                      IN THE COURT OF APPEALS OF IOWA

                                         No. 13-0168
                                     Filed April 30, 2014


IN THE MATTER OF D.A.S.,
Alleged to be Seriously
Mentally Impaired,

D.A.S.,
      Respondent-Appellant.
________________________________________________________________


         Appeal from the Iowa District Court for Poweshiek County, Joel D. Yates,

Judge.



         Respondent appeals the decision of the court finding he was seriously

mentally impaired and should be involuntarily committed. AFFIRMED.



         Michael S. Fisher of Fisher Law Office, Oskaloosa, for appellant.

         D.A.S., Grinnell, pro se.

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

Assistant Attorney General, and Rebecca L. Petig, County Attorney, for appellee

State.



         Considered by Vaitheswaran, P.J., Tabor, J., and Huitink, S.J.*

         *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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HUITINK, S.J.

        Respondent appeals the decision of the court finding he was seriously

mentally impaired and should be involuntarily committed. There is clear and

convincing evidence in the record to support the court’s decision. We affirm.

        I. Background Facts & Proceedings

        On January 15, 2013, police officers responded to a report of a man

wearing a ski mask peeking into windows. The officers apprehended D.A.S.,

who refused to cooperate with the officers. D.A.S. was criminally charged with

trespass and public urination. The next day, D.A.S.’s father and step-mother

filed applications seeking involuntary hospitalization for D.A.S. on the ground he

was seriously mentally impaired. They noted D.A.S. had been diagnosed with

paranoid schizophrenia and had been refusing medication or medical help of any

kind.   They were concerned he could put himself or others in danger, as

exemplified by his failure to cooperate with officers.

        A judicial magistrate ordered that D.A.S. should be detained at a hospital

for a mental health examination. A physician’s report, filed pursuant to Iowa

Code section 229.10 (2013), stated D.A.S. was mentally ill and had been

diagnosed with chronic paranoid schizophrenia. Dr. Rickey Wilson stated D.A.S.

was not capable of making responsible decisions with respect to having

hospitalization or treatment because he had no insight into his need for

treatment. Dr. Wilson also stated D.A.S. was likely to physically injure himself or

others, citing his “threats to others as per petition.”   Inpatient treatment was

recommended until D.A.S.’s situation was stabilized.
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       A hearing was held on January 22, 2013.        The State relied upon the

information presented in the physician’s report. D.A.S. testified he had a bladder

condition “in which I had to go immediately when I had to go,” but he felt he was

getting over that condition. He stated he was already seeking treatment, but did

not give any specifics.    The court determined D.A.S. was seriously mentally

impaired and ordered impatient treatment. D.A.S. appealed the decision of the

court, claiming the record does not support a finding he is seriously mentally

impaired.

       II. Standard of Review

       In involuntary commitment proceedings we review challenges to the

sufficiency of the evidence for the correction of errors at law. In re B.B., 826

N.W.2d 425, 428 (Iowa 2013). The Iowa Supreme Court has stated:

       The allegations made in an application for involuntary commitment
       must be proven by clear and convincing evidence. Clear and
       convincing evidence is less burdensome than evidence establishing
       proof beyond a reasonable doubt, but more burdensome than a
       preponderance of the evidence. “It means that there must be no
       serious or substantial doubt about the correctness of a particular
       conclusion drawn from the evidence.”

Id. (citations omitted).

       III. Merits

       D.A.S. asserts the State did not present sufficient evidence at the

commitment hearing to support a finding he was seriously mentally impaired and

should be placed in inpatient treatment. The term “seriously mentally impaired”

is defined as:

       [T]he condition of a person with mental illness and because of that
       illness lacks sufficient judgment to make responsible decisions with
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       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 a 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(17).

       The definition of serious mental impairment is considered to have three

elements:    (1) a person has a mental illness; (2) the person lacks sufficient

judgment to make responsible decisions with respect to the person’s

hospitalization or treatment; and (3) the person is likely to inflict physical injury on

the person’s self or others, to inflict serious emotional injury on certain persons,

or is unable to satisfy the person’s physical needs. In re J.P., 574 N.W.2d 340,

343 (Iowa 1998). D.A.S. asserts the State did not present clear and convincing

evidence of the second and third elements.

       We first address the second element. In his application for involuntary

hospitalization, D.A.S.’s father stated, “He refused meds or to work with doctors.”

D.A.S.’s stepmother stated he “refuses medication and medical help of any kind.”

The examining physician, Dr. Wilson, found D.A.S. had no insight into his need

for treatment. While D.A.S. testified at the commitment hearing that he was

already seeking treatment, there was no evidence about whether he was actually

addressing his mental health concerns. We conclude the State presented clear

and convincing evidence D.A.S. lacked sufficient judgment to make responsible
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decisions with respect to his need for hospitalization or treatment. See Iowa

Code § 229.1(17); J.P., 574 N.W.2d at 343.

      For the third element, the State alleged D.A.S. was likely to inflict serious

physical injury on himself or others.       The term “likely” means “probable or

reasonably to be expected.” In re Oseing, 296 N.W.2d 797, 801 (Iowa 1980).

“This element requires a predictive judgment, ‘based on prior manifestations but

nevertheless ultimately grounded on future rather than past danger.’” Id. (citation

omitted). Additionally, the State must show the danger the person poses to

himself or others has been evidenced by a recent overt act, attempt, or threat. In

re Mohr, 383 N.W.2d 539, 542 (Iowa 1986).

      On January 15, 2013, D.A.S. was the subject of a police report concerning

a man wearing a ski mask who had been peeking or staring into windows. His

actions involved trespass onto the property of others and public urination. He

refused to cooperate with officers when he was arrested.        In his application,

D.A.S.’s father expressed concern that D.A.S. had the potential of confronting an

officer who might not know of his mental health diagnosis. He noted D.A.S. had

refused to cooperate with police officers.      His stepmother stated, “There is

concern that he may put himself (and perhaps others) in danger.          A recent

example of this is his refusal to cooperate with police or other authorities.” Dr.

Wilson stated D.A.S. was likely to physically injure himself or others, citing his

threats to others. We conclude there is clear and convincing evidence in the

record to show D.A.S. was likely to injure himself or others, and this was

exemplified by his recent overt act of refusing to cooperate with officers at the

time he was arrested. See Iowa Code § 229.1(17); Mohr, 383 N.W.2d at 542.
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      We affirm the decision of the district court finding D.A.S. was seriously

mentally impaired. Based on the recommendation in the physician’s report, the

court properly ordered D.A.S. placed in inpatient treatment for a psychiatric

evaluation and appropriate treatment.

      AFFIRMED.
