COA affirms 5th standard recommitment despite “sparse” record

Winnebago County v. C.L.S., 2022AP1155-FT, 12/14/22, District 2, (1-judge opinion, ineligible for publication); case activity

C.L.S. sought reversal of his recommitment under §51.20(1)(a)2.e arguing that the county’s evidence of dangerousness was insufficient, and the circuit court failed to make the findings required by Langlade County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277.  The court of appeals rejected both arguments. But if its description of the examiner’s testimony is accurate, C.L.S. should have, at the very least, won on insufficient evidence.

C.L.S. has a history of bipolar 2 disorder. Several years ago he stopped medications, experienced auditory hallucinations, and tried to kill himself. In January 2022, the county petitioned to recommit him based on §51.20(1)(a)2.e, the 5th standard of dangerousness. Without a recommitment, he allegdly would repeat his behavior from 3-4 years earlier: stop medication, experience hallucinations, and attempt suicide..

The 5th standard is a long, convoluted standard requiring the county to prove 5 elements, which we won’t quote here.  C.L.S. apparently argued that the county’s sole witness, Dr. Monese, simply testified that he complied with the statute. He did not testify to facts that would allow the circuit court to find that the 5th standard had been met. The court of appeals disagreed. It held that while the record was “sparse” Monese testified to enough facts to satisfy each of the 5th standard’s elements.  Opinion, ¶¶15, 16-21.

In reality, Monese’s testimony didn’t even come close to satisfying the 1st element of the 5th standard. That element requires proof that Monese gave C.L.S. an explanation of “the advantages, disadvantages, and alternatives to accepting a particular medication or treatment.” See §51.20(1)(a)2.e. To win this point, the county had to show clear and convincing evidence that Monese gave a “reasonable” explanation of the advantages and disadvantages, including side effects, of the “particular” medication to be administered. See Outagamie County v. Melanie L., 2013 WI 67, ¶67, 349 Wis. 2d 148, 833 N.W.2d 607; Virgil D. v. Rock County, 189 Wis. 2d 1, 5, 14, 524 N.W.2d 894 (1994).

Now consider the court of appeals’ analysis of the county’s evidence on the first element:

¶16  First, Dr. Monese testified that C.L.S.’s mental illness renders him “incompetent” to make decisions about his medication or treatment. Other evidence in the record supports this statement. When asked about the effects C.L.S.’s bipolar disorder has on him, Monese agreed that it causes him to hear voices, substantially disrupts his thoughts and mood, and impairs his “judgment, behavior, [and] capacity to recognize reality.” He recounted how the voices C.L.S. reports hearing have told C.L.S. to stop taking the medications that “help[] him control these bad thoughts of him wanting to kill himself.” It is self-evident that a person must be able to exercise sound judgment based on facts in order to make competent decisions about medical care. The evidence presented to the circuit court shows that C.L.S.’s bipolar disorder prevents him from doing so and thus supports the court’s determination that C.L.S. is not competent to make informed decisions about whether to accept or refuse treatment.

No mention of what Monese told C.L.S., whether he testified to a particular medication and what’s its side effects are. Without evidence like this the circuit court and court of appeals cannot determine whether Monese’s explanation was “reasonable” under Melanie L. or “adequate” under Virgil D.  Because the county’s evidence didn’t begin to satisfy the first element of the 5th standard, we won’t delve into to the other 4 elements.

C.L.S. also argued that the circuit court violated D.J.W. by failing to make factual findings tied to each element of the 5th standard.  The court of appeals recently reversed a recommitment order where the circuit court made the same mistake. Ozaukee County v. J.D.A., No. 2021AP1148, unpublished slip op. (WI No. 2022AP1155-FT App Dec. 15, 2021).

The court of appeals held that, unlike J.D.A., the county presented testimony on each of the 5th standards elements.  “The absence of proof that accounted for the missing findings in J.D.A. is simply not present here, and the circuit court’s findings, though they could have been more expansive, were sufficient to comply with D.J.W.” Opinion, ¶23.  Really? See above re the county’s evidence on the first element of the 5th standard.