Winnebago County v. L.J.F.G., Case No. 22Ap1589, District 2, 04/12/2023 (one-judge opinion, ineligible for publication); case activity

L.J.F.G.’s (Emily’s) appeal concerned a stayed order for involuntary administration of psychotropic medication under Wis. Stat. § 55.14. While the court affirms the order and concludes that the evidence was sufficient to satisfy the statutory standard, it also noted that “the County certainly could have done a better job presenting evidence” and that the testimony was “hardly a model of clarity and does not put much meat on the bones.” (Opinion, ¶15). Moreover, the court added an observational footnote that “strongly encourages not only this county but other counties as well to take more care” presenting evidence at evidentiary hearings under Chapters 51 and 55. (Id., ¶16, n.3). The court further opined from its “singular perspective that much time could be saved for everyone in ‘the system’ if such additional time and care was employed at the petition and hearing stages.” (Id.).

So, the county could have and should have done a better job presenting evidence of Emily’s alleged dangerousness, but the circuit court’s order for involuntary administration of psychotropic medication is affirmed.

Emily’s challenge concerned the sufficiency of the county’s evidence of dangerousness, under § 55.14(3)(e), which requires the county to prove by clear and convincing evidence that without the involuntary administration of psychotropic medication, “the individual will incur a substantial probability of physical harm, impairment, injury, or debilitation or will present a substantial probability of physical harm to others.” Further, the statute requires the “substantial probability of physical harm, impairment, injury, or debilitation” to be “evidenced by either (1) evidence of current dangerousness under Wis. Stat. § 51.20(1)(a)2.a.-e., or (2) “[t]he individual’s history of at least 2 episodes, one of which has occurred within the previous 24 months, that indicate a pattern of overt activity, attempts, threats to act, or omissions that resulted from the individual’s failure to participate in treatment, including psychotropic medication, and that resulted in a[t least a] finding of probable cause for commitment under [§ 51.20].”

On appeal, the dispute concerned two “episodes” of Emily’s prior alleged dangerous conduct: one from 2013 and one from 2020. As to the 2013 episode, the court finds sufficient Dr. Bales’ testimony that in 2013 Emily was manic and psychotic and “attempted to kill police and the neighbor,” that she was “aggressive with her husband and nurses,” and that according to police, she had been “fighting them regarding the medical staff there.” (Op., ¶10). As to the 2020 episode, the court found that testimony from Emily’s sister and Dr. Bales was sufficient to establish an episode of dangerous conduct that occurred within the previous 24 months. Emily’s sister and Dr. Bales testified about an incident in which Emily was found in her car at a car dealership and was “demonstrating some inability to care for herself.” (Id. ¶¶7-9).

As required by the statute, the evidence of at least two episodes of Emily’s dangerous conduct must also have led to a finding of at least probable cause to commit Emily under  Wis. Stat. § 51.20. See Wis. Stat. § 55.14(3)(e)1. As to that statutory requirement, the court finds sufficient the fact that the county introduced documentation showing that Emily was committed under Chapter 51 in 2013 and 2020. (Id., ¶¶12, 15). While the 2020 commitment was reversed on appeal based on insufficient evidence of Emily’s dangerousness, see Winnebago County v. L.F.G., No 2021AP1063, unpublished op. and order (WI App Sept. 15, 2021), since the statute requires only proof of a valid “probable cause” finding, the court concludes that the evidence of these two episodes from 2013 and 2020 were sufficient.

Aside from the court’s “observation” that these Chapter 51 and 55 cases are much too frequently not given the care and attention they demand, an aspect of the case worth highlighting is the fact that Emily’s involuntary medication order was stayed by the circuit court pending appeal on May 23, 2022, and will remain stayed pursuant to the court of appeals opinion and order until after remittitur. (Op., ¶16). Assuming Emily files a petition for review, that will likely mean that the order at issue in this appeal will remain stayed for more than 12 months. The purported purpose of § 55.14 is to authorize the involuntary administration of psychotropic medication for a person under a protective placement order where there presents a substantial probability of dangerous conduct “[u]nless psychotropic medication is administered involuntarily” and the order must be reviewed “annually with respect to any individual subject to an order under sec. 55.14.”