Rock Cnty. v. H.V. (In re Mental Commitment of H.V.)

• Decision Date: 13 January 2022
• Docket Number: 2021AP1760-FT
• Court: Wisconsin Court of Appeals
• Parties: In the matter of the mental commitment of H.V. Rock County, Petitioner-Respondent, v. H. V., Respondent-Appellant.

In the matter of the mental commitment of H.V.

Rock County, Petitioner-Respondent, v. H. V., Respondent-Appellant.

No. 2021AP1760-FT

Court of Appeals of Wisconsin, District IV

January 13, 2022

This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.

APPEAL from orders of the circuit court for Rock County No 2014ME98: JEFFREY KUGLITSCH, Judge.

NASHOLD, J.^[1]

¶1 H.V. appeals an order extending his Wis.Stat. ch. 51 commitment and an order for involuntary medication and treatment. H.V. argues that, under the plain error doctrine the orders should be reversed because the circuit court admitted unobjected-to hearsay testimony showing current dangerousness. He further argues that the evidence is insufficient to demonstrate dangerousness. I decline to invoke the plain error doctrine, and I conclude that the evidence supports recommitment. Accordingly, I affirm.

BACKGROUND

¶2 H.V. has been under continuous Wis.Stat. ch. 51 commitment since 2014. In January 2021, Rock County petitioned to extend H.V.'s commitment. The court held the extension hearing in February 2021. Dr. Leslie Taylor, the court-appointed examining psychiatrist, was the only witness; her report was also entered into evidence.

¶3 Taylor testified that H.V. declined to meet for an examination but that she had met with him about a year prior.^[2] For her 2021 report, Taylor reviewed records provided by the County; she also talked with one of H.V.'s providers and with his case manager.

¶4 Taylor testified that H.V. was diagnosed with schizophrenia in 2007 and that she had verified this diagnosis during their last meeting. She opined that schizophrenia remained an appropriate current diagnosis. Taylor testified that there did not appear to be "a change in [H.V.'s] status" since their last meeting, in that H.V. has "ongoing delusions that haven't responded much to various treatments." Specifically, H.V. "has various delusions about being either a lawyer or a doctor, or maybe both," and he "talks about [a female friend] and that he is owed … money, land, and a house."

¶5 Taylor testified that H.V.'s mental illness is treatable with psychotropic medication. She explained that H.V. is administered medication in an injectable form because there has "been an historic issue with compliance" "[w]hen he's not been on commitment, he's not been compliant with his medication." Relatedly, Taylor testified that H.V. would be a proper subject for commitment if treatment were withdrawn:

I think his treatment team and the records would suggest that [H.V.] doesn't believe that he needs medication and he has not hesitated to tell his treatment team that if he didn't have to take the medication, he wouldn't take it. So if the commitment were to be withdrawn, he would probably stop taking the medication and then his symptoms would get worse and he would become more paranoid and … the delusional thinking would become more intense. And what's happened in the past is that he's kind of acted on his delusional thinking. So that would be a significant risk to the community if he weren't receiving the treatment that at least kind of keeps his delusional thinking at a lower level.

The County then asked, "And in the past you noted he's acted on his delusional thinking. What does that entail?" Taylor responded, "[O]n February 23rd of 2016, he assaulted someone at a bar and he believed that the person was having sex with his ex-wife, and that was a delusion" (I refer to this evidence as "the 2016 assault testimony"). H.V.'s counsel did not object to this testimony.

¶6 Taylor opined that H.V.'s history supported recommitment under the "third standard" of dangerousness. See Wis. Stat. § 51.20(1)(a)2.c. (an individual is dangerous where he or she "[e]vidences such impaired judgment … that there is a substantial probability of physical impairment or injury to himself or herself or other individuals"). Taylor explained:

I think that [H.V.] does have impaired judgment and his impaired judgment in the past has led him to behave in a manner that he doesn't do wh[en] he's being treated such as, you know, acting on his delusional thinking. So injury to maybe others, sort of-again, acting on the paranoid ideas that others are potentially out to get him or to harm him or harm people he cares about.

¶7 Taylor further testified about why H.V. was incompetent to refuse medication and treatment. As part of this testimony, Taylor reiterated that H.V. "doesn't see any need to be on medication" "because he denies that he has a mental illness."

¶8 Taylor summarized her opinion on recommitment as follows:

So my opinion is that it is clear to me, I guess my professional opinion, that if he's not on a commitment, he'll stop his meds. Even though he is compliant with his injection and he … meets with his case manager, if the commitment is gone, he won't do those things. And then he'll become more ill, and there will be a repeat of kind of what happened that got him the legal charges. Or maybe not exactly that sort of thing, but just sort of acting on the paranoid delusions.

Taylor explained that it was "absolutely not" her "professional opinion that everyone who comes to [her] for a review of their commitment needs to continue on a commitment." Rather, she stated, "I review every case individually, and when people can sort of share some insight and some commitment to treatment, it's hard to recommend that the extension be continued." H.V., however, "has not shown that insight or commitment."

¶9 Finally, the circuit court asked Taylor, "[W]hat's the likelihood if treatment were withdrawn that [H.V. would become dangerous]?" Taylor responded:

I think 100 percent likelihood. I mean not necessarily within a day or two or a month of treatment being withdrawn, but eventually I would guess that [H.V.] would engage in the behaviors that would lead him to … have to be hospitalized again.

….

And … one of the reasons I say that is because even with treatment he still sort of … has ongoing delusional thinking, and that's always a little bit risky if people have a history of acting on the delusional thinking. Then there's a very strong likelihood that that would happen again.

¶10 The circuit court determined that H.V. met the standard for recommitment. It noted that it "doesn't like to" continue "commitment year after year"; however, "the court has to rely on the examining physicians here to make a determination as to whether it's appropriate or not." The court found "telling" H.V.'s "statements that he's made to his treatment team-a treatment team he works very well with-that if the commitment stops, he stops taking the medication." The court explained further:

[T]he court's had [H.V.] in court before [and he] has consistently indicated he doesn't have a mental illness. I don't think there's any doubt [that] he lacks insight into the mental illness that he does have. But the fact that he continues to say he's going to stop taking his medications is concerning to the court. In previous times, when he was off his medications … the last incident that we have is the 2016 incident where he got into the fight at the bar, believing the patron was having sex with his ex-wife, which was a delusion and caused injury.

… [A]s such, there's dangerousness there…. [Defense counsel was] surprised by Dr. Taylor's response [on the likelihood of recommitment]. So was the court. I did not expect to hear 100 percent likelihood if treatment were withdrawn…. [B]ut there's no doubt in Dr. Taylor's mind that if treatment were withdrawn, [H.V.] is going to do something that's going to be causing potential injury to himself or to somebody else. The fact that she opines that, whether it's realistic or not, the fact that she's got such a belief to even make that statement is concerning to the court.

¶11 In line with Taylor's testimony, the circuit court determined that H.V. was dangerous under Wis.Stat. § 51.20(1)(a)2.c. The court noted, "[J]ust the fact that when he's gone off his medication and hurt others, puts the second standard in play as well." See § 51.20(1)(a)2.b. (under the "second standard," an individual is dangerous where he or she "[e]vidences a substantial probability of harm to other individuals"). The court entered an order extending H.V.'s commitment to outpatient care for twelve months. It further determined that H.V. was incompetent to refuse medication and treatment and, accordingly, entered a corresponding order for involuntary medication and treatment. H.V. appeals.^[3]

GENERAL LEGAL PRINCIPLES AND STANDARDS OF REVIEW

¶12 A county initiating a Wis.Stat. ch. 51 involuntary commitment must prove, by clear and convincing evidence, that the subject individual is: (1) mentally ill; (2) a proper subject for treatment; and (3) dangerous under one of five statutory standards set forth in Wis.Stat. § 51.20(1)(a)2.a.-e Portage County v. J.W.K., 2019 WI 54, ¶17, 386 Wis.2d 672, 927 N.W.2d 509; § 51.20(1)(a), (13)(e). Pursuant to subd. para. 2.c., the standard at issue here, ^[4] an individual is dangerous where he or she "[e]vidences such impaired judgment, manifested by evidence of a pattern of recent acts or omission, that there is a substantial probability of physical impairment or injury to himself or herself or other individuals." However, "[t]he probability of physical impairment or injury is not substantial under [subd. para. 2.c.] if reasonable provision for the subject individual's protection is available in the community and there is a reasonable probability that the individual will avail himself or herself of these services." Id.

¶13 An extension proceeding requires proof of the same three elements, "except that instead of proving dangerousness under [Wis. Stat.] § 51.20(1)(a)2.a.-e., the county...