                                                                                     November 13 2012


                                    DA 12-0071

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   2012 MT 258



IN THE MATTER OF:

C.R.,

         Respondent and Appellant.


APPEAL FROM:     District Court of the Thirteenth Judicial District,
                 In and For the County of Yellowstone, Cause No. DI 12-0006
                 Honorable Gregory R. Todd, Presiding Judge


COUNSEL OF RECORD:

          For Appellant:

                 Robin A. Meguire, Attorney at Law; Great Falls, Montana

          For Appellee:

                 Steve Bullock, Montana Attorney General; Kathryn F. Schulz, Assistant
                 Attorney General; Helena, Montana

                 Scott Twito, Yellowstone County Attorney; Kevin C. Gillen, Deputy
                 County Attorney; Billings, Montana



                                             Submitted on Briefs: September 4, 2012

                                                        Decided: November 13, 2012


Filed:

                 __________________________________________
                                   Clerk
Justice Beth Baker delivered the Opinion of the Court.



¶1    C.R. appeals the Montana Thirteenth Judicial District Court’s order involuntarily

committing him to the Montana State Hospital (MSH) and authorizing his involuntary

medication. We affirm.

¶2    We address the following issues on appeal:

¶3    1. Whether the District Court improperly disregarded C.R.’s hearing testimony.

¶4     2. Whether the District Court’s failure to offer C.R. a court-appointed friend
violated C.R.’s statutory or constitutional rights.

¶5    3. Whether C.R. received ineffective assistance of counsel.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶6    The District Court involuntarily committed and authorized the involuntary

medication of thirty-year-old C.R. after it determined that he suffered from a mental

disorder and that his condition met the statutory criteria for involuntary commitment.

¶7    Prior to the commitment proceedings, C.R. resided with his brother, L.R., at L.R.’s

residence. According to L.R., on January 8, 2012, C.R. exhibited “bizarre and erratic

behavior at the residence, yelling uncontrollably at no one in particular,” and L.R.

contacted the Billings Clinic Psychiatric Center to check on C.R.’s welfare.             Law

enforcement transported C.R. to the Billings Clinic Emergency Room, where he became

“acutely aggressive” during his mental health evaluation. As a result of these behaviors,

Dr. Faraz Masood, M.D., a psychiatric hospitalist at the Billings Clinic Psychiatric

Center, requested that the Yellowstone County Attorney’s Office file a petition for
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involuntary commitment. The County Attorney’s Office filed a petition on January 9,

2012.

¶8      After reviewing the petition, the District Court found probable cause to believe

that C.R. “may suffer from a mental disorder and may need to be committed because of

his mental disorder.” The District Court appointed counsel to represent C.R., ordered

him detained at the Billings Clinic Psychiatric Center pending resolution of the petition,

and set an initial hearing on the petition for January 10, 2012. After being advised by

counsel of his rights regarding the petition, C.R. waived the initial hearing. The District

Court appointed a professional person, Dr. Masood, to evaluate C.R. and set an

evidentiary hearing for January 11, 2012.

¶9      On January 10, 2012, Dr. Masood reported to the court that, since his admission to

the Psychiatric Center, C.R. “remained labile, aggressive and hostile with disorganized

behavior and thoughts.”      Dr. Masood determined that C.R. suffered from severe

psychosis, a mental disorder, and that he needed to be committed because he “cannot

adequately care for his needs” and was “an imminent threat to himself.” In Dr. Masood’s

opinion, there was “no recourse but for placement at the state hospital in Warm Springs.”

¶10     During the January 11, 2012 evidentiary hearing on the petition, the District Court

heard testimony from L.R., Dr. Masood, and C.R. L.R. stated that his brother was not

mentally well, appeared to be a risk to himself or others, and currently was unable to care

for himself. L.R. was “[a] hundred percent” in support of committing C.R. Dr. Masood

agreed that C.R. “poses a risk of imminent harm to himself or others,” due to psychosis

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coupled with schizophrenia. Dr. Masood stated that C.R. had shown little improvement

since his admission to the Psychiatric Center, where he had refused medication, spit on

staff, and required physical restraints on several occasions to prevent violent behavior.

The hospital had to place C.R. in restraints three times and in seclusion twice during his

short stay, which Masood testified was unusual.         According to Masood, C.R. also

continued to experience auditory hallucinations and delusions of paranoia, exhibit manic

and impulsive behavior, and lack “insight and judgment . . . to be able to care for

himself.”   Masood testified that, absent treatment, C.R.’s condition would “[m]ost

certainly” deteriorate. He recommended a ninety-day commitment to MSH as the “least

restrictive placement option” and “if necessary, the involuntary administration of

medication” to facilitate C.R.’s treatment.

¶11    The District Court concluded that the State proved to a reasonable degree of

medical certainty that “[C.R.] suffers from a mental disorder,” namely “psychosis and

schizophrenia.” It also concluded that the State proved beyond a reasonable doubt that

C.R. required commitment in light of his inability to care for himself, the “real risk of

harm” he posed to himself and others, and the likelihood that, absent treatment, his

“mental health will further deteriorate.”       The District Court ordered involuntary

commitment of C.R. for up to three months and authorized the administration of

involuntary medication, if needed “to protect [C.R.] and the public and facilitate effective

treatment.” C.R. was hospitalized pursuant to the court’s order and later released.




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                               STANDARD OF REVIEW

¶12    We review a district court’s order of civil commitment “to determine whether the

court’s findings of fact are clearly erroneous and its conclusions of law are correct.” In

re Mental Health of L.K.-S., 2011 MT 21, ¶ 14, 359 Mont. 191, 247 P.3d 1100. A

finding of fact is clearly erroneous if “it is not supported by substantial evidence, if the

district court misapprehended the effect of the evidence or if, after a review of the entire

record, we are left with the definite and firm conviction that a mistake has been made.”

L.K.-S., ¶ 14.

¶13    We require “strict adherence” to the statutory scheme governing involuntary

commitment due to the “critical importance” of the constitutional rights at stake. L.K.-S.,

¶ 15 (citing In re Mental Health of C.R.C., 2004 MT 389, ¶ 16, 325 Mont. 133, 104 P.3d

1065 and In re Mental Health of T.J.D., 2002 MT 24, ¶ 20, 308 Mont. 222, 41 P.3d 323).

¶14    An appeal from an order of involuntary commitment is not moot despite the

appellant’s release, since the issues are capable of repetition, yet otherwise would evade

review. In re Mental Health of D.V., 2007 MT 351, ¶ 32, 340 Mont. 319, 174 P.3d 503.

                                      DISCUSSION

¶15    1. Whether the District Court improperly disregarded C.R.’s hearing testimony.

¶16    Section 53-21-126, MCA, details the standard of proof, procedural requirements

and criteria that a court must apply when considering a petition for civil commitment.

The standard of proof in commitment proceedings is “beyond a reasonable doubt with

respect to any physical facts or evidence and clear and convincing evidence as to all other

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matters.”    Section 53-21-126(2), MCA.       Commitment is appropriate if the court

determines, first, that the respondent suffers from a mental disorder and, second, that one

of the following criteria has been met:

       (a) whether the respondent, because of a mental disorder, is substantially
       unable to provide for the respondent’s own basic needs of food, clothing,
       shelter, health, or safety;

       (b) whether the respondent has recently, because of a mental disorder and
       through an act or an omission, caused self-injury or injury to others;

       (c) whether, because of a mental disorder, there is an imminent threat of
       injury to the respondent or to others because of the respondent’s acts or
       omissions; and

       (d) whether the respondent’s mental disorder, as demonstrated by the
       respondent’s recent acts or omissions, will, if untreated, predictably result
       in deterioration of the respondent’s mental condition to the point at which
       the respondent will become a danger to self or to others or will be unable to
       provide for the respondent’s own basic needs of food, clothing, shelter,
       health, or safety. Predictability may be established by the respondent’s
       relevant medical history.

Section 53-21-126(1), MCA; see § 53-21-127(7) (“Satisfaction of any one of the criteria

listed in 53-21-126(1) justifies commitment pursuant to this chapter.”). The District

Court’s decision to commit C.R. was based on its findings under § 53-21-126(1)(a), (b),

and (d), MCA, that, due to his mental disorder, C.R. could not care for himself and posed

a threat to himself and others, and that his mental condition would further deteriorate if

left untreated.

¶17    C.R. contends that, during the evidentiary hearing, “[h]e testified coherently that

he did not believe he suffered from a mental disorder and that he had a place to live and

could provide for his own basic needs.” C.R. posits that his involuntary medication prior
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to his psychiatric evaluation “caused the symptoms described by Dr. Masood” and

resulted in his inability to recollect most events that took place the day before his hearing.

C.R. argues that his “lucid” testimony during the evidentiary hearing was “sufficient to

create a reasonable doubt as to C.R.’s need for involuntary commitment or at the very

least render Dr. Masood’s testimony regarding C.R.’s need for commitment not ‘clear

and convincing.’”

¶18    We review for clear error the District Court’s determination that C.R. suffers from

a mental disorder and that he meets the criteria for commitment under § 53-21-126(1),

MCA. In re Mental Health of M.C.D., 2010 MT 15, ¶ 9, 355 Mont. 97, 225 P.3d 1214

(we “will disturb the district court’s findings in a civil commitment case only if they are

clearly erroneous, when viewed in a light most favorable to the prevailing party”) (citing

In re C.R.C., 2004 MT 389, ¶ 11, 325 Mont. 133, 104 P.3d 1065). “We normally defer to

a district court’s determination of witness credibility and evidentiary weight.” In re

G.M., 2008 MT 200, ¶ 38, 344 Mont. 87, 186 P.3d 229 (citation omitted).

¶19    The District Court made the following findings based on Dr. Masood’s hearing

testimony:

       Since his admission, [C.R.] has refused medication, has been in and out of
       physical restraints, and has been segregated from the general population at
       the Psychiatric Center because of his propensity towards violence.
       Currently, [C.R.] is at risk of causing harm to self and others[,] the result of
       his mental disability. He has spit on other patients. He has been in
       restraints on a number of occasions and on two occasions directly before
       this hearing because of concerns of physical confrontations with staff and
       other patients. [C.R.] has shown no improvement and continues with
       auditory hallucinations, has delusions of paranoia, demonstrates manic and
       impulsive behavior and has no judgment or insight into his mental disorder.
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The District Court also noted that L.R. testified he believed C.R. was “not mentally

well,” could not “because of his current mental state, care for himself,” and had recently

become violent. C.R. does not contest that Dr. Masood’s and L.R.’s testimony supported

the District Court’s findings.

¶20    C.R. contends the District Court “did not even make a credibility finding with

respect to C.R.’s testimony,” which it “completely ignored.” The District Court’s written

order, however, indicates that it considered C.R.’s testimony and found it unreliable:

       [C.R.] felt that others, not himself, had any issues, or alternatively, matters
       were not as bad as portrayed. [C.R.] indicated he could reside with his
       brother or other family members, however the brother indicated that
       placement with him at this time was not acceptable. [C.R.] was not able to
       grasp the seriousness of his mental disability.

Viewing the evidence in the light most favorable to the State, we conclude the District

Court’s findings were supported by substantial evidence, the District Court did not

misapprehend the effect of the evidence and we are not left with a firm conviction that a

mistake has been made. Thus, the District Court’s findings were not clearly erroneous.

¶21 2. Whether the District Court’s failure to offer C.R. a court-appointed friend
violated C.R.’s statutory or constitutional rights.

¶22    Prior to 2009, respondents in civil commitment proceedings had a statutory right

to a court-appointed friend.     Section 53-21-122(2), MCA (2007) (“The judge shall

appoint a professional person and a friend of respondent . . .”). In 2009, the Legislature

amended § 53-21-122, MCA, which now provides, “If the court finds that an appropriate

person is willing and able to perform the functions of a friend of respondent as set out in

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this part and the respondent personally or through counsel consents, the court shall

appoint the person as the friend of respondent.” Section 53-21-122(2)(b), MCA. The

statute mandates appointment of a friend only when the court has determined that an

appropriate person is willing to perform that function; it does not obligate the court to

seek out, investigate, or offer a friend when, as here, none was presented.

¶23    The 2009 amendments were made in response to two decisions of this Court

reversing involuntary commitments for failure of the District Court to appoint a friend.

In re Mental Health of J.D.L., 2008 MT 445, 348 Mont. 1, 199 P.3d 805; In re Mental

Health of A.S.F., 2008 MT 450, 348 Mont. 45, 199 P.3d 808.                    Though C.R.

acknowledges that the statute no longer mandates appointment of a friend to a respondent

in civil commitment proceedings, he contends that we recognized in J.D.L. and A.S.F. the

constitutional underpinnings of the right to a court-appointed friend due to the liberty

interests at stake. C.R. argues that he had “a right to at least be offered a court appointed

friend” and the District Court’s failure to “investigate, inquire and/or offer C.R. a friend”

justifies reversal of its decision. (Emphasis added.)

¶24    C.R. points out that under § 53-21-121(2)(f), MCA, a petition for commitment

must include “the name and address of any person whom the county attorney believes

might be willing and able to be appointed as friend of respondent,” and that here, “the

Petition merely stated ‘unknown.’” (Emphasis added.) The permissive language of the

statute does not support an argument that the county attorney is obligated to provide the




                                          9
name of a willing friend if the county attorney knows of no person willing to assist the

respondent.

¶25    While C.R. alleges a due process violation, our decisions in J.D.L. and A.S.F. were

premised on the express language of the statute, which at the time left the district court no

discretion. “The mandate of § 53-21-122(2), MCA, to appoint a friend was essentially

ignored.” J.D.L., ¶ 12. Now, the statute does not provide a mandate. C.R. does not

challenge the constitutionality of the current statute, but argues that the court cannot

comply with even the permissive language of the statute if “it makes no inquiry into

whether such a person exists.”

¶26    In both J.D.L. and A.S.F., we applied plain error review to the court’s failure to

follow the requirements of the statute. “We invoke plain error review sparingly and in

only those limited situations where failure to review the alleged error may result in a

manifest miscarriage of justice or may compromise the integrity of the judicial process.”

J.D.L., ¶ 6. Here, there was no objection before the District Court to the absence of a

court-appointed friend and the record does not indicate whether either the State’s attorney

or C.R.’s counsel gave consideration to any potential person willing to serve. C.R.’s

brother was involved in the proceedings and testified that commitment was in C.R.’s best

interest.   C.R.’s argument that a friend “could have advocated” for an independent

evaluation does not establish that failure to inquire into the possibility of a friend resulted

in a manifest miscarriage of justice or compromised the integrity of the proceeding.




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Since the statute does not mandate appointment of a friend, we decline to invoke plain

error review in this case.

¶27    3. Whether C.R. received ineffective assistance of counsel.

¶28    We evaluate five “critical areas” in determining whether a respondent received

ineffective   assistance     of   counsel    in   involuntary   commitment   proceedings:

(1) appointment of competent counsel; (2) counsel’s initial investigation; (3) counsel’s

interview with the client; (4) the patient-respondent’s right to remain silent; and

(5) counsel’s role as an advocate for the patient-respondent. In re Mental Health of

C.R.C., 2009 MT 125, ¶ 16, 350 Mont. 211, 207 P.3d 289 (citing In re Mental Health of

K.G.F., 2001 MT 140, ¶¶ 70-86, 306 Mont. 1, 29 P.3d 485). “[U]pon a substantial

showing of evidence . . . that counsel did not effectively represent the patient-

respondent’s interests pursuant to the foregoing standards,” we will vacate an order of

involuntary commitment. C.R.C., ¶ 16 (quoting K.G.F., ¶ 91) (internal quotation marks

omitted). We consider the whole record and evaluate each factor “based on the facts and

circumstances of the entire case.” C.R.C., ¶ 19.

¶29    C.R. contends that counsel did not adequately represent his interests because

counsel “did not obtain an independent professional person to evaluate [him].” C.R.

points out that § 53-21-115(9), MCA, provides “the right to be examined by a

professional person of the person’s choice when the professional person is willing and

reasonably available,” but alleges that “C.R. was never offered the option of an

independent medical examination.” C.R.’s claim implicates the fifth factor only. Neither

                                            11
his briefs nor the record as a whole indicate any insufficiency regarding the appointment

of competent counsel, counsel’s initial investigation, counsel’s interview with C.R., or

C.R.’s right to remain silent during his hearing.

¶30    As in this case, C.R.C. involved a claim of ineffective assistance of counsel based

only on the fifth factor. We noted, “. . . it is unclear whether a challenge based only on

one of the five ‘critical areas’ discussed in K.G.F. would meet the threshold ‘substantial

showing of evidence . . . that counsel did not effectively represent the

patient-respondent’s interests.’” C.R.C., ¶ 19. We recognized, based on K.G.F., that

counsel’s stipulation to C.R.C.’s commitment without her consent created a presumption

of ineffective assistance of counsel. C.R.C. ¶ 17. We concluded, however, that the

presumption was rebutted by otherwise effective representation—including counsel’s

cross-examination of the doctor who had concluded C.R.C. posed an imminent threat to

herself and others, counsel’s attempt to obtain an independent psychological evaluation,

his motion to stay execution of the order of involuntary medication, and his notifying the

court that he intended to appeal the order. C.R.C., ¶¶ 23-24.

¶31    C.R. cites no authority providing that counsel is prima facie ineffective for failing

to obtain an independent evaluation. C.R. offers the MSH discharge report as evidence

that another evaluation would have created reasonable doubt about the need for

commitment. We do not consider that report as substantive evidence because it was

prepared after entry of the District Court’s commitment order and following eight days of

inpatient care and intensive observation, and is a speculative basis upon which to

                                         12
conclude that a second evaluation prior to the hearing would have led to a different

outcome.

¶32   As the State points out, the record in this case does not demonstrate that counsel

made no effort to obtain an independent examination of C.R., or that C.R. asked for a

second opinion.    There are numerous other indications of effective representation.

Counsel met with C.R. and Dr. Masood prior to the hearing. Counsel cross-examined

Dr. Masood during the hearing regarding the length of his evaluation of C.R. prior to

diagnosing him with schizophrenia and paranoia—twenty to thirty minutes—and

regarding C.R.’s disposition the day before the hearing, when, Dr. Masood agreed, he had

been “cooperating and giving answers.”       We conclude that the record as a whole

demonstrates C.R.’s counsel served as “a vigorous advocate for the respondent’s wishes.”

In re Mental Health of T.J.F., 2011 MT 28, ¶ 33, 359 Mont. 213, 248 P.3d 804.

¶33   For the foregoing reasons, the judgment of the District Court is affirmed.



                                                /S/ BETH BAKER


We concur:

/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS




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