                   IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1270
                             Filed October 12, 2016


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

M.S.,
Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Johnson County, Mitchell E.

Turner, Judge.



      M.S. appeals a district court ruling continuing his involuntary commitment

to a residential care facility. AFFIRMED.




      Willie E. Townsend, Coralville, for appellant.

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

Attorney General, for appellee State.



      Considered by Danilson, C.J., and Vaitheswaran and Tabor, JJ.
                                          2


VAITHESWARAN, Judge.

       M.S. was involuntarily hospitalized and subsequently placed at a

residential facility. In time, he asked to be released from the facility. The district

court scheduled the matter for a placement hearing and, following the hearing,

denied the request “for a less restrictive placement.”

       On appeal, M.S. argues (1) “the trial court erred by conducting the hearing

as if it were a placement hearing rather than a writ of habeas corpus and as such

[he] was denied certain constitutional safeguards,” (2) the district court

impermissibly considered information he could not rebut, and (3) the evidence

was insufficient to find him seriously mentally impaired. The State counters with

the following arguments in favor of affirmance: (1) the placement order was not a

final order subject to appeal, (2) the parties stipulated that the hearing was a

placement hearing and, “[h]ad counsel believed otherwise, a different hearing

could have ensued,” (3) a habeas corpus petition filed and heard while this

appeal was pending renders the appeal moot, and (4) the record contains

sufficient evidence to support a finding of a serious mental impairment. We will

begin with the State’s first three arguments.

       The State seems to suggest M.S. could not appeal the placement order

because there is no statutory provision authorizing an appeal.1 But the State

concedes that this court has reviewed the merits of district court placement

orders under the auspices of Iowa Code section 229.37 (2015), which affords

committed persons the right to seek habeas corpus relief. See In re S.M., No.

1
  Iowa Code section 229.17 suggests a placement order may be appealed. It states in
part, “If a respondent appeals to the supreme court regarding a placement order, the
respondent shall remain in placement unless the supreme court orders otherwise.”
                                         3


12-1983, 2014 WL 69773, at *2 (Iowa Ct. App. Jan. 9, 2014) (“S.M.’s request for

a placement hearing could be treated as a petition for a writ of habeas corpus

under section 229.37.”); In re B.T.G., 784 N.W.2d 792, 796 (Iowa Ct. App. 2010)

(“[A]n application requesting to be released from inpatient treatment should be

treated as a petition for a writ of habeas corpus.”). The State also concedes we

may construe placement hearings as habeas corpus hearings. See B.T.G., 784

N.W.2d at 796. For purposes of review, then, it matters little that the parties and

the court styled the hearing as a placement hearing.

       The State next asserts “[t]he question of habeas relief is moot” because

M.S. filed a petition for writ of habeas corpus while this appeal was pending and

obtained an evidentiary hearing and ruling on the petition. See In re B.B., 826

N.W.2d 425, 428 (Iowa 2013) (“Ordinarily, an appeal is moot if the ‘issue

becomes nonexistent or academic and, consequently, no longer involves a

justiciable controversy.’” (citation omitted)).   In its view, “[a]ny injury for not

construing the [earlier] hearing as a habeas hearing was remedied by holding a

habeas hearing.”

       As a preliminary matter, we note the State may rely on facts outside the

record to support its mootness argument. See In re L.H., 480 N.W.2d 43, 45

(Iowa 1992). But those facts do not assist the State.

       Iowa Code section 229.37, authorizing habeas corpus relief, states, “If the

judge shall decide that the person is seriously mentally impaired, such decision

shall be no bar to the issuing of the writ a second time, whenever it shall be

alleged that such person is no longer seriously mentally impaired.” The provision

gives the committed person more than one bite at the apple in seeking release
                                        4


from commitment.     The habeas corpus hearing during the pendency of the

appeal was not a “do over” hearing to correct errors in the earlier hearing but an

entirely new hearing based on new facts. See Brandon v. Iowa Dist. Ct., No. 07-

1459, 2011 WL 6270699, at *5 (Iowa Ct. App. Dec. 16, 2011) (“We determine

that the ‘do over’ administrative rehearing renders moot Brandon’s due process

claims . . . .”). M.S. had a justiciable controversy at the time of his placement

hearing and a new and distinct justiciable controversy at the time of his habeas

corpus hearing. The district court’s habeas decision relied on facts occurring just

a week before the habeas hearing, underscoring that the second hearing was not

a substitute for the first. We conclude the second hearing did not render the first

one moot.

      Having resolved the State’s first three arguments, we turn to M.S.’s

arguments and the State’s response to his sufficiency-of-the-evidence challenge.

First, we will treat the order from which he appealed as an application for writ of

habeas corpus, and we will review the merits. Second, we decline to find error in

the court’s admission of written reports on the ground the authors were

unavailable for cross-examination because M.S. stipulated to the admission of

those reports.

      We are left with M.S.’s challenge to the sufficiency of the evidence

supporting the finding of a serious mental impairment.          The definition of

“seriously mentally impaired” contains three elements: (1) mental illness, (2) lack

of sufficient judgment, and (3) dangerousness as reflected by one of three

specified criteria. See Iowa Code § 229.1(17); In re Oseing, 296 N.W.2d 797,

799 (Iowa 1980); accord B.B., 826 N.W.2d at 432.            The record contains
                                         5

substantial evidence to support these elements. See B.B., 826 N.W.2d at 432

(setting forth standard of review).

       The district court found that M.S. was diagnosed with “[m]ajor

[n]eurocognitive [d]isorder”; “was often uncooperative” and did not “demonstrate[]

that he ha[d] the skills to care for himself”; possessed a misplaced belief that “the

more uncooperative and disruptive he [was,] the greater the chance . . . that he

[would] be placed in a less restrictive environment or [be] given the opportunity to

try to live independently”; and had “long-standing verbal and physical aggression,

with a long-standing and current history of problems with impulse control,

judgment, and general behavioral organization.”

       Reports admitted by stipulation supported these findings.               They

documented M.S.’s mental health diagnosis and specific impairments, recounted

a physician’s opinion that M.S. required “placement in a facility where he can

receive close, round-the-clock supervision and assistance,” and described “the

limited options” available to him if he left the existing facility. They listed dates

and approximate times of specific acts of aggression, including three involving

the police. During one incident, M.S. threatened violence against a staff member

and hit an object out of her hand, resulting in a “long cut” on her body.

       These reports amount to substantial evidence in support of the district

court’s findings of a serious mental impairment.        Accordingly, we affirm the

district court order denying M.S.’s request for a less-restrictive placement. We

decline to consider the merits of the post-appeal habeas corpus decision

because M.S. did not appeal from the final order in that proceeding.

       AFFIRMED.
