Burnett County v. B. 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.
February 28, 2024
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. 2023AP1811-FT Cir. Ct. No. 2020ME16

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

IN THE MATTER OF THE MENTAL COMMITMENT OF B. S.:

BURNETT COUNTY,

PETITIONER-RESPONDENT,

V.

B. S.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Burnett County:
MELISSIA R. MOGEN, Judge. Reversed and cause remanded with directions.

¶1 HRUZ, J.1 Brian2 appeals an order extending his involuntary
commitment pursuant to WIS. STAT. § 51.20. Brian argues that Burnett County
1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2021-22).
This is an expedited appeal under WIS. STAT. RULE 809.17 (2021-22). All references to the
Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
No. 2023AP1811-FT

failed to provide sufficient evidence to prove that he is currently dangerous under
§ 51.20(1)(a)2. Brian contends that while the County presented the testimony and
report of a psychiatrist at the extension hearing, the psychiatrist provided only
generalized statements that were insufficient to meet the County’s burden of
proving his dangerousness by clear and convincing evidence.

¶2 We agree. In particular, we note that the record on appeal is devoid
of sufficient factual support for the expert’s opinions regarding Brian’s current
dangerousness and the resulting court order relying upon them. The law requires a
fuller record—including sufficient explanations and connection to other facts in
evidence—in order to prove, by clear and convincing evidence, that someone
currently meets the statutory criteria necessary to continue involuntarily
committing that individual. Accordingly, we reverse the order extending Brian’s
involuntary commitment.

¶3 After the circuit court entered the order extending Brian’s
commitment, it entered an order for involuntary medication and treatment,
following a separate hearing. An involuntary medication order cannot exist
without a valid commitment order. See WIS. STAT. § 51.61(1)(g)3. Because we
have reversed the order extending Brian’s commitment, we remand this matter to
the circuit court with directions to vacate the associated involuntary medication
order.

2
For ease of reading, we refer to the appellant in this confidential matter using a
pseudonym, rather than his initials.

2
No. 2023AP1811-FT

BACKGROUND

¶4 In September 2020, Brian, then sixty-six years old, was emergently
detained pursuant to WIS. STAT. § 51.15 after an incident in which he threatened to
kill a pharmacist because he believed the pharmacist was poisoning him. After a
probable cause hearing and a final hearing—in which Brian was found to be
mentally ill, dangerous to himself or others, and a proper subject for treatment—
Brian was involuntarily committed at a locked inpatient facility for six months.
Brian’s involuntary commitment was extended for three twelve-month-periods
following recommitment hearings in March 2021, 2022, and 2023. The
recommitment order entered in March 2023 is at issue in this appeal.

¶5 Shortly prior to the 2023 recommitment hearing, Brian was
examined by a physician, Neil Brahmbhatt, and a psychiatrist, Gail Tasch. Due to
an illness, Brahmbhatt was unable to testify at the hearing, and his report was not
submitted into evidence. The County decided to proceed with the recommitment
hearing with Tasch as its only witness.

¶6 Doctor Tasch testified that she examined Brian and diagnosed him
with schizophrenia, which “affect[s] … his thought and mood.” Tasch stated that
this condition is treatable but also that Brian “does not respond to medicine very
well.” She explained that Brian was on a “fairly high dose” of medicine, but,
despite that treatment, he continued to suffer from delusional thinking, particularly
his belief that God had cured his schizophrenia. Further, Tasch said that Brian did
not “respond to the medication regimen” and that some people “don’t respond at
all” or that “[s]ometimes there’s a partial response” to medication. Tasch
summarily stated that Brian “continue[s] to have psychotic thinking” and,
consequently, “present[s] a danger to himself and possibly others.”

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No. 2023AP1811-FT

¶7 When asked if Brian would be a proper subject for commitment if
treatment were withdrawn, Dr. Tasch answered in the affirmative and explained
that she reached this conclusion because “it is likely he would develop very
prominent withdrawal symptoms from the medication he’s taking…. [T]he
biggest danger for him really is withdrawal because he doesn’t seem to respond
well to antipsychotic medication.” Tasch also noted, however, that Brian had
previously “been tapered off a medication … very slowly and appropriately” and
that Brian “did fine without that medicine.” Tasch stated that Brian needs the
“supervision and structure and the support” he receives at his inpatient facility in
order to satisfy his basic needs for nourishment, medical care, shelter, safety, and
treatment. Tasch did not elaborate on this latter opinion, nor did she provide any
factual basis for it.

¶8 In its oral ruling, the circuit court noted that Brian continued to
“present and show indications of still having his mental illness even with the
medication.” The court then found that Brian was “a proper person for
treatment, … the standard has been met as to dangerousness due to [Dr. Tasch’s]
testimony, and that [Brian is dangerous pursuant to WIS. STAT.
§ 51.20(1)(a)2.d.],[3] … even though he’s not exhibiting any recent threats or

3
WISCONSIN STAT. § 51.20(1)(a)2.d. provides that a person 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.

4
No. 2023AP1811-FT

attempts of threats or physical harm or acts, etcetera.” Specifically, the court
stated that Brian was “unable to satisfy his basic needs for his nourishment and his
medical care, and his other care.”

¶9 The circuit court also found that the dangerousness standard in WIS.
STAT. § 51.20(1)(a)2.c.4 “could be applicable as well, due to [Brian’s] mental
illness and impaired judgment, and the pattern of conduct and incidents that had
occurred, which did require him to be under the commitment to begin with.” The
court then summarily concluded that Brian evidenced “a substantial probability of
harm to himself and to others based upon those [prior] incidents if medication”
and treatment were withdrawn. The court then ordered that Brian’s commitment
be extended for twelve months. Brian now appeals.

DISCUSSION

¶10 Brian argues that the circuit court failed to make specific factual
findings to support the legal conclusion that he is currently dangerous under WIS.
STAT. § 51.20(1)(a)2. Brian also argues that there was insufficient evidence for
the court to find that he is a proper subject for treatment.5

¶11 Whether the County has met its burden of proof to support extending
Brian’s commitment pursuant to WIS. STAT. § 51.20 is a mixed question of law
and fact. See Langlade County v. D.J.W., 2020 WI 41, ¶¶24-25, 391 Wis. 2d 231,

4
WISCONSIN STAT. § 51.20(1)(a)2.c. provides that a person is dangerous if he or she
evidences “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.”
5
Brian does not contest on appeal that he is mentally ill.

5
No. 2023AP1811-FT

942 N.W.2d 277. “[W]e will uphold a circuit court’s findings of fact unless they
are clearly erroneous. A finding of fact is clearly erroneous if it is against the
great weight and clear preponderance of the evidence.” Id., ¶24. “Whether the
facts satisfy the statutory standard is a question of law that we review de novo.”
Waukesha County v. J.W.J., 2017 WI 57, ¶15, 375 Wis. 2d 542, 895 N.W.2d 783.

¶12 To be subjected to a WIS. STAT. ch. 51 involuntary commitment,
three elements must be proven by clear and convincing evidence: “the subject
individual must be (1) mentally ill; (2) a proper subject for treatment; and
(3) dangerous to themselves or others.” D.J.W., 391 Wis. 2d 231, ¶29.
WISCONSIN STAT. § 51.20(1)(a)2. provides five standards for proving that a person
is dangerous in an initial involuntary commitment proceeding.
Sec. 51.20(1)(a)2.a.-e.

¶13 “To prevail in a recommitment proceeding, [a county] must prove
the same elements necessary for the initial commitment by clear and convincing
evidence.” D.J.W., 391 Wis. 2d 231, ¶31. Notably,

[t]he dangerousness standard is not more or less onerous
during an extension proceeding; the constitutional mandate
that [a county] prove an individual is both mentally ill and
dangerous by clear and convincing evidence remains
unaltered. Each extension hearing requires proof of current
dangerousness. It is not enough that the individual was at
one point a proper subject for commitment.

Portage County v. J.W.K., 2019 WI 54, ¶24, 386 Wis. 2d 672, 927 N.W.2d 509.
In a recommitment hearing, a county may prove dangerousness using any of the
five means set forth in WIS. STAT. § 51.20(1)(a)2.a.-e. or, in conjunction with
those standards, a county can establish dangerousness by “showing that there is a
substantial likelihood, based on the subject individual’s treatment record, that the

6
No. 2023AP1811-FT

individual would be a proper subject for commitment if treatment were
withdrawn.” See § 51.20(1)(am). “The alternate avenue of showing
dangerousness under paragraph (am) does not change the elements or quantum of
proof required. It merely acknowledges 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.” J.W.K., 386 Wis. 2d 672, ¶24.

¶14 In commitment and recommitment hearings, circuit courts must
“make specific factual findings with reference to the” standard of dangerousness
on which the commitment is based. D.J.W., 391 Wis. 2d 231, ¶3; see also
Trempealeau County v. C.B.O., Nos. 2021AP1955, 2022AP102, unpublished slip
op. ¶28 (WI App Aug. 30, 2022).6 The purposes of this requirement are to
increase protection for patients and to facilitate meaningful appellate review.
D.J.W., 391 Wis. 2d 231, ¶¶43-44.

¶15 Brian argues that the circuit court failed to make specific factual
findings as to the standard of dangerousness upon which his recommitment was
based, contrary to the requirement stated in D.J.W. Brian asserts that the court’s
findings were “minimal—if not entirely absent” and that the court failed to explain
how its findings related to the statutory standards of dangerousness.

¶16 Regarding the standard of dangerousness set forth in WIS. STAT.
§ 51.20(1)(a)2.d., the circuit court stated that Brian “does continue to present and
show indications of still having his mental illness even with the medication and
the services due to the hyper-religious states that he is in.” The court also stated

6
Unpublished opinions authored by a single judge and issued on or after July 1, 2009,
may be cited for their persuasive value. See WIS. STAT. RULE 809.23(3)(b).

7
No. 2023AP1811-FT

that “[d]ue to his mental illness, [Brian] is unable to satisfy his basic needs for his
nourishment and his medical care, and his other care” and that “there would be a
substantial probability” of Brian’s “death, serious injury to himself, physical
debilitation, or other serious physical disease … unless he continues to receive this
proper treatment and medication.”

¶17 Regarding the standard of dangerousness in WIS. STAT.
§ 51.20(1)(a)2.c., the circuit court stated that “based upon the collateral sources
and the testimony of the doctor,” this standard “could be applicable … due to
[Brian’s] mental illness and impaired judgment, and the pattern of conduct and
incidents that had occurred, which did require him to be under the commitment to
begin with.” The court further stated that there “would be a substantial probability
of harm to himself and[/]or to others based upon those incidents if medication and
other treatments would be withdrawn.”

¶18 We note that the circuit court’s specific factual findings regarding
these standards of dangerousness are sparse and do little beyond merely
identifying the standards of dangerousness themselves. We question whether
these findings provide any clarity to Brian as to the underlying bases for his
recommitment and whether the findings are helpful upon judicial review. See
D.J.W., 391 Wis. 2d 231, ¶¶42-44. However, as will be discussed below, we
ultimately reverse on the ground that, in all events, there was insufficient evidence
at the recommitment hearing for the court to find that Brian was currently
dangerous. Consequently, we need not address whether the court’s findings were
sufficient to satisfy D.J.W.

¶19 We now turn to the sufficiency of the evidence in the record in this
particular recommitment hearing. Brian argues that the evidence at the hearing

8
No. 2023AP1811-FT

was insufficient to demonstrate that he is dangerous under either WIS. STAT.
§ 51.20(1)(a)2.c. or d.7 First addressing § 51.20(1)(a)2.d., on which the circuit
court primarily relied, Brian argues that Dr. Tasch never explained how his mental
illness prevented him from caring for himself or why she opined that Brian was
unable to provide for his basic needs. Further, Brian asserts that the County
presented no other evidence showing that he was unable to care for himself or
provide for his basic needs, or showing how or why he would likely suffer serious
harm as a result of inability to provide for his own basic needs. We agree.

¶20 Doctor Tasch testified that Brian is dangerous under WIS. STAT.
§ 51.20(1)(a)2.d. only because he needs the “supervision and structure and the
support” that he receives at his inpatient facility. She provided no explanation as
to the supervision, structure, or support Brian receives at his facility, why he needs
this supervision, structure and support, nor did she explain how Brian’s mental
illness plays a role in these “needs.” Quite simply, on appellate review, we are left
to speculate on these matters. “[I]t is insufficient to present a general discussion
of [Brian’s] mental illness without presenting testimony as to why [his] particular
acts or omissions were dangerous.” See Trempealeau Cnty. Dep’t of Soc. Servs.
v. T.M.M., No. 2021AP100, unpublished slip op. ¶¶11-12 (WI App Nov. 12,
2021). Further, without an explanation as to what Brian’s “needs” are or how he
is benefiting from the supervision, structure, and support he is receiving, it is

7
Brian additionally argues that the evidence was insufficient to show that he is a proper
subject for treatment. Because we reverse on the ground that the evidence was insufficient to
show that Brian is dangerous, we need not address this additional argument. See Turner v.
Taylor, 2003 WI App 256, ¶1 n.1, 268 Wis. 2d 628, 673 N.W.2d 716 (appellate courts need not
address every issue raised by the parties when one is dispositive).

9
No. 2023AP1811-FT

unclear as to whether the supervision, structure, and support are necessitated by
Brian’s mental illness, and how they are a part of his rehabilitative treatment.

¶21 Doctor Tasch testified that the only medical danger Brian would
likely experience would be caused by withdrawal symptoms if he stopped taking
the antipsychotic medication he is prescribed. We note, however, that Tasch also
testified that Brian had been “tapered off” one of his prior medications “very
slowly” and that he “did fine without that medicine.” But more importantly,
Tasch did not testify regarding the symptoms Brian would experience if his
medication were stopped, or that the inpatient facility would be unable to similarly
slowly taper him off of his current medication. Further, Tasch also testified that a
court order for involuntary medication was not necessary and that the facility
planned to “wean” Brian off of his medication. In all, we conclude there is
insufficient evidence in the record to prove, by clear and convincing evidence, that
Brian is dangerous under WIS. STAT. § 51.20(1)(a)2.d.

¶22 Brian also argues that there was insufficient evidence to find him
dangerous under WIS. STAT. § 51.20(1)(a)2.c. Again, we agree. Brian notes that
the only evidence presented at the hearing relating to this standard was Dr. Tasch’s
statement that he “continue[s] to have psychotic thinking.” While Tasch testified
that Brian continued to believe that “God has cured him of his schizophrenia,”
Tasch provided no other testimony as to how Brian continued to suffer from
psychotic thinking. Tasch did not explain how Brian’s psychotic thinking or
belief that he was cured by God impaired his judgment beyond him professing that
belief, nor did she provide any other examples of Brian suffering from impaired
judgment such that he presented a substantial probability of harm to himself or
others. Again, “it is insufficient to present a general discussion of [Brian’s]

10
No. 2023AP1811-FT

mental illness without presenting testimony as to why [his] particular acts or
omissions were dangerous.” See T.M.M., No. 2021AP100, ¶¶11-12.

¶23 The circuit court stated that Brian met this standard of
dangerousness based on “collateral sources” and “the pattern of conduct and
incidents that had occurred, which did require him to be under the commitment to
begin with.” It is unclear what “collateral sources” the court was relying on, as the
only evidence presented to the court in this recommitment proceeding was the
testimony and report of Dr. Tasch. As stated above, Tasch’s report and testimony
do not provide a factual basis for the court to find that Brian was dangerous.
Further, the court itself noted that Brian was “not exhibiting any recent threats or
attempts of threats or physical harm or acts, etcetera.” To the extent that the court
relied on the conduct for which Brian was committed in the first place, this
reliance is impermissible. See Winnebago County v. S.H., 2020 WI App 46, ¶17,
393 Wis. 2d 511, 947 N.W.2d 761 (“[R]eliance on assumptions concerning a
recommitment at some unidentified point in the past, and conclusory opinions
parroting the statutory language without actually discussing dangerousness, are
insufficient to prove dangerousness in an extension hearing.”).

¶24 The County’s only attempt on appeal to overcome the foregoing
record insufficiencies is to argue that the circuit court can make reasonable
inferences and that it was reasonable to infer that due to his schizophrenia, Brian
would quit taking his medication and would not seek medical care if not
committed. We agree that the court may make reasonable inferences based upon
the evidence. See Outagamie County v. Melanie L., 2013 WI 67, ¶38, 349
Wis. 2d 148, 833 N.W.2d 607. However, the court cannot simply infer that a
standard of dangerousness is met. The County must still meet its burden to show
by clear and convincing evidence that a patient is currently dangerous under one

11
No. 2023AP1811-FT

of the standards enumerated in WIS. STAT. § 51.20(1)(a)2., possibly in conjunction
with (1)(am). See D.J.W., 391 Wis. 2d 231, ¶23. While the County provided
generalized statements from Dr. Tasch, the County failed to meet its burden.8

¶25 We pause to note that in both of Brian’s prior commitment extension
hearings, the County presented precisely the type of evidence necessary to fill the
void discussed above. It appears that this evidence presented at the prior hearings
came from Dr. Brahmbhatt, who, again, was scheduled to appear at the hearing
leading to the current order under review but then was unable to do so. Be that as
it may, as a reviewing court, we can only rely upon what is in the relevant portion
of the record. And while evidence from the prior hearings is in the current record,
under WIS. STAT. ch. 51, “dangerousness ‘cannot be assumed from [a] prior
commitment order,’” “each recommitment must be based on ‘current, dual
findings of mental illness and dangerousness.’” Marathon County v. T.R.H.,
No. 2022AP1394, unpublished slip op. ¶28 (WI App Mar. 14, 2023), review
denied (WI June 22, 2023) (alteration in original; citation omitted). “It is not
enough that the individual was at one point a proper subject for commitment. The
County must prove the individual ‘is dangerous.’” J.W.K., 386 Wis. 2d 672, ¶24
(citation omitted).

¶26 Seeing no other evidence to support the conclusion that Brian was
dangerous under one of the statutory standards, we reverse the March 2023 order
extending Brian’s involuntary commitment. Because there cannot be an

8
We are aware that the County’s physician, Dr. Neil Brahmbhatt, had an unforeseen
emergency the day of the hearing and was unable to testify. However, this unforeseen
circumstance does not excuse the County from meeting its burden of proving dangerousness by
clear and convincing evidence.

12
No. 2023AP1811-FT

involuntary medication order without an underlying involuntary commitment, we
remand this matter to the circuit court with directions to vacate the associated
involuntary medication order.9 See WIS. STAT. § 51.61(1)(g)3.

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

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

9
We note that if the County believes there is a current necessity to seek a new
emergency detention for Brian, it can do so. See WIS. STAT. § 51.15.

13