### COURT OF APPEALS DECISION DATED AND FILED September 12, 2023

Samuel A. Christensen 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 W IS . S TAT . § 808.10 and R ULE 809.62.
Appeal No. 2022AP2201 Cir. Ct. No. 2022ME289 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT III

I N THE MATTER OF THE MENTAL COMMITMENT OF Z. W. L.:
B ROWN C OUNTY , P ETITIONER - R ESPONDENT ,
V . Z. W. L.,
R ESPONDENT - A PPELLANT .

APPEAL from orders of the circuit court for Brown County: TIMOTHY A. HINKFUSS , Judge. Reversed

. ¶ 1 GILL, J. 1 Zeb 2 appeals a n order exten ding his involuntary commitment pursuant to W IS

. S TAT

. § 51.20 and an associated order for

1 This appeal is decided by one judge pursuant to W IS

. S TAT

. § 752.31 (2) (2021

- 22). All references to the Wisconsin Statutes are to the 2021

- 22 version unless otherwise noted.No. 2022AP2201

2 involuntary medication and treatment

. Zeb argues that the circuit court relied on inadmissible hearsay when it found that Zeb is dangerous under § 51.20 (1)(a)2.b

. and 2.c., and that this error prejudic ed him because there was no other evidence to establish his dangerousness. 3 We conclude that the court relied on inadmissible hearsay in finding that Zeb was dangerous , that no exceptions to the hearsay rule applied to permit the admission of the testimony , and that the admission of the hearsay testimony was prejudicial to Zeb. Accordingly, w e reverse. 4

BACKGROUND
¶ 2 Zeb was initially committed to a behavioral health facility in Jefferson County i n March 2022 for six months , pursuant to W IS

. S TAT

. § 51.20(1)(a)2

. Thereafter, v enue was transferred to Brown County. Brown County subsequently petitioned for an extension of Zeb’s commitment , and i n September 2022 , t he circuit court held a contested hearing on the County’s petition

. ¶ 3 D octo r Marshall Bales, the County’s examining physician, was the first witness to testify at the exte nsion hearing. Bales testified th at Zeb declined to

2 For ease of reading, we refer to the appellant in this confidential matter using a pseudonym, rather than h is initials.

3 In his brief, Zeb erroneously states that he was found dangerous under W IS

. S TAT

. § 51.20(1)(a)2.a. While the circuit court did not specifically identify what subsection it found Zeb dangerous under, we agree with the County that Zeb was instead found dangerous under § 51.20(1)(a)2.b . and 2.c. Nonetheless , the outcome would be the same regardless of the subsection at issue.

4 An order for involuntary medication and treatment cannot exist without a valid commitment order. See W IS

. S TAT

. § 51.61(1)(g). Because we have determined that the order extending Zeb’s commitment must be reversed, reversal of the involuntary medication order is also required.No. 2022AP2201

3 meet with him but that Bales was able to complete his report b y reviewing Zeb’s records from Jefferson and Winnebago County ’ s detention documents, Bale s ’ own prior reports of his examinations of Zeb, and by speaking to Zeb’s father. Based on th is information, Bale s diagnosed Zeb with a s chizo a ffective disorder and n oted specific incidents where Zeb had exhibited symptoms of that disorder. Bales noted that Zeb was opposed to receiving monthly antipsychotic medication. Bales further testified that he believed Zeb would be a proper subject for commitment if
treatment were withdrawn.
¶ 4 The County moved to admit Bales’ report into evidence. Zeb’s counsel objected to the admission of Bales’ report, claiming that the specific
events described in the report were based upon inadmissible he arsay. The circuit
court sustained the objection while admitting the nonhearsay portion s of the report. ¶ 5 The County’s second and final witness was Jordan Lungstrom, Ze b’s case manager. Lungstrom testified that Zeb returned to a mental health fac ility on May 16, 2022 , due to Zeb calling the police and accusing his father of raping Zeb’s mother , which was untrue. Lungstrom also stated that Zeb threatened to kill his mother and father

. Zeb’s counsel objected to this testimony as hearsay. The circ uit court overruled the objection, stating “ No. 1, [Zeb is] a party opponent. No. 2, [Lungstrom] is a case manager as part of her duties

. ”
¶ 6 On cross

- examination, Lungstrom testified that she had not personally spoken to Zeb regarding the May 16 incident and that she obtained herNo. 2022AP2201

4 knowledge of the incident by reading a crisis center report. 5 The report was never offered or admitted into evidence. Lungstrom further testified that she had never personally witnessed Zeb making a verbal threat to anyone or exhibit ing violent behavior. Zeb did not present any witn esses. ¶ 7 During its closing argument, the County asked the circuit court to find Zeb dan gerous based on the May 16 incident and to extend Zeb’ s commitment. Upon the conclusion of closing arguments , the court again add ressed the disputed hearsay testimony regarding the May 16 incident, stating , “I misunderstood. I thought [Zeb] made those st atements. ” The court then stated ,

“ I t was his acts that the caseworker reviewed with [ Zeb ] .” The court then reasoned , “I do think being the case worker [Lung s trom]

... should and she d id discuss this case with [Zeb] because this came up on his case history. I mean, this is what case managers are supposed to do. And to me, that’s an exception to any of the hearsay rules.”
¶ 8 Based upon the evidence concerning the May 16 incident, the circuit court subsequently found that Zeb was dangerous under W IS

. S TAT

. § 51.20(1)(a)2.b. and 2.c., and it ordered Zeb’s twelve

- month recommitment and his involuntary medication and treatment. Zeb now appeals the order extending his com mitment and the associated order for involuntary medication and
treatment

.

5 This report was compiled by a crisis counselor, who collected statements from th e police and Zeb.No. 2022AP2201

5 DISCUSSION
¶ 9 Zeb argues that the circuit court erroneously exercised its discretion when it found Zeb to be dangerous under W IS

. S TAT

. § 51.20(1)(a)2.b. and 2.c

. by admitting and relying on Lungstrom’s inadmissible hearsay testimony concerning statements made by Zeb

. Specifically, Z eb asserts that Lungstrom’s testimony contained at least two levels of hearsay

. F irst , Lungstrom testified concerning the contents of the written crisis report , and second , that report contained oral statements made by others to the crisis counselor , and that no exceptions apply to either level of hearsay

. Zeb also argues that the admi ssi on of the hearsay was prejudicial because the County’s admissible evidence against him is insufficient to prove , by clear and convincing evidence, that he is dangerous.
¶ 10 We review the circuit court ’s decision to admit evidence for an

e rroneous exercise of discretion. State v. Stevens , 171 Wis. 2d 106, 111, 490 N.W.2d 753 (1992). A court’s discretionary decision will be upheld if the court “examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach.” Appleton Post
- Crescent v. Janssen , 149 Wis. 2d 294, 302

- 03, 441 N.W.2d 255 (Ct. App

. 1989).
¶ 11 Hearsay is “ a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. ” W IS

. S TAT

. § 908.01(3). Hearsay is inadmissible unless an exception applies. W IS

. S TAT

. § 908.02. Hearsay within hearsay is inadmissible unless each par t of the combined statements conform s to a hearsay exception

. W IS

. S TAT

. § 908.05. One e xception to the exclusion of hearsay testimony is based upon aNo. 2022AP2201

6 statement that is made by a party opponent and offered against that party. Sec. 908.01(4)(b) 1

. ¶ 12 Zeb argues , and the C ounty does not dispute, that the party

- opponent exclusion does not apply to Lungstrom’s testimony regarding the May 16 incident

. Zeb further contends, and the County does not dispute, that there is no “case manager” exception to the rule against hearsay. We agree on both counts

. ¶ 13 Here, Lungstrom’s testimony does not fall wit hin the party

- opponent exception because Lungstrom did not testify about any discussions that she had with Zeb regarding the May 16 incident. Rather, Lungstrom based her testimony on the content of the crisis center report

. The report was drafted by a crisis center counselor and consis ted of statements from police officers and Zeb. Because Lungstrom’s testimony rests upon two layers of hearsay, ther e must be an exception for each level of hearsay for Lun g s trom ’s testimony to be admissible. See W IS

. S TAT

. § 908.05.
¶ 14 The par ty

- opponent exception applies to Zeb’s oral statements to the police and the crisis worker because Zeb directly made those statements. See W IS

. S TAT

. § 908.01(4)(b)1. However, t he party

- opponent exception does not apply to the report itself

. See i

d

. While Zeb’s statement s may have been admissible if testified to by the crisis worker or police officer s , neither w as called to testify at the hearing. See State v. Patino , 177 Wis. 2d 348, 363, 502 N.W.2d 601 ( Ct. App. 1993) ; s ee also § 908.01(4)(b)1. Moreover , there is no “case manager” exception to the hearsay rule enumerated in the statutes or rules adopted by our supreme
court

. See W IS

. S TAT

. § § 908.0 1

- 045.
¶ 15 The County nonetheless appears to argue that the circ uit court did not erroneously exercise its discretion by admitting the hearsay testimony becauseNo. 2022AP2201

7 it was proffered to sho w why Zeb returned to the behavioral health facility. 6 We construe this argument as an assertion that the County was not offering the

e vidence for the truth of the matter asserted.
¶ 16 We reject this argument. I n its closing argume nt, the County asked the circuit court to find Zeb dangerous based on the May 16 incident , and the court mention ed the May 16 incident in support of its dangerousness finding

. Thus, the evidence was clearly offered for that purpose. Additionally , as w e discuss below, there is no evidence on which t he court could base i t s dangerousness finding without Lungstrom’s testimony regarding the May 16 incident

. Thus, the County clearly intended for the court to rely upon

— and the court did in fact rely upon

— Lungstrom’s testimony for the truth of the matter asserted regarding the May 16 incident.
¶ 17 In response , t he County contends t hat Zeb fail ed to timely object while Lungstrom testified about the May 16 incident , thereby forfeiting his hearsay objection

. The County supports this contention by noting that Zeb’s counsel did not object directly after Lungstrom testified about Zeb cal ling the police but , rather , counsel objected when the County asked Lungstrom what Zeb said to the police. The County asserts that Zeb’s counsel only objected to Lungstrom’s statement regard ing what Zeb s aid to the police. We disagree.

6 The County also argues that Lungstrom “was simply testifying to th e historical record.” We reject this argument as undeveloped. See M.C.I. , Inc. v. Elbin , 146 Wis. 2d 2 39, 244

- 45, 430 N.W.2d 366 (Ct. App. 1988)

. Moreover, t he County’s argument that Lungstrom was testifying to th e “ historical record ” is unsupported by legal authority

. See Wal
- Mart Real Est. Bus. Tr. v. City of Merrill , 2023 WI App 14, ¶32, 406 Wis. 2d 663, 987 N.W.2d 764 (stating that arguments unsupported by legal authority need not be considered)

.No. 2022AP2201

8 ¶ 18 “ The purpose of the rule requiring that the grounds for objection be stated on the record is to afford the opposing party and the [circuit] court an opportunity to correct the error and to afford appellate review of the grounds for the o bjection. ” Air Wis
. , Inc. v. North Cent

. Airlines, Inc. , 98 Wis. 2d 301, 311, 296 N.W.2d 749 (1980). Here, Zeb’s counsel alerted the court to the hearsay in Lungstrom’s testimony by stat ing , “I’m just going to object to this line of questioning unless th ere’s a basis to show Ms. Lungstrom has personal knowledge of t his, these events.” Further, during Lungstrom’s cross

- examination, Zeb’s counsel emphasized that Lungstrom had no personal knowledge of the May 16 incident and had only obtained her informatio n regarding it from the cr isis center report. Finally, Zeb’s counsel started his closing argument by renewing his objection to Lungstrom’s testimony, stating , “I know the court has ruled on that and has already heard the testimony, but I believe that that testimony was multiple layers of hearsay

.... So I would object to the court relying on that for the truth of any events that happened that day.” Therefore, contrary to the County’s argument, Zeb did not forfeit his objection to the hearsay testimony; Zeb’s counsel alerted the court to the hearsay evidence in Lungstrom’s testimony

— not only to the specific question of what Zeb said to the police, but to the entire line of questioning regarding the May 16 incident.
¶ 19 Accordingly, we conclude that the circuit court erroneously exercised its discretion when it applied the party

- opponent and so
- called “case manager” exceptions to Lungstrom’s testimony. We now turn to whether the admissible evidence presented at the extension hearing was sufficient to support the court’s finding that Zeb was dangerous under W IS

. S TAT

. § 51.20(1)(a)2.b

. and 2.c.No. 2022AP2201

9 ¶ 20 Whether the County met its burden of proof to support the extension of Ze b ’s commitment “presents a mixed question of law and fact. We uphold a circuit court’s findings of fact unless they are clearly erroneous. Whether the facts satisfy the statutory standard is a question of law that we review de novo.” See Waukesha County v. J.W.J. , 2017 WI 57, ¶15, 375 Wis. 2d 542, 895 N.W .2d 783. Given the essential liberty interest at stake in involuntary commitments, due process requires a county to prove its case by clear and convincing evidence. Addington v. Texas , 441 U.S. 418, 433 (1979); W IS

. S TAT

. § 51.20(13)(e).
¶ 21 “In order to involuntari ly commit a person pursuant to [ W IS

. S TAT .] ch. 51, the petitioner must demonstrate that three elements are fulfilled: the subject must be (1) mentally ill; (2) a proper subject for treatment; and (3) dangerous to themselves or others.” Sheboygan County v. M.W. , 2022 WI 40, ¶17, 402 Wis. 2d 1, 974 N.W.2d 733

. To prove dangerousness , a c ounty must satisfy at least one of the five standards of dangerousness set forth in W IS

. S TAT

. § 51.20(1)(a)2.a

. - e. At issue here is § 51.20(1)(a )2.b. , which requires that an individual [e]vidences a substantial probability of physical harm to

other individuals as manifested by evidence of recent homicidal or other violent behavior or by evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them, as evidenced by a recent overt act, attempt or threat to do serious physical harm

.
Also at issue is § 51.20(1)(a)2.c. , which requires s howing that an individual

“ [ e ] vidences such imp aired judgment, manifested by evidence of a pattern ofNo. 2022AP2201

10 recent acts or omissions , that there is a substantial probability of physical impairment or injury to himself or herself or other individuals

. ” 7
¶ 22 “ The dangerousness standard is not more or less onerous during an extension proceeding; the constitutional mandate that the County prove an individual is both mentally ill and dangerous by clear and convincing evidence remains unaltered. ” Portage County v. J.W.K. , 2019 WI 54, ¶ 24, 386 Wis. 2d 672, 927 N.W.2d 509. W IS CONSIN S TAT

. § 51.20(1)(am) abrogates the requirement of a recent act in an extension hearing when a c ounty shows “that there is a substantial likelihood, based on the subject individual’s treatment record, that the individual would be a proper subject for commitment if treatment were withdrawn. ” However, a c ounty must still prove current dangerousness. J.W.K. , 386 Wis. 2d 672, ¶24. “It is not enough that the individual was at one point a proper subject for commitment.” Id

. ¶ 23 Here, Zeb argues th at absent Lungstrom’s inadmissible hearsay testimony, the County is unable to prove that he is currently dangerous by clear and convincing evidence

. We agree.
¶ 24 Lungstrom testified that she has never personally witnessed Zeb make any verbal threats to anyone or exhibit violent behavior toward himself or anyone else

. Bales testified that Zeb would be a proper subject for commitment if treatment were withdrawn, which relieved the County of its bu rden of showing recent acts that indicate dangerousness

. See W IS

. S TAT

. § 51.20(1)(am)

.

7 Zeb does not dispute that he is mentally ill or that his mental illness is treatable. The only element of W IS

. S TAT

. § 51.20(1) (a) that is contested is Zeb’s dangerousness. Thus, we analyze only the evidence that is pertinent to Zeb’s dangerousness.No. 2022AP2201

11 However, the County was still required to prove current dangerousness. See J.W.K. , 386 Wis. 2d 672, ¶24

. Neither Bales’ testimony nor Lungstrom’s admissible testimony provided evidence that Zeb exhibits a substantial risk of physical harm to himself or others , exhibits impaired judgment , or that Zeb exhibits impaired judgment by a pattern of recent acts for purposes of W IS

. S TAT

. § 51.20(1)(a)2.a.

- e. ¶ 25 Accordingly, we conclude that the evidence presented at the commitment extension hearing was insufficient to support a conclusion that Zeb is dangerous pursuant to W IS

. S TAT

. § 51.20(1) (a) 2.a

- e. We therefore reverse the order extending Zeb’s commitment and the associated order for involuntary medication and treatment. See Langlade County v. D.J.W. , 2020 WI 41, ¶ ¶ 58

- 60, 391 Wis. 2d 231, 942 N.W.2d 277 (reversing a recommitment when there was insufficient evidence to support a conclusion that the individual was dangerous).

By the Court.

— Orders reversed

. This opinion will not be published. See W IS

. S TAT

. R ULE 809.23(1)(b)4.