                     IN THE COURT OF APPEALS OF IOWA

                                     No. 19-1888
                                 Filed June 3, 2020


IN THE MATTER OF L.H.,
Alleged to Be Seriously Mentally Impaired,

L.H.,
     Respondent-Appellant.
________________________________________________________________


        Appeal from the Iowa District Court for Lee (North) County, Ty Rogers,

District Associate Judge.



        Appellant appeals the district court decision finding he was seriously

mentally impaired. AFFIRMED.



        William Monroe, Burlington, for appellant.

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

Assistant Attorney General, for appellee State.



        Considered by Bower, C.J., and Doyle and Schumacher, JJ.
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PER CURIAM

       L.H. appeals the district court decision finding he was seriously mentally

impaired. We conclude there is substantial evidence in the record to support the

district court’s finding that without treatment L.H. would likely inflict serious

emotional injury on individuals who lacked a reasonable opportunity to avoid

contact with him.

       I.     Background Facts & Proceedings

       L.H. is in prison on a charge of first-degree murder and is serving a life

sentence. On February 21, 2013, prison personnel filed an application for an order

of involuntary hospitalization. The application stated L.H. had assaulted staff

members and had been writing sexually inappropriate and threatening letters. L.H.

exposed himself and masturbated in front of staff. A psychological report at that

time stated L.H. had escalating behavior, “from verbal threats to sexual letters and

harassments to even threats of graphic violence to the same staff he wants to

sexually assault.”

       L.H. was diagnosed with schizophrenia and delusional disorder, erotomanic

type. He was determined to be seriously mentally impaired and that status has

continued. He was prescribed medication for his condition.

       On October 8, 2019, a periodic report was filed by Dr. Gregory Keller, a

psychiatrist, which stated L.H. remained seriously mentally impaired. The report

stated L.H. had “many cycles of increased hyper-sexuality and then periods of

stability where it is contained to just letter writing.” L.H. sent letters to the health

services director “to try and plead his case that he does not need medications or

civil commitment, but in those he diverts into veiled threats and made inappropriate
                                           3


sexual comments.” L.H. continued to attempt to send sexually graphic letters to

women. Dr. Keller stated, “I continue to recommend civil commitment for the ability

to medicate and treat [L.H.’s] symptoms, and to have the ability to hold him

accountable for taking the medications.          Without treatment, he is a direct

danger/threat to others emotionally and potentially physically.”

       A hearing was held on October 18. Dr. Keller testified the sexually graphic

letters sent by L.H. were “disturbing” to the people who received them. L.H.

sometimes left his place of assignment to attempt to personally deliver the letters,

and Dr. Keller stated “if he’s somewhere [and] he gets out of sight from someone,

it could be potentially dangerous.” Dr. Keller testified L.H. “ha[d] not actually

harmed anybody else other than the emotional trauma that these letters and these

activities can produce.” He stated the letters, exposure, and masturbation made

staff members “feel very uncomfortable and unsafe where they’re working, not

knowing if there is going to be activity.” Dr. Keller stated the letters were precursors

to further behavior.

       The district court found L.H. had been diagnosed with a mental illness, his

condition could be improved with medication, but L.H. would not voluntarily take

medication without court intervention.         The court determined that without

treatment, L.H. “would be likely to inflict serious emotional injury on individuals who

lack reasonable opportunity to have contact with him.” The court stated:

       Openly exposing himself to staff members or openly masturbating in
       front of those who cannot avoid contact clearly would have great
       potential to inflict serious emotional injury on them. Additionally, the
       Respondent has attempted to send uninvited letters to unknowing
       recipients that are highly graphic and sexual in nature. . . . A person
       who receives such letter and reads it unaware of the Respondent’s
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       history or proclivity is very likely to be seriously emotionally disturbed
       by such a letter.

The court concluded L.H. remained seriously mentally impaired. L.H. appeals the

court’s decision.

       II.     Standard of Review

       Challenges to the sufficiency of the evidence in involuntary commitment

proceedings are reviewed for the correction of errors at law. In re B.B., 826 N.W.2d

425, 428 (Iowa 2013). An allegation of serious mental impairment must be proven

by clear and convincing evidence. Iowa Code § 229.13(1) (2019). “Clear and

convincing evidence is less burdensome than evidence establishing proof beyond

a reasonable doubt, but more burdensome than a preponderance of the evidence.”

B.B., 826 N.W.2d at 428. “It means that there must be no serious or substantial

doubt about the correctness of a particular conclusion drawn from the evidence.”

Id. (citation omitted).

       While the elements of serious mental impairment must be established by

clear and convincing evidence, the district court’s factual findings are binding on

appeal if they are supported by substantial evidence. In re J.P., 574 N.W.2d 340,

342 (Iowa 1998).        “Evidence is substantial if a reasonable trier of fact could

conclude the findings were established by clear and convincing evidence.” Id.

       III.    Merits

       In order to be considered seriously mentally impaired under section

229.1(20), there must be clear and convincing evidence the respondent (1) has a

mental illness; (2) lacks “sufficient judgment to make responsible decisions with

respect to the person’s hospitalization or treatment”; and (3) is “likely, if allowed to
                                            5


remain at liberty, to inflict physical injury on ‘the person’s self or others,’ to inflict

serious emotional injury on those close to the person, or to be unable to satisfy the

person’s physical needs.” Iowa Code § 229.1(20). Section 229.1(20) now also

includes a fourth category, “a lack of compliance with treatment.”1                    Id.

§ 229.1(20)(d).

         The State’s burden to show a person is seriously mentally impaired “does

not become less stringent when a person challenges his or her continued

commitment.” In re L.H., 890 N.W.2d 333, 340 (Iowa Ct. App. 2016). “Accordingly,

to prolong a person’s commitment, all three elements—mental illness, lack of

judgment, and dangerousness—must continue to exist.” Id.

         On appeal, L.H. does not dispute the court’s findings that he has a mental

illness and lacks “sufficient judgment to make responsible decisions with respect


1   Iowa Code section 229.1(20) provides:
        “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.
                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.
                                           6

to the person’s hospitalization or treatment.” See Iowa Code § 229.1(20). He

challenges only the district court’s finding that he was likely to inflict serious

emotional injury on those who lacked a reasonable opportunity to avoid contact

with him if he was not treated for his mental illness. See id. § 229.1(20)(b). He

asserts the State did not present clear and convincing evidence to show he was

likely to inflict serious emotional injury on others.

       The term “serious emotional injury” is defined as “an injury which does not

necessarily exhibit any physical characteristics, but which can be recognized and

diagnosed by a licensed physician or other mental health professional and which

can be causally connected with the act or omission of a person who is, or is alleged

to be, mentally ill.” Id. § 229.1(19). We consider whether there is substantial

evidence in the record to show a person is likely to inflict serious emotional injury

on others who cannot avoid contact with the person if the person is allowed to

remain without treatment. See In re C.D., No. 16-1491, 2017 WL 706389, at *3

(Iowa Ct. App. Feb. 22, 2017).

       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). The threat the patient poses

must “be evidenced by a ‘recent act, attempt, or threat.’” In re Mohr, 383 N.W.2d

539, 542 (Iowa 1986).

       We previously stated, “Emotional injury is not precisely delineated, but it

would include, for example, serious disruption of family relations leading to

depression or nervous breakdown of family members, physical violence on the part
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of others, or medically diagnosable complications.” In re J.K., No. 15-1621, 2016

WL 3002811, at *5 (Iowa Ct. App. May 25, 2016) (quoting Randall Bezanson,

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

Rev. 262, 302 (1975)). A finding that a person will cause emotional trauma to

others is not sufficient to show serious emotional injury. J.P., 574 N.W.2d at 344.

However, the trial court in the instant case made a finding that those individuals

that were unable to avoid contact with the respondent were likely to suffer serious

emotional injury, more than a finding of emotional trauma. Based on our careful

review of the record, we agree that substantial evidence supports this finding.

      Dr. Keller testified L.H.’s sexually graphic letters were “disturbing” to the

people who received them and caused “emotional trauma.”             When asked to

describe the emotional harm L.H. had caused, Dr. Keller stated,

      With staff members that have been targeted, we have, like I’ve seen,
      have to, you know, they avoid working. They have to change their
      patterns and routines to not be in the area where he is.
               It’s, you know, it makes them feel very uncomfortable and
      unsafe where they’re working, not knowing if there is going to be
      activity.
               We’ve had, you know, with other—in our—the nature of our
      environment, there have been staff assaults and actual staff sexual
      assaults so it is something that, especially female staff, are very
      worried about.
               So when we have this sexualized, sexually-charged and
      targeted sexual material, it makes it a very uncomfortable
      environment for the unsuspecting staff or even staff that has
      repeatedly told him and know him and expect and have seen this
      stuff, it still makes it an uncomfortable environment.

      Dr. Keller testified that staff who come into contact with L.H., either through

sexually graphic letters, or while he was exposing himself or masturbating, found

his conduct “disturbing.” The staff members were uncomfortable to the point they

avoided working near him. L.H.’s conduct caused staff members at the prison to
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feel unsafe. In particular, L.H. targeted some female staff members. He had

written down the license plate numbers of some staff members. Also, he left his

place of assignment to personally deliver sexually graphic letters to some staff

members. The prison staff could not avoid contact with L.H. because their jobs

required them to interact with him.

       We conclude there is substantial evidence in the record to support the

district court’s findings that “[w]ithout Court required treatment, the Respondent

would be likely to inflict serious emotional injury on individuals who lack

reasonable opportunity to avoid contact with him.” We do not require evidence

that a person has already caused a medically-diagnosed serious emotional injury,

but consider whether it is likely the person will cause a future injury. In re S.S.,

No. 04-1293, 2005 WL 724514, at *3 (Iowa Ct. App. Mar. 31, 2005).               The

testimony of Dr. Keller, a psychiatrist, supported a finding this was a likely future

result of L.H.’s conduct if he remained without treatment. The evidence shows

L.H. engaged in recent overt acts of making “veiled threats” and writing sexually

explicit letters, which were seen as a precursor to further escalating behavior.

       We affirm the district court’s decision finding L.H. was seriously mentally

impaired.

       AFFIRMED.
