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SCOW will decide the remedy for circuit court’s failure to make specific dangerousness findings in ch. 51 cases

Sheboygan County v. M.W., 2021AP6, petition for review of an unpublished court of appeals decision granted 9/14/21; case activity

Issue Presented (composed by On Point)

What is the proper remedy when, in a ch. 51 recommitment proceeding, the circuit court fails 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?

As everyone handling ch. 51 cases knows, D.J.W. made a major, much-needed, beneficial change in the law governing ch. 51 recommitment proceedings. What D.J.W. didn’t say, though, was what happens if a circuit court fails to make the specific findings regarding dangerousness. The court of appeals decisions addressing this question have come to conflicting conclusions. Some have held it is appropriate to remand the case to the circuit court to make the findings it failed to make the first time around. See, e.g., the court of appeals decision in this case, and Rock County DHS v. J.E.B., 2020AP1954-FT, unpublished slip op. (WI App Apr. 7, 2021). Other cases, however, have held that allowing a remand for further findings is inconsistent with the purposes of D.J.W.’s mandate, not to mention that the court has lost competency to revisit the extension of an order that has, by the time of the appellate decision, has long since expired. See, e.g., Eau Claire County v. J.M.P., No. 2020AP2014, unpublished slip op. (WI App June 22, 2021) (on reconsideration), and cases adopting J.M.P.’s rationale, noted here and here. The supreme court will now give us the definitive answer to this question, and it can’t come soon enough.

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