                     IN THE COURT OF APPEALS OF IOWA

                                     No. 15-2213
                               Filed October 12, 2016


IN THE MATTER OF M.W.,
Alleged to Be Seriously Mentally Impaired,

M.W.,
     Respondent-Appellant.
________________________________________________________________


        Appeal from the Iowa District Court for Johnson County, Christine Boyer,

Judicial Hospitalization Referee.



        M.W. appeals the judicial hospitalization referee’s finding he was seriously

mentally impaired. ORDER VACATED.



        Willie E. Townsend, Coralville, for appellant.

        Thomas J. Miller, Attorney General, and Gretchen W. Kraemer, Assistant

Attorney General, for appellee State.



        Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
                                            2


TABOR, Judge.

           M.W. appeals the judicial hospitalization referee’s finding he was seriously

mentally impaired under Iowa Code chapter 229 (2015). He contends (1) the

hospitalization referee erred by failing to grant his motion to continue when his

guardian1 had not received notice of the proceedings, (2) the delay between his

appeal to the district court and the scheduled hearing was unduly long and

violated his rights to an appeal of his hospitalization order, and (3) the evidence

was insufficient to find him seriously mentally impaired.           The State raises

questions of jurisdiction and mootness.

           Because the referee’s order of commitment was a final appealable order,

we have jurisdiction to entertain this appeal.        And although the district court

released M.W. from the order of involuntary hospitalization at the request of the

applicant, we find exceptions to the mootness doctrine allow us to reach the

merits of M.W.’s appeal. We hold M.W.’s guardian was entitled to notice of the

commitment proceedings and vacate the referee’s order.

I.         Facts and Prior Proceedings

           On December 4, 2015, M.W. left his placement at the Chatham Oaks

residential care facility and walked three miles, in shorts despite freezing

temperatures, to the University of Iowa Hospitals and Clinics (UIHC) emergency

room, where he was admitted. That same day, a UIHC psychiatrist who was

familiar with M.W. from several previous admissions to the hospital, filed an

application to have M.W. involuntarily hospitalized. The psychiatrist supported

his application with the following statement:

1
     M.W.’s legal guardian is his mother.
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       I believe the respondent to be seriously mentally impaired as
        defined by the statute, for the following reasons: Patient has
           long history of hospitalization at our facility for Autism
          Spectrum D/O and severe OCD behaviors which make it
      impossible for him to care for himself in an independent living
        environment. His mother and guardian is also incapable of
      caring for him at home. He recently went to Chatham Oaks as
         an alternate housing facility but made several attempts to
       return to UIHC for hospitalization for irrational reasons. He is
       now hospitalized but refusing medications and noncompliant
        with treatment, and based on my exposure to him for almost
           two years, he will likely quickly devolve to severe OCD
      behaviors, isolating himself in his room, and he has been quite
        violent in the past when not controlled on medications. Off
         medications, he becomes very rigid about interacting with
        others and complying with unit rules and has attacked other
                patients and staff in the past off medications.

      The district court scheduled a hearing with the judicial hospitalization

referee for December 8. Although the hospital had the contact information of

M.W.’s legal guardian, neither the hospital nor the court notified her of the

proceedings.

      Unsurprisingly, the guardian did not attend the December 8 hearing. M.W.

requested a continuance, but the referee denied the motion, reasoning the doctor

had “indicated that [M.W.] was becoming more aggressive and that even a short

continuance could prove a problem.” The parties proceeded with the hearing,

and the referee found M.W. to be seriously mentally impaired.        The referee

required M.W. to undergo a complete psychiatric evaluation and appropriate

treatment at UIHC.

      That same day, M.W. appealed to the district court and requested the

court grant his motion to continue, require the guardian to be served with notice,

and order rehearing of the matter before the referee. On December 9, the district

court held a hearing to consider M.W.’s appeal. The court declined to remand
                                             4


the case to the referee for another hearing and noted the referee’s denial of

M.W.’s motion to continue was not an abuse of discretion because chapter 229

does not require notice to a guardian. The court also scheduled a de novo trial

for December 22, reserving for M.W. “the right to challenge this ruling denying

remand back to the referee as well as [M.W.’s] right to challenge all rulings of the

referee at an appeal hearing on the record before the district court.”

       On December 18, the district court dismissed the case upon UIHC’s

request. Three days later, M.W. filed a withdrawal of his appeal, which also

stated his intention to “continue at the appellate court level.” When the parties

did not appear for the December 22 hearing, the district court noted it would take

no further action in the matter. On December 23, M.W. appealed to the Iowa

Supreme Court, challenging the referee’s December 8 order.2

       On its own motion, the Iowa Supreme Court issued an order on

February 29, 2016, stating it was “concerned as to whether it has jurisdiction”

over the appeal and asking the parties to file statements addressing the

jurisdictional question. After receiving the parties’ statements, the supreme court

concluded the appeal should proceed to briefing, but the parties were to “further

develop and present their arguments in their briefs regarding this court’s

jurisdiction to hear this appeal as well as whether the appeal should be




2
  M.W. also appealed the district court’s December 9 order rejecting his challenge to the
referee’s refusal to continue the hospitalization hearing to allow his legal guardian to be
served notice.      Although M.W. himself requested the district court review the
hospitalization referee’s ruling, he now urges us to disregard the district court’s order on
the grounds the court acted outside the scope of its authority. Because M.W.’s appellate
brief does not ask us to take any action on the district court’s order, we decline to
consider its authority to review the actions of a hospitalization referee under chapter 229.
                                         5


dismissed as moot.” On July 6, 2016, the supreme court transferred the appeal

to our court.

II.    Jurisdiction

       The right to appeal “is purely statutory and may be granted or denied by

the legislature as it determines.”     Boomhower v. Cerro Gordo Cty. Bd. of

Adjustment, 163 N.W.2d 75, 76 (Iowa 1968) (citation omitted). Iowa’s appellate

courts have jurisdiction to review “[a]ll final orders and judgments of the district

court involving the merits or materially affecting the final decision.” Iowa R. App.

P. 6.103(1).

       The State contends we lack jurisdiction because the referee’s finding that

M.W. was seriously mentally impaired was not a final order. Citing Iowa Code

section 229.21(3), the State argues the referee’s finding must first be appealed to

the district court, a process M.W. began but then abandoned. See Iowa Code

§ 229.21(3)(a) (stating respondent “may appeal from the . . . referee’s finding to a

judge of the district court by giving the clerk notice in writing, within ten days

after” the referee’s finding). The State argues the statute includes no basis “for

the respondent by-passing the district court and proceeding directly to the

appellate court.”

       M.W. relies on In re Melodie L. in contending he was not required to

appeal to the district court before seeking review from the appellate courts. See

591 N.W.2d 4, 7 (Iowa 1999) (holding applicant may directly appeal a

hospitalization referee’s decision to the supreme court).      M.W. reasons that

because a referee’s dismissal is a final order under Melodie L., a referee’s order

for commitment must also be final. We agree with M.W. that Melodie L. governs
                                         6


this matter and conclude that while our legislature provided respondents the

opportunity to secure a de novo review of a judicial hospitalization referee’s order

in the district court in section 229.21(3), a respondent is not required to obtain

that review before seeking relief in the appellate courts. See In re E.R., No. 09-

0922, 2010 WL 1377009, at *2 (Iowa Ct. App. Apr. 8, 2010) (“Thus, an applicant,

and by extension a respondent, may directly appeal a referee’s order to the

supreme court.”); cf. In re Guardianship of B.J.P., 613 N.W.2d 670, 673 (Iowa

2000) (relying in part on In re Melodie L. in holding the order of an associate

probate judge terminating a guardianship constituted a final decision); In re

D.W.K., 365 N.W.2d 32, 33–34 (Iowa 1985) (holding a juvenile court referee had

concurrent jurisdiction to issue a final decision despite the fact that the governing

statute allowed for juvenile court review).    Therefore, we have jurisdiction to

consider this matter.

III.   Mootness

       An appeal is moot if the contested “issue becomes nonexistent or

academic, and, consequently, no longer involves a justiciable controversy.” In re

B.B., 826 N.W.2d 425, 428 (Iowa 2013) (citation omitted). Ordinarily, we will not

consider moot issues because our decision will have no practical effect on the

underlying matter. See In re M.T., 625 N.W.2d 702, 704 (Iowa 2001). But there

are exceptions to this rule. We have recognized two exceptions in the context of

involuntary commitment proceedings that are relevant to this appeal. First, we

may review an otherwise moot appeal when the issue is of great public

importance, and it is likely to reoccur yet evade appellate review. See id. at 704–

05. Second, we may review an issue when the “judgment left standing will cause
                                        7

the appellant to suffer continuing adverse collateral consequences.” In re B.B.,

826 N.W.2d at 429.

       The State argues this appeal is moot because the district court dismissed

the commitment proceedings against M.W., and it contends none of the

exceptions to the mootness doctrine apply.      The State reasons the issue of

guardian notification does not evade review because had M.W. followed through

with his appeal to the district court and received an unsatisfactory ruling, that

order could have been appealed to the supreme court. The State also contests

the collateral-consequences exception to the mootness doctrine, claiming M.W.’s

involuntary commitment would “not create the collateral consequences

contemplated by In re B.B.”

       We agree that M.W.’s appeal is moot. M.W. is no longer subject to the

involuntary hospitalization order he appeals.     Further, a remand would be

meaningless because the State no longer seeks to have M.W. involuntarily

committed. See In re M.T., 625 N.W.2d at 705. But we find exceptions to the

mootness doctrine permit us to reach the merits of this appeal.

       The issue of whether a guardian is entitled to notice of commitment

proceedings involving a ward is one of considerable importance, and it is an

issue that is likely to arise relatively frequently in involuntary commitment

proceedings. In M.T., the Iowa Supreme Court reached the merits of a moot

appeal to consider whether a respondent’s statutory rights were violated when he

was prohibited from attending his own involuntary commitment hearing. Id. at

703.   The court reasoned: “The conduct of an involuntary civil commitment

hearing is of public importance. Because such hearings are a daily occurrence,
                                        8


questions about the proper procedures to be followed when there is a question

about the committee’s ability to be present are likely to reoccur.” Id. at 705; see

also In re T.S., 705 N.W.2d 498, 502 (Iowa 2005) (adopting M.T.’s reasoning to

consider whether a county attorney who is not the applicant may participate in an

involuntary commitment proceeding for substance abuse under Iowa Code

chapter 125). We find the present appeal is of similar significance. We reject the

State’s contention that this issue does not evade appellate review. As the M.T.

court noted, “given the time for processing an appeal, and the probability that the

commitment will not continue for that length of time, such appeals will often be

moot before the appeal can be decided.” 625 N.W.2d at 705.

      Further, we find M.W.’s appeal reviewable under the collateral-

consequences exception. In adopting this exception to the mootness doctrine,

our supreme court cited several adverse consequences to an individual who has

been committed, including social stigma and “the potential to use one’s

involuntary commitment as evidence in future proceedings.” See In re B.B., 826

N.W.2d at 429–30. The court held “a party who has been adjudicated seriously

mentally impaired and involuntarily committed is presumed to suffer collateral

consequences justifying appellate review” but also indicated an applicant could

rebut that presumption through a showing of “some number of prior involuntary

commitment orders.” See id. at 429, 431–32 (citation omitted). The State does

not proffer any evidence M.W. had been involuntarily committed previously and

states only that M.W. had previously been hospitalized for an extended period,

had a “history of aggression,” and had an appointed guardian. The State has

failed to rebut the presumption M.W. will suffer the adverse collateral
                                           9

consequences outlined in B.B. due to the involuntary commitment order.

Therefore, we exercise our discretion to reach the merits of M.W.’s appeal.

IV.      Notice to Guardian

         M.W. argues his guardian was entitled to notice of the involuntary

hospitalization proceedings against him, and the referee erred in failing to

continue the hearing to allow the guardian to be served notice.            Iowa Code

section 229.7 requires only that notice of an application for order of involuntary

hospitalization be provided to the respondent. See also Iowa Ct. R. 12.3. But

Iowa Rule of Civil Procedure 1.305(3) requires service upon “any person

adjudged incompetent but not confined in a state hospital for the mentally ill” to

be made by serving the guardian. “[T]he purpose of requiring original notice be

served on the guardian is not only that he be given opportunity to appear and

defend, but to insure to the court itself a full and fair disclosure of the case it must

decide and to protect the interest of the ward.” Conklin v. Conklin, 132 N.W.2d

459, 461 (Iowa 1965).

         Although conceding the guardian should have been notified of the

involuntary hospitalization proceeding, the State argues service upon M.W.’s

guardian was not required under rule 1.305(3) because UIHC, “a publically

funded hospital that provides psychiatric care,” meets the definition of “state

hospital for the mentally ill.” M.W. disagrees, contending he was not “confined”

because he was not subject to an order of commitment before the proceedings at

issue.    M.W. acknowledges a limited exception to the notice requirement for

“[e]mergency and life threatening situations” but denies his situation falls within

that exception.
                                           10


       We    find   M.W.’s      guardian   was   entitled   to   notice   under   these

circumstances. In construing Iowa Rule of Civil Procedure 1.305(3), we look to

the plain and ordinary meaning of the language. In re T.S., 705 N.W.2d at 502.

The rule specifies notice to the guardian is required unless M.W. was confined at

a state hospital for the mentally ill.     Regardless of whether UIHC is a state

hospital for the mentally ill, at the time the application for involuntary

hospitalization was filed, M.W. was not “confined” at UIHC.               See Confine,

American Heritage College Dictionary (3d ed. 1993) (“1. To keep within bounds,

restrict. 2. To shut or keep in, esp. to imprison.”). Rather, he was present in the

hospital by his own volition.

       Nor do we find any “emergency exception” to the notice requirement. In

the event of an emergency, an applicant may request the respondent to be taken

into custody immediately, but this does not negate the requirement the guardian

be notified of the hospitalization proceeding.       See Iowa Code § 229.11(1)(b)

(allowing respondent to be taken into custody immediately and detained in a

hospital where chief medical officer “may provide treatment which is necessary to

preserve the respondent’s life, or to appropriately control behavior by the

respondent which is likely to result in physical injury to the respondent or to

others if allowed to continue”).

       Therefore, we find M.W.’s guardian was entitled to notice of the

involuntary hospitalization proceedings.

V.     Remedy

       A violation of rule 1.305(3) does not, in all situations, require a reversal. It

makes the referee’s order voidable but not void. See Conklin, 132 N.W.2d at
                                              11


461. “The effect of incompetency is to render the judgment subject to attack,

provided a prima-facie defense to the action is shown to have existed.” Id. We

find M.W. has met that burden here.

        The UIHC doctor who initiated the involuntary hospitalization proceeding

did so because M.W. was “refusing medications and noncompliant with

treatment.”     But the subsequent events—including the change in medical

providers and course of treatment consistent with the wishes of the guardian and

dismissal of the continuing commitment—suggest that, had the guardian

received notice of the proceedings and appeared with the ward, the result might

have been different.3

        Accordingly, we vacate the referee’s involuntary hospitalization order, but

we do not remand because M.W. is no longer subject to the order. 4 See In re

M.T., 625 N.W.2d at 706.

        ORDER VACATED.

3
  The Iowa Code defines “serious mental impairment” as a person (1) with mental illness
(2) who lacks “sufficient judgment to make responsible decisions with respect to his or
her hospitalization or treatment” and (3) is “likely, if allowed to remain at liberty, to inflict
physical injury on himself or others or to inflict emotional injury on the designated class
of persons.” In re B.B., 826 N.W.2d at 432 (citations omitted); see also Iowa Code
§ 229.1(17). In an affidavit filed with the district court, the guardian attributed the filing of
the application for involuntary hospitalization to the UIHC doctor’s desire “to treat [M.W.]
with Prozac.” She noted M.W. “had been treated with Prozac in the past resulting in the
steady escalation of agitated behavior which only ceased when the drug was
discontinued. The results this time under the commitment were identical.” The affidavit
of the guardian—whose duty is to “ensur[e] the ward receives professional care,
counseling, treatment, or services as needed”—suggests her presence at the
proceeding would have assisted M.W. in contesting the second prong of the definition.
See Iowa Code § 633.635.
4
  Because we vacate the order based on the issue of notice to M.W.’s guardian, we
decline to consider M.W.’s challenge to the referee’s finding of serious mental
impairment. In addition, we decline to reach M.W.’s complaint that the delay between
his appeal to the district court and the scheduled hearing was unduly long because he
fails to ask for a specific remedy and fails to cite authority in support of his contention.
See Iowa R. App. P. 6.903(2)(g)(3).
