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COURT OF APPEALS DECISION DATED AND FILED January 13, 2015 Diane M. Fremgen Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing.� If published, the official version will appear in the bound volume of the Official Reports.� A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals.� See Wis. Stat. � 808.10 and Rule 809.62.� |
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����������� ����������� APPEAL from orders of the circuit
court for Milwaukee County:� JANE V. CARROLL,
Judge.� Affirmed.
�1������� BRENNAN, J.[1] Andy S. appeals from the circuit court�s involuntary mental commitment order and the order denying his motion for postdisposition relief.� He contends that the County failed to show by clear and convincing evidence that he was a danger to himself or others under Wis. Stat. � 51.20(1)(a)2.� We disagree and affirm.
BACKGROUND
�2������� On December 24, 2012, the Milwaukee Police Department detained Andy S. in his home and transported him to the Milwaukee County Mental Health Facility. �Thereafter, the County initiated involuntary mental commitment proceedings because the facility�s treatment director determined that Andy S. suffered from �Psychosis NOS,� posed a threat of danger to himself or others, was the appropriate subject for treatment, and needed to be involuntarily committed �to secure treatment.�
�3������� On January 18, 2013, the parties entered into a settlement agreement, in which they agreed to suspend the proceedings for ninety days while Andy S. sought voluntary treatment. �The agreement stated that the County could resume the proceedings if Andy S. was non-compliant with treatment. �On January 29, 2013, the County filed a �Statement of Noncompliance,� in which it alleged that Andy S. was not cooperating with his doctors.
�4������� On February 8, 2013, the circuit court held a dispositional hearing.� In support of commitment, the County called two witnesses: �Milwaukee Police Officer Truman Dodd and Dr. Robert Rawski.
�5������� Officer Dodd testified as follows:
Q �[On December 24, 2012] � were you dispatched to [�] West [�] Avenue, Apartment 3, in the City and County of Milwaukee?
A �Yes, I was.
Q ��.� And what, if anything, did you observe when you went to that location?
A �We went to the location. �As we were approaching apartment number 3, me and my partner, we heard noises coming from within, like a lot of rumbling, a lot of things being thrown around.
Q� And did you go into that apartment?
A� We did.
Q� And did you have contact with anyone in the apartment?
A� Yes, we did. The -- Andy [S.]
Q� And Andy [S.] who�s present in the courtroom today?
A� Yes, ma�am.
Q� And was there anyone else in the apartment with him?
A� No, there wasn�t.
Q� �. �How did he appear to you when you saw him?
A� He -- He seemed to be -- He was sweating profusely. �He was making statements.
Q� Do you recall what these statements are?
A� He was saying -- stating that someone was out to get him.
Q� And did he make any other statements that you are aware of or that you recall?
A� That he wanted to die.
Q� �. �And do you recall as he was making these statements, how his demeanor was?
A� Yeah. �He would go from calm, calm demeanor, talking to me, basically normal, having a decent conversation, and then it would switch to him crying. �
He was having a conversation with someone that wasn�t there in the apartment.
Q� And do you recall how the apartment looked when you went in there?
A� It was in total disarray.� There was broken furniture, a TV turned over. �It was -- There were a lot of things messed up in that apartment.
Q� Did you leave [Andy S.] in the apartment?
A� No we did not.
Q� Where did you --
A� We --
Q� Where did he go?
A� We conveyed him out to the Mental Health Complex.
�6������� The County�s second witness, Dr. Rawski, testified that, in his medical opinion, Andy S. suffered from �schizoaffective disorder,� was the proper subject for treatment, and required hospitalization for treatment. �He also testified that he believed that Andy S. was �dangerous.�� Dr. Rawski�s opinion was based upon his review of Andy S.�s medical records because Andy S. refused to cooperate with Dr. Rawski�s evaluation.
�7������� Following the County�s witnesses� testimony, counsel for Andy S. moved for dismissal on the grounds that the County failed to prove dangerousness:
I move to dismiss based on a lack of showing of dangerousness�.�
The police officer did not testify to any threats made by [Andy S.] that he was going to harm himself. �He did not testify to any act in furtherance of harm to himself or others.�
A stated desire is not enough.� There was no indication as to -- in the officer�s testimony as to how the apartment came to be in disarray.�
Even if there was, the disarray is not, in and of itself, sufficient for the dangerousness that the County has to show.� Nor is the sweating sufficient for the dangerousness.�
The only thing here is -- I mean, his demeanor was from calm to crying and a simple statement, he wanted to die.�
No threat that he was going to do anything.� No act in furtherance of trying to harm himself.�
For those reasons, I move the Court to dismiss this.
�8������� The circuit court denied Andy S.�s motion to dismiss and committed Andy S. for a period of six months:
THE COURT: �All right.� Well, first of all, there is no dispute that Mr. Dodd does have a -- I�m sorry. Not Mr. Dodd, that was the officer. �Mr. [S.] -- Is that how you say it, [S.]?
[Andy S.]: �Yes.
THE COURT: �Okay -- does have a mental illness, the schizoaffective disorder.� He is a proper subject for treatment.�
In terms of the dangerousness, the statement, I want to die, is a clear indication --
[Andy S.]: �I didn�t even say that.[[2]]
THE COURT: �-- in the ideation, but when combined with other things that were going on at the time -- the disorganization of his thoughts; talking to someone who�s not there; being calm one minute, crying the next; the apartment having turned over a TV and broken furniture -- that the totality of those circumstances, along with that statement, I do think establish that if not treated, [Andy S.] would be dangerous to himself.�
So I will enter a six-month commitment order.
�9������� On February 26, 2014, Andy S. filed a timely notice of intent to pursue postdisposition relief. �His commitment expired on August 5, 2013, and the County did not seek an extension.[3] �On January 2, 2014, counsel filed a no-merit report on Andy S.�s behalf. �On February 26, 2014, we issued an order, stating that there may be an issue �concerning the trial court�s conclusion that Andy S. met the legal standard of dangerousness� and instructed counsel to defend the circuit court�s finding or to dismiss the no-merit appeal. �On March 28, 2014, counsel for Andy S. dismissed the no-merit appeal.
�10����� Thereafter,
on June 30, 2014, Andy S. filed a motion for postdisposition relief, alleging
that the circuit court erred when it found that Andy S.�s actions met the legal
standard for dangerousness. �On July 28,
2014, the circuit court denied Andy S.�s motion for relief. �Andy S. appeals.
DISCUSSION
�11����� Our standard of review of the circuit court�s decision on commitment is twofold.� The circuit court�s findings of fact will be upheld unless clearly erroneous, but whether those facts meet the statutory requirements is a question of law we review de novo.� See K.N.K. v. Buhler, 139 Wis. 2d 190, 198, 407 N.W.2d 281 (Ct. App. 1987).
�12����� To involuntarily commit an individual for treatment, the County must prove by clear and convincing evidence that the individual is mentally ill, is a proper subject for treatment, and is dangerous.� Wis. Stat. � 51.20(1)(a), (13)(e).� Andy S. does not contest the first two prongs; he argues that the County did not prove dangerousness.� Here, the standard for dangerousness was � 51.20(1)(a)2.a., under which the County was required to prove that Andy S. �[e]vidence[d] a substantial probability of physical harm to himself � as manifested by evidence of recent threats of or attempts at suicide or serious bodily harm.�� See id.� A substantial probability in Wis. Stat. ch. 51 means ��much more likely than not.��� State v. Curiel, 227 Wis. 2d 389, 414, 597 N.W.2d 697 (1999).
�13����� Andy S. argues that the evidence was insufficient to prove that he was dangerous.� He makes two arguments.� First, he argues that neither Officer Dodd�s nor Dr. Rawski�s testimony was sufficient to demonstrate that he was a danger to himself because neither witness had first-hand evidence that Andy S. had threatened to kill himself, was capable of killing himself, or had previously attempted suicide.� Second, Andy S. contends that his statement to Officer Dodd that �he wanted to die� does not establish dangerousness, but rather, merely conveyed a thought or feeling with no overt act demonstrating an intention to follow through.
�14����� Andy S. does not challenge Officer Dodd�s testimony that when he entered Andy S.�s apartment he observed that Andy S. was alone and that the apartment was in disarray with the television turned over and the furniture broken.� Nor does Andy S. challenge the circuit court�s findings that Officer Dodd observed Andy S. exhibiting disorganized thoughts, talking to someone who was not there, behaving calmly one minute and crying the next, and stating that �he wanted to die.�
�15����� Based upon the totality of those facts, the circuit court properly concluded that Andy S. �[e]vidence[d] a substantial probability of physical harm to himself.�� See Wis. Stat. � 51.20(1)(a)2.a.� Andy S.�s statement that �he wanted to die� was not made in a vacuum.� When that statement is coupled with his other erratic behaviors�including talking to someone who was not present, vacillating between calm and crying, and turning over and breaking the television and furniture�the statement is sufficient to indicate that Andy S. was a danger to himself and was not merely conveying a thought without intent.� As such, we affirm.
By the Court.�Orders affirmed.
This opinion will not be published.� See Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. � 752.31(2)(d) (2011-12).� All references to the Wisconsin Statutes are to the 2011-12 version unless otherwise noted.
[2] On appeal, Andy S. does not argue that the circuit court�s finding that he told Officer Dodd that �he wanted to die� was in error.� As such, we accept the fact as true for purposes of appeal.
[3] Because Andy S.�s six-month commitment order has expired, the County argues in its brief that the issues Andy S. raises in his brief are moot.� We noted in our order rejecting counsel�s no-merit report that we �concluded that the appeal is not moot, because �the expired commitment has actual consequences for Andy S.� such as the effect on his ability to possess a firearm or obtain professional licenses.�� We need not readdress the mootness argument here because we otherwise conclude that the commitment order was properly issued.� See State v. Castillo, 213 Wis. 2d 488, 492, 570 N.W.2d 44 (1997) (appellate courts should decide cases on the narrowest possible grounds).