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Defense win: County failed to prove dangerousness at ch. 51 extension hearing

Portage County v. E.R.R., 2020AP870-FT, District 4, 10/1/20 (one-judge decision; ineligible for publication); case activity

As the supreme court recently emphasized, at a proceeding to extend a ch. 51 commitment, proving dangerousness under § 51.20(1)(am) requires evidence establishing that the person is likely to be dangerous under one of the specific standards in § 51.20(1)(a)2. if treatment is withdrawn. Langlade County v. D.J.W., 2020 WI 41, ¶40, 391 Wis. 2d 231, 942 N.W.2d 277. There was not enough evidence in this case to prove E.R.R. was dangerous under one of those standards.

At the extension hearing the circuit court concluded E.R.R. would pose a danger to himself if treatment were withdrawn, thus meeting the standard under § 51.20(1)(a)2.c. (¶13). E.R.R. disagrees, and the County declined to defend the circuit court’s conclusion on appeal, so the court of appeals deems the County to have admitted there is insufficient evidence to prove dangerousness under that standard. (¶14).

Instead, the County argues, the evidence shows E.R.R. was dangerous to others, and therefore meets the standard under § 51.30(1)(a)2.b. (¶16). It cited testimony from a psychiatrist—who said E.R.R. would decompensate without treatment and go “beyond boundary” and “affect[] the community” (¶18)—and a social worker—who said that while undergoing treatment at a residential facility, E.R.R. stated he “felt like he wanted to snap people’s necks” and that there had been “issues and risks throughout the past year of [E.R.R.’s] commitment” without explaining what they were (¶19).

This evidence is not enough, says the court of appeals:

¶20     …. “[T]he plain language of Wis. Stat. § 51.20(1)(a)2.b. requires a showing that it is much more likely than not that the individual will cause physical harm to other individuals.” Marathon Cnty. v. D.K., 2020 WI 8, ¶42, 390 Wis. 2d 50, 937 N.W.2d 901. Also, this court has recently discussed the need for the evidence of dangerousness to be more than speculation. “[I]t could be a winning argument against recommitment that dangerous statements or conduct are old enough, weak enough, or otherwise insufficient to support clear and convincing evidence under the substantial likelihood of dangerousness test.” Winnebago Cnty. v. S.H., 2020 WI App 46, ¶13 n.6; 393 Wis. 2d 511, 947 N.W.2d 761 ….

¶21     The circuit court clearly accepted Dr. Opaneye’s opinion that E.R.R. remains in continuing need of treatment. However, the testimony of Dr. Opaneye does not contain evidence that E.R.R. will “much more likely than not” cause physical harm to others if treatment is withdrawn and, of course, the circuit court did not come to that conclusion. See D.K., 390 Wis. 2d 50, ¶42. Just as importantly, there is nothing in the record to support the County’s assertion that the circuit court “implicitly accepted” the testimony of the social worker. I will not, and cannot, act as the finder of fact to fill in the gaps in the County’s argument. Beyond that, there was no testimony at the evidentiary hearing that E.R.R. attempted, or will attempt, to act on his feelings or has otherwise exhibited behaviors that would suggest that he will physically harm other individuals if treatment were withdrawn. In short, E.R.R.’s statement reported by the social worker (even if accepted as true by the circuit court—and it was not), in combination with evidence that he continues to need treatment, does not equate with a “substantial probability” that E.R.R. will cause “physical harm to other individuals” if treatment were withdrawn. ….

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