Contrary to what has seemed like a steady stream of unsuccessful hearsay-based Chapter 51 appeals, see e.g., here, here, here, here, and here, G.T.H. succussfully convinces the court of appeals to reverse his recommitment, which was based on extensive hearsay testimony.
Despite G.T.H.’s motion in limine and pre-final hearing request to prohibit the county from introducing hearsay evidence at his extension hearing, the circuit court explained that it would “rule on issues of evidence admissibility as they might arise during trial.” Arise they did. Throughout the hearing G.H.T. objected to substantial hearsay testimony from Dr. Bales and a crisis worker. The court repeatedly overruled these objections without explanation and G.H.T. eventually made a standing objection, which the court noted for the record. For these reasons, on appeal G.H.T. was able to directly and persuasively attack his hearsay-backed recommitment, rather than jump through the procedural hoops of waiver, ineffective assistance of counsel, or plain error.
In support of its petition to extend G.H.T.’s commitment, the county argued that G.H.T.’s case presented an example of the “revolving door phenomena,” in which a dangerous individual is released from commitment only to predictably stop complying with treatment and thereafter becoming dangerous, which then necessitates a new commitment, and so on and so on. (Op., ¶¶29, 42-43). The court rejects this argument for a variety of reasons. First, caselaw recognizes that § 51.20(1)(am) is designed to avoid this problem by removing the burden to establish “recent” acts or omissions in order to establish current dangerousness. See Winnebago Cnty. v. S.H., 2020 WI App 46, ¶9, 393 Wis. 2d 511, 947 N.W.2d 761 Waukesha Cnty. v. J.W.K., 2019 WI 54, ¶19, 386 Wis. 2d 672, 927 N.W.2d 509. Second, § 51.20(1)(am) says nothing of allowing hearsay at recommitment and does nothing to change hearsay rules generally applicable to Ch. 51. Third, while § 51.20(1)(am) removes the requirement to prove recent conduct, the petitioner must still set forth clear and convicing evidence that if treatment were withdrawn the individual would be dangerous under one of the five standard of dangerousness set forth in § 51.20(1)(a)2.
With regard to the hearsay testimony the court held to be inadmissible and not harmless, the circuit court allowed Dr. Bales to testify about numerous incidents of which he had no personal knowledge and about which he admitted to knowing of only through his review of G.H.T.’s treatment record. Further, the county’s other witness, a crisis worker also admitted that he heard about G.H.T.’s prior alleged dangerous behavior from others. Finally, the court relied on these allegations of prior dangerous conduct to conclude that G.H.T. would be dangerous if treatment were withdrawn.
The clear takeaway from this case is to object to hearsay whenever it rears its head at a final hearing under Chapter 51. While there may be applicable exceptions to hearsay in any given case, there is no general hearsay exception under Chapter 51 and while an expert may rely on hearsay to form an opinion, the underlying hearsay is not admissible. Objecting not only preserves the issue for direct appeal, but in addition to persuasive cases like this one, prior cases such as S.Y. v. Eau Claire Cnty., 156 Wis. 2d 317, 327-28, 457 N.W.2d 326 (Ct. App. 1990), aff’d, 162 Wis. 2d 320, 469 N.W.2d 836 (1991); Walworth Cnty. v. Therese B., 2003 WI App 223, ¶¶8-9, 267 Wis. 2d 310, 671 N.W.2d 377, provide circuit courts with clear authority to uphold basic rules of evidence in Chapter 51 cases.