Winnebago County v. D.E.S.

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.
September 20, 2023
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2023AP460 Cir. Ct. No. 2022ME318

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

IN THE MATTER OF THE MENTAL COMMITMENT OF D.E.S.:

WINNEBAGO COUNTY,

PETITIONER-RESPONDENT,

V.

D.E.S.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Winnebago County:
TERESA S. BASILIERE, Judge. Reversed.
No. 2023AP460

¶1 NEUBAUER, J.1 D.E.S., referred to herein by the pseudonym
Dennis, appeals from orders extending his involuntary commitment under WIS.
STAT. § 51.20 by twelve months and continuing involuntary medication and
treatment during that time. Dennis argues that the circuit court improperly relied
on hearsay in determining that he was dangerous and that when that evidence is
disregarded, the record lacks sufficient evidence to support the orders. Dennis
also argues that admission of the hearsay was not harmless. This court agrees and
thus reverses the orders.

BACKGROUND

¶2 To provide context for the facts underlying the extension of Dennis’s
commitment, this court begins by briefly discussing the legal standards governing
such extensions under WIS. STAT. ch. 51.2 An individual may be committed
involuntarily if the petitioner proves by clear and convincing evidence that the
individual is mentally ill, a proper subject for treatment, and dangerous. WIS.
STAT. § 51.20(1)(a), 13(e). Section 51.20 sets forth five standards under which an
individual may be found dangerous, all of which require proof of “recent acts,
omissions, or behavior.” Sauk County v. S.A.M., 2022 WI 46, ¶5, 402 Wis. 2d
379, 975 N.W.2d 162; see also § 51.20(1)(a)2.a.-e.

¶3 To extend a commitment, the petitioner must establish the same
three elements—mental illness, suitability for treatment, and dangerousness.

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
This court uses the terms “recommitment” and “extension” of a commitment
interchangeably. See Portage County v. J.W.K., 2019 WI 54, ¶1 n.1, 386 Wis. 2d 672, 927
N.W.2d 509.

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No. 2023AP460

Langlade County v. D.J.W., 2020 WI 41, ¶31, 391 Wis. 2d 231, 942 N.W.2d 277.
But an individual who has been involuntarily committed and treated immediately
before extension proceedings “may not have exhibited any recent overt acts or
omissions demonstrating dangerousness because the treatment ameliorated such
behavior.” Portage County v. J.W.K., 2019 WI 54, ¶19, 386 Wis. 2d 672, 927
N.W.2d 509. Thus, WIS. STAT. § 51.20 “provides a different avenue for proving
dangerousness”: in lieu of recent acts or behavior, the petitioner may establish
dangerousness by proving “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.” J.W.K., 386 Wis. 2d 672, ¶19
(first quotation); § 51.20(1)(am) (second quotation). However, “[t]he alternate
avenue of showing dangerousness under paragraph (am) does not change the
elements or quantum of proof required”—the County must still prove that the
individual is dangerous because one of the five criteria for commitment under
§ 51.20(1)(a)2.a.-e would recur if treatment were withdrawn. J.W.K., 386 Wis. 2d
672, ¶24 (emphasis omitted).

¶4 A petition to extend an involuntary commitment must be supported
by a written evaluation of the individual that sets forth the examiner’s opinion on
whether the individual meets the criteria for continued commitment. See WIS.
STAT. § 51.20(13)(g)2r. If a circuit court concludes that sufficient evidence
supports recommitment, it must “make specific factual findings with reference to
[the standard(s) under] § 51.20(1)(a)2. on which the recommitment is based.”
D.J.W., 391 Wis. 2d 231, ¶40. With this background in mind, this court turns to
the facts.

¶5 In September 2022, Winnebago County (the County) filed a petition
to extend Dennis’s involuntary commitment along with a report from Dr. Odette

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No. 2023AP460

Anderson, a psychiatrist at the Mendota Mental Health Institute who had treated
Dennis for the last five years. In the petition, the County invoked WIS. STAT.
§ 51.20(1)(am), alleging that Dennis was dangerous “because there is a substantial
likelihood, based on [his] treatment record, that [he] would be a proper subject for
commitment if treatment is withdrawn.” The County asserted further that Dennis
was mentally ill, a proper candidate for treatment, and dangerous under the
second, third, fourth, and fifth standards in § 51.20(1)(a)2.b.-e.

¶6 The circuit court held a hearing on the County’s petition on
October 6, 2022. Anderson, the County’s only witness, testified about the
recommitment criteria based on her treatment of Dennis and review of his
treatment records. Because Dennis does not dispute that he is mentally ill and a
proper candidate for treatment, the following discussion of Anderson’s testimony
focuses on the third recommitment criteria—dangerousness.

¶7 The County focused on the fifth standard for establishing
dangerousness, WIS. STAT. § 51.20(1)(a)2.e., which “addresses dangerousness
arising from an inability to understand the advantages and disadvantages of a
particular medication or treatment.” See Dane County v. Kelly M., 2011 WI App
69, ¶8, 333 Wis. 2d 719, 798 N.W.2d 697. The County asked Anderson questions
about whether Dennis satisfied the requirements in that standard.

¶8 Anderson confirmed that she had explained to Dennis the
advantages, disadvantages, and alternatives to treatment but that he could not
express an understanding of them. She testified that Dennis’s mental illness
rendered him incompetent to make decisions regarding medication or treatment.

¶9 Anderson also agreed that Dennis had “demonstrated a substantial
probability that he needs care or treatment to prevent further disability or

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No. 2023AP460

deterioration.” When asked if anything in Dennis’s treatment history supported
that point, Anderson explained that he had displayed increased “psychotic
symptoms,” “mood symptoms,” “agitation and irritability,” and “threatening and
dangerous behavior” when he stopped taking his medication several months
earlier. The County asked about examples of his dangerous behavior and
Anderson began to recount an incident documented in Dennis’s treatment records
that occurred on May 10, 2022. Anderson stated that she had not personally
witnessed that incident, at which point Dennis’s counsel objected to the testimony
as hearsay. The circuit court overruled the objection, stating that the incident was
“part of the medical records, and it’s referenced as a specific incident.”3 The court
also declined Dennis’s request for a standing hearsay objection. Anderson then
testified that

per the records, the patient was out at the courtyard and had
urinated his pants. Then he accused staff members of
putting tubes in his pants. He started yelling loudly and
demanding that sweats be given to him.

….

The patient shoved the staff into the linen room and tried to
shut the door on him. And then went charging after another
staff member, posturing at that staff member.

¶10 Anderson identified several other deficiencies that, in her view,
evidenced a substantial probability that Dennis needed further care or treatment to
avoid further deterioration, including his inability to keep track of the date and
time of day, understand why he was confined, or recall his diagnosed mental

3
According to the hearing transcript, the circuit court said the incident “isn’t” in
Dennis’s treatment records. The parties agree this was likely a misstatement by the court or a
typographical error in the transcript.

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No. 2023AP460

illness. She agreed that Dennis had shown a substantial probability that he would
be unable to provide for his own health and safety if left untreated.

¶11 Anderson also agreed that Dennis had shown a substantial
probability that he would suffer “severe mental, emotional, or physical harm,
resulting in the loss of his ability to function independently” if left untreated.
When asked to “expound upon that,” Anderson noted, among other things, that
Dennis was not able to voluntarily take the medications prescribed for him. The
County then asked Anderson if she had seen instances of medication
noncompliance during her treatment of Dennis and she responded as follows:

I have limited access to that. But this is information that
is in the records, which is our standard means of
communicating with one another within the institute. But
by my review of the records and discussion with other
physicians and other staff members throughout the institute,
yes, we have seen where, if [Dennis] is not taking
prescribed medication, he will become violent, he will
become more violent, he will become more disoriented, he
will become more psychotic, have more difficulty
distinguishing what is real from what is not real, his mood
will become more unstable, he will become more agitated,
more irritable.

Dennis’s counsel again objected on hearsay grounds. In response, the County
“ask[ed] that this be subjected to the hearsay exception for medical purposes.”
The circuit court overruled the objection, stating that “the standard here is the
substantial likelihood, based on the subject’s individual treatment records…. So
it’s reasonable for the physician to rely upon that and testify on that.”

¶12 Anderson did not believe that Dennis would avail himself of
reasonable treatment options in the community because he did not believe he had a
mental illness and lacked “the insight to see that he would need that kind of
treatment.” In responding to a question about what she would need to see in order

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No. 2023AP460

to change her recommendation regarding Dennis’s commitment in the future,
Anderson said that she

believe[d] that each year for the last several years he
typically has about two to three episodes of physical
aggression, which this is improved compared to if he were
not taking medication, but at the same time, I would like to
see that number much lower before I would have a different
type of recommendation.

¶13 Finally, the County asked Anderson about the path to establish
dangerousness under WIS. STAT. § 51.20(1)(am). She agreed that if Dennis’s
treatment were to be withdrawn, he would become a proper candidate for
commitment. The County did not move to admit Anderson’s report or any of
Dennis’s treatment records into evidence.

¶14 Dennis testified after Anderson and apologized “if [he] caused any
problems back in MHI between staff, inmates, and stuff like that, likewise.” But
he did not specifically reference the May 2022 shoving incident or acknowledge
committing any other violent act or threat. In her closing argument, Dennis’s
counsel again emphasized that Anderson’s testimony about the May 2022 incident
was hearsay and that the court had heard no “firsthand testimony about” any
recent acts or omissions showing that Dennis was dangerous.

¶15 The circuit court concluded that the County had met its burden of
proving grounds to extend Dennis’s commitment. The court did not determine
Dennis to be dangerous under the fifth standard; instead, it referred to the second
standard, stating that Dennis was dangerous “because [he] evidences a substantial
probability of physical harm to other individuals, based upon the incident that was
testified to, where there was a shoving of a staff member.” See WIS. STAT.
§ 51.20(1)(a)2.b. The court also referenced the standard in § 51.20(1)(am) and

7
No. 2023AP460

concluded “that there is a substantial likelihood, based upon [Dennis]’s individual
treatment record, that he would be a proper subject for commitment if treatment
were withdrawn.” At the end of the court’s remarks, the County asked for
clarification as to whether the court was relying on the second or fifth standard “or
something else” for dangerousness. In response, the court again referred to the
standard in § 51.20(1)(am).

¶16 After the hearing, the circuit court entered orders extending Dennis’s
commitment for twelve months and allowing involuntary medication and
treatment during that time.4 The commitment order states that the court
determined Dennis to be dangerous under the second, third, and fourth standards,
as evidenced by both (1) “a recent overt act, attempt or threat to act under [WIS.
STAT.] § 51.20(1)(a)2.a. or b.” and (2) “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.”

DISCUSSION

¶17 Dennis’s appeal focuses on the circuit court’s admission of
testimony that he contends was inadmissible hearsay. This court reviews that
issue under the deferential erroneous exercise of discretion standard. Morden v.
Continental AG, 2000 WI 51, ¶81, 235 Wis. 2d 325, 611 N.W.2d 659. Under that
standard, the circuit court’s decision will not be disturbed so long as the court
“examined the relevant facts, applied a proper standard of law, used a

4
The circuit court entered three extension orders: (1) an initial order dated October 6,
2022; (2) a second order dated October 7, 2022; and (3) an amended order dated October 10,
2022. Dennis appeals from the amended order.

8
No. 2023AP460

demonstrated rational process, and reached a conclusion that a reasonable judge
could reach.” State v. Abbott Lab’ys, 2013 WI App 31, ¶31, 346 Wis. 2d 565, 829
N.W.2d 753 (citation omitted).

¶18 Dennis also challenges the sufficiency of the evidence presented to
establish grounds for recommitment, specifically the element of dangerousness.
“A determination of dangerousness is not a factual determination, but a legal one
based on underlying facts.” D.J.W., 391 Wis. 2d 231, ¶47. Whether the County
met its burden to prove Dennis dangerous is an issue this court reviews de novo.
See Outagamie County v. Melanie L., 2013 WI 67, ¶39, 349 Wis. 2d 148, 833
N.W.2d 607.

¶19 Before addressing these issues, it is important to identify the grounds
upon which the circuit court found Dennis to be dangerous. At the recommitment
hearing, the County sought to establish dangerousness under the fifth standard,
WIS. STAT. § 51.20(1)(a)2.e. But the court cited the second standard in its oral
ruling, and the extension order indicates the court determined Dennis to be
dangerous under the second, third, and fourth standards, § 51.20(1)(a)2.b.-d.
Under the second standard, an individual is dangerous if he

[e]vidences a substantial probability of physical harm to
other individuals as manifested by evidence of recent
homicidal or other violent behavior, or by evidence that
others are placed in reasonable fear of violent behavior and
serious physical harm to them, as evidenced by a recent
overt act, attempt or threat to do serious physical harm.

Sec. 51.20(1)(a)2.b. The court’s remarks and the commitment order make clear
that the court determined Dennis to be dangerous under this standard because of a
recent overt act (the May 2022 shoving incident) and under the “treatment record”
option in § 51.20(1)(am).

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No. 2023AP460

I. Hearsay

¶20 Dennis argues that the only evidence of an overt act or his treatment
record that could support a determination of dangerousness was Anderson’s
hearsay testimony. Wisconsin’s rules of evidence apply in recommitment
hearings “[e]xcept as otherwise provided” in WIS. STAT. ch. 51. WIS. STAT.
§ 51.20(10)(c), (13)(g)3. WISCONSIN STAT. § 908.01(3) defines hearsay as “a
statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted.” Hearsay is
not admissible unless its proponent shows that an exception applies. WIS. STAT.
§ 908.02; State v. Peters, 166 Wis. 2d 168, 174, 479 N.W.2d 198 (Ct. App. 1991)
(stating that “it is the proponent’s burden to prove that the evidence fits into a
specific exception to the hearsay rule”).

¶21 Anderson’s testimony about the May 2022 incident falls within the
statutory definition of hearsay. Anderson did not have firsthand knowledge of the
incident because she “was not personally present” to witness it. Instead, she
relayed the description of the incident contained in Dennis’s treatment records. In
finding Dennis dangerous under the second standard, the circuit court specifically
cited “the incident that was testified to, where there was a shoving of a staff
member.” Thus, the court necessarily relied on Anderson’s testimony about the
contents of the records “to prove the truth of the matter asserted”—that is, that the
incident actually occurred. See WIS. STAT. § 908.01(3).

¶22 Anderson’s testimony regarding references to Dennis’s increasingly
violent and aggressive behavior in his treatment records also constituted hearsay.
Anderson acknowledged having “limited access” when asked if she had seen
Dennis’s condition deteriorate in the past when he was not taking medication.

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No. 2023AP460

Given her testimony that followed, it is apparent that “limited access” meant lack
of personal knowledge. Anderson then testified, based on “information that is in
the records” and “discussion with other physicians and other staff members,” that
Dennis had become “more violent,” “more disoriented,” and “more psychotic” in
the past when not taking his medication. This testimony relayed out-of-court
statements contained in the treatment records or provided by other staff members,
which the circuit court necessarily accepted as true in finding Dennis dangerous
under WIS. STAT. § 51.20(1)(am).

¶23 The County does not contend that any exception to the hearsay rule
applies to Anderson’s testimony. Instead, it argues that examiners in
recommitment proceedings are permitted to base their opinions on treatment
records, see WIS. STAT. §§ 51.20(9)(a)5. and 907.03, and that Anderson’s
testimony was not offered for its truth, but rather to establish the basis for her
opinion that Dennis was dangerous. The County highlights Anderson’s role as
Dennis’s treating physician for five years before the hearing and her
acknowledgement that she consulted his treatment records when forming her
opinions. It argues that Anderson’s reliance on Dennis’s records was
“reasonable,” that she did not simply repeat “the hearsay opinions of others,” and
that she relied on other nonhearsay—her years of treating Dennis and interactions
with him—in forming her opinions.

¶24 The County is correct that expert witnesses may rely on inadmissible
evidence in forming their opinions, so long as the evidence is “of a type
reasonably relied upon by experts in the particular field in forming opinions or
inferences upon the subject.” See WIS. STAT. § 907.03. This court has previously
recognized that “medical experts may rely on the reports and medical records of
others in forming opinions that are within the scope of their own expertise.”

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No. 2023AP460

Enea v. Linn, 2002 WI App 185, ¶16, 256 Wis. 2d 714, 650 N.W.2d 315; see also
Walworth County v. Therese B., 2003 WI App 223, ¶17, 267 Wis. 2d 310, 671
N.W.2d 377 (“In the medical field, the evidence contained in treatment records is
routinely relied upon by physicians to treat a patient; if it is deemed trustworthy
enough to support treatment decisions, it is trustworthy enough to support a
professional opinion.”). Consistent with that well-established practice, Anderson
could rely on information Dennis’s treatment records and information obtained
from other physicians and staff members in forming her opinions.

¶25 Expert reliance on such evidence is subject to important limitations,
however. For one, such reliance “does not transform the hearsay into admissible
evidence.” Therese B., 267 Wis. 2d 310, ¶8. WISCONSIN STAT. § 907.03 does not
allow an expert to serve “as a conduit for the hearsay opinions of others.” Therese
B., 267 Wis. 2d 310, ¶9. Hearsay upon which an expert relies may only be
admitted as substantive evidence if it fits within an exception to the hearsay rule.
State v. Weber, 174 Wis. 2d 98, 107, 496 N.W.2d 762 (Ct. App. 1993).5

¶26 The County did not lay a proper foundation for the admission of the
hearsay as substantive evidence. The County did not establish that any exception

5
WISCONSIN STAT. § 907.03 allows the inadmissible evidence upon which an expert
relies to be “disclosed to the jury [if] the court determines that [its] probative value in assisting
the jury to evaluate the expert’s opinion or inference substantially outweighs [its] prejudicial
effect.” But even if a court determines the probative value substantially outweighs the prejudicial
effect, the evidence is admissible only to assist the jury in evaluating the expert’s opinion, not as
substantive evidence. See State v. Heine, 2014 WI App 32, ¶14, 354 Wis. 2d 1, 844 N.W.2d 409.

12
No. 2023AP460

to the hearsay rule applied.6 Nor did it authenticate or attempt to introduce any of
the records upon which Anderson relied. In addition, the County did not call any
witness with firsthand knowledge of the May 2022 incident or any of the staff
members with whom Anderson spoke. And it did not seek to introduce
Anderson’s report, which precluded the circuit court from considering its contents
beyond what was testified to at the hearing. See Outagamie County v. L.X.D.-O.,
2023 WI App 17, ¶36, 407 Wis. 2d 441, 991 N.W.2d 518 (holding that “in a
recommitment hearing … an examiner’s report must be received into evidence to
be considered by the circuit court”).7

¶27 Moreover, as explained above, it is apparent that the circuit court
went beyond considering Anderson’s testimony merely as a basis for her opinions
and instead relied on the truth of the specific statements she made in determining
Dennis to be dangerous. The court specifically determined Dennis to be
dangerous under the second standard based on the truth of Anderson’s statement
that his treatment records showed that he shoved a staff member in May 2022.
And it determined Dennis to be dangerous under the recommitment standard in
WIS. STAT. § 51.20(1)(am) based on information Anderson relayed from Dennis’s

6
In response to one of Dennis’s objections, the County cited “the hearsay exception for
medical purposes.” This appears to be a reference to WIS. STAT. § 908.03(4), which creates an
exception for “[s]tatements made for purposes of medical diagnosis or treatment and describing
medical history, or past or present symptoms, pain or sensations, or the inception or general
character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or
treatment.” The circuit court did not admit Anderson’s testimony under this exception and the
County does not argue on appeal that her testimony was admissible under this exception.
7
This court expresses no opinion about whether the County could have elicited the
functional equivalent of the testimony that Dennis challenges if the County had introduced other
evidence, such as Anderson’s report, Dennis’s treatment records, or evidence and findings from
prior commitment hearings. Instead, this court limits its analysis to the specific arguments made
by the County based on the evidence presented at the recommitment hearing.

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No. 2023AP460

records and other staff members about prior instances in which he became more
violent and psychotic after not taking medication. Though Anderson could rely on
inadmissible evidence in forming her opinions, the court could not admit and
“rely[] on the substance of the inadmissible hearsay” in determining Dennis to be
dangerous. See State v. Kleser, 2010 WI 88, ¶¶90-92 & n.9, 328 Wis. 2d 42, 786
N.W.2d 144 (holding that circuit court erred in determining seriousness of offense
in juvenile waiver proceeding “based on the purported ‘facts’ of the offense” as
described by doctor who lacked personal knowledge of them).

¶28 This court has repeatedly held that such use of hearsay testimony in
a commitment hearing constitutes an erroneous exercise of discretion. For
example, in S.Y. v. Eau Claire County, 156 Wis. 2d 317, 457 N.W.2d 326 (Ct.
App. 1990), aff’d, 162 Wis. 2d 320, 469 N.W.2d 836 (1991),8 a doctor who “had
only limited personal contact with S.Y.” and relied “almost completely” on his
medical records “testified that, according to reports, S.Y. had committed an
unprovoked assault … prior to his commitment.” Id. at 327. This court held that
the testimony was hearsay which the circuit court had erroneously exercised its
discretion in admitting. Id. at 328.9

8
In S.Y. v. Eau Claire County, 162 Wis. 2d 320, 469 N.W.2d 836 (1991), the supreme
court affirmed the court of appeals’ decision, concluding that it did not have to determine whether
the circuit court had erred in admitting the hearsay because “[i]f its admission were error, it was
harmless.” Id. at 339.
9
Though Anderson appears to have had more personal interaction with Dennis in her
five years as his treating psychiatrist than the doctor in S.Y. v. Eau Claire County, 156 Wis. 2d
317, 457 N.W.2d 326 (Ct. App. 1990), aff’d, 162 Wis. 2d 320, 469 N.W.2d 836 (1991), this does
not materially distinguish S.Y. from the present case because Anderson made clear in her
testimony that she did not have personal knowledge of the incidents that supported her opinions.

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No. 2023AP460

¶29 More recently, in Rusk County v. A.A., Nos. 2019AP839 and
2020AP1580, unpublished slip op. (WI App July 20, 2021), review denied (WI
Oct. 18, 2021) (Nos. 2019AP839 and 2020AP1580),10 a psychiatrist testified that
A.A. was dangerous under WIS. STAT. § 51.20(1)(am) “based on ‘events’
described in [his] medical records.” A.A., Nos. 2019AP839 and 2020AP1580,
¶35. Over A.A.’s objection, the circuit court allowed the psychiatrist to testify as
to the events, about which the psychiatrist had no personal knowledge. Id., ¶¶35-
36. Citing S.Y., this court ruled that the circuit court had erroneously exercised its
discretion in allowing the testimony. A.A., Nos. 2019AP839 and 2020AP1580,
¶¶37-39. Though the events served as the basis for the psychiatrist’s opinion, the
county did not introduce the medical records or call a witness with personal
knowledge of the events. A.A., Nos. 2019AP839 and 2020AP1580, ¶¶37-39.
A.A. is squarely on point with the present case in this respect. See also Kenosha
County v. L.A.T., No. 2022AP1730, unpublished slip op. ¶¶25, 28, 31 (WI App
Aug. 23, 2023) (concluding that psychiatrist’s testimony about incidents relied on
by circuit court in finding committee dangerous was inadmissible hearsay because
psychiatrist obtained information about incidents from collateral sources);
Waupaca County v. G.T.H., No. 2022AP2146, unpublished slip op. ¶¶26-33 (WI
App Aug. 24, 2023) (holding that circuit court erroneously admitted hearsay

10
Though unpublished, Rusk County v. A.A., Nos. 2019AP839 and 2020AP1580,
unpublished slip op. (WI App July 20, 2021), review denied (WI Oct. 18, 2021)
(Nos. 2019AP839 and 2020AP1580) is a one-judge opinion that may be cited under WIS. STAT.
RULE 809.23(3)(b).

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No. 2023AP460

testimony from two experts regarding incidents cited by circuit court in finding
committee dangerous).11

¶30 The County relies on this court’s decision in Waukesha County v.
I.R.T., No. 2020AP996, unpublished slip op. (WI App Nov. 4, 2020), but that case
is materially distinguishable.12 In I.R.T., the subject individual argued that the
circuit court had erred in relying on the hearsay testimony of several witnesses
concerning events that led to his initial commitment and his prior condition. Id.,
¶10. This court disagreed, noting that one of the experts had provided only
“general statements regarding I.R.T.’s past behavior,” the experts’ reports had
been received in evidence, and the circuit court had relied on the experts’
opinions, not “the underlying hearsay facts,” in extending the commitment. Id.,
¶12. In contrast, the County here did not introduce Anderson’s report into
evidence and the circuit court based its determination of dangerousness on the
specific events described in Anderson’s hearsay testimony.

¶31 For these reasons, the circuit court erroneously exercised its
discretion in admitting Anderson’s hearsay testimony and relying on the events
she described as the basis for its determination that Dennis was dangerous under
the second standard.

11
Kenosha County v. L.A.T., No. 2022AP1730, unpublished slip op. (WI App Aug. 23,
2023) and Waupaca County v. G.T.H., No. 2022AP2146, unpublished slip op. (WI App Aug. 24,
2023) are also one-judge opinions that may be cited under RULE 809.23(3)(b).
12
Waukesha County v. I.R.T., No. 2020AP996, unpublished slip op. (WI App Nov. 4,
2020) is also a one-judge opinion that may be cited under RULE 809.23(3)(b).

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No. 2023AP460

II. Sufficiency of the Evidence

¶32 In assessing the sufficiency of the evidence, this court looks to the
standard cited by the circuit court, WIS. STAT. § 51.20(1)(a)2.b. See D.J.W., 391
Wis. 2d 231, ¶40. To establish dangerousness under that standard, the County had
to prove that Dennis showed “a substantial probability of physical harm to other
individuals” through evidence of either “recent homicidal or other violent
behavior, or … evidence that others are placed in reasonable fear of violent
behavior and serious physical harm to them, as evidenced by a recent overt act,
attempt or threat to do serious physical harm.” Sec. 51.20(1)(a)2.b.

¶33 Other than the inadmissible hearsay, the County presented no
evidence establishing that Dennis was currently dangerous under the second
standard. The hearsay testimony was the only evidence that suggested the
May 2022 incident occurred or that Dennis had previously become more violent
and psychotic when he did not take his prescribed medication. The County did not
introduce evidence of any other violent behavior. Nor did it introduce any
evidence that Dennis’s violent behavior or threats placed other persons in
reasonable fear that he would harm them. In addition, as previously explained, the
County did not move to admit Anderson’s report or the treatment records she
reviewed into evidence. It also did not present testimony from other persons with
personal knowledge of the May 2022 incident or the prior deteriorations in
Dennis’s behavior. Finally, in his own testimony, Dennis did not acknowledge
that any of the behavior upon which the County relied occurred. This court is left
to conclude that the record lacks sufficient evidence to establish Dennis’s
dangerousness under the second standard.

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III. Harmless Error

¶34 In recommitment proceedings, courts are to “disregard any error or
defect … that does not affect the substantial rights of either party.” WIS. STAT.
§ 51.20(10)(c). Stated differently, this court must determine whether the circuit
court’s erroneous admission of Anderson’s hearsay testimony was harmless error.
See S.Y., 156 Wis. 2d at 328; Weber, 174 Wis. 2d at 109. Under the harmless
error standard, an error will not justify reversal unless there is a “reasonable
possibility that the error contributed to the outcome of the action or proceeding at
issue.” Martindale v. Ripp, 2001 WI 113, ¶32, 246 Wis. 2d 67, 629 N.W.2d 698.
“A reasonable possibility of a different outcome is a possibility sufficient to
‘undermine confidence in the outcome.’” Id. (quoting State v. Dyess, 124 Wis. 2d
525, 544-45, 370 N.W.2d 222 (1985)). “[W]here the outcome of the action or
proceeding is weakly supported by the record, a reviewing court’s confidence in
the outcome may be more easily undermined than where the erroneously admitted
or excluded evidence was peripheral or the outcome was strongly supported by
evidence untainted by error.” Martindale, 246 Wis. 2d 67, ¶32.

¶35 This court concludes that the admission of Anderson’s hearsay
testimony regarding the May 2022 incident and Dennis’s prior increases in violent
and psychotic behavior when not taking medication affected his substantial rights
because there is a reasonable possibility that without that testimony, the circuit
court would not have found Dennis dangerous. Given the lack of other evidence
showing that Dennis was dangerous, and the court’s express reliance on the
hearsay as the basis for its decision, the erroneous admission of that testimony
undermines this court’s confidence in the outcome. Accordingly, the error in
admitting the hearsay was not harmless.

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No. 2023AP460

¶36 The County’s argument to the contrary is not persuasive. The
County contends that even setting aside Anderson’s hearsay testimony, the
evidence established Dennis’s dangerousness under the fifth standard, WIS. STAT.
§ 51.20(1)(a)2.e. There are several problems with this argument. First, the
County cites no legal authority that would allow this court to affirm Dennis’s
recommitment order based on this court’s determination that the County
established his dangerousness under a standard different from that relied on by a
circuit court. Our supreme court has discouraged such mid-litigation switching
and directed circuit courts to “make specific factual findings with reference to the
subdivision paragraph of § 51.20(1)(a)2. on which the recommitment is based.”
D.J.W., 391 Wis. 2d 231, ¶40. The supreme court imposed that requirement to
provide a subject individual with “clarity and extra protection … regarding the
underlying basis for a recommitment” and to clarify the issues for appellate review
“and ensure the soundness of judicial decision making.” Id., ¶¶42, 44. The
County’s invitation to uphold the recommitment order under the fifth standard
would frustrate both of these objectives.

¶37 In addition, the evidence the County says was sufficient under the
fifth standard includes the hearsay testimony about Dennis engaging in
increasingly threatening and dangerous behavior when he is not medicated.
Anderson made clear in her testimony that she was simply relaying what was
documented in Dennis’s treatment records and what she had heard from other staff
members.

¶38 Finally, the County’s argument regarding the fifth standard is not
well developed. The County asserts that it “methodically elicited testimony from
Dr. Anderson concerning every element of the [fifth standard],” but nowhere in its
brief does it explain what the fifth standard requires or identify which portions of

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No. 2023AP460

Anderson’s admissible testimony establish each of its elements. The fifth standard
is a lengthy provision that requires proof of the following:

1) The “advantages and disadvantages of and alternatives to accepting a
particular medication or treatment [must] have been explained to” the
individual;

2) The individual’s mental illness renders him or her incapable of either
“expressing an understanding of the advantages and disadvantages of
accepting medication or treatment and the alternatives, or … applying
an understanding of the advantages, disadvantages, and alternatives to
his or her mental illness in order to make an informed choice as to
whether to accept or refuse medication or treatment”; and

3) The individual “evidences a substantial probability, as demonstrated by
both the individual’s treatment history and his or her recent acts or
omissions, that the individual needs care or treatment to prevent further
disability or deterioration and a substantial probability that he or she
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.”

WIS. STAT. § 51.20(1)(a)2.e. As to the third element, the fifth standard states
further that

[t]he probability of suffering severe mental, emotional, or
physical harm is not substantial … if reasonable provision
for the individual’s care or treatment is available in the
community and there is a reasonable probability that the

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No. 2023AP460

individual will avail himself or herself of these services or
if the individual may be provided protective placement or
protective services under [WIS. STAT.] ch. 55.

Sec. 51.20(1)(a)2.e. Because the County does not connect Anderson’s testimony
to each of the elements, its argument is not sufficiently developed for this court to
consider.13

CONCLUSION

¶39 For the reasons stated above, the circuit court’s orders extending
Dennis’s involuntary commitment and permitting involuntary medication and
treatment are reversed.

By the Court.—Orders reversed.

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

13
With respect to the involuntary medication order, this court need not discuss the
evidence relating to that order because Dennis’s sole basis for challenging the order is the
invalidity of the recommitment order. The County does not argue that a separate and independent
basis exists to affirm the medication order if this court concludes that the recommitment order is
invalid. Accordingly, this court’s conclusion that the circuit court erred in entering the
recommitment order also requires reversal of the medication order. See WIS. STAT. § 51.61(1)(g).

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