                     IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1910
                              Filed October 1, 2014


IN THE MATTER OF D.Y.,
Appellant,

Alleged to be Seriously Mentally Impaired.
________________________________________________________________


       Appeal from the Iowa District Court for Woodbury County, John D.

Ackerman, Judge.



       D.Y. appeals from her civil commitment following the district court’s finding

that she suffered from a serious mental impairment. REVERSED.



       Zachardy S. Hindman of Bikakis, Mayne, Arneson, Hindman & Hisey,

Sioux City, for appellant.

       Thomas J. Miller, Attorney General, Gretchen Witte Kraemer, Assistant

Attorney General, Patrick Jennings, County Attorney, and Joshua Widman,

Assistant County Attorney, for appellee State.



       Considered by Danilson, C.J., and Vogel and Bower, JJ.
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VOGEL, J.

       D.Y. appeals from her civil commitment following the district court’s

determination that she suffered from a serious mental impairment. She asserts it

was not proved by clear and convincing evidence she was seriously mentally

impaired to the point she was a danger to herself or others and that without

commitment, she would be unable to satisfy her own physical needs such that

she would suffer physically. We conclude no overt act occurred showing D.Y.

was a danger to herself or others, or that she could not adequately care for

herself. Consequently, substantial evidence does not support the district court’s

finding of dangerousness under Iowa Code section 229.1(17)(a) and (c) (2013),

and we reverse.

I. Factual and Procedural Background

       On November 21, 2013, D.Y.’s sister filed an application alleging mental

impairment, which stated D.Y. was not taking her medication1 and that she was

demonstrating paranoia and other concerning behavior.                The application

requested that D.Y. be civilly committed. A contested hearing was held on the

application, in which it was established D.Y. had recently been homeless. D.Y.

had travelled from Sioux City, Iowa, to Florida, then in November 2013, back to

Sioux City. D.Y. testified she did not mind being homeless.

       Before the hearing, D.Y. was examined by Phillip Muller, D.O.               He

diagnosed D.Y. with mood disorder not otherwise specified, rule out bipolar




1
  Testimony at the hearing established D.Y. had been prescribed Abilify and Zoloft, and
that she had not been taking the medication for at least one year.
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disorder, but noted alcohol, cannabis, and “meth” dependence.2 At the hearing,

he testified that D.Y.:

       [H]as problems with psychosis, that she has problems with
       paranoia, in the paperwork from the family, I remember they were
       indicating that she appeared to be having paranoia. She thought
       people were stealing things from her and that type. When I met
       with her, she indicated, at one point that her, her family was
       stealing from her. When I read over the paperwork and saw that
       she had indicated the neighbor was stealing from her. She also
       indicated that was the case. The staff at, she had indicated that
       she was missing some things to the staff today. I believe it was
       some socks. There seemed to be some confusion around that.
       And, and after I evaluated her and after I walked out, she came up
       to me and said that she had been in jail and that she said that she
       was not given back, I believe it was a ring from jail as well. The
       police department did not return that to her. And so, she continues
       to appear to have some problems with some paranoia. She has
       been refusing to take any anti-psychotic medications. That’s also
       what the family indicated that she—that she had not been staying
       on any meds. That she had been—there is also some alcohol use
       involved with that as well.

When asked if D.Y. was a danger to herself or others, Dr. Muller responded:

       She does seem to continue to have problems with paranoia. As I
       remember, there also was some concern about that she was doing
       some traveling, that she would, for instance, she went out to
       Kansas, she was in Florida, she’s been moving around to a number
       of different places. I think that she had, there was something, she’d
       said something to the effect about that even though she had been
       drinking in her home apparently that’s why the, they arrested her
       because of alcohol that she had been using. I believe what
       happened is she got into some type of disagreement [with] a
       neighbor, and so, yes I do think that she doesn’t stay on her
       medications. There’s some potential for her to take off and
       someone not know where she’s going to and she not be able to
       take care of herself.

This opinion is reflected in the physician’s report to the court, in which Dr. Muller

stated he believed D.Y. to be a danger to herself or others—as contemplated by

2
 Specifically, Dr. Muller testified the diagnosis of mood disorder NOS could mean she
has bipolar disorder, schizo-affective disorder, or schizophrenia, which must be
addressed in a future diagnostic session. D.Y. denied any methamphetamine use.
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chapter 229—and that she needed to be hospitalized. Also included in the brief

facts supporting hospitalization within the doctor’s report was the observation

that: “She thinks people are trying to destroy her family, delusional bizarre

thoughts.”

       Dr. Muller then proceeded to testify that the least restrictive plan would be

to make sure D.Y. was on long-acting medication, at which point she could be

released on an outpatient basis. When asked to clarify how D.Y. “taking off”

could be a danger to herself or others, Dr. Muller stated: “I think that she’s at risk

to herself since, simply because she doesn’t have any insight into the fact that

she has these problems with the paranoia.”         In response to the question of

whether D.Y. was able to care for herself, Dr. Muller testified that: “She appeared

disheveled to me. She appeared to be guarded. She appeared to be paranoid

when I met with her.”

       D.Y.’s sister and D.Y. also testified. The sister stated what had initially led

her to file the application was a note D.Y. had given her indicating the family was

going to come to harm. Specifically, the sister testified: “It was about Jesus and

a prophecy and about harming the family, her family. Just, it was things like that.

It was mostly about like, it was kind of like a, bible quotes and just something like

that.” The note did not specify who was going to harm the family.

       The sister further testified about D.Y.’s inappropriate behavior towards a

patient in the hospital waiting room as well as her altercation with the neighbor, in

which D.Y. accused the neighbor of stealing, a verbal argument ensued, and

D.Y. was arrested for public intoxication. However, the sister stated that, to her
                                           5


knowledge, D.Y. has never threatened to physically harm herself or others. On

cross-examination, the sister testified:

             Q: Has she ever directly threatened to hurt anybody that you
       know of? A: No, no. [D.Y.’s] not, she’s not like, physically abusive,
       you know, at all. I don’t think she is at all.
             Q: What about threatening to hurt herself? Has she ever
       done that? A: I, not that I’m aware of.

Resisting hospitalization, D.Y. denied all allegations and testified she merely has

a learning disability and does not need medication.

       Following the close of the evidence, the district court found D.Y. was

seriously mentally impaired, and in doing so, found she was a danger to herself

or others and that she was unable to care for herself. Specifically, the court

stated:

       This is a close case. I’m not at all concerned that she, she has a
       mental illness. I don’t have any question about that in my mind.
       My question is, is the hospitalization, continued hospitalization, the
       least restrictive situation for her. I do believe she lacks sufficient
       judgment to make responsible decisions with respect to her
       treatment. She does, like the doctor says, she [has] absolutely no
       insight into her situation. And I would find that without treatment
       and allowed to remain at liberty, she would be a serious, she could
       inflict serious injury on herself or others and [would be] unable to
       satisfy her own nourishment, clothing, essential medi-care—
       medical care, or shelter, making her physical injury, physical
       debilitation or death likely.       That’s by clear and convincing
       evidence. But it is very close.

The court issued its ruling on December 2, 2013, ordering that D.Y. be placed at

Mercy Hospital and that she comply with all treatment recommendations. The
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court assumed that after a few days in the hospital, D.Y. would be released to

outpatient care.3 D.Y. appeals the adjudication of serious mental impairment.

II. Standard of Review

       In involuntary commitment proceedings, we review challenges to the

sufficiency of the evidence for correction of errors at law. In re J.P., 574 N.W.2d

340, 342 (Iowa 1998). The allegations made in an application for involuntary

commitment must be proved by clear and convincing evidence. Id. Clear and

convincing evidence “means that there must be no serious or substantial doubt

about the correctness of a particular conclusion drawn from the evidence.” Id.

(citation and internal quotation marks omitted).

III. Dangerousness

       Under Iowa Code section 229.1(17), a person is seriously mentally

impaired if she suffers from mental illness,

              [A]nd because of that illness lacks sufficient judgment to
       make responsible decisions with respect to the person’s
       hospitalization or treatment, and who because of that illness meets
       any of the following criteria:
              a. Is likely to physically injure the person’s self or others if
       allowed to remain at liberty without treatment.
              b. Is likely to inflict serious emotional injury on members of
       the person’s family or others who lack reasonable opportunity to
       avoid contact with the person with mental illness if the person with
       mental illness is allowed to remain at liberty without treatment.
              c. Is unable to satisfy the person’s needs for nourishment,
       clothing, essential medical care, or shelter so that it is likely that the
       person will suffer physical injury, physical debilitation, or death.

These factors must be proved by clear and convincing evidence. Iowa Code

§ 229.13(1).

3
 We note that, even though D.Y. is no longer civilly committed, a patient is presumed to
suffer collateral consequences justifying appellate review, and therefore mootness does
not preclude our review of the issues. See In re B.B., 826 N.W.2d 425, 430 (Iowa 2013).
                                            7


       D.Y. contests the district court’s finding she was likely to injure herself or

others and was unable to adequately care for herself. Pursuant to our case law,

the danger a person poses to self or others must be evidenced by a “recent overt

act, attempt or threat.” J.P., 574 N.W.2d at 344. The endangerment element

“requires a predictive judgment, based on prior manifestations but nevertheless

ultimately grounded on future rather than past danger;” however, socially

unacceptable or repugnant behavior does not satisfy the overt act requirement.

In re Mohr, 383 N.W.2d 539, 542 (Iowa 1986). Rather, an “overt act” connotes

past aggressive behavior or threats by the respondent manifesting the probable

commission of a dangerous act upon herself or others. In re Foster, 426 N.W.2d

374, 378–79 (Iowa 1988) (holding verbalized delusions do not constitute the type

of overt act necessary to establish dangerousness).

       The record here does not contain an overt act on the part of D.Y.

demonstrating that she would be a danger to herself or others or that she cannot

satisfy her need for “nourishment, clothing, essential medical care, or shelter so

that it is likely that [she] will suffer physical injury, physical debilitation, or death.”

See Iowa Code § 229.1(17)(a) & (c). As an initial matter, though the State is

correct in its assertion the winters in Iowa are extremely cold, D.Y. was not

homeless in Iowa during the winter—she was residing with family members.

Furthermore, D.Y. was clearly able to keep herself clothed and fed during this

period of time, and though she appeared disheveled and unwashed with holes in

her shoes, there is no indication she suffered physical harm or that she would do

so in the future under similar circumstances.               Given these facts, D.Y.’s
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homelessness is not enough of an overt act showing she cannot satisfy her

needs such that she will likely suffer injury, debilitation, or death.

       Nor does the note D.Y. delivered to her sister constitute an overt act

indicating dangerousness. While evidencing her paranoia, the note did not state

D.Y. was going to harm the family, but, rather, that an unspecified harm might

befall them. In fact, D.Y.’s sister specifically testified D.Y. had never threatened

to harm herself or others. While D.Y.’s behavior toward the neighbor and the

patient in the hospital waiting room could be considered socially unacceptable,

and it is likely a manifestation of her mental illness, it is not enough to constitute

an overt act on the part of D.Y. See Mohr, 383 N.W.2d at 542. Consequently,

the district court improperly found D.Y. posed a danger under Iowa Code section

229.1(17)(a) and (c), and we reverse the adjudication of D.Y. as seriously

mentally impaired.

       REVERSED.
