                                                                                   February 10 2015


                                      DA 14-0041
                                                                                   Case Number: DA 14-0041

             IN THE SUPREME COURT OF THE STATE OF MONTANA

                                      2015 MT 40



IN THE MATTER OF:

B.O.T.,

          Respondent and Appellant.



APPEAL FROM:       District Court of the Fourth Judicial District,
                   In and For the County of Missoula, Cause No. DI 13-115
                   Honorable Robert L. Deschamps, III, Presiding Judge


COUNSEL OF RECORD:

            For Appellant:

                   Kathryn McEnery, McEnery Law Office, PLLC, Kalispell, Montana

            For Appellee:

                   Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss,
                   Assistant Attorney General, Helena, Montana

                   Kirsten H. Pabst, Missoula County Attorney, Erica Grinde, Deputy
                   County Attorney, Missoula, Montana



                                               Submitted on Briefs: December 10, 2014
                                                          Decided: February 10, 2015


Filed:

                   __________________________________________
                                     Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1    Appellant B.O.T. appeals from the order and judgment of the Fourth Judicial

District Court, Missoula County, committing him to Montana State Hospital for 90 days.

We affirm.

¶2    B.O.T. presents the following issue for review:

      Whether there was substantial evidence to conclude that B.O.T., because of a
      mental disorder, was unable to provide for his own basic needs of food, clothing,
      shelter, health or safety.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3    On December 24, 2013, the State filed a petition for commitment alleging that on

the night of December 23, 2013, B.O.T. was taken by ambulance to the emergency room

of Community Medical Center in Missoula. B.O.T. had apparently been lying on the

ground at a Missoula bus station. The District Court later observed that the night was

cold, and that it was “sleeting and raining and extraordinarily miserable.” B.O.T. was

admitted to Community Medical Center overnight for observation and treatment. Further

diagnosis revealed that B.O.T. suffered from several chronic health conditions: diabetes,

hypertension, and hyperkalemia.1

¶4    The petition further alleged that hospital staff reported B.O.T. was very

uncooperative and pulled out his IV in order to get some candy. After the IV was put

back in place, B.O.T. broke it into two pieces. Due to B.O.T.’s irrational behavior and

his refusal to take medications as directed, B.O.T. was referred for a mental health


      1
           Hyperkalemia refers to abnormally high potassium concentration in the blood.
Dorland’s Illustrated Medical Dictionary 795 (28th ed. 1994).


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evaluation to be conducted by J. David Washburn, a licensed clinical social worker. Mr.

Washburn found B.O.T. difficult to evaluate because B.O.T.’s thinking was extremely

disorganized, his mumbled speech was difficult to understand, and B.O.T. did not

provide much useful information. Mr. Washburn deduced that B.O.T. was a client at

Winds of Change Mental Health Center, and upon further inquiry, Washburn learned that

B.O.T.’s condition had been deteriorating because of B.O.T.’s refusal to cooperate with

the administration of medication by staff at that facility. In addition, Mr. Washburn

learned that B.O.T. was given a food stamp card to purchase food, but was either

unwilling or unable follow through with getting a PIN to activate the card. B.O.T. was

also reportedly “having delusions about receiving large sums of money deposited into his

account from his sister in Louisiana . . . .”

¶5     On December 26, 2013, the District Court held an initial appearance on the State’s

petition and advised B.O.T. of his rights pursuant to § 53-21-115, MCA. B.O.T. was

appointed counsel, professional persons were appointed to examine B.O.T., and a case

manager from Western Montana Mental Health Center was appointed as friend to protect

B.O.T.’s interests.    A commitment hearing was scheduled for December 27, 2013.

Pending the hearing, the District Court ordered that B.O.T. be detained at Montana State

Hospital (MSH) pursuant to § 53-21-124, MCA.

¶6     During the commitment hearing on December 27, 2013, the State presented the

testimony of Thomas Hodgetts, a licensed clinical social worker and certified mental

health professional with Western Montana Mental Health Center.            Hodgetts had

evaluated B.O.T. around noon the day of the hearing.        Prior to the evaluation and


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commitment hearing, Hodgetts reviewed the evaluation conducted by Washburn, the

records of MSH, and consulted with Rosie Jennings, a treatment provider at Winds of

Change. Hodgetts explained that B.O.T. had been residing at several group homes

operated by Winds of Change, but was no longer able to do so because of inappropriate

sexual behavior and refusal to take medication. He was not able to stay at the Poverello

Center for the same reasons.      Additionally, Hodgetts related that B.O.T. had some

misdemeanor charges involving inappropriate sexual behavior, which resulted in a

three-week stay in the Missoula Detention Center.          Hodgetts indicated B.O.T. was

released about ten days prior to the State’s filing of the petition, and had been residing at

area motels. However, B.O.T. had been evicted from the Colonial Motel and feared he

would be arrested for nonpayment of room charges.

¶7     Hodgetts surmised that Winds of Change was the designated protective payee for

B.O.T.’s Supplemental Security Income (SSI) funds. Finally, Hodgetts described that,

based upon available information, B.O.T. “absolutely did not want to create a PIN

number in order to access his [food stamp] card. He was noncompliant with his case

manager’s suggestions on how to do that. He would not cooperate with the case manager

in obtaining a PIN number.”

¶8     Hodgetts concluded that B.O.T. was “unable—not allowed to go to the Poverello

Center, which puts him at risk of homelessness in the middle of winter. That certainly

would be harmful.” Further, Hodgetts noted B.O.T. was not able to access his food

stamp card. Hodgetts explained that “even though B.O.T. may have the [financial]




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resource, he does not seem able to utilize the resource that’s available to get food. So he

does not have access to safe shelter and safe food at this time.”

¶9     Hodgetts also testified that, based upon a reasonable degree of medical certainty,

B.O.T. suffers from schizoaffective disorder and it was Hodgetts’s opinion, based upon

the foregoing information, that B.O.T. is unable to meet basic needs of food and shelter.

Hodgetts opined that the least restrictive environment for treatment of B.O.T. was MSH.

Finally, because B.O.T. had been uncooperative in receiving his injectable antipsychotic

medication, Hodgetts believed an involuntary medication order was necessary.

¶10    B.O.T. testified that his plan, if he were permitted to leave the hearing, was to go

to the bus station, go to the Winds of Change “compound” to get “the balance of $700

due me,” and then go to Wal-Mart to buy some tape to finish boxing up his things. After

boxing up his things, he would travel “westward, to El Monte, California,” where his

brother has a medical practice “that is in need of a research associate.” When counsel

inquired about what he would do for food, B.O.T. explained that he would get his last

month’s check from Winds of Change, go charge his debit card, and “go to the Savmor

food store and buy a pastrami sandwich.” He would then buy his bus ticket for El Monte

and leave at “11 o’clock tonight.” If he did not have enough money for a bus ticket he

anticipated he would go back to the Missoula Detention Center. B.O.T. also clarified that

his diagnosis is schizo type and not schizoaffective or schizophrenic, and that he takes 1.1

milligrams of Risperdal for his mental disorder and metformin for his diabetes. Although

B.O.T. was able to articulate coherent answers to some questions with reasonable

specificity, his answers overall can only be characterized as disjointed and disorganized.


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¶11   The District Court made the following observation at the conclusion of the

hearing:

              Well, this is a tough case because there’s a lot of people that are odd
      out there, and we can’t lock them all in Warm Springs. There’s a lot of
      people that have trouble with day-to-day living, and we can’t lock them all
      up.
              On the other hand, [B.O.T.’s] thinking is plainly disorganized. By
      his own admission, he’s got some kind of schizo-related disease. And it’s
      pretty apparent that he was at risk on at least the night of the 23rd because
      he ended up at the emergency room for some kind of medical condition.
              And it does appear that he’s got an issue with housing. I’m not even
      sure that the Colonial, based on his testimony, is available to him. His plan
      to go to California is all hinged on getting money from . . . Winds of
      Change, I guess which . . . I’m not sure that’s possible, although I don’t
      know.
              And I think he is a danger to himself in his current condition; not
      because he’s going to do self-harm, as the witness said, but because he’s
      going to either engage in some kind of conduct that gets him back in jail or
      in the hospital.

¶12   In its written order, the District Court concluded that “[B.O.T.] was unable to

provide the Court with a clear plan to care for his basic needs.” B.O.T. “admitted to

having a serious mental illness” and is “unable to demonstrate how he would care for

himself to protect himself from harm if released from inpatient treatment.” The District

Court ordered B.O.T. committed to MSH for 90 days and that medication could be

involuntarily administered.

                              STANDARD OF REVIEW

¶13   We review a district court’s order of commitment to determine whether the court’s

findings are clearly erroneous and its conclusions of law are correct. In re Mental Health

of L.K.-S., 2011 MT, ¶ 14, 359 Mont. 191, 247 P.3d 1100. A finding of fact is clearly

erroneous if it is not supported by substantial evidence or if, after review of the entire


                                            6
record, we are left with the definite and firm conviction that a mistake has been made.

L.K.-S., ¶ 14.   When determining whether substantial evidence supports the district

court’s findings, this Court views the evidence in the light most favorable to the

prevailing party. In re Mental Health of T.J.F., 2011 MT 28, ¶ 17, 359 Mont. 213,

248 P.3d 804.

                                    DISCUSSION

¶14    Whether there was substantial evidence to conclude that B.O.T., because of a
       mental disorder, was unable to provide for his own basic needs of food, clothing,
       shelter, health or safety.

¶15    At the trial on a petition for commitment, the court must first determine whether

the respondent suffers from a mental disorder, defined as “any organic, mental, or

emotional impairment that has substantial adverse effects on an individual’s cognitive or

volitional functions.” Section 53-21-102(9)(a), MCA. Upon finding that a person suffers

from a mental disorder, the court must then determine whether the respondent requires

commitment by considering several criteria set forth in § 53-21-126(1), MCA, including

“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.” All

physical facts and evidence must be proven beyond a reasonable doubt, and all other

matters must be proven by clear and convincing evidence. Section 53-21-126(2), MCA.

Mental disorders must be proven to a reasonable degree of medical certainty. Section

53-21-126(2), MCA.     If the court is satisfied that any one of the criteria listed in

§ 53-21-126(1), MCA, is met, then commitment may be ordered. Section 53-21-127(7),

MCA.


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¶16    The District Court found, and the parties do not dispute, that B.O.T. suffers from a

mental disorder as defined in § 53-21-102(9)(a), MCA. Although the District Court did

not specifically state which provision of § 53-21-126(1), MCA, it was relying upon, the

District Court concluded that “[b]ased on his mental state and recent behaviors,

Respondent is unable to meet his basic needs, which puts Respondent at risk of imminent

self harm.” We construe this as a determination made pursuant to § 53-21-126(1)(a),

MCA, and accordingly review whether substantial evidence supports the finding that

B.O.T., “because of a mental disorder, is substantially unable to provide for [his] own

basic needs of food, clothing, shelter, health, or safety.”

¶17    The professional person may testify as to the ultimate issue of whether the

respondent is suffering from a mental disorder and requires commitment, but this

testimony is insufficient if there is no evidence that the respondent, because of a mental

disorder, is substantially unable to take care of the respondent’s own basic needs. Section

53-21-126(4)(a), MCA. We again observe, however, that it is “not necessary to present

evidence of overt acts to prove that respondent suffers from a mental disorder that renders

him substantially unable to provide for his basic needs.” In re R.F., 2013 MT 59, ¶ 26,

369 Mont. 236, 296 P.3d 1189 (citing In re G.P., 246 Mont. 195, 198, 806 P.2d 3, 6

(1990)). Evidence of overt acts or omissions is only necessary where the commitment is

based upon the imminent threat of self-inflicted injury or injury to others. Section

53-21-126(2), MCA; R.F., ¶ 26.

¶18    The State’s only witness was its professional person, Thomas Hodgetts. Hodgetts

testified that it was his opinion that B.O.T. could not meet his basic needs of food,


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clothing, and shelter as a result of B.O.T.’s serious mental disorder. Hodgetts based his

opinion upon information obtained in records, from consultation with other treatment

providers, and from consultation with B.O.T. himself.         No objection was made to

Hodgetts’s testimony regarding the information he relied upon in making his conclusion.

The evidence established that B.O.T. had a history of serious mental illness requiring

injectable antipsychotic medication, that he was homeless, and that he was unable to

obtain food because he refused to activate his food stamp card. B.O.T.’s own testimony

established that he had a serious mental disorder, that he had no housing or shelter, and

that he had no immediate ability to obtain food—relying instead upon an inactivated food

stamp card and a wire of money from a sister in Louisiana. As the District Court

observed, B.O.T.’s thinking was “plainly disorganized” and B.O.T.’s inability to care for

his own basic needs “puts [B.O.T.] at risk of imminent self harm.”

¶19    B.O.T. argues that because a person may temporarily be between housing

placements does not mean a person cannot take care of his basic needs. B.O.T. also

argues that no evidence was submitted that B.O.T. was malnourished or hungry and that

evidence was presented by B.O.T. that he was compliant in taking his medication.

Finally, B.O.T. argues that a significant portion of the State’s evidence was hearsay.

¶20    The question here is whether there was substantial evidence admitted without

objection at the commitment hearing which supported the court’s findings. T.J.F., ¶ 17.

The evidence presented without objection showed that B.O.T. had recently presented to

the emergency room because of a lapse in care of his chronic medical conditions, as well

as uncertainty regarding his living conditions and his disorganized thought. B.O.T. had


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no immediate ability to obtain food and no cognizable plan for housing or shelter.

B.O.T.’s serious mental disorder requires administration through injection of

antipsychotic medication. B.O.T. also suffers from diabetes which requires medication,

and he had elevated potassium levels upon admission to the emergency room. B.O.T.’s

own testimony confirmed many of these findings.

¶21    The Court’s role is not to determine whether there was sufficient evidence to

enable the lower court to reach a different conclusion, but simply to determine whether

the conclusion that it did reach is supported by substantial evidence. Schmidt v. Cook,

2005 MT 53, ¶ 31, 326 Mont. 202, 108 P.3d 511. Based upon our review of the record,

there is substantial evidence demonstrating that B.O.T. was unable to provide for his own

basic needs of food, clothing, shelter, health, or safety. The findings made by the District

Court were not clearly erroneous.

¶22    Finally, we address B.O.T.’s contention that a significant amount of the State’s

evidence relied upon inadmissible hearsay. B.O.T. did not object to the State’s evidence,

nor does B.O.T. request that we invoke the doctrine of plain error in order to review the

alleged error. While we held in In re Mental Health of J.D.L., 2008 MT 445, ¶ 9,

348 Mont. 1, 199 P.3d 805, that the Court will exercise plain error review in an

involuntary commitment proceeding to consider unpreserved error “because [the

respondent’s] substantial right—liberty—is at stake and our failure to review the District

Court’s alleged error would compromise the judicial process,” ordinarily, we still require

the assertion of plain error to be raised and argued on appeal. B.O.T. has not asserted

plain error review or developed an argument that the alleged error violated a substantial


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right.    We therefore reject B.O.T.’s claims that hearsay evidence was improperly

admitted, which were raised for the first time on appeal and without an assertion or

argument that plain error review is warranted.

                                     CONCLUSION

¶23      In conclusion, we note the District Court’s apt observation “that this is a tough

case because . . . [t]here’s a lot of people that have trouble with day-to-day living, and we

can’t lock all of them up.” We emphasize that neither having a mental disorder nor being

homeless or hungry are reasons in themselves to involuntarily commit a person.

However, the finding that a mental disorder results in a person being homeless or hungry

is sufficient to satisfy the criteria of § 53-21-126(1)(a), MCA, and invoke the provisions

of § 53-21-127(7), MCA, authorizing involuntary commitment. We observe that in many

instances these are difficult findings for the trial court to make, and we are therefore

vigilant regarding our standard of review and the province of the trial court to weigh the

evidence and judge the credibility of the witnesses. We thus conclude that the judgment

and order of the District Court finding that B.O.T. suffered from a mental disorder which

prevented B.O.T. from taking care of his own basic needs is supported by substantial

evidence and the findings of the District Court are not clearly erroneous. The judgment

and order involuntarily committing B.O.T. is affirmed.



                                                  /S/ LAURIE McKINNON

We Concur:
/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER


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/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA




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