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Defense win! Evidence insufficient for 3rd standard recommitment

Marathon County v. T.R.H., 2022AP1394, 3/14/23, District 3 (1-judge opinion, ineligible for publication); case activity

Counties often seek recommitment under §51.20(1)(a)2.c, the third standard of dangerousness. It is the easiest standard to satisfy–especially at the recommitment stage. But not this time. The court of appeals held that the county can’t just offer testimony that, at some point in the past, the person failed to care for himself, experienced delusions, and struggled with social interactions when not on medication.  The county’s evidence must be more specific.

“Thomas,” who has been diagnosed with schizophrenia, was initially committed in 2015, and he has been recommitted ever since. This appeal concerns a recommitment and medication order entered in 2022. Thomas and two doctors testified at the recommitment hearing.

The circuit court’s oral ruling and written commitment order did not specify the third standard of dangerousness.  The court of appeals says this omission did not violate Langlade County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277 because the court used the language from the third standard in its ruling and order. Opinion, ¶¶21-22.

However, the court of appeals did fault the circuit court for failing to “make specific factual findings” to support a third standard recommitment, as D.J.W. further requires. The county argued that by adopting the doctors’ findings and conclusions, the circuit court complied with D.J.W. Opinion, ¶¶23-25. This argument did not fly.

Because the county neglected to move the doctors’ reports into evidence, the court of appeal considered only their testimony. As in virtually all of these recommitment cases, the doctors testified that if Thomas were not recommitted he would stop the medication. But then what? That’s where the county’s evidence fell short.

According to the court of appeals, the county couldn’t just rely on general statements that without meds Thomas would lack “lack of self-care,  engage in “antisocial behavior,” and be unable to “function adequately in the community” as happened at an unidentified point in the past. Opinion, ¶26. The county failed to present “specific” evidence about how Thomas was dangerous in the past or how, without treatment, he would likely become dangerous in the future such that there would be “a substantial probability of physical impairment or injury to himself … or other individuals.” See § 51.20(1)(a)2.c. Opinion, ¶¶30-32. Here’s what the court of appeals said:

¶32 . . . At most, the evidence showed that Thomas has previously failed to maintain his self-care, has exhibited paranoia and had delusions, and may have not interacted in a socially appropriate manner. None of these behaviors—especially without evidence of specific incidents— clearly and convincingly show that Thomas was dangerous under § 51.20(1)(a)2.c at the time of the recommitment hearing, or would likely become so if his treatment were withdrawn. See § 51.20(1)(am).

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