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Another ch. 51 win due to failure to comply with D.J.W.

Outagamie County v. J.J.H., 2021AP244, District 3, 9/14/21 (one-judge decision; ineligible for publication); case activity

Though J.J.H.’s primary challenge to the extension of his ch. 51 commitment is about the insufficiency of the evidence to prove dangerousness, the court of appeals (aided by the County’s concession) holds that the circuit court failed to make specific factual findings with reference to the statutory basis for its determination of dangerousness, as required by Langlade County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277.

¶11     …. Although the court did not specify the dangerousness standard upon which it relied, the County contends that we can determine from the record that the court found Jason to be dangerous under Wis. Stat. § 51.20(1)(a)2.c., and that its finding is supported by the evidence.

¶12     We acknowledge that the circuit court articulated certain facts it relied upon to find Jason to be currently dangerous. However, an explanation removed from the applicable standards of Wis. Stat. § 51.20(1)(a)2. does not meet D.J.W.’s requirements. See D.J.W., 391 Wis. 2d 231, ¶40. The court’s use of language such as “recent threatening behavior” and “omissions” is not exclusive to a particular dangerousness standard. D.J.W. mandates a higher level of specificity to extend a Wis. Stat. ch. 51 commitment. See id. Specifying the subdivision paragraph at issue in a dangerousness determination provides clarity and enhanced protection for patients subject to ch. 51 commitments, and a general discussion divorced from these standards is no substitute. See id., ¶42. We must therefore reverse the order extending Jason’s commitment and the associated order for involuntary medication and treatment. ….

The court also rejects the County’s request for a remand for the circuit court to take a second shot at making sufficient findings. The recommitment hearing was almost a year ago, and J.J.H “has not been afforded the clarity and additional protections guaranteed by D.J.W. for that entire period. Remedying that violation now would be ‘far too late to be meaningful.’ See Eau Claire Cnty. v. J.M.P., No. 2020AP2014-FT, unpublished slip op. ¶22 (WI App June 22, 2021).” (¶13). So outright reversal is the appropriate remedy. (See also this recent decision.)

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