COURT OF APPEALS

DECISION

DATED AND FILED

August 31, 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. 2022AP251 Cir. Ct. No. 2021ME378

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

IN THE MATTER OF THE MENTAL COMMITMENT OF D.E.S.:

WINNEBAGO COUNTY,

 PETITIONER-RESPONDENT,

 V.

D. E. S.,

 RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Winnebago County: 

JOHN A. JORGENSEN, Judge. Affirmed. 
No. 2022AP251

2

¶1 GROGAN, J.1 D.E.S. appeals from WIS. STAT. ch. 51 orders 

extending his involuntary medication and inpatient treatment. He asserts two 

arguments: (1) the circuit court failed to make specific factual findings with 

reference to which subdivision paragraph of WIS. STAT. § 51.20(1)(a)2 it relied 

upon in determining dangerousness as required by Langlade County v. D.J.W., 

2020 WI 41, ¶59, 391 Wis. 2d 231, 942 N.W.2d 277; and (2) there is insufficient 

evidence to show he was dangerous. This court affirms.

I. BACKGROUND

¶2 D.E.S. has schizoaffective disorder, bipolar type—a mental illness 

that his treating psychiatrist, Dr. Odette Anderson, identifies as a significant 

disorder of mood, thought, perception, orientation, or memory that grossly impairs 

his judgment, behavior, or capacity to recognize reality. Dr. Anderson sent a letter 

to Winnebago County in July 2021 requesting the County “prepare a petition for 

the extension of [D.E.S.’s civil commitment.]” The letter expressed 

Dr. Anderson’s opinion that D.E.S. has a mental disorder, is a proper subject for 

commitment, and is dangerous under all five statutory standards in WIS. STAT.

§ 51.20(1)(a)2. The doctor opined that D.E.S. “continues to be and is a proper 

subject for treatment” and that despite explaining to him “the advantages, 

disadvantages and alternatives to the psychotropic medications” he is taking,

“[D.E.S.] is not capable of expressing an understanding of the advantages, 

disadvantages or alternatives or appreciating how he benefits from those options.” 

 

1

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

All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2022AP251

3

¶3 In September 2021, the County filed a petition for D.E.S.’s 

recommitment2and indicated he is dangerous under all five of WIS. STAT.

§ 51.20(1)(a)2’s standards. A hearing on the petition was scheduled for 

October 12, 2021. On that date, D.E.S.’s attorney told the circuit court that the 

parties had reached an agreement and that D.E.S. would not contest the 

recommitment. However, when the court asked D.E.S. directly to confirm his nocontest decision, D.E.S. told the court his attorney was wrong and that he did want 

to contest the recommitment petition and have a hearing. The County thereafter 

re-contacted Dr. Anderson, who had previously been released based on the

representation that D.E.S. would not be contesting the petition, and Dr. Anderson 

returned to provide her testimony. After hearing Dr. Anderson’s testimony, the

circuit court ultimately continued the hearing to another date to allow for

additional witness testimony. 

¶4 At the October 12th hearing, Dr. Anderson testified and:

 Agreed D.E.S. “evidenced a substantial probability [that]

if left untreated he lacks services necessary for his health 

or safety” as “he has demonstrated a significant danger to 

others, and he has demonstrated a decrease in that type of 

dangerousness when he has been treated with medicine to 

when he was not.” 

 Agreed that there is evidence “that would suggest [D.E.S.]

presents a substantial probability that if left untreated, he 

would suffer either severe mental, emotional, or physical 

harm resulting in his loss of ability to function 

independently within the community[,]” and she provided 

multiple examples that show D.E.S. “is a person who 

 

2

 “Recommitment” is synonymous with “extension of commitment,” and the terms will 

therefore be used interchangeably. See Sheboygan County v. M.W., 2022 WI 40, ¶6 n.3, 402

Wis. 2d 1, 974 N.W.2d 733.
No. 2022AP251

4

would have some difficulty carrying out the everyday 

activities of life and the demands of ordinary life.” 

 Confirmed, when asked, that if not treated, D.E.S. would 

lose “cognitive or volitional control of his thoughts and 

actions” as he had “been violent with people in the 

community” when not on treatment and that the violence

“would be repeated” if treatment was withdrawn.

 Testified that D.E.S. “severely injured one [of] the 

employees at a group home where he was” and that “in the 

periods of time even here at Mendota Mental Health 

Institute when we have made decisions to decrease dosing 

of his medication, this is a standard procedure, he has not 

been able to demonstrate safety or maintain the decrease 

in the symptoms that he experiences.” 

 Explained that even with treatment, D.E.S. “can be quite 

dangerous” and has had “breakthrough” events showing 

he is dangerous, including a January 2021 incident where 

D.E.S. mistakenly believed staff members were throwing 

water in his room, which resulted in D.E.S. “charg[ing] at 

staff and attempting to punch staff.” Staff had to take 

D.E.S. down to the ground and handcuff him, after which 

he “began to spit at staff.” 

 Stated that if D.E.S. was returned to the community, he 

would not partake in treatment “because he has 

demonstrated poor insight into his illness and need for 

treatment” as D.E.S. denies having a mental illness and 

thinks his medication is for a sleep disorder.

 Opined that the least restrictive environment for D.E.S. 

would be: “A locked facility with security, with medical 

staff as well as security staff available and to supervise 

and manage his violent behaviors and manage his medical, 

including his psychiatric medical, treatment.” 

¶5 When the recommitment hearing continued on October 19, 2021, the 

County called two of D.E.S.’s nurses. The first nurse testified about personally 

witnessing the January 2021 incident where D.E.S. got angry and tried to hit a 
No. 2022AP251

5

staff member. This nurse said D.E.S.’s conduct caused him to be “concerned for 

[his] safety, the patients’ safety, and the other staff’s safety[.]” The second nurse 

also testified about the January 2021 incident and recalled it as D.E.S. attempting

to “start a fight,” after which D.E.S. was “taken down” and placed in a seclusion 

room. When the second nurse went to check on D.E.S. through the room’s trap 

door, D.E.S. “started spitting towards the trap,” D.E.S. was “agitated” and “still 

yelling,” and the incident caused the nurse to be concerned for his own safety.

¶6 After the testimony concluded, the County, in its closing argument,

specifically referenced the recommitment requirements at issue. First, the County 

argued there was evidence supporting proof under WIS. STAT. § 51.20(1)(am) that 

D.E.S. remains a proper subject for treatment and is dangerous because if 

treatment were withdrawn, he would become a proper subject for a commitment. 

Second, the County argued there was evidence supporting recommitment under 

“one of the dangerous standards under [§] 51.20” as required by D.J.W. See

D.J.W., 391 Wis. 2d 231. The County asserted the evidence supported a finding 

of dangerousness under the second and fifth statutory standards, § 51.20(1)(a)2.b 

and § 51.20(1)(a)2.e, respectively. 

¶7 D.E.S.’s counsel then argued that the County failed to prove 

dangerousness under D.J.W. because the violent event testified to was too remote 

in time to keep D.E.S. committed, that D.E.S. was taking his medication, and that 

it did not matter whether D.E.S. believed his medication was sleeping pills.

¶8 The circuit court ordered the extension of the commitment, both for 

inpatient treatment and medication. In doing so, it found Dr. Anderson’s and the 

nurses’ testimony to be credible. In addressing dangerousness, the circuit court 

said:
No. 2022AP251

6

 The issues of dangerousness, you know, the fact that this 

is an extension so certainly during the first petition there 

was that finding made of dangerousness and now while still 

in a locked setting, in these circumstances, there’s -- there 

was -- we don’t have full facts of what happened, but 

certainly, we recognize that [D.E.S.] was challenged, was 

frustrated, was upset, and what we learned is this is how he 

acts out violently which is he tries to attack another 

individual. But then even when in a secured setting, in that 

setting, he attempted to spit at a staff member which in this 

day in age is very dangerous with all of the diseases and 

COVID and everything else that’s going on so this is all 

concerning.

 And so I’m going to find in context of this being an 

extension that at the time this petition was filed, certainly it 

was relevant, and so it is today at the final hearing. So I’m 

going to find that the grounds do exist for the extension of 

commitment, that [D.E.S.] is mentally ill, dangerous 

pursuant to the factors listed in Chapter 51. Specifically, 

that he would decompress and deteriorate without this 

commitment, that he has shown that he is dangerous to

other people as well[.] 

¶9 The circuit court also specifically found that “medication is 

necessary to prevent serious physical harm to himself or others” and therefore 

ordered an extension of D.E.S.’s commitment with involuntary administration of 

medication for another twelve months.3 D.E.S. appeals.

II. DISCUSSION

¶10 This case involves a WIS. STAT. ch. 51 recommitment, which is 

governed by WIS. STAT. § 51.20. To involuntarily commit an individual, a county 

must establish by clear and convincing evidence that the person is mentally ill, a 

proper subject for treatment, and dangerous. Sec. 51.20(1)(a)1-2, (13)(e), 

(13)(g)3; Waukesha County v. J.W.J., 2017 WI 57, ¶18, 375 Wis. 2d 542, 895 

 

3

 The orders are dated October 19, 2021, and continue until October 19, 2022.
No. 2022AP251

7

N.W.2d 783. D.E.S. challenges only the dangerousness criterion. Specifically, he 

first argues that the circuit court failed to comply with the D.J.W. directive 

requiring circuit courts “to make specific factual findings with reference to the 

subdivision paragraph of WIS. STAT. § 51.20(1)(a)2. on which the recommitment 

is based.” See D.J.W., 391 Wis. 2d 231, ¶3. Second, D.E.S. contends that the 

County failed to present sufficient evidence to establish that he is dangerous. 

¶11 In order to prove dangerousness in an initial commitment, a county 

must present evidence that satisfies one of the five criteria set forth in WIS. STAT.

§ 51.20(1)(a)2. D.J.W., 391 Wis. 2d 231, ¶30. When a county seeks

recommitment, dangerousness may be established under § 51.20(1)(am), which 

recognizes that a person who has been treated and medicated under the initial 

order “‘may not have exhibited any recent overt acts or omissions demonstrating 

dangerousness because the treatment ameliorated such behavior[.]’” D.J.W., 391 

Wis. 2d 231, ¶33 (citation omitted). Reliance on § 51.20(1)(am) establishes that 

the person is still dangerous because if treatment is withdrawn, one of the five 

criteria in § 51.20(1)(a)2 would recur. Thus, a circuit court, in extending a 

commitment in reliance on (am), must link that determination to one of the five 

dangerousness criteria in § 51.20(1)(a)2. D.J.W., 391 Wis. 2d 231, ¶¶3, 32-34.4

¶12 Whether a county has proven all required facts in a recommitment 

proceeding “by clear and convincing evidence” presents “a mixed question of law 

and fact.” Id., ¶¶23-24. This court “will uphold a circuit court’s findings of fact 

 

4

 This court is not persuaded by D.E.S.’s contention that the January 21 incident evincing 

his dangerousness was too remote to support a dangerousness finding as this is a recommitment 

where presumably the treatment D.E.S. receives primarily prevents actual violent acts. See WIS.

STAT. § 51.20(1)(am).
No. 2022AP251

8

unless they are clearly erroneous.” Id., ¶24. A factual finding “is clearly 

erroneous if it is against the great weight and clear preponderance of the 

evidence.” Id. This court then determines “whether the facts satisfy the statutory 

standard.” Id., ¶25. In assessing the circuit court’s factual findings, we defer to its 

credibility determinations. State v. Young, 2009 WI App 22, ¶17, 316 Wis. 2d 

114, 762 N.W.2d 736 (circuit courts make credibility determinations).

A. D.J.W. Violation

¶13 D.J.W.’s directive mandates that circuit courts make “specific 

factual findings with reference to” the statutory standard it relies upon in ordering 

recommitment. D.J.W., 391 Wis. 2d 231, ¶3. Although the circuit court here did 

not specifically identify which of the five standards it was relying on by number in 

the course of announcing its factual findings, this court, having reviewed the 

hearing transcripts, is nevertheless satisfied that the circuit court’s actual words, 

combined with the County’s closing arguments identifying its reliance on WIS.

STAT. § 51.20(1)(a)2.b and § 51.20(1)(a)2.e as the basis for establishing 

dangerousness, complies with D.J.W., albeit minimally.5

 

5

 Langlade County v. D.J.W., 2020 WI 41, ¶3, 391 Wis. 2d 231, 942 N.W.2d 277, 

requires circuit courts to reference which of the five dangerousness standards they rely upon in 

making their factual findings, and a circuit court’s failure to do so requires outright reversal if the 

underlying commitment order has expired. M.W., 402 Wis. 2d 1, ¶4. The law, however, 

generally does not require the use of “magic words,” and as explained, this court, having 

reviewed the Record, is satisfied that the circuit court’s words, which incorporate some of the 

specific statutory language relied upon, complied with the D.J.W. mandate. See State v. Brown, 

2020 WI 63, ¶27, 392 Wis. 2d 454, 945 N.W.2d 584 (“The law generally rejects imposing ‘magic 

words’ requirements.” (citation omitted)).

That said, the circuit court’s references to the relevant statutory language here were only 

minimally adequate, thus making this a very close case. Going forward, this circuit court—as 

well as circuit courts throughout Wisconsin—should be mindful of the D.J.W. requirement and, 

as a best practice, should specifically and directly reference the dangerousness standard(s) relied 

upon in rendering their decisions.
No. 2022AP251

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¶14 First, the County, based on the evidence and testimony presented 

during the hearing, argued that it had established dangerousness under WIS. STAT.

§ 51.20(1)(a)2.b and e, or at the very least, “certainly [under] the (e) standard[.]” 

Second, the transcript reflects that in announcing its factual findings and 

addressing dangerousness, the circuit court made the following findings: 

(1) D.E.S. acted out violently despite being in a locked setting and medicated; 

(2) when D.E.S. is challenged, frustrated, or upset, he turns to violence and 

physically attacks others; (3) even after being placed into the seclusion room, 

D.E.S. evidenced dangerous behavior when he tried to spit on the second nurse;

and (4) spitting is a dangerous act as it can transmit disease.

¶15 As specifically relevant here, the circuit court described D.E.S.’s 

conduct toward others as “violent” and, after announcing its findings, stated:

So I’m going to find that the grounds do exist for the 

extension of commitment, that [D.E.S.] is mentally ill, 

dangerous pursuant to the factors listed in [WIS. STAT.]

Chapter 51. Specifically, that he would decompress and 

deteriorate without this commitment [and] that he has 

shown that he is dangerous to other people as well[.] 

(Emphases added.) The court’s findings, the specific references to D.E.S.’s 

actions toward others being “violent” and “dangerous,” and the reference to D.E.S. 

“deteriorat[ing]” demonstrate the circuit court’s reliance on WIS. STAT.

§ 51.20(1)(a)2.b and § 51.20(1)(a)2.e. This is so because: (1) § 51.20(1)(a)2.b, 

the first standard the County relied upon, is satisfied by, inter alia, “a substantial 

probability of physical harm to other individuals as manifested by evidence of ...

violent behavior” (emphases added); and (2) § 51.20(1)(a)2.e references an 

individual’s “deterioration” in the absence of treatment.6 Accordingly, despite not 

 

6

 WISCONSIN STAT. § 51.20(1)(a)2.e, as relevant, states:

(continued)
No. 2022AP251

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identifying the specific standards it was relying on with reference to the statutory 

numbering, the circuit court’s words reflected the corresponding statutory 

language in § 51.20(1)(a)2.b and § 51.20(1)(a)2.e, which was sufficient to comply 

with D.J.W.

B. Sufficiency of the Evidence

¶16 D.E.S. next asserts the evidence was insufficient to establish he was 

dangerous. This court concludes that the evidence presented via Dr. Anderson’s 

testimony and the two nurses’ testimony, which the circuit court explicitly 

determined to be credible, was more than sufficient to find D.E.S. dangerous. This 

court sees no reason to disturb that credibility finding. Moreover, D.E.S. did not 

 

For an individual, ... after the advantages and disadvantages of 

and alternatives to accepting a particular medication or treatment 

have been explained to him or her and because of mental illness, 

evidences either incapability of expressing an understanding of 

the advantages and disadvantages of accepting medication or 

treatment and the alternatives, or substantial incapability of 

applying an understanding of the advantages, disadvantages, and 

alternatives to his or her mental illness in order to make an 

informed choice as to whether to accept or refuse medication or 

treatment; and evidences a substantial probability, as 

demonstrated by both the individual’s treatment history and his 

or her recent acts or omissions, that the individual needs care or 

treatment to prevent further disability or deterioration and a 

substantial probability that he or she will, if left untreated, lack 

services necessary for his or her health or safety and suffer 

severe mental, emotional, or physical harm that will result in the 

loss of the individual’s ability to function independently in the 

community or the loss of cognitive or volitional control over his 

or her thoughts or actions. 

(Emphases added.) Although the circuit court did not specifically reference D.E.S.’s 

understanding—or lack thereof—of the advantages and disadvantages of treatment after 

discussion, Dr. Anderson specifically testified as to such a conversation with D.E.S. and her 

opinion that D.E.S. was not capable of understanding them, and the circuit court did specifically 

state that Dr. Anderson “was qualified and had the experience and firsthand knowledge to give 

the opinion that she has” and therefore found “her testimony to be believable and credible[.]” 
No. 2022AP251

11

present any witnesses, and there is therefore no evidence to contradict 

Dr. Anderson’s or the two nurses’ testimony. 

¶17 Accepting Dr. Anderson’s and the nurses’ testimony as credible, 

there was more than enough information submitted to the circuit court to establish 

by clear and convincing evidence that D.E.S. was dangerous under WIS. STAT.

§ 51.20(1)(a)2.b. Dr. Anderson testified about D.E.S.’s “breakthrough” violent 

acts—lashing out physically by charging at a nurse, throwing punches, and 

spitting at a nurse—despite being medicated, and gave the January 2021 example 

of D.E.S. acting out violently when he misperceives the actions of others nearby. 

In other words, D.E.S.’s inability to understand reality causes him to lash out 

violently even while receiving treatment. The two nurses also testified about the 

incident Dr. Anderson identified and stated that D.E.S.’s violent actions caused 

them to be concerned for the safety of themselves or others. Based on this 

extensive credible testimony, the circuit court’s finding that D.E.S. met the 

dangerousness standard under § 51.20(1)(a)2.b is sufficiently supported by the 

Record as D.E.S.’s actions created a substantial probability that he would cause 

physical harm to others as evidenced by recent violent acts or attempts to do 

serious physical harm that placed the nurses in reasonable fear of serious physical 

harm.

¶18 Likewise, Dr. Anderson testified that she explained the advantages, 

disadvantages, and alternatives to treatment with D.E.S. and that, in her opinion, 

he was incapable of understanding the same. The circuit court explicitly found 

Dr. Anderson to be qualified and her testimony to be credible, and there was 

therefore sufficient evidence of dangerousness pursuant to WIS. STAT.

§ 51.20(1)(a)2.e.
No. 2022AP251

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By the Court.—Orders affirmed.

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

RULE 809.23(1)(b)4.