Portage County v. C.K.S., 2021AP1291-FT, 11/24/21, District 4, (1-judge opinion, ineligible for publication); case activity
The circuit court recommitted C.K.S. but apparently neglected to specify the applicable standard(s) of dangerousness. C.K.S. appealed arguing that the court violated D.J.W. and that the county’s evidence of dangerousness was insufficient. The court of appeals declined to address the D.J.W. error. Instead, it reviewed the county’s evidence of dangerousness and held it insufficient under the only standards that could apply: the 1st, 3rd, and 4th standards.
The court-appointed examiner diagnosed C.K.S. with either schizophrenia or schizoaffective disorder along with substance abuse disorder. Before his original commitment, C.K.S. brandished a knife and threatened suicide by over-medication. By 2021, he was under a recommitment, living in a group home, and doing well.
The examiner testified that if treatment were withdrawn, C.K.S. would not take his medication. He would use substances. His suicidal ideations would recur. He wouldn’t be able to care for himself, and he would exercise poor judgment.
However, the examiner also testified that C.K.S. acknowledged that he had a mental illness and that medication had helped him. So C.K.S. had “moderate” insight into his illness and the benefits of treatment. The examiner’s report noted that C.K.S. was interested in continuing his current treatment.
C.K.S.’s social worker testified and generally agreed with the examiner’s assessment. She added that during his commitment C.K.S. drank alcohol and used other people’s prescription medication. In February 2020, he went to a gas station and drank an undetermined amount of alcohol when “he wasn’t dressed properly.” And two months before the recommitment hearing, C.K.S. tested positive for T.H.C. His alcohol and drug use violated the group home’s policy.
The circuit court recommitted C.K.S. for 12 months but did not order involuntary medication because he had the ability to recognize the benefits of treatment and intended to continue it. Opinion, ¶12.
On review, the court of appeals declined to address the D.J.W. error. It held that the evidence raised concerns about C.K.S.’s potential danger to himself, so only the 1st, 3rd, and 4th standards of dangerousness were in play. Opinion, ¶16. It reversed because the county did not satisfy any of these standards.
1st standard. To recommit a person under §51.20(1)(a)2.a–the 1st standard of dangerousness–the county must show that without treatment there is a substantial probability of threatened or attempted suicide or serious bodily harm to self. The county failed to meet this standard because the examiner did not explain why he believed C.K.S.’s suicidal ideation would recur without a commitment order. In fact, the county offered no evidence that C.K.S. would stop treatment without a commitment order and that there would be a substantial probability of suicidal behavior. Opinion, ¶¶18-22.
3rd standard. To recommit a person under §51.20(1)(a)2.c–the third standard of dangerousness–the county must show that without treatment a person’s judgment would be so impaired that there would be a substantial probability of death, serious physical injury, or debilitation. The county failed to meet this standard too. C.K.S.’s failure to “dress properly” when he went to the gas station doesn’t prove that he was in danger of physical impairment or injury. The county never established what C.K.S. was wearing, the outdoor temperature, or how long C.K.S. was outside. Nor did the county offer any evidence to suggest that C.K.S.’s use of alcohol or drugs created a substantial probability of physical impairment or injury. Opinion, ¶¶23-24.
4th standard. To recommit a person under §51.20(1)(a)2.d–the fourth standard of dangerousness–the county must show that without treatment the person would be unable to satisfy basic needs for nourishment, medical care, shelter and treatment such that a substantial probability of death or serious physical injury would ensue. The county failed to satisfy this standard because it only showed that C.K.S. benefitted from the structure, monitoring, and medication reminders provided by the group home. It offered no evidence that without a commitment C.K.S. would be unable to satisfy his basic needs to the point of death or serious physical injury. Opinion, ¶¶29-30.
One doesn’t like to look a gift horse in the mouth, but query whether the court of appeals can sever D.J.W. from a “sufficiency of the evidence” analysis? That would seem to defeat the purpose of D.J.W. It requires the circuit court to specify the applicable standard of dangerousness and evidence supporting it in order to facilitate appellate review of a “sufficiency of the evidence” claim.
The court of appeals seems to be saying that the county’s witnesses can’t just say “without treatment, the patient will decompensate and experience suicidal ideation or satisfy this or that standard of dangerousness.” The county must elicit facts to back up those conclusory statements. Thus, like the court of appeals’ recent decision in T.M.M., this decision should be helpful to Chapter 51 practitioners defending against initial commitments and recommitments in both the trial and appellate courts.
