Winnebago County v. D. P.

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 19, 2025
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. 2024AP2391-FT Cir. Ct. No. 2022ME99

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

IN THE MATTER OF THE MENTAL COMMITMENT OF D.P.;

WINNEBAGO COUNTY,

PETITIONER-RESPONDENT,

V.

D.P.,

RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Winnebago County:
DANIEL J. BISSETT, Judge. Affirmed.
No. 2024AP2391-FT

¶1 LAZAR, J.1 Daniel2 appeals from orders of the trial court for
extension of his WIS. STAT. ch. 51 commitment and for involuntary medication
and treatment.3 He asserts that Winnebago County failed to establish it reasonably
explained the disadvantages of his medications to him and thus did not introduce
sufficient evidence to support recommitment and involuntary medication. This
court concludes under our supreme court’s case law that the County introduced
sufficient evidence and affirms.

¶2 The County sought Daniel’s recommitment under WIS. STAT.
§ 51.20(1)(a)2.e (the “fifth standard” of dangerousness) and involuntary
medication and treatment pursuant to WIS. STAT. § 51.61(1)(g)3m. This required
the County to prove by clear and convincing evidence that, “because of mental
illness,” Daniel is incapable of making an informed choice whether to accept or
refuse medication or treatment “after the advantages and disadvantages of and
alternatives to accepting” the “particular medication or treatment have been
explained” to him. Sec. 51.20(1)(a)2.e; 51.61(1)(g)3m; see also Outagamie
County v. Melanie L., 2013 WI 67, ¶63, 349 Wis. 2d 148, 833 N.W.2d 607. At a
contested hearing on the County’s petition, Daniel’s treating psychiatrist for more
than five years, Dr. David Zerrien, testified that Daniel was prescribed the

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(d) (2023-24).
All references to the Wisconsin Statutes are to the 2023-24 version.
2
This court uses a pseudonym in order to protect the confidentiality of the subject
individual. See WIS. STAT. RULE 809.19(1)(g).
3
Although the notice of appeal identified only Daniel’s involuntary medication order,
Daniel argues that both orders must be vacated. We note that Daniel’s extension of commitment
order was entered on the same day as his involuntary medication order, so his notice of appeal is
timely as to both orders. The County does not assert this court lacks jurisdiction to consider the
order on extension of commitment or that it did not have adequate notice. This court will
consider both orders.

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No. 2024AP2391-FT

antipsychotic drugs Fanapt and fluphenazine for his mental illness as well as
several other medications. On direct examination by the County, Zerrien
answered a question about his discussion of these medications with Daniel as
follows:

Q. And, doctor, have you reviewed the advantages,
disadvantages, and alternatives of the medication
that you just testified to?

A. Right. I did. And I reviewed side effects with him.
Where he became quite agitated is when we were
talking about alternatives…. He became hostile in
the visit so I discontinued talking about alternatives
at that time.

¶3 Zerrien opined that Daniel was “incapable of expressing the
advantages, disadvantages, and alternatives [of his medication] because he doesn’t
think he has a mental health problem.” Zerrian also completed a report of his
pre-hearing examination of Daniel, which was admitted into evidence. The report
includes a section inviting the author to “[l]ist the disadvantages [of the
recommended medication] explained [to the individual].” Zerrien wrote:

I did talk to the patient about hyperprolactinemia[4] and he
was frankly angry about that which is a problem for him on
his current treatment unfortunately. He has a risk of
sedation, tremulousness, dry mouth, amongst other side
effects that were reviewed. We did talk about sedation
related to the [prescribed sleep aid] as he is requesting an
increase in that dose.

¶4 On cross-examination, Daniel’s counsel briefly questioned Zerrien
about his discussion of medication:

4
Zerrian testified that hyperprolactinemia is a rise in prolactin levels that can cause
breast tissue development.

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No. 2024AP2391-FT

Q. You testified that you explored some of the
disadvantages of [Daniel]’s current medication with
him, correct?

A. Yes.

Q. And is one of the current side effects of that
medication dry mouth?

A. Yes.

Q. Had [Daniel] expressed a concern about that to you?

A. That’s been a concern with his current treatment.
The main concern for him is hyperprolactinemia.
That’s the thing I’m concerned about with him
medically, that his prolactin level goes up on the
Prolixin [fluphenazine] and it’s been up on some
other treatments he’s been on. But we have not
unfortunately been able to get fully away from that
treatment or reduce it without him worsening
psychiatrically.

….

Q. Has [Daniel] expressed a concern about that?

A. Yes, he has. And I’ve been concerned about it as
well.

Counsel did not ask any questions relating to any other potential side effects or
possible disadvantages of Daniel’s recommended medication.

¶5 At the conclusion of the hearing, the trial court found “that the
advantages, disadvantages, and the alternatives of the psychotropic medications
have been explained to [Daniel], although the doctor had some difficulties with the
alternatives in that [Daniel] was somewhat resistive to discussing those and did not
have a willingness to engage in any discussion involving those alternatives.”
After determining that the other requirements for recommitment and involuntary
medication were met, the court ordered both.

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No. 2024AP2391-FT

¶6 Daniel appeals based on a single issue: he argues that the County
introduced insufficient evidence to establish that the disadvantages of the
prescribed medication were explained to him such that both orders must be
vacated under our supreme court’s decision in Melanie L., 349 Wis. 2d 148.
Quoting that case, he asserts that—setting aside hyperprolactinemia, dry mouth,
risk of sedation, and tremulousness—“[t]here is no evidence in the record that
Dr. Zerrien ever explained to [Daniel] the other side-effects that ‘may be
anticipated or are possible.’” See Melanie L., 349 Wis. 2d 148, ¶67. In particular,
he lists additional “common and less common side-effects” included in the
informed consent forms published by the Wisconsin Department of Health
Services for Daniel’s prescribed medications and argues that “[a]ny list of
potential medication disadvantages that omits such risks … cannot be reasonable.”

¶7 Whether the County has met its burden to prove all required facts by
clear and convincing evidence is a mixed question of law and fact. Langlade
County v. D.J.W., 2020 WI 41, ¶¶23-24, 391 Wis. 2d 231, 942 N.W.2d 277.
Findings of fact are upheld unless they are clearly erroneous. Id., ¶24. Whether
the facts satisfy the statutory standard requires a de novo review. Id., ¶25. Daniel
does not argue that any of the facts found by the trial court—based on Zerrien’s
testimony, which the court clearly found credible—were erroneous. Instead, he
argues they were insufficient as a matter of law.

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No. 2024AP2391-FT

¶8 There is no merit to Daniel’s argument.5 First, Daniel has identified
no legal support for his contention that a doctor must discuss every possible side
effect identified by DHS or any other organization. And, as the County aptly
points out, Zerrien’s report states that he discussed certain enumerated
disadvantages of Daniel’s medication with Daniel “amongst other side effects that
were reviewed.” Thus, Daniel has no basis for his statement that the listed side
effects were the only ones discussed; he chose not to clarify which additional side
effects were discussed when he chose not to question Zerrien about it at the
hearing.

¶9 Moreover, Daniel relies on Melanie L., in which our supreme court
held that individuals subject to involuntary medication orders must be given “a
reasonable explanation of proposed medication,” which “should include … what
side effects may be anticipated or are possible.” 349 Wis. 2d 148, ¶67. The court
vacated the medication order at issue in that case because the county’s witness
testified that the individual was unable to apply an understanding of the
medication “to her advantage”—which is a misstatement of the statutory
requirement that the individual be “‘substantially incapable of applying’ an
understanding of the advantages, disadvantages, and alternatives of [the
individual’s] prescribed medication to [his or] her mental illness in order to make
an informed choice.” Id., ¶¶30, 96-97.

5
To quickly and simply dispose of this appeal, this court will set aside the County’s
contention that Daniel forfeited this argument by failing to raise it in the trial court (or conceded
it by arguing in the trial court that he “ha[d] the ability” to apply an understanding of the
advantages, disadvantages, and alternatives to the medication to make an informed choice) and
evaluate the sufficiency of the County’s evidence.

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No. 2024AP2391-FT

¶10 But in Winnebago County v. Christopher S., 2016 WI 1, ¶57, 366
Wis. 2d 1, 878 N.W.2d 109, decided three years after Melanie L., our supreme
court upheld an involuntary medication order based on testimony much less
detailed than Zerrien’s in this case:

Q. Dr. Keshena, in the course of your treatment of
[Christopher] have you had an opportunity to
explain to him the advantages, disadvantages, and
alternatives to the medication?

A. Yes.

Christopher S., 366 Wis. 2d 1, ¶54 (alteration in original). As in this case, the
testimony was not disputed and there was also a report indicating that “the
advantages and disadvantages and the alternatives to accepting particular
medication [were] explained to the subject in detail[].” See id., ¶¶55-56
(alterations in original). Our supreme court stated that “[b]ecause these statements
mirrored the statutory standard, they met the statutory standard.” Id., ¶56.

¶11 There simply is no question that Zerrien applied the statutory
standard in his explanation to Daniel about the disadvantages to the medications at
issue. Both Daniel’s extension of commitment order and his involuntary
medication order are, accordingly, affirmed.

By the Court.—Orders affirmed.

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

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