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COA reverses ch. 51 extension for trial court’s failure to specify type of dangerousness

Trempealeau County v. C.J., 2022AP286, 10/11/22, District 3 (one judge decision; ineligible for publication) case activity

C.J. (“Carter” in the opinion) is diagnosed with paranoid schizophrenia. He was initially committed after an incident in which he drove recklessly with his girlfriend in the car, threatening to kill her and himself along with the president and vice president. As the six-month commitment neared its end, the county petitioned to extend.  It did so even though C.J. had not had further incidents or problems in his group home, was taking his medications voluntarily; recognized his mental illness, and expressed that he wished to continue medication because it was helping him a great deal. (¶¶3-8).

The county called one substantive witness, Persing, a psychiatrist who opined rather generally that C.J. might become dangerous if treatment were withdrawn. The circuit court extended the commitment while declining to order involuntary medication. Carter argues the evidence was insufficient to find him dangerous, and also that the court’s comments didn’t amount to a specific finding of dangerousness as required by Langlade County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277. The court of appeals agrees with the second point and so declines to address the first:

As Carter correctly argues, “[t]he closest the court came to identifying a statutory dangerousness standard was when it remarked that [Carter’s] treatment records from the past involved ‘threats of harm to self and harm to others.’” Carter notes that this comment contains one element from each of the dangerousness standards in WIS. STAT. § 51.20(1)(a)2.a. and b. However, the court failed to find further facts supporting a conclusion that either dangerousness standard was met. Although the court stated that it relied on Persing’s report and testimony, that evidence does not permit us to infer under which subdivision paragraph the court found Carter to be currently dangerous.

The circuit court summarily cited Persing’s report and his testimony based upon unknown and vague source information to find that Carter continues to experience delusions and that if treatment were withdrawn, Carter would likely become a proper subject for commitment. The court explained the likelihood that Carter would become a proper subject for commitment was based on the possibility Carter could act on his delusions, and threaten to harm himself or others as he did in the past.

Nevertheless, the Department is required to prove by clear and convincing evidence that “the individual ‘is dangerous.’” D.J.W., 391 Wis. 2d 231, ¶34 (citation omitted). Both Persing and the circuit court merely expressed that Carter could be dangerous. “It is not enough that the individual was at one point dangerous” id., and neither the Department nor the court specified how Carter is currently dangerous.

Concluding the circuit court has now lost competency to proceed, the court of appeals reverses the extension of C.J.’s commitment outright. (¶21).

 

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