                     IN THE COURT OF APPEALS OF IOWA

                                     No. 16-0185
                              Filed December 21, 2016


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

L.H.,
     Respondent-Appellant.
________________________________________________________________


        Appeal from the Iowa District Court for Delaware County, Stephanie C.

Rattenborg, District Associate Judge.



        L.H. appeals the district court’s order of continued commitment under Iowa

Code chapter 229 (2015). REVERSED AND REMANDED.



        Leslie M. Blair III of Blair & Fitzsimmons, P.C., Dubuque, for appellant.

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

Attorney General, for appellee State.



        Considered by Danilson, C.J., and Vaitheswaran and Tabor, JJ.
                                            2


TABOR, Judge.

       L.H. appeals the district associate judge’s (DAJ) order of continued

outpatient commitment under Iowa Code section 229.14A (2015).                  While not

disputing he suffers from a mental illness, L.H. argues the court’s refusal to

terminate the commitment was not supported by substantial evidence. We agree

the sparse record is insufficient to establish that L.H. continues to lack sufficient

judgment to make decisions about his treatment nor does it show any recent

overt act indicating he still poses a danger to himself or others. Accordingly, we

reverse and remand for termination of L.H.’s commitment.

I.     Facts and Prior Proceedings

       L.H. has been diagnosed with schizoaffective disorder, bipolar type, and

has been under court-ordered civil commitment for more than three years,

generally on an outpatient basis. In August 2013, his mother and stepfather filed

an application alleging L.H. had been responding to auditory hallucinations,

calling people on the phone to ask where he was, passing cars on the highway

and slowing down in front of them, and repeatedly alleging people were “out to

get him.” According to his mother, L.H. had not taken his medication in four

weeks. Following a hearing, the DAJ ordered L.H. to outpatient commitment.

The DAJ “withheld” specific findings of fact pending L.H.’s “compliance with

outpatient treatment” at Associates for Behavioral Health in Hiawatha.1

       In March 2014, the DAJ transferred L.H. to outpatient treatment in

Dubuque. L.H.’s periodic report indicated his condition was improving. But five


1
  The court’s order does not cite authority for “withholding” its findings of fact, and we
find none in chapter 229.
                                         3


months later, the DAJ entered an emergency hospitalization order, detaining L.H.

at Mercy Hospital in Des Moines, after receiving information L.H. was “off

medication” and having “paranoid and delusional thoughts.” On September 3,

2014, the DAJ entered an order committing L.H. to outpatient treatment in

Dubuque. Again, the order lacked findings of fact or conclusions of law. On

September 4, 2014, the Dubuque provider filed a periodic report opining L.H.’s

condition remained unchanged.

       In January 2015, L.H. filed a self-represented request to change his

treating provider to Abbe Center in Manchester. But before the court ruled on his

request, L.H.’s mother and stepfather filed another application alleging serious

mental impairment.      According to their supporting affidavits, L.H. verbally

threatened to harm them and their dog, pushed his mother, and forced his way

into their bedroom after they sought refuge from him. The DAJ ordered L.H. to

be hospitalized pending hearing on the application. The physician’s report filed

before the hearing indicated L.H. was “agreeable to taking medications, he has

been completely cooperative in the hospital,” and “he has shown no violent acts.”

The physician recommended evaluation on an outpatient basis, reasoning: “If he

is not provoked, and continues to take his medication I think he will be safe.”

       At the February 6, 2015 hearing, L.H. stipulated to the findings and

recommendations in the physician’s report, and the DAJ ordered L.H. to obtain

outpatient treatment at Abbe Center. Over the next ten months, Abbe Center

filed four periodic reports indicating L.H.’s condition remained unchanged and

recommending continuation of outpatient treatment.        The court issued orders

continuing L.H.’s commitment following each report.
                                         4


       On December 28, 2015, following the fourth order continuing his

commitment, L.H. filed a self-represented motion contesting the court’s continued

involvement in his medical treatment and requesting termination of his outpatient

hospitalization:

              To: Whom It May Concern
              I wish to contest Abbe Center for Community Mental Health
       decision through the courts. I am keeping all appointments & take
       medication as prescribed. I believe I do not need the court’s
       supervision anymore. Abbe Center personnel . . . and my
       counselor from Independence Counseling say I’m doing better than
       when I first started.
              Sincerely, [L.H.]

       The DAJ treated L.H.’s filing as a request for a placement hearing under

section 229.14A and scheduled a hearing for January 11, 2016. Three days

before the hearing, L.H.’s physician, Dr. Douglas Jones, filed a periodic report

checking a box next to the statement, “Respondent is seriously mentally impaired

and in need of treatment, and can continue in outpatient treatment” and adding

this handwritten notation: “Recommend to continue on commitment for further

stabilization.” Dr. Jones also stated in the report that “the further length of time

the respondent will require outpatient treatment” was “not possible to be

determined.”

       The State offered no testimony or other evidence at the perfunctory

January hearing. L.H. provided the court with a letter from his therapist, Carol

Ogea, who described L.H. as “medication compliant, stable, and managing his

symptoms without conflict or problems in his home, relationships or community,”
                                           5


but who did not recommend his commitment be terminated.2 At L.H.’s request,

the DAJ tried to contact Ogea by phone but was unable to reach her.

         L.H. also asked to have Dr. Jones cross-examined. The State responded

it “did not anticipate calling anyone simply because the doctor’s recommendation

is stated in writing twice within the last two months.” The State suggested L.H.

could “certainly try to get [the doctor] on the phone” if L.H. wanted to call him as a

witness, but the State could not guarantee his availability. The court declined

L.H. the opportunity to attempt to contact Dr. Jones by telephone, reasoning: “He

just filed a report Friday . . . saying that he’s not recommending closure at this

time.”

         The DAJ told L.H., “I don’t think you’re going to get what you want today

which is the doctor and your therapist to recommend closure.                But they’re

indicating you’re close to that point.” At the hearing, L.H. said he would like to

appeal. The DAJ told him his appeal would be heard by the district court.

         Immediately after the hearing, the DAJ filed a written order stating “this

matter is NOT terminated at this time. The court will review in [ninety] days for a

physician’s report and will terminate this matter upon recommendation of

respondent’s doctor or therapist.” The DAJ also appointed new counsel for L.H.

That same day, L.H. filed a handwritten notice of appeal, again addressed to

“whom it may concern,” expressing his desire to appeal from the January 11




2
 Instead, L.H.’s therapist suggested “any additional goals and needs of [L.H.] under his
court committal be specified so that his therapeutic work cannot only be specific to them
but be able to show specific work and progress expected of him under the court order to
eventually satisfy the court.”
                                               6


court hearing. The next day, the district court set a hearing on L.H.’s appeal for

January 19.

         On January 19, the district judge held a de novo trial—ostensibly under

section 229.21(3)(c). The district judge issued an order the same day, affirming

the DAJ’s order for continued outpatient treatment. L.H. filed a notice of appeal

from the district judge’s order on January 20, 2016, stating he disagreed with “the

decision of the courts” and with the diagnosis from his doctor but was “willing to

continue treatment and medications on a self-reliant basis.”

II.      Jurisdiction

         On appeal, the State raised this question: whether the district court’s

appellate jurisdiction includes review of a DAJ’s order continuing placement in

chapter 229 commitment proceedings.3 After reviewing sections 229.21(3) and

602.6306(2), we concluded the district judge did not have jurisdiction to consider

the merits of L.H.’s appeal from the DAJ’s ruling. We issued an order finding the

district judge’s decision was void, and we lacked jurisdiction to entertain L.H.’s

challenge to that decision on appeal. But we concluded a challenge to the DAJ’s

ruling was properly before us. Accordingly, rather than dismissing L.H.’s appeal,

we directed the parties to determine what record was available from the

proceedings before the DAJ and to submit amended briefs addressing the DAJ’s

order.    Because of the importance of the jurisdictional issue, we recount the

analysis that led us to this determination.



3
  A court’s first duty is to determine if it has jurisdiction to decide a case on its merits. In
re B.T.G., 784 N.W.2d 792, 795 (Iowa Ct. App. 2010). A party can raise a challenge to
subject matter jurisdiction at any time in the proceedings. Id.
                                         7


       Fourteen years ago, our court addressed the question whether a district

court could review a DAJ’s finding of serious mental impairment. See In re P.D.,

No. 00-1882, 2002 WL 1127908, at *1 (Iowa Ct. App. May 31, 2002). In P.D., we

examined the language of section 229.21(3)(a), which governs appeals to the

district court in hospitalization proceedings, and section 602.6306, which

discusses DAJ jurisdiction. See id. at *1–2. Compare Iowa Code § 229.21(3)(a)

(providing a respondent may appeal a magistrate’s or referee’s finding of serious

mental impairment to the district court), with id. § 602.6306(2) (stating DAJs have

jurisdiction over involuntary commitment hearings under chapter 229 and while

presiding in this subject matter a DAJ shall employ district judges’ practice and

procedure), and id. § 602.6306(4) (stating appeals from judgments or orders of

DAJs while exercising any jurisdiction other than the jurisdiction of magistrates

shall be governed by the laws relating to appeals from judgments or orders of

district judges). In concluding the district court did not have jurisdiction to hear

P.D.’s appeal, we reasoned:

               The terms of section 602.6306(2) clearly and unambiguously
       grant [DAJs] original jurisdiction in chapter 229 hospitalization
       proceedings. The same provision requires [DAJs] to employ district
       judges’ practices [and] procedures while exercising the granted
       jurisdiction. Section 229.21(3)(a) is equally unambiguous in its
       limitation of appeals to the district court from the findings of
       magistrates and referees.
               Because the [DAJ] here exercised original rather than
       derivative jurisdiction, we hold [the respondent’s] appeal from the
       resulting order is governed by the laws relating to appeals from
       judgment or orders of the district court.

P.D., 2002 WL 1127908, at *3 (citation omitted).

       We concluded the reasoning in P.D. was persuasive authority in L.H.’s

appeal. Although L.H. challenged a continued placement order rather than an
                                            8


initial finding of serious mental impairment, we decided that distinction was

inconsequential under chapter 229.4 Compare Iowa Code § 229.21(3)(a), with

id. § 229.21(3)(d) (“Any respondent with respect to whom the magistrate or

judicial hospitalization referee has held a placement hearing and has entered a

placement order may appeal the order to a judge of the district court.”).

Accordingly, because the DAJ exercised original jurisdiction, L.H.’s appeal from

the DAJ’s ruling was governed by the laws relating to appeals from final orders of

the district court, and the district court did not have jurisdiction to consider L.H.’s

appeal. See id. § 602.6306(2).

       Because the district judge’s order affirming continued outpatient treatment

was void, L.H. could not appeal from that order. See Yulin Li ex rel. Lee v.

Rizzio, 801 N.W.2d 351, 364 (Iowa Ct. App. 2011) (declining to entertain

argument from a void judgment); see also Wederath v. Brant, 287 N.W.2d 591,

595 (Iowa 1980) (noting “in retrospect it was unfortunate that we did not dismiss

the appeal because there was no valid judgment from which to appeal”). But

because L.H.’s attempt to perfect an appeal from the DAJ order was thwarted by

the district court’s scheduling of a de novo hearing before the district judge, we

4
  In its amended brief, the State points out habeas corpus relief under section 229.37 is
not available to L.H. because, as an outpatient, he is not confined. See S.Q. v. St.
Anthony Reg’l Hosp., No. 10-1293, 2011 WL 3481001, at *4 (Iowa Ct. App. Aug. 10,
2011) (concluding the legislature did not intend word “confined” to apply to individuals
committed to outpatient care). The State further asserts because habeas relief is not
available to L.H., we cannot cite to In re M.S. and likewise rule we “flexibly construe the
matter as either a placement hearing or a request for habeas relief.” See No. 15-1270,
2016 WL 5930454, at *1 (Iowa Ct. App. Oct. 12, 2016). The State does not go on to
argue that L.H. cannot appeal from a placement order. As we noted in M.S., section
229.17 suggests a placement order may be appealed by stating in part, “If a respondent
appeals to the supreme court regarding a placement order, the respondent shall remain
in placement unless the supreme court orders otherwise.” Id. at *1 n.1 (quoting Iowa
Code § 229.17). We now hold a person committed to outpatient treatment may appeal
from a placement order.
                                         9


found L.H. should have an opportunity to appeal based on either his January 11

or his January 20 notice of appeal. Cf. Tyrrell v. Iowa Dist. Ct., 413 N.W.2d 674,

676 (Iowa 1987) (granting defendant—who was tried for an indictable offense but

convicted of a simple misdemeanor—an opportunity for a delayed discretionary

review where the DAJ misinformed him as to the procedure to be followed in

perfecting an appeal).

       We liberally construe notices of appeal so as to preserve the right of

review and, if possible, permit consideration of the merits. See Iowa Dep’t of

Human Servs. ex rel. Greenhaw v. Stewart, 579 N.W.2d 321, 323 (Iowa 1998)

(requiring substantial, not strict, compliance with rule governing notices of

appeal). Both notices of appeal were filed by L.H. as a self-represented litigant,

and neither specified to which court L.H. was appealing. Instead, both notices

were addressed “to whom it may concern.” The January 20 notice would have

been a timely appeal from the DAJ’s January 11 order. And although it specified

L.H. wished to appeal “the court’s decision that was rendered on January 19,

2016,” it also referenced his disagreement with “the decision of the courts.” We

construed the January 19 notice of appeal broadly to challenge not just the

adverse ruling of the district judge but also, implicitly, all adverse rulings in the

underlying proceedings, including the DAJ’s order. See In re Guardianship &

Conservatorship of Ankeney, 360 N.W.2d 733, 736 (Iowa 1985) (holding notice

of appeal addressing August 8 visitation schedule also incorporated challenge to

August 1 order granting visitation and was sufficient to confer jurisdiction on the

appellate court). Accordingly, we found our court had jurisdiction to consider
                                              10


L.H.’s appeal from the DAJ’s continuing placement order under either notice of

appeal.

          But because we had no record of the January 11 hearing and both parties’

briefs cited evidence presented at the January 19 hearing before the district

judge while addressing whether the district judge’s ruling was supported by

sufficient evidence, we could not properly address the appeal. Pursuant to an

order of this court, a court reporter prepared a transcript of the electronic

recording of the January 11 hearing, and the parties submitted new briefs

addressing the DAJ’s ruling. We now proceed to the merits of L.H.’s argument.

III.      Scope and Standard of Review

          “In a placement hearing, the court shall determine a placement for the

respondent in accordance with the requirements of section 229.23, [5] taking into

consideration the evidence presented by all the parties.”                          Iowa Code

§ 229.14A(8).        We review challenges to the sufficiency of the evidence in

involuntary commitments under chapter 229 for correction of legal error. See In

re B.B., 826 N.W.2d 425, 428 (Iowa 2013). If the findings of fact are supported

by substantial evidence, they are binding on us. See 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.”

B.T.G., 784 N.W.2d at 796.




5
    Section 229.23 identifies the rights and privileges of hospitalized persons.
                                        11


IV.   Analysis

      Chapter 229 authorizes involuntary civil commitment if a person is

“seriously mentally impaired,” that is, the person has a mental illness and

because of that illness lacks sufficient insight or judgment into the need for

treatment and is a danger to the person’s self or others. Iowa Code § 229.1(17).

In the initial commitment proceeding, the applicant bears “the burden of evidence

in support of the contentions made in the application” and the presumption is “in

favor of the respondent.” Id. § 229.12(3)(a). The definition of serious mental

impairment does not become less stringent when a person challenges his or her

continued commitment. See B.A.A. v. Chief Med. Officer, Univ. of Iowa Hosps. &

Clinics, 421 N.W.2d 118, 124 (Iowa 1988) (addressing patient’s habeas corpus

petition for release from inpatient placement).    “[T]he legislature meticulously

conditioned treatment, whether on an inpatient or outpatient basis, on a finding

that the person has a serious mental impairment.” Id. Accordingly, to prolong a

person’s commitment, all three elements—mental illness, lack of judgment, and

dangerousness—must continue to exist. Id.

      While B.A.A. did not expressly assign the burden of proving the need for a

continued commitment under section 229.37, the supreme court implied the chief

medical officer, represented by the State, must establish the elements of serious

mental impairment. See id. at 126 (“Because there was no showing that [B.A.A.]

suffered from a serious mental impairment, the district court correctly terminated

his involuntary hospitalization.”). We find the same is true in this case involving

continued outpatient placement—the burden of showing the persistence of L.H.’s

serious mentally impairment remained with the State. On appeal, the State does
                                            12


not balk at that burden, acknowledging “[t]he grounds for serious mental

impairment must be satisfied at each periodic review.” On appeal, L.H. does not

dispute the court’s finding of mental illness, but he challenges the sufficiency of

the State’s proof of both the lack-of-judgment and dangerousness elements.

       Lack of Judgment.          L.H. argues the State failed to prove he lacked

insight into his treatment needs because Dr. Jones did not testify at the January

11 placement hearing and “[t]here is no indication of noncompliance with

medication in the [c]ourt file, at least since his last hospitalization in February of

2015.” The State responds it has met its burden through the periodic physician

reports and letter from L.H.’s therapist, which did not recommend terminating the

outpatient commitment.6

       To demonstrate lack of judgmental capacity in a review of a continuing

commitment, the State must prove “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.” See B.T.G., 784 N.W.2d at 797. Here, the State

contends: “Earlier reports and court findings indicate a lack of judgmental

capacity.” The record does not support that contention.

       The physician’s five reports after the DAJ’s February 2015 committal order

repeated only that L.H.’s condition was “unchanged.”               The committal order

preceding those reports indicated under the heading “Judgmental Capacity” that
6
  The State also argues L.H. failed to preserve error regarding the physician’s failure to
testify. The State contends: “[L.H.] requested the hearing and wanted the physician to
testify, but the record is devoid of indication that [L.H.] arranged for or subpoenaed the
physician himself.” The State does not explain why this creates an error-preservation
problem. L.H. does not contend he was denied due process because of his inability to
examine the physician; he mentions the physician’s failure to testify only in support of his
argument the State failed to present sufficient evidence to support L.H.’s continued
commitment. We find L.H. has sufficiently preserved error here.
                                         13


L.H. “stipulated to findings and recommendations in [the] physician’s report.” But

the corresponding physician’s report indicated L.H. was “capable of making

responsible decisions with respect to [his] hospitalization or treatment” and was

“agreeable to taking medications.” And although L.H. has some history of going

off his medications, the last report that he had failed to take his prescriptions

came in August 2014, more than a year before his request for a placement

review. While L.H.’s providers did not recommend terminating his commitment,

implicitly suggesting L.H. lacked capacity, our record is devoid of any explanation

for such opinions.   Accordingly, we conclude the record does not support a

finding that L.H. lacked judgmental capacity.

       Dangerousness.       We also find insufficient proof that L.H. currently

presents a danger to himself or others because the State did not offer evidence

of any “recent overt act” at the January 11, 2016 hearing. See In re Mohr, 383

N.W.2d 539, 542 (Iowa 1986) (holding dangerousness element requires proof of

a “recent overt act, attempt or threat”).       An “overt act” is “past aggressive

behavior or threats by the respondent manifesting the probable commission of a

dangerous act upon himself or others that is likely to result in physical injury.” In

re Foster, 426 N.W.2d 374, 378 (Iowa 1988). The State asserts the real focus of

the recent-overt-act requirement is on the risk of future dangerousness. See

Mohr, 383 N.W.2d at 542 (noting dangerousness component “requires a

predictive judgment, ‘based on prior manifestations but nevertheless ultimately

grounded on future rather than past danger’” (citation omitted)).         The State

argues the reason L.H. has not committed an overt act in the past year is

because he has been court-ordered to remain in treatment.
                                        14


       The court’s ability to predict future dangerousness must be based on the

respondent’s prior manifestations of aggressive behavior or threats. See Foster,

426 N.W.2d at 377–78 (explaining importance of evidence of past conduct to

support a predictive finding of dangerousness).          To support an accurate

prediction of dangerousness, the prior manifestations must not be too remote in

time. See In re S.S., No. 15-0494, 2015 WL 6508809, at *5 (Iowa Ct. App. Oct.

28, 2015) (finding dangerousness element was not satisfied when the last overt

act occurred approximately six months before hearing). We acknowledge the

benefit of maintaining an incentive for L.H.’s compliance with his court-ordered

medication, but the statutory scheme established by the legislature does not free

the State from the responsibility to show a recent overt act.

       The record before us does not include substantial evidence of a recent

overt act, attempt, or threat. The last overt act occurred in February 2015, nearly

one year before L.H.’s placement review, and no treating provider opined

specifically on L.H.’s dangerousness either through testimony or medical report.

See In re L.E.B., No. 14-0989, 2015 WL 7575399, at *4 (Iowa Ct. App. Nov. 25,

2015) (finding insufficient evidence to establish dangerousness when “person

who completed the preprinted physician’s report wrote ‘yes’ in response to a

question regarding dangerousness, [but] the person completing the report did not

provide any information supporting the conclusion”).

       Because the evidence in the record does not support of a finding that L.H.

lacks judgmental capacity or is presently dangerous, we reverse and remand for

termination of L.H.’s outpatient commitment.

       REVERSED AND REMANDED.
