Defense Win! County failed to present sufficient evidence of dangerousness at 51 extension hearing

Burnett County v. B.S., 2023AP1811-FT, 2/28/24, District III (one-judge decision; ineligible for publication); case activity

Due in part to last-minute witness unavailability, the County’s attempt to rely solely on generic and conclusory testimony from an examining psychiatrist fails in yet another helpful, and citable, 51 win.

This is an appeal from Brian’s fourth recommitment hearing. (¶4). In preparation for the 2023 extension, Brian was examined by both a physician and a psychologist.  (¶5). The physician was well-acquainted with Brian’s situation, having testified at prior extension hearings. (¶25). When he was unable to attend the hearing, however, the County was forced to rely on only the testimony of the psychiatrist, Dr. Tasch. (¶5). Based on Dr. Tasch’s testimony, the circuit court concluded Brian was dangerous under § 51.20(1)(a)2.d. as well as § 51.20(1)(a)2.c. (¶¶8-9). It entered orders extending the commitment and for involuntary medication. (¶9).

On appeal, Brian raises two arguments. First, he argues that the circuit court failed to make sufficient findings as required by D.J.W. (¶15). Second, he argues the evidence was insufficient with respect to dangerousness. (¶19).

As to the D.J.W. claim, COA agrees that these findings “are sparse and do little beyond identifying the standards of dangerousness themselves.” (¶18). However, while COA suggests there may be a freestanding D.J.W. violation, it ultimately decides not to address this portion of Brian’s appeal as it concludes that reversal is warranted on other grounds–insufficiency of the evidence. (Id.).

With respect to Dr. Tasch’s testimony in support of a finding that Brian was dangerous under § 51.20(1)(a)2.d.–requiring proof Brian was “unable to satisfy basic needs for nourishment, medical care, shelter or safety without prompt and adequate treatment[..]”–Dr. Tasch merely referenced Brian’s need for “supervision and structure and […] support” that Brian received at an inpatient facility. (¶20). However COA faults Dr. Tasch for not providing more information “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.'” (Id.). This “general discussion” which invites COA to “speculate” about Brian’s dangerousness was therefore categorically insufficient to prove him dangerous by clear and convincing evidence. (Id.). And, while Dr. Tasch referenced the risk of medication withdrawals, there was no explanatory detail about that alleged risk. (¶21).

As to § 51.20(1)(a)2.c., Dr. Tasch merely testified that Brian has “psychotic thinking.” (¶22). However, she did not provide specific testimony about how this “psychotic thinking” impaired his judgment, as is statutorily required. (Id.). There was also no evidence as to how this impaired judgment put Brian at risk of the harms outlined in the statute. (Id.).

Because Dr. Tasch’s testimony was the only evidence (setting aside a vague and unclear reference, in the court’s ruling, to “collateral sources”), COA concludes that the testimony was insufficient to satisfy the County’s burden. It therefore rejects the circuit court’s implicit reliance on the conduct leading to Brian’s initial commitment with citation to language from Winnebago County v. S.H. that should be front and center in any brief attacking the sufficiency of the evidence at a recommitment hearing. (“[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.”). (¶23).

COA also rejects another common argument encountered in 51 appeals, that the circuit court was somehow permitted to make reasonable inferences about dangerousness, notwithstanding the paucity of the record before it. (¶24). While COA certainly accepts that a circuit court can make inferences based on evidence, “the court cannot simply infer that a standard of dangerousness is met.” (Id.). Instead, the County must prove dangerousness by clear and convincing evidence. (Id).

Finally, COA also reminds the reader that the circuit court could not simply assume that Brian was dangerous based on the prior commitment orders; rather, dangerousness must be proved anew at each independently conducted hearing. (¶25). Likewise, COA is unwilling to look back into Brian’s prior commitment proceedings to rescue this deficient 51 order, holding instead that its review is limited to the “relevant portion of the record” relating to the extension at issue on appeal. (Id.). Accordingly, COA reverses the extension order and, with it, the accompanying order for involuntary medication. (¶26).

We understand that this is yet another lengthy post about a 51 and our readers may be justifiably feeling a little bit of involuntary commitment fatigue. However, this unpublished but citable decision is yet another defense-friendly authority that should be added to any 51 litigator’s arsenal. Not only does it support the proposition that sufficiency and D.J.W. claims are distinct legal issues, but it also contains a number of helpful citations that can rebut common County arguments, as we have outlined above.