taken in the past.4 During Tiffany’s
testimony, she was able to name the medications she was taking and could
describe their effects and advantages. Tiffany testified that although she preferred

4
Tiffany declined to talk to Dr. Persing about her medications in his most recent
evaluation of her. As a result, on the subject of medication, Persing testified to his most recent
discussion with Tiffany on the subject, which took place “within the last month or six weeks” of
the recommitment hearing.

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other medications to those currently prescribed to her, she would be willing to take
whatever medication she was prescribed. Persing confirmed that Tiffany did not
have a history of refusing to take her prescribed medications.

¶7 The circuit court concluded that based on Dr. Persing’s testimony, it
was evident Tiffany was suffering from a treatable mental illness and was a proper
subject for treatment. It also found credible and uncontroverted Persing’s
testimony that Tiffany was dangerous because without treatment, she would
“experience the same type of problems or issues related to things evidenced from
the past,” in addition to “other potential concerns with folks who don’t get
treatment for schizoaffective disorder.” The court specifically referenced the
confusion surrounding Tiffany leaving her car running, in addition to her believing
that a child was trapped in her neighbor’s house. The court also noted that Persing
had testified that, in the past, Tiffany had experienced some symptoms that can
manifest in people with schizoaffective disorder. The court further concluded that
Tiffany was substantially incapable of understanding the advantages,
disadvantages and alternatives to medication or treatment in order to make an
informed choice about whether to accept medication.

¶8 The circuit court extended Tiffany’s commitment for twelve months,
and it entered an order for involuntary medication and treatment for the period of
that commitment. Tiffany now appeals.

DISCUSSION

¶9 In a WIS. STAT. ch. 51 proceeding, a petitioner has the burden to
prove by clear and convincing evidence that a subject individual is mentally ill, a
proper subject for treatment, and dangerous. See WIS. STAT. § 51.20(1)(a),
(13)(e). Whether this burden has been met presents a mixed question of fact and

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law. Waukesha Cnty. v. J.W.J., 2017 WI 57, ¶15, 375 Wis. 2d 542, 895 N.W.2d
783. We uphold the circuit court’s findings of fact unless they are clearly
erroneous. Id. Importantly, whether these findings satisfy the statutory standards
is a question of law that we review de novo. Id.

¶10 Of the three elements the County is required to prove, Tiffany
challenges only the sufficiency of the County’s evidence regarding dangerousness
under WIS. STAT. § 51.20(1)(a)2. A petitioner may prove that a person is
dangerous and warrants commitment under any of the five standards set forth in
§ 51.20(1)(a)2.a.-e., or, in the case of a recommitment, under those five standards
in combination with § 51.20(1)(am).5 Portage Cnty. v. J.W.K., 2019 WI 54, ¶18,
386 Wis. 2d 672, 927 N.W.2d 509. Tiffany asserts, and we agree, that none of the
events in her past (as detailed by the circuit court in its oral ruling), or any of the
facts or opinions presented at the final hearing (including through Dr. Persing’s
testimony), establish dangerousness under the legal standards stated in
§ 51.20(1)(a)2.

¶11 Most prominently, Tiffany argues that while the evidence presented
at the final hearing described some of her past actions, most of the evidence failed
to illustrate any physical or otherwise harmful consequences resulting or likely to

5
WISCONSIN STAT. § 51.20(1)(am) provides a different avenue for proving
dangerousness. Under this provision, if the individual who is the subject of extension
proceedings is under a commitment “immediately prior” to the extension proceedings, then the
petitioner may, as an alternative to the options outlined in § 51.20(1)(a)2.a.-e., prove
dangerousness by showing “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 Cnty. v. J.W.K., 2019 WI 54, ¶19, 386 Wis. 2d 672, 927
N.W.2d 509. In essence, § 51.20(1)(am) removes the requirement that the petitioner show recent
acts or omissions in order to establish dangerousness in a recommitment proceeding. See J.W.K.,
386 Wis. 2d 672, ¶19. However, the element of dangerousness must be proven to support any
extension. Id., ¶24.

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No. 2021AP100

result from her behavior—a key element in each of the dangerousness standards
set forth in WIS. STAT. § 51.20(1)(a)2. She notes that it is insufficient to present a
general discussion of her mental illness without presenting testimony or evidence
as to why her particular acts or omissions were dangerous. We agree. The
dangerousness determination varies depending on the standard in question, but it
invariably involves negative consequences beyond simply the existence of mental
illness or “odd” behavior related to such an illness. Those negative consequences
would include a substantial probability of physical harm to one’s self or to others,
or a substantial probability of death or serious physical injury as a result of an
inability to satisfy one’s basic needs. See id.

¶12 Tiffany cites D.J.W., a case in which our supreme court concluded
that without establishing a substantial probability of death or physical injury—i.e.,
a “serious physical consequence,” the petitioner has not satisfied the legal standard
for dangerousness under WIS. STAT. § 51.20(1)(a)2.d., despite evidence that
symptoms or hallucinations would return absent treatment.6 See D.J.W., 391
Wis. 2d 231, ¶¶52-53, 58. Tiffany argues that the evidence presented at her
hearing similarly left out any indication as to why her behavior was dangerous
under any of the relevant standards—indeed, as the circuit court specifically noted,
“[t]here was no evidence in the past or presented that there is harm to self, threats
of suicide or homicidal in nature, harm to others.”

6
Similarly, the supreme court concluded that the County’s argument regarding WIS.
STAT. § 51.20(1)(a)2.c. “fared[d] no better,” because no evidence was presented supporting the
conclusion that a “substantial probability of physical impairment or injury” would occur if
treatment were withdrawn. See Langlade Cnty. v. D.J.W., 2020 WI 41, ¶¶56-57, 391 Wis. 2d
231, 942 N.W.2d 277.

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No. 2021AP100

¶13 We agree that the evidence presented at the recommitment hearing
regarding Tiffany’s past behavior was not sufficiently specific to support a finding
of dangerousness. In a recommitment hearing, there is a key distinction between
describing behavior that is erratic, odd or even concerning, and evidencing
specific behavior that is likely dangerous. As this court explained in Winnebago
County v. S.H., 2020 WI App 46, ¶17, 393 Wis. 2d 511, 947 N.W.2d 761,
“reliance on assumptions concerning a recommitment at some unidentified point
in the past, and conclusory opinions parroting the statutory language without
actually discussing dangerousness, are insufficient to prove dangerousness in an
extension hearing.”

¶14 In S.H., Winnebago County failed to present details about previous
incidents of dangerousness in its case in chief before the circuit court or in its
appellate briefing—just as the County failed to do in this appeal. Id. The
distinguishing feature between this case and S.H.—where the recommitment order
was upheld—is relatively subtle, but important.

¶15 In S.H., a doctor ultimately testified on cross-examination to a
previous instance of the appellant’s dangerous behavior, which involved bringing
a baseball bat to the workplace. Id., ¶¶5, 15. The doctor then tied this behavior to
a number of postcommitment paranoid ideations that had occurred relating to that
same dangerous incident. Id. The appellate court thereby concluded that “[t]his
provided the necessary link between past dangerousness and the substantial
likelihood of reoccurrence of such behavior absent an extension order—
particularly in light of [the doctor’s] oft-repeated testimony that [the appellant] is
highly likely to stop taking her medication without that order.” Id., ¶17.

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¶16 It is not an onerous burden to describe the ways in which past
behavior was dangerous, and then explain how that behavior is likely to reoccur
absent recommitment. A plain assumption of dangerousness based solely on the
existence of previous commitment orders is not sufficient, nor is a recitation of the
events leading up to that commitment without facts or medical opinion
establishing why those prior events evidenced the requisite level of dangerous
behavior. See id., ¶17 n.9; see also Outagamie Cnty. v. R.W.,
No. 2020AP1171-FT, unpublished slip op. ¶¶25-26 (WI App Dec. 17, 2020)
(explaining how witnesses’ testimony provided a link between the committed
person’s past dangerousness and a substantial likelihood of the reoccurrence of
such behavior absent an extension order).7

¶17 Here, neither the testimony at the final hearing nor the circuit court’s
factual findings were sufficient to establish Tiffany’s dangerousness under WIS.
STAT. § 51.20(1)(a)2. Although Tiffany’s behavior in leaving her car running was
described as “bizarre” and “delusional” (and perhaps justifiably so), neither
Dr. Persing nor the court had knowledge as to why this behavior was concerning
to law enforcement such that it necessitated civil commitment, or, more
importantly, how it was dangerous either to Tiffany or others. Persing’s testimony
on this incident was based on his review of the records, but his testimony reflected
a lack of awareness regarding the specifics of the events that took place. Alone,
evidence of mental illness or irregular behavior like the kind Persing described is
insufficient to prove dangerousness—there must be evidence that the behavior led
to, or is reasonably likely to lead to, dangerous consequences, so as to fulfill the

7
See WIS. STAT. RULE 809.23(3)(b) (permitting the citation of authored, unpublished
opinions issued after July 1, 2009, for their persuasive value).

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No. 2021AP100

statutory requirements under at least one of the legal standards in § 51.20(1)(a)2.
See D.J.W., 391 Wis. 2d 231, ¶57.

¶18 Furthermore, Dr. Persing testified that he had been informed by a
case worker in January that Tiffany had been convinced a child was locked in her
neighbor’s closet, and that Tiffany “confronted [her] neighbor on occasion [and]
the neighbor was fearful and contacted law enforcement.” Persing, however,
presented no details that anyone was at risk of harm—much less at risk due to
Tiffany’s mental illness (versus, say, boorish behavior)—or any testimony as to
the specifics of Tiffany’s behavior or her neighbor’s reaction during that incident.
Without more specific facts or an explanation of the ways in which Tiffany’s
behavior was concerning or dangerous to either her neighbor or law enforcement,
there is insufficient evidence as to what specific acts or omissions occurred that
support a finding of dangerousness due to Tiffany’s mental illness under the
applicable legal standards.

¶19 Stated another way, Tiffany’s recommitment cannot be properly
based on the possibility of her return to behaviors that themselves are not
described by anything other than general or conclusory statements, and behaviors
that, as detailed above, evidence no “substantial probability” of harm or physical
impairment to anyone. We decline to make assumptions unsupported by the
record regarding Tiffany’s behavior, when more specific testimony could have
been presented by Dr. Persing or others who had contact with Tiffany over the
preceding years so as to explain why Tiffany’s behavior was dangerous, such that
it met any of the standards under WIS. STAT. § 51.20(1)(a)2.

¶20 Similar to the foregoing deficiencies in the County’s case, Tiffany
also argues that Dr. Persing’s testimony on her schizoaffective disorder was too

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vague and general to establish her as dangerous under WIS. STAT. § 51.20(1)(a)2.
We agree. When asked what symptoms might return if Tiffany were taken off of
her medication, Persing testified: “we would have a return of symptoms and
eventually issues would arise similar to what had occurred prior to her previous
episodes of commitment before.” When asked to clarify what a “return of
symptoms” meant, Persing stated that he was referring to delusional thinking,
unpredictable mood swings, and then “the concern from a standpoint of leading up
to some element of potential for self-harm.” Persing testified that Tiffany would
experience “those issues” if treatment were withdrawn, and that he had noticed
“those types of behaviors from her in the past, the ones that are related to
schizoaffective disorder.” Persing did not elaborate on the symptoms or issues
that occurred prior to Tiffany’s commitment, or explain how Tiffany’s behavior
manifested itself in a dangerous manner on those occasions.

¶21 Doctor Persing’s statements are too vague to serve as a basis for
Tiffany’s recommitment. They fail to sufficiently identify symptoms Tiffany had
exhibited in the past or to make particularized conclusions related to Tiffany’s
schizoaffective disorder. Persing further failed to describe any past actions or
behaviors related to Tiffany’s mental illness that might be likely to reoccur
without treatment, or to distinguish symptoms that occur in schizophrenic patients
generally from those that Tiffany actually exhibited. Our supreme court has made
it clear that such generalized propositions about persons with schizophrenia are
insufficient to establish dangerousness. See D.J.W., 391 Wis. 2d 231, ¶57. The
circuit court’s findings at the final hearing were no more specific but, rather,
primarily relied upon Persing’s testimony regarding generalized concerns.
Because Persing’s testimony at the hearing failed to be specific as to Tiffany’s
symptoms, past behavior, or dangerous consequences stemming from that

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behavior, the evidence was insufficient to prove Tiffany dangerous under any of
the standards in WIS. STAT. § 51.20(1)(a)2. despite her schizoaffective disorder.

¶22 The County’s rebuttals to Tiffany’s arguments are perfunctory. The
County reiterates many of the facts from the hearing, but it fails to engage any of
Tiffany’s substantive arguments regarding the sufficiency of the evidence
regarding dangerousness. In particular, the County does not explain how
Tiffany’s actions met the standards under WIS. STAT. § 51.20(1)(a)2., or address
the case law cited—and legal distinctions carefully drawn—by Tiffany in her
brief.

¶23 Tiffany next argues that there was insufficient evidence presented at
the recommitment hearing to conclude that she was not competent to refuse
medication or treatment. As an initial matter, because we conclude the evidence
was insufficient to support Tiffany’s recommitment order, we could decline to
address the remainder of the arguments on this issue. The reversal of the order
extending Tiffany’s commitment mandates the reversal of the associated order for
involuntary medication and treatment because a medication order is tied to the
existence of a final commitment order. See WIS. STAT. § 51.61(1)(g)3.

¶24 Nevertheless, we note that there are limited facts supporting
Tiffany’s medication and treatment order. Doctor Persing testified that Tiffany
did not have a history of refusing prescribed medications, and Tiffany confirmed
at the final hearing that she would be willing to take whatever medicine was
prescribed to her, even if she preferred taking a different medication.
Additionally, Tiffany was able to list the medications she was currently taking and
recite their general purposes, suggesting an understanding of her medications and
a willingness to take them.

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¶25 Doctor Persing’s primary concern was the heightened levels of
prolactin caused by an older medicine that Tiffany was requesting, stating “[w]hat
she was not aware of in my knowledge was that an elevated prolactin level can
cause breast enlargement, lactation, enlargement of the pituitary gland, and trigger
a pituitary tumor.” Based on Persing’s testimony, however, we cannot determine
whether this deficiency resulted from Tiffany never having been informed of the
potentially dangerous consequences associated with elevated prolactin levels—
effects Tiffany never personally experienced—or a lack of understanding despite
the drug’s potentially dangerous consequences being described to her. There is no
evidence in the record that Tiffany was requesting medication that she knew could
be or had been harmful to her, or that she was unable to understand the benefits
and drawbacks of medications when they were explained to her. Although our
reversal of the recommitment order itself necessitates the reversal of the order for
involuntary medication and treatment, we are also unconvinced, based on the
record, that Tiffany was not competent to refuse medication or treatment such that
an order for involuntary medication or treatment would be appropriate.

¶26 Finally, Tiffany argues that the circuit court failed to adhere to the
requirement established by our supreme court in D.J.W. 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.” See D.J.W., 391 Wis. 2d 231, ¶40. She
argues the court failed to specify one or more of the subdivision paragraphs of
§ 51.20(1)(a)2. on which her recommitment was based, instead referencing
portions of language from more than one standard.

¶27 We understand Tiffany’s contention that the circuit court’s ruling at
the final hearing may have failed to meet D.J.W.’s requirements—by melding

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language from several standards and failing to either explicitly name a subdivision
paragraph of WIS. STAT. § 51.20(1)(a)2., or to recite any of the applicable
standards with enough specificity so as to put Tiffany on notice of the particular
basis for her recommitment. However, we do not reach or resolve that issue.
Rather, we have already established that Tiffany’s recommitment is defective on
other grounds, regardless of any potential failure to comply with D.J.W. We need
not address all issues raised by the parties if one issue is dispositive. See Turner
v. Taylor, 2003 WI App 256, ¶1 n.1, 268 Wis. 2d 628, 673 N.W.2d 716. Because
the record contains insufficient evidence to prove that Tiffany was dangerous
under any of the standards in § 51.20(1)(a)2., we reverse Tiffany’s recommitment
order and the accompanying order for involuntary medication and treatment.

By the Court.—Orders reversed.

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

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