Brown County v. R. J. 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.
May 7, 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. 2024AP206 Cir. Ct. No. 2016ME946

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

IN THE MATTER OF THE MENTAL COMMITMENT OF R. J. M.:

BROWN COUNTY,

PETITIONER-RESPONDENT,

V.

R. J. M.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Brown County:
TIMOTHY A. HINKFUSS, Judge. Affirmed.
No. 2024AP206

¶1 HRUZ, J.1 Richard2 appeals orders for his recommitment and for his
involuntary medication, entered pursuant to WIS. STAT. §§ 51.20 and 51.61(1)(g)3.,
respectively. He argues that there was insufficient evidence to support a
determination that he is a proper subject for treatment and that he is dangerous.
Richard additionally argues that the circuit court failed to make specific factual
findings regarding his dangerousness, as required by Langlade County v. D.J.W.,
2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277, and that Brown County did not
meet its burden to prove he received statutorily required information to support the
court’s issuance of an involuntary medication order.

¶2 We conclude that the County presented clear and convincing evidence
that Richard is a proper subject for treatment and is dangerous under the applicable
statutes. We also conclude that the circuit court made sufficient factual findings to
satisfy D.J.W. and that the County met its burden for the involuntary medication
order. Accordingly, we affirm.

BACKGROUND

¶3 Richard was emergently detained in 2016 after he stopped taking his
medication, began drinking alcohol and smoking marijuana, destroyed property at
his family’s business, threatened and assaulted his brother, and threatened to kill his
sister and her dogs. Following a hearing, Richard was involuntarily committed for
a period of six months, pursuant to WIS. STAT. § 51.20. Since then, Richard has

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2021-22). All
references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
2
For ease of reading, we refer to the appellant in this confidential matter using a
pseudonym, rather than his initials.

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No. 2024AP206

been recommitted seven times for periods of twelve months each, the last of which
is the subject of this appeal.

¶4 In March 2023, the County timely petitioned to extend Richard’s
commitment. The circuit court held a hearing on the petition in May 2023, during
which the County presented testimony from two witnesses: psychiatrist
Marshall Bales and case manager Trenton Estano. Bales testified that Richard
suffers from bipolar disorder and from substance abuse problems. Bales stated that
Richard’s condition is treatable and that he discussed with Richard the advantages
and disadvantages of, and alternatives to, medication for Richard’s condition. Bales
testified that Richard responded that he believed he did not experience any benefits
from his medication, and that Richard embellished the side effects that he suffers
from using the medication.

¶5 Doctor Bales stated that Richard is incompetent to refuse medication3
and that Richard would be a proper subject for commitment if treatment were
withdrawn. Specifically, Bales testified, “[w]hat happened in 2016 will happen
again,” and Bales noted that Richard has a pattern of being given the opportunity to
take his medication on a voluntary basis, not taking his medication, and once again
becoming dangerous and threatening others. According to Bales, Richard “made it
very clear” that he will stop taking medication and stop all mental health care if his
medication and treatment are voluntary. Bales also noted that Richard had
threatened his doctors and repeatedly threatened to kill himself.

3
Doctor Bales did not testify as to why, specifically, Richard is incompetent to refuse
medication. However, as will be discussed shortly, Bales’ report was admitted into evidence at the
hearing and provides Bales’ reasons in support of that conclusion.

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No. 2024AP206

¶6 Doctor Bales’ report was offered into evidence without objection, and
Bales was subject to cross-examination regarding its contents. The report noted that
in April 2023, Richard stopped taking his medication and started “making
inappropriate calls excessively.” Specifically, Richard made “dozens of calls and
left messages,” some of which “contained suicidal and homicidal statements.” The
report also noted an incident in which Richard “punched a window and broke his
wrist,” which, according to Richard, was done “so he would not kill” one of his
psychiatrists. Further, the report states that Richard continues to drink alcohol even
though it worsens the symptoms of his bipolar disorder. The report did indicate that
Richard had slightly improved in 2023 but also stated that he still had intermittent
periods of dangerousness.

¶7 Regarding Richard’s competency to refuse medication, Dr. Bales’
report stated that Bales explained to Richard the advantages and disadvantages of,
and alternatives to, medication that would help treat Richard. The report also listed
each of the advantages, disadvantages, and alternatives to such medication.
However, the report stated that Richard is “substantially incapable of applying an
understanding” of his medication to his condition “in order to make an informed
choice as to whether to accept or refuse the recommended medication or treatment.”
This incapability is because Richard was unable to list the benefits of his
medication, “cited many side effects, including many not usually encountered,” and
“could not weigh the pros and cons” of his medication.

¶8 Estano testified that Richard had experienced “some periods with
homicidal and suicidal ideation” during the prior year. Estano specifically testified
that he conducted a home visit with Richard during March 2023 and that Richard
“appeared to be escalated” when Estano arrived. During their discussion, Richard
voluntarily disclosed to Estano that “every day he thinks about cutting” Estano’s

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No. 2024AP206

throat. Richard testified that his medications cause him health issues, but he intends
to take his medication.

¶9 The circuit court found that Richard is mentally ill, suffers from
bipolar disorder and substance abuse disorder, and that he is a proper subject for
treatment. Referring to WIS. STAT. § 51.20(1)(a)2.c.,4 the court found that Richard
is dangerous because he evidenced a “substantial probability of physical impairment
or injury to himself … or other individuals,” as manifested by “a pattern of recent
acts or omissions” and a “substantial likelihood that [Richard] would become a
proper subject for treatment under this standard if treatment were withdrawn.” The
court later stated, “I would also add the dangerousness requirement about [Estano,
who] testified about [Richard] slitting [Estano’s] throat…. [I]t’s not a good thing
to say. So that’s part of the dangerousness requirement as well.” The court further
found that Richard is not competent to refuse medication or treatment because he is
“substantially incapable of applying an understanding” of his medication to his
condition “in order to make an informed choice as to whether to accept or refuse”
medication.

¶10 The circuit court entered orders extending Richard’s commitment for
twelve months and for his involuntary medication or treatment. Richard now
appeals. Additional facts will be provided below as necessary.

DISCUSSION

4
The circuit court also found that Richard is dangerous under WIS. STAT. § 51.20(1)(a)2.a.
Richard contests this finding as well. However, because we conclude that there was sufficient
evidence to support the court’s finding of dangerousness under § 51.20(1)(a)2.c. and that the court
made sufficient findings with respect to that subdivision paragraph under Langlade County v.
D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277, we need not address Richard’s arguments
regarding § 51.20(1)(a)2.a. See Turner v. Taylor, 2003 WI App 256, ¶1 n.1, 268 Wis. 2d 628, 673
N.W.2d 716 (this court need not address all issues raised by the parties if one is dispositive).

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No. 2024AP206

¶11 Richard argues that the County failed to provide sufficient evidence
showing that he is a proper subject for treatment. In particular, he contends that the
County only presented evidence that bipolar disorders, in general, are treatable and
not that Richard specifically is treatable. Richard also contends that the County
failed to provide sufficient evidence showing that he is dangerous and, relatedly,
that the circuit court failed to make the specific dangerousness findings required by
D.J.W.5 Finally, Richard argues that the County presented insufficient evidence to
support the involuntary medication order. We reject all of Richard’s arguments.

¶12 Whether the County met its burden of proof to support orders
extending Richard’s commitment pursuant to WIS. STAT. § 51.20 and involuntary
medication pursuant to WIS. STAT. § 51.61(1)(g) are mixed questions of law and
fact. See D.J.W., 391 Wis. 2d 231, ¶¶24-25; Outagamie County v. Melanie L.,
2013 WI 67, ¶¶37-39, 349 Wis. 2d 148, 833 N.W.2d 607. “[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.” D.J.W., 391 Wis. 2d 231, ¶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.

¶13 “In order to involuntarily commit a person pursuant to [WIS. STAT.]
ch. 51, the petitioner must demonstrate that three elements are fulfilled: the subject
must be (1) mentally ill; (2) a proper subject for treatment; and (3) dangerous to
themselves or others.” Sheboygan County v. M.W., 2022 WI 40, ¶17, 402 Wis. 2d

5
Richard does not contest that he is mentally ill.

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No. 2024AP206

1, 974 N.W.2d 733. These same three elements are necessary for a petitioner to
prevail in a recommitment proceeding, such as the one in this case. Id., ¶18.

¶14 A person has rehabilitative potential—and thus is a proper subject for
treatment—if treatment will “‘go beyond controlling … activity’ and will ‘go to
controlling [the] disorder and its symptoms.’” Fond du Lac County v. Helen E.F.,
2012 WI 50, ¶36, 340 Wis. 2d 500, 814 N.W.2d 179 (alterations in original; citation
omitted). WISCONSIN STAT. § 51.20(1)(a)2.a.-e. lists five standards under which a
petitioner can prove an individual is currently dangerous. The third standard, at
issue here, is met if an individual “[e]vidences 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.” Sec. 51.20(1)(a)2.c.

¶15 Here, the County presented sufficient evidence that Richard is a
proper subject for treatment and is dangerous. Richard is correct in that Dr. Bales’
testimony was, at times, somewhat vague and generalized, particularly regarding
Richard’s treatability. However, Bales’ report was also entered into evidence before
the circuit court. See supra ¶6. Bales’ report described Richard as having a pattern
of being mentally ill, being forced to take his medication, improving and
subsequently no longer being forced to take his medication, and consequently
reverting to a state in which he becomes dangerous. Further, Bales’ report noted
that Richard had improved in 2023.

¶16 These facts indicate that Richard’s disorder and his symptoms are
controllable with medication or treatment and that Richard’s symptoms worsen
when he stops taking his medication. The record is clear that Richard chooses to
frequently undermine the efficacy of his treatment in several ways, including

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No. 2024AP206

drinking alcohol and not taking his medication. But, that fact does nothing to
disprove the County’s evidence that with the proper treatment, Richard’s condition
will improve. Indeed, as the County aptly states in its brief, “[j]ust because
treatment has not been successful due to deliberate actions of [Richard] to sabotage
that treatment, does not mean [that Richard’s condition] is any less treatable.”

¶17 Similarly, Dr. Bales’ testimony regarding Richard’s dangerousness
was also somewhat vague and generalized. However, Bales’ report documented
multiple incidents indicating dangerousness, and other parts of the record also
reflect evidence of recent dangerousness in the form of Richard’s persistent threats
to himself and others. For example, Richard made “dozens” of calls and left
messages containing “suicidal and homicidal statements” just one month prior to
his recommitment hearing; Richard felt the need to break his own wrist to prevent
himself from killing a psychiatrist; and Richard would stop taking his medication
and drink alcohol, thereby undermining his otherwise effective treatment. See
supra ¶6. Further, and notably, Estano testified that Richard voluntarily told Estano
that he thought about “cutting” Estano’s throat every day.

¶18 On appeal, Richard does not address the incidents of dangerousness
described in Dr. Bales’ report. He does, however, contend that his statement about
wanting to cut Estano’s throat every day does not mean that he is dangerous. In
support of this argument, Richard cites Portage County v. E.R.R., No. 2020AP870-
FT, unpublished slip op. ¶¶18-19 (WI App Oct. 1, 2020),6 for the notion that the
petitioner’s statement in that case that he wanted to “snap people’s necks” was not
enough to establish dangerousness under WIS. STAT. § 51.20(1)(a)2.b. Given the

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).

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No. 2024AP206

record in this case, we disagree with Richard’s contentions, including the alleged
aptness of E.R.R.

¶19 We first note that we have no duty to distinguish or otherwise discuss
E.R.R. See WIS. STAT. RULE 809.23(3)(b). In any event, we do not find that case
persuasive. In E.R.R., this court did not categorically conclude that a statement of
wanting to “snap people’s necks” was insufficient to establish dangerousness.
Rather, in contemplation of our supreme court’s directive in D.J.W., this court
declined to find the petitioner dangerous under WIS. STAT. § 51.20(1)(a)2.b. when
the circuit court itself did not find the petitioner dangerous under that standard and
did not make any factual findings regarding the petitioner’s statement.7 See E.R.R.,
No. 2020AP870-FT, ¶17.

¶20 Perhaps more importantly, the facts of this appeal are materially
distinguishable from those in E.R.R. Unlike in E.R.R., the circuit court here clearly
found credible the testimony that Richard wanted to cut Estano’s throat. Further,
Richard’s statement was directed toward a specific person with whom he regularly
met—indeed, his case worker—and Richard stated that he thought about cutting
Estano’s throat “every day.” Finally, Richard’s threats to kill somebody were not
an isolated incident. Rather, Richard’s commitment in 2016 began when he
threatened to “rip his [brother’s] head off” and kill his sister and her dogs.
Additionally, evidence was introduced at the recommitment hearing that Richard
more recently made “dozens” of phone calls with homicidal and suicidal statements.

7
This court did also note in Portage County v. E.R.R., No. 2020AP870-FT, unpublished
slip op. ¶¶19, 21 (WI App Oct. 1, 2020), that there was a lack of evidence indicating that the
petitioner would act on his desire to “snap people’s necks.” However, this court’s primary concern
appears to have been a violation of D.J.W. See E.R.R., No. 2020AP870-FT, ¶¶17, 21. Regardless,
as we will explain momentarily, Richard’s statement differs from E.R.R.’s statement in several
material ways.

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No. 2024AP206

The specificity of the person and the manner of killing conveyed by Richard’s
statement to Estano—along with the frequency and continuing nature of Richard’s
homicidal threats—is enough to support a finding of dangerousness. See generally
R.J. v. Winnebago County, 146 Wis. 2d 516, 523, 431 N.W.2d 708 (Ct. App. 1988)
(concluding that the petitioner’s statement that she wanted to stab or kill her
coworker was sufficient to establish dangerousness).

¶21 Richard next argues that the circuit court failed to make specific
factual findings regarding his dangerousness, as required by our supreme court in
D.J.W. Although this is a close case in this regard and the court’s specific factual
findings are scarce, we conclude that its findings are sufficient to satisfy the D.J.W.
mandate.

¶22 In D.J.W., the appellant was initially committed without a finding
regarding the specific standard of dangerousness that he met. D.J.W., 391 Wis. 2d
231, ¶36. On appeal from the original commitment order, this court concluded that
D.J.W. was dangerous under WIS. STAT. § 51.20(1)(a)2.d. D.J.W., 391 Wis. 2d
231, ¶37. When he appealed his recommitment, D.J.W. focused his briefing on
dangerousness under § 51.20(1)(a)2.d., and the County did not specify any standard
of dangerousness. D.J.W., 391 Wis. 2d 231, ¶38. When our supreme court heard
oral argument in the case, the County argued, for the first time, that D.J.W. was
dangerous under § 51.20(1)(a)2.c. D.J.W., 391 Wis. 2d 231, ¶39.

¶23 Our supreme court noted that the confusion as to which standard of
dangerousness applied resulted in an unhelpful record and “conflicting messages”
from the County and the court of appeals. Id., ¶40. To prevent this issue in the
future, our supreme court concluded that, in recommitment proceedings, a circuit
court is required to “make specific factual findings with reference to the subdivision

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No. 2024AP206

paragraph of [WIS. STAT.] § 51.20(1)(a)2. on which the recommitment is based.”
D.J.W., 391 Wis. 2d 231, ¶40. The purpose of this mandate is to provide “clarity
and extra protection to patients regarding the underlying basis for a recommitment,”
due to the important liberty interest at stake. Id., ¶42. Further, this mandate ensures
clarity of the issues raised on appeal and ensures the “soundness of judicial decision
making.” Id., ¶44.

¶24 Here, while the circuit court’s decision could have been more robust,
the concerns underlying our supreme court’s decision in D.J.W. are not present.
Unlike in D.J.W., the court identified the standard under which Richard is
dangerous—specifically, WIS. STAT. § 51.20(1)(a)2.c. The County has been
consistent in arguing that Richard is dangerous under this standard. In turn, Richard
was able to directly address the sufficiency of the evidence regarding his
dangerousness, the result of which has been a circuit court record with a unified
understanding of the standard of dangerousness at issue.

¶25 Further, the circuit court identified the specific actions for which it
found Richard dangerous. In particular, the court stated, “I would also add the
dangerousness requirement about [Estano, who] testified about [Richard] slitting
[Estano’s] throat…. [I]t’s not a good thing to say. So that’s part of the
dangerousness requirement as well.” While the court could have—and should
have—provided more factual findings supporting its finding of dangerousness, this
finding was sufficient to satisfy the D.J.W. mandate. See generally Winnebago
County v. B.R.C., No. 2023AP1842, unpublished slip op. ¶¶9, 21 (WI App Feb. 14,
2024) (concluding that the circuit court’s statement that it was “[r]elying heavily
upon the opinion of the medical professional”—in combination with the detailed
evidence from the medical professional and other witnesses—was sufficient to
satisfy D.J.W. and ensure meaningful review).

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No. 2024AP206

¶26 Finally, Richard argues that the County presented insufficient
evidence to support the involuntary medication order. Richard contends that the
County failed to prove that it gave him an adequate explanation of the advantages,
disadvantages, and alternatives to his medication or treatment. Richard also asserts
that the County failed to adequately explain how he is incompetent to refuse
medication.

¶27 In determining whether an individual is incompetent to refuse
medication, “the circuit court must first be satisfied that the advantages and
disadvantages of, and the alternatives to, medication have been adequately
explained to the patient.” Virgil D. v. Rock County, 189 Wis. 2d 1, 14, 524 N.W.2d
894 (1994). The explanation of the proposed medication “should include why a
particular drug is being prescribed, what the advantages of the drug are expected to
be, what side effects may be anticipated or are possible, and whether there are
reasonable alternatives to the prescribed medication.” Melanie L., 349 Wis. 2d 148,
¶67. As relevant to this appeal,8 WIS. STAT. § 51.61(1)(g)4.b. provides that a person
may be found incompetent to refuse medication if he or she is “substantially
incapable of applying an understanding of the advantages, disadvantages and
alternatives to his or her mental illness, developmental disability, alcoholism or drug
dependence in order to make an informed choice as to whether to accept or refuse
medication or treatment.”

8
WISCONSIN STAT. § 51.61(1)(g)4. provides two ways in which a person may be found
incompetent to refuse medication. Outagamie County v. Melanie L., 2013 WI 67, ¶54, 349 Wis. 2d
148, 833 N.W.2d 607. Doctor Bales opined that Richard is incompetent under both of those
standards, and Richard contests the sufficiency of the evidence for both standards. However, the
circuit court found that Richard was incompetent to refuse medication under only one of the
standards—namely, that Richard is substantially incapable of applying an understanding of his
medication to his condition. See § 51.61(1)(g)4.b. Because we conclude that there was sufficient
evidence to support the court’s finding under that standard, we need not address Richard’s
arguments regarding the other standard in § 51.61(1)(g)4. See Turner, 268 Wis. 2d 628, ¶1 n.1.

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No. 2024AP206

¶28 Regarding the sufficiency of the medication explanation, Richard
argues that Dr. Bales’ testimony was vague, did not specify the advantages,
disadvantages, or alternatives to medication, and did not indicate how many times
people have tried to explain Richard’s medication to him. We agree with Richard
that Bales’ testimony was, at times, vague and that Bales should have testified in
more detail in this regard. However, Bales’ report—which, again, was admitted
into evidence—provides the details necessary to prove that Richard was given an
adequate explanation of his medication. The report states that Bales explained to
Richard the advantages, disadvantages, and alternatives to his medication. The
report also provides the specific advantages, disadvantages, and alternatives to
Richard’s medication and, importantly, states that these specifics were explained to
Richard. Richard is correct that there is no information as to how many times people
tried to explain his medication to him. However, the County is not required to
provide such evidence. See generally WIS. STAT. § 51.61(1)(g); Melanie L., 349
Wis. 2d 148, ¶¶53-54.

¶29 Similarly, Richard argues that Dr. Bales’ testimony was vague as to
why Richard is incompetent to refuse medication. Again, we agree that Bales’
testimony in this regard was vague and did not rise to the level of clear and
convincing evidence of Richard’s incompetence. Indeed, we find it concerning that
Bales’ testimony was so ambiguous and that the County did not further flesh out the
details of Bales’ opinion during his direct examination.

¶30 Nevertheless, and once again, Dr. Bales’ report provides the details
necessary to support the circuit court’s findings regarding Richard’s incompetence
to refuse medication. The report states that Richard is incompetent to refuse
medication because, during the medication review, Richard could not list any of the
benefits of his medication, “was unreasonable” in his comments about the

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No. 2024AP206

medication, and could not “weigh the pros and cons of psychotropic [medication]
or apply the information to himself.” Accordingly, we affirm the circuit court’s
recommitment order and order for Richard’s involuntary medication and treatment.

By the Court.—Orders affirmed.

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

14