Protective placement upheld against Helen E.F.-based challenge

Waukesha County DHHS v. M.S., 2022AP2065, District 2, 9/6/23 (one-judge decision; ineligible for publication); case activity (briefs not available)

M.S. (“Martin”) spent nearly 22 years committed under Chapter 51. In 2021, the county switched course and sought and received a permanent guardianship and protective placement under Chapters 54 and 55. Martin challenged whether he was a proper subject for protective placement, relying “quite heavily” on Fond du Lac County v. Helen E.F., 2012 WI 50, 340 Wis. 2d 500, 814 N.W.2d 179. The court of appeals refers to Martin’s argument as a “red herring” and affirms, holding that the county met its burden to prove Martin was a proper subject for protective placement under Chapter 55. (Op., ¶6). Understandably, after having been committed for 22 years under Chapter 51, Martin seems to have assumed his paranoid schizophrenia diagnosis was treatable under Chapter 51’s “short-term” treatment system. See Helen E.F., 340 Wis. 2d 500, ¶21 (explaining that “Chapter 51 is designed to accommodate short–term commitment and treatment of mentally ill individuals, while ch. 55 provides for long-term care for individuals with disabilities that are permanent or likely to be permanent.”). So, when the county sought a protective placement under Chapter 55, which required the county to allege and prove that Marin’s mental illness was “permanent or likely to be permanent” (see Wis. Stat. § 55.08(1)(d)), Martin disputed whether Chapter 51 was “more appropriate.”

The court all but disregards Martin’s concern because the only issue presented was whether the county met its burden to establish that Martin is a proper subject for protective placement under Chapter 55. The court calls concerns over whether the county could have pursued another Chapter 51 commitment or whether Chapter 51 might be “more appropriate” as “executive decision[s] for the County, not the courts.” (Op., ¶6).

In terms of the sufficiency of the evidence presented, the court proceeds to analyze the “first and third requirements” for a protective placement, which Martin disputed: whether (a) the individual has a primary need for residential care and custody and (c) As a result of … serious and persistent mental illness …, the individual is so totally incapable of providing for his … own care or custody as to create a substantial risk of serious harm to himself … or others.” (Op., ¶8). The court then detailed the evidence presented by the county, which consisted of a report and testimony by the court appointed psychologist, Dr. Peder Piering. Dr. Piering detailed his interactions with Martin since 2006 and relayed Martin’s history since 1978 through 2021. (Op., ¶¶10-27). Based on the evidence presented, the court concludes that

[t]he evidence easily establishes that Martin ‘has a primary need for residential care and custody’ as he is very likely to stop taking his medication and decompensate to the point of creating serious risk for himself and/or others if he is removed from a structured, supportive environment he is currently in and attempted to go back to his apparently uninhabitable home that he does not appear to be capable of making habitable.

(Op., ¶27).

The court further notes that Martin’s case “bears significant similarities” to K.N.K. v. Buhler, 139 Wis. 2d 190, 407 N.W.2d 281 (Ct. App. 1987), in which the court explained:

K.N.K.’s debilitation lies in her mental illness which is rendered permanent because of her continuing inability or refusal to address it or assist in treating it. It is this history which demonstrates, more than any other fact, that K.N.K. requires more than active treatment under ch. 51 … and that K.N.K. has now progressed to the point where her primary need is for protective placement. Under K.N.K.’s argument, she could be perpetually involved in the ch. 51 commitment system and never be subject to a [WIS. STAT.] ch. 55 … placement.

(Op., ¶¶30-31).

While Helen E.F. offers what seems like a clear dividing line between Chapters 51 and 55 (i.e., Chapter 51’s short term care and treatment for individual’s subject to “rehabilitation” vs. Chapter 55’s long-term care for individuals who are permanently disabled), in practice the line is blurry. As practitioners know, individuals are commonly recommitted year after year based on the theory that their mental illness is treatable with psychotropic medication, but the individual never seems able to achieve sufficient rehabilitation to be free from commitment. When these clients challenge their perpetual recommitments, courts can find the individual a “proper subject for treatment” so long as “treatment will go beyond controlling activity and will go to controlling the disorder and its symptoms, then the subject individual has rehabilitative potential, and is a proper subject for treatment.” Waukesha County v. J.W.J., 2017 WI 57, ¶46, 375 Wis. 2d 542, 895 N.W.2d 783 (quoting Helen E.F.). That being said, this opinion really only explains that whether someone is a proper subject for treatment under Chapter 51 is not the same question as to whether they are a proper subject for protective placement under Chapter 55.