                                                                                           December 6 2011


                                           DA 11-0401

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2011 MT 306N




IN THE MATTER OF:

M.W.,

         Respondent and Appellant.




APPEAL FROM:            District Court of the Thirteenth Judicial District,
                        In and For the County of Yellowstone, Cause No. DI 11-0037
                        Honorable Mary Jane Knisely, Presiding Judge


COUNSEL OF RECORD:

                 For Appellant:

                        Joseph P. Howard, Attorney at Law, Great Falls, Montana

                 For Appellee:

                        Steve Bullock, Montana Attorney General; Micheal S. Wellenstein,
                        Assistant Attorney General, Helena, Montana

                        Scott Twito, Yellowstone County Attorney; Mark A. English, Deputy County
                        Attorney, Billings, Montana


                                                    Submitted on Briefs: November 16, 2011

                                                                Decided: December 6, 2011




Filed:
                        __________________________________________
                                          Clerk
Justice Michael E Wheat delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), 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     Following a jury verdict on a commitment petition, the Thirteenth Judicial District

Court, Yellowstone County, ordered M.W. committed to the Montana Mental Health

Nursing Care Center for a period not to exceed three months. M.W. appeals.

¶3     Eighteen years ago, M.W. suffered a brain injury that significantly impaired the

frontal lobe of his brain. M.W. also suffers from epilepsy. Three years ago, after allegations

arose that M.W. was abusing alcohol and was being exploited by the individuals he was

living with, Debra Lawson (Lawson) was appointed M.W.’s guardian. Despite Lawson’s

efforts over the past three years, M.W. has been expelled from numerous nursing homes and

assisted living centers because of his volatile behavior. After M.W. was most recently

expelled from a living arrangement with family, his family placed him at the Billings Clinic.

Dr. Robert McDermott, a psychiatrist with the Billings Clinic, evaluated M.W. and

determined M.W. was unable to care for himself and requested that the State file a petition

for commitment.

¶4     The State filed a petition for commitment in June of 2011. The matter proceeded to a

jury trial later that month. At trial, the State called Lawson, M.W.’s social worker Walt

Williams, and Dr. McDermott as witnesses. They testified that M.W. is incapable of living
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independently and/or caring for himself due to his mental disorder. Specifically, Lawson

expressed concern that M.W. would be dead within a month if he was allowed to live

independently. Williams testified that M.W. does not possess the cognitive abilities to

participate in outpatient treatment and could not live independently because he cannot retain

information. Dr. McDermott explained his recommendation that M.W. be committed to the

Montana Mental Health Nursing Care Center as follows:

       [A]ll the information I have says that [M.W.] cannot take care of himself
       outside of a highly structured setting, such as a good nursing home or a
       psychiatric hospital. And that—there is nothing else for him to do in the way
       of resources. And so given that he can’t take care of himself even in the
       hospital, I think he needs to have supervision in a highly functional nursing
       facility.

¶5     In his defense, M.W. testified about his favorite foods, his appreciation for science

fiction novels and history, and his desire to procure a loan in order to purchase a mobile

home. M.W. testified that he believed he could care for himself as long as he stayed away

from alcohol. M.W. admitted his memory is not very good and could not recall being

admitted into the Billings Clinic. The jury returned a verdict finding M.W. suffers from a

mental disorder requiring commitment.

¶6     While M.W. concedes on appeal that he suffers from the mental disorder of dementia,

he challenges his commitment on the basis that the jury could not have found he was unable

to provide for his own basic needs as a result of his dementia. Thus, the sole issue on appeal

is whether substantial credible evidence supports the jury’s verdict that M.W., because of his




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mental disorder, is substantially unable to provide for his own basic needs of food, clothing,

shelter, health, or safety.

¶7     This Court reviews a jury verdict to determine if it is supported by substantial credible

evidence. Campbell v. Canty, 1998 MT 278, ¶ 17, 291 Mont. 398, 969 P.2d 268. Substantial

credible evidence is “evidence that a reasonable mind might accept as adequate to support a

conclusion.” Campbell, ¶ 18. It may be less than a preponderance of the evidence, but must

be more than a mere scintilla. Campbell, ¶ 18.

¶8     At a trial or hearing on an involuntary commitment petition, the jury has to determine

whether the respondent is suffering from a mental disorder and whether the respondent

requires commitment. Section 53-21-126(1), MCA. Determining whether commitment is

required includes the consideration of a number of statutory criteria. Satisfaction of any one

of the criteria justifies a respondent’s commitment. Section 53-21-127(7), MCA. Relevant

to this appeal, one of the criteria provides for commitment where “the respondent, because of

a mental disorder, is substantially unable to provide for the respondent’s own basic needs of

food, clothing, shelter, health, or safety.” Section 53-21-126(1)(a), MCA.

¶9     Although M.W. argues the jury could not have reasonably found that he was unable to

provide for his own basic needs, his argument rests solely upon his own self-serving

testimony regarding his plan to secure shelter and food. This is contrary to the testimony

presented by Lawson, Williams, and Dr. McDermott that M.W. is unable to provide for his

basic needs. The issues in this case are factual and the jury’s verdict is supported by

substantial credible evidence. Accordingly, we have determined to decide this case pursuant
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to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for noncitable

memorandum opinions.

¶10   Affirmed.

                                                /S/ MICHAEL E WHEAT



We Concur:

/S/ BETH BAKER
/S/ BRIAN MORRIS
/S/ JAMES C. NELSON
/S/ JIM RICE




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