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COA affirms recommitment despite county’s failure to specify standard of dangerousness

Winnebago County v. D.E.S., 2022AP251, 8/31/22, District 2, (1-judge opinion, ineligible for publication); case activity

Langlade County v. D.J.W. requires a circuit to make specific factual findings with reference to the dangerousness standard that its recommitment order is based upon.  The circuit court failed to follow D.J.W. but the court of appeals affirmed because the circuit court’s words and the county’s closing argument supposedly made it clear that they were relying on the second and fifth standards of dangerousness.

The court of appeals calls this “a very close case.”  Opinion, ¶13 n.5. It noted that the law does not require the use of “magic words.” Id. But that did not stop it from magically transforming the circuit court’s and county’s words into compliance with the law.  Here’s the court of appeals’ reasoning:

¶14 First, the County, based on the evidence and testimony presented during the hearing, argued that it had established dangerousness under WIS. STAT. § 51.20(1)(a)2.b and e, or at the very least, “certainly [under] the (e) standard[.]” Second, the transcript reflects that in announcing its factual findings and addressing dangerousness, the circuit court made the following findings: (1) D.E.S. acted out violently despite being in a locked setting and medicated; (2) when D.E.S. is challenged, frustrated, or upset, he turns to violence and physically attacks others; (3) even after being placed into the seclusion room, D.E.S. evidenced dangerous behavior when he tried to spit on the second nurse; and (4) spitting is a dangerous act as it can transmit disease.

¶15 As specifically relevant here, the circuit court described D.E.S.’s conduct toward others as “violent” and, after announcing its findings, stated:

So I’m going to find that the grounds do exist for the extension of commitment, that [D.E.S.] is mentally ill, dangerous pursuant to the factors listed in [WIS. STAT.] Chapter 51. Specifically, that he would decompress and deteriorate without this commitment [and] that he has shown that he is dangerous to other people as well[.]

(Emphases added.) The court’s findings, the specific references to D.E.S.’s actions toward others being “violent” and “dangerous,” and the reference to D.E.S. “deteriorat[ing]” demonstrate the circuit court’s reliance on WIS. STAT. § 51.20(1)(a)2.b and § 51.20(1)(a)2.e. This is so because: (1) § 51.20(1)(a)2.b, the first standard the County relied upon, is satisfied by, inter alia, “a substantial probability of physical harm to other individuals as manifested by evidence of … violent behavior” (emphases added); and (2) § 51.20(1)(a)2.e references an individual’s “deterioration” in the absence of treatment. Accordingly, despite not identifying the specific standards it was relying on with reference to the statutory numbering, the circuit court’s words reflected the corresponding statutory language in § 51.20(1)(a)2.b and § 51.20(1)(a)2.e, which was sufficient to comply with D.J.W.

Compare this holding with Trempealeau County v. C.B.O., where the County argued that the circuit court’s choice of words indicated which standard of dangerousness it was relying on for a recommitment, but the court of appeals disagreed and reversed.

The court of appeals further held the county’s evidence supported recommitment under the second standard of dangerousness:

¶17 . . . Dr. Anderson testified about D.E.S.’s “breakthrough” violent acts—lashing out physically by charging at a nurse, throwing punches, and spitting at a nurse—despite being medicated, and gave the January 2021 example of D.E.S. acting out violently when he misperceives the actions of others nearby. In other words, D.E.S.’s inability to understand reality causes him to lash out violently even while receiving treatment. The two nurses also testified about the incident Dr. Anderson identified and stated that D.E.S.’s violent actions caused them to be concerned for the safety of themselves or others. Based on this extensive credible testimony, the circuit court’s finding that D.E.S. met the dangerousness standard under § 51.20(1)(a)2.b is sufficiently supported by the Record as D.E.S.’s actions created a substantial probability that he would cause physical harm to others as evidenced by recent violent acts or attempts to do serious physical harm that placed the nurses in reasonable fear of serious physical harm.

Finally, the evidence above combined with the doctor’s testimony that D.E.S. was incompetent to make medication or treatment decisions was sufficient to satisfy the 5th standard of dangerousness.  Opinion, ¶18.

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