In Re Bjp ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
In re BJP.
WILLIAM ROBBINS, UNPUBLISHED
April 20, 2023
Petitioner-Appellee,
v No. 363409
Kalkaska Probate Court
BJP, LC No. 22-010814-MI
Respondent-Appellant.
Before: O’BRIEN, P.J., and MURRAY and LETICA, JJ.
PER CURIAM.
Respondent appeals as of right the probate court order requiring her to receive involuntary
mental health treatment. Following a hearing on the petition for mental health treatment, the
probate court found respondent to be a “person requiring treatment” under MCL 330.1401(1)(a)
and (c). Respondent contests those findings on appeal. We affirm.
I. BACKGROUND
In early September 2022, petitioner, a peace officer, requested that respondent be
hospitalized because she had called the Kalkaska Village Police Department 37 times since July
31, 2022, to report that the “Illuminati” were attacking her, pulling out her hair, and breaking her
teeth. The petition noted that these 37 calls did “not include the number of calls” made to the
Kalkaska Sheriff’s Department or to the Michigan State Police. Petitioner alleged that respondent
believed the “Illuminati” were hurting her through her “TENS[1] unit” and that “demons” inserted
1
The parties never clarified what was meant by a “TENS unit,” but it seems that “TENS” is an
acronym for “Transcutaneous Electrical Nerve Stimulation,” which is a therapy that “involves the
use of low voltage electrical current to provide pain relief” through the placement of a “small
device [that] delivers the current at or near nerves.” See Cleveland Clinic, Transcutaneous
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a transmitter in her head to torment her. According to petitioner, respondent was not receiving
any mental health treatment, although she had been previously involuntarily committed in 2020
for making more than 80 emergency calls to Grand Traverse Law Enforcement.
The probate court held a hearing on the petition on September 20, 2022. Dr. Jonathan
Dozeman, a psychiatrist at Pine Rest Christian Mental Health Services (Pine Rest), testified as an
expert in the field of psychiatry. Dr. Dozeman met with respondent and diagnosed her with
schizophrenia. Dr. Dozeman explained that respondent was supposed to be taking an antipsychotic
medication as recently as 2020, but respondent had not been taking her medication or receiving
any treatment. Dr. Dozeman testified that respondent had called the police 37 times since July 31,
2022, to report that she was being attacked by the Illuminati. On one occasion, respondent dragged
her furniture outside of her house and stabbed it with a knife because she thought there was a “dark
liquid in the furniture.” Dr. Dozeman testified that upon respondent’s arrival at Pine Rest,
respondent “presented as very disorganized with a tangential thought process.” Dr. Dozeman
stated that respondent did not believe she had a mental illness, and she was unwilling to take any
of the recommended psychotropic medication for treatment. Respondent was responding to
“internal stimuli” and was documented throughout the day to be having conversations with herself.
At night, respondent did not sleep well. For instance, the night before the hearing, respondent
walked restlessly around the unit and talked to herself as she stared at a wall. Dr. Dozeman testified
that respondent posed an inadvertent risk to herself given her level of paranoia, but she did not
pose a risk to others. Dr. Dozeman recommended that respondent be hospitalized, and stated that
hospitalization was the least restrictive form of treatment available.
Respondent testified that she did not have schizophrenia because such a diagnosis “means
you hear—you hear voices in your head,” and the voices she heard were “not coming from my
head” but were “coming from sources in the distance.” Respondent testified that she was not a
danger to herself or other people, and she asked the court to dismiss the petition and allow her to
leave the hospital.
The court found respondent to be a person requiring treatment under MCL 330.1401(1)(a)
and (c). The court ordered that respondent receive combined hospitalization and assisted
outpatient treatment for no longer than 180 days, with up to 60 days of hospitalization. This appeal
followed.
II. PERSON REQUIRING TREATMENT
Respondent argues that the trial court erred by finding that she qualified as a “person
requiring treatment” under MCL 330.1401(1)(a) or (c). We disagree.
A probate court’s dispositional rulings are reviewed for an abuse of discretion, and its
factual findings are reviewed for clear error. In re Portus, 325 Mich App 374, 381; 926 NW2d 33(2018). A probate court abuses its discretion when it chooses an outcome outside the range of
reasonable and principled outcomes. Id. Clear error exists when this Court is left with a definite
Electrical Nerve Stimulation (TENS), https://my.clevelandclinic.org/health/treatments/15840-
transcutaneous-electrical-nerve-stimulation-tens.
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and firm conviction that a mistake has been made, even if there is evidence to support the finding.
Id. This Court reviews de novo matters of statutory interpretation. Id.A probate court must find that an individual is a “person requiring treatment” before it can
order the individual to receive involuntary mental health treatment. See id. at 385. MCL
330.1401(1) provides, in relevant part, that the phrase “person requiring treatment” means:
(a) An individual who has mental illness, and who as a result of that mental
illness can reasonably be expected within the near future to intentionally or
unintentionally seriously physically injure . . . herself, . . . and who has engaged in
an act or acts or made significant threats that are substantially supportive of the
expectation.
* * *
(c) An individual who has mental illness, whose judgment is so impaired by
that mental illness, and whose lack of understanding of the need for treatment has
caused . . . her to demonstrate an unwillingness to voluntarily participate in or
adhere to treatment that is necessary, on the basis of competent clinical opinion, to
prevent a relapse or harmful deterioration of . . . her condition, and presents a
substantial risk of significant physical or mental harm to the individual or others.
A judge or jury cannot “find that an individual is a person requiring treatment unless that fact has
been established by clear and convincing evidence.” MCL 330.1465. Clear and convincing
evidence
produces in the mind of the trier of fact a firm belief or conviction as to the truth of
the allegations sought to be established, evidence so clear, direct and weighty and
convincing as to enable the factfinder to come to a clear conviction, without
hesitancy, of the truth of the precise facts in issue. [In re Pederson, 331 Mich App
445, 472; 951 NW2d 704 (2020) (quotation marks and citation omitted).]
“Evidence may be clear and convincing despite the fact that it has been contradicted.” Id.(Quotation marks and citation omitted.)
Respondent argues that she did not qualify as a person requiring treatment under MCL
330.1401(1)(a) because (1) there was no evidence that respondent was at risk of unintentionally
seriously physically injuring herself and (2) there was no evidence that she had engaged in acts or
made threats that supported an expectation of self-harm. We disagree.
The probate court heard testimony from Dr. Dozeman, who stated that since July 31, 2022,
respondent had called the police 37 times to report being attacked by the Illuminati, and respondent
thought that the Illuminati were putting things inside of her body and inside of her home. Dr.
Dozeman testified that “[i]t got to the point where she was stabbing furniture, and thinking her,
and her family were in danger.” Dr. Dozeman, testifying as an expert in the field of psychiatry,
believed respondent posed “an inadvertent risk to herself given her level of paranoia,” but he did
not think that respondent was a danger to others. Thus, the probate court did not clearly err when
it found that respondent was “at least an inadvertent risk of harm to self” but “not a direct risk of
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harm to others.” Although respondent testified that she did not stab the furniture and instead
merely “opened the upholstery to see what was inside,” this Court gives broad deference to the
probate court’s credibility determinations because it is in the best position to assess witness
credibility. See In re Portus, 325 Mich App at 397. Thus, we need not credit respondent’s
testimony, as respondent urges on appeal. Moreover, to the extent that respondent’s testimony, if
credited, may contradict certain evidence on which the trial court relied to reach its conclusion,
evidence may be clear and convincing even if it was contradicted. In re Pederson, 331 Mich App
at 472. Accordingly, because the probate court’s findings do not leave us with a definite and firm
conviction that a mistake was made, we conclude that the probate court did not clearly err when it
found by clear and convincing evidence that respondent was a person requiring treatment under
MCL 330.1401(1)(a). See In re Portus, 325 Mich App at 381.
Respondent further argues that she did not qualify as a person requiring treatment under
MCL 330.1401(1)(c) because (1) there was no evidence that treatment was necessary to prevent a
relapse or harmful deterioration of her condition and (2) there was no evidence that she presented
a substantial risk of significant physical or mental harm to herself. While we need not address this
argument because we conclude that respondent qualified as a person requiring treatment under
MCL 330.1401(1)(a), we address respondent’s arguments for completeness, and explain why we
disagree.
Both Dr. Dozeman’s and respondent’s testimony showed that treatment was necessary to
prevent a relapse or harmful deterioration of respondent’s condition, which may result in physical
or mental harm to respondent herself. Dr. Dozeman testified that respondent “had three prior
hospitalizations for psychosis in Traverse City before this hospitalization,” and that she had not
been taking any medications even though she was supposed to be taking an antipsychotic
medication as recently as 2020. According to Dr. Dozeman, upon respondent’s hospitalization
pursuant to this petition, respondent “presented as very disorganized with a tangential thought
process,” and she was focused on her home being attacked by the Illuminati. Dr. Dozeman testified
that respondent did not understand her diagnosis and need for treatment, and respondent refused
to take any psychotropic medication while she was hospitalized. Dr. Dozeman reported that
respondent did not sleep during the three nights before the hearing on the petition, and she was
“documented throughout the day to be having conversations with herself.” Respondent’s
testimony confirmed that she was unwilling to recognize and address problems she was
experiencing with her mental health—respondent testified that she did not suffer from
schizophrenia because schizophrenia was when you hear voices in your head, whereas the voices
that respondent heard came “from sources in the distance.” On the basis of this evidence, the
probate court did not clearly err when it found by clear and convincing evidence both that treatment
was necessary to prevent a harmful deterioration of respondent’s condition and that respondent
presented a substantial risk of harm to herself. Accordingly, the probate court properly found that
respondent was a person requiring treatment under MCL 330.1401(1)(c).
III. DUE PROCESS
Respondent next contends that the probate court denied her the right to due process because
the court did not allow respondent to personally cross-examine Dr. Dozeman or allow respondent
to provide additional testimony as a witness. Respondent additionally argues that the probate court
denied her the right to due process by failing to consider respondent’s post-hearing letter to the
court as a motion for new trial under MCR 2.611. We disagree.
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This Court reviews de novo claims of constitutional error. In re Jestila, ___ Mich App
___, ___ n 3; ___ NW2d ___ (2023) (Docket No. 362500); slip op at 2.
“Proceedings seeking an order of involuntary mental health treatment under the Mental
Health Code for an individual on the basis of mental illness . . . generally are referred to as ‘civil
commitment’ proceedings.” In re Portus, 325 Mich App at 382. Such proceedings “are not
criminal in nature.” In re Londowski, ___ Mich App ___, ___; ___ NW2d ___ (2022) (Docket
No. 355635); slip op at 3-4. Nevertheless, “[t]he United States Supreme Court has recognized that
civil commitment proceedings . . . implicate important liberty interests protected by due process.”
Id. at ___; slip op at 6. Due process in civil proceedings “requires that a party receive notice of
the proceedings against it and a meaningful opportunity to be heard.” In re Jestila, ___ Mich App
at ___; slip op at 2 (quotation marks and citation omitted). The opportunity to be heard is “the
fundamental requisite of due process of law.” Bullington v Corbell, 293 Mich App 549, 556; 809
NW2d 657 (2011) (brackets omitted).
First, respondent argues that the probate court denied respondent due process because the
court did not allow respondent to personally cross-examine Dr. Dozeman or allow respondent to
provide additional testimony as a witness after direct examination concluded. Pursuant to MCL
330.1459(1), respondent had a right to cross-examine Dr. Dozeman. However, that does not mean
that respondent herself had the right to conduct cross-examination. Respondent was represented
by court-appointed counsel, and, pursuant to MCR 5.732(A), respondent’s counsel was required
to represent respondent in the hearing on the petition. It was therefore appropriate for the probate
court to ask respondent’s attorney, not respondent, for cross-examination of Dr. Dozeman.
Although respondent’s attorney chose not to ask Dr. Dozeman any questions, that decision did not
require the court to allow respondent to personally question Dr. Dozeman. Under the Michigan
Rules of Evidence, which apply to proceedings under the Mental Health Code, see MCL
330.1459(2), the probate court was allowed to “exercise reasonable control over the mode and
order of interrogating witnesses and presenting evidence,” MRE 611. The probate court did that
when it asked respondent’s counsel, not respondent, to cross-examine Dr. Dozeman. Similarly,
the probate court exercised reasonable control over the mode in which respondent provided
testimony as a witness when it stopped respondent from testifying when there was no question
asked of respondent. See MRE 611; MCL 330.1459(2).2
2
Respondent alternatively argues that her counsel rendered ineffective assistance by failing to
cross-examine Dr. Dozeman and refusing to ask respondent more questions. This issue was never
raised in respondent’s statement of questions presented and is otherwise unpreserved. Regardless,
to establish a claim of ineffective assistance, respondent must show that (1) counsel’s performance
was deficient under an objective standard of reasonableness and (2) but for counsel’s deficient
performance, the outcome of the proceedings would have been different. In re Londowski, ___
Mich App at ___; slip op at 12. “Decisions regarding what evidence to present and whether to call
or question witnesses are presumed to be matters of trial strategy, and this Court will not substitute
its judgment for that of counsel regarding matters of trial strategy.” People v Davis, 250 Mich
App 357, 368; 649 NW2d 94 (2002). Respondent merely asserts that her trial counsel should have
cross-examined Dr. Dozeman and asked respondent more questions, which is not sufficient to
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Second, respondent argues that the probate court denied respondent the right to due process
when it failed to consider respondent’s post-hearing letter as a motion for new trial. The letter
referenced by respondent was a three-page document that consisted of two pages of bullet points
identifying “false claims” made by the petitioning officer and Dr. Dozeman, and one page that
stated, “Re: denial of 1st appeal of judgement.” Pursuant to MCR 1.109(D)(1)(b), the first part of
every document filed with the court “must contain a caption stating . . . the identification of the
document.” MCR 1.109(D)(1)(b)(iv) (emphasis added). Respondent’s letter did not identify itself
as a motion for new trial. In fact, the letter did not even state that respondent was seeking any type
of relief. We are hesitant to hold that the probate court should have sua sponte interpreted an
ambiguous (at best) letter in a specific way. Further, even if we were not hesitant to render such a
holding, respondent fails to cite any authority that would permit this Court to hold that the trial
court was required to interpret respondent’s letter as a motion for a new trial.3 Accordingly,
because respondent did not identify her letter as a motion for new trial, and because she provides
no basis on which this Court could require the probate court to sua sponte interpret respondent’s
ambiguous letter as a motion for a new trial, we conclude that the probate court did not err when
it did not treat respondent’s letter as a motion for new trial.
Affirmed.
/s/ Colleen A. O’Brien
/s/ Christopher M. Murray
/s/ Anica Letica
overcome the strong presumption that trial counsel’s decisions to not do so was sound strategy.
Further, respondent has not presented an offer of proof regarding the evidence that would have
been gained through a cross-examination of Dr. Dozeman or additional testimony from
respondent, so we have no basis to conclude that the outcome of the proceedings would have been
different had respondent’s counsel cross-examined Dr. Dozeman or asked respondent additional
questions. Accordingly, respondent has failed to establish either prong of her ineffective assistance
claim.
3
The closest respondent gets to citing supportive authority is citing In re Moriconi, 337 Mich App
515; 977 NW2d 583 (2021), which, according to respondent, held “that the trial court erred in
failing to allow [the] respondent to exercise a deferral and enter voluntary treatment, instead
moving forward with a trial, merely because [the] [r]espondent failed to fill out the right form to
request a deferral.” Contrary to respondent’s argument, however, Moriconi’s holding is very
different from what respondent requests this Court to hold here. Moriconi held that, because the
respondent “made clear that she desired a deferral and sought guidance from the court regarding
the form and the means necessary to comply,” the probate court erred by denying the respondent’s
request for deferral merely because she failed to follow the statutory procedure. Id. at 528. Here,
in contrast, respondent’s letter in no way conveyed to the trial court that she was requesting a new
trial. Instead, respondent wishes this Court to hold that the probate court was required to sua
sponte interpret respondent’s ambiguous letter as a motion for a new trial. This is clearly different
from the situation in Moriconi, so respondent’s analogy to Moriconi is inapposite.
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