Winnebago Cnty. v. T.M.G. (In re Mental Commitment of T.M.G.)

• Docket Number: 2023AP1283
• Decision Date: 24 January 2024
• Parties: In the matter of the mental commitment of T.M.G.: v. T.M.G., Respondent-Appellant. Winnebago County, Petitioner-Respondent,
• Court: Wisconsin Court of Appeals

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In the matter of the mental commitment of T.M.G.:

Winnebago County, Petitioner-Respondent,
v.
T.M.G., Respondent-Appellant.

No. 2023AP1283

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This opinion will not be published.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. 2022ME375 MICHAEL S. GIBBS, Judge.

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LAZAR, J. ^[1]

¶1 Thomas^[2] appeals from orders for extension of his commitment under WIS. STAT. § 51.20(1)(a) and for the involuntary administration of medication under WIS. STAT. § 51.61(1)(g). Thomas asserts, among other things, that Winnebago County failed to introduce sufficient evidence to establish the statutorily required finding of dangerousness necessary for recommitment, that the trial court failed to make the necessary factual findings to order involuntary administration of medication and treatment, and that there was insufficient evidence to determine that the required explanation about medication and treatment was given to him. Thus, he contends, both orders must be reversed. The County refutes each point and, in addition, argues that Thomas's appeal is moot. This court concludes that the County did introduce sufficient evidence to prove, by clear and convincing evidence, that Thomas was dangerous under § 51.20(1)(a)2.b. and that the statutory requirements of § 51.61(1)(g) were met. Both orders are therefore affirmed.

BACKGROUND

¶2 The County filed a petition for a year-long recommitment of Thomas and for involuntary medication and treatment pursuant to WIS. STAT. ch. 51. The County alleged that Thomas was mentally ill, a proper subject for treatment, and dangerous under the standards articulated in WIS. STAT. § 51.20(1)(a)2.b. and e. ("the second standard," relating to danger to others, and "the fifth standard," relating to inability to apply an understanding of advantages and disadvantages of

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treatment and to provide for one's own health or safety). The trial court conducted a hearing on this petition over two days, on November 22, 2022 and December 2, 2022.

¶3 At the hearing, the County's first witness was Dr. George Monese, a staff psychiatrist at the Wisconsin Resource Center^[3] (WRC) who had been Thomas's treating psychiatrist since around 2016. Monese testified that Thomas had schizoaffective disorder, a clinically recognized mental illness that "grossly impair[s] [Thomas's] judgment, behavior, [and] capacity to recognize reality." He further testified that Thomas had a "very long history of violence" and elaborated that recent examples (both of which Thomas told Monese about) included throwing feces or urine at a prison officer he believed was trying to harm him in March 2022 and sending an unidentified white powder in a letter to a court in September 2022. Monese agreed that this behavior was driven by Thomas's mental illness and that, if treatment were withdrawn, he believed Thomas would become a proper subject for commitment. Monese also testified that Thomas was "incompetent" to make treatment decisions and refuse medication because "[h]e's unable to understand that he has a mental illness" and has shown that he needs treatment by, among other things, "refusing] to go for appointments" with mental health providers and other medical providers such as an orthopedic surgeon to help with a severe knee problem. Finally, Monese testified that Thomas was unable to understand the advantages, disadvantages, and alternatives to medications and treatment, which had been explained to him. In particular, Monese suggested that

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"a long-acting injectable, like Invega," would have therapeutic value for Thomas. Due to a sustained hearsay objection and the trial court's opinion that "Monese certainly did testify sufficiently as to the contents of the report itself," Monese's report was not admitted into the Record.

¶4 The County's second and final witness was Deputy Stacey Bahr with the United States Marshal Service. Bahr was assigned to investigate letters sent to a federal courthouse with Thomas's name and information in the return address. She testified that the FBI came to investigate the white powder coming out of these letters and that the letters were, indeed, treated as threatening because an "unknown substance ... getting into the ventilation system or anything like that is a cause for concern." On cross examination, Bahr stated that she could not testify as to what the white substance was.

¶5 Thomas testified on his own behalf. He made multiple references to Monese and other state or county personnel trying to kill him. On cross examination, he stated that he did not recall throwing feces at a WRC staff member's face.

¶6 The trial court found that Thomas was "currently suffering from a major mental illness, that being schizoaffective disorder" and that he was a proper subject for treatment based on "testimony that he's getting better." The court determined that the County met its burden of proof to show the requirements for recommitment under both the second and fifth standards of dangerousness and for involuntary medication, noting in its oral ruling that there had been "evidence[ ] of substantial probability of physical harm to others, individuals" and "recent homicidal or violent behavior" as related by Monese. The court further stated that "[w]hen one sends white powder to a federal courthouse, it is certainly a threat by

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today's standards as well as with respect to the E standard." With respect to medication, the court noted the testimony that Thomas was "unable to understand the advantages, disadvantages, and alternatives for the particular medication or treatment [that] has been explained to him" and found that "[h]e was unable to apply an understanding to his condition."

¶7 Thomas's recommitment expired on December 1, 2023. Nevertheless, he appeals, arguing that the trial court did not make the necessary factual finding to support a determination of dangerousness under the fifth standard and that there was insufficient evidence supporting dangerousness under both the second and fifth standards. Thomas also asserts that the court failed to make the necessary factual findings to order involuntary medication.

STANDARD OF REVIEW

¶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. Langlade County v. D.J.W., 2020 WI 41, ¶29, 391 Wis.2d 231, 942 N.W.2d 277; WIS. STAT. § 51.20(1)(a)l.-2., (13)(e). This is especially critical because "[i]t may be true that an erroneous commitment is sometimes as undesirable as an erroneous conviction." Addington v. Texas, 441 U.S. 418, 428 (1979). Upon petition, a trial court may extend a commitment for up to one year. Sec. 51.20(13)(g)l.; D.J.W., 391 Wis.2d 231, ¶31.

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¶9 The review of a recommitment order-determining whether the petitioner has met its 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." 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...