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Defense Win! County failed to present sufficient evidence of dangerousness at 51 extension hearing

Winnebago County v. J.D.J., 2023AP1085, 2/21/24, District II (one-judge decision; ineligible for publication); case activity

In yet another opinion which stresses the need for County-petitioners to take more care at extension hearings, COA reverses for failure to make an adequate record below.

As the COA decision makes clear–in a series of footnotes, asides, and out-and-out critiques–the record in this 51 appeal is palpably deficient. The generic nature of the examining doctor’s testimony, the imprecise questions of corporation counsel, and the overall focus on an irrelevant issue–J.D.J.’s unwillingness to take medications he is being prescribed to treat side effects of psychotropic meds he isn’t refusing–means that we end up with yet another strongly-worded (and citable) defense win on sufficiency grounds.

As J.D.J. was found dangerousness under the fifth standard, COA zooms in on this “complex statutory standard” which requires the County to prove all five enumerated elements by clear and convincing evidence. (¶15). It ultimately concludes that the record fails to support the fifth element, requiring proof of a “substantial probability” that if J.D.J. is “left untreated” he will “suffer severe mental, emotional, or physical harm that will result in the loss of [his] ability to function independently in the community or the loss of cognitive or volitional control over his or her thoughts or actions.” (¶17).

The problem is that almost all of the testimony at the hearing focused on whether J.D.J.’s untreated “metabolic syndrome”–a side effect of his psychotropic medication–would result in the statutory harm at issue. (¶20). COA holds that this is the incorrect focus. (¶23). Instead, the County needed to prove that his untreated mental illness would expose him to the dangers described in the statute. (Id.). The lack of clarity in this record therefore means that COA must reverse. (¶23).

And, while COA could stop there, it also addresses an alternative ground for reversal–the failure to make specific factual findings. (¶24). Here, COA is dissatisfied with the circuit court’s findings, which it holds are “insufficient to comply” with the D.J.W. mandate. (Id.).

Accordingly, COA reverses the commitment order and, along with it, the accompanying medication order. (¶25).

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