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Defense win: Extension of ch. 51 commitment not supported by sufficient findings as to each element of applicable dangerousness standard

Ozaukee County v. J.D.A., 2021AP1148, District 2, 12/15/21 (one-judge decision; ineligible for publication); case activity

Langlade County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277, requires a circuit court ordering a ch. 51 recommitment petition to make specific factual findings with reference to the relevant subdivision paragraph of § 51.20(1)(a)2. on which the recommitment order is based. At “Jane’s” recommitment proceeding, the circuit court cited a subdivision paragraph—specifically, § 51.20(1)(a)2.e.—but said little about the substance of the standard articulated under that subdivision paragraph and how the evidence proved the statutory elements of that standard. Thus, its findings were insufficient under D.J.W. and the recommitment order and medication order are reversed.

¶17     The circuit court’s obligation—as mandated by our supreme court—is to be specific as to the basis for its dangerousness determination. See D.J.W., 391 Wis. 2d 231, ¶40. Although the circuit court here provided a specific subdivision paragraph under which it found Jane to be dangerous, the court did not satisfy the mandate from D.J.W. that it make “specific factual findings” regarding Jane’s dangerousness under Wis. Stat. § 51.20(1)(a)2.e. See D.J.W., 391 Wis. 2d 231, ¶40. Reciting the language of the statute without discussing the specific facts supporting its legal conclusions is insufficient to support recommitting a person. See id., ¶43 (“With such an important liberty interest at stake, the accompanying protections should mirror the serious nature of the proceeding. Requiring circuit courts to provide specific factual findings … provides increased protection to patients to ensure that recommitments are based on sufficient evidence.” (footnote omitted)); Winnebago County v. S.H., 2020 WI App 46, ¶17, 393 Wis. 2d 511, 947 N.W.2d 761 (“conclusory opinions parroting the statutory language without actually discussing dangerousness, are insufficient to prove dangerousness in an extension hearing”). Notably, while the County cites D.J.W., it does not address, much less establish, that the circuit court complied with its mandatory obligation to make specific factual findings.

¶18     Specifically, in rendering its dangerousness decision, the circuit court recited some of the language of the applicable subdivision paragraph on which it relied, and adopted ultimate conclusions offered by [Dr.] Kohlenberg—that Jane denied her mental illness, lacked insight, and would “lapse back into the— kind of the similar situation to when she was back in 2008.”

¶19     Here, the court did not make any specific findings as to how the evidence presented at the hearing fit into the statute. Moreover, although the circuit court identified a subdivision paragraph to support its conclusion of dangerousness, it referenced only a portion of the applicable statutory language setting forth five elements in making its findings. The statute requires that all five elements of Wis. Stat. § 51.20(1)(a)2.e. be met in order to support a conclusion of dangerousness under this section. State v. Dennis H., 2002 WI 104, ¶25, 255 Wis. 2d 359, 647 N.W.2d 851 (“Only after each of these elements is proven may the person be considered ‘dangerous’ under the fifth standard.”).

The court of appeals also spurns the County’s argument that the recommitment should be affirmed because the evidence was sufficient to prove a different dangerousness standard—the one under § 51.20(1)(a)2.a.—was met:

¶25     …. As we have explained, the circuit court failed to make specific findings sufficient to support recommitment under § 51.20(1)(a)2.e. because D.J.W. requires a circuit court to provide both the applicable subdivision paragraph and specific factual findings to support a recommitment decision. …[T]he County failed to identify § 51.21(1)(a)2.a. in its petition and at the recommitment hearing. The [circuit] court here did not specifically address § 51.20(1)(a)2.a., nor did it make the necessary factual findings regarding self-harm to justify our applying the first dangerousness standard on appeal as opposed to applying § 51.20(1)(a)2.e….

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