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Evidence at recommitment hearing was insufficient to establish dangerousness; appeal of transfer to inpatient treatment is moot

Trempealeau County DSS v. T.M.M., 2021AP100 & Trempealeau County DSS v. T.M.M., 2021AP139, District 3, 11/12/21 (one-judge opinions; both ineligible for publication); case activity: 2021AP100 & 2021AP139

The court of appeals agrees with T.M.M. (“Tiffany”) that the evidence presented at her recommitment hearing was insufficient to prove she was dangerous under one of the standards listed in § 51.20(1)(a)2. The court also rejects as moot her appeal of an order transferring her under § 51.35(1)(e) to a more restrictive placement while she was still under the original commitment order.

First, the recommitment appeal:

¶13     We agree that the evidence presented at the recommitment hearing regarding Tiffany’s past behavior was not sufficiently specific to support a finding of dangerousness. In a recommitment hearing, there is a key distinction between describing behavior that is erratic, odd or even concerning, and evidencing specific behavior that is likely dangerous. As this court explained in Winnebago County v. S.H., 2020 WI App 46, ¶17, 393 Wis. 2d 511, 947 N.W.2d 761, “reliance on assumptions concerning a recommitment at some unidentified point in the past, and conclusory opinions parroting the statutory language without actually discussing dangerousness, are insufficient to prove dangerousness in an extension hearing.”

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¶16     It is not an onerous burden to describe the ways in which past behavior was dangerous, and then explain how that behavior is likely to reoccur absent recommitment. A plain assumption of dangerousness based solely on the existence of previous commitment orders is not sufficient, nor is a recitation of the events leading up to that commitment without facts or medical opinion establishing why those prior events evidenced the requisite level of dangerous behavior. See id., ¶17 n.9;…

¶17     Here, neither the testimony at the final hearing nor the circuit court’s factual findings were sufficient to establish Tiffany’s dangerousness under Wis. Stat. § 51.20(1)(a)2. Although Tiffany’s behavior … was described as “bizarre” and “delusional” (and perhaps justifiably so), neither Dr. Persing nor the court had knowledge as to why this behavior was concerning to law enforcement such that it necessitated civil commitment, or, more importantly, how it was dangerous either to Tiffany or others. Persing’s testimony on this incident was based on his review of the records, but his testimony reflected a lack of awareness regarding the specifics of the events that took place. Alone, evidence of mental illness or irregular behavior like the kind Persing described is insufficient to prove dangerousness—there must be evidence that the behavior led to, or is reasonably likely to lead to, dangerous consequences, so as to fulfill the statutory requirements under at least one of the legal standards in § 51.20(1)(a)2. See [Langlade County v.] D.J.W., [2020 WI 41,] 391 Wis. 2d 231, ¶57[, 942 N.W.2d 277].

As to the transfer under the original commitment order, T.M.M. sought a review by the circuit court of her transfer to an inpatient facility, which the circuit court affirmed. (¶¶2-6). By the time the court of appeals reviewed her appeal of that decision, she was no longer in an inpatient setting. The court of appeals holds the appeal is moot, and noe of the exceptions to the mootness doctrine apply. (¶¶9-14).

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