K.L. (Katie) challenged the 2021 extension of her original 2013 Chapter 51 commitment on two grounds: (1) insufficient evidence of dangerousness and (2) the circuit court’s failure 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.” See Langlade County v. D.J.W., 2020 WI App 41, ¶3, 391 Wis. 2d 231, 942 N.W.2d 277. The court affirms Katie’s recommitment after concluding the county presented “clear and convincing evidence” that Katie was dangerous under the fourth standard (see Wis. Stat. § 51.20(1)(a)2.d.), and that the circuit court complied with D.J.W. when it “checked two boxes on its written order,” which indicated that Katie was dangerous under the third and fourth standards. (Opinion, ¶¶2, 12).
The following evidence was introduced related to Katie’s alleged dangerousness: a doctor’s report that opined that Katie was dangerous under the third and fourth standards, the doctor’s testimony that Katie has “impaired insight and judgment” related to her mental illnesses and that she has had difficulty caring for herself and making some medical decisions, Katie’s group home manager’s testimony that Katie “requires prompts” to put on clean clothes and to brush her teeth and hair, sometimes needs physical assistance to make her bed, dressing, and eating, and that she has on two recent occasions “cheeked” her medications. The group home manager testified that it was “unlikely” that Katie would take her medications on her own. Lastly, a social worker testified that Katie would not follow through with medication and services if she were to return to independent living. (¶¶4-7).
The circuit court thereafter found that Katie “creates a substantial probability of risk of harm to herself or others” and that she “had impaired judgment” and “significantly impaired boundaries.” The court further found that Katie does not have the ability to live independently without creating a substantial risk of harm to herself “or perhaps others.” Responding to testimony that Katie had exposed herself in the group home and that she can be “physically intrusive” with others, the court found that this “creates a vulnerability” and a risk of harm to herself from the reactions by people that may be offended or threatened by her behavior.” (¶9).
Following its oral findings, the court “checked two boxes” on the standard post-D.J.W. circuit court form, indicating that it found Katie dangerous under the third and fourth standards. As relevant here, the court checked a box finding Katie dangerous because there was “a substantial probability of death, serious physical injury, serious physical debilitation, or serious physical disease will immediately ensue unless [Katie] receives prompt and adequate treatment for this mental illness.” (¶12).
The court of appeals rejects Katie’s argument that the evidence presented failed to meet the relevant statutory standard, that as a result of an inability to satisfy “basic needs,” a substantial probability exists that death, serious bodily injury, serious physical debilitation, or serious physical disease will imminently ensue unless the individual receives prompt and adequate treatment. In doing so, the court merely notes that evidence was presented that Katie was unable to live independently, that she needed assistance with “basic tasks” and “prompts” to take her medications. (¶17).
With regard to Katie’s D.J.W. “specific factual findings” claim, the court acknowledges the circuit court failed to reference a dangerousness standard in its oral ruling, but held that the court’s finding that Katie “create[d] a substantial probability of risk of harm to herself or others” and that Katie “ha[d] certainly significantly impaired judgment” satisfied D.J.W.’s “specificity requirements.” (¶22). In the end, because the court says the evidence was “clear and convincing” that Katie was dangerous under the fourth standard, and because the circuit court “checked” the right box on the standard court form, Katie’s commitment continues.
Aside from a scant and substantively questionable sufficiency of the evidence analysis, the main takeaway here is that the court of appeals holds that “checking the box” satisfies D.J.W.’s mandate that circuit courts “make specific factual findings with reference to the subdivision paragraph of Wis. Stat. § 51.20(1)(a)2. on which the recommitment is based.” Prior court of appeals’ decisions, however, have held that D.J.W.’s mandate requires both an implicit or explicit “reference” to the applicable standard of dangerousness and specific findings of fact that support the court’s legal findings. See this post. In other words, a circuit court must make specific factual findings that line up with and support the court’s legal findings in terms of dangerousness. As relevant to Katie’s case, the fourth standard of dangerousness requires that she is “unable to satisfy basic needs” such that it is “much more likely than not” (substantial probability) that death, serious physical injury, serious physical debilitation, or serious physical disease will imminently ensue.” See Wis. Stat. § 51.20(1)(a)2.d.; see also Marathon County v. D.K., 2020 WI 8, ¶35, 390 Wis. 2d 50, 937 N.W.2d 901.
None of the evidence discussed in the decision and none of the circuit court’s factual findings support a conclusion that it is “much more likely than not” that Katie will suffer the gravity of harm required under the fourth standard. Furthermore, the circuit court’s “specific factual findings” were limited to a finding that Katie is unable to live “independently” and that other people may react to her in a way that places Katie at risk of harm from others. The former finding says nothing about the likelihood of death or physical harm and the latter is contrary to the holding Milwaukee County v. Cheri V., where the court of appeals held, in an unpublished but citable and persuasive opinion, that “yelling at and pointing a finger at another person, irrespective of how dangerous that other person might be, does not, unless there is evidence that the subject of a potential commitment order is trying to goad that other person in order to have that other person kill or harm the subject (as in “suicide by cop”) is not such evidence.”