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Defense win: Circuit court failed to make dangerousness findings at ch. 51 commitment hearing

Shawano County v. S.L.V., 2021AP223, District 3, 8/17/21 (one-judge decision; ineligible for publication); case activity

Langlade County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277, requires a circuit court to make specific fact findings about dangerousness at a ch. 51 commitment hearing. The circuit court didn’t do that in this case, so the commitment order is reversed.

¶17     The circuit court in this case did not make specific factual findings with reference to the subdivision paragraph of Wis. Stat. § 51.20(1)(a)2. under which it found Susan to be dangerous, as required by D.J.W. Instead, the court merely found that: (1) Susan “recently has had delusions and does not understand reality, bizarre behavior”; (2) Susan had stopped taking her medication, which resulted in her “not taking care of herself” and exhibiting “delusional and bizarre behavior and not understanding reality”; and (3) if a person cannot understand reality and “see the reason to take medication,” then that person is “a danger to themself or others” and “can’t care for a child.” The court then concluded that Susan was dangerous because she did not have an understanding of reality, because of her “delusional, bizarre behavior” and her “failure to get treatment for it,” and because the experts had testified that “if she does not take the medication … she’d be more dangerous to herself or others.”

¶18     As the above summary shows, the circuit court did not specify under which subdivision paragraph of Wis. Stat. § 51.20(1)(a)2. it found Susan to be dangerous. Moreover, the court did not make specific factual findings corresponding to the elements of any of the five statutory standards of dangerousness set forth in § 51.20(1)(a)2. On this record, we agree with Susan that the court failed to comply with its obligations under D.J.W. ….

As in another recent unpublished case involving failure to comply with D.J.W. (see our post here), the court reverses the commitment (and attendant medication) order rather than remanding for the circuit court to comply with D.J.W. because the circuit court has lost competency to revisit the order given the time limits on holding the final hearing. (¶19).

Two more points of possible interest to lawyers handling ch. 51 cases.

First, this case addressed an original commitment hearing while D.J.W. involved an extension or recommitment hearing. The court says that doesn’t matter, as it has previously held there’s no reason why D.J.W. would not apply for initial commitments, for the purpose of making specific factual findings is equally applicable to initial commitments. (¶16, quoting Winnebago Cnty. v. A.A.L., No. 2020AP1511, unpublished slip op. ¶17 n.8 (WI App Mar. 24, 2021)).

Second, the commitment order in this case has expired, but the court concludes the case isn’t moot. S.L.V. is still burdened by a collateral consequence of the order—namely, a ban on possessing a firearm, which remains until lifted by the court; vacating the commitment order will have a practical effect for her, so her appeal isn’t moot. (¶¶10-11).

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