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Defense win: Evidence insufficient to extend ch. 51 commitment

Jackson County v. W.G., 2020AP961, District 4, 11/5/20 (one-judge decision; ineligible for publication); case activity

The evidence presented at a ch. 51 extension hearing is found wanting because it doesn’t establish dangerousness as required by Langlade County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277.

¶16     The County has the burden of proof, and it cannot prevail unless it demonstrates that W.G. is dangerous under one of the five standards set forth in Wis. Stat. § 51.20(1)(a)2. It is difficult to see how the County could meet this burden when, even on appeal, it does not identify any dangerousness standard it believes is satisfied by the evidence in this case. Because the County does not respond to any of W.G.’s separate arguments about the five dangerousness standards, I could determine that the County has conceded its failure to prove dangerousness under any of those standards. ….

¶17     Nevertheless, giving the County the benefit of the doubt, the questions it asked during the recommitment hearing suggest that it may have been proceeding under the so-called “fifth standard” of dangerousness, which is set forth in Wis. Stat. § 51.20(1)(a)2.e.… Accordingly, although I deem the County’s arguments on the first four dangerousness standards conceded, I analyze whether the County met its burden under the fifth standard.


¶20      …[T]he fifth dangerousness standard requires proof that there is a “substantial probability, as demonstrated by [] the individual’s treatment history … that the individual needs care or treatment to prevent further disability or deterioration ….” …. But the County did not identify any incidents in W.G.’s “treatment history” showing that he “needs care or treatment to prevent further disability or deterioration.” Indeed, very little evidence of W.G.’s treatment history was introduced at the hearing, aside from testimony that he was receiving treatment at the group home and that the treatment was going well. To be sure, Dr. Dal Cerro testified that W.G. had a “reliable pattern of relapsing into substance abuse,” and that due to his “substance use disorder and psychosis,” his “thought process becomes distorted and he’s unable to act in his own best interests in regards to medication and other aspects of treatment.” But these are conclusory statements, made without reference to any specific incidents in W.G.’s treatment history….

Not only that, but W.G. testified at the extension hearing, and that makes a difference here:

¶22     …. W.G. offered uncontroverted testimony that he had been seeking treatment before being committed, and that he would remain at the group home and continue to receive treatment even if his commitment expired. The circuit court made no finding that W.G. was not credible, and the County offered no evidence or argument to suggest that, despite his testimony, W.G. would not actually be willing or able to continue to receive treatment at the group home. Dr. Dal Cerro testified that W.G. would be at risk of deteriorating if he left the group home, but the [County] offered no evidence or argument to suggest that W.G. would be likely to leave.

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