Winnebago Cnty. v. A.P.D. (In re A.P.D.)

984 N.W.2d 751 (Table)

2023 WI App 1

In the MATTER OF the Condition of A.P.D.:

Winnebago County, Petitioner-Respondent,

v.A.P.D.,

Respondent-Appellant.

Appeal No. 2022AP817

Court of Appeals of Wisconsin.

November 16, 2022

GROGAN, J.¹

¶1 A.P.D. appeals from two WIS. STAT. ch. 51 orders extending his commitment entered after a bench trial in January 2022. The circuit court ordered him recommitted² for twelve months and ordered involuntary medication and treatment during that time. A.P.D. contends the circuit court erred in concluding Winnebago County proved by clear and convincing evidence that he had a mental illness or that he was dangerous under the fifth dangerousness standard in WIS. STAT. § 51.20(1)(a) 2.e. As a part of the latter argument, A.P.D. claims the circuit court failed to make the requisite findings set forth in Langlade County v. D.J.W. , 2020 WI 41, ¶59, 391 Wis. 2d 231, 942 N.W.2d 277. This court affirms.

I. BACKGROUND

¶2 In November 2021, A.P.D.’s treating psychiatrist, Dr. George Monese, wrote a letter to the circuit court recommending an extension of A.P.D.’s initial commitment.³ Dr. Monese recommended the extension because A.P.D. told the doctor that he was only taking the medication "because he is under court order[,]" A.P.D. does not believe he has a mental illness, and that A.P.D. "will take the first opportunity to get off the medications." Based on that lack of insight, Dr. Monese advised that A.P.D. "is likely to become the subject for Chapter 51 commitment if it was withdrawn at this time." The letter also told the court that despite Dr. Monese's "lengthy explanation to [A.P.D.] of the risks and the benefits of treatment, [A.P.D.] was unable to use this information to his best interest." Dr. Monese also submitted a form requesting the extension of A.P.D.’s commitment and involuntary medication orders to the County, asserting that A.P.D.:

• "[I]s mentally ill and his diagnosis is Bipolar disorder, Manic[,]" and A.P.D. "continues to have a substantial disorder of" "thought" and "mood" "which grossly impairs" A.P.D.’s "judgment" and "capacity to recognize reality[.]"

• "[I]s a proper subject for treatment."

• "[I]s dangerous because there is a substantial likelihood, based on his treatment record, that he would become a proper subject for commitment if treatment were withdrawn" because he "evidences" "dangerousness" under the fifth statutory standard.

• Is "not competent to refuse medication or treatment" and that when Dr. Monese "recently tried to explain" "the advantages, disadvantages, and alternatives to accepting a particular medication or treatment[,]" A.P.D., "because of his mental illness," is not capable of understanding or applying them and is unable "to make an informed choice as to whether to accept or refuse medication or treatment."

¶3 The County then filed a formal Petition for Recommitment and for Involuntary Medication or Treatment with the circuit court. The matter was originally scheduled for a bench trial on January 6, 2022, in front of a different circuit court than the one that ultimately presided over A.P.D.’s trial and entered the orders at issue on appeal. However, when the parties arrived for the trial, they informed the judge of a potential conflict of interest due to the fact that A.P.D. "might have made some threats" to that judge. As a result, this case was reset for a bench trial on January 19, 2022, before the circuit court judge noted in this opinion.

¶4 Dr. Monese was the only witness to testify at the trial. Much of his testimony will be provided below. After his testimony, the parties made their final arguments. The County argued it proved each element for the recommitment by clear and convincing evidence. A.P.D. argued only that the County failed to prove that he was dangerous. The circuit court determined that the County met its burden of proof, ordered A.P.D. recommitted for twelve months, and entered a concomitant order for the administration of involuntary medication. A.P.D. now appeals.

II. DISCUSSION

¶5 This case involves a WIS. STAT. ch. 51 recommitment, which is governed by WIS. STAT. § 51.20. To involuntarily commit an individual, a county must establish by clear and convincing evidence that the person is mentally ill, a proper subject for treatment, and dangerous. Sec. 51.20(1)(a) 1-2, (13)(e), (13)(g) 3; Waukesha County v. J.W.J. , 2017 WI 57, ¶18, 375 Wis. 2d 542, 895 N.W.2d 783.

¶6 "To prevail in a recommitment proceeding, the petitioner must demonstrate the same three elements necessary for the initial commitment[,]" but " ‘ WIS. STAT. § 51.20(1)(am) provides a different avenue for proving dangerousness if the individual has been the subject of [commitment] immediately prior to’ " the recommitment petition. Sheboygan County v. M.W. , 2022 WI 40, ¶¶18-19, 402 Wis. 2d 1, 974 N.W.2d 733 (quoting Portage County v. J.W.K , 2019 WI 54, ¶19, 386 Wis. 2d 672, 927 N.W.2d 509 ). Dangerousness " ‘may be satisfied by a showing that there is 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.’ " M.W. , 402 Wis. 2d 1, ¶20 (quoting § 51.20(1)(am) ). This method of proving dangerousness is necessary because " ‘an individual receiving treatment may not have exhibited any recent overt acts or omissions demonstrating dangerousness because the treatment ameliorated such behavior, but if treatment were withdrawn, there may be a substantial likelihood such behavior would recur.’ " M.W. , 402 Wis. 2d 1, ¶20 (quoting J.W.K. , 386 Wis. 2d 672, ¶19 ). If the County relies on § 51.20(1)(am) to prove dangerousness, a link to one of the five dangerousness standards enumerated in § 51.20(1)(a) 2 is required. See D.J.W. , 391 Wis. 2d 231, ¶59. And, the circuit court must "make specific factual findings with reference to the subdivision paragraph of WIS. STAT. § 51.20(1)(a)2. on which the recommitment is based" so that: (1) an individual will know which dangerousness standard forms the basis of the recommitment; and (2) appellate courts receive a better record to review. D.J.W. , 391 Wis. 2d 231, ¶¶3, 42-44.

¶7 Our supreme court imposed this directive because, in D.J.W. , the circuit court's failure to identify the specific dangerousness standard created confusion on appeal. Id. , ¶¶38-40. Specifically, before the court of appeals, the county did not identify a specific dangerousness standard, which resulted in the court of appeals selecting WIS. STAT. § 51.20(1)(a) 2.d during the course of its analysis. At oral argument before the supreme court, however, the county argued that the recommitment was based on the third standard, § 51.20(1)(a) 2.c. D.J.W. , 391 Wis. 2d 231, ¶¶38-40.

¶8 The significance of the directive set forth in D.J.W. , as our supreme court acknowledged in Sauk County v. S.A.M. , is to ensure that all parties and the reviewing courts know which statutory dangerousness standard the recommitment is based upon. See Sauk County v. S.A.M. , 2022 WI 46, ¶36, 402 Wis. 2d 379, 975 N.W.2d 162. Failure to identify the particular dangerousness standard deprives the commitment subject of due process and interferes with an appellate court's ability to review a challenge to the sufficiency of the evidence.

¶9 Here, A.P.D. makes two arguments. First, he contends the evidence is insufficient to prove he suffers from a mental illness. Second, he contends the evidence is insufficient to prove he is dangerous. These issues present "a mixed question of law and fact"; this court "uphold[s] a circuit court's findings of fact unless they are clearly erroneous[,]" but whether the facts satisfy the statutory standard of dangerousness is a question of law this court reviews de novo. See D.J.W. , 391 Wis. 2d 231, ¶¶24-25. " ‘When the trial court acts as the finder of fact, it is the ultimate arbiter of the credibility of the witnesses and of the weight to be given to each witness's testimony.’ " S.A.M. , 402 Wis. 2d 379, ¶33 (citation omitted).

A. Mental illness

¶10 A.P.D. argues there is insufficient evidence to support the circuit court's determination that he suffers from a mental illness because the only evidence in support of the diagnosis is "conclusory" testimony his treating psychiatrist, Dr. Monese, provided. A.P.D. contends Dr. Monese needed to give more details about his mental illness and diagnosis before the circuit court could find he had a mental illness. This court rejects A.P.D.’s argument.

¶11 First, A.P.D. did not challenge whether he had a mental illness at his trial. Rather, he focused only on whether he was dangerous. Thus, he cannot raise issues on appeal that he did not raise in the circuit court. See State v. Mercado , 2021 WI 2, ¶35, 395 Wis. 2d 296, 953 N.W.2d 337 (recognizing that courts generally do not allow attorneys to "sandbag" the other side by not raising an issue below and then "alleg[e] reversible error upon [appellate] review"). The transcript, in fact, reflects that A.P.D.’s counsel suggested that A.P.D. is not dangerous because he recognizes that he has a mental illness that requires him to take medication. Referring to notes in A.P.D.’s medical chart, A.P.D.’s counsel pointed out that A.P.D. told staff that "he needed help with his mental health because he was hearing too many voices" and "was requesting Thorazine."⁴

¶12 Second, the circuit court accepted Dr. Monese's testimony as sufficient proof that A.P.D. suffered from a mental illness. It did so based on Dr. Monese's expertise and experience and because the doctor had been treating A.P.D. for his mental illness for some time. It is necessary for circuit courts to rely on the testimony of doctors because "[w]hether a person is mentally ill is a medical judgment, made by applying the definition of mental illness in WIS. STAT. § 51.01(13)(b) [.]" State v. Dennis H. , 2002 WI 104, ¶19, 255 Wis. 2d 359, 647 N.W.2d 851 (emphasis added; citation omitted). The circuit court found Dr. Monese...