                   IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1983
                               Filed June 15, 2016


IN THE INTEREST OF THE MATTER OF K.H.,
Alleged to be Seriously Mentally Impaired,

K.H.,
Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Jon C. Fister,

Judge.



      A respondent challenges the finding he is seriously mentally impaired.

AFFIRMED.



      Nina M. Forcier of Forcier Law Office, P.L.L.C., Waterloo, for appellant.

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

Attorney General, for appellee State.



      Considered by Potterfield, P.J., and Mullins and McDonald, JJ.
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MCDONALD, Judge.

       K.H. appeals from a civil commitment order issued pursuant to Iowa Code

chapter 229 (2015). He argues the applicant failed to prove he was “seriously

mentally impaired” within the meaning of the statute. He argues the court failed

to consider whether inpatient treatment was the least restrictive environment

available for him.   Finally, K.H. contends the order of forced medication is

unconstitutional.

                                        I.

       K.H. argues there is not substantial evidence to support a finding of

serious mental impairment. “An involuntary commitment proceeding is a special

action triable to the court as an ordinary action at law.” In re J.P., 574 N.W.2d

340, 342 (Iowa 1998). Therefore, our review is for correction of errors at law.

See id. A determination that someone is seriously mentally impaired must be

supported by clear and convincing evidence. See Iowa Code § 229.13(1); In re

Oseing, 296 N.W.2d 797, 799 (Iowa 1980). Evidence is clear and convincing

when there is no serious or substantial doubt about the correctness of a

particular conclusion drawn from the evidence. See In re L.G., 532 N.W.2d 478,

481 (Iowa Ct. App. 1995). The clear-and-convincing standard is less onerous

than proof beyond a reasonable doubt, but more so than a preponderance of the

evidence. See In re B.B., 826 N.W.2d 425, 428 (Iowa 2013). The district court’s

findings of fact are binding on appeal if they are supported by substantial

evidence. See J.P., 574 N.W.2d at 342. Evidence is substantial if a reasonable

trier of fact would accept it as adequate to reach a conclusion. See In re Foster,

426 N.W.2d 374, 376 (Iowa 1988).
                                         3


      “Seriously mentally impaired” or “serious mental impairment”
      describes the condition of a person with mental illness and because
      of that illness lacks sufficient judgment to make responsible
      decisions with respect to the person’s hospitalization or treatment,
      and who because of that illness meets any of the following criteria:

             a. Is likely to physically injure the person’s self or
                others if allowed to remain at liberty without
                treatment.
             b. Is likely to 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.
             c. Is unable to satisfy the person’s needs for
                nourishment, clothing, essential medical care, or
                shelter so that it is likely that the person will suffer
                physical injury, physical debilitation, or death.

Iowa Code § 229.1(20).

      K.H. concedes the applicant proved K.H. is a person with mental illness.

Dr. Kantamneni, the examining doctor, diagnosed K.H. with schizoaffective

disorder. He also has a history of depression and psychosis.

      The second element is a lack of judgmental capacity due to the mental

illness. This element requires proof “that the person is unable, because of the

alleged mental illness, to make a rational decision about treatment, whether the

decision is to seek treatment or not.” In re Mohr, 383 N.W.2d 539, 541 (Iowa

1986) (citation omitted). K.H. argues there was insufficient evidence establishing

the lack of judgmental capacity. He argues he was participating in treatment with

a psychiatrist and taking his antidepressant medication as prescribed.       K.H.

argues his failure to submit to antipsychotics was rational because of the side

effects of the medication. K.H. also argues there is not sufficient evidence to

demonstrate his decisions were not responsible.
                                        4


       We conclude there is substantial evidence the respondent lacks

judgmental capacity due to his mental illness. Dr. Kantamneni conducted the

inpatient examination of K.H.    The doctor testified at the hearing before the

referee, and the doctor issued the statutorily-required report.    At the appeal

hearing, tried de novo, the parties agreed the district court could consider Dr.

Kantamneni’s testimony from the original hearing and the doctor’s report even

though the doctor did not testify at the trial de novo. The doctor testified K.H.

needed to take an antipsychotic medication to treat his condition.            She

recommended antipsychotics because K.H. “gets agitated easily” and “has

paranoid thoughts.”      In the report, the doctor concluded that K.H. lacked

judgmental capacity because of his mental illness. We recognize K.H. is treating

with another provider, but K.H.’s doctor did not testify or provide a report. The

only evidence from a medical professional shows K.H. lacks judgmental capacity

regarding hospitalization and treatment because of his mental health conditions.

We find substantial evidence supports this element. See, e.g., B.B., 826 N.W.2d

at 433 (citing examining doctor’s report and testimony as evidence sufficient to

satisfy this element).

       The final element is dangerousness—whether K.H. is likely to injure

himself or others if allowed to remain at liberty without treatment. This element

requires proof of a recent overt act, attempt, or threat. See Mohr, 383 N.W.2d at

542. An overt act in the context of physical injury “connotes past aggressive

behavior or threats by the respondent manifesting the probable commission of a

dangerous act upon himself or others that is likely to result in physical injury.”
                                           5

Foster, 426 N.W.2d at 378. K.H. argues there is not sufficient evidence that he is

dangerous within the meaning of the statute and cases interpreting the same.

       We     conclude     there   is   substantial    evidence     establishing    the

dangerousness element.        At the time material to this matter, K.H. was on

supervised release following a federal conviction for making threats to federal

employees.     On October 4, 2015, K.H. sent an email to two managers of

correctional facilities in West Union and Waterloo. The email contained language

referencing a recent school shooting and K.H.’s own history of violence, including

an assault of a peace officer. It referenced threats K.H. made in the past. It

concluded, “My threats are justified.” The rambling, incoherent tone of the email

suggested a person behaving irrationally and unpredictably. The recipients of

the emails notified K.H.’s probation officer.1        The probation officer and a

supervising probation officer testified the recipients of the emails felt threatened.

K.H. also left a voicemail for his probation officer that could have reasonably

been construed as threatening. There was also testimony K.H. had been making

derogatory statements to public officials in voicemails, including the federal judge

who sentenced him in a previous case and the clerk of court at that federal

courthouse. The serious nature of the threat was magnified by K.H.’s criminal

history, which includes assault and the conviction for which he was incarcerated

and subsequently placed on supervised release. The finding of dangerousness

necessarily requires a “predictive judgment.” See Mohr, 383 N.W.2d at 542.


1
  In the federal system, a defendant may be sentenced to a term of incarceration
followed by supervised release. The term of supervised release is supervised by a
probation officer within the Probation and Pretrial Services System of the United States
Courts.
                                         6


Here, witnesses familiar with K.H.’s past credibly testified to their concerns upon

learning of the email.        Substantial evidence supports the finding of

dangerousness.

                                         II.

       K.H. next argues the district court erred in ordering him to inpatient

treatment because it is not the least restrictive environment available. “It is not

only the customary procedure, but the constitutionally and statutorily mandated

requirement, to treat even seriously mentally impaired persons in the least

restrictive environment medically possible.” Leonard v. State, 491 N.W.2d 508,

512 (Iowa 1992). K.H. believes inpatient treatment is not the least restrictive

environment available because he was under the care of a psychiatrist and a

counselor.

       The State contends, and we agree, that error has not been preserved on

this issue. The alternative of outpatient treatment was neither argued to nor

decided by the district court. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa

2002) (“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.”). K.H. did not move to amend or enlarge the district court’s decision.

Error has therefore not been preserved. See Iowa R. App. P. 6.903(2)(g)(1).

                                        III.

       Finally, K.H. contends the forced medication order violated his

constitutional right to due process. Our review is de novo. See State v. Lyman,

776 N.W.2d 865, 873 (Iowa 2010).               In determining if there has been a

constitutional violation, we must balance a person’s liberty interest against the
                                          7

relevant state interests. See Youngberg v. Romeo, 457 U.S. 307, 321 (1982).

When a state creates a liberty interest, “due process protections are necessary

‘to insure that the state-created right is not arbitrarily abrogated.’” Vitek v. Jones,

445 U.S. 480, 489 (1980) (citation omitted). There is a “significant liberty interest

in avoiding the unwanted administration of antipsychotic drugs.” Washington v.

Harper, 494 U.S. 210, 221 (1990).

       With respect to the substantive right at issue, we have previously

interpreted Harper to mean the Due Process Clause of the United States

Constitution “confers upon respondent no greater right than that recognized

under state law.” In re R.M.P., 521 N.W.2d 765, 767 (Iowa Ct. App. 1994).

Here, state law does not confer a right to refuse treatment under the

circumstances presented. An individual hospitalized or detained under chapter

229 normally has the right to refuse treatment by shock therapy or

chemotherapy. See Iowa Code § 229.23(2). “Chemotherapy” is defined as the

“treatment of an individual by use of a drug or substance which cannot legally be

delivered or administered to the ultimate user without a physician’s prescription

or medical order.”       Iowa Code § 229.1(4).         The proposed antipsychotic

medication would fall under this definition. However, the individual’s “right to

refuse treatment by chemotherapy shall not apply during any period of custody

authorized by . . . section 229.11.” Iowa Code § 229.23(2). K.H.’s custody was

authorized by section 229.11. That exception to the right to refuse treatment

“shall extend only to chemotherapy treatment which is, in the chief medical

officer’s judgment, necessary to preserve the patient’s life or to appropriately

control behavior by the person which is likely to result in physical injury to that
                                         8


person or others if allowed to continue.” Iowa Code § 229.23(2). As discussed

above, the applicant has proved that absent medication, K.H. is a physical threat

to himself or others. “Because Iowa law does not confer a protected interest

under Iowa Code section 229.23(2), appellant cannot argue for a greater right

under federal law.” R.M.P. 521 N.W.2d at 767. “There is no question but that

once these procedures were complied with, and while [K.H.] was an inpatient [the

hospital] could prescribe intramuscular injections of psychotropic medication

despite [K.H.’s] wishes.” Lappe v. Loeffelholz, 815 F.2d 1173, 1176-77 (8th Cir.

1987).

         Moreover, the State has satisfied the Washington test that allowed the

State in that case to treat a prison inmate with a serious mental illness with

antipsychotic drugs against his will. Washington requires findings that (1) the

patient suffers from a mental illness; (2) the patient poses a threat of serious

harm to oneself, others, or their property; and (3) the treatment is in the patient’s

medical interest. See Washington, 494 U.S. at 227. There is no doubt K.H.

suffers from a mental illness.       There was a finding of dangerousness, as

discussed above. There was credible testimony from an examining physician

that treatment is in K.H.’s medical interest. That testimony was uncontroverted

by any other medical professional.

         K.H. contends we should reach a different result under the Iowa

Constitution. “As a general rule, the task of materially altering substantive or

procedural rights is best left to the General Assembly or the Supreme Court of

Iowa.” Spencer v. Philipp, No. 13-1887, 2014 WL 4230223, at *2 (Iowa Ct. App.

Aug. 27, 2014). We decline K.H.’s request.
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                                             IV.

       The finding that K.H. was seriously mentally impaired is supported by

substantial evidence. Error was not preserved on K.H.’s challenge to inpatient

treatment. K.H.’s constitutional argument against forced medication fails. We

affirm the judgment of the district court.

       AFFIRMED.
