In Re Bsm ( 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 BSM.
TROOPER DEMNY, UNPUBLISHED
July 13, 2023
Petitioner-Appellee,
v No. 363596
Mason Probate Court
BSM, LC No. 22-000205-MI
Respondent-Appellant.
Before: RIORDAN, P.J., and MARKEY and YATES, JJ.
PER CURIAM.
At petitioner’s behest, the probate court ordered respondent, BSM, to involuntarily undergo
mental-health treatment. On appeal, respondent challenges that order, insisting that the trial court
failed to comply with MCL 330.1438, which requires two clinical certificates within 24 hours of
involuntary hospitalization for mental-health treatment. Beyond that threshold issue, respondent
argues that she did not meet the statutory requirements for involuntary hospitalization and that the
trial court should have considered alternative treatment options. We affirm.
I. FACTUAL BACKGROUND
This case arises out of a law-enforcement response to respondent’s mental-health crisis on
October 5, 2022. Respondent was blessing the flowers in the Meijer garden center and undressing
in the parking lot. During a police officer’s interaction with respondent, respondent commented
that she wanted to be with her deceased “baby daddy” and she was having an out-of-body spiritual
awakening. She stated that she wanted to light the room on fire, go be with her lord, and live with
and see her dog. The police officer escorted respondent to a hospital and had respondent evaluated
by a physician at the emergency department. On October 6, 2022, respondent was hospitalized as
a result of the police officer’s petition and the physician’s recommendation.
Dr. Punett Singla, a board-certified psychiatrist, evaluated respondent on October 7, 2022.
On the basis of his evaluation of respondent, his review of the notes from respondent’s emergency-
room visit, and a clinical certification accompanying the petition for mental-health treatment, Dr.
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Singla diagnosed respondent as suffering from a “bi-polar disorder” with her “most recent episode
[being] manic severe with psychotic features.” During Dr. Singla’s evaluation, respondent told
him she was living in her car and that she had not slept for eight to nine days. Respondent further
disclosed that she would hit things to prove a point to get what she wanted. Respondent admitted
that she had had “at least one past psychiatric hospitalization” and she had been on anti-psychotic
and anti-depressant medications in the past.
At the hearing on the petition, Dr. Singla testified that he believed respondent to be a danger
to herself, and he had concerns about her inability to perform activities of daily living and function
in reality as well as her psychotic state. Dr. Singla referred to respondent’s conduct at the hospital
and detailed how it could have endangered others because respondent was agitated and physically
aggressive. Dr. Singla also noted that respondent disclosed that she was undressing in the parking
lot and that respondent was observed walking around in her underwear in her unit in the hospital.
Dr. Singla explained that respondent had insight regarding her need for treatment, but did not fully
understand her diagnosis, was constantly trying to get out of the hospital, and refused to take her
medications. Dr. Singla further testified that the lack of medication could have exacerbated this
specific incident, and respondent had little insight regarding her illness and treatment. Dr. Singla
observed that hospitalization was the least restrictive form of placement for respondent. Dr. Singla
commented that respondent was doing well in treatment, that she had significantly improved, and
that when respondent first started seeing him, she would not have been able to sit in the same room
with him. The discharge plan included getting respondent back to her baseline. Once the manic
episode was over, respondent would be placed back into the community with outpatient follow-up
and case management.
Respondent testified on her own behalf and explained that she understood she had bipolar
disorder and needed to take medications. Respondent even admitted that she had thrown things.
Providing insight into her situation, respondent explained that she was homeless and living in her
car. She stated that she had to put bags over her windows because she was unable to trust anyone
and that “they are all against [her].” Furthermore, she stated that she wanted to be released to see
her children and her emotional-support dog. Respondent also stated that she was perfectly capable
of taking care of her finances.
The trial court found, by clear and convincing evidence, that respondent required mental-
health treatment. The trial court explained that respondent was unable to consistently perform her
activities of daily living. The trial court acknowledged that respondent had insight into her need
for treatment, but she had tried to avoid treatment multiple times. The trial court determined that
respondent met the governing statutory requirements and found that respondent was a person who
required treatment under MCL 330.1401(1)(a) and MCL 330.1401(1)(b). The trial court further
found, by a preponderance of the evidence, that a treatment program that required hospitalization
was adequate to meet respondent’s needs and to prevent harm that she may inflict on herself in the
future. The trial court ordered hospitalization for up to 60 days and subsequent assisted outpatient
treatment for no longer than 180 days. Respondent now appeals.
II. LEGAL ANALYSIS
On appeal, respondent contends that the trial court failed to comply with MCR 330.1438,
which requires two clinical certificates within 24 hours of hospitalization. Respondent also argues
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that respondent did not meet the statutory requirements for hospitalization and that the trial court
should have considered alternative treatment options, including respondent’s emotional-support
animal. We shall address these arguments in turn.
A. DISMISSAL ON THE BASIS OF MCL 330.1438
Respondent contends that the case should have been dismissed because clinical certificates
were not filed within the statutory time period prescribed by MCL 330.1438. But respondent did
not present that argument in the trial court, so we must review respondent’s unpreserved claim for
plain error affecting substantial rights. See Kern v Blethen-Coluni, 240 Mich App 333, 336; 612
NW2d 838 (2000). To constitute plain error, an error must have occurred, it must have been clear
or obvious, and it must have affected substantial rights. Id. Thus, respondent must show that the
error affected the outcome of the proceedings. People v Carines, 460 Mich 750, 763; 597 NW2d
130 (1999).
Proceedings for an order of involuntary mental-health treatment under the Mental Health
Code, MCL 330.1001 et seq., based upon mental illness are called civil-commitment proceedings.
In re Portus, 325 Mich App 374, 382; 926 NW2d 33 (2018). To order involuntary hospitalization,
MCL 330.1438 requires the trial court to act as follows:
If it appears to the court that the individual requires immediate assessment
because the individual presents a substantial risk of significant physical or mental
harm to themself in the near future or presents a substantial risk of significant
physical harm to others in the near future, the court may order the individual
hospitalized and may order a peace officer to take the individual into protective
custody and transport the individual to a preadmission screening unit designated by
the community mental health services program. After the individual is taken into
protective custody by a peace officer, the court may, also, order a security transport
officer to transport the individual to a preadmission screening unit designated by
the community mental health services program. If the preadmission screening unit
authorizes hospitalization, the peace officer or security transport officer must
transport the individual to a hospital designated by the community mental health
services program, unless other arrangements are provided by the preadmission
screening unit. If the examinations and clinical certificates of the psychiatrist, and
the physician or the licensed psychologist, are not completed within 24 hours after
hospitalization, the individual must be released. [Emphasis added.]
A respondent hospitalized under MCL 330.1423 (admission by petition) “shall be examined by a
psychiatrist as soon after hospitalization as is practicable, but not later than 24 hours, excluding
legal holidays, after hospitalization.” MCL 330.1430. When a petition “is accompanied by [only]
1 clinical certificate, the court shall order the individual to be examined by a psychiatrist.” MCL
330.1435(1). The individual may be “detained at the place of examination as long as necessary to
complete the examination . . . , but not more than 24 hours.” MCL 330.1435(3).
In this case, the responding law-enforcement officer completed a petition for mental-health
treatment for respondent on October 5, 2022. The petition was accompanied by only one clinical
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certificate from a physician at the emergency department of the hospital where the officer brought
respondent. Respondent was thereafter hospitalized at 1:00 p.m. on October 6, 2022, based on the
recommendation of the petition and the one clinical certificate by the physician. Dr. Singla, who
is a psychiatrist, examined respondent at 12:20 p.m. on October 7, 2022, and signed the second
clinical certificate at 12:40 p.m. on October 7, 2022.1 Accordingly, the second clinical certificate
was completed just shy of 24 hours after respondent was hospitalized. Respondent insists that the
24-hour time period should have started running once respondent was at the hospital, rather than
when the petition was received by the hospital. We disagree. The time stamp signifying the filing
of the petition and the first clinical certificate at the hospital marks the proper starting point for the
24-hour deadline. Thus, the petition for mental-health treatment and clinical certificates satisfied
the requirements prescribed by MCL 330.1438.
B. RESPONDENT IS A “PERSON REQUIRING TREATMENT”
According to the Mental Health Code, MCL 330.1427(1), “[i]f a peace officer observes an
individual conducting himself or herself in a manner that causes the peace officer to reasonably
believe that the individual is a person requiring treatment, the peace officer may take the individual
into protective custody and transport the individual to a preadmission screening unit designated by
a community mental health services program for examination under [MCL 330.1429] or for mental
health intervention services.” Under MCL 330.1401(1), a “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 himself, herself, or another individual, and who has
engaged in an act or acts or made significant threats that are substantially supportive
of the expectation.
(b) An individual who has mental illness, and who as a result of that mental illness
is unable to attend to those of his or her basic physical needs such as food, clothing,
or shelter that must be attended to in order for the individual to avoid serious harm
in the near future, and who has demonstrated that inability by failing to attend to
those basic physical needs.
A respondent may qualify as a “person requiring treatment” under either of those subsections of
MCL 330.1401(1) to justify an order for mental-health treatment. “Mental illness” is defined as a
“substantial disorder of thought or mood that significantly impairs judgment, behavior, capacity
to recognize reality, or ability to cope with the ordinary demands of life.” MCL 330.1400(g). The
judge or jury must find that a person requires treatment by clear and convincing evidence. MCL
330.1465. “Evidence is clear and convincing if it ‘produces a firm belief or conviction as to the
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Dr. Singla documented on the clinical certificate that he met with respondent at 12:20 p.m. for
35 minutes, which would result in a 12:55 p.m. end time for his evaluation. But Dr. Singla signed
the clinical certificate at 12:40 p.m., and respondent’s record of hospitalization reflects 12:40 p.m.
as the time of completion. Regardless, either time of signing falls within 24 hours of respondent’s
hospitalization at 1:00 p.m. on October 6, 2022.
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truth of the allegations to be established[.]’ ” In re Pederson, 331 Mich App 445, 472; 951 NW2d
704 (2020).
Here, the trial court found two bases to conclude that respondent was a “person requiring
treatment,” citing MCL 330.1401(1)(a) and MCL 330.1401(1)(b). Respondent acknowledged that
she has a mental illness. But respondent argues that the probate court did not have the information
necessary to determine that she posed a substantial risk of harm to herself or others. Furthermore,
respondent asserts that the record did not establish, by clear and convincing evidence, that she was
unable to attend to her basic physical needs. We reject both of those arguments.
Respondent was found in a manic state of psychosis in a store open to the public, and she
was eventually diagnosed with bipolar disorder by two medical professionals. Respondent made
several statements about wanting to be with people who were deceased and specifically stated that
she wanted to light the room on fire. It was later determined that respondent was prescribed, and
knowingly stopped taking, medications despite her awareness that she needed them. Additionally,
respondent was severely agitated and prone to physical aggression, which she admitted using when
she wanted something. We conclude that the evidence presented to the trial court provided clear
and convincing evidence that respondent could reasonably have been expected to intentionally or
unintentionally seriously physically injure herself without treatment, as expressly contemplated by
MCL 330.1401(1)(a).
Similarly, the trial court did not err by finding that respondent also qualified as a “person
requiring treatment” under MCL 330.1401(1)(b). At the time of respondent’s psychotic episode,
she was living in her vehicle. Respondent also conceded she had not slept for eight to nine days.
Respondent admitted to undressing in a public parking lot and trying to cover her windows because
she did not trust anyone. And respondent voluntarily stopped taking her medications even though
she knew that she needed to take them. More importantly, respondent’s voluntary abstinence from
her medications resulted in a very public psychotic episode. The evidence showed that respondent
could not attend to her basic needs and required intervention to avoid serious harm in the future.
Respondent claims that her emotional-support animal and her insight regarding her bipolar
disorder were not considered. We conclude that the trial court had sufficient evidence to find that
respondent was a “person requiring treatment” under subsections (a) and (b) of MCL 330.1401(1).
The trial court had evidence that respondent had an emotional-support animal and that respondent
had some insight regarding her diagnosis. The trial court had the opportunity to consider all of the
evidence, yet it still found that respondent met the requirements for mental-health treatment under
MCL 330.1401(1)(a) and MCL 330.1401(1)(b). Because we have no basis to reject the trial court’s
findings, we must uphold its conclusion that respondent is a “person requiring treatment” pursuant
to the Mental Health Code.
C. TREATMENT ALTERNATIVES
Respondent contends that the trial court shirked its statutory duty to consider alternatives
to hospitalization before rendering its dispositional ruling. Once a trial court receives a “petition
for a determination that an individual is a person requiring treatment,” accompanied by two clinical
certificates, the court “shall order a report assessing the current availability and appropriateness
for the individual of alternatives to hospitalization, including alternatives available following an
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initial period of court-ordered hospitalization.” MCL 330.1453a. After reviewing that report, the
trial court must perform the following tasks:
(a) Determine whether a treatment program that is an alternative to hospitalization
or that follows an initial period of hospitalization is adequate to meet the
individual’s treatment needs and is sufficient to prevent harm that the individual
may inflict upon himself or herself or upon others within the near future.
(b) Determine whether there is an agency or mental health professional available
to supervise the individual’s treatment program.
(c) Inquire as to the individual’s desires regarding alternatives to hospitalization.
[MCL 330.1469a(1).]
Here, a report on alternative mental-health treatment was furnished to the trial court before
disposition. A licensed social worker submitted the report referring to independent mental-health
professionals and agencies and provided a recommendation for treatment for case management,
psychiatric services, life-skills training, counseling, and substance-abuse services. Specifically,
the social worker recommended hospitalization for up to 60 days and posthospitalization treatment
for up to 180 days. The social worker explained that her recommendation was based on respondent
presenting suicidal thoughts as well as statements respondent made about wanting to be with her
deceased “baby daddy.” The social worker referred to respondent’s comments about having an
out-of-body spiritual awakening, wanting to set the room on fire, and wanting to be with her lord.
The social worker also referred to respondent’s living conditions. Based on her experience in the
field, the social worker recommended hospitalization, believing that a hospital would appropriately
and adequately provide treatment because it had treated similar symptoms in the past. The social
worker additionally recommended an agency for outpatient treatment upon respondent’s release
from hospitalization. Based on that report and all other evidence presented, the trial court ordered
respondent to spend no more than 60 days hospitalized and subsequent outpatient treatment for the
remaining period after hospitalization up to 180 days, which was consistent with the guidelines set
forth in MCL 330.1472a(1)(a) to (1)(c).
We conclude the trial court appropriately considered alternatives for treatment. The social
worker’s report cited details about respondent’s statements during the incident that prompted the
petition and during respondent’s psychiatric evaluations. The report was completed on a form that
was approved by the State Court Administrative Office, and the recommendation aligned with the
treatment recommended by both medical professionals who evaluated respondent. Additionally,
the trial court was able to hear testimony regarding respondent’s ongoing treatment and the gradual
improvements that she was making despite initial disturbances in her treatment. Respondent even
testified but did not offer any alternative options for treatment besides an agreement that she would
take her medications if released. Therefore, we conclude that the trial court had the required report
and other evidence needed to consider treatment alternatives and did not err by failing to consider
alternatives to hospitalization before issuing its dispositional ruling. Furthermore, the trial court’s
order complied with the statutory standards limiting the duration of hospitalization and outpatient
treatment. See MCL 330.1472a(1)(a) to (c). In sum, the trial court properly handled every aspect
of this case.
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Affirmed.
/s/ Michael J. Riordan
/s/ Jane E. Markey
/s/ Christopher P. Yates
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