Waukesha County v. G.M.M.

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.
March 13, 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. 2023AP1359 Cir. Ct. No. 2021ME204

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

IN THE MATTER OF THE MENTAL COMMITMENT OF G.M.M.:

WAUKESHA COUNTY,

PETITIONER-RESPONDENT,

V.

G.M.M.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Waukesha County:
LAURA F. LAU, Judge. Affirmed.
No. 2023AP1359

¶1 GUNDRUM, P.J.1 G.M.M., referred to herein by the pseudonym
Gina Miller, appeals from an order of the circuit court extending her involuntary
commitment under WIS. STAT. ch. 51. Relying upon Langlade County v. D.J.W.,
2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277, she contends the court erred in
entering the order because the court “failed to make specific factual findings” as to
dangerousness. We affirm because we conclude that the court’s factual findings
were sufficient but even if they were not, any error was harmless.

Background

¶2 Following an uncontested hearing, the circuit court ordered Miller
committed on May 11, 2021, pursuant to WIS. STAT. ch 51.2 Following a
contested recommitment hearing on November 2, 2021, the court extended
Miller’s commitment.3 On September 28, 2022, the County filed a petition to
further extend the commitment order. The following relevant evidence was
presented at the October 25, 2022 contested hearing on that petition.

¶3 On behalf of the County, a “clinical therapist”/“licensed clinical
social worker” for the County, Danielle Weber, testified that Miller’s original
commitment in May 2021 was prompted by incidents that began on the first of that

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
In addition to ordering Miller committed, the circuit court entered an order allowing the
County to involuntarily medicate and treat Miller. With every extension of Miller’s commitment,
the court entered a corresponding medication order. Here, Miller does not present any argument
relating to the October 25, 2022 medication order. Thus, we will not address the medication
order separately.
3
Miller appealed, and we affirmed her commitment and medication orders in January
2023. Waukesha County v. G.M.M., No. 2022AP1207, unpublished slip op. (WI App Jan. 18,
2023).

2
No. 2023AP1359

month. The police had been called to Miller’s apartment five times that day “due
to her causing a disturbance and yelling. It was reported that she believed birds
outside of her window were talking to her and threatening to kill her.” Miller “had
also made reference at that time that her sister was not actually her sister, but
someone from the Iranian government wearing a mask and pretending to be her
sister.” The following day, police were again called because Miller believed her
sister, with whom Miller lived, “was talking about her on the phone to someone
else,” and Miller “grabbed the phone receiver and hit [her sister] in the face or
cheek causing her harm.” Miller “also threw a remote and was slamming doors,”
and she told responding officers that radio waves were “communicating with her
through the TV.” Miller was “described as making incoherent statements.”
Following this, Miller had an “inpatient stay” for three weeks and since that stay
has been back living with her sister on an outpatient basis.

¶4 Weber further testified that Miller has consistently expressed she
does not believe she has a mental illness and “that she does not need psychotropic
medication, and that they do not help her. [Miller] has been unable to correlate
her long-acting injection with her ability to stay out of an inpatient setting.”
Miller has further stated “she will only take medications if court ordered to do so.”
Weber expressed concern that Miller “will stop treatment and decompensate, and
become a harm to herself or her sister again in the future.”

¶5 Weber testified, without objection, that nurse practitioner Mercy
Mahaga, Miller’s treatment provider since Miller transferred from inpatient to
outpatient care, opines that Miller suffers from schizophrenia and “lacks insight
into her disorder and need for treatment.” Miller’s condition is treated with “a
long-acting injection of Invega Sustenna.” Weber agreed that the treatment
records indicate Mahaga had spoken with Miller “about the advantages,

3
No. 2023AP1359

disadvantages, and alternatives” to the medication. Weber stated that Mahaga
opines that Miller is “[not] capable of making medication decisions on her own.”

¶6 Weber stated that even while on the injectable medication, Miller

continues to report auditory hallucinations. The voices that
she has named Ann and Ed. She believe[s] that she had a
device implanted into her ear that allows her to hear the
voices that other people cannot. She also has had some
delusions regarding ongoing infections. She believes she
has had an ongoing bladder infection since she was [in] the
9th grade that she has not sought treatment for.

Weber agreed that Miller’s “aggressive or agitated type symptoms dissipated since
[she began receiving] the injectable.” Weber acknowledged no concerns
regarding Miller’s ability “to make physical health related decisions or financial
decisions for herself.”

¶7 On cross-examination, Weber stated she had only met in person with
Miller once, on August 9, 2022, for approximately ten to fifteen minutes, and she
acknowledged she does not “have concerns regarding the need for a guardianship”
for Miller. Weber testified she was not aware if the May 2021 phone incident
caused any noticeable marks on the face of Miller’s sister or if the sister sought
medical attention due to the incident.

¶8 On redirect examination, Weber confirmed that the statement of
emergency detention by law enforcement indicated that Miller’s sister described
Miller’s actions as

volatile as she is screaming at the top of her lungs
throughout the day. When [Miller] became physical today,
[the sister] called the police as she felt that [Miller] was a
danger to her, and [Miller] was stating “I will protect my
life.” These actions caused concern as [the sister] no
longer feels safe with [Miller] in the home.

4
No. 2023AP1359

¶9 Doctor Cary Kohlenberg, a psychiatrist, testified next for the
County. He conducted a telephonic evaluation of Miller on October 10, 2022, and
had, on two prior occasions in 2021, met with her for an evaluation. Kohlenberg
had also reviewed “the updated recommitment report” for Miller, as well as his
files from his prior evaluations with her and “records from Winnebago as well as
the initial emergency detention and … police report.”

¶10 Kohlenberg stated Miller suffers from schizophrenia, which, as to
her, manifests as a disorder of thought, mood, and perception and, he agreed,
“grossly impair[s] [her] judgment, behavior, capacity to recognize reality, her
ability to participate in the ordinary affairs of life.” He explained that “[p]rior to
treatment, she was experiencing significant mood lability, anger lability,
delusional beliefs, and auditory hallucinations. The symptoms have greatly
reduced over the course of her treatment but have not completely disappeared.” In
response to the County’s request for elaboration regarding Miller’s delusional
beliefs, Kohlenberg stated:

As documented at the time of her initial detention, she was
making known her delusional beliefs including that birds
she could see from the window and she could hear
chirping, and this was somehow telling her that they were
going to kill her. And she also expressed delusional beliefs
that her sister was somehow involved in the Iranian
government and had killed their parents.

He added that Miller’s delusional beliefs “basically prevent[] her from rationally
analyzing information in order to make sound decisions.”

¶11 Related to auditory hallucinations, Kohlenberg testified that when he
met with Miller weeks prior, she spoke of

someone or something putting audio in her ear. She
wouldn’t specify who was doing what or saying what. She
did connect it possibly to a neighbor, but she would not

5
No. 2023AP1359

specify exactly what she was hearing, but it was clear she
was experiencing auditory hallucinations and from the past
in the record review.

He further explained that such hallucinations “will inappropriately affect [a
person’s] ability to critically analyze information and make sound decisions.”

¶12 Discussing the early May 2021 incident in which Miller, as
Kohlenberg understood it, was yelling and threw something at her sister,
Kohlenberg stated that Miller’s symptoms were “exacerbated” at that time and that
her violent conduct toward her sister “was directly the result of impaired
judgment.” He agreed medication is necessary to improve Miller’s “substantial
disorder of thought, mood, and perception,” adding that the medication has “been
extremely helpful over the past approximate one and one-half years.” Because of
the medication, he noted, “she has not been experiencing the behavioral symptoms
or aggression that she has previously.”

¶13 Kohlenberg testified that he “really could not engage [Miller] in a
meaningful discussion” as to treatment options “[b]ecause [she] does not believe
that she has any underlying mental illness except perhaps situational depression.”
“So,” Kohlenberg stated, he “basically listed these things for her.” He again stated
that Miller does not believe she has a mental illness and feels she “does not need
to be on these medications.” He agreed that Miller is “substantially incapable of
applying an understanding of the advantages, disadvantages, and alternatives to
her condition in order to make an informed choice as to whether to accept or
refuse the recommend[ed] medication or treatment.” When asked if Miller would
voluntarily avail herself of services in the community that would reduce
dangerousness if she was “off of commitment,” Kohlenberg stated that he asked
Miller several times if “she would take medication as directed to do so by a private

6
No. 2023AP1359

doctor, and she would not directly answer that question.” Kohlenberg stated his
belief that “because she does not feel she has any mental illness, that if not for
commitment, she would likely not take any mental health medication,” and he
agreed that if treatment were withdrawn, she would become a proper subject for
treatment. He explained that when he discussed alternatives with Miller, those
alternatives “included other injectable antipsychotics, other oral antipsychotics, or
the un-recommended alternative of no antipsychotic medication.” Related to oral
antipsychotics, Miller “again stated she does not believe she needs or benefits
from any medication, oral or injectable.”

¶14 On cross-examination, Kohlenberg further explained that because
Miller “does not believe she needs or benefits from the current injectable
antipsychotic” and “would not directly answer [his] question about what she
would do if a private psychiatrist of her choice would recommend any kind of
antipsychotic,” he believes “she would not take it voluntarily.” He acknowledged,
however, that Miller had expressed to him that she may have clinical depression,
and if she were off commitment, she would “work with” a doctor and/or counselor
of her own choosing. He acknowledged that she has not engaged in violent
behavior since her initial commitment.

¶15 Miller also testified. Regarding the early May 2001 incident, she
stated that

[e]verything I said got twisted around. My neighbors were
being so utterly obnoxious. For a month they had been
talking bird[ie] talk, and that’s who was talking bird[ie] talk
was my neighbors. Making comments about me, my looks,
my weight, other inappropriate comments. I haven’t been
outside in four years at that point due to my heart condition
which leaves me confined to a chair.

I’m completely disabled by my heart condition. Also
bacterial infection with no health insurance. I didn’t even

7
No. 2023AP1359

have a telephone. Just left to suffer all alone year after year
and forced to listen to all of this. Unfortunately, my sister
exacerbated the problem when she came out talking down
to me.

.…

She was talking to my brother on the phone as if I was
some sort of dysfunctional. I just wanted the abuse of me
to stop…. So I grabbed the phone away from her. If the
phone brushed her face in any way, I’m very sorry. It
wasn’t my intent to hurt my sister. I would never hurt my
sister or anyone else, Your Honor.

Miller added that “things are very good right now. Things are back to the way
they used to be, likewise, with all my brothers and sisters. Everything is back to
where it always used to be, my normal disposition.”

¶16 In its closing arguments, the County began by emphasizing that
Miller “stipulate[d] and agree[d] to facts supporting dangerousness” when she was
initially committed following the May 2021 incident. It then criticized that “then
almost a year and a half later[, Miller] come[s] to court and say[s], oh, I take it
back. Those facts weren’t really true, and the Court should have not used them to
support the stipulation that happened.” The County continued:

[T]he Public’s facts regarding dangerousness in this case,
are the facts on [sic] May of 2021, and it is our position …
that it’s that antipsychotic, it’s that chemical administration
treatment that is preventing the behaviors from happening
that happened in May of 2021.

And those behaviors are important for this Court to rely
upon when deeming her to be a danger under the impaired
judgment standard.

The County then specifically recounted the hearing testimony as to Miller’s
delusional expressions and aggressive actions in early May 2021, before again
reminding the circuit court that

8
No. 2023AP1359

[s]he stipulated back in May of 2021 that that was
dangerous at that point in time, and now we’re trying to re-
litigate whether those are still sufficient, when really the
question is, is she going to avail herself [of] services? Is
she going to continue to take this injection if she gets off of
commitment? And the overwhelming evidence for this
point in time is that she is not going to do it, because she
lacks insight into her mental illness.

The County also emphasized Kohlenberg’s discussion with Miller about the
possibility of taking an oral antipsychotic medication, “a le[ss] restrictive
measure” than an injection, but that Miller “still did not have insight into the need
for” that.

¶17 Counsel for Miller argued that in terms of dangerousness,

[w]hat we have, two years ago, is a remote got thrown, and
a phone got grabbed.

… And we have someone who’s been out of the hospital
now for a long period of time and has not had further
dangerous behavior. And I know that the County doesn’t
need to show further dangerous behavior if what they have
supports the argument that but for this commitment, we
would be back right where we were.

I think the argument that we’re still having auditory
hallucination actually works against [the] County’s
argument…. [S]ymptoms of a mental health issue without
dangerousness don’t equate to a need to continue the
commitment.

We have a woman here who has remained in the
community, is living in a family home that she’s lived in
for a long period of time, and who the Department says
doesn’t qualify for guardianship. They believe because she
disagrees with them on how much help her medication is,
that she is not competent to decide her medication, but she
is competent for all other medical decisions. That’s
somewhat intellectually inconsistent.

So I think when you look at her history, the minimal
level of dangerousness that is stipulated to by my client at
the initial hearings, and her progress since then, I don’t
believe we have a record that establishes dangerousness
that requires an extension of her commitment.

9
No. 2023AP1359

Counsel further added her belief that “at this point in time[, Miller] is able and
willing to access treatment on her own.”

¶18 The circuit court spoke next, noting that while Miller “has made
strides in her life … there’s just a lack of understanding of the extent of the mental
illness.” The court continued:

[F]rom Dr. Kohlenberg, really what the Court got was that
[Miller] does not believe or embrace the schizophrenia
diagnosis, and the [C]ourt does feel that in accordance with
what the Public said, that it’s the medication that she’s
currently taking is what put her in this … good state.

The problem is I do not believe that Ms. [Miller] would
avail herself of medication if she were not subject to the
commitment. And so the Court does find grounds for
extension of the commitment, finding that Ms. [Miller] is
mentally ill and is dangerous because she has a substantial
probability of physical impairment or injury to herself or
others due to impaired judgment. When I talk about the
impaired judgment, it’s really related to her lack of insight
into her mental illness.

This is manifested or shown by a substantial likelihood
based on her treatment record that she would be a proper
subject for commitment if treatment were withdrawn. She
is a proper subject for treatment …. Dangerousness is
likely to be control[l]ed with appropriate medication, which
I believe we’ve seen, and we really want that to continue.

¶19 The circuit court ordered the extension of Miller’s commitment and
the continued involuntary administration of medication and treatment. Miller now
appeals the order extending her commitment.

Discussion

¶20 We do not disturb a circuit court’s findings of fact unless they are
clearly erroneous, and we accept all reasonable inferences from those facts.
Outagamie County v. Melanie L., 2013 WI 67, ¶38, 349 Wis. 2d 148, 833

10
No. 2023AP1359

N.W.2d 607. “[W]hether the facts satisfy the statutory standard” of dangerousness
is a question of law we review independently. D.J.W., 391 Wis. 2d 231, ¶¶25, 47.

¶21 An individual is a proper subject for recommitment under WIS.
STAT. § 51.20(1) if the County proves by clear and convincing evidence that the
individual is mentally ill, a proper subject for treatment, and dangerous. See
D.J.W., 391 Wis. 2d 231, ¶31; § 51.20(13)(e). On appeal, Miller only challenges
the circuit court’s determination that she is dangerous. “Dangerousness in an
extension proceeding can and often must be based on the individual’s
precommitment behavior, coupled with an expert’s informed opinions and
predictions.” Winnebago County v. S.H., 2020 WI App 46, ¶13, 393 Wis. 2d 511,
947 N.W.2d 761.

¶22 The County sought to establish dangerousness under the third
standard “by way of the recommitment alternative,” i.e., under WIS. STAT.
§§ 51.20(1)(a)2.c. and (1)(am). See Sauk County v. S.A.M., 2022 WI 46, ¶32,
402 Wis. 2d 379, 975 N.W.2d 162.

Under those two provisions, the County’s burden was to
show a substantial likelihood, based on [Miller’s] treatment
history, that if treatment were withdrawn [s]he would again
face “a substantial probability of physical impairment or
injury to [herself or other individuals]” and that there is
either no “reasonable provision for [her] protection …
available in the community” or that [Miller] would not, to a
“reasonable probability,” “avail [herself] … of these
services.”

Id.

¶23 Miller contends the circuit court erred because it “failed to make
specific factual findings” in connection with its determination that she is
“dangerous” under WIS. STAT. §§ 51.20(1)(a)2.c. and (1)(am). More specifically,

11
No. 2023AP1359

she complains the court “made no factual findings regarding testimony about the
only incident in the court record that involved any potential dangerousness,” that
being the May 2021 incident. To be clear, Miller does not contend the evidence
presented by the County was insufficient to support the court’s determination that
Miller is currently dangerous; rather, she only argues we should reverse the court’s
order because the court failed to sufficiently state findings to support its legal
determination that she is currently dangerous. Miller further asserts the court
failed to sufficiently make factual findings “in regards to [her] willingness to work
with treatment providers on a voluntary basis.”4

¶24 Although Miller does not argue that the evidence is insufficient to
support the circuit court’s determination that she is currently dangerous, we
nonetheless first conclude that the evidence presented by the County sufficiently
supports that determination. Based on the evidence, Miller was extremely agitated
and behaving irrationally in May 2021, which led her to slam doors, throw a
“remote”5 and even physically remove a phone from her sister’s hand, causing it to
hit her sister in the face. Kohlenberg testified that this behavior resulted from

4
Miller also contends the circuit court failed to make specific factual findings
“explain[ing] why [the antipsychotic medication she was being involuntarily administered] was
the only ‘reasonable provision’ available for [her] protection in the community.” This
“reasonable provision” language is found in an exception to WIS. STAT. § 51.20(1)(a)2.c.: “The
probability of physical impairment or injury is not substantial under this subd. 2.c. if reasonable
provision for the subject individual’s protection is available in the community and there is a
reasonable probability that the individual will avail himself or herself of these services ….”
Because Miller directs us to nothing outside of this exception that required the court to find that
antipsychotic medication is “the only ‘reasonable provision’ available for [Miller’s] protection in
the community” and because the exception does not apply here as the evidence did not establish a
reasonable probability Miller would avail herself of services available for her protection, this
issue goes nowhere.
5
Kohlenberg testified that he believed Miller threw something (perhaps the “remote”)
“at” her sister.

12
No. 2023AP1359

Miller’s delusional beliefs and that Miller believed her sister was somehow
involved in the Iranian government and had killed their parents. The testimony
also indicated Miller would likely not take medication if not ordered to do so and
that she would then revert to her dangerous pre-medicated state. The evidence
thus supports the circuit court’s determination that Miller “would be a proper
subject for commitment [under one of the five dangerousness standards
(specifically, WIS. STAT. § 51.20 (1)(a)2.c.)] if treatment were withdrawn.” See
S.A.M., 402 Wis. 2d 379, ¶5.

¶25 Related to Miller’s criticism that the circuit court failed to “[make]
specific factual findings concerning [the May 2021] incident,” Miller intimates
that because she testified that she “grabbed the phone away from [her sister]. If
the phone brushed her face in any way, I’m very sorry” and Kohlenberg and
Weber testified, respectively, that Miller “threw something” at her sister and
“[Miller] grabbed the phone receiver and hit [her sister] in the face or cheek
causing her harm,” the court had to determine what actually occurred. Miller,
however, had stipulated at her first commitment hearing in May 2021 to her
conduct and that her conduct established dangerousness under the third standard.
Additionally, the circuit court found at that hearing that Miller’s behavior met the
standard.

¶26 Related to Miller’s contentions that the circuit court failed to make
sufficient factual findings regarding dangerousness as well as her “willingness to
work with treatment providers on a voluntary basis,” we note that the testimony
addressed whether Miller was likely to avail herself of community resources
available for her protection. Kohlenberg testified, as the circuit court found, that
Miller’s current “good state” was the result of her taking the medication necessary
to control her symptoms and that if she is not under commitment, with a

13
No. 2023AP1359

corresponding medication and treatment order, she will not continue to take the
medication. The implication is that she would then likely revert to the condition
she was in prior to her current “good state.” While the court certainly could have
more clearly articulated what it meant by “good state,” it is clear from the context
of the court’s comments, as the County points out, that the “good state” the court
referred to derived from the fact that while taking the medication, Miller is not
dangerous. This is in contrast with her state before the medication, a state which
led to behavior Miller previously stipulated satisfied the statutory dangerousness
standard. This contrast with Miller’s pre-medication “state” is highlighted by the
court’s initial comments in which it noted that Miller had “made strides in her life,
and her presentation today is really, it’s someone who’s very pleasant and sort of
mildmannered and low-keyed.” It is immediately after these comments that the
court then discusses Miller’s “lack of understanding of the extent of [her] mental
illness” and how it is “the medication that she’s currently taking” that “put[s] her
in this … good state.” The court further added that Miller’s “[d]angerousness is
likely to be control[l]ed with appropriate medication, which I believe we’ve seen,
and we really want that to continue,” but it expressed that the evidence,
particularly the evidence related to Miller’s “lack of understanding of the extent of
[her] mental illness” and specifically the evidence “from Dr. Kohlenberg,”
indicated that Miller “does not believe or embrace the schizophrenia diagnosis.”
(Emphasis added.) The court concluded that because Miller does not believe the
diagnosis or that the medication is what “put her in this … good state,” she “would
[not] avail herself of medication if she were not subject to the commitment.”

¶27 Miller directs us to no law indicating the circuit court’s order must
be reversed because the court failed to make the specific findings Miller claims the
court should have made. The court sufficiently echoed the compelling evidence

14
No. 2023AP1359

the County presented—that Miller does not have insight into or understand that
her schizophrenia prevents her from rationally seeing the world, and it explained
how her illness prevents this. The evidence indicated, as the court found, Miller
would not continue to receive her medication without a commitment and
corresponding medication and treatment order. Miller had the opportunity during
her testimony to counter the County’s evidence and convince the court she would
continue to take the medication, or some other prescription medication for her
schizophrenia, even if she were not under the commitment order, and yet did not
do so.

¶28 While the circuit court could have said more regarding Miller’s
dangerousness and lack of willingness to voluntarily get the treatment she needs—
which may have avoided this appeal altogether, considering that the parties did not
dispute Miller’s May 2021 behavior or that the behavior established her
dangerousness, and Miller had previously stipulated that dangerousness had been
established—the court said enough.

¶29 Miller rests her appeal almost entirely upon our supreme court’s
statement in D.J.W. that “going forward circuit courts in recommitment
proceedings are to make specific factual findings with reference to the subdivision
paragraph of [WIS. STAT.] § 51.20(1)(a)2. on which the recommitment is based.”
D.J.W., 391 Wis. 2d 231, ¶40. From this, she argues the circuit court’s order here
must be reversed because the court did not say enough.

¶30 Because of the significant differences between D.J.W. and this case,
we do not see D.J.W. as controlling the outcome of Miller’s appeal. In D.J.W.,
the court reviewed whether the County had presented sufficient evidence at the
recommitment hearing to support an extension of D.J.W.’s involuntary

15
No. 2023AP1359

commitment. Id., ¶1. The court noted that “[i]n a recommitment proceeding, the
burden is on the County to prove by clear and convincing evidence all required
facts,” including that the committee is “dangerous to themselves or others,” which
may be shown by proving dangerousness under any of the five standards of WIS.
STAT. § 51.20(1)(a)2. or the “additional manner of proving dangerousness
provided by … § 51.20(1)(am).” D.J.W., 391 Wis. 2d 231, ¶¶23, 29, 31-32.
Significantly, the D.J.W. decision was driven by the fact that “[i]t was not clear at
either the initial commitment hearing or the extension hearing on which
subdivision paragraph of … § 51.20(1)(a)2. the commitment was based.” Id., ¶36.

In affirming the initial commitment, the court of appeals
specifically determined that the subdivision paragraph of
WIS. STAT. § 51.20(1)(a)2. under which commitment was
appropriate was § 51.20 (1)(a)2.d….

….

In the court of appeals in the present appeal, the
County’s brief did not cite any specific subdivision
paragraph of WIS. STAT. § 51.20(1)(a)2. under which it
argued that D.J.W. was dangerous….

However, in its oral argument before this court, the
County apparently took a new tack and asserted that D.J.W.
would be a proper subject for a commitment in the event
treatment were discontinued not under subd. para. 2.d., but
under 2.c….

The record in this case is therefore quite unhelpful in
guiding this court’s analysis. We have received conflicting
messages from the County and the court of appeals
regarding the statutory basis for this commitment. In order
to avoid this problem in the future, we determine that going
forward circuit courts in recommitment proceedings are to
make specific factual findings with reference to the
subdivision paragraph of § 51.20(1)(a)2. on which the
recommitment is based.

16
No. 2023AP1359

D.J.W., 391 Wis. 2d 231, ¶¶37-40 (emphasis added). The court further added that
§ 51.20(1)(am) “mandates that circuit courts ground their conclusions in the
subdivision paragraphs of subd. 2.” D.J.W., 391 Wis. 2d 231, ¶41.

¶31 The D.J.W. court emphasized that “the purpose of making specific
factual findings with reference to a subdivision paragraph of WIS. STAT.
§ 51.20(1)(a)2. is” to “provide[] clarity and extra protection to patients regarding
the underlying basis for a recommitment,” “provide[] increased protection to
patients to ensure that recommitments are based on sufficient evidence,” “clarify
issues raised on appeal of recommitment orders and ensure the soundness of
judicial decision making, specifically with regard to challenges based on the
sufficiency of the evidence,” and relatedly provide “[a] more substantial record
[that] will better equip appellate courts to do their job, further ensuring meaningful
appellate review of the evidence presented in recommitment proceedings.”
D.J.W., 391 Wis. 2d 231, ¶¶42-44 (emphases added); see also Sheboygan County
v. M.W., 2022 WI 40, ¶25, 402 Wis. 2d 1, 974 N.W.2d 733 (“[T]he D.J.W.
directive was intended to ‘clarify issues raised on appeal of recommitment orders
and ensure the soundness of judicial decision making, specifically with regard to
challenges based on the sufficiency of the evidence.” (Emphasis added.)). But, in
Miller’s case, none of these reasons apply—Miller acknowledges, and there is no
dispute, that § 51.20(1)(a)2.c., the third standard, provides the “underlying basis
for” her recommitment; Miller does not challenge the sufficiency of the evidence
supporting her recommitment under § 51.20(1)(a)2.c. and (am); the record in fact
contains sufficient evidence; and the record is adequate for us to be able to “do
[our] job” of providing “meaningful appellate review of the evidence presented [at
the] recommitment proceeding[].” See D.J.W., 391 Wis. 2d 231, ¶44. D.J.W. did
not suggest that a recommitment order must be reversed where, as here, the

17
No. 2023AP1359

statutory basis for the order is clear and the evidence is sufficient to support that
statutory basis.

¶32 Absent such a directive, we note, as pointed out by the County, that
even if the circuit court had failed to make adequate findings of fact, we may
affirm the decision if the evidence clearly supports it, reverse the decision if it is
not so supported, or remand for further findings and conclusions. See Kraemer v.
Kraemer, 67 Wis. 2d 319, 320, 227 N.W.2d 61 (1975); see also State v. Margaret
H., 2000 WI 42, ¶37, 234 Wis. 2d 606, 610 N.W.2d 475. In this case, the
extension order expired before the completion of briefing; “as a consequence[,] the
circuit court lacks competency to conduct any proceedings on remand.” See
M.W., 402 Wis. 2d 1, ¶38. So, remand is not an option. And again, Miller does
not suggest that the evidence does not support the court’s decision, and we do not
see D.J.W. as mandating reversal where the evidence clearly supports the
decision.

¶33 Additionally, as argued by the County, the harmless error rule of
WIS. STAT. § 51.20(10)(c) also supports our decision to affirm the circuit court.
Section 51.20(10)(c) states: “The court shall hold a final hearing to determine if
the allegations specified in sub. (1) are true…. The court shall, in every stage of
an action, disregard any error or defect in the pleadings or proceedings that does
not affect the substantial rights of either party.” “For an error ‘to affect the
substantial rights’ of a party, there must be 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 is a possibility that undermines confidence in the outcome. Id.

18
No. 2023AP1359

¶34 Where, as here, the evidence presented at the hearing was sufficient
to sustain the circuit court’s determination of dangerousness under the third
standard, as, again, Miller does not dispute, we conclude that any shortcoming in
the court’s comments related to dangerousness is harmless. We so conclude
because even if the court erred by failing to state sufficient findings, this failure
did not contribute to the outcome of the final hearing—granting a recommitment
order—and does not undermine our confidence in that outcome. If the alleged
error had not occurred, the court simply would have made more comments
drawing from the presented evidence to support its dangerousness determination.
The court’s determination and the resulting order would remain the same.

By the Court.—Order affirmed.

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

19