“Trevor” appealed an order recommitting him for 12 months because (1) the circuit court orally failed to indicate a standard of dangeorusness per Langlade County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277, and (2) the county’s evidence was insufficient under either the 1st or 3rd standards. He prevailed on the latter argument. The opinion is helpful to lawyers defending clients against recommitment under these standards.
While the circuit court did not orally specify which standards of dangerousness applied to Trevor, it made vague references to the 1st and 3rd standards, and its written order indicated the 3rd standard. The court of appeals assumed without deciding that the circuit court complied with D.J.W. It reversed based on insufficient evidence. Opinion, ¶17.
1st standard of dangerousness. The court of appeals paid close attention to the plain language of §51.20(1)(a)2.a. As viewed through the lens of §51.20(1)(am), this standard required the county to show clear and convincing evidence that if treatment were withdrawn Trevor would physically harm himself or others “as manifested by evidence of threats or attempts at suicide or serious bodily harm.” Opinion, ¶18.
The circuit court made no findings about Trevor’s past suicidal ideations or when they occurred. It couldn’t because the county presented no evidence about those ideations and no explanation about why withdrawing treatment would cause Trevor to have them again. The only evidence on this subject was Dr. Coates’ testimony that schizophrenia carries an increased risk of death from unnatural causes such as suicide. Opinion, ¶18.
Note: In D.J.W., Dr. Coates also testified, based on general statistics, that people diagnosed with schizophrenia have an increased risk of suicide. SCOW held this evidence insufficient. Coates needed to testify about the consequences to D.J.W. specifically if treatment were withdrawn. D.J.W., ¶53.
3rd standard of dangerousness. As viewed through the lens of §51.20(1)(am), this standard required the county to show clear and convincing evidence that if treatment were withdrawn Trevor would evidence such impaired judgment, manifested by a pattern of recent acts or missions, that there would be a substantial probability of physical impairment or injury to himself or others. Opinion, ¶20.
The court of appeals held the county’s evidence on this standard too vague and too old:
¶24 At best, the County presented evidence that Trevor failed to properly care for himself years ago such that he suffered from life-threatening hyponatremia; at some unknown time, Trevor had unspecified suicidal ideations; Trevor possibly attempted suicide sometime in the past; at some unknown time Trevor may have acted aggressively toward others, including treatment providers in an unspecified manner, and threatened to kill them; and Trevor is “non-compliant, using marijuana, [and] not taking his medications consistently.” Based upon this evidence, the circuit court found that Trevor “suffers such impaired judgment that if treatment were withdrawn he would present as a substantial probability of physical impairment or injury to himself or to others.” The evidence presented, however, does not support this finding.
¶25 As previously stated, the circuit court is required to make a finding of current dangerousness. K.E.K., 395 Wis. 2d 460, ¶3. Yet, the court itself recognized that “some of the dangerous conduct that has been testified to here … is somewhat dated.” Doctor Coates testified that Trevor has not been hospitalized recently due to hyponatremia. It is unclear when Trevor last had suicidal ideations, and Coates testified that Trevor specifically denied having any suicidal ideations the last time he interviewed him. There were no details provided regarding Trevor’s aggressive behavior. The County also neglected to present evidence as to how Trevor’s medication noncompliance or substance use created any substantial probability of physical impairment or injury to himself or others.