                                No. 85-344
               IN THE SUPREME COTJRT OF THE STATE OF MONTANA
                                   1986




IN THE MATTER OF M.C.




APPEAL FROM:    District Court of the Thirteenth Judicial District,
                In and for the County of Yellowstone,
                The Honorable Diane G. Barz, Judge presiding.

COUNSEL OF RECORD:

       For Appellant:
                Terry L. Seiffert, Billings, Montana

       For Respondent:
                Harold F. Hanser, County Attorney, Billings, Montana




                                   Submitted on Briefs: Dec. 5, 1985
                                     Decided: March 25, 1986




                                   Clerk
Mr. Justice L. C. Gulbrand.son delivered the Opinion of the
Court.
         M.C.,    respondent below, appeals a Yellowstone County
                                            .

District Court order committing him to the Montana State
Hospital.        He contends that testimony regarding incidents
which occurred prior to an earlier hearing and regarding an
evaluation made after that earlier hearing should have been
excluded; that insufficient evidence supported his transfer
to the Montana State Hospital; and that his commitment should
he reversed because there was insufficient evidence to hold
him on an emergency basis.                We affirm the order committing
M.C.   and transferring him to the Montana State Hospital.
         On May 23, 1985, M.C. rode his bicycle head-on into an
automobile.         When     questioned         by    a   police    officer   who
responded to the call, M.C.                said that he had just had a
birthday, no one cared or remembered and that he was tired of
it all.         That afternoon he telephoned the Billings Mental
Health Center attempting to contact his counselor who was not
available.       M.C. told the secretary that he had a loaded gun
to his head and had just ridden his bicycle into a car.                       He
then hung up.       The police answered a second call on M.C. that
same day when he broke a door at his apartment complex.
       David Pierce, a psychiatric social worker at the mental
health center who was on emergency call that day, asked the
police     to    take M.C.     to    the    emergency       room of Billings
Deaconess Hospital.        At the hospital M.C. told Pierce that he
had a death wish and wanted to hurt himself.                       Although M.C.
cooperated       with   both   the    police         officers and     Pierce, a
psychiatrist       recommended       he    be    restrained    based     on   his
medical history.         Pierce wrote to the county attorney as a
result of his interview with M.C. and recommended that M.C.
be committed for treatment of his mental disorder and advised
the county attorney that M.C.                had been hospitalized on an
emergency hold basis by              the psychiatrist and at Pierce's
request.
        On May        24, 1985, a deputy county attorney filed a
petition for commitment in accordance with S 53-21-121, MCA.
The District Court found probable cause to hold M.C. and, at
the initial appearance on May 28, 1985, ordered an evaluation
of M.C.    in accordance with 5 53-21-123, MCA.
        On May        29, 1985, the District Court held               a    final
hearing.        The court denied M. C. ' s motions to dismiss and to
continue the proceedings.              The evidence presented at the
hearing     concerned       M.C.'s      history      of   threatenina       and
disruptive behavior toward             his    family; toward his fellow
students at Eastern Montana College; toward tenants in his
apartment complex; and toward fellow patients at Billings
Mental Health Center.           The county also presented evidence
that M.C. 's behavior posed a threat to himself.                  After the
commitment hearing, the parties stipulated to, and the court
ordered, a three-month commitment at the Billings Mental
Health Center or another mental health facility in Montana
with the agreement that M.C. would follow the recommendations
for outpatient treatment.
        When M.C.       informed Dr. Dohner of the Billings Mental
Health Center that he was to be released to the Center, Drs.
Dohner, Hague, Nunez and Harr agreed that such treatment
would     not    be    successful     nor    would   it   be   safe   to    the
community.       Based upon their opinions, Dr. Harr wrote to the
county attorney on May           31, 1985, two days following the
commitment order, and requested a hearing on the question of
transferring treatment of M.C.               from the Center to Montana
State Hospital.        This letter served as the basis for the
county    attorney's    motion   requesting a   hearing   on M.C.'s
transfer.     The District Court ordered a second hearing, held
on   June   5,   1985, at which     time evidence was      presented
concerning M.C.'s failure to cooperate with medical staff and
other patients at the Mental Health Center and the Center's
inability to closely monitor his medication.              Dr. Dohner
testified that Montana State Hospital would be the best place
for treating M.C.      The District Court ordered M.C.'s transfer
to the Montana State Hospital on June 6, 1985.
      M.C. presents three issues on his appeal:
         (1) Did the District Court err in denying his motions
in limine?
         (2) Did sufficient evidence support his transfer to
Montana State Hospital?
         (3) Did the District Court err in denying his motion
to dismiss?
      Between the initial commitment hearing and the transfer
hearing, M.C. filed two motions in limine, which the Dj-strict
Court denied.       The   first motion requested that, at the
transfer hearing,       the   State be   precluded   from eliciting
testimony based on an evaluation of M.C.             made after the
commitment hearing.       The second motion requested that the
State also be precluded from eliciting testimony on incidents
that occurred before the commitment hearing.           In the first
issue, M.C. challenges the denial of both motions.
      On the first motion, he contends that S S 53-21-101 et
seq., MCA, provides no authority for using evaluations made
after a final commitment hearing in a later transfer hearing.
On the second motion, he contends the order of commitment was
final as     to all events litigated at the          first hearing;
therefore, none      of     the   earlier events       should have        been
referred to at the transfer hearing.                Two statutes refer to
transfers     to   other     facilities      for    treatment.         Section
53-21-182, MCA, states:
            At any time during       the      patient's
            commitment, the court may,       on its own
            initiative or upon application of the
            professional person in charge of the
            patient, the -patient, his next of kin,
            his attorney, or the friend of respondent
            appointed by the court, order the patient
            to be placed in the care and custody of
            relatives or guardians or - be provided
                                         to
            outpatient      thera.py      or      other
            appropriate placement or treatment.
            (Emphasis added.)
Section 53-21-130, MCA, concerns the transfer of persons in
custody of the department of institutions for purposes other
than   treatment,     to    a     facility   where     they    can     receive
treatment.     It provides procedural safeguards for the person
who is being transferred to a more restrictive environment by
limiting     the   transfer       to   ten   days    unless     the     person
voluntarily    admits himself or the department follows the
involuntary commitment proceedings.            Section 53-21-182, MCA,
while it permits a c ~ u r t to transfer a patient receiving
treatment,     does not refer to any procedure for transfer and
section 52-21-130, MCA, sets out a transfer procedure only
for persons other than those receiving treatment.                      M.C.   v.
Department of Institutions (Mont. 1984), 683 P.2d                      956, 41
St.Rep. 1242.      Neither statute restricts what evidence may be
admissible when a transfer hearing is held.                Reason dictates
that any evidence admissible at a final commitment hearing
which is relevant to the transfer should be admissible at the
transfer hearing.          Such relevant evidence may include the
opinions     of    professional        persons,      and      "overt     acts,
sufficiently recent in time as to be material and relevant as
to     the      respondent's         present    condition."              Section
53-21-126(2), MCA.          Here, the professional person in charge
of M.C. asked that M.C. be placed at Montana State Hospital
rather than the Mental Health Center because M.C.                         was a
threat     to    himself     and    others.     Presumably        because     the
requested        transfer     would     be     to    a     more      restrictive
environment, the court granted a hearing on the request.                      At
that    hearing,     the     State    submitted      evidence     that   M.C.'s
previous treatment at the Center was unsuccessful; that he
had failed to cooperate with the other patients and medical
personnel at the Center; and that he had been found seriously
mentally     ill at the commitment hearing one week earlier.
Medical evaluations of M.C.              made by professional persons
other than the one appointed by the court would have been
admissible at the commitment hearing and are relevant to the
reason for the transfer request.               Thus, they are admissible
at a transfer hearing.            Similarly, evidence concerning recent
overt acts, relevant to whether Montana State Hospital was
the appropriate place              for treatment, is admissible at a
transfer hearing.           We hold that the District Court did not
err in denying M.C.'s motions to exclude evidence.
        In the second issue, M.C. argues that the evidence was
not    sufficient to warrant his transfer to Montana State
Hospital.       M.C. and his counsel stipulated to a commitment to
the Rillings Mental Health Center or "another mental health
facility in Montana" on May 29, 1985.                      The determinative
issue then is only whether Montana State Hospital was the
least restrictive environment, pursuant to                 §   53-21-120, MCA.
The    District     Court     heard     evidence      on    M.C.'s     lack   of
cooperation in the past in taking prescribed medications; the
Center's        inability    to      monitor   his       medication;     M.C.'s
explosive behavior which worsens when his medication is at
lower levels; and his general inability to cooperate in
treatment at the Center.        Finally, Dr. Dohner testified that
Montana State Hospital was the least restrictive environment
in which M.C.      could receive the care and supervision he
needs.     This evidence is sufficient to support the District
Court's action in committing M.C. to Montana State Hospital.
         The final issue concerns M.C.'s emergency detention at
Billings Deaconess Hospital on May           23, 1985, before the
District Court found him seriously mentally ill.          He contends
that under S 53-21-129, MCA, the peace officer makes the
initial decision on whether an emergency situation exists and
here the officer did not malce that decision.                  M.C.    also
contends the evidence was insufficient to hold him on an
emergency basis, relying on In Re Shennum (Mont. 1984) , 684


         Section 53-21-129, MCA, provides in part:
            (1) When an emergency situation exists,
            a peace officer may take any person who
            appears to be seriously mentally ill and
            as a result of serious mental illness to
            be a danger to others or to himself into
            custody only for sufficient time to
            contact   a   professional  person   for
            emergency evaluation.    If possible, a
            professional person should be called
            prior to taking the person into custody.
            (2) If the professional person agrees
            that the person detained appears to be
            seriously mentally ill and that an
            emergency   situation exists, then the
            person may be detained and treated until
            the next regular business day.              ..
            (Emphasis added.)
Subsection (1) merely permits the officer to take a person
into     custody   for   an   evaluation;   it   does   not,    as    M.C.
contends, give the officer the authority to decide whether
the person should be placed in emergency detention.                   Under
subsection (2), the professional person makes the decision on
whether the person appears to be seriously mentally ill and
should be placed in emergency detention.
       M.C.    argues that the evidence was not sufficient to
hold him on an emergency basis.           As noted above, if the
professional person determines that the person is seriously
mentally ill and an emergency situation exists, that person
may be detained.
              "Seriously mentally ill" means suffering
              from a mental disorder which has resulted
              in self-inflicted injury or injury to
              others or the imminent threat thereof or
              which has deprived the person afflicted
              of the ability to protect his life or
              health.   For this purpose, injury means
              physical injury ...
Section 53-21-102(14), MCA.        An emergency situation is "a
situation in which any person is in imminent danger of death
or serious bodily harm from the activity of a person who
appears to be seriously mentally ill."          Section 53-21-102(4),
MCA.   Imminent threat or danger is evidenced by "overt acts."
Section 53-21-126(2), MCA.      Overt acts includes behavior such
as a threat to take one's life, Matter of Goedert (1979), 180
Mont. 484, 487, 591 P.2d 222, 224; a threat to kill, Matter
of J.B.     (Mont. 1985), 705 P.2d 598, 602, 42 St-Rep. 13351
1340; and      verhal   abuse coupled with       aggressive physical
action such as being "armed" with a baseball bat, throwing
food and tearing sheets off a bed, Matter of F.B.               (Mont.
1980),    615 P.2d      867, 869, 37 St.Rep.      1442, 1445.     The
professional person here had adequate information to believe
that M.C.      was seriously mentally ill and that a emergency
situation      existed,    requiring   M.C.'s     detention.      M.C
telephoned the Mental Health Center and stated he had a
loaded gun pointed at his head and that he had just ridden a
bicycle into a car.        Shortly    afterward.^, he broke a door at
his      apartment    complex.     Later    that   day,     he   told   the
professional person he had a death w i s h and wanted to hurt
himself.       Finally, the professional person was aware of
M.C.'s    medical history.       Actual injury need not occur before
the statutory requirements are met.           Matter of J.B., 705 P.2d
at 602, 42 St.Rep. at 1340.         Unlike the situation in Shennum,
the record is not bare as to why the emergency detention
occurred.       The    evidence    here    supports   the    professional
person's      determination       that     M.C.    required      emergency
detention.     We hold that the District Court correctly denied
M.C.'~ motion to dismiss.
         M.C.'s detention and commitment are affi




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