Winnebago County DHS v. L.J.F.G.

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.
April 12, 2023
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. 2022AP1589 Cir. Ct. No. 2021GN19

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

IN THE MATTER OF THE GUARDIANSHIP AND PROTECTIVE PLACEMENT OF
L.J.F.G.:

WINNEBAGO COUNTY DEPARTMENT OF HUMAN SERVICES,

PETITIONER-RESPONDENT,

V.

L.J.F.G.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Winnebago County:
DANIEL J. BISSETT, Judge. Affirmed and cause remanded with directions.
No. 2022AP1589

¶1 GUNDRUM, P.J.1 Emily2 appeals the circuit court’s order for the
involuntary administration of psychotropic medication pursuant to WIS. STAT.
§ 55.14. She asserts that at the hearing on Winnebago County Department of
Human Services (the County)’s petition seeking the order, the County failed to
present sufficient evidence to satisfy the statutory requirements for such an order.
For the following reasons, we affirm and remand with directions.

¶2 The County filed a petition seeking an order for the involuntary
administration of medication to Emily under WIS. STAT. § 55.14. Following a
two-day evidentiary hearing, the circuit court granted the petition and ordered the
involuntary administration of medication. The court thereafter granted Emily’s
request to stay the order pending the outcome of this appeal.

¶3 The parties appear to agree that the sole question we must decide on
appeal is whether there was sufficient evidence presented at the hearing to support
the court’s order for the involuntary administration of medication to Emily. We
conclude that the County presented sufficient evidence.

¶4 Whether the County met its burden of proof before the circuit court
presents a mixed question of law and fact. See Waukesha County v. J.W.J., 2017
WI 57, ¶15, 375 Wis. 2d 542, 895 N.W.2d 783. “[W]e will uphold a circuit
court’s findings of fact unless they are clearly erroneous,” Langlade County v.
D.J.W., 2020 WI 41, ¶24, 391 Wis. 2d 231, 942 N.W.2d 277, and “we accept
reasonable inferences from the facts,” Winnebago County v. Christopher S., 2016

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(d) (2021-22).
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
2
“Emily” is a pseudonym for L.J.F.G.

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No. 2022AP1589

WI 1, ¶50, 366 Wis. 2d 1, 878 N.W.2d 109 (citation omitted). “[W]hether the
facts satisfy the statutory standard,” however, is a question of law we review
independently. D.J.W., 391 Wis. 2d 231, ¶¶25, 47. On appeal, Emily has the
burden to show that the circuit court erred. See Gaethke v. Pozder, 2017 WI App
38, ¶36, 376 Wis. 2d 448, 899 N.W.2d 381.

¶5 Among other things, to receive an order for the involuntary
administration of medication under WIS. STAT. § 55.14(3), the County must show
by clear and convincing evidence that “[u]nless psychotropic medication is
administered involuntarily, the individual will” either “incur a substantial
probability of physical harm, impairment, injury, or debilitation” or “present a
substantial probability of physical harm to others.” Sec. 55.14(3)(e), (8). “The
substantial probability of physical harm, impairment, injury, or debilitation” is to
be evidenced, as relevant here, by

[t]he individual’s history of at least 2 episodes, one of
which has occurred within the previous 24 months, that
indicate a pattern of overt activity, attempts, threats to act,
or omissions that resulted from the individual’s failure to
participate in treatment, including psychotropic medication,
and that resulted in a finding of probable cause for
commitment under [WIS. STAT. §] 51.20(7), a settlement
agreement approved by a court under [§] 51.20(8)(bg), or
commitment ordered under [§] 51.20(13).

Sec. 55.14(3)(e)1.

¶6 In the hearing before the circuit court, multiple psychiatrists as well
as lay witnesses testified in regard to the danger Emily presents to herself and
others if she is not involuntarily medicated. While much of the testimony
provided generalities, the County presented sufficient evidence of “2 episodes”
that satisfy the above standard.

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No. 2022AP1589

¶7 Emily’s sister testified that in approximately the fall of 2020, while
Emily was “off her meds,” she became delusional on a Friday afternoon, went
missing, and was finally located at an auto dealership the next morning. Emily
refused to get out of her car at the dealership, and “[s]he had soiled herself because
she had been there all night.” Police arrived and for some time, the sister, Emily’s
husband, and the police were unable to convince Emily to leave the dealership.
Eventually, Emily did get into her husband’s truck, and the sister’s husband drove
Emily’s car. Instead of going home, they took Emily to the Theda Clark
emergency room parking lot and “convinced her she needed to get checked out.”
The sister testified that they hoped a doctor “would put [Emily] under a 72-hour
hold because we were all afraid we couldn’t find her and finally found her so we
were fearful that she was going to take off again.”

¶8 Doctor Marshal Bales, a psychiatrist who had examined Emily
numerous times throughout the years and most recently at her group home on
January 8, 2022, testified that on that date, he examined her “as best I could
because she was so angry and really threatening that I ended.” Prior to the
examination, Bales had spoken to staff at the group home to discuss “safety in
view of [Emily’s] tending to rage and scream, which she did.” Bales described
Emily’s condition causing her need for medication as “[s]chizo affective and she
has basically a chronic mania with psychosis.” He indicated that “on January 8th
she was refusing to take medications for a very clear mental illness.” He added
that “this is well documented by me and countless others, countless times actually
that she has a pattern of a very severe and persistent mental illness for which she
will not get help voluntarily.” He indicated that during his meeting with Emily, he

abbreviated the interview for safety reasons. She was
escalating. She did not sit down the entire time. So right
there I felt some fear, although, frankly, I’m experienced at

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No. 2022AP1589

this, so I kept an eye out for where the door was, where
everyone was in the room, and I terminated the interview
before anything further happened or yelling or screaming.

¶9 Bales referred to another examination of Emily, on September 26,
2020, in which she “was equally threatening with me and yelling, screaming,” and
he also had “some fear for my safety.” He added that she “really goes ballistic
related to her manic, psychotic state.” In relation to this examination, he referred
to seeing her “at Theda,” noting “that she was demonstrating some inability to care
for herself” in relation to a September 19, 2020 situation in which Emily “was a
missing person and then when they found her she had been off her medicine and
had also been unable to care for herself; basic needs, she lost weight, she quit
eating, and that was related to the psychotic state.”

¶10 Bales stated that “[t]here are many other examples from other
years,” and specifically referred to an incident in 2013,

when [Emily] was at her home in a manic, psychotic state,
and basically she attempted to kill police and the neighbor.
She also was aggressive with her husband and nurses. And
the police noted at the time the[y] were there she had
[been], quote, very close to fighting them regarding the
medical staff there.

Bales also referred to “other situations” when he had met with her in 2017 and
2019, but provided no specifics. He added, “every single time I dealt with her
she’s very verbally abusive, threatening, and I believe it’s related to this manic
state …. I think it’s this mental health condition that makes her so threatening.”
He stated that it has “been a pattern on all of my five or six examinations … over
the years, [that Emily] will not pursue voluntary treatment, will not accept that she
has a mental illness and she makes medication the problem when it’s actually
really helping her condition.” He noted that she is “treatable for this.”

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No. 2022AP1589

¶11 On cross-examination, Bales stated that when he saw Emily in
January 2022, she was not on medication and was “so manic” and “basically …
delusional about her psychiatric medication, frankly, like many of the delusions
she has had.” He opined that “she’s either dangerous or endangered,” adding “I
think she’s dangerous, frankly.” He also expressed that “it’s just not right for
people to terrorize neighbors or family or, frankly, treatment givers, police, nurses.
All of this she’s done over the years at times.” “[W]ithout psychotropic
medication,” he testified, “she will have ongoing manic psychotic symptoms and
she will become dangerous or endangered.” He added: “The best prediction of
future violence is past violence, in general. And this patient has a serious history
of threatening behavior when untreated … and that enhances the chances for
future dangerousness.”

¶12 The County also submitted to the circuit court records showing that a
probable cause hearing was held on September 23, 2020, in Winnebago County
Circuit Court case No. 2020ME394, after which the court found there was
probable cause to believe Emily is, inter alia, “dangerous to self or others” and
ordered her detained at “Thedacare Regional Medical Center—Neenah.” Then, on
October 1, 2020, the court held a hearing, found Emily to be dangerous, and
ordered her committed under WIS. STAT. ch. 51. The court subsequently ordered
her commitment extended. While we reversed this extension order on appeal, see
Winnebago County v. L.F.G., No. 2021AP1063, unpublished op. and order (WI
App Sept. 15, 2021), there is no indication—either in that reversal or otherwise—
that the September 23, 2020 probable cause finding was legally invalid for any
reason. Thus, that probable cause finding satisfies the requirement of a “finding of
probable cause for commitment …, a settlement agreement …, or commitment
ordered …” for one of the “2 episodes” necessary to evidence “[t]he substantial

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No. 2022AP1589

probability of physical harm, impairment, injury, or debilitation” under WIS. STAT.
§ 55.14(3)(e)1.

¶13 Emily asserts the County “has offered no clear and convincing
evidence linking any ‘episode’ of Emily’s dangerous behavior to [the 2020 and
2013] orders.” We think the link is sufficient. Related to the September 23, 2020
probable cause finding and October 1, 2020 order of commitment, Bales testified
to seeing Emily “at Theda,” noting “that she was demonstrating some inability to
care for herself” in relation to a situation “on September 19 of that year.” He
explained that Emily “was a missing person and then when they found her she had
been off her medicine and had also been unable to care for herself; basic needs,
she lost weight, she quit eating, and that was related to the psychotic state.” The
order finding probable cause indicates Emily would be detained at “Thedacare
Regional Medical Center.”

¶14 Emily’s sister testified that in “approximately the [f]all of 2020,”
while Emily was “off her meds,” she became delusional on a Friday afternoon,
was missing all night, and was found to have soiled herself when located the next
day. As it turns out, September 19, 2020—the date noted by Bales in connection
with his September 26, 2020 engagement with Emily—was a Saturday, which
corresponds to Emily having gone missing on a Friday afternoon and being found
the next day “unable to care for herself.” Furthermore, when Emily was found by
her sister and others on that Saturday after she had gone missing, she was taken to
Theda Clark. We think the connection is clear that Bales and Emily’s sister are
referencing the same September 18-19, 2020 episode that led to the September 23,
2020 probable cause hearing and the related finding made by the circuit court.

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No. 2022AP1589

¶15 Related to the 2013 incident, the County certainly could have done a
better job presenting evidence related to this “episode.” Nonetheless, Bales
testified that Emily was in “a manic, psychotic state, and basically she attempted
to kill police and the neighbor. She also was aggressive with her husband and
nurses. And the police noted at the time the[y] were there she had [been], quote,
very close to fighting them regarding the medical staff there.” This testimony is
hardly a model of clarity and does not put much meat on the bones. That said, it
clearly does refer to a specific 2013 “episode” and contributes to the circuit court’s
implicit determination that the County sufficiently presented a pattern of
concerning conduct by Emily. In addition, Bales and other doctors testified that
without medication, Emily becomes delusional and in a manic, psychotic state,
which leads to her acting out in dangerous ways. Bales testified that Emily has “a
serious history of threatening behavior when untreated … and that enhances the
chances for future dangerousness.” Additionally, the documentation submitted to
the court by the County shows that a hearing was held in May 2013, after which
the court found Emily was dangerous and ordered her committed under WIS.
STAT. ch. 51. We think the circuit court did not err in drawing the obvious
implicit inference that the 2013 episode to which Bales testified led to the
2013 commitment order.

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No. 2022AP1589

¶16 For the foregoing reasons, we conclude that while the County could
have done a better job presenting details at the evidentiary hearing on this matter,3
the evidence that was presented was nonetheless sufficient to satisfy the statutory
standard. We affirm the order of the circuit court. The court’s order for the
involuntary administration of psychotropic medication under WIS. STAT. § 55.14
will remain stayed until remittitur. The circuit court shall lift the stay of this order
within five days of remittitur.

By the Court.—Order affirmed and cause remanded with directions.

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

3
This judge, for one, strongly encourages not only this county but other counties as well
to take more care in this regard in the future. It is my observation that a significant number of
WIS. STAT. chs. 55 and 51 appeals could be avoided entirely if counties would take just a little
more time and care to ask a few additional thoughtful questions or otherwise present additional
evidence—such as reports, for example—that would help to more clearly satisfy statutory
standards. It seems to this judge that the requisite evidence often exists but is simply not
presented by the county or not presented in as careful and thoughtful a manner as possible. I do
not suggest in any way that the job of the county personnel working on these cases is easy;
however, it appears from my singular perspective that much time could be saved for everyone in
“the system” if such additional time and care was employed at the petition and hearing stages.

9