COURT OF APPEALS

DECISION

DATED AND FILED

February 15, 2022

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

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. 

Appeal No. 2021AP1292 Cir. Ct. No. 2020ME19

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

IN THE MATTER OF THE MENTAL COMMITMENT OF L. E.:

TAYLOR COUNTY HUMAN SERVICES,

 PETITIONER-RESPONDENT,

 V.

L. E.,

 RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Taylor County: 

ANN KNOX-BAUER, Judge. Affirmed. 

¶1 STARK, P.J.1 Luca2appeals from orders extending his involuntary 

commitment and for involuntary medication and treatment, both entered pursuant 

 

1

 This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2) (2019-20). All 

references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2021AP1292

2

to WIS. STAT. ch. 51. Although Luca does not challenge his underlying

recommitment, he argues that the circuit court improperly shifted the burden to 

him to prove that he did not require locked inpatient care, and that Taylor County 

Human Services (“the County”) failed to present sufficient evidence to support the 

court’s conclusion that placement in a locked inpatient facility was the least 

restrictive placement he required. In addition, Luca challenges the court’s 

determination that he was not competent to refuse medication or treatment. 

¶2 We conclude the County presented ample evidence to support the 

circuit court’s order that Luca’s placement in a locked inpatient facility was the 

least restrictive placement required, and that the court did not shift the burden of 

proof from the County to Luca on that issue. Additionally, sufficient evidence 

supported the court’s order for involuntary medication and treatment. 

Accordingly, we affirm both orders on appeal.

BACKGROUND

¶3 In September 2020, Luca entered an emergency room and cut his 

forearms with a razor blade in full view of a hospital employee, stating he had quit 

his job and was planning to kill himself. Luca was subsequently involuntarily 

committed pursuant to WIS. STAT. ch. 51 on September 28, 2020, for a period of 

six months. The circuit court did not enter an order for involuntary medication 

and treatment during the period of Luca’s initial six-month commitment.

 

2

 For ease of reading, we refer to the appellant in this confidential matter using a 

pseudonym, rather than his initials.
No. 2021AP1292

3

¶4 The following February, the County filed a petition to extend Luca’s 

commitment by one year. The circuit court held a recommitment hearing on 

March 18, 2021. Doctor Brian Stress, a psychologist, testified about his 

examination of Luca conducted in preparation for the hearing, his review of 

Luca’s records, and his discussions with Luca’s counselor and social worker.

¶5 Doctor Stress stated that although Luca was “pleasant” and 

“respectful,” he “continues to have suicidal thoughts all day every day when he’s 

basically awake.” Stress recounted that Luca had explained to him in detail his 

plans and thoughts of killing himself while in inpatient treatment—including

jumping from a water tower, drowning himself, standing his bed up on end and 

letting it fall on his head, and suffocating himself with a plastic bag. Luca had

further described to Stress that while at an inpatient facility during his initial 

commitment, he had smashed his clock radio, taken one of the broken plastic 

pieces, and cut his leg. Stress opined that this incident could have been either a 

suicide attempt or lesser “self-injurious behavior.” Stress testified that Luca had 

previously attempted to commit suicide on several occasions and had started 

having suicidal thoughts as early as twelve years old.

¶6 Doctor Stress testified he believed Luca suffered from “borderline 

personality disorder, adjustment disorder with depression and anxiety chronic 

versus major depressive disorder currently in remission [without3] psychotic traits, 

alcohol use disorder episodic in forced remission, and Cannabis use disorder 

constant in forced remission.” He opined that Luca’s thought processes “were 

 

3

 Although Doctor Stress initially testified that he believed Luca suffered from a major 

depressive disorder with psychotic traits, on cross-examination he clarified that he had 

misspoken, and that Luca suffered from a disorder without psychotic traits. 
No. 2021AP1292

4

impaired due to his mental health symptoms, suicidal ideations, and [his] planning 

to kill himself.” Stress testified that he believed Luca to be a proper subject for 

treatment and dangerous. He opined: “[I]f treatment were removed[,] there’s a 

more likely than not probability that [Luca] would unfortunately participate in 

behaviors that could result in his injury or death based on his thoughts and past 

behaviors.”

¶7 Doctor Stress further testified that he had explained Luca’s 

medication to him, and that although Luca understood what Stress was saying, “he 

indicated that he didn’t want to participate in treatment. He just wanted to be 

dead.” Stress noted that although Luca explained he might be willing to take the 

“right medication,” when asked what that medication might be, Luca indicated

that he did not know, and that “pot” was the only thing that actually helped him.

¶8 Doctor Stress noted that Luca was prescribed Gabapentin to be taken 

twice a day, but that Luca stated he was taking the medication “as needed only.” 

Stress testified that Luca’s 

insight is impaired related to his mental health and alcohol 

and drug symptoms which could result in impaired 

judgment and subsequent poor behaviors. So the—

depending on his mental health symptoms which very 

clearly he does not appear to have an understanding of the 

advantages and disadvantages and I don’t believe he’s 

competent to accept or refuse medications as a result of 

that, in my opinion.

Stress concluded that the least restrictive environment for Luca consistent with his 

treatment needs “would be continued placement in a locked facility to attempt to 

[e]nsure his safety and the safety of those he interacts with here.” Stress explained

that once Luca made improvements, an outpatient facility could become 

appropriate. 
No. 2021AP1292

5

¶9 Brooke Bauer, a certified social worker from Luca’s inpatient care 

facility, testified next. Bauer described Luca’s level of engagement in the 

available treatment and therapies at the facility as “[l]ittle to none.” Bauer 

explained that the facility offered activities such as therapy, physical exercise, and 

mindfulness exercises, and that while Luca went to activities when he was asked 

to attend, “there’s some questionability about if he feels it’s beneficial to him 

similar to what Doctor Stress said.” Bauer stated that one of the treatment goals 

Luca had developed was mood stabilization and “just finding joy in something, 

frankly,” but that Luca had not been progressing in meeting his goals as a result of 

his mood fluctuations.

¶10 Bauer confirmed that Luca regularly discussed death with her, and 

that he had made comments about killing himself in “similar if not almost 

identical conversations as Doctor Stress has.” Bauer explained that Luca was not 

actively on suicide watch as he had been doing well in requesting a seclusion 

room, or similar options if he was feeling as though he was a danger to himself.

Luca’s county case manager, Michelle Deml, briefly testified, noting that Luca 

made comments about wanting to kill himself “[e]very time” she had spoken with 

him, and “that’s the primary goal he identifies.”

¶11 The circuit court found that Luca had a mental illness that resulted in 

suicidal ideation, making plans about ways to commit suicide, and self-harm. The 

court concluded that Luca met the standards for commitment given the 

significance of his mental health issues and the lack of progress that he had made 

in overcoming his suicidal thoughts and actions. The court ordered that Luca be 

placed in locked inpatient treatment. In support of this placement decision, the 

court relied on the testimony of Dr. Stress, who opined that Luca needed to be 

placed in a locked inpatient facility, which would be the least restrictive placement 
No. 2021AP1292

6

consistent with the level of protection that he needed. The court recognized the 

possibility that Luca might be frustrated due to being placed in a locked facility, 

but it concluded that “the primary thing here is keeping him safe.” 

¶12 The circuit court separately issued a written decision and an order 

for Luca’s involuntary medication and treatment, finding that the County had 

presented clear and convincing evidence that Luca was not competent to refuse 

medication. The court reasoned that Luca had expressed to Dr. Stress that he did 

not want to participate in voluntary treatment, and that “he just wants to die.” In 

addition, the court noted that Luca was unable to explain the effect Gabapentin 

had on him except to say that the only medication he wanted to take was “pot.” 

The court concluded: “[I]t is clear that [Luca’s] belief that he should die prevents 

him from a legitimate thought-process regarding the risk and benefits of taking 

Gabapentin.” 

DISCUSSION

I. Least Restrictive Placement

¶13 Luca first argues that the circuit court improperly shifted the burden 

from the County to him to prove that he did not require locked inpatient care. 

When a court commits a person under WIS. STAT. ch. 51, it must also “designat[e] 

the maximum level of inpatient facility, if any, that may be used for treatment.” 

WIS. STAT. § 51.20(13)(c)2. This statute protects a committee’s due process 

interest “that a commitment determination consider those alternatives which 

would have a less drastic effect on the curtailment of the individual’s freedom and 

civil liberties.” J.R.R. v. State, 145 Wis. 2d 431, 437, 427 N.W.2d 137 (Ct. App. 

1988). Review of a circuit court’s recommitment order under § 51.20 presents a 

mixed question of fact and law. Waukesha Cnty. v. J.W.J., 2017 WI 57, ¶15, 375 
No. 2021AP1292

7

Wis. 2d 542, 895 N.W.2d 783. Appellate courts uphold the circuit court’s findings 

of fact unless they are clearly erroneous, but whether the facts satisfy the statutory 

standard is a question of law that is reviewed de novo. Id. 

¶14 In analyzing Luca’s least restrictive placement, the circuit court

stated: “It hasn’t been demonstrated sufficiently that [Luca] wouldn’t engage in 

self-harm if he were allowed to be in a group home or that there are sufficient 

safeguards with that type of placement that would satisfy the court that he should 

be in that lesser restrictive environment.” Luca argues that this language 

evidences the court’s impermissible shift of the burden of proof to him, requiring 

him to show that he would not engage in self-harm in a less restrictive setting. 

¶15 Luca correctly argues that the burden is on the County in a 

recommitment proceeding to prove all required facts by clear and convincing 

evidence. See WIS. STAT. § 51.20(13)(e); Langlade Cnty. v. D.J.W., 2020 WI 41, 

¶23, 391 Wis. 2d 231, 942 N.W.2d 277. We conclude that the circuit court’s 

statement is somewhat ambiguous due to its use of passive voice and a double 

negative. In the context of the court’s overall analysis, however, it is evident that 

it did not shift the burden of proof to Luca on the issue of his least restrictive 

placement. 

¶16 After finding that Luca was mentally ill and suffered from suicidal 

ideation, the circuit court discussed the evidence in the record that supported its 

placement determination, relying on Dr. Stress’s opinion that Luca required 

inpatient treatment for his own safety. The language Luca highlights was no more 

than the court’s conclusion—as a part of its broader analysis—that due to the lack 

of safeguards in less restrictive placements, no facts in the record supported a 

placement with less supervision than provided in an inpatient facility. The court 
No. 2021AP1292

8

did not state that it was altering the burden of proof, or that it was placing that 

burden on Luca. It also did not ask Luca to present evidence, or suggest that Luca 

was required to prove certain facts or circumstances on the issue of placement. 

The burden to support the recommitment remained on the County, and we 

conclude that the burden of proof was not impermissibly shifted to Luca.

¶17 Luca also argues that the County failed to prove that placement in a 

locked inpatient facility was the least restrictive placement he required.4 The 

testimony presented at the recommitment hearing, however, supported the circuit 

court’s decision to order locked, inpatient treatment. Bauer, Deml and Dr. Stress

all testified that Luca constantly talked about dying and the ways in which he 

thought about or planned to commit suicide. Stress confirmed that Luca was 

dangerous due to his impaired judgment and that he “didn’t want to participate in 

treatment. He just wanted to be dead.” In addition, Luca had a long history of 

suicidal ideation and he had even cut himself with a broken clock radio while 

under commitment at the inpatient facility. Given these circumstances, it was 

reasonable for the court to conclude that Luca required placement in an inpatient

environment with significant supervision to ensure that he would not act on his 

suicidal thoughts and plans. 

¶18 Luca appears to argue that the circuit court abdicated its role to 

Dr. Stress in determining his least restrictive placement. We disagree. The court 

could reasonably rely upon the testimony and report of the sole expert in making 

 

4

 We note that Luca does not challenge the underlying recommitment order and he 

instead raises arguments solely related to the restrictiveness of his placement. As a result, we do 

not conduct an analysis related to dangerousness or the remainder of the circuit court’s 

conclusions made at the recommitment hearing. 
No. 2021AP1292

9

its decision about Luca’s placement. The court is not required to accept the 

testimony of an expert. See State v. Brown, 2005 WI 29, ¶¶88-89, 279 Wis. 2d 

102, 693 N.W.2d 715. However, it cannot be criticized for relying upon the 

expert’s opinion if, as here, it is supported by the record. See Wisconsin v. 

Kienitz, 227 Wis. 2d 423, 440, 597 N.W.2d 712 (1999) (“The trier of fact has the 

ability to accept so much of the testimony of a medical expert that it finds credible, 

and it then weighs the evidence and resolves any conflicts in testimony.” (citations 

omitted)).

¶19 Luca argues that inpatient treatment was not required as he was not 

on suicide watch at the time of the hearing. He points to Bauer’s testimony that he 

participated in activities at the facility and that he had “made agreements” with the 

staff about what to do when he felt depressed, including developing coping 

techniques such as isolating himself. These facts, while relevant, do not mean that 

it was not appropriate for Luca to be subject to inpatient treatment given his 

significant risk of suicide and other self-harm. The coping mechanisms Luca

argues he uses were based upon the relationship he developed with the inpatient 

facility staff, the availability of an isolation room, and his willingness to ask for 

help to access it—all resources that would be less accessible or inaccessible in less 

restrictive placement settings. 

¶20 Furthermore, Bauer testified to the unique nature of the inpatient 

placement, stating that “[Luca] feels a sense of support there that he does not feel 

in other places.” Although Luca argues that no special protocols such as suicide 

checks were in place, Bauer testified that those protocols would be available if 

Luca was feeling actively suicidal. Given the evidence of Luca’s significant and 

ongoing suicide risk and his treatment needs, the circuit court’s finding that his 
No. 2021AP1292

10

placement in an inpatient facility with the capacity for enhanced suicide protection 

was the least restrictive placement he required is amply supported by the evidence.

II. Order for Involuntary Medication and Treatment

¶21 Luca next argues that the circuit court erred in entering an order for 

his involuntary medication and treatment. He contends that he was capable of 

understanding his medication and condition, and he was therefore competent to 

refuse medication. 

¶22 In order to establish that a person is not competent to refuse 

medication or treatment under WIS. STAT. § 51.61(1)(g)4., the County has the 

burden of proving one of two standards: (1) that the individual is incapable of 

expressing an understanding of the advantages and disadvantages of accepting 

medication or treatment and the alternatives; or (2) that the individual is 

substantially incapable of applying an understanding of the advantages, 

disadvantages and alternatives to his or her mental illness, developmental 

disability, alcoholism or drug dependence in order to make an informed choice as 

to whether to accept or refuse medication or treatment.5

¶23 The circuit court checked the box on the form order for 

recommitment indicating that Luca met the second of these standards, although it 

 

5

 Although the wording is not explicit in the plain language of the statute, the second 

standard under WIS. STAT. § 51.61(1)(g)4. has been interpreted as requiring that the County prove 

that the individual is substantially incapable of applying his or her understanding of the 

medication and its alternatives to his or her mental illness, in order to make an informed choice 

about accepting or refusing treatment. See Outagamie Cnty. v. Melanie L., 2013 WI 67, ¶55, 349 

Wis. 2d 148, 833 N.W.2d 607. This standard requires the petitioner to show that a committee is 

unable to make a connection between an expressed understanding of the benefits and risks of 

medication and his or her own mental illness. Id., ¶71. 
No. 2021AP1292

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did not specifically discuss in its written decision which standard applied. We 

assume without deciding that the evidence shows Luca was capable of 

understanding the advantages and disadvantages of accepting medication and 

treatment or its alternatives. We nevertheless agree with the court’s conclusion 

that the County presented sufficient evidence for the court to determine that Luca 

is substantially incapable of applying an understanding of the advantages, 

disadvantages and alternatives to his mental illness, in order to make an informed 

choice as to whether to accept or refuse medication or treatment. 

¶24 Luca contends that Dr. Stress agreed that he was able to understand 

the advantages and understand the potential side effects of Gabapentin, was 

willing to take medication if it helped him, was able to recognize past treatment 

that had helped him, and was voluntarily taking Gabapentin when he felt he 

needed it. Luca argues that the circuit court may not agree with his decision to 

only take Gabapentin as needed or his determination that “pot” was an effective 

treatment. He cites, however, to the proposition that “the court’s determination 

should not turn on the person’s choice to refuse to take medication; it should turn 

on the person’s ability to process and apply the information to the person’s own 

condition before making that choice.” See Outagamie Cnty. v. Melanie L., 2013 

WI 67, ¶78, 349 Wis. 2d 148, 833 N.W.2d 607. He argues that the circuit court 

erred in concluding that he was unable to do so.

¶25 We disagree. The circuit court concluded that Luca was unable to 

describe the effect Gabapentin had on him, and that “[i]t is clear that [Luca’s] 

belief that he should die prevents him from a legitimate thought-process regarding 

the risk and benefits of taking Gabapentin.” Dr. Stress’s testimony supports this 

finding. He opined that Luca’s claimed willingness to die and his failure to take 

his medication as prescribed evidenced Luca’s thought processes being “impaired 
No. 2021AP1292

12

due to his mental health symptoms, suicidal ideations, and planning to kill 

himself.” Despite Luca’s arguments to the contrary, this was not a case where he

was competent to make an informed choice about committing suicide in lieu of 

undergoing treatment and taking his medication as prescribed. 

¶26 Although Luca may be able to understand his medication and 

treatment options, it is evident from Dr. Stress’s testimony that Luca’s adjustment 

disorder with depression, chronic anxiety and major depressive disorder prevent 

him from processing that information and applying it in order to make an informed 

choice about accepting or refusing those medication and treatment options. In 

short, despite the fact that Luca understands the treatment and medication 

prescribed and their purposes, his mental illness interferes with his ability to make

an informed and rational choice about whether to engage in the recommended 

treatment and take his medication as prescribed. Accordingly, we affirm both the

order extending his involuntary commitment and the order for involuntary 

medication and treatment.6

By the Court.—Orders affirmed.

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)4.

 

6

 Although both parties make arguments related to mootness, we need not address them 

because we are releasing this opinion before Luca’s recommitment order expires.