                                                                                          02/14/2017


                                     DA 15-0751
                                                                                      Case Number: DA 15-0751

            IN THE SUPREME COURT OF THE STATE OF MONTANA

                                     2017 MT 28N



IN THE MATTER OF:

J.S.,

         Respondent and Appellant.



APPEAL FROM:      District Court of the Thirteenth Judicial District,
                  In and For the County of Yellowstone, Cause No. DI 11-71
                  Honorable Michael G. Moses, Presiding Judge


COUNSEL OF RECORD:

           For Appellant:

                  Carolynn M. Fagan, Fagan Law Office, P.C., Missoula, Montana

           For Appellee:

                  Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
                  Attorney General, Helena, Montana

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



                                              Submitted on Briefs: January 4, 2017

                                                         Decided: February 14, 2017


Filed:

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


¶1     Pursuant to Section I, Paragraph 3(c), 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     J.S. has a history of mental illness. Between October 2011 and May 2012, in

response to petitions by the Yellowstone County Attorney’s office, J.S., a widowed

homeless person, was committed on two occasions to Montana State Hospital (MSH) for

evaluation and treatment. For both commitments, the medical documentation attached to

the petitions indicated that J.S. suffered from depression and was both suicidal and

homicidal.

¶3     On November 10, 2015, the Yellowstone County Attorney filed another petition to

commit J.S involuntarily. Following a hearing on November 16, 2015, at which J.S. and

his Billings Clinic physician testified, the District Court found that J.S. suffered from

bipolar disorder, post-traumatic stress disorder, anti-social personality disorder, and

possibly schizoaffective disorder. J.S. does not dispute his diagnosis nor the severity of

his mental condition. The court further found, based upon the testimony of the Billings

Clinic treating physician, that upon presenting himself at the Clinic, J.S. “was suicidal,

homicidal, psychotic, hostile and threatening.”     The court noted that following his

admission to the Clinic, J.S. refused medications and remained “suicidal, homicidal,


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psychotic, hostile and threatening,” resulting in the Clinic requesting the Yellowstone

County Attorney to file a petition for commitment. In its November 16 order, the District

Court concluded that the requirements of § 53-21-126, MCA, had been met. The court

ordered J.S. to be committed to MSH for not more than three months of inpatient care,

forced medications, and long-term treatment.

¶4        J.S. was scheduled to be discharged from MSH on December 14, 2015, and on this

day, through counsel, J.S. filed a Notice of Appeal with this Court challenging the

District Court’s November 16 Findings of Fact, Conclusions of Law and Order. We

affirm.

¶5        J.S. argues on appeal that the State failed to prove beyond a reasonable doubt that

he posed an imminent threat to himself or others. He claims that the “vague statements”

he made to the physicians about hurting himself and others were insufficient to satisfy the

requirements of § 53-21-126(2), MCA. The State counters that the District Court’s

findings of fact upon which it granted the petition for commitment were supported by

substantial evidence and are not clearly erroneous.

¶6        We review a district court’s civil commitment order to determine whether the

court’s findings of fact are clearly erroneous and its conclusions of law correct. In re

C.V., 2016 MT 307, ¶ 15, 385 Mont. 429, 384 P.3d 1048.

¶7        Section 53-21-126(2), MCA, requires “[i]mminent threat of self-inflicted injury or

injury to others” to be “proved by overt acts or omissions, sufficiently recent in time as to

be material and relevant as to the respondent’s present condition.”       In this case, J.S.’s

treating physician with the Billings Clinic submitted a written report stating that on

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November 9, 2015, J.S. presented himself to the emergency doctor at the Billings Clinic

stating that he felt like “he was going to go off on somebody,” and that he wanted to kill

security guards. He further claimed that he had thoughts of killing himself by jumping in

front of a train and that if he left the Clinic he “will be suicidal.”

¶8     These statements, made just seven days prior to commitment to MSH, and after

refusal of medications and continued symptoms of psychosis, hostility, and threatening

behavior, are sufficient in time and relevance to reflect J.S.’s condition at the time of

commitment. As we have stated previously, “[T]he law does not require proof beyond a

reasonable doubt that an injury will occur in the future. Threat is not certainty. The law

requires only proof beyond a reasonable doubt that the threat of future injury presently

exists and that the threat is imminent, that is, impending, likely to occur at any moment.”

In re S.L., 2014 MT 317, ¶ 31, 377 Mont. 223, 339 P.3d 73; In re B.D., 2015 MT 339,

¶ 11, 381 Mont. 505, 362 P.3d 636.

¶9     We acknowledge that, at his hearing, J.S. denied making such comments;

however, it is within the District Court’s broad discretion to determine the credibility of

witnesses and the weight to be afforded their testimony. M. R. Civ. P. 52(a); In re E.A.L.,

2015 MT 203, ¶ 11, 380 Mont. 129, 353 P.3d 1186. The court believed the physician’s

testimony was more credible than J.S.’s. There is substantial credible evidence to support

the District Court’s findings.

¶10    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. In the opinion



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of this Court, the District Court’s findings of fact are not clearly erroneous, its

conclusions were not incorrect, and its ruling was not an abuse of discretion.

¶11    Affirmed.


                                                 /S/ MICHAEL E WHEAT


We Concur:

/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE




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