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. 2021AP139 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 an order of the circuit court for Trempealeau County:
RIAN RADTKE, Judge. Affirmed.

¶1 HRUZ, J.1 Tiffany2 appeals from an order denying her motion for
reconsideration of a prior order approving her transfer to a more restrictive

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. 2021AP139

placement under WIS. STAT. ch. 51.3 Tiffany’s appeal is moot, however, and no
exception to the doctrine of mootness applies. Accordingly, we affirm.

BACKGROUND

¶2 Tiffany was involuntarily committed in February 2020 and shortly
thereafter began outpatient treatment, subject to conditions.4 On June 4, 2020,
Tiffany was taken into custody by law enforcement and brought to a hospital,
where she was placed on an emergency detention and admitted to an inpatient
facility. Upon being admitted, Tiffany was examined by a psychiatrist,
John Bartholow, who determined that Tiffany seemed “significantly delusional.”
Bartholow recommended that Tiffany remain in the facility and advised that a
more effective medication regimen be developed.

¶3 The Trempealeau County Department of Social Services (“the
County”) filed a Notice of Rights on June 8, 2020, for Tiffany’s transfer—as
described above—to the inpatient facility. This notice included the following
language relevant to the availability of a challenge to the transfer:

4. Right to petition a court in the county in which you are
located or the committing court for a review of the transfer.

….

2
For ease of reading, we refer to the appellant in this confidential matter using a
pseudonym, rather than her initials.
3
We note that although the notice of appeal identifies only the order denying Tiffany’s
motion for reconsideration as being at issue in this appeal, Tiffany uses language throughout her
briefs suggesting that she is also appealing from the original order approving her transfer.
Although this discrepancy could affect the standard of review or analysis adopted by this court in
certain circumstances, it is not material here given our conclusion that this appeal is moot.
4
The circuit court ordered that the maximum level of treatment possible for Tiffany
during her commitment was to be in a locked inpatient facility.

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6. Upon request to the Court and within 10 days after the
transfer, a hearing shall be held on whether the form of
treatment resulting from the transfer is least restrictive of
your personal liberty, consistent with your treatment needs
in a medical professional’s medical and clinical judgment.
You may appear at the hearing, either personally or by
counsel, and may present and cross-examine witnesses and
present documentary evidence. The hearing may be
waived by you only after consultation with counsel. Any
waiver made shall be in writing and witnessed by your
counsel.

7. The County Department of Human Services seeking the
transfer has the burden of proving, by a preponderance of
the evidence, that the form of treatment resulting from the
transfer is least restrictive of your personal liberty,
consistent with your treatment needs in a medical
professional’s medical and clinical judgment. Hearsay
evidence is admissible if the hearing officer makes a
determination that the evidence is reliable. Hearsay
evidence may not be the sole basis for the decision of the
hearing officer.

¶4 Tiffany petitioned the circuit court for a review of her transfer. A
hearing was held on June 26, 2020. The court heard testimony from
Dr. Bartholow regarding Tiffany’s behavior, his examination of her shortly after
her admission, and whether the form of treatment resulting from the transfer was
the least restrictive for Tiffany consistent with her treatment needs. Bartholow
testified that although Tiffany felt she should be able to leave, Bartholow believed
“[i]t was pretty clear she needed to be in the hospital,” and that her insight into her
disorder was completely impaired. Bartholow testified that Tiffany was agitated,
had bruising, and that her thinking was “clearly inappropriate.” Bartholow further
testified that Tiffany had delusions that varied from day to day and centered on her
being mistreated. Bartholow concluded that Tiffany was not being adequately
treated for schizophrenia in her current outpatient arrangement, and he
recommended inpatient care because he felt she was not ready for community
placement. Bartholow confirmed that at the time of the transfer, he believed

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Tiffany’s subsequent transfer to the Trempealeau County Health Care Center was
the most appropriate and least restrictive placement for her.

¶5 When asked if Tiffany would have been willing to take
Dr. Bartholow’s newly recommended medication regimen while out in the
community, Bartholow responded: “She was very much resistant to me putting
her on another medication. She denied a mental illness and felt that being put on
another medication was totally inappropriate and that was very frustrating to her.”
Bartholow admitted that although Tiffany did not believe herself to be mentally ill
and did not want to take the medication he was recommending, she had expressed
her reasoning for her refusal, which was that the medication was not being
prescribed by her regular doctor whom she sees on an outpatient basis. Bartholow
ultimately recommended continued inpatient placement, with the understanding
that Tiffany would be moved to an outpatient placement when a psychiatrist and
treatment team decided it was appropriate.

¶6 The circuit court stated that it had reviewed WIS. STAT.
§ 51.35(1)(e)—the statute governing the transfer—in addition to Manitowoc
County v. J.H., 2013 WI 68, 349 Wis. 2d 202, 833 N.W.2d 109. The court
determined that according to J.H., the statute only required that the transfer from
outpatient to inpatient be based on “reasonable medical and clinical judgment.”
The court concluded: “I don’t see that I need to assess the least restrictiveness of
the … placement as of [the day of the hearing].” Although the court noted that an
issue was raised as to Tiffany’s current status because Dr. Bartholow had not seen
her in a week, it concluded—based on the statute and the case law—that it was
reviewing Tiffany’s transfer from outpatient to inpatient and whether that transfer
was based on reasonable medical and clinical judgment. It was not, as Tiffany
suggested, conducting an ongoing review of Tiffany’s placement since the

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transfer, or the appropriateness of her placement at the time of the hearing. Based
on the testimony at the hearing, the court affirmed the transfer. It concluded that
credible and uncontroverted testimony had been presented showing that Tiffany
needed to be placed in inpatient care, and that the decision to transfer her to a
more restrictive setting was based on reasonable medical and clinical judgment.

¶7 Tiffany filed a motion for reconsideration of the circuit court’s
ruling, arguing that it was unreasonable to interpret WIS. STAT. § 51.35(1)(e) as
limiting a court’s review of a transfer to only whether that transfer was appropriate
at the time it occurred. She argued that because there was no time limit for the
review specified in the statute, this type of review did not “serve any real
purpose.” Instead, Tiffany reiterated her argument from the motion hearing that
the court should have analyzed whether the more restrictive placement was still
necessary at the time of the requested hearing—proposing that WIS. STAT.
§ 51.20(16), governing the reexamination of patients, applied to her petition to
review the transfer.

¶8 At the hearing on the motion for reconsideration, the circuit court
rejected Tiffany’s arguments. The court observed that WIS. STAT. § 51.35(1) is
very specific in that a court’s review is only of a transfer, and such review is only
appropriate when that transfer is to a more restrictive placement. The court stated
that it had held a hearing reviewing the transfer at Tiffany’s request, heard
testimony, and made a ruling. In response to the court’s questioning, Tiffany
confirmed that no case law linked WIS. STAT. § 51.20(16) to the petition for the
review of her transfer. The court concluded that it “doesn’t even get into statutory
interpretation unless there’s an ambiguity, and when I look at this it talks about the
transfer to a facility more restrictive, they have a right to review of that transfer,

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and we’ve conducted that hearing.” The court denied Tiffany’s motion for
reconsideration, and Tiffany now appeals.

DISCUSSION

¶9 Tiffany concedes that a decision in this appeal might be moot
because she is no longer in an inpatient treatment setting resulting from the June 4,
2020 transfer. We generally do not consider moot issues. State ex rel. Olson v.
Litscher, 2000 WI App 61, ¶3, 233 Wis. 2d 685, 608 N.W.2d 425. An issue is
moot when its resolution will have no practical effect on the underlying
controversy. Id.

¶10 The appealed order denied Tiffany’s motion for reconsideration of
an order approving her transfer to a more restrictive placement. Tiffany’s
commitment has since been extended, accompanied by new placement directions.
Accordingly, we agree that this issue is moot because a decision on the appealed
order would have no practical effect on Tiffany’s current placement or otherwise
impact her. Nevertheless, Tiffany argues that her appeal fits into several
exceptions to the mootness doctrine. We may elect to address a moot issue if it
falls within one of several established exceptions. Portage Cnty. v. J.W.K., 2019
WI 54, ¶12, 386 Wis. 2d 672, 927 N.W.2d 509.

¶11 Tiffany first argues that her appeal is of great public importance
because it involves the restriction of personal freedom, and that the interpretation
of the relevant statutes will establish important procedures for challenging
transfers to more restrictive placements. Closely related to the second point, she
further contends that our resolution will avoid future uncertainty in this area.

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¶12 We are not persuaded by any of these assertions. While it is true that
judicial review of an involuntary transfer to a more restrictive inpatient form of
treatment affects important liberty interests, the analysis does not end with that
proposition. Here, Tiffany’s liberty interests were protected. The statute that
Tiffany argues is insufficient—WIS. STAT. § 51.35(1)(e)—allowed for a judicial
review of the transfer, such that Tiffany was provided adequate due process. In
particular, Tiffany received notice of the procedures by which she could petition to
review her transfer, and she did so. Tiffany then received a full hearing reviewing
her transfer in addition to a hearing on her motion for reconsideration, all with an
opportunity for her to provide evidence, call witnesses, and make arguments to the
circuit court. We further agree with the circuit court that asking courts to delve
into statutory interpretation and link two statutes with no reference to one another
or any legal authority connecting them—simply because Tiffany proposes that
approach might provide a more procedurally structured review of her case—is not
of paramount public importance.

¶13 Tiffany also argues that the legal issue raised by her appeal is
capable and likely of repetition yet evades review because it is unlikely that
appellate review could occur during the short period of time that an individual is
subject to a transfer order. Although it may be true that Tiffany was only subject
to the transfer order at issue for a short time, this exception to the doctrine of
mootness is limited to situations involving “a reasonable expectation that the same
complaining party would be subjected to the same action again.” See J.W.K., 386
Wis. 2d 672, ¶30 (citations and emphases omitted). Tiffany is no longer subject to
inpatient commitment, and nothing in the record establishes the existence of a
reasonable expectation that Tiffany will become the subject of another transfer
order of this kind. The fact that it might be difficult to achieve a review of a single

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transfer order does not alone meet the criteria for the application of this exception.
Additionally, given our above analysis that Tiffany has received due process and a
fair review of her transfer order, there is not a compelling reason for this court to
elect to consider the one-time transfer order and potentially upset the circuit
court’s reasoned decision.

¶14 Accordingly, we do not address the merits of Tiffany’s appeal.
Tiffany’s appeal is moot, and no exceptions to the doctrine of mootness apply.
We therefore affirm.

By the Court.—Order affirmed.

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

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