Winnebago County v. A.P.D.

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.
December 13, 2023
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2023AP863 Cir. Ct. No. 2022ME422

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

IN THE MATTER OF THE MENTAL COMMITMENT OF A.P.D.:

WINNEBAGO COUNTY,

PETITIONER-RESPONDENT,

V.

A.P.D.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Winnebago County:
SCOTT C. WOLDT, Judge. Reversed.
No. 2023AP863

¶1 LAZAR, J.1 Andrew2 appeals from orders for extension of his
commitment under WIS. STAT. § 51.20(1)(am) and for the involuntary
administration of medication and treatment under WIS. STAT. § 51.61(1)(g).
Andrew asserts that Winnebago County failed to introduce sufficient evidence to
establish that he suffered from a mental illness. He further asserts that, contrary to
Langlade County v. D.J.W., 2020 WI 41, ¶59, 391 Wis. 2d 231, 942 N.W.2d 277,
the trial court failed to make specific factual findings of dangerousness under
§ 51.20(1)(a)2.e. And, finally, Andrew asserts that the order for involuntary
administration of medication and treatment was not based upon sufficient
evidence. Thus, he contends, both orders must be reversed. The County refutes
each point.

¶2 This court concludes that the County did introduce sufficient
evidence to prove, by clear and convincing evidence, that Andrew was mentally
ill. With respect to the second issue, however, this court agrees that the trial court
did not make specific factual findings that Andrew was dangerous, and of more
concern, failed to find that “because of” Andrew’s mental illness he was either
incapable of expressing or applying an understanding the advantages and
disadvantages of medication to treat his mental illness. See WIS. STAT.
§ 51.20(1)(a)2.e. Because the recommitment order is reversed, the corresponding
order for involuntary medication and treatment cannot stand. Both orders are of
necessity reversed.

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(d) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
2
This court refers to the subject individual by a pseudonym to protect his confidentiality.
See WIS. STAT. RULE 809.19(1)(g).

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No. 2023AP863

BACKGROUND

¶3 The County filed a petition for recommitment of and involuntary
medication and treatment for Andrew pursuant to WIS. STAT. ch. 51. Andrew’s
initial commitment began in 2021; his 2022 recommitment was affirmed by this
court in Winnebago County v. A.P.D., No. 2022AP817, unpublished slip op. (WI
App Nov. 16, 2022), review denied (WI Feb. 21, 2023) (No. 2022AP817). The
petition for 2023 giving rise to this appeal alleged that Andrew was mentally ill
and a proper subject for treatment and that he was dangerous under the standard
articulated in WIS. STAT. § 51.20(1)(a)2.e. (“the fifth standard”). The trial court
conducted a hearing on this petition on January 10, 2023.

¶4 At the hearing, the sole witness was Dr. George Monese, a
psychiatrist at the Wisconsin Resource Center3 who had been Andrew’s treating
psychiatrist for almost two years. Monese testified that Andrew had a “major
mood disorder, i.e. bipolar disorder,” which is a clinically recognized mental
illness and which “grossly impair[s] [Andrew’s] judgment, behavior, [and]
capacity to recognize reality.” He further testified that Andrew would become a
proper subject for commitment if treatment were withdrawn and that Andrew was
“incompetent” to make treatment decisions and refuse medication because “he
lacks insight on a number of domains.” Monese explained that Andrew “does not
believe that he has [a] serious mental illness” or other medical conditions—

3
The Wisconsin Resource Center is “a correctional institution that provides
psychological evaluations, specialized learning programs, training and supervision for inmates
whose behavior presents a serious problem to themselves or others in state prisons.” WIS. STAT.
§ 46.056.

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No. 2023AP863

including metabolic syndrome and extremely low levels of vitamin D—and that he
“refuses treatment for all of those.”

¶5 Finally, Monese testified regarding dangerousness under the fifth
standard, which may be found if the subject 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 … 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.

WIS. STAT. § 51.20(1)(a)2.e. Monese agreed that Andrew’s mental health was
“having an impact on his ability to make decisions regarding … [his willingness]
to accept treatment for [his] various different medical ailments” and that there was
“a substantial probability that if left untreated, [Andrew] would lack the services
necessary for his health or safety” and that he would “suffer severe mental,
emotional, or physical harm, resulting in the loss of his ability to function
independently within the community.”

¶6 The trial court determined that the County met its burden of proof to
show the requirements for recommitment and involuntary medication, making its
oral ruling as follows:

I think [the County] has met [its] burden of proof in this
matter under the [fifth] standard. Clearly—or the only
testimony we have, which the Court finds to be credible, is
that of Dr. Monese, who indicates that [Andrew] is
suffering from bipolar disorder, which is a substantial

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No. 2023AP863

disorder of thought, mood, and perception, which grossly
impairs his judgment, behavior, and ability to recognize
reality when not under treatment; that if treatment were
withdrawn, he would once again become a proper subject
for commitment; that he doesn’t have a proper
understanding of the advantages and disadvantages of
medication, which do have a therapeutic value and would
not impair his ability to participate in future legal
proceedings.

I find that he’s a proper subject for treatment and that he
does not, as I said, understand the advantages and
disadvantages of medication, and therefore, issue a
medication order. I find that the least-restrictive placement
at this point would be outpatient at WRC.

The court extended Andrew’s commitment for an additional year and entered an
order for the involuntary administration of medication and treatment. Both orders
expire in January, 2024.

¶7 Andrew appeals, arguing that the County failed to show that he
suffered from a mental illness and failed to introduce sufficient evidence (and the
court failed to make specific factual findings) that he was dangerous under the
fifth standard.

DISCUSSION

¶8 Civil commitments require the petitioner (the County)4 to establish
by clear and convincing evidence that the subject individual is mentally ill, a
proper subject for treatment, and dangerous to him/herself or others under at least
one of five statutory standards. D.J.W., 391 Wis. 2d 231, ¶29; WIS. STAT.
§ 51.20(1)(a)1.-2., (13)(e). This is especially critical because “[i]t may be true that

4
Under WIS. STAT. ch. 51, county governments are given “primary responsibility for the
well-being, treatment and care of the mentally ill.” WIS. STAT. § 51.42(1)(b).

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No. 2023AP863

an erroneous commitment is sometimes as undesirable as an erroneous
conviction.” Addington v. Texas, 441 U.S. 418, 428 (1979). “An individual’s
right to refuse unwanted medical treatment ‘emanates from the common law right
of self-determination and informed consent, the personal liberties protected by the
Fourteenth Amendment, and from the guarantee of liberty in Article I, [S]ection 1
of the Wisconsin Constitution.’” Outagamie County v. Melanie L., 2013 WI 67,
¶42, 349 Wis. 2d 148, 833 N.W.2d 607 (alteration in original) (quoting Lenz v.
L.E. Phillips Career Dev. Ctr., 167 Wis. 2d 53, 67, 482 N.W.2d 60 (1992)). Upon
petition, a trial court may extend a commitment for up to one year.
Sec. 51.20(13)(g)1.; D.J.W., 391 Wis. 2d 231, ¶31. The petitioner, in a
recommitment, must still establish dangerousness under the statute. Sauk County
v. S.A.M., 2022 WI 46, ¶5, 402 Wis. 2d 379, 975 N.W.2d 162; see also D.J.W.,
391 Wis. 2d 231, ¶34.

¶9 Andrew was found to be mentally ill, treatable, and dangerous under
the fifth standard. This complex and detailed statutory standard requires the
petitioner to establish five elements. First, that the individual is not only mentally
ill under WIS. STAT. § 51.01(13)(b),5 but that there is “proof of a substantial
probability of something more than impairment.” State v. Dennis H., 2002 WI
104, ¶20, 255 Wis. 2d 359, 647 N.W.2d 851. The statute requires “proof of a
substantial probability of a ‘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. (quoting WIS. STAT. § 51.20(1)(a)2.e.).

5
WISCONSIN STAT. § 51.01(13)(b) defines mental illness as “a substantial disorder of
thought, mood, perception, orientation, or memory which grossly impairs judgment, behavior,
capacity to recognize reality, or ability to meet the ordinary demands of life, but does not include
alcoholism.”

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No. 2023AP863

¶10 Our supreme court in Dennis H. summarized the remaining four
elements of the fifth standard as follows:

Second, the person who is the subject of the
commitment petition must be incompetent to make
medication or treatment decisions, or, more specifically,
must be unable, “because of mental illness,” to make “an
informed choice as to whether to accept or refuse
medication or treatment.” WIS. STAT. § 51.20(1)(a)2.e.
This must be evidenced either by an “incapability of
expressing an understanding of the advantages and
disadvantages of accepting medication or treatment and the
alternatives,” or by a “substantial incapability of applying
an understanding of the advantages, disadvantages, and
alternatives to his or her mental illness.” Id. This must
occur “after the advantages and disadvantages of and
alternatives to accepting a particular medication or
treatment have been explained to him or her.” Id.

Third, the person must show a “substantial probability”
that he or she “needs care or treatment to prevent further
disability or deterioration.” Id. This must be
“demonstrated by both the individual’s treatment history
and his or her recent acts or omissions.” Id.

Fourth, the person must evidence a “substantial
probability that he or she will, if left untreated, lack
services necessary for his or her health or safety.” Id.

Fifth, the person must evidence “a substantial
probability that he or she will, if left untreated, ... 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.

Dennis H., 255 Wis. 2d 359, ¶¶21-24 (alteration in original).

¶11 The review of a recommitment order—determining whether the
petitioner has met the burden of proof—presents a mixed question of law and fact.
Waukesha County v. J.W.J., 2017 WI 57, ¶15, 375 Wis. 2d 542, 895 N.W.2d 783.
A trial court’s findings of fact are upheld unless they are clearly erroneous, id.,
and an appellate court will “accept reasonable inferences from the facts.”

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No. 2023AP863

Winnebago County v. Christopher S., 2016 WI 1, ¶50, 366 Wis. 2d 1, 878
N.W.2d 109 (citation omitted). An appellate court may search the record for
evidence to support the trial court’s findings of fact. Becker v. Zoschke, 76
Wis. 2d 336, 347, 251 N.W.2d 431 (1977). Whether those facts satisfy the
statutory standards, however, is a question of law that is reviewed de novo.
Marathon County v. D.K., 2020 WI 8, ¶18, 390 Wis. 2d 50, 937 N.W.2d 901.

¶12 Andrew asserts that the County failed to establish that he was
mentally ill—both for the general purpose of an involuntary commitment and
under the fifth standard. He also asserts, among other arguments, that the County
failed to introduce sufficient evidence and the trial court failed to make the
required specific factual findings with respect to dangerousness. This court
disagrees with the first argument, but concludes that Andrew is correct on the
second. There is, thus, no need to address his other arguments.

I. Andrew’s mental illness was proven by the County.

¶13 As in his prior appeal,6 Andrew argues that there is insufficient
evidence to show that he suffered from a mental illness; rather, he asserts the only
evidence was “Dr. Monese’s conclusory statement that [Andrew]’s ‘diagnosis is
bipolar disorder, most recent episode severely depressed.’” This court disagrees.

¶14 Again, as in the prior appeal, Andrew did not raise this challenge to
his mental illness at his trial. In fact, his counsel’s sole argument to the trial court
consisted of three sentences focusing on whether there was a full treatment plan
for Andrew’s needs. A party may not raise issues for the first time on appeal. See

6
See Winnebago County v. A.P.D., No. 2022AP817, unpublished slip op. ¶10 (WI App
Nov. 16, 2022), review denied (WI Feb. 21, 2023) (No. 2022AP817).

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No. 2023AP863

State v. Mercado, 2021 WI 2, ¶35, 395 Wis. 2d 296, 953 N.W.2d 337 (recognizing
that appellate courts discourage attorneys from “sandbagging” the other side by
not raising an issue before the trial court and then “alleging reversible error upon
review.”). For this reason, this court could conclude this issue without further
discussion.

¶15 On the merits of this argument, however, it is clear that the trial
court considered the testimony of Dr. Monese sufficient proof that Andrew
suffered from a mental illness. Despite the fact that the County failed to introduce
Dr. Monese’s report into the record,7 the trial court questioned the physician
directly and concluded that his testimony was credible. Clearly, courts are not
medical providers or physicians; instead they are required to rely on medical
professionals’ testimony on questions of medical expertise. This applies in mental
commitment cases because “[w]hether a person is mentally ill is a medical
judgment, made by applying the definition of mental illness in WIS. STAT.
§ 51.01(13)(b).” Dennis H., 255 Wis. 2d 359, ¶19 (emphasis added; citation
omitted).

¶16 Here, the trial court, exercising its discretion, listened to the
testimony of Dr. Monese, heard the arguments of counsel (none of which
addressed mental illness), found Dr. Monese’s diagnosis to be credible, and
reasonably concluded that Andrew did suffer from a mental illness both sufficient
to warrant an involuntary commitment and to satisfy the first element of the fifth
standard. There is nothing in the Record to indicate that this conclusion was

7
As a general practice, any reports referenced during the trial testimony should be
admitted into the record so that the appellate courts may review them. As noted in the next
section, failure to do so prevents this court from discerning a basis upon which to support the trial
court’s findings.

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No. 2023AP863

clearly erroneous, thus, the finding of mental illness is not overturned. See State v.
Thiel, 2003 WI 111, ¶23, 264 Wis. 2d 571, 665 N.W.2d 305.

II. Specific factual findings were not made by the trial court.

¶17 The fifth standard allows the County “to intervene with care and
treatment before the deterioration [of an individual in need] reaches an acute stage,
thereby preventing the otherwise substantially probable and harmful loss of ability
to function independently or loss of cognitive or volitional control.” Dennis H.,
255 Wis. 2d 359, ¶33. This court is cognizant of the idiosyncrasies that surround
involuntary commitment proceedings: they take place at a rapid pace, leaving trial
courts with little time to rule; they concern extremely vulnerable individuals who
most often do not recognize the danger to their personal safety or that of the
community writ large; and they carry the awesome power to severely curtail an
individual’s liberty and personal rights. To add into that mix rules that trial courts
must use “magic words”8 or recite voluminous statements of fact would not be
appropriate. Our supreme court, balancing all of the important and sometimes
competing interests present in commitment proceedings, determined that trial
courts must still do more than merely repeat the statutory language.9 See D.J.W.,
391 Wis. 2d 231, ¶40.

8
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.”).
9
The County contends that Langlade County v. D.J.W.’s holding is more akin to a
“directive” that can be set aside if the trial court merely identifies, in some form or fashion, the
statutory standard of dangerousness that it is relying upon for a commitment or recommitment.
That belies the requirement our supreme court set out in D.J.W. 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.” Langlade County v. D.J.W., 2020 WI 41, ¶40, 391 Wis. 2d 231, 942
N.W.2d 277 (emphasis added).

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No. 2023AP863

¶18 The key to this issue on appeal is an analysis of whether the trial
court made “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, ¶40. The D.J.W. court set out the rationale underlying this
requirement. “First, it provides clarity and extra protection to patients regarding
the underlying basis for a recommitment.” Id., ¶42. Civil commitments are
significant curtailments of an individual’s personal liberty and they can carry with
them an additional deprivation of personal autonomy when accompanied with an
involuntary medication and treatment order.

¶19 Second, as the D.J.W. court elaborated:

a requirement of specific factual findings ... will clarify
issues raised on appeal of recommitment orders and ensure
the soundness of judicial decision making, specifically with
regard to challenges based on the sufficiency of the
evidence. See Klinger v. Oneida [County], 149 Wis. 2d
838, 846-47, 440 N.W.2d 348 (1989) (“[A]s this court has
stated many times, the [trial] court must make a record of
its reasoning to ensure the soundness of its own decision
making and to facilitate judicial review.”). A more
substantial record will better equip appellate courts to do
their job, further ensuring meaningful appellate review of
the evidence presented in recommitment proceedings.

D.J.W., 391 Wis. 2d 231, ¶44 (second alteration in original).

¶20 The trial court’s findings were not bare bones; there were no bones
mentioned at all.10 This is problematic, but could have been ameliorated had the
County moved Monese’s report into the Record so this court could have possibly

10
The County’s reliance on the persuasive value of Rock County v. J.J.K.,
No. 2020AP1085, unpublished slip op. (WI App Apr. 29, 2021) is misplaced. In Andrew’s case,
the trial court did not fail to identify the dangerousness paragraph in the statute that it relied upon,
but rather it failed to link any facts to the paragraph identified.

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No. 2023AP863

discerned further bases supporting the trial court’s ruling. Or, the County—
realizing that the trial court’s findings were not specific and did not more fully
incorporate Monese’s testimony—could have requested a more specific ruling
from the trial court.11 It did neither. That leaves this court with a ruling and
Record that are bereft of the requisite facts.

¶21 In addition, the trial court’s silence as to conclusions regarding
whether Andrew was “incapable” of applying or expressing an understanding of
his mental illness and treatment needs and whether such incapability was because
of his mental illness mandates reversal. The trial court held only that Andrew
“doesn’t have a proper understanding of the advantages and disadvantages of
medication.” This was not sufficient given D.J.W.’s express requirement for
specific factual findings.12

¶22 Pursuant to WIS. STAT. § 51.20(7)(c), and in order to facilitate
prompt resolutions in civil commitments, there are strict, quick deadlines for a
final hearing or jury trial on a petition for involuntary commitment. See State ex
rel. Lockman v. Gerhardstein, 107 Wis. 2d 325, 328-29, 320 N.W.2d 27 (Ct.
App. 1982). Those deadlines have long since passed and, due to its failure to
comply with D.J.W. with respect to dangerousness specificity, the trial court now

11
This court also recognizes that it may be difficult for counsel to respectfully seek
additional findings, but notes that counsel could, first, elicit more detailed testimony from its
witnesses. Moreover, trial courts truly want to make proper, detailed rulings that withstand
appellate scrutiny and most will look favorably upon counsel’s attempts to assist in that regard.
12
The County also contends that a failure to make specific factual findings per D.J.W. is
harmless error and that Andrew’s “substantial rights were not affected by the [trial] court[’]s
failure to recite how specific facts applied to each element of the [fifth] standard when [the trial
court] had just listened to all the uncontroverted testimony of the expert, found the expert to be
credible and adopted the expert’s opinion in its entirety.” If this were correct, D.J.W. would be
gutted because a trial court could summarily say “ditto” and commit an individual for up to one
year.

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No. 2023AP863

lacks competency to conduct another evidentiary hearing in this matter. “Unlike a
[trial] court’s subject matter jurisdiction, which is established by the Wisconsin
Constitution, competency may be affected by noncompliance with statutory
requirements pertaining to the invocation of that jurisdiction in individual cases.”
Sheboygan County v. M.W., 2022 WI 40, ¶35, 402 Wis. 2d 1, 974 N.W.2d 733
(footnote omitted). Therefore, remand is not a possibility and “outright reversal is
the appropriate remedy.” Id., ¶34. Because the commitment order is reversed, the
order for involuntary administration of medication and treatment must also be
reversed since it can only exist if there is a valid commitment. See WIS. STAT.
§ 51.61(1)(g)3.

¶23 This court, having concluded that there were errors that warrant
reversal, need not address the remaining arguments13 on appeal. Lakeland Area
Prop. Owners Ass’n, U.A. v. Oneida County, 2021 WI App 19, ¶17, 396 Wis. 2d
622, 957 N.W.2d 605 ([W]e need not address all arguments raised by the parties if
one of those arguments is dispositive.”).

CONCLUSION

¶24 For the foregoing reasons, this court must reverse the trial court’s
order recommitting Andrew. Because that commitment order is reversed, the
corresponding order for involuntary administration of medication and treatment is
also reversed.

13
For instance, the County’s forfeiture argument is defeated by WIS. STAT. § 805.17(4)
that allows challenges to the sufficiency of evidence on appeal even if not first raised before the
trial court. See also State v. Hayes, 2004 WI 80, ¶54, 273 Wis. 2d 1, 681 N.W.2d 203.

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No. 2023AP863

By the Court.—Orders reversed.

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

14