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Expert testimony provided sufficient evidence of dangerousness at ch. 51 extension hearing

Fond du Lac County v. S.N.W., 2020AP274-FT, District 2, 7/15/20 (one-judge decision; ineligible for publication); case activity

The testimony of the county’s expert provided sufficient evidence of dangerousness under § 51.20(1)(a)2.b. and (1)(am).

¶9     The evidence in the record before us establishes that S.N.W. has a history of “singling out a staff member … to accuse them of being against him, having paranoid thoughts and behaviors toward staff and others, and delusional beliefs.” These thoughts, behaviors, and beliefs have then caused S.N.W. to “get[] into fights or arguments,” which “will escalate and he will get into some trouble.” [Dr. J.R.] Musunuru testified that it was his “understanding” that S.N.W. threatened individuals during these arguments. Additionally, the “unprovoked shoutings and arguments” and “threatening behavior led to change out his medication.”

¶10     Wisconsin Stat. § 51.20(1)(am) provides in pertinent part that “the requirements of a recent overt act, attempt or threat to act under par. (a)2.a. or b.[], or pattern of recent acts or omissions under par. (a)2.c. or e., … may be satisfied by a showing 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subject individual’s treatment record, that the individual would be a proper subject for commitment if treatment were withdrawn.”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 plain language of the statute includes not only an “overt act” or “attempt,” but also a “threat to act” to do “physical harm” or “a pattern of recent acts or omissions” demonstrating a “substantial probability of physical impairment or injury to himself or herself or other individuals.” Sec. 51.20(1)(a)2.a., b., c.; (1)(am). We are confident that based on the evidence of fights, arguments, and threats, Musunuru’s testimony and report supports a finding “that there is a substantial likelihood” that S.N.W. is dangerous pursuant to § 51.20(1)(a)2. such that S.N.W. “would be a proper subject for commitment if treatment were withdrawn.” See § 51.20(1)(am); see also Langlade County v. D.J.W., 2020 WI 41, ¶41, 391 Wis. 2d 231, 942 N.W.2d 277 (“Para. (1)(am) … mandates that circuit courts ground their conclusions in the subdivision paragraphs of subd. 2.”)6 ….


6 We understand[] that our supreme court clarified that “going forward circuit courts in recommitment proceedings are to make specific factual findings with reference to the subdivision paragraph of [Wis. Stat.] § 51.20(1)(a)2. on which the recommitment is based.” D.J.W., 391 Wis. 2d. 231, ¶¶40-41 (emphasis added). The circuit court does not appear to have made such findings; regardless, the decision in this case occurred prior to D.J.W.’s release and S.N.W. does not argue this as a basis for reversal.

The court says it doesn’t matter that Musunuru didn’t provide details about what kind of threats S.N.W. made toward others. “Physicians and mental health professionals are charged … with evaluating the subject individual and providing a recommendation based on his or her expertise. Where the expert opines, after reviewing an individual’s treatment history, that the individual is dangerous and provides a basis for his or her opinion pursuant to the statute and discusses specific behavior the individual engaged in during the past or present, the opinions and assessments of the expert hold great weight.” (¶11 (emphasis added)). So an expert’s generic reference to “fights” or “arguments” or “threats” is sufficiently “specific”—and the backsliding from D.J.W. begins.

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