                     IN THE COURT OF APPEALS OF IOWA

                                  No. 19-0567
                            Filed February 19, 2020


IN THE MATTER OF P.K.,
Alleged to Be Seriously Mentally Impaired,

P.K.,
     Respondent-Appellant.
________________________________________________________________


        Appeal from the Iowa District Court for Johnson County, Sean W.

McPartland, Judge.



        P.K. appeals from a judgment imposing an involuntary commitment.

AFFIRMED.



        Jonathon Muñoz of Nidey, Erdahl, Fisher, Pilkington & Meier PLC, Cedar

Rapids, for appellant.

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

Attorney General, for appellee State.



        Considered by Tabor, P.J., and Mullins and Schumacher, JJ.
                                          2


SCHUMACHER, Judge.

       P.K., an inmate within the Iowa Department of Corrections (DOC), appeals

from a district court decision finding him seriously mentally impaired and imposing

involuntary commitment. He argues the State presented insufficient evidence to

establish he lacks judgmental capacity to make decisions regarding treatment and

that he posed a danger to himself or others. We find clear and convincing evidence

in the record to support the district court’s findings, and we therefore affirm.

Procedural history

       P.K. has been in the custody of the DOC since June 2016. He is serving a

fifty-year sentence for a murder conviction. P.K. concedes he has a diagnosis of

Post-Traumatic Stress Disorder (PTSD) stemming from two tours of duty in Iraq.

He has also been diagnosed with bipolar type schizoaffective disorder. P.K. began

refusing psychiatric medications in September 2017. Following an increase in

behavioral issues in 2017 and 2018, the State filed an application for civil

commitment in late August 2018. That application was denied.

       Further behavioral issues continued in the second half of 2018 and into

January 2019. On January 3, 2019, P.K. was ordered to relocate to investigative

segregation. He refused multiple orders to allow placement of restraints prior to

the move. He “turned on staff.” Additional staff responded to the situation, and

P.K. resisted throughout the escort. Due to P.K.’s noncompliance during this

move, he was taken to the ground and suffered injuries. P.K. reports those injuries

as a broken nose, two black eyes, a contusion on his right shoulder, floor burns on

his right elbow, an injury to his right hand, and upper back and neck pain.
                                          3


       On January 11, 2019, the State filed a new application for civil commitment

and supporting evaluation reports. The hospitalization referee approved the

application on January 16, and P.K. filed a notice of appeal on January 19. The

district court held a hearing on February 19, 2019, and affirmed the referee’s

decision on February 27, ordering that P.K. continue to be treated at the Iowa

Medical Classification Center. The district court found that “without hospitalization

[P.K.] is a serious risk to injure himself or others,” supporting that finding by

highlighting P.K.’s injuries from the January 3 incident and his threats directed at

staff. P.K. timely appealed from the district court’s decision, arguing the State

provided insufficient evidence to support the district court’s findings.

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). A district court’s findings of facts in a civil commitment proceeding have the

effect of a special verdict. State v. Huss, 666 N.W.2d 152, 159 (Iowa 2003). “In

prior decisions involving involuntary commitment we have said the elements of

serious mental impairment must be established by clear and convincing evidence

and the district court’s findings of fact are binding on us if supported by substantial

evidence.” In re J.P., 574 N.W.2d 340, 342 (Iowa 1998). “Clear and convincing

evidence is evidence that leaves ‘no serious or substantial doubt about the

correctness of the conclusion drawn from it.’” In re D.D., 653 N.W.2d 359, 361

(Iowa 2002) (quoting Raim v. Stancel, 339 N.W.2d 621, 624 (Iowa Ct. App. 1983)).
                                           4


Discussion

       A finding that a respondent is seriously mentally impaired within the

meaning of Iowa Code section 229.1(20) (2019) requires proof of three elements.

J.P., 574 N.W.2d at 343. First, the respondent must have a mental illness. Id.

Second, because of that illness the respondent must lack “sufficient judgment to

make responsible decisions with respect to the person’s hospitalization or

treatment.” Iowa Code § 229.1(20); see J.P., 574 N.W.2d at 343. The third

element is met when, because of their mental illness, the respondent 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.
       d. Has a history of lack of compliance with treatment and any of the
       following apply:
                (1) Lack of compliance has been a significant factor in the
       need for emergency hospitalization.
                (2) Lack of compliance has resulted in one or more acts of
       serious physical injury to the person’s self or others or an attempt to
       physically injure the person’s self or others.

Iowa Code § 229.1(20); see J.P., 574 N.W.2d at 342–43.

        P.K. concedes satisfaction of the “mental illness” element, acknowledging

a diagnosis of PTSD. He disputes the trial court’s findings under the second and

third elements. The trial court found the third element satisfied under paragraphs

(a) and (c).
                                         5


   A. Lack of Sufficient Judgment

       P.K. disputes the trial court’s determination that he “lacks sufficient

judgment to make responsible decisions concerning his hospitalization and

treatment.” In considering this second element, the critical inquiry is whether “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 Oseing,

296 N.W.2d 797, 801 (Iowa 1980) (quoting Randall Bezanson, Involuntary

Treatment of the Mentally Ill in Iowa: The 1975 Legislation, 61 Iowa L. Rev. 261,

275 (1975)). The trial court made the following findings in support of this element:

       The facts before the Court indicate that [P.K.] has taken himself off
       medication and has become agitated, angry and threatening. Dr.
       Keller testified as to such matters as well. [P.K.] acknowledges
       having become upset with and threatened staff, but testified such
       conduct was caused by his medication. Dr. Keller testified [P.K.]
       could be and should be treated with medications, but has failed to
       take his medications.
              The Court believes that his mental illness has resulted in
       [P.K.’s] lacking sufficient judgment to make responsible decisions
       concerning his treatment and hospitalization. Accordingly, the Court
       finds that the State has proven by clear and convincing evidence
       that, because of his diagnosed conditions, [P.K.] lacks sufficient
       judgment to make responsible decisions concerning his
       hospitalization and treatment.

Based our review of the record, we find that clear and convincing evidence

supports these findings.

       P.K. argues his ongoing refusal of medication since September 2017 is “a

rational decision given his complaints of headaches.” He asks us not to “unfairly

hold [his] rational decision regarding medication against him as pertains to the

issue of judgmental capacity.” He alleges that “the main concerns regarding his

status are mere general concerns regarding his deteriorating state,” and he
                                         6


“argues that his ability to safely navigate the DOC since September 2017 without

any need for a civil commitment supports his contention that he does have insight

into his own mental health issues.”

      P.K. cites J.P., 574 N.W.2d at 343, to support his argument that his refusal

to take medication is rational and should not be considered as supporting the lack-

of-sufficient-judgment element. However, the Iowa Supreme Court’s finding in J.P.

that a refusal to take medication was rational occurred on distinguishable facts.

See J.P., 574 N.W.2d at 341–42. In such case, the respondent had a bachelor’s

degree in psychology and a master’s degree in counseling and psychology. Id. at

341. She voluntarily removed herself and her daughters from the family home and

went to a shelter. Id. at 342. The father elicited information from the daughters

about where they were staying with their mother, and the father subsequently filed

an application alleging the mother was seriously mentally impaired. Id. The

mother had previously been voluntarily hospitalized for depression and counseling.

Id. at 341. After leaving the hospital, she chose to discontinue medication due to

concerns about possible side effects. Id. at 342. Although the hospitalization

referee and district court found her to be seriously mentally impaired, she appealed

that determination, and the Iowa Supreme Court held “there was not clear and

convincing evidence to support the district court’s finding that [she] lacked the

ability to make responsible decisions regarding her treatment.” Id. at 342–43.

      In stark contrast, P.K. has repeatedly violated the security protocols

established for his protection and the protection of the workers and fellow inmates

in his facility, has made threats, and has been aggressive with staff. We find In re

B.T.G., 784 N.W.2d 792, 794–95 (Iowa Ct. App. 2010), to be more instructive
                                          7


based on the facts of the instant case.          In that case, we highlighted the

respondent’s refusal to take medication as indicative of an inability to make rational

decisions regarding treatment. B.T.G., 784 N.W.2d at 798. B.T.G. was described

as “out of control, is at a risk for self-harm, threatens to kill the staff and their

children when not on his medications and also gets in fights with others at the

facility.” Id. at 797. There was testimony that, “Without this medication, his illness

is not controlled. This is a chronic and persistent illness with ongoing psychosis

with extreme mood swings from depression to threatening and violent behavior.”

Id. We concluded the “lacking sufficient judgment” element was satisfied by these

findings of fact. Id. at 798.

       As in B.T.G., P.K. became “out of control” and “threatening” after his

noncompliance with medication. The record evinces numerous threats made by

P.K. to staff and violations of security protocols. P.K. began to cease scheduled

medications in September 2017. Several weeks after discontinuing consistent

medications, P.K. received a major disciplinary report for loitering around a

secured gate area after several warnings. A similar instance recurred in December

2017. In 2018, P.K.’s mother raised concerns regarding P.K. after a phone call in

which he made comments about killing someone and alleged government

involvement.

        In August 2018, P.K. was transferred to a new housing unit to test if he

could transition to a lower level of security status, however he left that unit

unescorted more than once for specious reasons.            In September 2018, he

resumed unescorted explorations of secured areas near gates. In October and

November, he threatened a staff member, spat on his cell’s window while an officer
                                           8


passed, and attempted again to access unauthorized areas. Furthermore, he has

made delusional comments, including identifying himself as Jesus to staff and by

telling staff of a need to “murder Satan.” He threatened to kill an individual during

a phone call. These disturbing behaviors preceded the January 3, 2019 incident

in which P.K. suffered injuries while being subdued due to noncompliance with

orders to relocate. His treating doctor testified that P.K. has exhibited a “long but

a slow deterioration in his functioning.” His treating doctor also opined that he has

observed a deterioration in mental health since P.K. stopped taking medication.

       This evidence supports a finding that P.K “lacks sufficient judgment to make

responsible decisions with respect to [his] hospitalization or treatment.” Iowa Code

§ 229.1(20). His behaviors are not consonant with “a rational decision” concerning

a refusal of medications to treat his mental illness. See Oseing, 296 N.W.2d at

801. We conclude clear and convincing evidence supports the trial court’s finding

that because of his illness P.K. lacks sufficient judgment to make responsible

decisions with respect to his hospitalization or treatment.

   B. Dangerousness

       We next consider the third element of a seriously-mentally-impaired finding

under Iowa Code section 229.1(20). B.T.G., 784 N.W.2d at 798. This element

requires the State to show that, because of his mental illness, P.K. satisfies one of

the dangerousness grounds in paragraphs (a)–(d) of Iowa Code section 229.1(20).

The parties and the district court have analyzed P.K.’s dangerousness under

paragraphs (a) and (c):

       a. Is likely to physically injure the person’s self or others if allowed to
       remain at liberty without treatment.
                ...
                                           9


       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.

Paragraph (c) is of limited applicability to a respondent who is incarcerated, in that

an incarcerated person is provided “nourishment, clothing, essential medical care,

[and] shelter” by the State. We observe that paragraph (d), while recently added

to Iowa Code, was in force by the time these proceedings arose. See 2018 Iowa

Acts ch. 1056, § 7. Paragraph (d) satisfies the dangerousness element if because

of the person’s mental illness the person:

       Has a history of lack of compliance with treatment and any of the
       following apply:
              (1) Lack of compliance has been a significant factor in the
       need for emergency hospitalization.
              (2) Lack of compliance has resulted in one or more acts of
       serious physical injury to the person’s self or others or an attempt to
       physically injure the person’s self or others.

Iowa Code § 229.1(20)(d).

       However, because clear and convincing evidence supports a finding of

dangerousness under paragraph (a), we need not consider whether paragraph (c)

is satisfied or the applicability of paragraph (d).

       Clear and convincing evidence in the record supports a finding that P.K. “is

likely to physically injure . . . [him]self or others if allowed to remain at liberty1

without treatment.” Iowa Code 229.1(20)(a). The term “likely” in paragraph (a)

means “probable or reasonably to be expected.” In re Foster, 426 N.W.2d 374,

377 (Iowa 1988) (quoting Oseing, 296 N.W.2d at 801).            The dangerousness

element requires that the threat the patient poses to himself be evidenced by a


1 We interpret “at liberty” to mean in the general population of the prison rather
than the acute mental health unit.
                                         10

“recent overt act, attempt or threat.” Huss, 666 N.W.2d at 161 (quoting In re Mohr,

383 N.W.2d 539, 542 (Iowa 1986)). P.K. made threats to staff and repeatedly

violated security protocols by venturing into prohibited areas. The State’s evidence

showed that P.K.’s violations increased in the months immediately prior to P.K.’s

involuntary commitment. The evidence regarding the January 3, 2019 incident

indicates that multiple staff were required to transfer P.K. from one unit to another

and that P.K.’s aggression toward staff and noncompliance with orders on that

occasion was the reason for the takedown that led to injuries.

       P.K.’s actions can be distinguished from those of the respondent in Foster,

426 N.W.2d at 375. In that case, the respondent, also an inmate, only sporadically

took medication for his chronic undifferentiated schizophrenia, which resulted in

the respondent making bizarre and delusional statements. Id. at 375–76. While

incarcerated, the respondent was involved in two altercations with fellow inmates

but was not the aggressor in either fight. Id. at 375. The respondent’s strange

statements played some role in the altercations, however the Iowa Supreme Court

held the overt-act requirement unsatisfied, saying, “[p]rovoking acts of aggression

toward oneself by bizarre or socially unacceptable behavior does not elevate such

behavior to a level of likely physical injury to oneself.” Id. at 379. Because the

respondent’s statements did not satisfy the “overt act” requirement and the

respondent was not the initial aggressor in the altercations, the court held the

dangerousness element was not satisfied.           Id. at 380–81 (remanding for

termination of the involuntary commitment).
                                          11


       P.K. committed a major prison violation in January 2017 for assaulting a

peer, and he received a minor report for punching and spitting at his cell door when

officers were passing. P.K. was the aggressor in the January 3, 2019 incident,

where his noncompliance led to his injuries. P.K.’s violations and injury were

initiated by his own actions. We find Foster distinguishable and hold the overt-act

requirement satisfied on these facts.

       On appeal, P.K. dismisses the import of the January 3, 2019 incident

because he did not engage in “active threatening behavior” and because the DOC

generated no disciplinary reports related to the incident. However, he cites no

authority for the proposition that “threatening” behavior is required to satisfy the

overt-act requirement or is otherwise equivalent to “dangerousness,” and he

similarly fails to cite authority for his argument that an absence of a disciplinary

report mitigates his actions or injury on January 3, 2019.

       The absence of a disciplinary report related to the January 3 incident does

not lessen the import of P.K.’s actions or injury on that date. Instead, we find P.K.’s

noncompliance during the January 3, 2019 incident and his resulting injury to be

the consequence of his own overt act. See Huss, 666 N.W.2d at 161 (requiring

proof of a “recent overt act” to satisfy the dangerousness element in a civil

commitment case).

       Although on appeal P.K. characterizes the State’s concerns as “mere

general concerns regarding his deteriorating state,” he does not contest the State’s

multiple assertions that P.K.’s condition is indeed deteriorating. Given P.K.’s

injuries from the January 3, 2019 incident and the increasing number and severity

of violations of security protocols, we find it probable or reasonably to be expected
                                          12


that P.K. suffer another injury in the absence of civil commitment. We further find

that the January 3, 2019 incident satisfies the requirement of Huss and Mohr for a

“recent overt act.”

       Lastly, P.K. requests that our court not treat him differently under chapter

229 because he is incarcerated, asserting that “the necessary inquiry . . . is

whether he would have been found to [be] seriously mentally impaired under

Chapter 229 if he were . . . not an inmate in DOC custody.” In our review of the

record, we cannot divorce P.K.’s conduct from the setting in which it occurred. His

environment must provide some context for our review.

       The injury he sustained as a result of noncompliance with an order to

relocate only occurred because he is incarcerated. We do not disregard this

incident because P.K. was incarcerated during the incident. We have further not

considered the fact of P.K.’s conviction and incarceration in isolation in our analysis

under the dangerousness element of Iowa Code section 229.1. While P.K. argues

on appeal that disobedience and failure to cooperate in an incarceration setting

does not rise to the level of dangerousness that would implicate section

229.1(20)(a), his actions have already led to injuries and his behavior prior to

commitment shows he is likely to physically injure himself or others.

Conclusion

       A determination that an individual is “seriously mentally impaired” requires

a showing of three elements. P.K. concedes the satisfaction of the first element,

and the district court’s findings as to the second and third elements are supported
                                          13


by clear and convincing evidence. Having rejected P.K.’s arguments on appeal,

we affirm the district court’s finding that P.K. is seriously mentally impaired.

       AFFIRMED.
