Interest of S.R.B. , 2013 N.D. LEXIS 112 ( 2013 )

CROTHERS, Justice,

concurring in part and dissenting in part.

[¶ 28] I agree under our standard of review that we must affirm the finding S.R.B. is mentally ill. I respectfully dissent from that portion of the majority decision concluding clear and convincing evidence supports the finding a reasonable expectation exists that S.R.B., if untreated, poses a serious risk of harm to himself, others or property. Majority opinion at ¶ 20.

[¶ 29] Our standard of review in these cases is well settled:

“This Court’s review of an appeal under N.D.C.C. ch. 25-03.1 is limited to a review of the procedures, findings, and conclusions of the trial court. Balancing the competing interests of protecting a mentally ill person and preserving that person’s liberty, requires trial courts to use a clear and convincing standard of proof while we use the more probing clearly erroneous standard of review. A trial court’s finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence this Court is left with a definite and firm conviction ‘it is not supported by clear and convincing evidence.’ ”

Interest of D.A., 2005 ND 116, ¶ 11, 698 N.W.2d 474 (citations and quotation omitted).

[¶ 30] Mental health, termination of parental rights and several other adjudications involving significant loss of liberty utilize the clear and convincing evidence burden of proof. In those contexts, “[c]lear and convincing evidence means evidence that leads to a firm belief or conviction the allegations are true.” Interest of A.B., 2009 ND 116, ¶ 16, 767 N.W.2d 817 (quotation omitted).

[¶ 31] We also have recognized restrictions on the mental health commitment process, stating:

“[T]he burden of proof is on the petitioner to prove by clear and convincing evidence the respondent is a ‘person requiring treatment.’ The respondent is presumed to not require treatment. Only an individual who is a ‘person requiring treatment’ may be involuntarily admitted to the state hospital or another treatment facility. Proof that an individual will merely benefit from treatment does not satisfy this standard.”

Interest of B.D.K., 2007 ND 186, ¶ 15, 742 N.W.2d 41 (citations omitted).

[¶ 32] Here, the district court made findings on remand. As a result of those findings, S.R.B. is involuntarily committed to the State Hospital for up to ninety days, but he will only get the medication and therapy he agrees to receive. Majority opinion at ¶ 1 n.l. The district court did all it could with the record but only found the following:

• “S.R.B. has had thoughts about shooting people who have had arguments so as to break up a fight.

• “S.R.B. also shared that he has had feelings of anger. S.R.B. denies that he has thoughts about hurting anyone, or hurting himself, but at the same time S.R.B. has thoughts about being angry and indirectly hurting people.

• “S.R.B. has previously demonstrated aggressive behavior.

• “S.R.B.’s current thinking and behavior, the psychotic symptoms, put him at risk of hurting himself accidently.

• “S.R.B. may act inappropriately under the influence of the delusional and disorganized thoughts, whereby hurting himself or others.”

[¶ 33] From the district court’s findings, it concluded, “The petitioner has proved by clear and convincing evidence that there is a substantial likelihood that S.R.B. may inflict serious bodily harm on another person, as manifested by acts or threats.” However, the district court did not find S.R.B. poses a “substantial likelihood” of harm to himself or others. N.D.C.C. § 25-03.1-19. Rather, the district court found S.R.B. “may” act inappropriately and that he might hurt himself “accidentally.” These equivocal findings track the doctor’s testimony describing S.R.B.’s talk of violence as “vague.” Majority opinion at ¶ 18.

[¶ 34] The district court also concluded, “The petitioner has proved by clear and convincing evidence that there is a substantial likelihood of substantial deterioration in S.R.B.’s physical health, or substantial injury, based upon recent poor judgment by S.R.B. in providing for shelter and personal care.” However, the court’s findings do not mention shelter or personal care other than to recite “S.R.B. was seen ‘walking around [his] house this morning with nothing on but his underwear shorts.’ S.R.B. would not allow his mother to come into the house and touch things unless she wore gloves.” Many people, and I suspect most males, hope walking around in a house wearing underwear shorts is insufficient cause for involuntary mental health treatment. If the ambiguous finding is that S.R.B. was in need of treatment for walking outside his house in February while only wearing undergarments, additional findings about duration, weather conditions and S.R.B.’s purpose are required. Otherwise barefoot sprints to the mailbox and underdressed excursions to fetch a newspaper from the sidewalk become potential grounds for treatment. Demanding that one’s mother handle household items while wearing gloves is unusual, but again falls short of warranting involuntary commitment to provide S.R.B. with the opportunity to thereafter voluntarily receive treatment or medication.

[¶ 35] The district court further concluded, “The petitioner has proved by clear and convincing evidence that there is a substantial likelihood of substantial deterioration in S.R.B.’s mental health which would predictably result in dangerousness to S.R.B. or others, due to loss of cognitive control over S.R.B.’s thoughts and actions, as shown by acts and threats in S.R.B.’s treatment history, current condition, and other relevant factors.” Again, the district court’s findings and the sole witness’s testimony was much less clear. The testifying doctor stated, “[0]ne of the most common reasons for relapse and deterioration is noncompliance to treatment, not taking medications ... generally, things do get worse. Sometimes they’re, kind of, the same. It doesn’t get better.” Majority opinion at ¶ 19.

[¶ 36] S.R.B.’s condition apparently would improve with medication and treatment. However, that a person might benefit from treatment does not provide a court with lawful grounds to involuntarily hold a person until they accept treatment. See Interest of B.D.K., 2007 ND 186, ¶¶ 15-16, 742 N.W.2d 41. On this record, I believe the evidence is neither clear nor convincing that S.R.B. is in need of treatment. I would reverse the district court.

[¶ 37] Daniel J. Crothers