                                                                                      April 13 2010


                                     DA 09-0560

            IN THE SUPREME COURT OF THE STATE OF MONTANA

                                     2010 MT 76



IN THE MATTER OF THE MENTAL HEALTH OF:

L.R.,

         Respondent and Appellant.




APPEAL FROM:      District Court of the Third Judicial District,
                  In and For the County of Powell, Cause No. DI 09-04
                  Honorable Ray J. Dayton, Presiding Judge



COUNSEL OF RECORD:

           For Appellant:

                  Elizabeth Cunningham Thomas, Attorney at Law, Missoula, Montana

           For Appellee:

                  Hon. Steve Bullock, Montana Attorney General; C. Mark Fowler, Assistant
                  Attorney General; Helena, Montana

                  Lewis K. Smith, Powell County Attorney, Deer Lodge, Montana



                                              Submitted on Briefs: March 3, 2010

                                                         Decided: April 13, 2010




Filed:

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

¶1     The Third Judicial District Court, Powell County, ordered L.R. involuntarily

committed for ninety days after she was held in an emergency detention. L.R. raises the

following issues on appeal:

¶2     Issue 1: Were L.R.’s statutory rights violated when she was involuntarily medicated

prior to her initial appearance?

¶3     Issue 2: Did the District Court’s findings of fact lack sufficient detail as required by

§ 53-21-127(8)(a), MCA?

¶4     Issue 3: Did the District Court err in committing L.R. because she could not provide

for her own basic needs without clear and convincing evidence?

                                     BACKGROUND

¶5     L.R.’s involuntary commitment arises out of a series of interactions with authorities in

August 2009. On August 3, the Powell County sheriff’s office responded to a call from

L.R.’s daughter stating that L.R. was lying in the yard and not moving. When they arrived,

L.R. was fine. Two days later, Undersheriff Mike Grey responded to a 911 call from L.R.

who reported a tree was on fire. When he arrived, no tree was on fire. The next day, Grey

responded to the Town Pump station where L.R. had taken a pack of cigarettes. Before Grey

took L.R. into custody, L.R. attempted to flush some of her clothes down the toilet. L.R.

resisted arrest and referred to Grey as the devil and the President of the United States.

¶6     Rick Wagner, a mental health professional, evaluated L.R. when she arrived at the

jail. He recommended an emergency detention for L.R. at the Montana State Hospital

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because she could not make reasonable and safe decisions for herself. The Montana State

Hospital admitted L.R. on the evening of August 6 and medicated her involuntarily that

evening and the next day. L.R. was reported as being aggressive, intrusive, and volatile

during her emergency detention. On August 7, the State filed a Petition for Involuntary

Commitment and she attended her initial appearance later that day.

¶7     Prior to her hearing on the petition, L.R. was evaluated by a certified mental health

professional, G. Michael Sawicki. Sawicki concluded that L.R. exhibited a hypomanic

bipolar disorder, manifested argumentativeness, incessantly talked, and persistently spoke off

topic. He said L.R. resisted treatment, opposed medication, and denied her current mental

state. Although she was marginally able to provide for her basic needs, Sawicki opined that

it was foreseeable that within a week or two that her mania would worsen and she would be

unable to meet those needs. He concluded L.R. was a danger to herself or others and no

other less restrictive option than involuntary commitment would meet L.R.’s needs.

¶8     L.R.’s hearing before the District Court was held on August 11. L.R. was present

with her attorney and a court-appointed friend. After hearing testimony from Sawicki and

Grey, the District Court determined that L.R.’s bipolar disorder led to her being substantially

unable to provide for her basic needs and issued an order committing her to the Montana

State Hospital for ninety days with authorization to administer medication.

¶9     On appeal, L.R. claims her statutory rights were violated because she was

administered medication involuntarily prior to her initial appearance. She also contends that

the District Court findings lacked sufficient detail to support a finding of commitment and, in
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the alternative, that the court relied on insufficient evidence to determine she should be

involuntarily committed.

¶10    The State responds that § 53-21-129, MCA, applies to L.R.’s case and allows a

medical health professional to treat a person with medication who is being detained in an

emergency. It also asserts that the court’s findings that L.R. had a mental disorder and was

substantially unable to provide for her own basic needs of food, clothing, shelter, health, or

safety were specific and supported by substantial credible evidence.

                               STANDARD OF REVIEW

¶11    We review whether a district court met statutory requirements de novo because such

review is a question of law. In re Mental Health of E.P.B., 2007 MT 224, ¶ 5, 339 Mont.

107, 168 P.3d 662.

¶12    We review a trial court’s findings of fact in a mental health commitment as to whether

they are clearly erroneous. A district court’s findings are clearly erroneous if substantial

credible evidence does not support them, if the district court has misapprehended the effect

of the evidence or if a review of the record leaves this Court with the definite and firm

conviction that a mistake has been committed. Additionally, evidence is viewed in the light

most favorable to the prevailing party when determining whether substantial credible

evidence supports a district court’s findings. In re Mental Health of A.S.B., 2008 MT 82,

¶¶ 16-17, 342 Mont. 169, 180 P.3d 625.

                                      DISCUSSION



                                              4
¶13    Issue 1: Were L.R.’s statutory rights violated when she was involuntarily medicated

prior to her initial appearance?

¶14    L.R. claims her statutory rights were violated because she was administered

medication involuntarily prior to her initial appearance and she has the right to refuse

medication 24 hours before a hearing under § 53-21-115(11), MCA. The State responds that

L.R. was detained in an emergency situation, thus § 53-21-129(2), MCA, applies, and the

medication was part of the treatment and administered appropriately.

¶15    District courts must strictly adhere to statutes in involuntary commitment cases

because they involve a loss of liberty. In re J.D.L., 2008 MT 445, ¶ 8, 348 Mont. 1, 199 P.3d

805. Section 53-21-115, MCA, enumerates certain rights for any person who is involuntarily

detained or has a petition for commitment filed against them. Among those rights is the right

to refuse non-lifesaving medication for up to 24 hours before any hearing. Section 53-21-

115(11), MCA. On the other hand, a peace officer may take a person who appears to have a

mental disorder into custody for an evaluation by a professional if he believes them to be a

danger to themselves or others. Section 53-21-129(1), MCA. If the professional agrees that

the person in custody poses a danger and an emergency situation exists, “then the person

may be detained and treated until the next regular business day.” Section 53-21-129(2),

MCA. At that time, the professional either releases the detained person or files findings with

the county attorney who, if probable cause exists, files a petition for commitment. Id.

¶16    These statutes are inconsistent because treatment for a person in an emergency

situation under § 53-21-129(2), MCA, may include medication, and the time period for such
                                              5
treatment could overlap with the 24 hour period a person may refuse medication under § 53-

21-115(11), MCA. “[W]hen a general statute and a specific statute are inconsistent, the

specific statute governs, so that a specific legislative directive will control over an

inconsistent general provision.” Mercury Marine v. Monty’s Enterprises, Inc., 270 Mont.

413, 418, 892 P.2d 568, 571 (1995). Thus, because § 53-21-115(11), MCA, applies to all

petitions for involuntary commitment and § 53-21-129, MCA, more specifically applies to

emergency situations in which a petition may be filed, we conclude that § 53-21-129, MCA,

applies to L.R.’s initial detention.

¶17    Here, a mental health professional determined that an emergency situation existed and

recommended L.R. be detained. According to § 53-21-129(2), MCA, the Montana State

Hospital was permitted to treat L.R. until the next business day. The mental health

professionals determined that medication was an appropriate treatment under these

circumstances, and we will not second-guess their professional judgment. Because the

medication was administered before the next business day, L.R.’s rights were not violated.

¶18    Issue 2: Did the District Court’s findings of fact lack sufficient detail and substantial

evidence to support a finding of commitment?

¶19    L.R. contends that the District Court’s findings lacked sufficient detail to support a

finding of commitment under § 53-21-127(8)(a), MCA. She asserts that the District Court’s

findings are similar to In re E.P.B., ¶ 13, where we held that the court’s detailed statement

under § 52-21-127(8)(a), MCA, was not specific enough to support a commitment.



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¶20    If the district court determines after a petition for involuntary commitment hearing

that commitment is necessary under § 53-21-126, MCA, it must make detailed findings of

fact that are enumerated in § 53-21-127(8)(a)-(h), MCA. L.R. specifically complains that the

District Court did not make “a detailed statement of the facts upon which the court found the

respondent to be suffering from a mental disorder and requiring commitment.” Section 53-

21-127(8)(a), MCA.

¶21    Based on the testimony of Sawicki and Grey, the District Court made the following

findings of fact:

       1. That [L.R.] suffers from mental illness identified as a bi-polar disorder in a
       [sic] acute manic phase.

       2. That [L.R.]’s mental illness is serious in that it renders her unable to make
       rational decisions or to care for or protect herself, and in that regard the Court
       finds that she is substantially unable to care for herself by reason of her mental
       illness. She also has paranoid and grandiose thoughts and refuses to take her
       medications. She has shown she has extreme religious ideation, and is
       suspicious of those who are trying to help her.

Based on these findings, the court made its appropriate conclusions of law and ordered

L.R. committed to the Montana State Hospital and authorized involuntary medications.

¶22    In re E.P.B. is distinguishable from this case. Reading from an order prepared by the

State before the hearing, the court simply reiterated that “Fisher, the professional person . . .

testified that . . . the Respondent suffers from a mental disorder requiring commitment . . . .”

In re E.P.B., ¶ 10. Based on this finding, the court concluded that E.P.B. “presently suffers

from a serious mental illness requiring commitment . . . .” Id.



                                               7
¶23    In this case, the District Court found L.R. was paranoid, had grandiose thoughts,

showed extreme religious ideation, and was suspicious of those trying to help her. These

facts supported the court’s finding that L.R. suffered from a bipolar disorder in an acute

manic phase. The District Court’s finding regarding L.R.’s mental illness satisfies § 53-21-

127(8)(a), MCA.

¶24    Issue 3: Did the District Court err in committing L.R. because she could not provide

for her own basic needs without clear and convincing evidence?

¶25    L.R. contends that the evidence supporting the District Court’s conclusion that she

was unable to provide for her needs was not clear and convincing. Specifically, L.R. asserts

that the witnesses who testified at the hearing did not provide specific details about why she

could not provide for her own basic needs of food, clothing, shelter, health, or safety.

¶26    The District Court must make two determinations before committing an individual

pursuant to a petition for an involuntary commitment. First, the District Court must decide

that the respondent is suffering from a mental disorder. Section 53-21-126(1), MCA. This

determination must be proved to a reasonable medical certainty. Section 53-21-126(2),

MCA. Second, if the District Court determined the individual suffers from a mental

disorder, it must determine if that individual requires commitment. Section 53-21-126(1),

MCA. To determine whether the respondent requires commitment, the court must consider

a number of things, one of which is whether the respondent, because of a mental disorder, is

substantially unable to provide for her own basic needs of food, clothing, shelter, health, or

safety. Section 53-21-126(1)(a), MCA. The standard of proof for this determination is
                                              8
bifurcated. With respect to any physical facts or evidence, the standard is beyond a

reasonable doubt. All other matters must be proven by clear and convincing evidence.

Section 53-21-126(2), MCA.

¶27      The District Court found that L.R. was “unable to make rational decisions to care for

or protect herself, and in that regard the Court finds that she is substantially unable to care

for herself by reason of her mental illness.” The court then concluded that clear and

convincing evidence showed that L.R. was substantially unable to provide for her own basic

needs.

¶28      Sawicki, the mental health professional, testified that L.R.’s illness led her to believe

she did not need medication, did not suffer from a mental illness, and did not need any

treatment. Sawicki further opined that, while she was marginally able to provide for her

basic needs at the present time, it was foreseeable that her mental illness would deteriorate

until something dangerous happened and she would not be able to provide for any of her

basic needs. In addition to Sawicki’s testimony, Wagner’s report stated that L.R. was

“unable to make reasonable and safe decisions for herself.”

¶29      We conclude that clear and convincing evidence supports the District Court’s

determination that L.R. should be committed because she could not provide for her own

basic needs.

                                        CONCLUSION

¶30      L.R.’s statutory rights under § 53-21-115(11), MCA, were not violated because she

was detained in an emergency situation, thus § 53-21-129, MCA, applied and the medication
                                                 9
was administered appropriately. In addition, the District Court’s findings of fact provided

sufficient detail to satisfy the requirements of § 53-21-127(8)(a), MCA. Finally, clear and

convincing evidence supported the court’s determination that L.R. could not provide for her

own basic needs.

¶31    Affirmed.

                                          /S/ MICHAEL E WHEAT


We Concur:

/S/ MIKE McGRATH
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
/S/ JIM RICE




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