In the Interest of J.A.D. ( 1992 )

ERICKSTAD, Chief Justice,

specially concurring.

I respectfully, reluctantly concur in the result of the majority opinion, with great concern that, in our effort to find clear and convincing evidence of J.A.D.’s need for treatment, we have actually tried this case anew and found that evidence wanting.

This we have done, notwithstanding that the majority of this Court has consistently held over the years that the scope of review in our Court, in a case such as this, is to determine whether or not the trial court’s findings are clearly erroneous applying Rule 52(a) of the North Dakota Rules of Civil Procedure.

Through our very careful review of the facts and our analysis of the possible consequences of the facts, we may have deprived J.A.D. of treatment crucial to his future welfare, without providing him with a safety net of any kind, at a time, considering the season of the year, when survival as a homeless person in North Dakota could be hazardous to say the very least.

This is the risk we take in favor of liberty when we reverse the findings of a trial court which are based upon professional opinion that we have found unconvincing. We have done this based upon a cold record as distinguished from the trial court’s better position of being able to decide after seeing and hearing not only the respondent, but the psychiatrist who examined and gave his medical opinion of the consequences of J.A.D.’s release prior to further treatment. I would have preferred that this matter be remanded for further hearing relative to the issue of possible alternative treatment rather than a complete reversal.

JOHNSON, J., concurs.