Outagamie County v. X. Z. B. ( 2021 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 22, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2020AP2058 Cir. Ct. No. 2007ME248
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
IN THE MATTER OF THE MENTAL COMMITMENT OF X. Z. B.:
OUTAGAMIE COUNTY,
PETITIONER-RESPONDENT,
V.
X. Z. B.,
RESPONDENT-APPELLANT.
APPEAL from orders of the circuit court for Outagamie County:
EMILY I. LONERGAN, Judge. Reversed.
¶1 STARK, P.J.1 Xander appeals orders entered under WIS. STAT.
ch. 51 extending his involuntary commitment and subjecting him to involuntary
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2019-20). All
references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2020AP2058
medication and treatment.2 Xander argues the evidence was insufficient to support
the circuit court’s conclusion that he is dangerous. In response,
Outagamie County argues this appeal is moot because the orders in question have
expired. In the alternative, the County argues the evidence was sufficient to
support the court’s determination of dangerousness.
¶2 Assuming without deciding that this appeal is moot, we nevertheless
conclude that it falls within multiple exceptions to the mootness doctrine, and we
therefore choose to address the merits of Xander’s arguments. As explained in
greater detail below, we agree with Xander that the evidence was insufficient to
support the circuit court’s finding of dangerousness under WIS. STAT.
§ 51.20(1)(a)2.c. That subdivision paragraph required the County to prove that
there was a “substantial probability” of physical impairment to Xander or to other
individuals. Id. A “substantial probability” does not exist under § 51.20(1)(a)2.c.
if the subject individual “may be provided protective placement or protective
services under [WIS. STAT.] ch. 55.”
¶3 It is undisputed that at all times relevant to this appeal, Xander was
subject to a WIS. STAT. ch. 55 protective placement. The County did not,
however, introduce sufficient evidence at the extension hearing to prove, by clear
and convincing evidence, that the ch. 55 exclusion in WIS. STAT. § 51.20(1)(a)2.c.
did not apply to Xander. Accordingly, the County failed to prove that Xander was
dangerous under that subdivision paragraph. We therefore reverse the order
2
For ease of reading, we refer to the appellant in this confidential matter using a
pseudonym, rather than his initials.
2
No. 2020AP2058
extending Xander’s WIS. STAT. ch. 51 involuntary commitment, as well as the
associated order for involuntary medication and treatment.
BACKGROUND
¶4 Xander has been involuntarily committed under WIS. STAT. ch. 51
since November 2007, when an initial commitment order was entered for a period
of six months. Thereafter, twelve additional orders were entered, each of which
extended Xander’s commitment for a twelve-month period. The last of those
orders was set to expire on May 11, 2020.
¶5 On March 20, 2020, the County filed another petition seeking to
extend Xander’s commitment. The circuit court held a hearing on the County’s
petition, at which two witnesses testified—psychiatrist Marshall Bales and social
worker Kathy Nyman.3
¶6 Bales testified that he had been assigned by the circuit court to
examine Xander. Based on that examination, Bales testified that Xander has “a
very long-standing diagnosis” of “chronic severe” schizophrenia. Bales stated
Xander’s schizophrenia has “been treatable, but he does have some break-through
psychotic symptoms.” Specifically, Bales testified that Xander reported
“hear[ing] voices once in a while, … and he will act on those hallucinations as
well periodically.” Bales further stated that Xander “gets this injectable
3
The record contains two different spellings of the social worker’s last name. The
proper spelling appears to be Nyman.
We also observe that in addition to testifying at the extension hearing, Bales prepared a
report regarding Xander. That report was not introduced into evidence at the extension hearing,
however, and we therefore do not consider it. See Langlade Cnty. v. D.J.W., 2020 WI 41, ¶7 n.4,
391 Wis. 2d 231, 942 N.W.2d 277.
3
No. 2020AP2058
antipsychotic, and it is reported repeatedly that before he gets his shot, the
medicine by shot wears off, and he will get more irritable and psychotic for that
week.” Bales testified Xander also takes oral medication to treat his condition.
¶7 Bales acknowledged that Xander was subject to a guardianship and a
protective placement under WIS. STAT. ch. 55. He further testified that Xander
was “well placed” in a group home pursuant to his protective placement.
Nonetheless, Bales testified that there have been periods when Xander has
regressed in his treatment, “even with careful supervision, even with them making
sure he takes his medications.” In particular, Bales testified that one or two
months earlier, Xander “got psychotic,” heard voices, and tore wallpaper off the
wall in his room. Bales also testified that Xander had urinated in someone’s bed
“a few months ago,” either out of anger or psychotic thinking. Bales stated, “[S]o
that’s the concern even with protective placement and even with medications and
he still has these occasional episodes that occur …. [T]hat is why he needs
continued oversight.”
¶8 Bales testified that the earliest record he reviewed regarding Xander
dated from 2001. When asked to describe Xander’s historic “level of
dangerousness,” Bales responded that “the dangerousness has mainly been
difficulty caring for basic needs, but he can get threatening and assaultive at
times.” When pressed by the County to identify recent instances of threatening or
assaultive behavior, Bales responded:
Well, I don’t know of any examples other than what I’ve
said, and in his current placement with oversight, he does
okay, but he, he will—if he’s in a, a nonstructured setting,
he will use street drugs and alcohol. He will become
problematic, but with his current placement, he’s actually
well placed. He’s been known to be sexually inappropriate,
to be intrusive, psychotic, and it’s been literally decades of
this.
4
No. 2020AP2058
¶9 The County then asked Bales to identify “what … the current danger
is to [Xander] within the circumstances surrounding his diagnosis,” and Bales
responded:
He’s not—I know of no major violent acts over the last
year with, other than what I’ve said. There’s been no
suicide attempts, no assaults, no hospitalizations
psychiatrically to his credit, but I believe that is with
treatment and with structure. Now he’s placed in this
group home under his guardianship with protective
placement, but in my opinion, the commitment provides
extra support and safety for him and the medication order.
Ultimately, Bales opined that Xander would be a proper subject for commitment if
treatment were withdrawn, stating: “I just believe that there’s going to be
dangerousness in some way, whether that he relapses with alcohol or he, thoughts
of excitement and then it will be a hospitalization, police contact, criminal activity,
jail, something.”
¶10 Bales also opined that Xander was not competent to refuse
medication. He testified staff at the group home had reported that Xander has to
be prompted to take his medications and “certainly will not take [them] on his own
free will.” Bales subsequently clarified that in the recent past, although Xander
had forgotten to take his medications or needed to be prompted to do so, he had
not outright refused to take them.
¶11 Nyman, a social worker employed by the County, testified that she
had worked with Xander for approximately ten years, meeting with him every four
to six months. Nyman testified that during the prior year, Xander had shown
“some aggression” toward staff and his peers at the group home. Nyman then
elaborated that Xander had engaged in property damage when he was upset by
5
No. 2020AP2058
turning over a picnic table and destroying a yard statue, and that he had stolen
lawn chairs from his peers.
¶12 Nyman also testified that Xander “struggles with polydipsia”—i.e.,
excessive thirst—and “often when he is drinking, taking many fluids, he … will
become irritable and aggressive and then engage in bizarre behavior.” As
examples of that behavior, Nyman cited Xander’s hiding food and coffee grounds
in his room and tearing wallpaper off his wall. Nyman also stated that Xander had
“pulled a door off the hinges” and “threatened staff a while back,” which resulted
in a disorderly conduct ticket in 2018.
¶13 On cross-examination, Nyman acknowledged that Xander was under
a guardianship and protective placement, as a result of which he could receive
reminders to take his medications, even absent a WIS. STAT. ch. 51 commitment.
Nevertheless, Nyman expressed concern that without a commitment and
associated involuntary medication order, Xander “would … be able to refuse
medications and then decompensate further.” She acknowledged, however, that
although Xander had refused medications at times in the past, he had not done so
during the previous year.
¶14 In an oral ruling, the circuit court concluded that Xander was
mentally ill, dangerous, and a proper subject for treatment. With respect to
dangerousness, the court stated both Bales and Nyman had testified that Xander
engaged in “violent outbursts,” and Nyman had testified about “aggression toward
staff and peers within the past year.” The court also referenced Xander’s
polydipsia, “which apparently causes him to take too much fluid in, and he has to
have his fluid monitored all the time in order to make sure that he doesn’t take in
6
No. 2020AP2058
too much, and then he gets particularly irritable when he has.” The court then
concluded:
I do believe that based upon the aggression that he has
shown towards others that appears to be—well, it flares up
right before he gets his injectable medication and then it’s
under control after he receives it. Based upon those, I think
that there’s clear evidence that dangerousness, that he
would be recommitted if the commitment were withdrawn,
and I think he would imminently evidence such impaired
judgment that there would be a substantial probability of
injury to himself or others. And additionally, I also think
that imminently if we withdrew the commitment, there
would be evidence that he would be unable to satisfy his
basic needs for nourishment, medical care, shelter, other
safety.
¶15 The circuit court acknowledged that Xander was subject to a
guardianship. The court reasoned, however, that both Bales and Nyman “testified
he really needs constant supervision to ensure his medical needs including that
polydipsia as well as his mental health needs are properly taken care of, so he
needs that really high level of supervision to ensure that he has all of that taken
care of.” On these facts, the court stated the County had proved by clear and
convincing evidence that “if we withdraw the commitment … he would meet the
elements for commitment once again.” The court further found that Xander was
not competent to refuse medication.
¶16 On May 6, 2020, the circuit court entered a written order extending
Xander’s WIS. STAT. ch. 51 commitment for a period of one year, as well as an
order for involuntary medication and treatment during the period of his
7
No. 2020AP2058
commitment. Xander now appeals, challenging the sufficiency of the evidence to
support the court’s determination regarding dangerousness.4
DISCUSSION
I. Mootness
¶17 As an initial matter, the County asserts that this appeal is moot.
Mootness presents a question of law that we review independently. Portage Cnty.
v. J.W.K., 2019 WI 54, ¶10, 386 Wis. 2d 672, 927 N.W.2d 509. “An issue is moot
when its resolution will have no practical effect on the underlying controversy.”
Id., ¶11 (citation omitted). We generally decline to address moot issues, and if all
issues on appeal are moot, the appeal should be dismissed. Id., ¶12.
¶18 The County argues Xander’s appeal is moot because the orders he
challenges were entered on May 6, 2020, and therefore expired on May 6, 2021.
An appeal from an expired commitment order is moot, unless the order results in
collateral consequences that persist even after the order has expired. See id., ¶¶14,
28 & n.11; Marathon Cnty. v. D.K., 2020 WI 8, ¶¶22-25, 390 Wis. 2d 50, 937
N.W.2d 901. Xander contends that even though the May 6, 2020 orders have
expired, he remains subject to a variety of collateral consequences stemming from
those orders. In response, the County asserts that Xander’s alleged collateral
consequences are speculative, as Xander has not shown that those consequences
4
Xander appeals both the circuit court’s order extending his commitment and the court’s
order for involuntary medication and treatment. He does not, however, raise any arguments
specifically pertaining to the involuntary medication order. Nonetheless, Xander correctly notes
that reversal of the order extending his commitment would also result in the reversal of the
involuntary medication order, as the involuntary medication order is tied to the existence of a
lawful commitment. See WIS. STAT. § 51.61(1)(g)3.
8
No. 2020AP2058
were caused by the May 6, 2020 orders specifically, as opposed to Xander’s many
prior commitment orders.
¶19 We need not address the issue of collateral consequences. Assuming
without deciding that Xander’s appeal is moot, we nevertheless choose to address
the merits of his arguments. An appellate court may elect to address a moot issue
if any of the following exceptions applies: (1) the issue is of great public
importance; (2) the constitutionality of a statute is involved; (3) the issue arises so
often that a definitive decision is essential to guide circuit courts; (4) the issue is
likely to arise again and should be resolved to avoid uncertainty; or (5) the issue is
capable and likely of repetition, yet evades review. J.W.K., 386 Wis. 2d 672, ¶12.
¶20 Multiple exceptions to the mootness doctrine apply in this case.
First, Xander’s appeal presents an issue of great public importance—namely, what
evidence a petitioner must present to establish dangerousness under WIS. STAT.
§ 51.20(1)(a)2.c. when the individual is also subject to a protective placement
under WIS. STAT. ch. 55. We addressed a similar issue in Dane County v.
Kelly M., 2011 WI App 69, ¶¶1-3, 333 Wis. 2d 719, 798 N.W.2d 697, but that
case pertained to the standard of dangerousness set forth in § 51.20(1)(a)2.e., not
§ 51.20(1)(a)2.c. We therefore agree with Xander that this appeal presents a novel
legal issue, and one that “implicates the weighty liberty interests of every
individual under guardianship and protective placement.”
¶21 Second, the issue presented by this appeal is likely to arise again in
other cases in which petitioners seek WIS. STAT. ch. 51 commitments of
individuals who are also subject to protective placements under WIS. STAT. ch. 55.
The proper application of the ch. 55 exclusion in WIS. STAT. § 51.20(1)(a)2.c.
should therefore be resolved to avoid uncertainty in future cases.
9
No. 2020AP2058
¶22 Finally, the issue in this appeal is capable and likely of repetition,
yet evades review. The “capable of repetition, yet evading review” doctrine “is
limited to situations involving ‘a reasonable expectation that the same complaining
party would be subjected to the same action again.’” J.W.K., 386 Wis. 2d 672,
¶30 (citation omitted). The County argues this exception does not apply because
“the issue in this case is the sufficiency of the evidence from the hearing on
May 6th 2020, [and] it would be impossible to subject [Xander] to the same
hearing again. He could only be subjected to a subsequent extension which is
separate and distinct from the action at issue in this case.”
¶23 Be that as it may, there is no evidence in the record to indicate that
Xander is no longer subject to a WIS. STAT. ch. 55 protective placement. Thus, in
the event the County later seeks to extend Xander’s existing WIS. STAT. ch. 51
commitment or files a new commitment petition, the same legal issue regarding
the ch. 55 exclusion in WIS. STAT. § 51.20(1)(a)2.c. will likely arise again.
Moreover, given that original commitment orders last a maximum of six months
and extension orders last up to twelve months, we agree with Xander that the issue
presented by this appeal is likely to evade review because, in most cases, it is
simply not possible to complete appellate review before a commitment order
expires. For these reasons, assuming without deciding that Xander’s appeal is
moot, we nevertheless elect to address the merits of his arguments.
II. Sufficiency of the evidence
¶24 To involuntarily commit an individual under WIS. STAT. ch. 51, the
petitioner has the burden to show by clear and convincing evidence that the
individual is: (1) mentally ill; (2) a proper subject for treatment; and
(3) dangerous to himself or herself or to others. WIS. STAT. § 51.20(1)(a)1.-2.,
10
No. 2020AP2058
(13)(e), (13)(g)3. In this case, Xander does not dispute that the County established
the first two of these elements. He argues, however, that the County failed to
present sufficient evidence to establish that he is dangerous.
¶25 Whether the County met its burden of proof to support the extension
of Xander’s commitment presents a mixed question of fact and law. See
Waukesha Cnty. v. J.W.J., 2017 WI 57, ¶15, 375 Wis. 2d 542, 895 N.W.2d 783.
We uphold the circuit court’s findings of fact unless they are clearly erroneous, but
whether the facts satisfy the statutory standard is a question of law that we review
independently. Id.¶26 WISCONSIN STAT. § 51.20(1)(a)2. sets forth five ways in which a
petitioner may establish that an individual is dangerous.5 Here, the circuit court
concluded Xander was dangerous under § 51.20(1)(a)2.c. and d.6 On appeal,
5
Each of the dangerousness standards in WIS. STAT. § 51.20(1)(a)2. requires the
petitioner to “identify recent acts or omissions demonstrating that the individual is a danger to
himself [or herself] or to others.” Portage Cnty. v. J.W.K., 2019 WI 54, ¶17, 386 Wis. 2d 672,
927 N.W.2d 509; see also § 51.20(1)(a)2.a.-e. However, in a recommitment proceeding, the
dangerousness requirement may instead 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.” Sec. 51.20(1)(am). Nevertheless,
even when applying the recommitment standard set forth in § 51.20(1)(am), a circuit court is
required to ground its decision regarding dangerousness in one or more of the standards set forth
in § 51.20(1)(a)2. D.J.W., 391 Wis. 2d 231, ¶¶40-45.
In this case, the circuit court acknowledged that WIS. STAT. § 51.20(1)(am) “does relieve
the burden essentially of proving a recent overt act, attempt, or threat to act if you can show that
there’s a substantial likelihood based upon the treatment record that the individual would be a
proper subject for commitment if treatment were withdrawn.” Regardless, the court stated that it
was limiting its analysis of Xander’s dangerousness to events that had occurred “within the past
year since the last recommitment hearing.”
6
Although the circuit court did not refer to the applicable subdivision paragraphs of WIS.
STAT. § 51.20(1)(a)2. by letter, it is clear from the court’s oral ruling that it found Xander
dangerous under § 51.20(1)(a)2.c. and d.
11
No. 2020AP2058
Xander argues the evidence at the extension hearing was insufficient to support a
determination that he was dangerous under either of those subdivision paragraphs.
In response, the County argues the evidence was sufficient to support a
determination of dangerousness under subd. para. c., but it does not address
Xander’s argument regarding subd. para. d. We therefore deem the County to
have conceded that the evidence was insufficient to establish dangerousness under
subd. para. d., and we confine our analysis to the sufficiency of the evidence under
subd. para. c.7 See Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90
Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979).
¶27 WISCONSIN STAT. § 51.20(1)(a)2.c. provides that an individual is
dangerous if he or she “[e]vidences such impaired judgment, manifested by
evidence of a pattern of recent acts or omissions, that there is a substantial
probability of physical impairment or injury to himself or herself or other
individuals.” The statute further states, however, that “[t]he probability of
physical impairment or injury is not substantial … if the individual may be
7
In addition to arguing that the evidence was sufficient to establish dangerousness under
WIS. STAT. § 51.20(1)(a)2.c., the County also argues that it presented sufficient evidence to
establish dangerousness under § 51.20(1)(a)2.b. As Xander correctly notes, however, the circuit
court did not find him dangerous under subd. para. b. We agree with Xander that because the
court did not make “specific factual findings with reference to” subd. para. b., affirming the
extension of his commitment based on that subdivision paragraph would require us to engage in
“guesswork” and would therefore be improper. See D.J.W., 391 Wis. 2d 231, ¶¶44-45. As such,
we decline to address the County’s argument regarding subd. para. b.
12
No. 2020AP2058
provided protective placement or protective services under ch. 55.”8
Sec. 51.20(1)(a)2.c.
¶28 The circuit court did not expressly address the WIS. STAT. ch. 55
exclusion in WIS. STAT. § 51.20(1)(a)2.c. when determining whether Xander was
dangerous under that subdivision paragraph. In particular, the court did not
address the effect of Xander’s ch. 55 protective placement on the County’s burden
to prove that a “substantial probability” of harm existed as required by
subd. para. c. In his brief-in-chief on appeal, Xander argues that because he is
subject to a protective placement, the ch. 55 exclusion necessarily applies to him,
and, as a result, the court could not find him dangerous under subd. para. c. as a
matter of law.
¶29 In response, the County argues the mere fact that Xander is subject
to a protective placement does not end the analysis of whether the WIS. STAT.
ch. 55 exclusion in WIS. STAT. § 51.20(1)(a)2.c. applies to him. Instead, the
County argues we should follow the analysis set forth in Kelly M. The County
further asserts that the Kelly M. analysis compels a conclusion that the ch. 55
exclusion in subd. para. c. does not apply here. In his reply brief, Xander agrees
that the Kelly M. analysis is applicable in this case, but he asserts Kelly M. actually
8
Although we deem the County to have conceded that the evidence at the extension
hearing was insufficient to establish dangerousness under WIS. STAT. § 51.20(1)(a)2.d., we
observe that like subd. para. c., subd. para. d. requires the petitioner to prove a “substantial
probability” of harm and further provides that no such substantial probability exists “if the
individual may be provided protective placement or protective services under ch. 55.”
Sec. 51.20(1)(a)2.d. Accordingly, while we do not address the sufficiency of the evidence under
subd. para. d., we see no reason why our analysis of the WIS. STAT. ch. 55 exclusion in
subd. para. c. would not also apply to subd. para. d.
13
No. 2020AP2058
supports a conclusion that the court erred by finding him dangerous under
subd. para. c.
¶30 Kelly M. was already subject to a guardianship and a protective
placement under WIS. STAT. ch. 55 when Dane County filed a petition to
involuntarily commit her under WIS. STAT. ch. 51. Kelly M., 333 Wis. 2d 719, ¶4.
The circuit court granted the County’s petition after finding Kelly dangerous under
WIS. STAT. § 51.20(1)(a)2.e., which is commonly known as the “fifth standard” of
dangerousness. Kelly M., 333 Wis. 2d 719, ¶¶1, 6. The fifth standard applies
when, among other things, there is a
substantial probability that [the subject individual] will, if
left untreated, lack services necessary for his or her health
or safety and suffer severe mental, emotional, or physical
harm that will result in the loss of the individual’s ability to
function independently in the community or the loss of
cognitive or volitional control over his or her thoughts or
actions.
Sec. 51.20(1)(a)2.e. The fifth standard also provides, however, that “[t]he
probability of suffering severe mental, emotional, or physical harm is not
substantial … if the individual may be provided protective placement or protective
services under ch. 55.” Sec. 51.20(1)(a)2.e.
¶31 On appeal, Kelly argued that because she was subject to a protective
placement under WIS. STAT. ch. 55, she could not, as a matter of law, be found
dangerous under WIS. STAT. § 51.20(1)(a)2.e. Kelly M., 333 Wis. 2d 719, ¶19.
Stated differently, Kelly argued that “for any person eligible for or already subject
to protective placement or services under … ch. 55, there can never be a
substantial probability of the requisite harm” for purposes of the fifth standard.
Kelly M., 333 Wis. 2d 719, ¶19.
14
No. 2020AP2058
¶32 We rejected Kelly’s interpretation of WIS. STAT. § 51.20(1)(a)2.e.,
reasoning that it was inconsistent with the purpose of the WIS. STAT. ch. 55
exclusion—i.e., “to avoid commitment for treatment if it is reasonably probable …
that placement or services available under … ch. 55 will provide the needed
treatment.” Kelly M., 333 Wis. 2d 719, ¶¶21-22. We explained that it would be
unreasonable “to preclude persons from being committed for treatment under the
fifth standard simply because they are or could be the subject of a … ch. 55 order
even if the placement or services available under ch. 55 would not reduce the
probability of ‘severe mental, emotional, or physical harm.’” Kelly M., 333
Wis. 2d 719, ¶22 (quoting § 51.20(1)(a)2.e.).
¶33 Nevertheless, we also rejected the County’s position that the WIS.
STAT. ch. 55 exclusion in WIS. STAT. § 51.20(1)(a)2.e. “mean[s] that the
probability of harm is not substantial … only if the person’s existing protective
placement or services are effective to meet the person’s needs.” Kelly M., 333
Wis. 2d 719, ¶¶20, 24. We instead concluded that the ch. 55 exclusion applies
both to individuals who are eligible for, but not yet subject to, ch. 55 orders, and
individuals who are “already subject to an order for protective placement or
services, if there is another placement or additional services available under …
ch. 55 that would be effective in reducing the probability of the requisite harm to
less than a substantial probability.” Kelly M., 333 Wis. 2d 719, ¶32. We further
concluded that “involuntary administration of medication under [WIS. STAT.]
§ 55.14 may be one of the additional services that would satisfy this exclusion, if
the [individual’s] guardian consents and depending on the individual’s
circumstances.” Kelly M., 333 Wis. 2d 719, ¶32.
¶34 As noted above, both Xander and the County assert that the Kelly M.
analysis is applicable in this case, even though Kelly M. addressed the fifth
15
No. 2020AP2058
standard of dangerousness—WIS. STAT. § 51.20(1)(a)2.e.—rather than
§ 51.20(1)(a)2.c. We agree that Kelly M. provides the applicable framework for
our analysis. The WIS. STAT. ch. 55 exclusion in subd. para. c. is identical to the
ch. 55 exclusion in subd. para. e. Both exclusions state that the probability of the
requisite harm is not substantial “if the individual may be provided protective
placement or protective services under ch. 55.” See § 51.20(1)(a)2.c., e. We see
no reason why Kelly M.’s analysis of the ch. 55 exclusion in subd. para. e. would
not be equally applicable to the identical exclusion in subd. para. c.
¶35 Applying the Kelly M. framework to this case, we reject Xander’s
original argument that because he is subject to a protective placement under WIS.
STAT. ch. 55, he cannot, as a matter of law, be found dangerous under WIS. STAT.
§ 51.20(1)(a)2.c. Instead, the dispositive question under Kelly M. is whether there
are services available to Xander under ch. 55 “that would be effective in reducing
the probability of the requisite harm to less than a substantial probability.” See
Kelly M., 333 Wis. 2d 719, ¶32.
¶36 The County failed to present any evidence that no such services were
available to Xander under WIS. STAT. ch. 55, nor did the circuit court make any
findings to that effect. Again, in order to extend Xander’s commitment, the
County had the burden to prove that he was dangerous by clear and convincing
evidence. See WIS. STAT. § 51.20(1)(a)2., (13)(g)3. Thus, under
§ 51.20(1)(a)2.c., the County had the burden to prove there was a “substantial
probability” of physical impairment or injury to Xander or others. Because
subd. para. 2.c. provides that no such “substantial probability” exists “if the
individual may be provided protective placement or protective services under
[WIS. STAT.] ch. 55,” and because the undisputed evidence at the extension
hearing showed that Xander was under a ch. 55 protective placement, it was the
16
No. 2020AP2058
County’s burden to show that the protective placement and associated services
under ch. 55 were not enough to reduce the probability of harm below a
substantial probability.9
¶37 The County failed to meet its burden. Bales testified that “even with
protective placement and even with medications,” Xander “still has these
occasional episodes that occur …. [T]hat is why he needs continued oversight.”
However, Bales did not explain what additional “oversight” was available under a
WIS. STAT. ch. 51 commitment that was not also available under ch. 55. Bales
conceded that Xander was “well placed” in a group home pursuant to his
protective placement, and he did not suggest that a higher level of confinement
under ch. 51 was necessary or appropriate to meet Xander’s needs—such as
placement in a locked or unlocked inpatient facility.
¶38 Moreover, the County failed to present any evidence that an
involuntary medication order under WIS. STAT. § 55.14 would not be effective in
reducing the probability of harm under WIS. STAT. § 51.20(1)(a)2.c. to less than a
substantial probability. In their testimony, both Bales and Nyman emphasized that
extending Xander’s WIS. STAT. ch. 51 commitment was necessary, despite his
protective placement, because Xander would be dangerous if not subject to an
involuntary medication order. Bales testified, for instance, that although Xander is
“well placed” in a group home under his protective placement, “the commitment
provides extra support and safety for him and the medication order.” (Emphasis
added.) Bales also expressed concern that Xander has to be reminded by group
9
The County does not develop any argument on appeal that Xander had the burden to
prove the WIS. STAT. ch. 55 exclusion in WIS. STAT. § 51.20(1)(a)2.c. applied to him, rather than
the County having the burden to prove that exclusion did not apply to Xander.
17
No. 2020AP2058
home staff to take his medications and “certainly will not take [them] on his own
free will.”
¶39 Nyman, in turn, testified that although Xander had not refused
medications during the prior year and could continue to receive reminders to take
his medications under his protective placement, the “concern” was that without the
WIS. STAT. ch. 51 commitment and associated involuntary medication order,
Xander “would … be able to refuse medications and then decompensate further.”
Thus, Bales and Nyman both tied the need for an extension of Xander’s ch. 51
commitment to the continued need for an involuntary medication order under that
chapter. Neither witness, however, testified as to whether Xander’s need for
medication could be addressed by a medication order under WIS. STAT. § 55.14.
¶40 As a general matter, a circuit court may enter a medication order
under WIS. STAT. § 55.14 if the individual’s guardian consents; if the individual is
not competent to refuse psychotropic medication; and if without that medication,
the individual will present a substantial probability of physical harm to himself or
herself or to others. See § 55.14(2), (3). In addition, there must be a showing that
the individual has refused to take the medication voluntarily, or that efforts to
administer the medication voluntarily would not be feasible or in the individual’s
best interest. Sec. 55.14(3)(c).
¶41 Here, the County presented no evidence indicating that it would be
unable to obtain a medication order under WIS. STAT. § 55.14 as part of Xander’s
protective placement. The County did not, for instance, present evidence that
Xander’s guardian would not consent to the entry of such an order. Nor did the
County show that it had previously attempted, but failed, to obtain a medication
order under § 55.14. The County therefore failed to meet its burden to prove that a
18
No. 2020AP2058
§ 55.14 medication order would not be effective in reducing Xander’s risk of harm
under WIS. STAT. § 51.20(1)(a)2.c. to less than a substantial probability. We agree
with Xander that, under these circumstances, the County failed to present
sufficient evidence to support a finding that he was dangerous under subd. para. c.
As such, we reverse the circuit court’s May 6, 2020 orders extending Xander’s
commitment and subjecting him to involuntary medication and treatment.
¶42 We acknowledge that in Kelly M., the circuit court did not rule on
the applicability of the WIS. STAT. ch. 55 exclusion or make any findings as to
whether an involuntary medication order under WIS. STAT. § 55.14 would reduce
Kelly’s probability of harm below the substantial probability threshold. Kelly M.,
333 Wis. 2d 719, ¶33. In addition, the evidence in Kelly M. did not indicate
whether Kelly’s guardian would have consented to an involuntary medication
order. Id. Under those circumstances, we stated in Kelly M. that the appropriate
remedy would normally be to remand for further proceedings on the applicability
of the ch. 55 exclusion. Kelly M., 333 Wis. 2d 719, ¶33. We concluded, however,
that a remand for further proceedings was unnecessary because Kelly had recently
died. Id.¶43 We agree with Xander that, in this case, a remand for further
proceedings would be inappropriate for two reasons. First, our review of the
evidence presented at the extension hearing shows that the County did not
introduce any evidence regarding the availability of additional services under WIS.
STAT. ch. 55 that would reduce Xander’s risk of harm below the substantial
probability threshold needed to find him dangerous under WIS. STAT.
§ 51.20(1)(a)2.c. In particular, the County did not introduce any evidence as to the
availability of a medication order under WIS. STAT. § 55.14. A remand for the
circuit court to make findings on those issues based upon the existing record
19
No. 2020AP2058
would therefore serve no purpose, as there is simply no evidence in the record
pertaining to them.
¶44 Second, a circuit court “must hold a hearing on [a] petition for
extension [of a WIS. STAT. ch. 51 commitment] before the previous order expires
or it loses competency to extend the commitment.” J.W.K., 386 Wis. 2d 672, ¶20.
The commitment order that preceded the extension order at issue in this appeal
expired on May 11, 2020. As a result, if we were to reverse and remand for
further proceedings on the County’s petition to extend Xander’s commitment, the
circuit court would lack competency to conduct those proceedings. On these facts,
we conclude the appropriate course of action is to reverse the court’s May 6, 2020
orders outright, rather than remanding for further proceedings regarding the
applicability of the WIS. STAT. ch. 55 exclusion.
By the Court.—Orders reversed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.
20