Opinion
DA 17-0460
01-29-2019
IN THE MATTER OF: D.S., Respondent and Appellant.
COUNSEL OF RECORD: For Appellant: Chad Wright, Appellate Defender, James Reavis, Assistant Appellate Defender, Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Helena, Montana Scott D. Twito, Yellowstone County Attorney, Mark A. English, Deputy County Attorney, Billings, Montana
APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DI 17-0062 Honorable Rod Souza, Presiding Judge COUNSEL OF RECORD: For Appellant: Chad Wright, Appellate Defender, James Reavis, Assistant Appellate Defender, Helena, Montana For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Helena, Montana Scott D. Twito, Yellowstone County Attorney, Mark A. English, Deputy County Attorney, Billings, Montana Filed: /s/_________
Clerk Justice Dirk Sandefur delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports. ¶2 D.S. appeals from the judgment of the Montana Thirteenth Judicial District Court, Yellowstone County, involuntarily committing him to the custody and care of the Montana State Hospital (MSH) for mental health treatment pursuant to Title 53, chapter 21, part 1, MCA. We affirm. ¶3 At the outset of the proceeding at issue, D.S. was a 59-year-old male with an array of previously diagnosed medical and developmental issues, including dysphagia, cerebral palsy, Type I diabetes, and a developmental disability impairing his intellectual capacity. D.S. cannot walk and is confined to a wheelchair. He requires 24-hour nursing care and has resided in Valley Nursing Care Facility (Valley Nursing Home) between 2013 and the events at issue. ¶4 On May 30, 2017, an ambulance transported D.S. to the Billings Clinic Psychiatric Center (Billings Clinic) for a mental health evaluation following an alleged assault of a Valley Nursing Home staff member the previous day. Upon D.S.'s admission to the Billings Clinic, Mark Ackerman, a resident psychiatric mental health nurse practitioner, evaluated D.S. According to his trial testimony, the available information that Ackerman considered in conducting his evaluation included Ackerman's clinical interview and observation of D.S., review of D.S.'s unspecified medical record, consultation with D.S.'s prior caregivers at Valley Nursing Home, and a consultation with D.S.'s sister. Upon his clinical evaluation of D.S., Ackerman requested that the Yellowstone County Attorney's Office petition for involuntary commitment of D.S. for mental health care and treatment pursuant to Title 53, chapter 21, part 1, MCA. ¶5 Based on Ackerman's attached mental health evaluation report, the State filed a petition pursuant to §§ 53-21-121, -126, and -127, MCA, for D.S.'s involuntary commitment to MSH for up to 90 days. Inter alia, Ackerman's report recounted D.S.'s precipitating behavior at Valley Nursing Home upon which the State predicated its petition and of which Ackerman had no personal knowledge. Following an initial hearing pursuant to § 53-21-122, MCA, and court appointment of Ackerman as the examining professional person, the matter came on for bench trial pursuant to § 53-21-126, MCA. Court-appointed counsel represented D.S. throughout all stages of the proceedings. ¶6 Ackerman was the only witness called by either party to testify at trial. Inter alia, he testified that D.S. suffered from cerebral palsy, dysphagia (an inability to chew food), and Type 1 diabetes. Ackerman further testified that D.S. has a low IQ, has a previously diagnosed developmental disability that has impaired his cognitive ability, and requires 24-hour nursing care in a therapeutic group home or nursing home because he is unable to care for himself. Ackerman further diagnosed D.S. as suffering from a mental disorder known as Intermittent Explosive Disorder (IED). Ackerman characterized IED as:
discreet episodes, or failure to resist aggressive impulses that result in serious assaultive acts or destruction of property . . . [with] the amount of anger, or rage, . . . far out of proportion to what precipitated it.Ackerman testified that D.S.'s IED manifests as "violence and aggression with rage," but is susceptible to treatment by medication. Ackerman further testified that "we have not seen [D.S. exhibit] any of the intermittent rage" during his stay at the Billings Clinic, but attributed that to the fact that D.S. had been compliant with prescribed medication while at the Clinic during which time he also received 24-hour nursing care "taking care of his needs." Though he did not have personal knowledge of D.S.'s alleged violent behavior at Valley Nursing Home, Ackerman testified without objection that during his clinical interview, D.S. admitted to him that D.S. had grabbed and punched somebody at his last nursing home. It is undisputed on the record that Valley Nursing Home was D.S.'s last nursing home. ¶7 Though he opined that D.S. was not an imminent threat of harm to himself, Ackerman testified that, due to the combination of his mental disorder (IED) and other referenced afflictions and conditions, D.S. was unable to care for himself. He further testified that, due to his IED, D.S. was also an "unpredictable" risk of harm to others when not compliant with medication and not receiving 24-hour nursing care adequately attending to his needs. Ackerman stated that a community-based therapeutic group home or nursing home would be appropriate placements for D.S. but that, upon Ackerman's inquiry, the only group homes and nursing homes known to be potentially available placements refused to accept D.S. due to his history of violent behavior. Ackerman further stated that, upon his inquiry, the Montana Mental Health Nursing Home and Care Center in Lewistown, Montana, was unable to accept D.S. due to space limitations. Ackerman thus ultimately testified that MSH was "the only safe discharge" from the Billings Clinic. Ackerman testified that MSH would have the best chance of being able to place D.S. in a therapeutic group home. ¶8 D.S. did not object to admission of any of Ackerman's above-referenced testimony. However, in testifying as to the circumstances under which he first became involved with D.S., Ackerman testified, over D.S.'s objection, that D.S. was transported to the Billings Clinic "after it was reported that he had become violent and was destroying property in his care home." D.S. asserts that Ackerman's testimony was hearsay, inadmissible as substantive evidence of D.S.'s need for commitment under pertinent statutory criteria, thus rendering the State's evidence insufficient for commitment under § 53-21-126, MCA. ¶9 We generally review involuntary mental health commitments under Title 53, chapter 21, part 1, MCA, for whether the district court's findings of fact are clearly erroneous and its conclusions of law are correct. In re L.K.-S., 2011 MT 21, ¶ 14, 359 Mont. 191, 247 P.3d 1100 (citing In re T.S.D., 2005 MT 35, ¶ 13, 326 Mont. 82, 107 P.3d 481). We review rulings admitting or excluding evidence for an abuse of discretion. State v. Frey, 2018 MT 238, ¶ 12, 393 Mont. 59, 427 P.3d 86 (noting "broad discretion" of trial courts to determine relevance and admissibility subject to de novo review of related questions or applications of law). A court abuses its discretion if it exercises discretion based on a clearly erroneous finding of fact, an erroneous conclusion or application of law, or otherwise "acts arbitrarily, without employment of conscientious judgment, or exceeds the bounds of reason resulting in substantial injustice." In re D.E., 2018 MT 196, ¶ 21, 392 Mont. 297, 423 P.3d 586 (citing In re D.B., 2007 MT 246, ¶ 16, 339 Mont. 240, 168 P.3d 691). A finding of fact is clearly erroneous only if not supported by substantial evidence, the court misapprehended the effect of the evidence, or, based on our review of the record, we have a definite and firm conviction that the lower court was mistaken. In re D.E., ¶ 21 (citing In re D.H., 2001 MT 200, ¶ 14, 306 Mont. 278, 33 P.3d 616). We review conclusions of law de novo for correctness. In re D.E. ¶ 21 (citing In re M.W., 2004 MT 301, ¶ 16, 323 Mont. 433, 102 P.3d 6). ¶10 In context, Ackerman's testimony was manifestly the type of medical history evidence upon which medical professionals typically rely in forming medical diagnoses. See Fed. R. Evid. 703 Advisory Committee Note ("a physician in his own practice bases his diagnosis on information from numerous sources and of considerable variety . . . [and] makes . . . decisions in reliance upon them" which, "subject to cross-examination, ought to suffice for judicial purposes"). The record reflects that this information was particularly relevant to Ackerman's ultimate IED diagnosis. Consequently, though apparently otherwise inadmissible hearsay as defined by M. R. Evid. 801 and 802 on the record presented, the District Court nonetheless had discretion to admit Ackerman's disputed testimony as medical history information admissible for the limited purpose authorized by M. R. Evid. 703. In re C.K., 2017 MT 69, ¶¶ 17-29, 387 Mont. 127, 391 P.3d 735 (hearsay inadmissible as substantive proof of matter asserted may be nonetheless admissible pursuant to M. R. Evid. 703 in discretion of court for limited purpose of aiding finder of fact in assessing credibility and weight to afford expert opinion). ¶11 At trial on an involuntary mental health commitment petition, the State must prove that the respondent both (1) suffers from a mental disorder and (2) requires commitment on one of several statutorily enumerated grounds, including, inter alia, whether, due to the mental disorder, the respondent "is substantially unable to provide for" his or her own basic "food, clothing, shelter, health, or safety" needs, or, whether that the respondent's conduct creates "an imminent threat of injury" to others. Sections 53-21-126(1)(a), (c), and (4), MCA. Subject to applicable rules of evidence, the court-appointed professional person may testify as to both the mental disorder and commitment necessity elements of the State's burden of proof. Section 53-21-126(4), MCA. But, if the sole source of the State's evidence, the professional person's testimony must be sufficient to prove at least one of the statutory necessity-of-commitment criteria. Section 53-21-126(4), MCA. To the extent that the State's petition is based on imminent threat to others and relies solely on the testimony of the professional person, the testimony must also be sufficient to prove "overt acts or omissions" by the respondent, "sufficiently recent in time as to be material and relevant as to the respondent's present condition." Section 53-21-126(2), MCA. ¶12 Here, the District Court made express findings of fact that commitment was necessary pursuant to § 53-21-126(1)(a) and (c), MCA (inability to provide for own basic needs and imminent threat to others). Independent of Ackerman's initial testimony as to why D.S. was brought to the Billings Clinic, the District Court's findings were supported by Ackerman's unrebutted testimony: (1) as to the imminent risk of unpredictable violent behavior peculiarly characteristic of D.S.'s IED; (2) the risk of D.S.'s IED being triggered by his inability to have his needs met outside a controlled nursing environment; (3) that D.S. was unable to care for himself and required 24-hour nursing care at least in part due to his IED; (4) to the lack of any safe placement alternative other than MSH; (5) that D.S. most recently resided at Valley Nursing Home; and, as an overt act, (6) D.S.'s unrebutted and unobjected-to clinical interview admission that he had grabbed and punched somebody at his last nursing home. Thus, independent of Ackerman's testimony that D.S. suffered from a mental disorder and as to the reason for D.S.'s arrival at the Billings Clinic, the balance of Ackerman's testimony was substantial evidence sufficient to prove beyond a reasonable doubt that D.S. required commitment under the criteria of § 53-21-126(1)(a), (c), (2), and (4), MCA. We hold that D.S. has failed to demonstrate either that the District Court abused its discretion in admitting Ackerman's testimony as to the reason for D.S.'s arrival at the Billings Clinic, or that the District Court's requisite findings of fact are independently clearly erroneous. ¶13 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our Internal Operating Rules, which provides for memorandum opinions. This appeal presents no constitutional issues, no issues of first impression, and does not establish new precedent or modify existing precedent. ¶14 We affirm.
Defense counsel did not object but the trial transcript reflects that D.S. responsively blurted out, "I didn't punch—," without completing the statement.
Contrary to the State's assertion and as D.S. correctly points out, medical history statements made by persons other than the patient receiving treatment by definition do not qualify as statements made for purposes of medical diagnoses or treatment under M. R. Evid. 803(4). --------
/S/ DIRK M. SANDEFUR We concur: /S/ BETH BAKER
/S/ INGRID GUSTAFSON
/S/ LAURIE McKINNON
/S/ JIM RICE