                       IN THE COURT OF APPEALS OF IOWA

                                    No. 14-0989
                             Filed November 25, 2015

IN THE MATTER OF L.E.B.,
ALLEGED TO BE SERIOUSLY
MENTALLY IMPAIRED,

L.E.B.,
       Respondent-Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Woodbury County, John D.

Ackerman, Judge.



       L.B. appeals the district court ruling he is seriously mentally impaired and

a person with a substance-related disorder.      REVERSED AND REMANDED

WITH DIRECTIONS.



       Zachary S. Hindman of Bikakis, Mayne, Arneson, Hindman & Hisey, Sioux

City, for appellant.

       Thomas J. Miller, Attorney General, and Gretchen Witte Kraemer,

Assistant Attorney General, for appellee.



       Considered by Tabor, P.J., and Bower and McDonald, JJ.
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MCDONALD, Judge.

       L.B. challenges civil commitment orders issued pursuant to Iowa Code

chapters 125 and 229 (2013). On appeal, L.B. claims the applicant failed to

prove the grounds for civil commitment by clear and convincing evidence and he

was denied due process.

                                           I.

       In June 2014, L.B. was involuntarily detained at a Sioux City hospital

based on two separate applications filed by L.B.’s mother: the first alleging L.B.

was a person with a substance-related disorder, as defined in Iowa Code chapter

125; and the second alleging L.B. was seriously mentally impaired, as defined in

Iowa Code chapter 229. The applications were supported by affidavits filed by

C.B. (while not explicitly stated, the record supports the fact this is L.B.’s sister).

       Dr. Lindahl met with L.B. on several occasions. Dr. Lindahl approved and

signed two physician’s reports based on notes of her meetings with L.B. The

physician’s report regarding substance abuse stated L.B. “has very limited insight

into his addiction and has self-reported he may not remain sober. . . . Patient

has impaired judgment by his chronic substance abuse. Patient lacks insight into

his addiction severity.” The report listed diagnoses of substance abuse mood

disorder, alcohol dependence, and methamphetamine dependence. It also noted

L.B. was a danger to himself and others while he continued to abuse substances.

The second physician’s report addressed L.B.’s mental health. It noted L.B.

“exhibits paranoia and is quite guarded.          Patient has history of aggression
                                           3



towards others. Patient reports racing thoughts.” The report offered a diagnosis

of depression not otherwise specified.

       On June 10, 2014, a commitment hearing was held and the physician

reports of Dr. Lindahl were entered into evidence without objection. Dr. Lindahl

testified she met with L.B. three times.        She noted L.B. tested positive for

marijuana. Dr. Lindahl observed L.B. acted “very irritable, he was very angry,

quite agitated with the situation at hand, and I believe his family and the police

officers.” L.B. had attended substance abuse treatment in the past, but had a

history of not following through with the recommended treatment. Dr. Lindahl

recommended that L.B. attend both substance abuse and mental health

treatment. Upon questioning by the court, Dr. Lindahl acknowledged a social

worker filled out the physician report regarding substance abuse, but the

recommendations in the report were her own. L.B. testified at the hearing. He

admitted telling Dr. Lindahl about his alcohol use, but he denied he drank every

day.   He admitted he had previously participated in outpatient treatment at

Jackson Recovery but concluded it was a “money pit” and subsequently stopped

attending. He admitted to having “racing thoughts.” He also admitted to calling

his sister from jail after he was arrested for drunk driving.

       The district court found L.B. to be seriously mentally impaired, and if

allowed to remain at liberty, likely to inflict injury on himself or others, or likely to

inflict serious emotional injury on others. The court ordered L.B. to outpatient

treatment. The court found L.B. was a person with a substance-related disorder

and ordered outpatient substance abuse treatment.
                                         4



                                         II.

       Involuntary civil commitments are special actions tried to the court as an

action at law. See In re Oseing, 296 N.W.2d 797, 800–01 (Iowa 1980). We

review the decision of the district court for errors at law. See Iowa R. App. P.

6.907. We are bound by the findings of the district court so long as they are

supported by substantial evidence. See In re J.P., 574 N.W.2d 340, 342 (Iowa

1998). If a reasonable fact-finder could conclude the findings were supported by

clear and convincing evidence, the evidence is substantial. Id.

       In Iowa, an interested person may initiate proceedings “for the involuntary

commitment or treatment of a person with a substance-related disorder . . . or for

the involuntary hospitalization of a person pursuant to chapter 229 [regarding

persons with a serious mental impairment] . . . by filing a verified application with

the clerk of the district court.” Iowa Code § 125.75. The applicant carries a

heavy burden of proof in establishing commitment is necessary. See Iowa Code

§§ 125.82(4), 229.12(3)(a). “[A] presumption in favor of the respondent” exists.

See Iowa Code §§ 125.82(4), 229.12(3)(a). The applicant can overcome the

presumption only with clear and convincing evidence “the respondent is a person

with a substance-related disorder” or serious mental impairment.          See Iowa

Code §§ 125.82(4), 229.12(3)(c).

       Civil commitment constitutes a significant deprivation of personal liberty.

See In re S.P., 719 N.W.2d 535, 537 (Iowa 2006). The deprivation of liberty can

be justified only by an additional showing of dangerousness. The applicant thus
                                         5



must establish by clear and convincing evidence the respondent presents a

danger to himself or others if allowed to remain at liberty.       See Iowa Code

§§ 125.75(2)(a) (stating the applicant must believe “the respondent is a person

who presents a danger to self or others”); 125.81(1) (requiring “probable cause to

believe that the respondent . . . is likely to injure the person or other persons if

allowed to remain at liberty”); 229.1(17) (defining “serious mental impairment” to

include danger to self or others); see also In re E.J.H., 493 N.W.2d 841, 843

(Iowa 1992) (stating there is “no constitutional basis for confining such persons

involuntarily if they are dangerous to no one and can live safely in freedom”);

B.A.A. v. Chief Medical Officer, Univ. of Iowa Hosps., 421 N.W.2d 118, 123-24

(Iowa 1988) (“Thus, the state can no longer commit an individual solely because

treatment is in the person’s best interest under the parens patriae doctrine.

There must also be a likelihood that the individual constitutes a danger to himself

or others . . . In addition, this danger must be evidenced by a recent overt act,

attempt, or threat.”) (citation and internal marks omitted); In re D.K., No. 14-1403,

2015 WL 3624391, at *2 (Iowa Ct. App. Jun. 10, 2015) (holding chapter 125

“incorporates a dangerousness requirement” as a prerequisite to commitment).

       Determining whether a respondent poses a risk of danger “requires a

predictive judgment, based on prior manifestations, but nevertheless ultimately

grounded on future rather than past danger.”         Oseing, 296 N.W.2d at 801

(citation and internal marks omitted). The danger a person poses to himself or

others must be evidenced by a “recent overt act, attempt or threat.” See J.P.,
                                            6



574 N.W.2d at 344. Behavior that is socially unacceptable, standing alone, does

not satisfy the overt act requirement. See In re Mohr, 383 N.W.2d 539, 542

(Iowa 1986). Rather, an “overt act” implies past aggressive behavior or threats

that manifest in the probable commission of a dangerous act upon the

respondent himself or others.       In re Foster, 426 N.W.2d 374, 378–79 (Iowa

1988). “Stringent proof under the dangerousness standard is necessary because

predicting dangerousness is difficult and, at best, speculative.” Id. at 377-78.

       There is not clear and convincing evidence of a recent, overt act

demonstrating L.B. is likely to commit a dangerous act upon himself or others. At

the time of his detention at the hospital, L.B. tested positive for cannabinoids. He

did not test positive for any other substance, including methamphetamine,

barbiturates, benzodiazepines, cocaine, or opiates. At the time of his detention,

L.B. was sober; his blood alcohol content indicated none. Dr. Lindahl testified

L.B. initially presented as irritable with the “situation at hand,” i.e., he was irritable

at being detained, which seems understandable. Dr. Lindahl when on to testify

that other than L.B.’s irritability with the “situation at hand,” L.B. was “pleasant

and talkative with [her].” Dr. Lindahl did testify “when [L.B.] is grossly intoxicated,

he says things that he does not mean in a threatening manner.”                   That is

insufficient to establish an “overt act.” Foster, 426 N.W.2d at 378–79 (holding

verbalized delusions do not constitute the type of overt act necessary to establish

dangerousness). Dr. Lindahl did not testify L.B. actually made any threats, only

that he “says things he does not mean in a threatening manner.” There is thus
                                        7



no evidence of any threat. Even if this testimony could be construed to mean

L.B. made threats, there is no evidence showing when the alleged threats were

made. There is thus no evidence of recentness. There is also no evidence

regarding the nature of the threats, whether they were threats of physical harm to

himself or others or threats of some other type of action.      There is thus no

evidence of dangerousness. See id. (“We reject the applicant’s argument that

the overt act itself need not necessarily involve a threat or an act of unprovoked

physical aggression on the part of the respondent. Such an approach would tend

to increase the incidence of error in predicting dangerousness, thus

compounding the problem of uncertainty in this area.”).      Further, Dr. Lindahl

testified L.B. does not mean the things he says. There is thus no evidence of

threats that manifest in “the probable commission of a dangerous act upon” the

respondent himself or others. See id. at 378.

      The written materials provide no greater support for the detention of L.B.

While the person who completed the preprinted physician’s report wrote “yes” in

response to a question regarding dangerousness, the person completing the

report did not provide any information supporting the conclusion.         This is

insufficient information to establish dangerousness.    See Iowa Ct. Rs. 12.13

(providing the physician’s report “shall contain” the “physician’s diagnosis and

recommendations with a detailed statement of the facts, symptoms and overt

acts observed or described to the physician”); Iowa Court R. 13.13 (providing the

physician’s report shall contain “a detailed statement of the observations of
                                         8



medical history which led to the diagnosis”); In re S.L., Nos. 9-473, 98-6328,

1999 WL 975740, at *2-3 (Iowa Ct. App. Oct. 27, 1999) (reversing commitment

where physician’s report “provided no facts” supporting conclusion). Similarly,

the family members’ respective affidavits lack clear and convincing evidence of a

recent, overt act demonstrating L.B. presents a danger to himself or others as

required by chapters 125 and 229.

      In addition to challenging the sufficiency of the evidence, L.B. contends

the admission into evidence of the application and affidavits in support of his

commitment violated his due process rights. L.B.’s due process claim is not

preserved for our appellate review. “‘It is a fundamental doctrine of appellate

review that issues must ordinarily be both raised and decided by the district court

before we will decide them on appeal.’” Lamasters v. State, 821 N.W.2d 856,

862 (Iowa 2012) (quoting Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002)).

Our error preservation rules apply with equal force to constitutional issues. See

Taft v. Iowa Dist. Ct., 828 N.W.2d 309, 322 (Iowa 2013) (“Even issues implicating

constitutional rights must be presented to and ruled upon by the district court in

order to preserve error for appeal.”). L.B.’s counsel objected to the admission of

the affidavits as hearsay. The court overruled the objection. However, L.B.’s

counsel did not raise the violation of L.B.’s due process rights. Therefore L.B.’s

due process claim is not preserved.

                                        III.

      We conclude there is not clear and convincing evidence establishing L.B.

poses a probable risk of danger to himself or others as evidence by a recent
                                        9



overt act. We reverse the district court’s involuntary commitment orders and

remand this case to the district court with directions to terminate L.B.’s

commitment.

      REVERSED AND REMANDED WITH DIRECTIONS.

      Tabor, P.J., concurs; Bower, J., dissents.
                                        10



BOWER, Judge. (dissenting)

       I respectfully dissent. The majority cites the law correctly and there is no

need to add to that discussion. However, I do find other facts and circumstances

demonstrating there is clear and convincing evidence to affirm the district court.

Regarding the substance-related disorder, the respondent self reported (to the

treating physician) he drinks a six pack of tall boys and two-thirds of a liter of

bourbon every day. The respondent, at the time of his initial commitment, was

belligerent and threatened both his family and law enforcement. The fact the

respondent drinks every day, drives a vehicle after drinking, and drunkenly calls

his sister from various venues persuades me the respondent suffers from a

substance-related disorder.    I am also convinced the actions the respondent

displayed show a recent dangerous act.

       I also find clear and convincing evidence supports the district court’s

finding that the respondent is seriously mentally impaired. The respondent was

prescribed Remeron (a potent drug used to treat major depressive disorders) as

a result of his commitment. The evidence shows the respondent regularly drank

exorbitant amounts of alcohol to self-medicate. The respondent was previously

committed for being suicidal, and the affidavit of M.W., presumably the

respondent’s mother, stated the respondent was crying and made statements

that prompted her to believe the respondent was once again suicidal. I would

also note, the respondent testified and admitted he suffers from depression, but

that he “[n]ever had this kind of depression before.”
                                        11



       After being seen by the treating physician three times when first admitted,

the statements attributed to him by the physician, and the evidence provided by

his mother, his sister, and his own testimony, I find present clear and convincing

evidence to support both orders and I would affirm the district court.
