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COA reverses ch. 51 recommitment of person under ch. 55 protective placement

Outagamie County v. X.Z.B., 2020AP2058, 6/22/2121, District 3, (1 judge opinion, ineligible for publication); case activity

This case involves the recommitment of a protectively placed person based on §51.20(1)(a)2.c., the 3rd standard of dangerousness.  The court of appeals reversed the circuit courts’ recommitment order for insufficient evidence. And, for the second time in one week, it held that when circuit courts fail to make the requisite factual findings for a commitment that has expired, the remedy is reversal not remand for further fact-finding.

Section 51.20(1)(a)2.c., provides that a mentally ill person is dangerous enough for commitment if he:

Evidences such impaired judgment, manifested by evidence of a pattern of recent acts or omissions, that there is a substantial probability of physical impairment or injury to himself or herself or other individuals. The probability of physical impairment or injury is not substantial under this subd. 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, if the individual may be provided protective placement or protective services under ch. 55 . . . (Emphasis supplied).

“Xander” had a longstanding diagnosis of chronic, severe schizophrenia. He was under a protective placement and a commitment when the county sought to recommit him through §51.20(1)(am) and §51.20(1)(a)2.c. He had not engaged in any recent acts of dangerous behavior but, of course, under Wisconsin law, that is not required to extend a commitment. The problem here was that the county presented no evidence on the statutory exclusion above, and the circuit court made no finding regarding it.

The 5th standard, §51.20(1)(a)2.e, contains an exclusion identical to the one in the 3rd standard. The court of appeals previously determined that the 5th standard exclusion applies to persons who are eligible for, but not yet subject to, ch. 55 orders and to persons who are already subject to them. Dane County v. Kelly M., 2011 WI App 69, ¶¶1-3, 333 Wis. 2d 719, 798 N.W.2d 697.  In this case, the court of appeals held that the 3rd standard exclusion does too. Accordingly, it applied to Xander.

Under Kelly M. the dispositive question is whether there are services available to the person that would reduce the probability of the requisite harm to less than a substantial probability. Opinion, ¶35.  This is where the county stumbled:

¶36 The County failed to present any evidence that no such services were available to Xander under WIS. STAT. ch. 55, nor did the circuit court make any findings to that effect. Again, in order to extend Xander’s commitment, the County had the burden to prove that he was dangerous by clear and convincing evidence. See WIS. STAT. § 51.20(1)(a)2., (13)(g)3. Thus, under §51.20(1)(a)2.c., the County had the burden to prove there was a “substantial probability” of physical impairment or injury to Xander or others. Because subd. para. 2.c. provides that no such “substantial probability” exists “if the individual may be provided protective placement or protective services under [WIS. STAT.] ch. 55,” and because the undisputed evidence at the extension hearing showed that Xander was under a ch. 55 protective placement, it was the County’s burden to show that the protective placement and associated services under ch. 55 were not enough to reduce the probability of harm below a substantial probability.

¶37 The County failed to meet its burden. Bales testified that “even with protective placement and even with medications,” Xander “still has these occasional episodes that occur …. [T]hat is why he needs continued oversight.” However, Bales did not explain what additional “oversight” was available under a WIS. STAT. ch. 51 commitment that was not also available under ch. 55. Bales conceded that Xander was “well placed” in a group home pursuant to his protective placement, and he did not suggest that a higher level of confinement under ch. 51 was necessary or appropriate to meet Xander’s needs—such as placement in a locked or unlocked inpatient facility.

¶38 Moreover, the County failed to present any evidence that an involuntary medication order under WIS. STAT. § 55.14 would not be effective in reducing the probability of harm under WIS. STAT. § 51.20(1)(a)2.c. to less than a substantial probability. In their testimony, both Bales and Nyman emphasized that extending Xander’s WIS. STAT. ch. 51 commitment was necessary, despite his protective placement, because Xander would be dangerous if not subject to an involuntary medication order. Bales testified, for instance, that although Xander is “well placed” in a group home under his protective placement, “the commitment provides extra support and safety for him and the medication order.” (Emphasis added.) Bales also expressed concern that Xander has to be reminded by group

¶41 Here, the County presented no evidence indicating that it would be unable to obtain a medication order under WIS. STAT. § 55.14 as part of Xander’s protective placement. The County did not, for instance, present evidence that Xander’s guardian would not consent to the entry of such an order. Nor did the County show that it had previously attempted, but failed, to obtain a medication order under § 55.14. The County therefore failed to meet its burden to prove that a § 55.14 medication order would not be effective in reducing Xander’s risk of harm under WIS. STAT. § 51.20(1)(a)2.c. to less than a substantial probability. We agree with Xander that, under these circumstances, the County failed to present sufficient evidence to support a finding that he was dangerous under subd. para. c. As such, we reverse the circuit court’s May 6, 2020 orders extending Xander’s commitment and subjecting him to involuntary medication and treatment.

 

 

 

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