                       IN THE COURT OF APPEALS OF IOWA

                                   No. 13-0872
                              Filed March 26, 2014


IN THE MATTER OF T.E.E.,
      Appellant,

Alleged to be Seriously Mentally Impaired.
________________________________________________________________


       Appeal from the Iowa District Court for Woodbury County, Duane E.

Hoffmeyer, Judge.




       T.E.E. appeals from a district court order requiring hospitalization due to

serious mental impairment. REVERSED.




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

City, for appellant.



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

Attorney General, Patrick Jennings, County Attorney, and Joshua Widman,

Assistant County Attorney, for appellee State.




       Considered by Potterfield, P.J., and Doyle and Bower, JJ.
                                          2


DOYLE, J.

        T.E.E. appeals a district court order committing her to inpatient, then

outpatient, treatment. We reverse.

        I. Background Facts and Proceedings.

        On May 22, 2013, an application for involuntary commitment was filed by

T.E.E.’s mother in district court alleging that T.E.E. was mentally impaired and

believed to be a danger to herself and to others. See Iowa Code § 229.6 (2013)

(setting forth procedure for commencement of involuntary commitment

proceeding). In support thereof, the application stated:

               My daughter left a horrible voicemail message on my cell
        phone and sent demented texts to me. She told me about the time
        she tried to kill herself. She did take a lot of pills before and had
        her stomach pumped before and now she is acting crazy as her
        friends told me. She shaved her hair all off and got a tattoo on her
        neck that looks like cut marks and blood.

T.E.E.’s stepfather filed an affidavit in support of the application, stating: “I have

known [T.E.E.] since 1998 and am aware of her mental disorder.              She was

prescribed medication for depression while she was in high school because she

tried to commit suicide. I am concerned for her well-being and for the well-being

of her children.” Based upon the application and supporting affidavit, the district

court found there was probable cause to believe T.E.E. was “seriously mentally

impaired” and was “likely to injure [herself] or others if allowed to remain at

liberty.”   T.E.E. was then taken into custody and detained at a Sioux City

hospital.

        On May 29, 2013, T.E.E. was examined by Dr. Muller pursuant to Iowa

Code section 229.10(2). Dr. Muller opined T.E.E. was mentally ill, diagnosing
                                          3


her with a “mood disorder, nos; bipolar mood disorder, most recent manic; c/o

attention deficit hyperactivity disorder; c/o substance dependence vs. cause.” Dr.

Muller opined that, because of her illness, T.E.E. “lack[ed] sufficient judgment to

make responsible decisions with respect to [her] hospitalization and treatment.”

He also opined that, if left at liberty, T.E.E. was likely to injure herself or others.

Dr. Muller opined that T.E.E. was seriously mentally impaired.

       A hearing on the application was held in June, and the applicant was not

able to be present at the hearing. The State asked the court to excuse the

applicant for “good cause,” and T.E.E. objected and requested the application be

dismissed.    She argued that, “per Iowa Court Rules 12.19 and 13.19, the

applicant has to be [at the hearing] unless . . . the Court . . . finds that their

testimony is not necessary. I believe in this case the testimony is extremely

necessary.” The court reserved ruling on the objection and motion to dismiss,

and it proceeded with the hearing.

       Dr. Muller testified regarding his examination of T.E.E. and his subsequent

report. He testified:

       [Initially, T.E.E.] was brought in as a problem that her mother, and
       [T.E.E.] was indicating that she wasn’t having any problems, but we
       had seen that she had pressured speech on the unit. She also had
       some paranoia signs on the unit as well as some agitation. She
       does, has very little insight into that she’s having difficulty
       understanding that initially there was DHS involvement as well that
       placed [her] children with the [applicant] at least temporarily. As far
       as substance abuse goes, there’s been allegations I believe that
       she has been using some marijuana. She denied using any
       marijuana and she won’t allow any urine “tox” screens, and she will
       not take any medications while she is on the unit.
                ....
       . . . [S]he’s had significant problems on the unit with pressured
       speech, she’s had significant problems on the unit with some
       irritability at times for the staff. She has, when I’ve evaluated her at
                                             4


       times, she was having problems with paranoia. She disorganized,
       has looseness of association, I think that she is having problems
       really making good decisions at this point as well. I think that she
       seems unable to really make decisions when it comes to making a
       decision about the urine “tox” screen, making decisions about
       signing releases so you can talk to the family, trying to work with us
       so that we can. Her main goal, she said, is to get out of the
       hospital.    I guess she continues to not really—she has to
       cooperate, but, you know, if she would kind of cooperate with the
       evaluation, kind of cooperate with treatment, she’d probably have a
       much better chance of getting out of the hospital quicker. She
       doesn’t seem to really understand that.
              She also doesn’t really understand, seem to have any
       insight, and she really does have some difficulties at this time.

Dr. Muller admitted he was alerted to T.E.E.’s possible substance dependence or

abuse by the applicant, but he testified he could not confirm or deny the

applicant’s report because T.E.E. refused to provide a urine screen or allow him

to talk to others about her behaviors. He testified that, regardless of her possible

marijuana use, he thought

       [T.E.E.’s] paranoia and pressured speech is probably from bi-polar
       mood disorder or mood disorder unspecified; however, if she used
       marijuana, you can have some paranoia as well too and so I feel
       that that marijuana may contribute to her behavior in regards to her
       bi-polar mood disorder or mood disorder unspecified I guess.

Dr. Muller testified that T.E.E. had not threatened to injure anyone, but he was

still concerned because she had not allowed the hospital staff to talk to anyone

about her condition. He was also concerned about her relationship with her

children if she did not receive treatment.

       The affiant, T.E.E.’s stepfather, also testified. He explained the applicant

could not come to the hearing because she had teaching-certification training out

of state that had been set for two months. The affiant testified that he had known

T.E.E. since 1998 and that she tried to commit suicide sometime before 2001.
                                        5


      At the close of evidence, T.E.E. renewed her motion to dismiss on the

basis that the applicant was not present for the hearing. The court denied the

motion. On the basis of the Dr. Muller’s testimony, the court found that T.E.E.

was seriously mentally impaired and ordered her commitment for continued care

at the hospital, as recommended by Dr. Muller.       On June 5, 2013, T.E.E.’s

commitment was changed from inpatient to outpatient status.

      T.E.E. now appeals her commitment.

      II. Standard of Review.

      “We review challenges to the sufficiency of the evidence in involuntary

commitment proceedings for errors at law.” In re B.B., 826 N.W.2d 425, 428

(Iowa 2013). The district court’s findings of fact are binding upon this court if

supported by substantial evidence. In re J.P., 574 N.W.2d 340, 342 (Iowa 1998).

Evidence is substantial if a reasonable trier of fact could conclude the findings

were established by clear and convincing evidence. Id. “Clear and convincing

evidence is less burdensome than evidence establishing proof beyond a

reasonable doubt,” and it requires there be “no serious or substantial doubt about

the correctness of a particular conclusion drawn from the evidence.” B.B., 826

N.W.2d at 428 (citation and internal quotation marks omitted).

      III. Discussion.

      Involuntary commitment is appropriate only if the court finds a person has

a serious mental impairment.     Iowa Code § 229.12(2)(c).       A serious mental

impairment means the person is mentally ill, and because of that illness both

lacks sufficient judgment into the needed treatment and poses a danger to the

person’s self or others. Id. § 229.1(17). That dangerousness can be manifested
                                          6


in any of three ways: (a) the likelihood the person will physically injure himself or

others if allowed to remain at liberty without treatment; (b) the likelihood the

person will inflict serious emotional injury on members of the person’s family or

others who lack reasonable opportunity to avoid contact with the person with

mental illness if the person with mental illness is allowed to remain at liberty

without treatment; or (c) the person’s inability to satisfy his needs for

nourishment, clothing, essential medical care, or shelter so that it is likely he will

suffer physical injury, physical debilitation, or death. Id. § 229.1(17)(a)-(c). On

appeal, T.E.E. challenges the court’s findings with respect to subsections (a) and

(b). The court having made no finding with respect to subsection (c), it is not at

issue here.

       The “endangerment” element of section 229.1(17) requires proof that

T.E.E. was “likely” to pose a serious danger to her health or the physical safety of

herself or others. “Likely” means “probable or reasonably to be expected.” B.B.,

826 N.W.2d at 428. This element “requires a predictive judgment, based on prior

manifestations but nevertheless ultimately grounded on future rather than past

danger.” Id. (citation and quotation marks omitted). However, the element also

“requires that the threat the patient poses to himself or others be evidenced by a

recent overt act, attempt, or threat.”        Id. (internal quotation marks omitted)

(emphasis added). “[B]ecause predicting dangerousness is difficult and, at best,

speculative,” stringent proof is required. In re Foster, 426 N.W.2d 374, 377-78

(Iowa 1988).

       In finding T.E.E. was seriously mentally impaired, the court explained:
                                        7


      I’ve heard the testimony of Dr. Muller, have looked over his report.
      He describes behavior as paranoia and pressured speech that
      would lead him to believe a likely diagnosis of bi-polar mood
      disorder or mood disorder, and he also expressed the opinion
      [T.E.E] lacks sufficient judgment to make responsible decisions as
      evidenced by her unwillingness to take medication or provide
      information that may assist in her treatment plan, and that if nothing
      were done, that she could cause injury to herself or emotion injury
      to others who are unable to avoid contact with her.

However, there was no evidence of a “recent overt act, attempt, or threat” to

support the court’s conclusion T.E.E. presents a danger to herself or others. We

conclude the evidence relied upon by the court in making its determination of

dangerousness does not rise to the level of “stringent proof” required to make

such a determination. Thus, the evidence presented was simply too speculative

and too remote in time to provide clear and convincing evidence of

dangerousness.

      Although we recognize the concern T.E.E.’s family has for her, she cannot

be involuntarily committed unless all the elements of serious mental impairment

are proven by clear and convincing evidence.         We conclude the evidence

presented at T.E.E.’s involuntary commitment hearing was insufficient to

establish T.E.E. is a danger to herself or others.      Accordingly, we reverse.

Because we find this issue dispositive, we need not address her other claim

raised on appeal.

      REVERSED.
