Portage County v. L. E.

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.
October 29, 2020
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. 20AP1239-FT Cir. Ct. No. 94ME28D
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
IN THE MATTER OF THE MENTAL COMMITMENT OF L. E.:
PORTAGE COUNTY,
PETITIONER-RESPONDENT,
V.
L. E.,
RESPONDENT-APPELLANT.
APPEAL from orders of the circuit court for Portage County:
ROBERT J. SHANNON, Judge. Affirmed.
No. 20AP1239-FT
¶1 KLOPPENBURG, J.1 L.E. appeals orders from the Portage County
Circuit Court extending her involuntary commitment and ordering involuntary
medication and treatment as requested by Portage County pursuant to WIS. STAT.
ch. 51. L.E. contends that the County failed to prove that she is dangerous or that
she is incompetent to refuse medical treatment. I affirm the court’s orders.
BACKGROUND
¶2 L.E. was first subject to WIS. STAT. ch. 51 orders for involuntary
commitment and involuntary medication and treatment in 1994. These orders
have been extended multiple times. In January 2020, the County filed a petition
requesting orders granting a 12-month extension of the most recent commitment
and authorizing involuntary medication and treatment. The circuit court held a
recommitment hearing, at which it determined that L.E. met the statutory
requirements for recommitment because she is mentally ill, is treatable, and would
be a proper subject for commitment if her treatment were withdrawn. The court
further determined that L.E. is incompetent to refuse medication and treatment.
The court entered orders extending L.E.’s involuntary commitment for a period of
12 months and authorizing involuntary medication and treatment during the period
of commitment. This appeal follows.
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(d) (2017-18).
In an August 31, 2020 order, the court placed this case on the expedited appeals calendar, and the
parties have submitted memo briefs. See WIS. STAT. RULE 809.17(1). The court issues this
opinion approximately 98 days after the notice of appeal was filed and approximately 24 days
after the reply brief was filed.
All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise
stated.
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¶3 Additional material facts are provided as pertinent in the discussion
below.
DISCUSSION
¶4 I first explain the standard of review and general legal principles
governing orders that extend involuntary commitment and authorize involuntary
medical treatment. I next analyze L.E.’s argument and conclude that the evidence
was sufficient to support the circuit court’s orders extending L.E.’s involuntary
commitment and authorizing involuntary medication and treatment.
I. Standard of Review and General Legal Principles.
¶5 Review of WIS. STAT. ch. 51 orders for involuntary commitment and
for involuntary medication and treatment presents a mixed question of fact and
law. This court upholds a circuit court’s findings of fact unless they are clearly
erroneous. Waukesha Cnty. v. J.W.J., 2017 WI 57, ¶15, 375 Wis. 2d 542, 895
N.W.2d 783 (involuntary commitment); Outagamie Cnty. v. Melanie L., 2013 WI
67, ¶¶37-38, 349 Wis. 2d 148, 833 N.W.2d 607 (involuntary medication and
treatment). Whether those facts fulfill the statutory requirements for an
involuntary commitment presents a question of law that this court reviews de
novo. J.W.J., 375 Wis. 2d 542, ¶15; Melanie L., 349 Wis. 2d 148, ¶¶38-39.
¶6 The criteria for extending an involuntary commitment are governed
by WIS. STAT. § 51.20(13)(g). That paragraph is read together with the criteria set
forth in § 51.20(1)(a). Under § 51.20(1)(a), a circuit court may order the initial
commitment of an individual if the petitioner shows, by clear and convincing
evidence, that the individual is:
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(1) mentally ill;
(2) a proper subject for treatment; and
(3) currently dangerous under one of five alternative dangerousness
standards.
See § 51.20(1)(a)1. and 2.a.-e. and (13)(e); Portage Cnty. v. J.W.K., 2019 WI 54,
¶¶17, 24, 386 Wis. 2d 672, 927 N.W.2d 509; see also WIS JI—CIVIL 7050. With
regard to the third prong noted above, § 51.20(1)(a)2.a.-e. identifies five separate
dangerousness standards, each of which includes a requirement of recent acts or
omissions demonstrating that the individual is a danger to herself or others. See
Sec. 51.20(1)(a)2.a.-e.; J.W.K., 386 Wis. 2d 672, ¶17.
¶7 Once an individual is subject to a WIS. STAT. ch. 51 commitment
order, the petitioner (in this case, Portage County) may, before the expiration of
the initial commitment, petition for the extension of that commitment under WIS.
STAT. § 51.20(13)(g)3. See J.W.K., 386 Wis. 2d 672, ¶18. In order for the
extension to be granted, the petitioner must prove by clear and convincing
evidence that the individual is: (1) mentally ill, (2) a proper subject for treatment,
and (3) dangerous. See Sec. 51.20(1)(a) and (am), and (13)(e) and (g)3.; J.W.K.,
386 Wis. 2d 672, ¶¶18, 24. Proof of the third prong (dangerousness) is the point at
which an initial commitment and a recommitment may materially differ. On a
petition for recommitment, the petitioner may show that the individual is
dangerous under § 51.20(1)(am). See J.W.K., 386 Wis. 2d 672, ¶19 (stating that
§ 51.20(1)(am) “provides a different avenue for proving dangerousness”).
¶8 WISCONSIN STAT. § 51.20(1)(am) provides in pertinent part:
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If the individual has been the subject of inpatient
treatment for mental illness … immediately prior to
commencement of the proceedings as a result of … a
commitment or protective placement ordered by a court
under this section … the requirements of a recent overt act,
attempt or threat to act under par. (a)2.a. or b., pattern of
recent acts or omissions under par. (a)2.c. or e., or recent
behavior under par. (a)2.d. 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.
Our supreme court has held that § 51.20(1)(am) “recognizes that 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.” J.W.K., 386 Wis. 2d 672, ¶19. Thus, § 51.20(1)(am)
“functions as an alternative evidentiary path” for showing dangerousness,
“reflecting a change in circumstances occasioned by an individual’s commitment
and treatment” and “acknowledg[ing] that an individual may still be dangerous
despite the absence of recent acts, omissions, or behaviors exhibiting
dangerousness outlined in § 51.20(1)(a)2.a.-e.” Id., ¶¶19, 24.
¶9 However, dangerousness remains an element to be proven to support
the extension of an involuntary commitment, with reference to the specific
dangerousness standards set forth in WIS. STAT. § 51.20(1)(a)2.a.-e. Id., ¶19; see
also Langlade Cnty. v. D.J.W., 2020 WI 41, ¶34, 391 Wis. 2d 231, 942 N.W.2d
277. Two of those standards are pertinent here. A person is dangerous within the
meaning of WIS. STAT. § 51.20(1)(a)2.c. (the third standard) if the individual has
“such impaired judgment … that there is a substantial probability of physical
impairment or injury to himself or herself.” Sec. 51.20(1)(a)2.c. A person is
dangerous within the meaning of § 51.20(1)(a)2.d. (the fourth standard) if the
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No. 20AP1239-FT
individual is unable to satisfy basic needs for nourishment, medical care, shelter,
or safety, causing substantial probability of imminent death or harm. Sec.
51.20(1)(a)2.d.
¶10 The criteria for ordering involuntary medication and treatment are
governed by WIS. STAT. § 51.61(1)(g)4., as follows:
[A]n individual is not competent to refuse medication or
treatment if, because of mental illness, developmental
disability, alcoholism or drug dependence, and after the
advantages and disadvantages of and alternatives to
accepting the particular medication or treatment have been
explained to the individual, one of the following is true:
a. The individual is incapable of expressing an
understanding of the advantages and disadvantages of
accepting medication or treatment and the alternatives.
b. The individual is substantially incapable of
applying an understanding of the advantages, disadvantages
and alternatives to his or her mental illness, developmental
disability, alcoholism or drug dependence in order to make
an informed choice as to whether to accept or refuse
medication or treatment.
WIS. STAT. § 51.61(1)(g)4.a.-b. The petitioner bears the burden of proving that
one of the above conditions is met by clear and convincing evidence. Melanie L.,
349 Wis. 2d 148, ¶55.
II. Analysis.
¶11 L.E. contends that the County failed to establish by clear and
convincing evidence that she is dangerous and that she is incompetent to refuse
medical treatment.2 I first summarize the pertinent testimony and the circuit
2
L.E. does not contend that the County failed to meet its burden of showing that she is
mentally ill or that she is a proper subject for treatment. See WIS. STAT. § 51.20(1)(a)1.
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No. 20AP1239-FT
court’s findings, and then explain why I conclude that the evidence was sufficient
to support the circuit court’s orders.
A. Testimony.
¶12 Dr. Wagdy Khalil, a clinical psychiatrist employed by the Portage
County Department of Health and Human Services, was the only witness at the
evidentiary hearing. The circuit court found his testimony credible. He testified
in pertinent part as follows.3
¶13 Khalil had been treating L.E. for about four months. L.E. was in an
acute, continuous manic state until very recently but is currently stabilized. L.E.
has a diagnosis of Bipolar I and she suffers paranoid delusions, mania, depression,
and psychosis. She has suffered from mental illness for over thirty years.
¶14 L.E. is currently improved under her current commitment and
treatment, which involves living in a group home and taking oral antipsychotic
medication. Without medication, L.E. suffers from “severe paranoid delusions”
and “acute psychosis” and faces an “extreme risk” of not surviving. L.E. has
flooded her house multiple times because of delusion and has no idea why she did
so. Without medication, L.E. will become very impulsive and cause harm to
herself and others surrounding her. She cannot function on her own.
3
Khalil also submitted an examination report. The report comprises five pages, detailing
L.E.’s treatment history, and contains additional support for Khalil’s conclusions. As L.E.
properly indicates, and the County does not dispute, the County failed to move Khalil’s report
into evidence. Therefore, I review only Khalil’s testimony, despite the inclusion of the report in
the record on appeal. Langlade Cnty. v. D.J.W., 2020 WI 41, ¶7 n.4, 391 Wis. 2d 231, 942
N.W.2d 277; Winnebago Cnty. v. S.H., 2020 WI App 46, ¶2 n.3, 393 Wis. 2d 511, 947 N.W.2d
761.
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No. 20AP1239-FT
¶15 L.E. has refused her medication and will not take her medication
voluntarily. “She is really delusional, paranoid delusion[al] regarding the
medication, regarding the people around her. So she will stop taking the
medication.”
¶16 L.E. would be a proper subject for commitment if treatment were
withdrawn because “she [would] crash” based on her history of noncompliance. If
treatment were withdrawn, L.E. would be a danger to herself and unable to care
for herself, based on both her noncompliance history and her experiencing of
extreme delusions that would lead to impulsive and endangering behavior, such as
when she flooded her house and had no idea why she did so. “She would [cause]
more danger than that. She is not compliant and she becomes more psychotic.
And I have real[] concerns that she is able to take of herself or even to cause harm
to herself and others surrounding her.”
¶17 An order to treat is “very essential.” When Khalil examined L.E.
she “wasn’t competent” to discuss medication and she now has only a very basic
competence level: enough to express, for example, that she does not want to take
medication by injection or that she likes or does not like other antipsychotics she
has been prescribed in the past.
¶18 No other testimony was offered, and Khalil was not cross-examined.
B. Circuit Court’s Findings.
¶19 The circuit court determined that, based on Khalil’s testimony, the
County clearly and convincingly proved that L.E. is mentally ill and a proper
subject for treatment, would be substantially likely to harm herself if her current
treatment were withdrawn, and is not competent to refuse treatment. The court
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No. 20AP1239-FT
made the following pertinent findings. L.E. has a history of noncompliance, and
she is at a “very high potential risk for decompensation of her illness if she is not
required to take the medication and supervised while doing so” which would “be
directly contrary to her health.” “[W]hen she is not taking the medication, she has
paranoid delusions which prevent her from functioning[;] while taking the
medication[] those symptoms are significantly reduced.” The medication she is
taking is “indicated” and “therapeutic” in the treatment of her specific condition.
Khalil advised L.E. of the advantages, disadvantages, and alternatives to the
medication prescribed but L.E. is unable to understand or appreciate that
information due to her mental illness.
C. Sufficient Evidence.
¶20 L.E. argues that the evidence was not sufficient to support the circuit
court’s determinations that she is dangerous and not competent to refuse
medication and treatment. I address and reject each specific argument in turn.
¶21 L.E. argues that Khalil’s testimony about the flooding and risk of not
surviving is too vague and equivocal to prove that there is a substantial probability
of physical harm (the third dangerousness standard) if L.E.’s treatment were
withdrawn. Similarly, L.E. argues that Khalil’s testimony that without medication
she would be unable to care for herself (the fourth dangerousness standard) lacks
any factual foundation. However, as shown above, Khalil’s testimony was not so
vague, equivocal, or lacking. He testified that she flooded her house multiple
times without knowing why, and, more significantly, that she is at extreme risk of
not surviving without her medication and that “she [would] crash” because she
suffers severe delusions and acts impulsively to such a degree as to risk her health
and life. Such details as whether L.E. was at home during the flooding or the
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No. 20AP1239-FT
extent of the flooding are not necessary to prove a substantial risk of physical
harm to L.E. from her conduct or to prove her inability to satisfy her basic needs if
her treatment were withdrawn, given Khalil’s description of the severity of the
“decompensation” that would result from L.E.’s failure to follow her treatment.
¶22 L.E. argues that this case is like D.J.W., in which our supreme court
reversed an involuntary commitment extension order because the evidence was not
sufficient to show dangerousness. D.J.W., 391 Wis. 2d 231, ¶3. To the contrary,
this case is easily distinguished from D.J.W.. In that case, the only testimony as to
dangerousness was that D.J.W. would be unable to care for himself if untreated as
indicated by the facts that he was living with his parents, he quit his job because of
his delusion that he is the Messiah, and he was on disability. Id. at ¶¶10-16.
D.J.W. also testified, confirming that he believes he is the Messiah, received help
from his family, had a job on a farm, and received disability benefits. Id. at ¶17.
The court concluded that the testimony showed only that without treatment D.J.W.
would experience delusions to a greater degree such that he would be unable to
maintain a job, would have to rely on disability for income, and would have to
continue living with family, but that such consequences do not constitute the
substantial probability of death or serious physical injury or impairment that is
required under the second and fourth dangerousness standards in the statute. Id.,
at ¶¶51-57. Here, in contrast, Kahlil did testify that L.E.’s delusions would
prevent her from functioning (that “she [would] “crash”) and prevent her from
dealing with others, and that the delusions combined with her impulsivity would
cause her engage in more dangerous conduct than the flooding, which would harm
herself (“extreme risk” of not surviving) and others.
¶23 L.E. argues that Khalil’s testimony that she “has just the basic
competent level” and is doing well now regarding taking her medication shows
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No. 20AP1239-FT
that she is competent to make her own treatment decisions. However, Khalil’s
reference to basic competence was in terms of L.E.’s not wanting an injection, and
his reference to her doing well was in terms of her present compliance under
supervision, but Khalil was repeatedly specific about L.E. not being able to
understand her need to be subject to the medication and treatment prescribed and
her resulting history of noncompliance and he explicitly stated that L.E. was not
competent when he examined her. L.E. also argues that Khalil provided no factual
basis for his testimony as to what he explained to her about her treatment and what
she was capable of understanding. However, L.E. points to no legal authority
supporting the proposition that a doctor must repeat the specifics of the
advantages, disadvantages, and alternatives that he credibly testified he explained.
¶24 Finally, L.E. argues that this case is akin to Melanie L., in which our
supreme court reversed an involuntary medication and treatment order. In that
case, the doctor failed to testify about the person’s noncompliance and show why
that noncompliance demonstrated the person’s incapability of understanding the
treatment, and the doctor failed to apply the statutory standards but instead
articulated a seemingly different standard. Melanie L., 349 Wis. 2d 148, ¶¶9, 90-
91. L.E. does not explain how that case supports her position here, and this court
will not make an argument for her. See Industrial Risk Insurers v. American
Eng’g Testing, Inc., 2009 WI App 62, ¶25, 318 Wis. 2d 148, 769 N.W.2d 82 (“we
will not abandon our neutrality to develop arguments.”); State v. Pettit, 171
Wis. 2d 627, 647, 492 N.W.2d 633 (Ct. App. 1992) (“We cannot serve as both
advocate and judge.”).
¶25 In sum, L.E. fails to show that the evidence was insufficient to show
dangerousness and incompetence to refuse medication and treatment.
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No. 20AP1239-FT
CONCLUSION
¶26 For the foregoing reasons, the orders of the circuit court are
affirmed.
By the Court.—Orders affirmed.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)4.
12