Winnebago Cnty. v. D.S. (In re D.S.)

• Docket Number: 2023AP1484
• Decision Date: 24 January 2024
• Parties: In the Matter of the Condition of D.S. v. D.S., Respondent-Appellant. Winnebago County, Petitioner-Respondent,
• Court: Wisconsin Court of Appeals

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In the Matter of the Condition of D.S.

Winnebago County, Petitioner-Respondent,
v.
D.S., Respondent-Appellant.

No. 2023AP1484

Court of Appeals of Wisconsin, District II

January 24, 2024

This opinion will not be published.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

APPEAL from orders of the circuit court for Winnebago County No. 2022ME134 MICHAEL S. GIBBS, Judge. Affirmed.

NEUBAUER, J. ^[1]

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¶1 D.S., referred to herein by the pseudonym Dennis, appeals from orders extending his involuntary commitment for twelve months and allowing Winnebago County to involuntarily medicate and treat him during the extension period. Dennis argues the County failed to prove dangerousness by clear and convincing evidence and that the circuit court failed to make sufficient factual findings to support a conclusion of dangerousness. For the reasons that follow, this court affirms.

Statutory Background

¶2 An individual may be involuntarily committed upon clear and convincing evidence that he or she is mentally ill, a proper candidate for treatment, and dangerous. WIS. STAT. § 51.20(1)(a)l.-2., (13)(e). An involuntary commitment may be extended for up to twelve months upon proof of "the same elements necessary for the initial commitment by clear and convincing evidence- that the patient 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, ¶31, 391 Wis.2d 231, 942 N.W.2d 277. To extend a commitment, the County must prove that the individual is currently dangerous; proof of past dangerousness will not suffice. Id., ¶34. In this appeal, Dennis challenges the County's proof only on the element of dangerousness.

¶3 WISCONSIN Stat. § 51.20(1)(a)2. sets forth five standards under which the County may establish dangerousness. In this case, the County sought to extend Dennis's commitment by establishing dangerousness under the fifth

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standard, § 51.20(1)(a)2.e.^[2] The fifth standard is a lengthy provision that, in this case, required the County to prove the following:

(1) the advantages, disadvantages, and alternatives to a particular medication or treatment were explained to Dennis

(2) Dennis's mental illness makes him either (a) incapable "of expressing an understanding of the advantages and disadvantages of accepting medication or treatment and the alternatives" or (b) substantially incapable "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";

(3) Dennis shows "a substantial probability" that he "needs care or treatment to prevent further disability or deterioration," based upon his "treatment history and his ... recent acts or omissions";

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(4) Dennis evidences "a substantial probability that he ... will ... lack services necessary for his ... health or safety" if he is left untreated; and

(5) Dennis evidences "a substantial probability that he ... will ... suffer severe mental, emotional, or physical harm" if left untreated, resulting in the loss of either his "ability to function independently in the community" or "cognitive or volitional control over his ... thoughts or actions."

See id; State v. Dennis H., 2002 WI 104, ¶¶19, 21-24, 255 Wis.2d 359, 647 N.W.2d851.

¶4 An individual who receives treatment immediately before an extension is sought may not behave in a manner that demonstrates current dangerousness. For such individuals, WIS. STAT. § 51.20(1)(am) provides an alternative way to establish dangerousness: in lieu of recent acts or omissions, the County may instead prove "that there is a substantial likelihood, based on the subject individual's treatment record, that the individual would be a proper subject for commitment if treatment were withdrawn." The County opted to seek an extension using this "alternative evidentiary path." See Portage County v. J. W.K., 2019 WI 54, ¶19, 386 Wis.2d 672, 927 N.W.2d 509.

Sufficiency of Evidence on Dangerousness

¶5 At the extension hearing, the County's evidence consisted of testimony from Dr. Michael Vicente, Dennis's treating psychiatrist, and Vicente's report of his examination of Dennis, which the circuit court received into evidence over Dennis's objection. Whether that evidence was sufficient to satisfy the statutory standard for dangerousness is a legal question that this court reviews independently of the circuit court. See D.J. W., 391 Wis.2d 231, ¶47.

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¶6 Based upon his examination and observations of Dennis and review of Dennis's treatment records, Vicente testified that Dennis met the three requirements for recommitment. First, he testified that Dennis suffers from schizophrenia, a "substantial disorder" that "grossly impairs his judgment, behavior, and capacity to recognize reality." In his report, Vicente wrote that Dennis had "[c]omplained of auditory hallucinations ('influences') that gave him messages and directions." At the hearing, Vicente testified that Dennis "had stated that he feared for his own safety because whether it was the military, or Germans, or other things that the influences informed him that they would do things, such as set him on fire and other harmful things."

¶7 Second, Vicente confirmed that Dennis is a proper subject for treatment.

¶8 Third, Vicente opined that Dennis is dangerous under the fifth standard. Vicente also addressed the WIS. STAT. § 51.20(1)(am) alternative, agreeing that Dennis would become a proper subject for treatment if treatment were withdrawn based on his prior history. In the past, Vicente explained, Dennis stopped treatment when prior commitment orders expired and thereafter "start[ed] displaying some of the symptoms, such as ... believ[ing] that his influences were telling him to go to other homes because they belonged to him even though they belonged to other people. He would look inside their windows." In his report, Vicente cited two instances in which Dennis had been involuntarily committed after attempting to break into houses "because he believed either German nationals resided there or it was the property of Germany." Nine months after the second of these commitments expired, Vicente wrote, Dennis was again detained after "scar[ing] his neighbors by showing up on their property [and] staring through their windows," telling the neighbors "that he believed their home was the

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property of Germany." According to Vicente's report, a temporary restraining order was entered against Dennis but he continued to trespass on the neighbors' property. Vicente agreed that Dennis "would be dangerous if treatment were withdrawn."

¶9 Turning to the elements for dangerousness under the fifth standard, Vicente confirmed that he had explained the advantages (decrease in impulsivity and other symptoms), disadvantages ("muscle movements, dry mouth, dizziness, tiredness, [and] some weight changes"), and alternatives (other medications, counseling) to the medication Dennis had been taking and which Vicente recommended he be required to continue taking. Next, when asked if Dennis is capable "of expressing an understanding of the advantages, disadvantages, and alternatives of accepting medication," Vicente testified that "[h]e is not." On this point, Vicente wrote in his report that Dennis lacks "insight into how the psychosis influences his thinking and behavior."

¶10 Vicente was also asked if he believed that Dennis "evidences ... a substantial probability that, if left untreated, he would lack services necessary for his health and safety that could result in the loss of his ability to function independently in the community." In response, he stated that Dennis's "actions, due to the influences, put him in dangerous situations, such as going to someone's house and trying to enter it, believing it's his." Vicente testified that medication "seems to have improved" Dennis's problematic behavior prompted by his delusions, but that the delusions themselves "are ongoing." Vicente also testified that Dennis does not believe he is mentally ill or needs medication. In his report, Vicente wrote that Dennis had reported his intention to "discontinue medications once his court order has ended." In a section of his report regarding information relevant to the issue of dangerousness, Vicente wrote:

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[Dennis] recently reported that "the military" told him to go to a nearby home that belonged to him. He also believed the military was looking to hurt him. He does not believe he suffers from a mental illness, and he would stop all treatment if not on commitment (as he has done in the past).

¶11 Dennis contends that the County presented little other than "Vicente's conclusory testimony" to establish the elements for dangerousness under...