                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS

In re: Involuntary Hospitalization of S.C.
                                                                                    FILED
No. 16-1149                                                                   September 25, 2017
                                                                                  RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
                               MEMORANDUM DECISION
       Petitioner S.C., by counsel C. Joan Parker, appeals the November 10, 2016, order of the
Mental Hygiene Commissioner of Kanawha County (“Commissioner”) committing him to a
psychiatric hospital upon a finding of probable cause that petitioner was likely to harm himself
or others.1 The State of West Virginia, by counsel Andrew S. Dornbos, filed its response in
support of the Commissioner’s order. On appeal, petitioner argues that the Commissioner failed
to consider all relevant and reliable evidence before ruling that petitioner was mentally ill, drug
addicted, and likely to cause harm to himself or others.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the Commissioner’s order is appropriate under Rule
21 of the Rules of Appellate Procedure.

        On November 10, 2016, petitioner’s mother filed an “Application for Involuntary
Custody for Mental Health Examination.” Petitioner’s mother stated that she believed petitioner
to be addicted to alcohol and mentally ill. The bases for her belief included the facts that
petitioner had stopped going to work and “started preparing for the defeat of the government.”
Petitioner’s mother asserted that he had purchased a gun and was having delusions, including
one in which he stated that, while driving, “cars magically appeared around [petitioner] and
recruited him to work for Trump.” She further asserted that petitioner drank beer all day, stopped
taking his antidepressant, and was not sleeping or eating.

        On that same date, petitioner was evaluated by James W. Merrill, MA, who filed a
“Certificate of Licensed Examiner” after the evaluation. Mr. Merrill found reason to believe that
petitioner was mentally ill, addicted, and likely to cause harm to himself due to his mental illness
and addiction. Mr. Merrill found that petitioner abused cannabis and alcohol and had, in fact,
been arrested for driving under the influence the night before his evaluation. Mr. Merrill also

       1
        Consistent with our long-standing practice in cases with sensitive facts, we use initials where
necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va. 254, 773
S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013); State v.
Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183 W.Va. 641, 398
S.E.2d 123 (1990).
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documented that petitioner had stopped taking his antidepressant medication. Mr. Merrill
diagnosed petitioner with mood disorder, unspecified; alcohol use disorder; cannabis use
disorder; and noncompliance with treatment. Mr. Merrill concluded that petitioner had a
“moderate probability of SHB [seriously harmful behavior]” and was in need of “[i]mmediate
hospitalization in a 24-hour locked facility[.]”

        Shortly after petitioner’s evaluation, a probable cause hearing was held. Mr. Merrill,
petitioner’s mother, petitioner’s sister, and petitioner’s fiancé testified in support of involuntary
hospitalization. Mr. Merrill testified consistently with the information presented in his
“Certificate of Licensed Examiner” and added that he was “concerned about if, in fact, he did
buy an assault rifle and he’s using drugs and alcohol and may be delusional . . . . That’s not a
good combination, so.”

         Petitioner’s mother testified to petitioner’s change in behavior and “that it’s like there
was a disconnect from reality[.]” She testified that petitioner was “defiant and just . . . one of
those people that thinks everything is a conspiracy” and that petitioner stated he “had been
somewhere and these cars surrounded him and they were recruiting him for Trump.” She
testified that petitioner’s daughter confided in her that “she loves [petitioner] and thinks he needs
help but she’s starting to be afraid of him” and to be around him. Petitioner’s mother was
unaware “until yesterday that he smoked pot six days a week,” but she testified that “[i]f
[petitioner is] awake he’s got a beer in his hand” and that “it’s one beer after another.”

        Petitioner’s sister testified that she saw him a few days prior to the probable cause
hearing, “[a]nd he was not himself at all, he was – what I would as manic [sic].” After leaving
the home at which she saw petitioner and at which she left her own children to have a sleepover
with petitioner’s child, she said “I almost turned around and went and got my kids because I was
scared, but I didn’t. Because I knew they wanted to spend the night with his daughter[.]” She
also testified that petitioner had “two large guns that I did see with my eyes, at the house.”
Petitioner purportedly told her that “he was stockpiled with his stuff for when this happened.”
Petitioner’s sister testified that petitioner has not been to work and simply stopped going:

       He didn’t tell work he wasn’t coming. He just stopped going. And he was so
       happy to get this job. He’s been trying for years to get this job. And he just
       recently got it and now he just stopped going because of all this stuff, and he
       didn’t tell anybody that he was going to not go.

Petitioner’s sister also recounted that petitioner told her

       he was in a high speed chase and that he passed the test. And so he was going to
       be recruited to work for the government to protect Donald Trump. And that he
       was just waiting for them to come and get him. And he was so excited. He kept
       asking people, “Are you in on it?” “Are you in on it?” And we were like “In on
       what?”

Petitioner further told her that “when you buy high powered rifles that shot [sic] a mile away,
then they know that you’re serious and you can protect the government.”

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        Petitioner’s fiancé testified to hearing petitioner talk to himself. She said she “could hear
him from the bedroom, it wasn’t – I thought somebody was in there with him. And he told me he
was just talking to himself[.]” Petitioner’s fiancé testified that petitioner purchased a deer rifle
and that, at first, she was not concerned about this purchase or his purchase of ammunition.
However, she felt that his preparation “started, I think, it just got to the extreme. He said
something once that, . . . if it came down to it, . . . he would have to go and . . . defend the
country and . . . shoot Hilary [sic], if they needed him to.” At this point during the hearing,
petitioner interjected and clarified that he told her that he would defend the Constitution of the
United States, not that he would shoot Hillary Clinton.

       Petitioner testified on his own behalf. He testified to having recently purchased a new
gaming system that has technology that allows him to communicate with other gamers over a
headset. He also testified that certain clubs he mentioned joining were retail loyalty clubs for
Cabela’s and Books-A-Million.

       The Commissioner found that petitioner’s testimony explained some of the witnesses’
testimony but that “what’s going on goes beyond that. When I look at the totality of the
testimony, I think there’s something going on that needs to be addressed, and that needs to be
addressed psychiatrically.” Thus, the Commissioner entered her “Order: Probable Cause for
Involuntary Hospitalization.” It is from this order that petitioner appeals.

       This Court has held that “[f]indings of fact, whether based on oral or documentary
evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge the credibility of the witnesses.” W.Va. R. Civ. P. 52(a).
Furthermore,

       [a] finding is clearly erroneous when, although there is evidence to support the
       finding, the reviewing court on the entire evidence is left with the definite and
       firm conviction that a mistake has been committed. However, a reviewing court
       may not overturn a finding simply because it would have decided the case
       differently, and it must affirm a finding if the circuit court’s account of the
       evidence is plausible in light of the record viewed in its entirety.

Syl. Pt. 1, in part, In re: Tiffany Marie S., 196 W.Va. 223, 225, 470 S.E.2d 177, 179 (1996).
Finally, “[a]n appellate court may not decide the credibility of witnesses or weigh evidence as
that is the exclusive function and task of the trier of fact.” State v. Guthrie, 194 W.Va. 657, 669,
461 S.E.2d 163, 175 (1995).

        On appeal, petitioner argues that the Commissioner failed to consider all relevant and
reliable evidence prior to ruling that he was mentally ill, addicted, and a danger to himself.
“‘Mental illness’ means a manifestation in a person of significantly impaired capacity to
maintain acceptable levels of functioning in the areas of intellect, emotion and physical well­
being.” W.Va. Code § 27-1-2. Petitioner maintains that his diagnoses of alcohol use disorder,
cannabis use disorder, and noncompliance with treatment do not amount to significant
impairment. He also argues that simply being charged with driving under the influence does not

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amount to an addiction.

       “Addiction” is defined as

       a maladaptive pattern of substance use leading to clinically significant impairment
       or distress as manifested by one or more of the following occurring within thirty
       days prior to the filing of the petition:

       (1)     Recurrent substance use resulting in a failure to fulfill major role
       obligations at work, school or home, including, but not limited to, repeated
       absences or poor work performance related to substance use; substance-related
       absences, suspensions or expulsions from school; or neglect of children or
       household;

       (2)    Recurrent use in situations in which it is physically hazardous, including,
       but not limited to, driving while intoxicated or operating a machine when
       impaired by substance use;

       (3)     Recurrent substance-related legal problems; or

       (4)     Continued use despite knowledge or having persistent or recurrent social
       or interpersonal problems caused or exacerbated by the effects of the substance.

Id. at § 27-1-11(a).

       Petitioner also contends that the evidence presented does not establish a likelihood of
causing harm. Under West Virginia Code § 27-1-12,

       “[l]ikely to cause serious harm” means an individual is exhibiting behaviors
       consistent with a medically recognized mental disorder or addiction, excluding,
       however, disorders that are manifested only through antisocial or illegal behavior
       and as a result of the mental disorder or addiction:

       (1)     The individual has inflicted or attempted to inflict bodily harm on another;

       (2)    The individual, by threat or action, has placed others in reasonable fear of
       physical harm to themselves;

       (3)     The individual, by action or inaction, presents a danger to himself, herself
       or others in his or her care;

       (4)    The individual has threatened or attempted suicide or serious bodily harm
       to himself or herself; or

       (5)    The individual is behaving in a manner as to indicate that he or she is
       unable, without supervision and the assistance of others, to satisfy his or her need

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       for nourishment, medical care, shelter or self-protection and safety so that there is
       a substantial likelihood that death, serious bodily injury, serious physical
       debilitation, serious mental debilitation or life-threatening disease will ensue
       unless adequate treatment is afforded.

         Here, the record reveals sufficient evidence for the findings that petitioner was mentally
ill, addicted, and likely to cause harm to himself or others. Mr. Merrill found as such and based
his conclusions on petitioner’s delusions, recent purchase of a firearm, discussions concerning
the “end of time,” and recent arrest for driving under the influence. Mr. Merrill concluded that
petitioner’s addiction and mental illnesses rendered petitioner unable to meet his needs for safety
and self-protection. Petitioner’s family members also testified to his delusions about being
recruited to work for President Trump, and they expressed concern over his recent firearm
purchase. Petitioner attempts to downplay this evidence by asserting that many Americans
purchased guns leading up to the 2016 election and experienced anxiety over the election. He
also argues that several of the clubs he mentioned having joined were retail loyalty clubs, and he
attributes the testimony concerning his delusions to his use of virtual reality on his new gaming
system. But the Commissioner weighed petitioner’s testimony against that of Mr. Merrill and
petitioner’s family members and found petitioner’s testimony to be less credible. As a result, we
find that the Commissioner’s findings concerning petitioner’s mental illness and likelihood of
causing harm were not clearly erroneous.

        Similarly, petitioner’s challenge to the Commissioner’s finding that he was addicted
ignores the evidence presented by Mr. Merrill and his family members that he drinks alcohol
daily, smokes cannabis six days per week, and has stopped going to work. Petitioner also ignores
the fact the he himself acknowledged his substance abuse issues. When asked whether alcohol or
any drug interferes with his life, petitioner responded, “Well, alcohol is going. I’m getting rid of
the alcohol. I’m done with it. I can’t do the same thing over and over, that’s insanity.” For these
reasons, the Commissioner’s findings of addiction and likelihood of causing harm were not
clearly erroneous.

        For the foregoing reasons, we affirm the Commissioner’s November 10, 2016, order
committing petitioner to a psychiatric hospital upon a finding of probable cause that he was
likely to harm himself or others.

                                                                                         Affirmed.

ISSUED: September 25, 2017


CONCURRED IN BY:

Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker

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