Waupaca Cnty. v. J. D. C. (In re J. D. C.)

1

In the matter of the mental commitment of J. D. C.

Waupaca County, Petitioner-Respondent, v. J. D. C., Respondent-Appellant.

No. 2023AP961

Court of Appeals of Wisconsin, District IV

September 14, 2023

This opinion will not be published. See WIS. STAT. RULE 809.23(1)(b)4.

APPEAL from orders of the circuit court for Waupaca County: No 2008ME67 VICKI L. CLUSSMAN, Judge. Reversed.

NASHOLD, J. ^[1]

¶1 J.D.C. appeals an order extending his involuntary commitment under WIS. STAT. ch. 51 and an associated order making him subject to involuntary medication and treatment. J.D.C. argues that these orders must be reversed because the circuit court did not make the factual findings required by our supreme court in Langlade County v. D.J.W., 2020 WI 41, 391 Wis.2d 231, 942 N.W.2d 277. J.D.C. also argues that the County presented insufficient evidence to show: that he was dangerous, that he was a proper subject for treatment, or that involuntary medication is warranted. I conclude that the circuit court failed to make the factual findings required by D.J.W. Accordingly, I reverse both the recommitment order and the associated order for involuntary medication.

BACKGROUND

¶2 J.D.C. has been under continuous WIS. STAT. ch. 51 commitment in Waupaca County since 2008. It is undisputed for purposes of this appeal that J.D.C. is mentally ill and has a schizoaffective disorder.

¶3 In August 2022, the County commenced proceedings to extend J.D.C.'s commitment. To prevail in a WIS. STAT. ch. 51 recommitment^[2]proceeding, a county must prove, by clear and convincing evidence, that the subject individual is: (1) mentally ill; (2) a proper subject for treatment; and (3) dangerous under one of five statutory dangerousness standards set forth in WIS. STAT. § 51.20(1)(a)2.a.-e. Portage County v. J.W.K., 2019 WI 54, ¶18, 386 Wis.2d 672 927 N.W.2d 509; § 51.20(1)(a), (13)(e).

¶4 At the hearing held in this matter, the County introduced the testimony of psychiatrist Dr. Marshall Bales, as well as the testimony of J.D.C.'s case manager Cary Ogden. Ogden testified that since J.D.C.'s initial 2008 commitment J.D.C. had generally "resided in group home settings," although he had been "in and out of unsuccessful community placements." Ogden testified that, at the time of the hearing, J.D.C. was residing in a locked inpatient facility, and that this heightened level of restriction was related to an incident involving "an assault of a staff member" that occurred in 2019.^[3]

¶5 Ogden testified that J.D.C. has behavioral issues that "if allowed to escalate" sometimes reach a point where he "bangs his head against the wall," "stamps his feet," "walks around with clenched fists," and "badger[s]" staff members. Ogden testified to a recent incident where J.D.C. stated that "if his needs were not met immediately, he would require seclusion." Because "[s]eclusion is a response from the behavioral plan to address physical violence," Ogden interpreted J.D.C.'s statement as a threat that J.D.C. would become physically violent.

¶6 Psychiatrist Bales testified that he met with J.D.C. and observed that J.D.C. "was irritable, labile, hyperverbal," and "simply failed to take responsibility for his behavior." Bales opined that if J.D.C. were no longer subject to a commitment order, J.D.C. would "stop medications," "consume alcohol," and "have police contacts." Bales noted a 2019 incident in which J.D.C. attempted suicide by "ingestion of some kind of a lime out substance," resulting in hospitalization.

¶7 Bales testified that he believed J.D.C.'s schizoaffective disorder is treatable with "sobriety, medication compliance, and very important things like keeping appointments, working with anger management classes and such." Bales testified that J.D.C. had shown some improvement, but that J.D.C. would need to "succeed outside of a locked inpatient unit" before J.D.C. would be an appropriate candidate for receiving treatment on a voluntary, rather than involuntary, basis. According to Bales, J.D.C. had recently been in a less restrictive group home setting, but this placement did not go well, and J.D.C. was returned to his previous locked inpatient facility.

¶8 The circuit court determined that, although there was testimony that J.D.C. was "improving," the County had established grounds for the extension of J.D.C.'s commitment and for an involuntary medication and treatment order. As to dangerousness, the court stated that "[b]ased on Dr. Bales' testimony, as well as Mr. Ogden's, ... there is a substantial probability of physical harm to others, as manifested or shown by a substantial likelihood, based on his treatment records, .. [t]hat he would be a proper subject for commitment if treatment were withdrawn."

¶9 After the circuit court's oral ruling, the County noted that the dangerousness standard that the court had identified in its ruling (based on probability of harm to others) was not the dangerousness standard the County had identified in its proposed written order (which was a different standard based on probability of self-harm). The court indicated that "there was testimony to that effect," so it would "amend the proposed order to include the substantial probability of harm to himself." The court did not make any other statements at the hearing as to the basis for its determination that J.D.C. was dangerous.

¶10 Following the hearing, the circuit court issued a written order. Consistent with its oral ruling, the court checked boxes indicating that two dangerousness standards had been met: "substantial probability of physical harm to himself or herself," and "substantial probability of physical harm to other individuals." See WIS. STAT. § 51.20(1)(a)2.a., b. The court also checked a box indicating that these dangerousness standards have been shown by "a substantial likelihood, based on the subject individual's treatment record, that the individual would be a proper subject for commitment if treatment were withdrawn." See § 51.20(1)(am). Additionally, the court checked a box indicating that these dangerousness standards had been shown by "a recent overt act, attempt or threat to act," see § 51.20(1)(a)2.a.-e., although the court's oral ruling did not articulate any specific recent acts showing dangerousness. The court extended J.D.C.'s commitment for twelve months, ending on September 19, 2023.^[4]

DISCUSSION

¶11 J.D.C. argues that the order extending his commitment must be reversed because the circuit court violated our supreme court's directive in D.J.W., requiring circuit courts in recommitment proceedings to make "specific factual findings with reference to" a statutory dangerousness standard. D.J.W., 391 Wis.2d 231 ¶40. J.D.C. also argues that the recommitment order must be reversed because the County did not introduce sufficient evidence to show that he was dangerous or that he was a proper subject for treatment. Finally, J.D.C. argues that the involuntary medication order must be reversed because the County failed to introduce sufficient evidence to support that order. I do not address J.D.C.'s challenges to the sufficiency of the evidence because I conclude that the circuit court failed to comply with D.J.W. and that the proper remedy is reversal of both the recommitment order and the involuntary medication and treatment order.^[5]

I. D.J.W. Directive

¶12 To prevail in a WIS. STAT. ch. 51 recommitment proceeding, a county must prove, among other things, that the subject individual is dangerous under one of the statutory standards set forth in WIS. STAT. § 51.20(1)(a)2.a.-e. J.W.K., 386 Wis.2d 672, ¶18; § 51.20(1)(a). These standards include (among others) "substantial probability of physical harm to him or herself" under § 51.20(1)(a)2.a., and "substantial probability of physical harm to other individuals" under § 51.20(1)(a)2.b. Regardless of which dangerousness standard applies, the circuit court in a recommitment proceeding must "make specific factual findings with reference to the [dangerousness] subdivision paragraph of § 51.20(1)(a)2. on which the recommitment is based." D.J.W., 391 Wis.2d 231, ¶40. For ease of reference, I sometimes refer to these requirements set forth in D.J.W. as "the D.J.W. directive."

¶13 This appeal presents a question about the scope of the D.J.W. directive. J.D.C. contends that the circuit court failed to comply with the D.J.W. directive because the court's ruling is devoid of specific factual findings. In response, the County contends that the court complied with the D.J.W. directive, and appears to argue that the only "findings" required by D.J.W. are recitations of the applicable statutory dangerousness standards that have been met.^[6]

¶14 As stated, the D.J.W. directive requires the circuit court in a recommitment proceeding to "make specific factual findings with reference to the subdivision paragraph of [WIS. STAT.] § 51.20(1)(a)2. on which the recommitment is based." Id. On its face, the D.J.W. directive appears to have two components: a requirement of "specific factual findings," and a requirement that those specific factual findings "reference" the applicable statutory dangerousness standard.

Notably, this directive cannot mean that the court must make a "finding" of dangerousness under the specific statutory dangerousness standard, because the "determination of dangerousness is not a factual determination, but a legal one based on underlying facts." See id., ¶47. Thus, the "specific factual findings" contemplated by D.J.W. must mean findings more specific than the court's ultimate legal conclusion of dangerousness, suggesting that D.J.W. requires specific evidentiary findings of fact that refer to the applicable dangerousness standard.

¶15 This reading also comports with a...