Outagamie County Department of Health and Human Services v. M. D. H. ( 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.
July 13, 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. 2020AP86 Cir. Ct. No. 2018ME423
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III
IN THE MATTER OF THE MENTAL COMMITMENT OF M. D. H.:
OUTAGAMIE COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES,
PETITIONER-RESPONDENT,
V.
M. D. H.,
RESPONDENT-APPELLANT.
APPEAL from orders of the circuit court for Outagamie County:
VINCENT R. BISKUPIC, Judge. Affirmed.
No. 2020AP86
¶1 HRUZ, J.1 Matthew2 appeals from an order of commitment and an
order for involuntary medication and treatment entered pursuant to WIS. STAT.
§ 51.20. Matthew challenges the sufficiency of the evidence establishing that he
was dangerous to himself or others under § 51.20(1)(a)2. We affirm.
BACKGROUND
¶2 In December 2018, Matthew went to Ascension St. Elizabeth’s
Hospital accompanied by his brother, showing signs of significant confusion and
disorientation. Matthew was unable to answer basic questions or provide a
background history to hospital staff. When he demanded to leave and refused to
cooperate with treatment, he was detained on an emergency basis pursuant to WIS.
STAT. § 51.15 and transferred to the behavioral health section of the hospital. At a
subsequent probable cause hearing, the circuit court found probable cause to
believe that Matthew was mentally ill, a proper subject for treatment, and
dangerous to himself or others. The court also entered an order for involuntary
medication and treatment for the period up to the final hearing, pursuant to WIS.
STAT. § 51.61(1)(g)2.
¶3 A final commitment hearing was held on December 20, 2018.
Psychiatrist Marshall Bales testified that he believed to a reasonable degree of
professional and medical certainty that Matthew suffered from a major mental
illness or disorder—i.e., a “psychotic disorder not otherwise specified”—and was
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.
2
For ease of reading, we refer to the appellant in this confidential matter using a
pseudonym, rather than his initials.
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No. 2020AP86
a proper subject for treatment. Bales testified that in interviewing Matthew, he
observed that Matthew was unable to “rationally have a coherent discussion,” and
that he appeared “confused and suspicious.” Bales recounted conversations with
Matthew’s family, stating that their concerns made it apparent that Matthew had
been erratic “for some time.” Bales further testified that certain incidents
evidenced Matthew’s erratic and dangerous behavior. In particular, Matthew had
gone to his former workplace and falsely announced himself as the company’s
chief executive officer. Bales also noted that Matthew had recently driven off
from a gas station without paying for gas, and when he returned to the station, his
interactions with police ultimately led to him being charged with resisting arrest.
Moreover, Matthew later could not understand that the incident had occurred or
why he had been arrested. These incidents all occurred while Matthew was “in a
psychotic state, which had been developing over several weeks or months.”
¶4 Bales further commented that Matthew’s condition was “very
treatable,” but that due to his psychotic state of mind, Matthew required inpatient
care. According to Bales, if Matthew did not receive treatment, the very erratic
nature of his behavior would be a serious concern, in that Matthew might
physically impair himself. As Bales further explained, “anything could happen”
as a result of Matthew’s erratic mental state. “[He] could walk outside in cold
weather. He could get in a car accident. He’s already been noted to be just not
functioning in a way that is compatible with safe, independent living.” Finally,
Bales noted that Matthew was unable to rationally talk to him about pursuing help
voluntarily, nor was he competent to agree to voluntary help, or to make an
informed choice about taking medication due to his illness.
¶5 Thomas Jankowski, the admitting registered nurse in Ascension’s
behavioral health unit, also testified at the hearing. He recounted that after
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No. 2020AP86
Matthew was admitted, his behavior “started to escalate,” and he started following
one of the patients around and began “getting into his face.” After being told he
could not leave, Matthew began prying the door handle, banging on windows,
swearing, and pointing and yelling at the people around him. Jankowski testified
that Matthew had been shaking and “swinging” his fists, and eventually he had to
be placed in a safe room.
¶6 Matthew also testified at the final commitment hearing. Following
his testimony, the circuit court concluded, based on the testimony at the hearing
and the contents of Bales’ report (which we discuss in greater detail below), that
Matthew was unable to care for his basic needs and was a danger to himself. It
also concluded that he suffered from a mental illness and was a proper subject for
treatment. The court entered an order for involuntary commitment accompanied
by an order for involuntary medication and treatment, both to remain in effect for
a period of six months. Matthew appeals.3
DISCUSSION
¶7 In a WIS. STAT. ch. 51 proceeding, a petitioner has the burden to
prove by clear and convincing evidence that a subject individual is mentally ill, a
proper subject for treatment, and dangerous to himself or herself, or to others. See
WIS. STAT. § 51.20(1)(a), (13)(e). Whether this burden has been met presents a
3
Matthew argues that even though his commitment order expired in 2019 and the
County did not seek recommitment, his appeal is not moot. We agree that the appeal is not moot
because the commitment order continues to prohibit Matthew from owning a firearm, and he is
therefore subject to a lasting collateral consequence of the order. See Marathon Cnty. v. D.K.,
2020 WI 8, ¶25, 390 Wis. 2d 50, 937 N.W.2d 901. Additionally, the County did not rebut the
mootness argument in its brief and instead addressed the merits of Matthew’s appeal. Arguments
not refuted are deemed admitted. See Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90
Wis. 2d 97, 108-09, 279 N.W.2d 493 (Ct. App. 1979).
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No. 2020AP86
mixed question of fact and law. 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. Id. Whether these findings satisfy the statutory
standards is a question of law we review de novo.4 Id.¶8 A petitioner may prove that a person is dangerous and warrants
commitment under any of the five standards set forth in WIS. STAT.
§ 51.20(1)(a)2.a.-e. See Langlade Cnty. v. D.J.W., 2020 WI 41, ¶30, 391 Wis. 2d
231, 942 N.W.2d 277. Matthew contends the County failed to establish
dangerousness under WIS. STAT. § 51.20(1)(a)2.d., which provides that an
individual is dangerous if he or she:
Evidences behavior manifested by recent acts or omissions
that, due to mental illness, he or she is unable to satisfy
basic needs for nourishment, medical care, shelter, or safety
without prompt and adequate treatment so that a substantial
probability exists that death, serious physical injury, serious
physical debilitation, or serious physical disease will
imminently ensue unless the individual receives prompt
and adequate treatment for this mental illness.
Bales’ report, the circuit court’s assessment of Matthew’s behavior at the
commitment hearing, and the remainder of the record provide clear and
4
The final circuit court decision in this case was issued in December 2018. Our supreme
court has since implemented a requirement in Langlade County v. D.J.W., 2020 WI 41, ¶3, 391
Wis. 2d 231, 942 N.W.2d 277, that “going forward circuit courts in recommitment proceedings
are 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.” While D.J.W. addressed a recommitment
petition and not, as here, an initial commitment, we assume the court’s ruling regarding the
specific reference to a statutory dangerousness standard equally applies to initial commitments.
See Winnebago Cnty. v. A.A.L., No. 2020AP1511, unpublished slip op. ¶17 n.8 (WI App Mar.
24, 2021).
Because the circuit court was not yet subject to this requirement when it made its factual
findings, we will search the record and the court’s decision for specific facts that apply to the
dangerousness determination at issue.
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No. 2020AP86
convincing evidence that Matthew was unable to care for his own basic needs due
to his mental illness, and that a substantial probability existed that death or serious
physical injury would occur to him absent treatment.5
¶9 Bales’ report, which the circuit court considered and which was
entered into evidence at the commitment hearing, made it clear that Matthew had
experienced numerous emergency assessments by the County in the months
leading up to his commitment, and that his psychosis had progressively worsened
to the point where he was unable to care for his basic needs. Matthew’s siblings,
one of whom had accompanied Matthew to the hospital, indicated that Matthew
had been unable to pay his bills, care for his own property, or maintain his
personal hygiene, that he would laugh hysterically, and that they were generally
concerned for his safety and welfare. The substantial risk to Matthew was
highlighted by recent public incidents that Bales concluded had occurred as a
result of his psychosis—both at Matthew’s workplace and at a gas station—the
latter of which led to Matthew being charged with resisting arrest. Matthew’s
family also explained to Bales that Matthew had told them his television was
looking at and talking to him, and that Matthew thought he had been nominated by
President Trump to be the next supreme court justice.
¶10 Bales’ testimony at the hearing regarding his assessment of
Matthew, as discussed above, further evidences Matthew’s inability to care for
5
Matthew notes that the County’s brief cites both the transcript of the probable cause
hearing and the report of the examining psychologist, L. William Topel, but that neither citation
is proper because those documents were not admitted into evidence at the final hearing. The facts
relevant to the dangerousness determination in this appeal as well as to the substance of the
County’s arguments were not located in these separate documents, and so these citations have no
effect on the outcome of the case on appeal.
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No. 2020AP86
himself and the resulting danger therefrom. Matthew was unable to understand his
medication options, nor was he “competent to agree to any kind of voluntary
help,” and he had trouble thinking clearly or rationally due to his psychosis. The
circuit court, too, noted that Matthew’s behavior on the witness stand was
consistent with Bales’ report, stating: “[H]is demeanor and presentation is, at
times, confusing. Speech is disorganized in some ways. Doesn’t seem completely
clear in his thoughts. And he may parrot some things that are presented to him.”
¶11 Matthew argues that in D.J.W., factors like being unable to maintain
a job or relying on family support did not indicate an inability to take care of one’s
self, or otherwise support a dangerousness determination. Because Matthew does
not need to rely on family members for support or income, and because he had
kept a job in the past, he argues that there was insufficient evidence to show that
he could not take care of himself,6 and that there is not a substantial probability
that death or physical injury could imminently ensue from his inability to satisfy
his basic needs. One’s inability to keep a job, or his or her reliance on family
members, does not alone indicate an inability to satisfy one’s basic needs such that
a “substantial probability” of death or serious injury exists. D.J.W., 391 Wis. 2d
231, ¶¶53-55. However, there are significant facts surrounding Matthew’s illness
that show erratic and potentially dangerous behavior beyond simply needing to be
cared for by his family.
6
Both parties dedicated significant portions of their briefs to discussing whether
Matthew allegedly drank spoiled milk, and what effect that act might have had on whether he
could care for himself. But, the circuit court explicitly disregarded this issue in its decision
because the specific facts were contested, and the record supported a dangerousness finding
without considering the alleged milk incident.
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No. 2020AP86
¶12 This case is distinct from D.J.W., where the only danger to
withdrawing treatment was that D.J.W. would need the support of his family given
his inability to maintain a job due to his schizophrenia. Id., ¶¶51-55. Here,
Matthew’s family went with him to the hospital to seek help, and they raised
numerous and significant concerns to Bales about Matthew’s deteriorating
behavior and his inability to live alone or take care of himself. Matthew’s
behavior and progressing psychosis evidence a far more serious danger than was
established in D.J.W., and his family’s reactions and fears show that their support
alone would not suffice to handle Matthew’s illness.
¶13 Additionally, in D.J.W., the opining doctor testified only to
generalized propositions about people with schizophrenia, which the circuit court
concluded was not sufficient to presume future danger to D.J.W. Id., ¶51.
Matthew argues the same limitation happened in his case. To the contrary, Bales’
conclusions were grounded in evidence from a number of specific incidents, his
personal observations of Matthew, and detailed reports of recent behavior from
Matthew’s family. Based on these considerations, Bales specifically noted that
although he could not predict what would happen, Matthew’s erratic behavior
could cause Matthew to “walk outside in cold weather … [or] … get in a car
accident” as he was not “functioning in a way that is compatible with safe,
independent living.”
¶14 Matthew’s argument essentially contends Bales could not validly
conclude that Matthew’s inability to care for himself—including his need for
multiple emergency contacts and assessments, and his resisting arrest—was
caused by his worsening psychosis. We disagree with this notion, and the record
was sufficient to presume future danger to Matthew due to his mental state. The
circuit court is the arbiter of credibility in assessing expert testimony, and
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No. 2020AP86
Matthew does not allege that its assessment was flawed such that we would deem
it to be clearly erroneous. See State v. Curiel, 227 Wis. 2d 389, 421, 597 N.W.2d
697 (1999).
¶15 Based on the evidence introduced at the final commitment hearing,
the circuit court properly determined that Matthew was dangerous under WIS.
STAT. § 51.20(1)(a)2.d. Although the parties raise arguments relating to
§ 51.20(1)(a)2.c., we need not address them because we conclude the County has
met its burden to prove dangerousness under § 51.20(1)(a)2.d. We therefore
affirm the involuntary commitment order and the order for involuntary medication
and treatment.
By the Court.—Orders affirmed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.
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