Winnebago County v. D.E.S.

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 31, 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 No. 2022AP251 Cir. Ct. No. 2021ME378

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

IN THE MATTER OF THE MENTAL COMMITMENT OF D.E.S.:

WINNEBAGO COUNTY,

PETITIONER-RESPONDENT,

V.

D. E. S.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Winnebago County:
JOHN A. JORGENSEN, Judge. Affirmed.
No. 2022AP251

¶1 GROGAN, J.1 D.E.S. appeals from WIS. STAT. ch. 51 orders
extending his involuntary medication and inpatient treatment. He asserts two
arguments: (1) the circuit court failed to make specific factual findings with
reference to which subdivision paragraph of WIS. STAT. § 51.20(1)(a)2 it relied
upon in determining dangerousness as required by Langlade County v. D.J.W.,
2020 WI 41, ¶59, 391 Wis. 2d 231, 942 N.W.2d 277; and (2) there is insufficient
evidence to show he was dangerous. This court affirms.

I. BACKGROUND

¶2 D.E.S. has schizoaffective disorder, bipolar type—a mental illness
that his treating psychiatrist, Dr. Odette Anderson, identifies as a significant
disorder of mood, thought, perception, orientation, or memory that grossly impairs
his judgment, behavior, or capacity to recognize reality. Dr. Anderson sent a letter
to Winnebago County in July 2021 requesting the County “prepare a petition for
the extension of [D.E.S.’s civil commitment.]” The letter expressed
Dr. Anderson’s opinion that D.E.S. has a mental disorder, is a proper subject for
commitment, and is dangerous under all five statutory standards in WIS. STAT.
§ 51.20(1)(a)2. The doctor opined that D.E.S. “continues to be and is a proper
subject for treatment” and that despite explaining to him “the advantages,
disadvantages and alternatives to the psychotropic medications” he is taking,
“[D.E.S.] is not capable of expressing an understanding of the advantages,
disadvantages or alternatives or appreciating how he benefits from those options.”

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.

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No. 2022AP251

¶3 In September 2021, the County filed a petition for D.E.S.’s
recommitment2 and indicated he is dangerous under all five of WIS. STAT.
§ 51.20(1)(a)2’s standards. A hearing on the petition was scheduled for
October 12, 2021. On that date, D.E.S.’s attorney told the circuit court that the
parties had reached an agreement and that D.E.S. would not contest the
recommitment. However, when the court asked D.E.S. directly to confirm his no-
contest decision, D.E.S. told the court his attorney was wrong and that he did want
to contest the recommitment petition and have a hearing. The County thereafter
re-contacted Dr. Anderson, who had previously been released based on the
representation that D.E.S. would not be contesting the petition, and Dr. Anderson
returned to provide her testimony. After hearing Dr. Anderson’s testimony, the
circuit court ultimately continued the hearing to another date to allow for
additional witness testimony.

¶4 At the October 12th hearing, Dr. Anderson testified and:

 Agreed D.E.S. “evidenced a substantial probability [that]
if left untreated he lacks services necessary for his health
or safety” as “he has demonstrated a significant danger to
others, and he has demonstrated a decrease in that type of
dangerousness when he has been treated with medicine to
when he was not.”

 Agreed that there is evidence “that would suggest [D.E.S.]
presents a substantial probability that if left untreated, he
would suffer either severe mental, emotional, or physical
harm resulting in his loss of ability to function
independently within the community[,]” and she provided
multiple examples that show D.E.S. “is a person who

2
“Recommitment” is synonymous with “extension of commitment,” and the terms will
therefore be used interchangeably. See Sheboygan County v. M.W., 2022 WI 40, ¶6 n.3, 402
Wis. 2d 1, 974 N.W.2d 733.

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No. 2022AP251

would have some difficulty carrying out the everyday
activities of life and the demands of ordinary life.”

 Confirmed, when asked, that if not treated, D.E.S. would
lose “cognitive or volitional control of his thoughts and
actions” as he had “been violent with people in the
community” when not on treatment and that the violence
“would be repeated” if treatment was withdrawn.

 Testified that D.E.S. “severely injured one [of] the
employees at a group home where he was” and that “in the
periods of time even here at Mendota Mental Health
Institute when we have made decisions to decrease dosing
of his medication, this is a standard procedure, he has not
been able to demonstrate safety or maintain the decrease
in the symptoms that he experiences.”

 Explained that even with treatment, D.E.S. “can be quite
dangerous” and has had “breakthrough” events showing
he is dangerous, including a January 2021 incident where
D.E.S. mistakenly believed staff members were throwing
water in his room, which resulted in D.E.S. “charg[ing] at
staff and attempting to punch staff.” Staff had to take
D.E.S. down to the ground and handcuff him, after which
he “began to spit at staff.”

 Stated that if D.E.S. was returned to the community, he
would not partake in treatment “because he has
demonstrated poor insight into his illness and need for
treatment” as D.E.S. denies having a mental illness and
thinks his medication is for a sleep disorder.

 Opined that the least restrictive environment for D.E.S.
would be: “A locked facility with security, with medical
staff as well as security staff available and to supervise
and manage his violent behaviors and manage his medical,
including his psychiatric medical, treatment.”

¶5 When the recommitment hearing continued on October 19, 2021, the
County called two of D.E.S.’s nurses. The first nurse testified about personally
witnessing the January 2021 incident where D.E.S. got angry and tried to hit a

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No. 2022AP251

staff member. This nurse said D.E.S.’s conduct caused him to be “concerned for
[his] safety, the patients’ safety, and the other staff’s safety[.]” The second nurse
also testified about the January 2021 incident and recalled it as D.E.S. attempting
to “start a fight,” after which D.E.S. was “taken down” and placed in a seclusion
room. When the second nurse went to check on D.E.S. through the room’s trap
door, D.E.S. “started spitting towards the trap,” D.E.S. was “agitated” and “still
yelling,” and the incident caused the nurse to be concerned for his own safety.

¶6 After the testimony concluded, the County, in its closing argument,
specifically referenced the recommitment requirements at issue. First, the County
argued there was evidence supporting proof under WIS. STAT. § 51.20(1)(am) that
D.E.S. remains a proper subject for treatment and is dangerous because if
treatment were withdrawn, he would become a proper subject for a commitment.
Second, the County argued there was evidence supporting recommitment under
“one of the dangerous standards under [§] 51.20” as required by D.J.W. See
D.J.W., 391 Wis. 2d 231. The County asserted the evidence supported a finding
of dangerousness under the second and fifth statutory standards, § 51.20(1)(a)2.b
and § 51.20(1)(a)2.e, respectively.

¶7 D.E.S.’s counsel then argued that the County failed to prove
dangerousness under D.J.W. because the violent event testified to was too remote
in time to keep D.E.S. committed, that D.E.S. was taking his medication, and that
it did not matter whether D.E.S. believed his medication was sleeping pills.

¶8 The circuit court ordered the extension of the commitment, both for
inpatient treatment and medication. In doing so, it found Dr. Anderson’s and the
nurses’ testimony to be credible. In addressing dangerousness, the circuit court
said:

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No. 2022AP251

The issues of dangerousness, you know, the fact that this
is an extension so certainly during the first petition there
was that finding made of dangerousness and now while still
in a locked setting, in these circumstances, there’s -- there
was -- we don’t have full facts of what happened, but
certainly, we recognize that [D.E.S.] was challenged, was
frustrated, was upset, and what we learned is this is how he
acts out violently which is he tries to attack another
individual. But then even when in a secured setting, in that
setting, he attempted to spit at a staff member which in this
day in age is very dangerous with all of the diseases and
COVID and everything else that’s going on so this is all
concerning.

And so I’m going to find in context of this being an
extension that at the time this petition was filed, certainly it
was relevant, and so it is today at the final hearing. So I’m
going to find that the grounds do exist for the extension of
commitment, that [D.E.S.] is mentally ill, dangerous
pursuant to the factors listed in Chapter 51. Specifically,
that he would decompress and deteriorate without this
commitment, that he has shown that he is dangerous to
other people as well[.]

¶9 The circuit court also specifically found that “medication is
necessary to prevent serious physical harm to himself or others” and therefore
ordered an extension of D.E.S.’s commitment with involuntary administration of
medication for another twelve months.3 D.E.S. appeals.

II. DISCUSSION

¶10 This case involves a WIS. STAT. ch. 51 recommitment, which is
governed by WIS. STAT. § 51.20. To involuntarily commit an individual, a county
must establish by clear and convincing evidence that the person is mentally ill, a
proper subject for treatment, and dangerous. Sec. 51.20(1)(a)1-2, (13)(e),
(13)(g)3; Waukesha County v. J.W.J., 2017 WI 57, ¶18, 375 Wis. 2d 542, 895

3
The orders are dated October 19, 2021, and continue until October 19, 2022.

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No. 2022AP251

N.W.2d 783. D.E.S. challenges only the dangerousness criterion. Specifically, he
first argues that the circuit court failed to comply with the D.J.W. directive
requiring circuit courts “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, ¶3. Second, D.E.S. contends that the
County failed to present sufficient evidence to establish that he is dangerous.

¶11 In order to prove dangerousness in an initial commitment, a county
must present evidence that satisfies one of the five criteria set forth in WIS. STAT.
§ 51.20(1)(a)2. D.J.W., 391 Wis. 2d 231, ¶30. When a county seeks
recommitment, dangerousness may be established under § 51.20(1)(am), which
recognizes that a person who has been treated and medicated under the initial
order “‘may not have exhibited any recent overt acts or omissions demonstrating
dangerousness because the treatment ameliorated such behavior[.]’” D.J.W., 391
Wis. 2d 231, ¶33 (citation omitted). Reliance on § 51.20(1)(am) establishes that
the person is still dangerous because if treatment is withdrawn, one of the five
criteria in § 51.20(1)(a)2 would recur. Thus, a circuit court, in extending a
commitment in reliance on (am), must link that determination to one of the five
dangerousness criteria in § 51.20(1)(a)2. D.J.W., 391 Wis. 2d 231, ¶¶3, 32-34.4

¶12 Whether a county has proven all required facts in a recommitment
proceeding “by clear and convincing evidence” presents “a mixed question of law
and fact.” Id., ¶¶23-24. This court “will uphold a circuit court’s findings of fact

4
This court is not persuaded by D.E.S.’s contention that the January 21 incident evincing
his dangerousness was too remote to support a dangerousness finding as this is a recommitment
where presumably the treatment D.E.S. receives primarily prevents actual violent acts. See WIS.
STAT. § 51.20(1)(am).

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No. 2022AP251

unless they are clearly erroneous.” Id., ¶24. A factual finding “is clearly
erroneous if it is against the great weight and clear preponderance of the
evidence.” Id. This court then determines “whether the facts satisfy the statutory
standard.” Id., ¶25. In assessing the circuit court’s factual findings, we defer to its
credibility determinations. State v. Young, 2009 WI App 22, ¶17, 316 Wis. 2d
114, 762 N.W.2d 736 (circuit courts make credibility determinations).

A. D.J.W. Violation

¶13 D.J.W.’s directive mandates that circuit courts make “specific
factual findings with reference to” the statutory standard it relies upon in ordering
recommitment. D.J.W., 391 Wis. 2d 231, ¶3. Although the circuit court here did
not specifically identify which of the five standards it was relying on by number in
the course of announcing its factual findings, this court, having reviewed the
hearing transcripts, is nevertheless satisfied that the circuit court’s actual words,
combined with the County’s closing arguments identifying its reliance on WIS.
STAT. § 51.20(1)(a)2.b and § 51.20(1)(a)2.e as the basis for establishing
dangerousness, complies with D.J.W., albeit minimally.5

5
Langlade County v. D.J.W., 2020 WI 41, ¶3, 391 Wis. 2d 231, 942 N.W.2d 277,
requires circuit courts to reference which of the five dangerousness standards they rely upon in
making their factual findings, and a circuit court’s failure to do so requires outright reversal if the
underlying commitment order has expired. M.W., 402 Wis. 2d 1, ¶4. The law, however,
generally does not require the use of “magic words,” and as explained, this court, having
reviewed the Record, is satisfied that the circuit court’s words, which incorporate some of the
specific statutory language relied upon, complied with the D.J.W. mandate. See State v. Brown,
2020 WI 63, ¶27, 392 Wis. 2d 454, 945 N.W.2d 584 (“The law generally rejects imposing ‘magic
words’ requirements.” (citation omitted)).

That said, the circuit court’s references to the relevant statutory language here were only
minimally adequate, thus making this a very close case. Going forward, this circuit court—as
well as circuit courts throughout Wisconsin—should be mindful of the D.J.W. requirement and,
as a best practice, should specifically and directly reference the dangerousness standard(s) relied
upon in rendering their decisions.

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No. 2022AP251

¶14 First, the County, based on the evidence and testimony presented
during the hearing, argued that it had established dangerousness under WIS. STAT.
§ 51.20(1)(a)2.b and e, or at the very least, “certainly [under] the (e) standard[.]”
Second, the transcript reflects that in announcing its factual findings and
addressing dangerousness, the circuit court made the following findings:
(1) D.E.S. acted out violently despite being in a locked setting and medicated;
(2) when D.E.S. is challenged, frustrated, or upset, he turns to violence and
physically attacks others; (3) even after being placed into the seclusion room,
D.E.S. evidenced dangerous behavior when he tried to spit on the second nurse;
and (4) spitting is a dangerous act as it can transmit disease.

¶15 As specifically relevant here, the circuit court described D.E.S.’s
conduct toward others as “violent” and, after announcing its findings, stated:

So I’m going to find that the grounds do exist for the
extension of commitment, that [D.E.S.] is mentally ill,
dangerous pursuant to the factors listed in [WIS. STAT.]
Chapter 51. Specifically, that he would decompress and
deteriorate without this commitment [and] that he has
shown that he is dangerous to other people as well[.]

(Emphases added.) The court’s findings, the specific references to D.E.S.’s
actions toward others being “violent” and “dangerous,” and the reference to D.E.S.
“deteriorat[ing]” demonstrate the circuit court’s reliance on WIS. STAT.
§ 51.20(1)(a)2.b and § 51.20(1)(a)2.e. This is so because: (1) § 51.20(1)(a)2.b,
the first standard the County relied upon, is satisfied by, inter alia, “a substantial
probability of physical harm to other individuals as manifested by evidence of …
violent behavior” (emphases added); and (2) § 51.20(1)(a)2.e references an
individual’s “deterioration” in the absence of treatment.6 Accordingly, despite not
6
WISCONSIN STAT. § 51.20(1)(a)2.e, as relevant, states:
(continued)

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No. 2022AP251

identifying the specific standards it was relying on with reference to the statutory
numbering, the circuit court’s words reflected the corresponding statutory
language in § 51.20(1)(a)2.b and § 51.20(1)(a)2.e, which was sufficient to comply
with D.J.W.

B. Sufficiency of the Evidence

¶16 D.E.S. next asserts the evidence was insufficient to establish he was
dangerous. This court concludes that the evidence presented via Dr. Anderson’s
testimony and the two nurses’ testimony, which the circuit court explicitly
determined to be credible, was more than sufficient to find D.E.S. dangerous. This
court sees no reason to disturb that credibility finding. Moreover, D.E.S. did not

For an individual, … 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 independently in the
community or the loss of cognitive or volitional control over his
or her thoughts or actions.

(Emphases added.) Although the circuit court did not specifically reference D.E.S.’s
understanding—or lack thereof—of the advantages and disadvantages of treatment after
discussion, Dr. Anderson specifically testified as to such a conversation with D.E.S. and her
opinion that D.E.S. was not capable of understanding them, and the circuit court did specifically
state that Dr. Anderson “was qualified and had the experience and firsthand knowledge to give
the opinion that she has” and therefore found “her testimony to be believable and credible[.]”

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No. 2022AP251

present any witnesses, and there is therefore no evidence to contradict
Dr. Anderson’s or the two nurses’ testimony.

¶17 Accepting Dr. Anderson’s and the nurses’ testimony as credible,
there was more than enough information submitted to the circuit court to establish
by clear and convincing evidence that D.E.S. was dangerous under WIS. STAT.
§ 51.20(1)(a)2.b. Dr. Anderson testified about D.E.S.’s “breakthrough” violent
acts—lashing out physically by charging at a nurse, throwing punches, and
spitting at a nurse—despite being medicated, and gave the January 2021 example
of D.E.S. acting out violently when he misperceives the actions of others nearby.
In other words, D.E.S.’s inability to understand reality causes him to lash out
violently even while receiving treatment. The two nurses also testified about the
incident Dr. Anderson identified and stated that D.E.S.’s violent actions caused
them to be concerned for the safety of themselves or others. Based on this
extensive credible testimony, the circuit court’s finding that D.E.S. met the
dangerousness standard under § 51.20(1)(a)2.b is sufficiently supported by the
Record as D.E.S.’s actions created a substantial probability that he would cause
physical harm to others as evidenced by recent violent acts or attempts to do
serious physical harm that placed the nurses in reasonable fear of serious physical
harm.

¶18 Likewise, Dr. Anderson testified that she explained the advantages,
disadvantages, and alternatives to treatment with D.E.S. and that, in her opinion,
he was incapable of understanding the same. The circuit court explicitly found
Dr. Anderson to be qualified and her testimony to be credible, and there was
therefore sufficient evidence of dangerousness pursuant to WIS. STAT.
§ 51.20(1)(a)2.e.

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No. 2022AP251

By the Court.—Orders affirmed.

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

12