### COURT OF APPEALS DECISION DATED AND FILED August 30, 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 W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No s . 2021AP1955

2022AP102 Cir. Ct. No. 2021ME3

STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT III

I N THE MATTER OF THE MENTAL COMMITMENT OF C. B. O.:

T REMPEALEAU C OUNTY ,
P ETITIONER - R ESPONDENT ,

V . C. B. O.,

R ESPONDENT - A PPELLANT .

APPEAL S from order s of the circuit court for Trempealeau County:
SCOTT L. HORNE , Judge. Reversed

.Nos. 2021AP1955 2022AP102

2 ¶ 1 STARK, P.J. 1 In these consolidated appeals, 2 Chris 3 appeals from an order committing him under W IS

. S TAT

. ch. 51 and from an order extending his

comm itment for an additional year. Chris argues that both orders should be
reversed because Trempealeau County (the County) failed to present sufficient evidence that he is dangerous pursuant to W IS

. S TAT

. § 51.20(1)(a)2. at both his
initial commitm ent and recommitment hearings. Chris also asserts that the circuit court, at his commitment hearing, failed to make specific factual findings with

r eference to the subdiv ision paragraph of § 51.20(1)(a)2. under which it found Chris to be dangerous , as required by our supreme court in Langlade County v.
D.J.W. , 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277

. We agree that the court failed to make the spe cific factual findings required by D.J.W

. at Chris’s commitment hearing and that the County did not present sufficient evidence to

esta blish that Chris is dangerous during either his initial commitment or recommitment proceedings. A ccordingly, we reverse both orders.

BACKGROUND

¶2 O n February 25, 2021 , Chris was placed under an emergency detention

. See W IS

. S TAT

. § 51.15

. T he circuit court held a probable cause

1 These appeals are decided by one judge pursuant to W IS

. S TAT

. § 752.31(2) (d ) (2019

- 20). All references to the Wisconsin Statutes are to the 2019

- 20 version unless otherwise noted.

2 On March 4, 2022, the appellant moved to consolidate appeal Nos. 2021AP1955 and 2022AP102. By order, we denied the motion, noting that the first appeal was already in the briefing stage. Instead of consolidating the cas es, we directed that the briefing “be submitted to the court at the same time to be handled as companion cases.” Upon review of the briefs, however, we order these cases to be consolidated for disposition on our own motion.

3 For ease of reading, we us e a pseudonym when referring to the appellant in th ese confidential matter s

.Nos. 2021AP1955 2022AP102

3 hearing, found probable cause for commitment, and ordered two doctors to
examine C hris and prepare written reports prior to the final commitment hearing

. ¶ 3 At the final hearing, on March 11, 2021, Deputy Ross Huson with the Trempealeau County Sheriff’ s Department (the d epartment) testified regarding
the events that led to Chris’s emergency detention. According to Huson , one of Chris’s family members had called the department and requested that it conduct a welfare check on Chris . The family member reported that Chris “had left some disturbing voicemails on a family membe r’s phone talking about hitmen a nd hangmen coming to get him.” Huson testified that he went to Chris’s apartment to check on him, but he was unable to speak with Chris , as the doors of the apartment complex were “barricaded” from the interior of the apart ment complex. H uson explained that at the time, Chris was the only occupant in the four

- unit apartment complex. Huson then contacted the Trempealeau County Housing Authority , which helped him remove the barricades from the door. 4

¶4 The following day, H u son and other officers made contact with
C hris inside his residence after Chris invited them in to talk. Huson described the residence as “very clean” and “in good living condition.” According to Huson,
Chris explained that he had barricaded the doors of the apartment complex
because he was concerned that hit men were there to get him. Chris also told
Huson that the hitmen ha d been in the hallway outside his door with guns the night
before and that he had called 911 to have the dispatchers run the license plates of

4 The Housing Authority also informed Huson that Chris had barricaded the d oor on three previous occasions and that other tenants would be moving into the apartment complex withi n “the next day or that coming weekend.”Nos. 2021AP1955 2022AP102

4 the cars he had seen drive by that he b elieved belonged to the hitmen. Huson testified that when he asked Chris why hitmen would be trying to harm him, Chris “didn’t have an explanation, he mumbled a lot. He was hard to understand and
he

—his conversation was going seve ral different directions.” Additionally , Huson
testified that Chris told him that Chris tried to retrieve a firearm that he had previously sold to his son , explaining that he felt he needed a firearm for his safety. Huso n stated that Chris had also been to the sheriff’s department “a couple weeks prior” to the emergency detention, seeking the department’s help in

ret rieving the firearm from his son

. ¶5 While inside the residence, Chris permitted officers to “look around.” Huson observed a crossbow, a compound bow, and an arrow all stored in Chris’ s second bedroom as well as a ha tchet next to Chris’s bed. In addition, Huson found a hunting knife in a sheath inside a charcoal grill located next to the
doo r, and Chris commented that he needed the knife “ for safety. ” On

cross

- examination, Huson testified that he was not aware of any reports of Chris wielding any of the weapons observed in his apartment, nor was he aware that Chris had made any specific thre ats to another person. Huson explained , however,
that he detained Chris because he felt there was a “safety concern that unknown individuals to [Chris] could, you know, make him believe that these were hitmen and just having the access to weapons inside t he house, I was concerned for his safety as w ell as safety to anybody else.”Nos. 2021AP1955 2022AP102

5 ¶6 Doctor Thomas Ledoux, a psychologist, also testified at the final hearing. 5 He explained that h is attempt at examining Chris was relatively short
because Chris politely invoke d his right to remain silent and declined to p articipate
in the examination. See W IS

. S TAT

. § 51.20(9)(a)4. After speaking with Chris’s attending psychiatrist and reviewing the statement of emergency detention and admission records, Ledoux diagnosed Chris with schizoaffective disorder, characterized by psychosis, paranoia, and delusions that impacted his ability to “kind of r eality test in his daily life.” He opined that Chris’s condition was treatable with medication.

¶ 7 According to Ledoux, Chris’s thoughts and beliefs were a “departure from reality ,” and he displayed unsafe behaviors, “mainly very unsafe to himself, potentially other people”

— specifically, barricading h imself in his apartment resulting from his belief that hitmen w ere out to get him

. Ledoux emphasized that Chris’s efforts to obtain a firearm were concerning , which Ledoux believed to be “in connection with [his] fear that hitmen were after him.” Ledoux testified that he was concerned Chris might think future tenant s w ere a threat, a nd he could
harm them. When asked to elaborate on his concerns regarding Chris’s safety,
Ledoux explained:

So my concern, so he was

— he wasn’t making any, as far as I know, he was not making any direct threats to ot her people or even to himself. However, I believe that being in the psychotic state, he di d have impaired judgment. Pair[ed] with treatment no nadherence, lack of insight in his condition, I was concerned about his ability, his safety in

5 Although Chris argues that Ledoux’s examination repor t was not entered into evidence , our review of the record indicates that the County moved for admission of Ledoux’s report at the final hearing , and it was rec eived by the circuit court. Ledoux’s testimony at the hearing was consistent with the information contained in his report.Nos. 2021AP1955 2022AP102

6 the community. Again, my main concern is trying to possess a firearm while in that paranoid psychotic state seemed dangerous to me.

¶8 At the close of evidence, t he County claimed that Chris was dangerous due to his access to weapons and the possibility that Chris could
mist ake future tenants for hitmen

. The County, however, did not specify on the
record what statutory dangerousness standard it believed it had proved . Chris’s counsel expressed his concern that the testimony involved “a lot of potentials being thrown around and that [Chris is] potential ly dangerous, he could poten tially hurt someone. But there’ s been no overt act toward any of that.... There need [ s ] to be some outward sign of actual dangerousness and I don’t think that th at has been presented at all.”

¶ 9 The circuit court concluded that Chris was mentally ill, a proper subject for treatment, and dangerous. The court explained that there were
concerns Chris w ould “act out violently” toward a person he misperceived to be a
hitman and that , in barricading the front door to the complex, Chri s was ta king action “on the basis of that apparently psychotic belief.” The court then stated:

There were weapons available. The deputy observed a crossbow, compound bow and arrow, a hatchet and a hunting knife in a grill. [Chris] had indicated that he viewed that as a weapon, he needed it for his safety. Apparently sometime earlier he

—he had been attempting to acquire firearms. I don’t know that I can connect that to the mental state; apparently that was a couple of weeks ea rlier and at least there appears to be a gap in the testimony in terms of the motivation for attempting to a cquire the firearms.

¶10 The circuit court found credible Ledoux’s opinion that Chris “presents a substantial risk of physi cal harm to others.” The court further
reasoned:Nos. 2021AP1955 2022AP102

7 The mechanism that he views as causing harm I accept as credible; that is that [Chris] , one of the delusions is that he views other people a s hitmen or threatening to him. The obvio us response to that is defense. It appeared that he was taking actions consistent with that by barricading the apartment through the cord preventing people from entering the apartment with weapons inside that would be available to defend himself. At the time Deputy Huson arrived, [Chris] was the o nly resid ent of the four unit apartment. However, there are other residents who were in the process or imminently moving in and the credible concern from the court’s perspective is that [Chris] would in the midst of his delusions view those individuals as potential hitmen and respond violently in respon se to that delusion

.

The court concluded that Chris presents “a significant risk of serious physical harm to others, given the risk of danger ... [ and ] history of noncompliance wit h
treatment.” The court entered a six

- month commitment order and an accompanying order for involuntary medic ation and treatment. 6

¶11 One month before Chris’ s initial commitment expired on September 11 , 2021, the County filed a petition for recommitment. At the
recommitment hea ring , Dr. James Scott Persing, a psychiatrist, testified regarding
his examination of Chris conducted prior to the recommitment hearing. 7 Persing testified that his findings were based on an evaluation of Chris, in which Chris participated, as well as a document review

. Persing diagnosed Chris with

6 The circuit court held a separate hearing to address the medication order. Chris refused to appear at the hearing. At that hear ing, Dr. Jared Gorsuch, a psychiatrist, testified and opined that Chris was not c ompetent to refuse medication. As Chris does not challenge the medication order, we will not discuss the details of Gorsuch’s testimony further. We do note that Gorsuch’s examination report was entered into evidence at the hearing ad dressing the medication order.

7 Persing testified that he produced a report based on his examination of Chris, but the report was never admitted into eviden c e at the recommitment hearing. Acc ordingly, we do not consider the contents of that report in our decision. See Langla de County v. D.J.W. , 2020 WI 41, ¶7 n.4, 391 Wis. 2d 231, 942 N.W.2d 277

.Nos. 2021AP1955 2022AP102

8 schizoaffective disorder and explained that he was currently prescribed an antipsychotic medication

. According to Persing , Chris’s treatment was going “quite well, ” and Chris was living independently in his o wn apartment. However, Persing opined, based on Chris’s statements, that Chris’s compliance with his treatment was only a result of the circuit court order

. Persing further believed that
Chris would not take medication for his mental illness without a co urt order

. Persing explained that Chris “would have rather rapid return of symptoms and have concerns about being potentially harmed to the point of bei ng a danger to the community.”

¶1 2 Persing described Chris’s belief that his previous commitment was

u njust, stating that Chris believed:

that what occurred at the time of his detention was a misunderstanding, that it was unjust and that it was unnecessary. And he’s gone through this process because of the [circuit] court order being in place, but again feels that it was unjust and does not have any recollection of the items th at were outlined in the officer’ s notes and the emergency detention papers regarding him potentially having a potential harm to someone who may or may not be present, may or may not have a weapon, may or may not be intending him harm.

According to Persing, he was primarily concerned about the “safety of the community, but if [Chris] was unarmed and tried to defend, for instance, himself against a perceived threat , then m y [concern] would be for him.” On

cross

- examination, Persing confirmed that Chris had not made any threats to
individuals or expressed suic idal or homicidal ideation. When asked, Persing also admitted that he could not “say with 100 percent certainty tha t there would be a substantial probability of harm” from Chris as he could only give h is “best psychiatric opinion.”Nos. 2021AP1955 2022AP102

9 ¶ 13 Following Persing’s testimony, Chris’s counsel moved for dismissal based on insufficient evidence of dangerousness, explaining that cas e law provided that “a diagnosis of schizophrenia by itself does not demonstrate requisite substantial probab ility of physical impairment.” The circuit court denied Chris’s motion, reasoning that “[t]he requisite degree of dangerousness was
established at the time of the original hearing and the court did find a nexus between the mental health condition and the dangerousness as evinced by [Chris’s] actions at the time.”

¶14 Chris testified next. He explained that since the original
commitment order was e ntered , he had been participating in his treatment and taking his medication, that he lived independently and took care of his own needs,
and that he h ad not had any police contact. Chris also testified that he had never harmed anyone and that the initial commitme nt had been a “misunderstanding

. ”
Chris explain ed that he had called the police because there had been a man in the hallway with a gun, but by the time t he police a rrived t he man had left. Chris
confirmed that he believed his medication was unnecessary and that he would not take it if he were not on commitment, but he testified that he would continue to participate in other treatment services through the County.
¶15 In a subsequent oral ruling, the circuit court concluded that Chris
would be a proper subject for commitm ent if treatment were withdrawn and that he was dangerous under W IS

. S TAT

. § 51.20(1)(a)2.b. The court found Persing’s testimony to be cr edible. The court then summarized the events of the initial commitment, highlighting that Chris believed that hangmen or hitmen were coming to get him and that “[Chris] felt it necessary to arm himsel f to ward off the threat.” According to the court,Nos. 2021AP1955 2022AP102

10 When [Huson] arrived, [Chris] had armed himself with a crossbow, with knives. There was evidence that he had attempted to acquire a firearm from family members all for the purpose of defending himself against the imaginary hitmen or hangmen that he felt were coming to harm him. He was found to be dangerous because of the significant likelihood that he would misconstrue an innocent person as the hangman or hitman and react with the weapons that he had acquired due to the delusion th at he was being threatened.

¶16 After acknowledging Chris’s compliance wi th his medication and

treatment and his ability to return to living independently in his home, the circuit court explained: And I certainly under[stand] [ Chris’s counsel’s ]

argument that by virtue of that improvement, the court would not be in a position to find that the [C] ounty h as met its burden with respect to dangerousness. However, it’s also apparent in the interview with Dr. Persing that [Chris] still persists in the belief that the original commitment was a violation of his rights, that it was baseless, that he was not delu sional, that he was not attempting to acquire weapons to defend himself from the hitmen or hangmen; that he was simply trying to recover a firearm from a family member that apparently had been in the possession of the family member for about a year.

The c ourt further discussed Chris’s attempt to obtain a firearm, stating that at the
time of the initial commitment, the court had found that Chris’s explanation was not credible, and that “it appeared to be an action that was taken because of the
delusion that people were coming to get him and that he needed the firearm and other weapons to defend himself and indicates it was a logical inference that he
would be prepared to use those weapons.”

¶17 The circuit court also noted that Chris had stated that if treat ment were withdrawn, he would not continue to take medication, which the court
de scribed as “instrumental in his improvement.” The court repeated Persing’sNos. 2021AP1955 2022AP102

11 opinion that Chris would “ decompensate and approach his original condition” if
treatment were withd rawn. It ultimately concluded that “there’s a high probability that [Chris] would become dangerous to others or that others would be placed in reasonable fear of his behaviors and substantial physical harm” and a likelihood that Chris “could lash out at others because of a m istaken belief that they were hangmen or hitmen or similar individuals who he misperceived as being present to threaten him.”

¶ 18 The circuit court subsequently entered an order for involuntary medication and treatment and extended Chris’s commitment for a n additional
year. Chris appeals from both the initial commitment order and from the order extending his commitment.

DISCUSSION

¶ 19 To in voluntarily commit a person, the petitioner must prove three elements by clear and convincing evidence: (1) the pers on is mentally ill, (2) the person is a proper subject for treatment, and (3) the person is dangerous. See W IS

. S TAT

. § 51.20(1)(a)1.

- 2. , (13)(e); D.J.W. , 3 9 1 Wis. 2d 231, ¶29

. Section 51.20(1)(a)2.a.

- e. outlines the five standards by which a person may be found “ dange rous , ” and a person must be found dangerous under at least one of
those standards to be committed

. D.J.W. , 391 Wis. 2d 231, ¶30. Each standard requires the petitioner to “identify recent acts or omissions demonstrating that the
individual is a danger to himse lf [or herself] or to others.” Portage County v.
J.W.K. , 2019 WI 54, ¶17, 386 Wis. 2d 672, 927 N.W.2d 509. All of the standards require that the petitioner prove a “substantial probability ” of dangerousness,
which has been defined as “much more likely than not.” Marathon County v.Nos. 2021AP1955 2022AP102

12 D.K. , 2020 WI 8, ¶35, 390 Wis. 2d 50, 937 N.W.2d 90 1

. While certainty is not required, “mere possibility an d conjecture are insufficient.” Id. , ¶52.

¶ 20 After an initial six

- month commitme nt order, the circuit court may extend an individual’ s commitment for up to one year. W IS

. S TAT

. § 51.20(13)(g)1. ; D.J.W. , 391 Wis. 2d 231, ¶31. The same dangerousness standards apply where the petitioner seeks to extend a commitment, except that the petitioner may al tern atively prove dangerousness by “ showing that there is a substantial likelihood, based on the subject individual’ s treatment record, that the individual would be a proper subject for commitment [under one of the five dangerousness standard s] if treatmen t were withdrawn.” Sec. 51.20(1)(am).
Section 51.20(1)(am) recognizes that “an individual’ s behavior might c hange while receiving treatment” in that the individual “ may not have exhibited any recent overt acts or omissions demonstrating dangerousness because the treat ment ameliorated such behavior.” J.W.K. , 386 Wis. 2d 672, ¶19. Dangerousness, however, “ remains an element to be proven to support both the initia l commitment and any extension.” Id. Accordingly, our supreme court determined that a

rec ommitment under § 51.20(1)(am) must be grounded “in the subdivision paragraphs of subd. 2.” D.J.W. , 391 Wis. 2d 231, ¶41. Thus, “circuit courts in recommitment proceedings are to make specific factual findings with reference to the subdivision paragraph of

... § 51.20(1)(a)2. on which the recommitment is based.” D.J.W. , 391 Wis. 2d 231, ¶3.

¶ 21 Whether the petitioner has met its burden of proof in a commitment proceeding is a mixed question of fact and law. See id. , ¶24. We review a circuit
court’s findings of fact for clear error, but we independently determine whetherNos. 2021AP1955 2022AP102

13 the fac ts satisfy the legal standard. Waukesha County v. J.W.J

. , 2017 WI 57, ¶15,
3 7 5 Wis. 2d 542, 895 N.W.2d 783.

¶ 22 On appeal, Chris argues that the evidence the County presente d at
both his initial commitment and the recommitment hearings was insufficient to
establish that he is dan gerous under any of th e five subdivision paragraphs of W IS

. S TAT

. § 51.20(1)(a)2. 8 For the reasons that follow, we conclude that the County
did not meet its burden at either hearing to show by clear and convincing evidence
that Chris is dangerous to himself or others under that statute

.

I. Initial Commitment

a. The Appeal from Chris’s Initial Commitment Order is Not Moot

. ¶ 23 The County argues that Chris’s appeal from his initial commitm ent order is moot because the initial six

- month commitment and medication orders expired on Septembe r 11 , 2021

. Chris acknowledges that these orders have expired, but he argues that he is still subject to collateral conseque nc es of his commitment, namely a firearm s ban. According to Chris, our supreme court’s
decision in D.K. “provides a clear rule that appeals from origi nal commitments are
not moot.” Whether an issue is moot is a question of law that we review de novo.
D.K. , 390 Wis. 2d 50, ¶16

. ¶ 24 Our supreme court recently addressed the mootness doctrine as it
relates to recommitments under W IS

. S TAT

. ch. 51 in Sauk County v. S.A.M. , 2022

8 Chris does not challenge the circuit court’s finding s that he is mentally ill and a proper sub ject for treatment. See W IS

. S TAT

. § 51.20(1)(a)1. Chris also does not challenge the orders for involuntary medication and treatment.Nos. 2021AP1955 2022AP102

14 WI 46 , 402 Wis. 2d 379, 975 N.W.2d 162

. There, however, the court also
reiterat ed the law as it relates to init ial commitments , explaining that

[t] wo terms ago, we held that an appeal of an expired initial commitment order is not moot because the order collaterally subjects the committed person to a continuing firearms ban. See [

D.K. , 390 Wis. 2d 50,] ¶25. We recognized that this firearms ban constitutes an o ngoing impairment of the person’ s constitutional right to bear arms, which we deemed to be “no minor consequence.” Id. (citing U.S. C ONST

. amend

. II; W IS

. C ONST

. art. I, § 25; District of Columbia v. Heller , 554 U.S. 570 (2008); Wis [consin] Carry, Inc. v. City of Madison , 2017 WI 19, 373 Wis. 2d 543, 892 N.W.2d 233). We also explained that prevailing in an appeal of an expired initial commitmen t order voids the firearms ba n. Id. Because voiding the firearms ban is a “practical effect” that has a “causal relationship” to the successful appeal of an expired initial commitment order, we deemed the appeal not moot. Id.

S.A.M. , 402 Wis. 2d 379 , ¶21. Accordingly, we agree with Ch ris that his appeal
of the expired initial commitment order is not m oot as Chris continues to suffer the collateral consequences of the firearm s ban required under a commitment order

. 9
See W IS

. S TAT

. § 51.20(13)(cv)1. We therefore address the meri ts of Chris’s appeal of his initial commitment.

b. The Circuit Court Failed to Make Required Dangerousness Findings.
¶ 25 We note at the outset that the circuit court failed to make specific factual findings as to which of the five statutory standard s of dange rousness under
W IS

. S TAT

. § 51.20(1)(a)2.a.

- e. the County established to support Chris’s initial
commitment

. I n D.J.W. , our supreme court stated “t hat going forward circuit

9 We note that our supreme court determined in Sauk County v. S.A.M. , 2022 WI 46, ¶24, 402 Wis. 2d 379, 975 N.W.2d 16 2 , that liability for the cost of care is also a collateral consequence sufficient to render a reco mmitment appeal not moot. In this case, Chris does not argue liability for the cost of care as a collateral consequence; thus, we do not address it further.Nos. 2021AP1955 2022AP102

15 courts in recommitment proceedings are to make specific factual findings with reference to the subdivision paragraph of W IS

. S TAT

. § 51.20(1)(a)2. on which the
recommitment is based. ” D.J.W. , 391 Wis. 2d 231, ¶3. The court observed that this requirement serves two purposes. Id. , ¶42. “ First, it provides clarity and extra protection to patients regarding the underlying basis for a recommitment. ” Id.

“ Second, a requirement of specific factual findings with referenc e to a subdivision paragraph of

... § 51. 20(1)(a)2. will clarify issues raised on appeal of recommitment orders and ensure the soundness of judicial decision making, specifically with regard to challenges based on the sufficiency of the evidence. ”
D.J.W. , 391 Wis. 2d 231, ¶44.

¶ 26 Ch ris argues t hat during the initial commitment proceedings in this

case , the circuit court did not “make a statutory citation to any standard of dangerousness , ” it “was not obvious which standard the court determined was met,” and the court’s failure to articulate the standard of dangerousness “has
frustrate d effective appellate review.” H e therefore asserts that the appropriate remedy for the court’s D.J.W. violation is outright reversal. See Sheboygan County v. M.W. , 2022 WI 40, ¶¶4, 38, 402 Wis. 2d 1 , 974 N.W.2d 733

. ¶ 27 In contrast, the County claims that D.J.W. ’s directive is only applicable in recommitment proceedings, not initial commitments. Further, e ven if the D.J.W. requir ement were to apply in this case, the County contends that the circuit court “made t he finding that [Chris] ‘does present a significant risk ofNos. 2021AP1955 2022AP102

16 serious physical harm to others,’” which “is a direct reference to” W IS

. S TAT

. § 51.20(1)(a)2.b. and (1)(a)2.c. 10

¶ 28 Upon our review of the record in this case, we agree that the circuit
court violated D.J.W

. ’s directive by failing to reference a spec ific subdivision paragraph of W IS

. S TAT

. § 51.20(1)(a)2

. w hen finding that Chris is dangerous or to make findings that correlate to the elements of dangerous ness under a specific
subdivision paragraph

. We disagree with the County’s assertion that D.J.W. ’s directive is only applicable in recommitment proceedings, as the rationale for our supreme court’s decision in D.J.W. is equally applicable to initial commitments.
See D.J.W. , 391 Wis. 2d 231, ¶¶43

- 44; Trempealeau County v. B.K. , No. 2020AP1166, unpublishe d slip op. ¶17 n.3 (WI App July 26, 2021); Winnebago County v. A.A.L. , No. 2020AP1511, unpublished slip op. ¶17 n.8 (WI App Mar. 24, 2021). 11

¶ 29 Further, we reject the County’s claim that the circuit court’s reference to “physical harm to others” was sufficient to establish the standard of dangerousness under W IS

. S TAT

. § 51.20(1)(a)2. As the County noted, “physical harm to others” could either reference § 51.20(1)(a)2.b. or (1)(a)2.c. W hile the

10 The County, however, fails to make any argument on appeal that W IS

. S TAT

. § 51.20(1)(a)2.b. is applicable under the facts.

11 Unpublished opinions authored by a single judge, issued on or after July 1, 2009, may be ci ted for their persuasive value. See W IS

. S TAT

. R ULE 809.23(3)(b).Nos. 2021AP1955 2022AP102

17 County argues that subd. para. (1)(a)2. c

. is applicable , it is unclear from the record
which standard provided the basis for the court’s decision. 12

¶ 30 T his court recently addressed a D.J.W. violation in a recommitment proceeding. Barron County v. K.L. , No. 2021AP133, un published slip op. (WI App Aug. 9, 2022). In that unpublished decision, we concluded that the
D.J.W. violation was harmless error , as the subject of the recommitment did not challenge the s ufficiency of the evidence to support the circuit court’s determination of dangerousness , and as it was clear from the record on which
subdivision paragraph the court had based its determination of dangerousness. Id. , ¶¶36

- 42.

¶ 31 This case, however, is d ist inguishable for three reasons: (1) the County did not a rgue harmless error; (2) Chris does challenge the sufficiency of the evidence to support a fi nding of dangerousness; and (3) it is not clear from this
record under which specific standard the cou rt found Chris to be dangerous , as the
court did no t specify a statutory subdivision paragraph or make findings that would support da ngerousness under any subdivision paragraph

. See also Outagamie County v. J.J.H. , No. 2021AP244, unpublished slip op. ¶12 (WI App Sept. 14, 2021) (concluding that referencing language such as “ recent threateni ng behavior” and “omissions,” which are “not exclusive to a particular dangerousness
standard ,” was insufficient to satisfy D.J.W. ’s mandate). Further, as we discuss
be low, we conclude that the evidence was in fact insufficient to establish

12 This lack of clarity is especially evident considering the County argues on appeal that W IS

. S TAT

. § 51.20(1)(a)2.c. applied in the initial commitment, while the circuit court found th at § 51.20(1)(a)2.b. applied in t he recommitment based on identical facts.Nos. 2021AP1955 2022AP102

18 dangerousne ss under any of the subdivision paragraphs of W IS

. S TAT

. § 51.20(1)(a)2.

c. The Evidence Was Insufficient for the Circuit Court to Find Chr is Dangerous under W

IS

. S TAT

. § 51.20(1)(a)2.
¶ 32 We could reverse the circuit court’s initial commitment order based
on the D.J.W. violation alone . However, to the extent that D.J.W. ’s directive
could be found inapplicable to an initial commitment proceeding and for the sake of completeness , including our review of the recommitment order , we will also address Chris’s challenge to the sufficiency of the evidence. As noted above, the County argues that the court found Chris da ngerous under W IS

. S TAT

. § 51.20( 1 )(a)2.c. According to the County, Ledoux’s examination report specifically stated this subdivision paragraph as the basi s for his opinion that Chris
is dangerous , and Ledoux’s testimony at the he aring was focused on the same.

¶ 33 C hris does not argue that the circuit court’s factual findings at the initial commitment hearing were clearly erroneous. He does, however, challenge the court’s legal conclusion that its findings of fact satisfied one of the five standards of dangerousness under W IS

. S TAT

. § 51.2 0(1)(a)2. We agree. As noted above, it is unclear from the record under which standard the court found Chris to be dangerous; therefore, we will address each of the standards below. 13

¶ 34 The first standard, W IS

. S TAT

. § 51.20(1)(a)2.a., requires proof that
the indi vidual is dangerous because he or she “[e]vidences a substantial

13 We do not address the fifth standard, W IS

. S TAT

. § 51.20(1)(a)2.e., as there are separate pleading requirements and the Count y did not petition to commit Chris under that dangerousness standard. See W IS

. S TAT

. §§ 51.20(10)(cm), (13)(g)2d.a.Nos. 2021AP1955 2022AP102

19 probability of physical harm to himself or herself as manifested by evidence of recent threats of or attempts at suicide or serious bodily harm.” Here, t here was no evidence pre sented that Chris threatened or attempted to harm himself.

¶ 35 The second standard, W IS

. S TAT

. § 51.20(1)(a)2.b., requires proof that the individual is dangerous because he or she

[e]vidences a substantial probability of physical harm to other individ uals 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 seriou s physical harm

.
Here, there was no evidence presented that Chris engaged in any recent homicidal or violent behavior, nor was there a recent overt act, attempt, or threat to do serious physical harm to others . The testimony at the hearing was that while Chris did have some weapons in his apartment, no one was aware of reports that Chris “wield[ed] any of the weapons” or that he had made any “di rect threats to other people.” See Portage County v. E.R.R. , No. 2020AP870

- FT, unpublished slip op. ¶19 (WI App Oct. 1, 2020) (concluding that there was insufficient evidence of a threat to harm where the individual admitted that he “felt like he wanted to snap people’s necks”). To the extent that Chris’s actions as described at the hearing could be considered an “ overt act,” there was no evidence presented that the overt act was an act to do serious physical harm or “that others [were] placed in reasonable fear of violent behavior and serious physical harm to them.”
Sec. 51.20(1)(a)2.b.

¶ 36 According to the County , t he third standard, W IS

. S TAT

. § 51.20(1)(a )2.c ., is the most reasonably applicable standard. This standard requires proof that the indi vidual is dangerous because he or she “ [e]vidences suchNos. 2021AP1955 2022AP102

20 impaired judgment, manifested by evidence of a pattern of rec ent acts or omissions, that there is a substantial probability of physical impairment or injury to himself or herself or other individuals.” Id. Ledoux’s testimony established that Chris’s judgment is impaired due to his mental illness. However, impaired judgment alone is insufficient under the statute without a showing that “ there is a substantial probability of physical impairment or injury to himself or herself or
other individuals .” Id

. As Ledoux aptly stated, “[I]t’s not illegal to be psych otic.”
See D.J.W. , 391 Wis. 2d 231, ¶57 ( “A diagnosis of schizophrenia, by itself, does not demonstrate the requisite ‘ substantial proba bility of physical impairment.’ If it did, the statutory elements of mental illness and dangerousness would be merely redundant.”).

¶ 37 Here, the County argues that Chris’s impaired judgment was manifested by his recent pattern of barricad ing his apartment complex door because he was “concerned that hitmen [and hangmen] were there to get him” and
he had seen them “in his hallway outside of his door.” Under these circumstances, however, where Chris was the only tenant in the apartment complex at the time, barricading the door did not create a substantial probability of serious physical harm to himself or other people. T he re was no evidence presented that Chris
would continue to barricade the door once there were other tenant s in the complex. Further, w h ile there may be a risk that, for example, emergency personnel could
not reach Chri s in the event of an emergency, the same wo uld be true if Ch ris had simply locked his door. In summary, t here was no evidence presented that the probability of serious physical harm to Chris or others due to Chris’s impaired judgment is “much more likely than not” due to his recent acts of barricading the apartment complex door. See D.K. , 390 Wis. 2d 50, ¶ 35.Nos. 2021AP1955 2022AP102

21 ¶ 38 T he circuit court also concluded that “there are other residents who were in the process or imminently moving in and the credible concern from the court’s perspective is that [Chri s] would in the midst of his delusions view those individuals as potential hitmen and respond violently in response to that delusion.” The court’s conclusion echoed Ledoux’s expressed “safety concern” that new tenants to the apartment complex would be “un known individuals” to Chris and he would “b elieve that these [people] were hitmen and just having the access to weapons inside the house, [Ledoux] was concerned for [Chris’s] safety as we ll as safety to anybody else.” For several reasons, we agree with Chris that the court’s
conclusions in this regard were based upon mere possibility and conjecture.

¶ 39 First, as there were no other tenants in the apartment complex at the
time of Chris’s detention , there was no evidenc e that Chris had ever mistaken a prior tenant as a threat or threatened a tenant. S econd, while the County and Ledoux stressed concern with Chris “want[ing] to obtain a firearm,” the circuit

cour t discounted that as a factor: “I don’t know that I can con nect that to the mental state; apparently that was a couple of weeks earlier and at least there appears to be a gap in the testimony in terms of the motivation for attempting to acquire the firearms.” And third, when Chris did believe he saw “hitmen ... in his hallway outside of his door” and that “they had guns with them and that they were coming to get him,” the evidence presented by Huson was that Chris “called 911 and asked [police] dispatchers to run some license plat es that he had seen drive by
and tha t those were the hitmen.” Thus, when Chris allegedly saw people in the hallway , he did not become violent or threatening , and he did not confront them.
He sought assistance and called police. As Chris argues, he “ took measures to avoid conflict, not to instigate it. ” Thus, the evidence was insufficient to support a finding that Chris’s impaired judgment gave rise to a “ substantial probability ofNos. 2021AP1955 2022AP102

22 physical impairment or injury to himself or herself or other individuals .” See W IS

. S TAT

. § 51.20(1)(a )2.c.; see also D.K. , 390 Wis. 2d 50, ¶35.

¶ 40 A nd finally, t he fourth standard, W IS

. S TAT

. § 51.20(1)(a)2.d., requires proof that the indi vidual is dangerous because he or she

[e]vidences behavior manifested by recent acts or omissions that, due to m ental illness, he or she is unable to satisfy basic needs for nourishment, medical care, shelter or safety without prompt and adequate treatment so that a substantial probability exists that death, serious physical injury, serious physical debilitation, or serious physical disease will imminently ensue unless the individual receives prompt and adequate treatment for this mental illness

.
Again, there was no evidence presented in this case that Chris was unable to care
for his basic needs as enumerated under the statute. In fact, the evidence presented was that Chris’ s apartment was “very clean” a nd “in good living condition.” Further, Ledoux’s examination r eport stated that Chris “appeared adequately groomed” and his ro om “was neat and presentable.”

¶ 41 In essence, the opinions, arguments, and conclusions in this case are based entirely on Chris’s “potential” for dangerousness and assertions of how
Chris might behave dangerously in hypothetical situations without evidentiary support in the record. Our su preme court has explained that “mere possibility and conjecture are insufficient” to establish a “substantial probability” under W IS

. S TAT

. § 51.20(1)(a)2. D.K. , 390 Wis. 2d 50, ¶52. Here, the circuit court’s conclusion that Chris is currently dangerous was based entirely on its concern about Chris’s potential future risk, which does not satisfy any of the standards under § 51.20(1)(a)2. See J.W.K. , 386 Wis. 2d 672, ¶¶17, 24; see also D.J.W. , 391 Wis. 2d 231, ¶34; E.R.R. , No. 2020AP870

- FT, ¶21 (“[T]here was noNos. 2021AP1955 2022AP102

23 testimony at the evidentiary hearing that E.R.R. attempted, or will attempt, to act on his feelings or has otherwise exhibited behaviors that would suggest that he will physically harm other individuals if treatment were withdrawn. ”). Therefore,

we conclude that the evidence was insufficient to support a finding that Chris is dangerous to himself or others at the time of his initial commitment

.

II. Recommitment

¶ 42 Chris also challenges the sufficiency of the evidence of dangerousness on his recommitment

. 14 The circuit court found that Chris was mentally ill, a proper subject for treatment, and “that there is a substantial likelihood, based on [Chris’s] treatment record, that [he] would be a proper subject
for commitment if treatment w ere withdrawn.” See W IS

. S TAT

. § 51.20(1)(a), (am). This time, p rior to issuing a decisi on on Chris’s recommitment, the court reviewed our supreme court’s decision in D.J.W. , and, accordingly, it stated on the
record that it was grounding Chris’s recommi tment on the second standard of dangerousness, § 51.20(1)(a)2.b., as viewed through the lens of § 51.20(1)(am).

¶ 43 Chris argues , first , that the circuit court relied on clearly erroneous findings of fact to conclude that Chris is dangerous and , second , that the evidence
is in sufficient to support a finding of dangerousness under W IS

. S TAT

. § 51.20(1)(a)2.b. The County argues that the court relied on Persing’s credible testimony to determine that if treatment were withdrawn, Chris would

14 The County does not argue that the appeal of Chris’s recommitment order is moot because at the time of briefing and release of this decision, that order had not expired

. Although Chris ’s counsel alleged to this court that his recommitment order expired August 12, 2022, our review of the record suggests that the order is due to expire in September.Nos. 2021AP1955 2022AP102

24 decompensate and return to the previous behaviors described in the initial commitment, w hich were dangerous to others. For the reasons that follow, we conclude that the County has failed to establish on recommitment that Chris is dangerous under § 51.20(1)(am).

¶ 44 First , we agree with Ch ris that the circuit court made several factual findings in support of i ts conclusion that Chris was dangerous pursuant to W IS

. S TAT

. § 51.20(1)(am) that were clearly erroneous based on the testimony presented at the initial commitment he aring. “A finding of fact is clearly erroneous if it is against the great weight and clear preponderance of the evidence.” Metropolitan Assoc s . v. City of Milw aukee , 2018 WI 4, ¶62, 379
Wis. 2d 141, 905 N.W.2d 784 (citations omitted ).

¶ 45 During the circuit court’ s oral ruling, it stated that Chris “felt it necessary to arm himself to ward off the threat , ” that “[ w]hen Officer [ Huson] arrived, [Chris] had armed himself with a crossbow, with knives,” and that “[t]here was evidence that he had attempted to acquire a firearm from family members all for the purpose of defending himself against the imaginary hitmen or hangmen that he felt were coming to harm him.” 15 As addressed above, there was no evidence presented that Chris ever wielded the weapons that he had in his apartment in general or threaten ed their use toward any person. There was also no
statement in the record from the initial commitment that Chris was armed when Huson arrived at Chris’s home . Chris was not holding any weapons , and the

15 Chris does not challenge the circuit court’s findings that Chris had been psychotic at the time of the emergency detention, that Chris was experiencing delusions that hangmen or hitmen were coming to get him, or that Chris had “barrica ded himself in his residence.”Nos. 2021AP1955 2022AP102

25 weapo ns were found in different rooms of the home dur ing a search of the apartment.
¶ 46 A s for the firearm, Chris was attempting to seek help from the sheriff’s department in retrieving his firearm from his son. Chris stated that he needed the hunting knife th at was found in a grill and the firearm “for safety, ” 16 but there was no testimony presented that Chris had ever wielded those weapons against third parties or , as the circuit court suggested, that he intended to use those weapons “to ward off the threat ” or “ defend [] himself against the imaginary hitmen or hangmen .”

¶ 47 Further, in its oral ruling, t he circuit court discussed Chris’s attempt
to obtain a firearm . The court explain ed that at the time of the initial commitment,
the court had found that Chris ’s “ explanation was not credible, ” and that “it appeared to be an action that was taken because of the delusion that people were coming to get him and that he needed the firearm and other weapons to defend himself and indicates it was a logical inference t hat he would be prepared to use
th ose weapons.” O ur review of the record , however, reveals that at the initial commitment hearing, the court did not state that it deemed Chris’s explanation
incredible

— indeed, Chris did not testify at the initial commitmen t he aring. Instead, the court noted “a gap in the testimony in terms of the motivation for attempting to acquire the firearms,” and it determined that the evidence was
insufficient to show that Chris’s attempt to reclaim his firearm was related to his “mental state.” In general, the court’s findings of fact on recommitment suggested

16 There was no indication in the record that Chris regarded the crossbow, compound bow and arrow, or hatchet as n ecessary for his safety.Nos. 2021AP1955 2022AP102

26 that Chris had amassed an armory and was taking up arms against individuals, including law enforcement, based on his delusions. The record do es not support this implicatio n, and, accordingly, the findings of the circuit court were clearly

erroneous

. 17

¶ 48 As to whether the facts presented at the recommitment hearing satisfy the statutory standards, w e also agr ee with Chris that the evidence is insufficient to support a concl usion that he is dangerous under W IS

. S TAT

. § 51.20(1)(a)2.b., as viewed through the lens of § 51.20(1)(am). The testimony at the recommitment hearing showed that Chris was doing “quite well” during his commitment and he had “returned to his previous base line level of functioning independently, takin g care of himself, et cetera.” Accordingly, there was no additional testimony presented that Chris had engaged in any recent dangerous
behavior

. See D.J.W. , 391 Wis. 2d 231, ¶33. Thus, Persing’s opinions and the circuit court’s conclusion that Chris is dangerous “because of the significant likelihood that he would misconstrue an innocent person as the hangman or hitman and react with the weapons that he had acquired due to the delusion that he was being threa tened,” w ere based entirely on the evidence presented at t he initial commitment hearing.

¶ 49 For the reasons noted above, we concluded that the evidence presented at the initial commitment was insufficient to support a finding that Chris

17 Chris also notes that it is “troubling that the [circuit] court assumed [Chris] had hallucinated the person or persons in his hallway, when there is no evidence in the record that [Chris] has eve r experienced hallucinations.” W e agree. It is possible that Chris did see an individual or individuals in his hallway with a gun. The fact that Chris believed them to be hitmen does not disprove the possibility that they were there.Nos. 2021AP1955 2022AP102

27 is dangerous to himself or others. Our supreme court has explained that a finding of dangerousness under W IS

. S TAT

. § 51.20(1)(am) must be grounded in the subdivision paragraphs of § 51.20(1 )(a)2. See D.J.W. , 391 Wis. 2d 231, ¶41. Therefore, if “those beha viors ” exhibited prior to the initial commitment do not meet the requirements under § 51.20(1)(a)2. to establish that the individual is dangerous, then the individual should not be found dangerous “based on a substantial likelihood that he [or she] would e xhibit those [same] behaviors if treatment were withdrawn.” See J.W.K. , 386 Wis. 2d 672, ¶23.

¶ 50 Here, there was no additional evidence presented at the recommitment hearing to support a finding that Chris is dangerous, aside from Persing’s opinion that Chris would not take his medication if he were not on commitment and he would decompensate. Ac cording to Persing, Chris “would have [a] rather rapid return of symptoms and have concerns about being potentially harmed to the point of be i ng a danger to the community.” Persing’s opinions on Chris’s decompensation and the resulting dangerousness , however ,

we re based on Chris’s prior behaviors, which we deemed insufficient to establish
that he is dangerous under the statute.

¶ 51 The County p resented no evidence at either the initial commitme nt or the recommitment hearings that Chris engaged in any homicidal or violent
behavior. See W IS

. S TAT

. § 51.20(1)(a)2.b. T here is also no evidence “that others are placed in reasonable fear of violent b ehavior and serious physical harm to them” as evidenced by an overt act, attempt, or threat to seriously harm anyone. Id. And, a s noted above , t he circuit court’s dangerousness finding at the initial
commitment hearing was based on speculation as to future events , rather than on
evidence that the probability of serious physical harm is “much more likely thanNos. 2021AP1955 2022AP102

28 not.” See D.K. , 390 Wis. 2d 50, ¶35. W e therefore conclude that the County failed to prove by clear and co nvincing evidence that Chris is curre ntly dangerous
under § 51.20(1)(am) based on his behavior prior to the initial commitment. We
reverse both the commitment and recommitment orders. 18

By the Court.

— Order s reversed.
This opinion will not be published. See W IS

. S TAT

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

18 An order for involuntary medication and treatment requires the existence of a valid commi tment order. See W IS

. S TAT

. § 51.61(1)(g)3. Our reversal of the commitment and recommitment orders then also mandates the reversal of the order s for involuntary medication and treatment because a medication order i s tied to the existenc e of a final commitment order.