Waukesha County v. L.J.E.

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.
October 5, 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. 2022AP292 Cir. Ct. No. 2021ME167

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

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

WAUKESHA COUNTY,

PETITIONER-RESPONDENT,

V.

L.J.E.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Waukesha County:
MARIA S. LAZAR, Judge. Affirmed.
No. 2022AP292

¶1 NEUBAUER, J.1 Evans2 appeals an order of involuntary
commitment and an order for involuntary medication and treatment entered by the
circuit court following an evidentiary hearing at which it determined that
Waukesha County had proven grounds for commitment under the “fifth standard”
for dangerousness set forth in WIS. STAT. § 51.20(1)(a)2.e. Evans contends that
the County did not establish grounds to involuntarily commit her because it failed
to prove that her risk of harm could not adequately be addressed through
protective placement or protective services under WIS. STAT. ch. 55. Because
Evans did not meet the statutory criteria to be eligible for protective placement or
services when the court found her to be dangerous, we reject her challenge and
affirm.

BACKGROUND

¶2 A brief discussion of the legal framework governing involuntary
commitment in Wisconsin will focus and contextualize our discussion of the facts
of this case. Wisconsin law permits a person to be committed involuntarily if the
petitioner proves by clear and convincing evidence that the person is:
“(1) mentally ill; (2) a proper subject for treatment; and (3) dangerous to
themselves or others.” Langlade County v. D.J.W., 2020 WI 41, ¶29, 391 Wis. 2d
231, 942 N.W.2d 277. Evans does not challenge the County’s proof on the first
two elements of this three-part test. Her appeal focuses on whether the County
met its burden of proof with respect to the third element—dangerousness.

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.

We follow the parties’ lead and refer to the Appellant by a pseudonym to protect her
2

dignity and privacy rights. See WIS. STAT. RULE 809.86.

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¶3 “WIS[CONSIN] STAT. § 51.20(1)(a)2. provides five different means of
demonstrating that a person is ‘dangerous.’” D.J.W., 391 Wis. 2d 231, ¶30
(citation omitted). Here, the County sought to commit Evans pursuant to the fifth
standard for dangerousness, which is codified in § 51.20(1)(a)2.e. The fifth
standard sets forth a lengthy rule for determining when an individual “who is [not]
alleged to be drug dependent or developmentally disabled” is considered
“dangerous.” Sec. 51.20(1)(a)2.e. For an individual to be found dangerous under
the fifth standard, a circuit court must find that:

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, [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.

Id.

¶4 The fifth standard also contains two “exclusions” in which the
probability that an individual will suffer “severe mental, emotional, or physical
harm” is not “substantial” and thus does not justify involuntary commitment:
(1) “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

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himself or herself of these services”; or (2) “if the individual may be provided
protective placement or protective services under [WIS. STAT.] ch. 55.” WIS.
STAT. § 51.20(1)(a)2.e. With this statutory framework in mind, we turn to the
evidence presented at the final hearing on the County’s commitment petition.

¶5 The County called four witnesses to testify at the final hearing. The
first was Anthony Zitzelsberger, a friend of Evans with whom she had been living
for a couple of years. Zitzelsberger testified that Evans has not worked since she
began living with him and only contributes about one hundred dollars per month
towards household expenses. He also testified that Evans receives funds from a
divorce settlement but has been unable to access them because the debit card on
which they were loaded expired and she “won’t let herself renew it” because of
“the way her mind is working at this point.” Similarly, he testified that Evans
“couldn’t get herself” to complete the paperwork to obtain a post office box or
enroll in social security. Zitzelsberger indicated that Evans could continue to live
with him if she obtained psychiatric help and expressed concern that she might
end up “[o]n the street” without his help.

¶6 The next witness to testify was Maryam Faterioun, a social worker
who performed a mental health assessment of Evans and reviewed her prior
mental health treatment records. Faterioun testified about Evans’s mental health
history and current functional limitations. According to Faterioun, Evans was
previously diagnosed with bipolar disorder with psychotic features and was
hospitalized for inpatient treatment four or five times, most recently in 2014 or
2015. During those periods of inpatient treatment, Evans “struggled with
understanding the need for medication compliance, but [her] symptoms of
psychosis did seem to improve.” With regard to Evans’s current condition,
Faterioun explained that Evans exhibited “paranoia, some delusions, thought

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blocking, which is a symptom of thought disorder, and is unable to provide an
explanation of how to meet her needs in the community.” She testified that Evans
was paranoid about “using phones, computers, about changing [her address] to
[Zitzelsberger]’s address,” and applying for benefits.

¶7 To address these issues, Faterioun testified that Evans needed “to be
stabilized on medication” and to have “ongoing follow up,” initially on an
inpatient basis, due to her “report of not needing psychotropic medications for her
mental health and the history of noncompliance on an outpatient basis.” Absent
such inpatient treatment, Faterioun believed that Evans would suffer severe
mental, emotional, and physical harm because, among other things, her “ability to
manage the things in her life independently” and “to have linear thought processes
and function” would likely decrease. Finally, Faterioun explained that she had
discussed the advantages and disadvantages of several medications with Evans but
that Evans did not understand how they could help her current symptoms.
Faterioun reported that Evans declined mental health treatment during Faterioun’s
assessment and that Evans does not believe she is mentally ill.

¶8 Doctor Cary Kohlenberg, a psychiatrist appointed by the Court to
examine Evans, testified about Evans’s current mental health status and
functioning. According to Kohlenberg, Evans suffers from a treatable mental
illness, bipolar disorder, which has caused “impairments in her thought process, as
well as paranoia and persecutory thoughts … mood symptoms, depression, mood
lability, and anxiety.” Kohlenberg acknowledged that these symptoms “grossly
impair” Evans’s “judgment, capacity to recognize reality, [and] ability to meet
ordinary demands of life.” As an example of this impairment, Kohlenberg
testified that Evans “opined that she has no major mental illness” and denied
needing medical treatment when he discussed his diagnosis with her. Kohlenberg

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No. 2022AP292

agreed that Evans was a proper subject for treatment, including “medication to
help with anxiety and mood stabilization and psychosis.” Kohlenberg testified
that he discussed the advantages and disadvantages of psychotropic medications
with Evans, as well as potential alternatives to medication, but that she “could not
recognize” that she needed to be on medication or its potential benefits.

¶9 When asked about “the least restrictive placement consistent with
her needs,” Kohlenberg stated that Evans’s treatment “does need to start out on an
inpatient level of care” to “get her medications going and monitor her safety, and
also because of the severity of her mood and thought symptoms.” Kohlenberg
also expressed his belief that Evans was dangerous because of her underlying
mental illness and refusal to voluntarily continue treatment.

¶10 The last witness to testify, Dr. Rada Malinovic, is a psychiatrist at
the Waukesha Mental Health Center who also evaluated Evans. Like Kohlenberg,
Malinovic diagnosed Evans with bipolar disorder with psychotic features and
opined that she should be housed in “a locked inpatient unit” for one to two weeks
because she needed “further medication stabilization and further time for the
medications to reach therapeutic effect.”

¶11 After these witnesses testified, the circuit court set forth its findings
of fact and reasons for granting the County’s petition under the fifth standard.
Citing Kohlenberg’s testimony, the court found that Evans was suffering from
bipolar disorder, which caused impairments in thought, paranoia, and “depression
or anxiety.” The court found that Evans’s condition was impairing her judgment
and preventing her from meeting her basic housing and financial needs and that
she needed mental health treatment. The court also cited Faterioun’s concern that
Evans would deteriorate mentally, emotionally, and physically if she did not

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continue taking medication. The court credited Kohlenberg’s testimony that
Evans’s condition was treatable and that she had already responded to medication
but noted the concerns expressed by multiple witnesses that Evans was not capable
of recognizing the benefits of medication and might stop taking it. The court
found that Evans’s mental illness prevented her from understanding the
advantages and disadvantages of medication, and that she could not make an
informed choice about whether to refuse medication.

¶12 Based upon these findings, the circuit court found that Evans met the
three requirements for involuntary commitment: she was (1) mentally ill;
(2) dangerous; and (3) “a proper subject for treatment.” See D.J.W., 391 Wis. 2d
231, ¶29.

¶13 The circuit court then addressed the first exclusion in the fifth
standard, which applies when there is a reasonable probability that an individual
will take advantage of treatment available in the community, and found that it did
not apply to Evans. The court did not specifically address the second exclusion,
which applies where protective placement or protective services under WIS.
STAT. ch. 55 may be available to the individual. See WIS. STAT. § 51.20(1)(a)2.e.
However, based on its finding that the first exclusion did not apply, the court
ordered that Evans be committed for six months with the “maximum level of
treatment [being] a locked inpatient facility” from which she was to be discharged
within thirty days. The court also entered an order for involuntary medication and
treatment during Evans’s commitment.

DISCUSSION

¶14 Our review of the circuit court’s decision presents a mixed question
of law and fact. D.J.W., 391 Wis. 2d 231, ¶24. We will uphold a circuit court’s

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findings of fact unless they are clearly erroneous, but whether the facts satisfy the
statutory standard of dangerousness is a question of law that we review
independently. Id., ¶¶24-25.

¶15 Evans does not challenge any of the circuit court’s factual findings,
or its conclusions that: (1) she could not understand the advantages and
disadvantages of taking medication; and (2) there was a substantial probability
that, if left untreated, she would not avail herself of necessary services, and would
suffer severe mental, emotional, or physical harm that will result in the loss of
Evans’s ability to function independently in the community. Instead, she focuses
on what is purportedly missing from the court’s decision: an analysis of the
second exclusion in the fifth standard concerning protective placement or
protective services under WIS. STAT. ch. 55. See WIS. STAT. § 51.20(1)(a)2.e.

¶16 Our analysis starts with the language of the exclusion. WISCONSIN
STAT. § 51.20(1)(a)2.e. states that an individual does not have a substantial
probability of “suffering severe mental, emotional, or physical harm … if the
individual may be provided protective placement or protective services under
[WIS. STAT.] ch. 55.” The purpose of this exclusion is “to avoid commitment for
treatment if it is reasonably probable that … placement or services available under
WIS. STAT. ch. 55 will provide the needed treatment.” Dane County v. Kelly M.,
2011 WI App 69, ¶21, 333 Wis. 2d 719, 798 N.W.2d 697. In Kelly M., we
concluded that this exclusion is potentially applicable to a person already subject
to an order for protective placement or services under ch. 55 at the time
involuntary commitment is sought, and also to a person “who is not yet subject to
a ch. 55 order but who is eligible for one.” Id., ¶32.

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¶17 Evans concedes that she was not subject to a WIS. STAT. ch. 55 order
for protective placement or services when the County filed its petition. Instead,
she contends that she was eligible for such an order because her bipolar disorder
constitutes a “serious and persistent mental illness” for which protective placement
or services are available under ch. 55. See WIS. STAT. §§ 55.01(6v) (defining
“[s]erious and persistent mental illness”), 55.08(1)(c), and 55.08(2)(b). Thus,
Evans argues, in order to prove that she is “dangerous” under the fifth standard,
the County had to prove that protective services under ch. 55 could not reduce her
risk of harm to less than a substantial probability. In her view, because the County
did not prove that her needs “could not be met through less restrictive ch. 55
services, specifically a medication order under WIS. STAT. § 55.14,” the circuit
court’s orders must be reversed.

¶18 The County offers two responses to Evans’s argument. First, it
argues that the circuit court implicitly found the WIS. STAT. ch. 55 exclusion
inapplicable because it determined that Evans needed inpatient psychiatric
treatment, which the County argues is not available under ch. 55. Second, the
County contends that Evans does not meet all of the statutory requirements to be
eligible for protective placement or services under ch. 55. We agree with the
County’s second argument, and because it is sufficient to dispose of this appeal,
we need not address the first argument. See State v. Davis, 2021 WI App 65, ¶38
n.10, 399 Wis. 2d 354, 965 N.W.2d 84 (court of appeals need not address all
issues raised by parties when one issue is dispositive).

¶19 The WIS. STAT. ch. 55 exclusion did not apply to Evans for two
reasons. First, she did not meet at least one of the eligibility requirements for
protective placement or services under ch. 55. Eligibility for protective placement
or protective services is governed by WIS. STAT. § 55.06, which states in relevant

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part that “[p]rotective placement or protective services may be ordered under
[ch. 55] only for an individual who is adjudicated incompetent in this state … and
only if there is a finding of a need for protective placement under [WIS.
STAT. §] 55.08(1).” Sec. 55.06. Section 55.08(1), in turn, states that protective
placement may be ordered “for an individual who meets all of the following
standards”:

(a) The individual has a primary need for residential care
and custody.

(b) The individual is a minor who is not alleged to have a
developmental disability and on whose behalf a petition
for guardianship has been submitted, or is an adult who
has been determined to be incompetent by a circuit
court.

(c) As a result of developmental disability, degenerative
brain disorder, serious and persistent mental illness, or
other like incapacities, the individual is so totally
incapable of providing for his or her own care or
custody as to create a substantial risk of serious harm to
himself or herself or others. Serious harm may be
evidenced by overt acts or acts of omission.

(d) The individual has a disability that is permanent or
likely to be permanent.

Sec. 55.08(1)(a)-(d). The statute states further that protective services may be
ordered “for an individual who meets all of the following standards”:

(a) The individual has been determined to be incompetent
by a circuit court or is a minor who is alleged to have a
developmental disability and on whose behalf a petition
for a guardianship has been submitted.

(b) As a result of developmental disability, degenerative
brain disorder, serious and persistent mental illness, or
other like incapacities, the individual will incur a
substantial risk of physical harm or deterioration or will
present a substantial risk of physical harm to others if
protective services are not provided.

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Sec. 55.08(2)(a)-(b).

¶20 As WIS. STAT. §§ 55.06 and 55.08 make clear, an adult such as
Evans is eligible for protective placement or services only if she has been found
incompetent by a circuit court. Competency determinations are governed by WIS.
STAT. § 54.10(3)(a), which sets forth the circumstances under which a court may
appoint a guardian on the basis of incompetency. A person “who has been
adjudicated by a court as meeting the requirements of [§] 54.10(3),” is deemed
“incompetent.” WIS. STAT. § 54.01(16).

¶21 In its petition, the County wrote “n/a,” which we presume means
“not applicable,” in a box where it was to identify Evans’s “Parents or Guardian.”
This indicates that Evans did not, in fact, have a guardian when the petition was
filed. Evans does not dispute this point in her appellate briefs. Nor does she direct
us to any portion of the record in which she disputed the County’s assertion that
she did not have a guardian. Our own review of the evidentiary hearing transcript
reveals no mention of a guardian (or lack thereof).

¶22 That Evans did not have a guardian indicates that a circuit court had
not found her incompetent under WIS. STAT. § 54.10(3)(a). Again, Evans does not
argue otherwise in her briefs or direct us to anything in the record suggesting that
she had been found incompetent. Thus, Evans’s contention that the record shows
that she was “potentially eligible” for protective placement or services is
unsupported. The record contains nothing to suggest that Evans had already been
determined to be incompetent. For this reason, she did not meet at least one
eligibility requirement for protective placement or services under WIS. STAT.
§ 55.08.

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¶23 A second reason why the WIS. STAT. ch. 55 exclusion did not apply
to Evans concerns the treatability of her condition and the different purposes
served by involuntary commitments under WIS. STAT. ch. 51 and protective
placements and services under ch. 55. Our supreme court discussed this difference
in Fond du Lac County v. Helen E.F., 2012 WI 50, 340 Wis. 2d 500, 814 N.W.2d
179. In that case, the court explained that “ch. 55 was specifically tailored by the
legislature to provide for long-term care of individuals with incurable disorders,
while ch. 51 was designed to facilitate the treatment of mental illnesses suffered
by those capable of rehabilitation.” Helen E.F., 340 Wis. 2d 500, ¶13; see also
id., ¶21 (“Chapter 51 is designed to accommodate short-term commitment and
treatment of mentally ill individuals, while ch. 55 provides for long-term care for
individuals with disabilities that are permanent or likely to be permanent.”).

¶24 The testimony concerning Evans’s condition and proposed treatment
plan shows that WIS. STAT. ch. 51 offered the more appropriate mechanism for
treating her. Kohlenberg and Malinovic testified that Evans’s bipolar disorder was
treatable through medication and that she only needed to be committed for a short
time to ensure that she continued to take it and to allow it to reach therapeutic
effect. When asked directly if “there [were] any concerns that [Evans] is perhaps
not treatable,” Kohlenberg answered, “No.” No testimony or other evidence was
presented suggesting that Evans’s condition was untreatable or that she required
long-term care. Absent such evidence, we see no reason why the circuit court
could have found the WIS. STAT. ch. 55 exclusion applicable to Evans.

¶25 For these reasons, we conclude that when the circuit court found
Evans dangerous under the fifth standard, she was neither “subject to an order for
protective placement or services” under WIS. STAT. ch. 55 nor “eligible for one.”

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See Kelly M., 333 Wis. 2d 719, ¶32. Based upon this conclusion, the ch. 55
exclusion did not apply to her.

CONCLUSION

¶26 When a finding of dangerousness is made under the fifth standard, a
circuit court must consider whether an individual may be provided protective
placement or services under WIS. STAT. ch. 55 and whether such placement or
services will reduce the risk that the individual will suffer “severe mental,
emotional, or physical harm” to less than a substantial probability. WIS. STAT.
§ 51.20(1)(a)2.e. Here, the record shows that Evans was not eligible for protective
placement or services at the time she was found to be dangerous because she had
not previously been found incompetent and because her condition was treatable
and required only a short-term commitment. Accordingly, we affirm the order of
involuntary commitment and the order for involuntary medication and treatment.

By the Court.—Orders affirmed.

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

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