COURT OF APPEALS

DECISION

DATED AND FILED

August 9, 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. 2021AP133 Cir. Ct. No. 2013ME26

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

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

BARRON COUNTY,

 PETITIONER-RESPONDENT,

 V.

K. L.,

 RESPONDENT-APPELLANT.

APPEAL from orders of the circuit court for Barron County: 

MAUREEN D. BOYLE, Judge. Affirmed. 

¶1 HRUZ, J.1 Kayla2appeals from an order extending her WIS. STAT.

ch. 51 involuntary commitment and from an order for involuntary medication and 

 

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. 2021AP133

2

treatment. Kayla contends that these orders must be reversed because the circuit 

court failed to specify the subdivision paragraph of WIS. STAT. § 51.20(1)(a)2.

under which it found her to be dangerous, as required by Langlade County v. 

D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277. In response, 

Barron County (“the County”) argues that the court’s failure to reference a specific 

subdivision paragraph of § 51.20(1)(a)2. was harmless because Kayla has not 

challenged the sufficiency of the evidence to support the court’s determination of 

dangerousness and because it is clear, based on the court’s findings and the record, 

that the court found Kayla to be dangerous under § 51.20(1)(a)2.d.

¶2 We agree that, under the circumstances of this case, any error by the 

circuit court in failing to reference a specific subdivision paragraph of WIS. STAT.

§ 51.20(1)(a)2. was harmless. We therefore affirm the court’s order extending 

Kayla’s involuntary commitment and the order for involuntary medication and 

treatment.3

BACKGROUND

¶3 In March 2013, Kayla was taken into custody pursuant to a 

statement of emergency detention. A stipulated commitment order was entered on 

March 12, 2013, for a period of six months. On September 4, 2013, the parties 

 

2

 For ease of reading, we use a pseudonym when referring to the appellant in this 

confidential matter.

3

 Kayla does not separately challenge the order for involuntary medication and treatment. 

She argues only that the recommitment order was erroneously entered due to the circuit court’s 

failure to specify the subdivision paragraph of WIS. STAT. § 51.20(1)(a)2. under which it found 

her to be dangerous. Kayla does not dispute that, under the specific circumstances of this case, if 

the recommitment order was valid, then the involuntary medication order was also valid. We 

therefore confine our analysis to the validity of the recommitment order, without separately 

addressing the involuntary medication order.
No. 2021AP133

3

stipulated to a one-year extension of Kayla’s commitment. Additional orders 

extending Kayla’s commitment were entered in March 2014, February 2015, 

February 2016, May 2016, May 2017, April 2018, April 2019, and April 2020.

¶4 On May 12, 2020, the County filed the petition to extend Kayla’s 

commitment that is at issue in this appeal. The petition did not specify under 

which subdivision paragraph or paragraphs of WIS. STAT. § 51.20(1)(a)2. the 

County believed Kayla to be dangerous. The petition merely alleged that Kayla 

was dangerous because there was a substantial likelihood, based on her treatment 

record, that she would be a proper subject for commitment if treatment were 

withdrawn. See § 51.20(1)(am).

¶5 A recommitment hearing took place before the circuit court on 

July 1, 2020. At the hearing, psychiatrist William Platz testified that he had 

examined Kayla in March 2020 and had subsequently reviewed her treatment 

records and discussed her care with her treatment team. Platz’s written report was 

received into evidence during the recommitment hearing.

¶6 Doctor Platz opined that Kayla suffers from schizophrenia, which 

can result in delusions and hallucinations. He testified that Kayla exhibits 

paranoia and threatening behavior, and he specifically noted that Kayla had 

threatened to punch her case manager during the previous year. Platz also testified

that Kayla suffers from impaired judgment or behavior and that she shows no 

insight into her condition.

¶7 With respect to the issue of dangerousness, Dr. Platz opined, based 

on Kayla’s treatment records, that there was a substantial likelihood that Kayla

would again become a proper subject for commitment if treatment were 

withdrawn. More specifically, Platz agreed that without treatment, Kayla “would 
No. 2021AP133

4

be unable to satisfy her basic needs for ... nourishment, medical care, shelter, or 

safety.” Platz also agreed that if treatment were withdrawn, there was a 

substantial probability “that serious injury or serious debilitation might 

[imminently] ensue.” In addition, Platz testified that without treatment, Kayla’s 

impaired judgment “would result in [a] substantial probability of physical harm to 

herself or others.”

¶8 In support of those conclusions, Dr. Platz noted that Kayla’s 

treatment records showed she had a history of disorganized thinking and had been 

unable to care for herself in the past. Platz also noted that Kayla had been 

hospitalized at a behavioral health unit in November 2019 after “exhibiting 

dangerous behaviors towards herself,” specifically, “severe weight loss and lack of 

ability [to] care for herself.” During that hospitalization, it was noted that Kayla 

had multiple broken ribs, but Kayla did not know how those injuries had occurred. 

Following Kayla’s November 2019 hospitalization, she was admitted to a group 

home and was subsequently transferred to a second group home. Platz testified 

that the most recent records from Kayla’s group home indicated that she was 

having a difficult time caring for herself and completing basic activities of daily 

living.

¶9 Doctor Platz also observed that while living independently prior to 

the November 2019 hospitalization, Kayla had presented as being disheveled and 

wearing clothes that did not fit her properly, and she often entered public areas

without appropriate attire. Platz specifically noted that Kayla had received a 

public nuisance citation within the past year for exposing herself to other residents 

of her apartment building.
No. 2021AP133

5

¶10 Doctor Platz opined that without psychotropic medications, there 

was a “high probab[ility]” that Kayla’s paranoia toward others and her current 

behaviors would escalate. He noted that Kayla had a history of being threatening 

toward others when symptomatic, and he opined that such behavior would once

again be a concern if treatment were withdrawn. Platz also opined that, without a 

commitment order, Kayla would “discontinue psychiatric services, experience an 

increase in paranoia and disorganized behavior, and she [would] not have the case 

management services for assistance in maintaining her household.”

¶11 Amelia Collins, Kayla’s case manager through the Barron County 

Department of Health and Human Services, also testified at the recommitment 

hearing. Collins testified that when Kayla was living independently, Kayla missed 

two scheduled appointments with her treating physician and six scheduled 

appointments with Collins. Kayla also missed nine appointments to receive an 

injectable medication used to treat her schizophrenia. Kayla told Collins that she 

did not believe she needed medications because her condition was “spiritual.” On 

one occasion, Kayla threatened to punch Collins if Collins came into one of

Kayla’s appointments.

¶12 Collins further testified that in November 2019, Kayla was admitted 

to an inpatient psychiatric unit for approximately two weeks after Kayla’s landlord 

reported that Kayla was presenting in the common areas of her apartment building 

inappropriately dressed, with poor hygiene and grooming, and displaying odd 

behaviors. At that time, Kayla had lost twenty-four pounds over the prior 
No. 2021AP133

6

ten-month period.4 After Kayla was discharged from inpatient treatment, she was 

transferred to a group home, with the plan being that she would return to her 

apartment upon discharge from the group home. That did not occur, however, 

because staff at the group home reported two instances in which Kayla was 

“unconscious and unresponsive.” Kayla was therefore transferred to a different 

group home to ensure that she was medically stable.

¶13 Collins testified that the County’s ultimate plan was for Kayla to 

return to her apartment. Collins explained, however, that precautions related to 

the COVID-19 pandemic were making it difficult to meet that goal. In addition, 

Collins testified that Kayla was not yet able to perform activities of daily living

independently. Collins explained that Kayla presented in public without 

appropriate clothes, causing her to expose herself, presented with poor hygiene 

and grooming, and was not oriented to time. Collins acknowledged that Kayla had 

made progress in those areas while in the group home, but she explained that 

Kayla required “prompts” from the group home’s staff to complete activities of 

daily living, such as showering, performing hygiene-related tasks, and preparing 

meals. Collins also testified that, in the fall of 2019, Kayla’s landlord informed 

Collins that if Kayla did not “get mental health care,” the landlord would likely 

pursue eviction because Kayla “was making the apartment [building] ... not 

livable for other residents.”

 

4

 During her testimony at the recommitment hearing, Kayla asserted that she is five feet, 

four inches tall, that she previously weighed 147 pounds, and that she “got down to 110 pounds” 

because she wanted to lose weight. Kayla’s daughter testified that Kayla has “always been a thin 

girl.” Nevertheless, Kayla’s daughter stated she found it “surprising” that Kayla had reportedly 

lost twenty-four pounds “over a year.”
No. 2021AP133

7

¶14 Collins recommended that Kayla’s commitment be extended for a 

period of one year. She specifically testified that, without treatment, Kayla would 

be unable to satisfy her basic needs. Upon questioning by the court, Collins 

agreed that the “concern” regarding Kayla was that “if she’s not showing up for 

her appointments to get her medication, ... she’s not eating, she’s not caring for 

herself,” that behavior “will result in another hospitalization.”

¶15 Kayla and her daughter also testified at the recommitment hearing. 

Thereafter, during its closing argument, the County asserted the evidence showed 

that Kayla was dangerous under WIS. STAT. § 51.20(1)(am) because there was a 

“substantial likelihood, based on [her] treatment record, that [she] would be a 

proper subject for [c]ommitment if treatment were withdrawn.” In support of that 

proposition, the County cited Dr. Platz’s testimony that Kayla “would become a 

danger to herself if treatment were withdrawn, based on her impaired judgment 

and her inability to care for herself and satisfy her basic needs.” The County also 

cited Collins’ testimony “along the same lines, that the concern was ... by not 

eating, not caring for herself, not taking her medications as required, it would 

result in re-hospitalizations.” The County argued Collins’ testimony showed that 

when Kayla is “on her own,” she “isn’t able to care for herself and provide for her 

daily needs.” The County also argued that, without the “safety net” provided by 

her commitment, Kayla “may not follow through with her [c]ourt-[o]rdered 

medications, may not follow through with her doctor’s appointments.”

¶16 Based on Dr. Platz’s testimony and report, the circuit court found 

that Kayla was mentally ill and a proper subject for treatment. Turning to the 

issue of dangerousness, the court noted the County was required to establish a 

“substantial likelihood,” based on Kayla’s treatment records, that Kayla would 
No. 2021AP133

8

again be a proper subject for commitment if treatment were withdrawn. See WIS.

STAT. § 51.20(1)(am).

¶17 In support of its conclusion that Kayla was dangerous under that 

standard, the circuit court noted the evidence showed that Kayla’s condition had 

deteriorated in November 2019, when Kayla was missing scheduled appointments 

to receive her injectable medication. The court also noted it was concerning that 

Kayla had presented with broken ribs at that time, but she did not know how she 

had sustained those injuries. The court further found that Kayla’s failure to dress 

appropriately, which caused her to expose herself to others, created “a danger to 

herself.”

¶18 The circuit court also found that Kayla had made threats toward 

Collins and was clearly “paranoid about certain things.” The court stated, 

however, that its concern regarding Kayla’s dangerousness was not so much 

related to her being a danger to others as it was related to Kayla “just not being 

able to care for herself.” The court explained, “[T]hat’s what was demonstrated 

back in November, and which appears to still be somewhat of an issue; maybe not 

as significant as it was back in November, but it’s still there.” The court further 

stated it had “no doubt” that if Kayla stopped taking her medications, she “would 

not be able to care for herself” and “would significantly deteriorate such that she 

would, once again, be a proper subject for [c]ommitment.” The court therefore 

concluded that the County had “met its burden in terms of the ‘dangerousness’ 

criteria.”

¶19 Accordingly, the circuit court entered an order extending Kayla’s 

commitment for a period of one year. The court also entered an order for 
No. 2021AP133

9

involuntary medication and treatment during the period of Kayla’s commitment. 

Kayla now appeals from both orders.

5

DISCUSSION

I. Mootness

¶20 Kayla acknowledges that the commitment order and the order for 

involuntary medication and treatment at issue in this appeal have expired. Kayla 

asserts that this appeal is not moot, however, pursuant to our supreme court’s 

recent decision in Sauk County v. S.A.M., 2022 WI 46, ___ Wis. 2d ___, 975 

N.W.2d 162.

¶21 S.A.M. held that an appeal from a recommitment order is not moot

“when the direct or collateral consequences of the order persist and vacatur of that 

order would practically affect those consequences.” Id., ¶19. “[W]hether a 

collateral consequence renders an appeal not moot turns on the existence of a 

‘causal relationship’ between a legal consequence and the challenged order.” Id., 

¶20. The S.A.M. court concluded that “such a causal relationship exists between a 

recommitment order and at least two collateral consequences: (1) the firearms ban

[contained in a recommitment order]; and (2) the [committed individual’s] liability 

for the cost of care.” Id.

 

5

 This appeal was placed on hold pending our supreme court’s decisions in Sheboygan 

County v. M.W., 2022 WI 40, ___ Wis. 2d ___, 974 N.W.2d 733, and Sauk County v. S.A.M., 

2022 WI 46, ___ Wis. 2d ___, 975 N.W.2d 162. After those decisions were issued, Kayla filed 

an amended reply brief addressing their impact on this appeal, and the County filed a sur-reply 

brief.
No. 2021AP133

10

¶22 More specifically, the S.A.M. court concluded that the continued 

effect of a firearms ban contained in a recommitment order is a collateral 

consequence of that order because “[p]revailing on appeal would vacate the 

recommitment order and practically alter a committed person’s ‘record and 

reputation’ for dangerousness, a factor a reviewing court must consider when 

weighing a petition to cancel a firearms ban.” Id., ¶23 (quoting WIS. STAT.

§ 51.20(13)(cv)1m.b.). In addition, “if a committed person succeeds in vacating 

an expired recommitment order, the fact that the recommitment order no longer 

exists might influence the reviewing court’s weighing of whether restoring gun 

rights would be consistent with the ‘public interest.’” Id. (quoting

§ 51.20(13)(cv)1m.b.).

¶23 With respect to liability for the cost of care, the S.A.M. court noted 

that, by statute, a committed person “shall be liable for the cost of the care, 

maintenance, services and supplies” related to each commitment period. Id., ¶24 

(quoting WIS. STAT. § 46.10(2)). “If the underlying commitment order is vacated, 

however, the liability tied to that particular commitment period no longer exists.” 

Id. The court therefore held that “a direct causal relationship exists between 

vacating an expired recommitment order and removing the liability it creates, 

sufficient to render recommitment appeals not moot.” Id.

¶24 Kayla asserts that as a result of the recommitment order at issue in 

this appeal, she “will continue to suffer the same collateral consequences as 

S.A.M.” We agree that because Kayla continues to suffer these collateral 

consequences, this appeal is not moot, even though the recommitment order has 

expired. In addition, we note that in its sur-reply brief, the County does not 

dispute that S.A.M.’s holding and analysis compel a conclusion that this appeal is 

not moot. We therefore address the merits of Kayla’s appellate arguments.
No. 2021AP133

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II. D.J.W. violation

¶25 “For a person to be subject to a [WIS. STAT. ch.] 51 involuntary 

commitment, three elements must be fulfilled: the subject individual must be 

(1) mentally ill; (2) a proper subject for treatment; and (3) dangerous to [himself or 

herself] or others.” D.J.W., 391 Wis. 2d 231, ¶29. The petitioner must prove each 

of these elements by clear and convincing evidence. Id.

¶26 In an initial commitment proceeding, the petitioner must establish 

that the subject individual is dangerous under one of the five subdivision 

paragraphs in WIS. STAT. § 51.20(1)(a)2. D.J.W., 391 Wis. 2d 231, ¶30. Each of 

those subdivision paragraphs requires the petitioner to “identify recent acts or 

omissions demonstrating that the individual is a danger to himself [or herself] or to 

others.” Portage County v. J.W.K., 2019 WI 54, ¶17, 386 Wis. 2d 672, 927 

N.W.2d 509; see also § 51.20(1)(a)2.a.-e.

¶27 During a recommitment proceeding, however, the petitioner is not 

required to identify “recent” acts or omissions demonstrating dangerousness. 

Instead, the dangerousness requirement in a recommitment proceeding “may be 

satisfied by a 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 if treatment were withdrawn.” WIS. STAT. § 51.20(1)(am). The 

recommitment standard in § 51.20(1)(am) “recognizes that an individual receiving 

treatment may not have exhibited any recent overt acts or omissions demonstrating 

dangerousness because the treatment ameliorated such behavior, but if treatment 

were withdrawn, there may be a substantial likelihood such behavior would 

recur.” J.W.K., 386 Wis. 2d 672, ¶19.
No. 2021AP133

12

¶28 WISCONSIN STAT. § 51.20(1)(am) therefore serves as an “alternative 

evidentiary path” to establish dangerousness in a recommitment proceeding.

J.W.K., 386 Wis. 2d 672, ¶19. Nevertheless, § 51.20(1)(am) “mandates that 

circuit courts ground their conclusions [regarding dangerousness] in the 

subdivision paragraphs of [§ 51.20(1)(a)2.]” D.J.W., 391 Wis. 2d 231, ¶41. In 

other words, “even though the petitioner need not identify recent acts or omissions 

showing dangerousness” in a recommitment proceeding, “the petitioner must still 

prove a substantial likelihood that the subject individual would be dangerous 

under one of the five standards set forth in § 51.20(1)(a)2.a.-e. if treatment were 

withdrawn.” Eau Claire County v. J.M.P., No. 2020AP2014-FT, unpublished 

slip op. ¶11 (WI App June 22, 2021).6

¶29 To ensure that circuit courts ground their recommitment orders in 

the five dangerousness standards set forth in WIS. STAT. § 51.20(1)(a)2.a.-e., our 

supreme court held in D.J.W. that, going forward, “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, ¶40. The court explained 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 reference to a subdivision paragraph of ... § 51.20(1)(a)2. 

will clarify issues raised on appeal of recommitment orders and ensure the 

 

6

 An unpublished opinion issued on or after July 1, 2009, that is authored by a single 

judge or a member of a three-judge panel may be cited for its persuasive value. WIS. STAT. RULE

809.23(3)(b).
No. 2021AP133

13

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.

¶30 Kayla asserts that D.J.W.’s “plain language” requires a circuit court 

“to ‘reference,’ that is to actually state, which subdivision paragraph of [WIS.

STAT.] § 51.20(1)(a)2. the circuit court is basing the recommitment on.” Kayla 

correctly notes that, in the instant case, the court did not specifically reference any 

of the subdivision paragraphs of § 51.20(1)(a)2. in either its oral ruling or its 

written order extending her commitment. Kayla therefore argues that the court 

failed to comply with D.J.W., and, as a result, her recommitment order and the 

associated order for involuntary medication and treatment must be reversed. In 

support of this argument, Kayla cites several unpublished cases, which she claims 

show that a circuit court in a recommitment proceeding must expressly reference 

one of the subdivision paragraphs of § 51.20(1)(a)2., and that an appellate court 

cannot infer the relevant subdivision paragraph based on the court’s findings and 

the parties’ arguments. See Rock Cnty. Dep’t of Hum. Servs. v. J.E.B., 

No. 2020AP1954-FT, unpublished slip op. ¶¶25-26 (WI App Apr. 7, 2021); 

Sheboygan County v. M.W., No. 2021AP6, unpublished slip op. ¶10 (WI App 

May 12, 2021), rev’d, 2022 WI 40, ___ Wis. 2d ___, 974 N.W.2d 733; J.M.P., 

No. 2020AP2014-FT, ¶18.

¶31 In response, the County argues that the circuit court’s failure to 

specify the subdivision paragraph of WIS. STAT. § 51.20(1)(a)2. under which it 

found Kayla to be dangerous was, at most, harmless error. In support of this 

claim, the County notes that Kayla has not challenged the sufficiency of the 

evidence to support the court’s finding of dangerousness. The County also asserts 

that the relevant subdivision paragraph of § 51.20(1)(a)2. was “self-evident from 

the court’s findings and [the] record.” As such, the County contends that the 
No. 2021AP133

14

court’s failure to comply with D.J.W. “has not prejudiced [Kayla’s] ability to 

obtain meaningful appellate review.”

¶32 In response to the County’s harmless error argument, Kayla asserts 

that “a circuit court’s failure to make a specific reference to the subdivision 

paragraph of WIS. STAT. § 51.20(1)(a)2., is not the type of error that is subject to 

harmless error review, but rather is a structural error which always requires 

reversal.” Alternatively, even if a harmless error analysis could be applied in this 

case, Kayla asserts that the error here was not harmless because the circuit court 

“failed to make specific factual findings which would support all of the elements 

for the standard which the County would have this Court infer that the circuit court 

intended to rely upon.”

¶33 We reject Kayla’s argument that the circuit court committed a 

structural error by failing to reference a specific subdivision paragraph of WIS.

STAT. § 51.20(1)(a)2.7 Our supreme court has explained that “there are a very 

limited number of structural errors that require automatic reversal.” State v. 

Pinno, 2014 WI 74, ¶49, 356 Wis. 2d 106, 850 N.W.2d 207. “Structural errors are 

different from regular trial errors because they ‘are structural defects in the 

constitution of the trial mechanism, which defy analysis by “harmless-error” 

standards.’” Id. (citation omitted). “Structural defects affect ‘[t]he entire conduct 

of the trial from beginning to end,’” and “[a]n error also may be structural because 

of the difficulty of determining how the error affected the trial.” Id. (citation 

omitted). In the criminal law context, for example, the “limited class” of structural 

 

7

 “Whether a particular error is structural and therefore not subject to a harmless error 

review is a question of law for our independent review.” State v. Nelson, 2014 WI 70, ¶18, 355 

Wis. 2d 722, 849 N.W.2d 317.
No. 2021AP133

15

errors includes: “complete denial of the right to counsel, a biased judge, excluding 

members of the defendant’s race from a grand jury, denial of the right to 

self-representation, denial of the right to a public trial, and a defective reasonable 

doubt instruction.” Id., ¶50 (footnotes omitted).

¶34 We conclude a circuit court’s failure in a recommitment proceeding

to reference a specific subdivision paragraph of WIS. STAT. § 51.20(1)(a)2. does 

not rise to the level of the structural errors listed above. As Chief Justice Annette 

Kingsland Ziegler recently observed in her dissenting opinion in Sheboygan 

County v. M.W., 2022 WI 40, ___ Wis. 2d ___, 974 N.W.2d 733, “the failure of a 

circuit court to state factual conclusions upon review of an established record and 

the failure to cite a statutory subsection are not structural errors in line with the 

‘complete denial of the right to counsel.’” M.W., ___ Wis. 2d ___, ¶60, 974 

N.W.2d at 748 (Ziegler, C.J., dissenting) (quoting Pinno, 356 Wis. 2d 106, ¶50). 

To the contrary, 

[a]ppellate courts are more than capable of reviewing a 

record, party arguments, and circuit court reasoning to 

determine if a dangerousness pathway has been met. In 

addition, the failure of a circuit court to be precise in its 

reasoning does not infect the entire recommitment 

proceeding with a constitutional violation.[8]

 

8

 In M.W., Sheboygan County did not seek review of the court of appeals’ conclusion 

that the circuit court had violated Langlade County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 

N.W.2d 277, by failing to make reference to a specific subdivision paragraph of WIS. STAT.

§ 51.20(1)(a)2. See M.W., ___ Wis. 2d ___, ¶5 n.2, 974 N.W.2d at 734 n.2. As a result, the 

majority opinion declined to address whether the circuit court’s error in that regard was harmless. 

M.W., ___ Wis. 2d ___, ¶26 n.6, 974 N.W.2d at 738 n.6.

(continued)
No. 2021AP133

16

Id. (Ziegler, C.J., dissenting). For these reasons, we reject Kayla’s argument that 

the error at issue in this appeal was structural and therefore not subject to a 

harmless error analysis.

¶35 We further conclude that, under the circumstances of this case, any 

error by the circuit court in failing to specify the subdivision paragraph of WIS.

STAT. § 51.20(1)(a)2. under which it found Kayla to be dangerous was harmless.9 

“The standard for harmless error is the same for civil and criminal cases. The test 

is whether there is a reasonable possibility that the error contributed to the 

outcome of the action or proceeding at issue.” Schwigel v. Kohlmann, 2005 WI 

App 44, ¶11, 280 Wis. 2d 193, 694 N.W.2d 467 (citations omitted). “A 

reasonable possibility of a different outcome is a possibility sufficient to 

‘undermine confidence in the outcome.’” Id. (citation omitted). Additionally, in a 

recommitment proceeding “[t]he court shall, in every stage of an action, disregard 

any error or defect in the pleadings or proceedings that does not affect the 

substantial rights of either party.” Sec. 51.20(10)(c).

 

In a dissenting opinion, Chief Justice Ziegler concluded that a circuit court’s error in 

failing to comply with D.J.W. is subject to a harmless error analysis, and she further concluded 

that the circuit court’s error in M.W. was harmless because “[t]here was substantial evidence to 

support the fifth pathway on dangerousness, and both medical experts and the County argued for 

application of that pathway before the circuit court.” M.W., ___ Wis. 2d ___, ¶¶46, 68, 974 

N.W.2d at 742-43, 750 (Ziegler, C.J., dissenting). Justices Patience Drake Roggensack and 

Rebecca Grassl Bradley joined Chief Justice Ziegler’s dissent. Id., ¶78 (Ziegler, C.J., dissenting).

Justice Brian Hagedorn filed a concurring opinion in M.W., in which he concluded the 

majority had properly refused to address the harmless error issue, given the procedural posture of 

the case. Id., ¶¶40-43 (Hagedorn, J., concurring). Justice Hagedorn explained that “[t]he 

dissent’s broader arguments [regarding harmless error], which have some force, should await a 

properly postured case.” Id., ¶43 (Hagedorn, J., concurring).

9

 Whether an error in a particular case was harmless is a question of law that we review 

independently. Nelson, 355 Wis. 2d 722, ¶18.
No. 2021AP133

17

¶36 We agree with the County that the circuit court’s error in this case 

was harmless for two reasons. First, as the County notes, the D.J.W. court 

implemented its requirement that circuit courts “make specific factual findings 

with reference to the subdivision paragraph of WIS. STAT. § 51.20(1)(a)2. on 

which the recommitment is based” in a case in which the appellant challenged the 

sufficiency of the evidence to support the circuit court’s determination regarding 

dangerousness. See D.J.W., 391 Wis. 2d 231, ¶¶1, 3. That context was critical to 

the D.J.W. court’s reasoning. The court specifically explained that its new 

requirement would “provide[] increased protection to patients to ensure that 

recommitments are based on sufficient evidence” and would “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.” Id., ¶¶43-44 (emphasis added).

¶37 The D.J.W. court further explained that when a circuit court in a 

recommitment proceeding does not reference a specific subdivision paragraph of 

WIS. STAT. § 51.20(1)(a)2. in its decision, an appellate court is forced to engage in 

“guesswork” when assessing the appellant’s sufficiency-of-the-evidence claim. 

D.J.W., 391 Wis. 2d 231, ¶45. Here, however, this court is not required to engage 

in such “guesswork” because Kayla has not challenged the sufficiency of the 

evidence to support the circuit court’s determination regarding dangerousness. 

Under these circumstances, it cannot reasonably be argued that the court’s failure 
No. 2021AP133

18

to comply with D.J.W. contributed to the outcome of the proceeding or affected 

Kayla’s substantial rights.10 See Schwigel, 280 Wis. 2d 193, ¶11; § 51.20(10)(c).

¶38 Second, we agree with the County that, although the circuit court did 

not specifically cite any subdivision paragraph of WIS. STAT. § 51.20(1)(a)2., it is 

clear from the record that the court found Kayla to be dangerous under 

§ 51.20(1)(a)2.d. That subdivision paragraph provides that an individual is 

dangerous if he or she

[e]vidences behavior manifested by recent acts or 

omissions that, due to mental 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.

Sec. 51.20(1)(a)2.d.

¶39 During its oral ruling, the circuit court stated that if Kayla were no 

longer committed, “there’s no doubt in my mind that she would stop taking her

medications; that she would not be able to care for herself, and that she would

significantly deteriorate such that she would, once again, be a proper subject for

[c]ommitment.” (Emphasis added.) In support of its determination regarding 

 

10

 The County also correctly notes that, in each of the unpublished cases that Kayla cites 

in which a recommitment order was reversed based on the circuit court’s failure to comply with 

D.J.W., the appellant expressly argued that the evidence was insufficient to support the court’s 

determination regarding dangerousness. See Rock Cnty. Dep’t of Hum. Servs. v. J.E.B., 

No. 2020AP1954-FT, unpublished slip op. ¶1 (WI App Apr. 7, 2021); Sheboygan County v. 

M.W., No. 2021AP6, unpublished slip op. ¶1 (WI App May 12, 2021), rev’d, 2022 WI 40, ___ 

Wis. 2d ___, 974 N.W.2d 733; Eau Claire County v. J.M.P., No. 2020AP2014-FT, unpublished 

slip op. ¶1 (WI App June 22, 2021). Again, Kayla has not raised a sufficiency-of-the-evidence 

argument in this appeal.
No. 2021AP133

19

dangerousness, the court cited evidence regarding specific events that had

occurred in 2019, including Kayla’s failure to keep her appointments and take her 

medications consistently, her presenting with broken ribs for which she had no 

explanation, her exposing herself in public by not dressing appropriately, and her 

failure to adequately feed and care for herself. The court explained that, based on 

this evidence, it was not necessarily concerned with Kayla being a danger to other 

people, but it instead believed her to be dangerous as a result of “not being able to 

care for herself.”

¶40 Moreover, the County introduced evidence during the recommitment 

hearing that specifically referenced the requirements set forth in WIS. STAT.

§ 51.20(1)(a)2.d. For instance, Dr. Platz testified that without treatment, Kayla 

“would be unable to satisfy her basic needs for ... nourishment, medical care, 

shelter, or safety.” Platz further testified that if treatment were withdrawn, there 

was a substantial probability “that serious injury or serious debilitation might 

[imminently] ensue.” In its closing argument, the County expressly referenced 

Platz’s testimony that Kayla would become a danger to herself if treatment were 

withdrawn based on her inability to care for herself and satisfy her basic needs. 

Platz’s testimony tracked the language of § 51.20(1)(a)2.d., and the court relied on 

Platz’s testimony when reaching its decision regarding dangerousness.

¶41 Collins similarly testified that without treatment, Kayla would be 

unable to satisfy her basic needs. Collins also testified that the “concern” 

regarding Kayla is that “if she’s not showing up for her appointments to get her 

medication, ... she’s not eating, she’s not caring for herself,” that behavior “will 

result in another hospitalization.” This testimony further indicated that the County 

believed Kayla to be dangerous under the standard set forth in WIS. STAT.

§ 51.20(1)(a)2.d. Indeed, the County cited Collins’ testimony during its closing 
No. 2021AP133

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argument in support of the proposition that, when Kayla is “on her own,” she 

“isn’t able to care for herself and provide for her daily needs.”

¶42 “We do not require courts to use magic words.” M.W., ___ Wis. 2d 

___, ¶44, 974 N.W.2d at 742 (Ziegler, C.J., dissenting); see also Marathon 

County v. D.K., 2020 WI 8, ¶66, 390 Wis. 2d 50, 937 N.W.2d 901 (Rebecca 

Grassl Bradley, J., concurring) (“We do not impose a ‘magic words’ requirement 

in the law and this court has repeatedly rejected them.”). Here, although the 

circuit court did not specifically cite any of the subdivision paragraphs of WIS.

STAT. § 51.20(1)(a)2., it is clear from the court’s oral ruling—when viewed in the 

context of the evidence and arguments presented by the County—that the court 

found Kayla to be dangerous under § 51.20(1)(a)2.d. Kayla does not argue that 

the evidence was insufficient for the court to find her dangerous under that 

subdivision paragraph. Under these circumstances, any error by the court in 

failing to reference § 51.20(1)(a)2.d. was harmless. In other words, there is no 

reasonable possibility that the court’s error in failing to reference § 51.20(1)(a)2.d. 

contributed to the outcome of the recommitment proceeding or affected Kayla’s 

substantial rights. See Schwigel, 280 Wis. 2d 193, ¶11; § 51.20(10)(c).

¶43 Kayla argues that affirming the circuit court’s decision in this case 

“will simply return ... the law to the status pre-D.J.W., where appellate courts and 

litigants are left guessing as to the circuit court’s reasoning in finding 

dangerousness.” As explained above, however, we are not required to engage in

such guesswork in this case because Kayla has not challenged the sufficiency of 

the evidence. Moreover, as we have already concluded, it is clear from the court’s 

oral ruling and from the evidence and arguments presented by the County that the 

court found Kayla to be dangerous under WIS. STAT. § 51.20(1)(a)2.d. Under 
No. 2021AP133

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these circumstances, we are not “left guessing” as to the basis for the court’s 

decision.

¶44 In summary, we conclude that a harmless error analysis may be 

applied to the circuit court’s failure to state the specific subdivision paragraph of 

WIS. STAT. § 51.20(1)(a)2. under which it found Kayla to be dangerous. We 

further conclude that the court’s error was harmless, under the circumstances of 

this case. We therefore affirm the order extending Kayla’s commitment and the 

associated order for involuntary medication and treatment.

By the Court.—Orders affirmed.

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

RULE 809.23(1)(b)4.