                                                                                       November 8 2011


                                      DA 11-0327

            IN THE SUPREME COURT OF THE STATE OF MONTANA

                                     2011 MT 282N



IN THE MATTER OF

B.H.,

         Respondent and Appellant.



APPEAL FROM:      District Court of the Fourth Judicial District,
                  In and For the County of Missoula, Cause No. DI 11-4
                  Honorable John W. Larson, Presiding Judge


COUNSEL OF RECORD:

           For Appellant:

                  Joslyn Hunt, Chief Appellate Defender, Eileen A. Larkin, Assistant
                  Appellate Defender, Helena, Montana

           For Appellee:

                  Steve Bullock, Montana Attorney General, Matthew T. Cochenour,
                  Assistant Attorney General, Helena, Montana

                  Fred Van Valkenburg, Missoula County Attorney, Missoula, Montana



                                               Submitted on Briefs: October 26, 2011

                                                          Decided: November 8, 2011


Filed:

                  __________________________________________
                                    Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     B.H. was admitted to Montana State Hospital (MSH) for treatment of diagnosed

mental illnesses, including schizophrenia. He was subsequently conditionally released to

Dakota Place. B.H. violated the terms of his conditional release and the Fourth Judicial

District Court ordered revocation of the conditional release. B.H. appeals the District

Court’s revocation order. We affirm.

                                          ISSUE

¶3     Did the District Court err in revoking B.H.’s conditional release?

                  FACTUAL AND PROCEDURAL BACKGROUND

¶4     B.H. is a 19-year-old male who has been treated for mental illness since age 6. On

January 20, 2011, B.H. was taken to the emergency room of St. Patrick’s Hospital for

cutting himself, threatening suicide, being extremely agitated and experiencing

hallucinations.   He was evaluated by Marianne Smith, LCPC, a mental health

professional at the hospital. On January 21, the State petitioned to commit B.H. over his

family’s growing concern that B.H. might harm himself or others. The petition was

subsequently dismissed without prejudice when B.H. agreed to accept treatment on a




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voluntary basis. B.H. was treated through the Western Montana Mental Health Center

and placed at Dakota Place.

¶5    In mid-February, B.H. left Dakota Place without notifying the staff, broke into his

mother’s house, and threatened his mother with her chef’s knife. He then left with the

knife. He was found the following day outside city hall, cutting his neck, arm and leg.

B.H. was taken again to the hospital and evaluated by LCPC Smith. Smith recommended

B.H. be detained, evaluated and treated at MSH. The State filed its second Petition for

Commitment and the District Court ordered B.H. to be evaluated, treated and detained at

MSH. B.H. waived his right to a hearing and agreed that commitment was appropriate.

¶6    B.H.’s doctors recommended that B.H. be allowed to participate in

community-based treatment where he would be required to comply with all medications

and recommended treatment. The doctor also stated that should B.H. not comply with

treatment in a community-based program or if he left the facility, B.H. should be

committed to MSH. B.H. was placed in a community-based crisis center where, within

24 hours of admission, he left without permission. B.H.’s doctors and mental health

professionals requested that B.H. be committed to MSH. The District Court so ordered.

B.H. again waived his right to a hearing and stipulated to treatment. On March 3, 2011,

the District Court ordered B.H. to “involuntary mental health treatment at the Montana

State Hospital.”

¶7    On April 12, 2011, B.H. was conditionally released to Dakota Place. While at

Dakota Place, he refused to take prescribed medication. He subsequently left the facility

without permission, stole his mother’s car, and was picked up by the police and detained

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at the Missoula County Detention Center where Tim Myers, a clinical social worker at

Western Montana Mental Health Center, evaluated him. Based on Myers’ evaluation, on

April 29 the Missoula County Attorney petitioned for revocation of B.H.’s conditional

release on the grounds that he violated several conditions of his release including, but not

limited to, refusal to take medications as prescribed, destroying property and harming

others. The petition noted that B.H.’s condition had deteriorated and he was suicidal.

¶8     The court held a hearing on May 2, 2011. Prior to the hearing, Myers evaluated

B.H. a second time. Myers then testified at the hearing, reporting that B.H. had been

suffering from auditory hallucinations since leaving MSH and reporting to Dakota Place.

B.H. had told Myers during an evaluation that for awhile he was able to resist the voices

telling him to run, but then he could no longer resist and fled Dakota Place. Myers noted

that since B.H. violated the conditional release, B.H. displayed symptoms of poor

judgment and lack of impulse control. At the close of the hearing, the District Court

found that B.H. had violated his conditional release and that there was no less restrictive

environment available to B.H. than MSH. The court subsequently issued a written Order

Revoking Conditions of Release in which the court determined that B.H. had violated the

conditions of his release, his mental health had deteriorated as a result of his violations,

and he could no longer be treated at a less secure facility than MSH.

¶9     B.H. appeals arguing that the District Court did not comply with the requirements

of § 53-21-197(1)(b), MCA.

                               STANDARD OF REVIEW




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¶10    We review a district court’s civil commitment order 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.

                                      DISCUSSION

¶11    B.H. states that the District Court’s oral pronouncement at the end of the May 2

hearing differs from the written pronouncement; therefore, the oral pronouncement

controls. He argues that the District Court’s oral ruling failed to find by clear and

convincing evidence that his violation of the terms of his conditional release caused a

deterioration of his mental health condition as required by § 53-21-197, MCA. Section

53-21-197(1)(b), MCA, provides:

       Hearing on rehospitalization petition -- revocation of conditional
       release. (1) The court may order that the patient’s conditional release
       status be revoked and that the patient be returned to the mental health
       facility from which the patient was conditionally released or be sent to
       another appropriate inpatient mental health facility if, after a hearing, the
       court finds by clear and convincing evidence that:
                                           . .      .
               (b) the conditionally released patient has violated a condition of the
       release, that the violation has caused a deterioration of the patient’s mental
       condition, and that as a result of this deterioration, the patient can no longer
       be appropriately served by outpatient care.

¶12    B.H. contends that Montana’s civil commitment laws must be strictly followed

and the District Court’s failure to orally pronounce that B.H.’s mental condition had

deteriorated since he violated the conditions of his release constitutes a failure to strictly

follow § 53-21-197(1)(b), MCA.

¶13    We are not persuaded by B.H.’s assertion that the court’s oral pronouncement

must control and render a subsequent written pronouncement moot. Unlike the criminal

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context in which we have consistently held that “if there is a conflict between the oral

pronouncement of sentence and the subsequent written sentence, the oral pronouncement

of sentence controls,” (State v. Rennaker, 2007 MT 10, ¶ 48, 335 Mont. 274, 150 P.3d

960), we have not so instructed for civil commitments.

¶14    More to the point, despite the fact that the District Court did not expressly use the

word “deterioration” in its oral pronouncement, there was nonetheless clear and

convincing evidence that B.H.’s mental health had deteriorated since he fled Dakota

Place for the second time. Myers testified that B.H. told him during the prehearing

evaluation that his auditory hallucinations were now “nearly constant.” Additionally,

evidence of B.H.’s attitude toward medication and treatment appear to have significantly

changed for the worse after B.H. left Dakota Place, based upon Myers’ detention center

and prehearing evaluations. Lastly, Myer noted that B.H. was exercising poor judgment

and impulse control after most recently fleeing Dakota Place.

¶15    We conclude the District Court’s written pronouncement of revocation was in

compliance with the applicable statute and the court’s findings of fact were supported by

the evidence.

¶16    We have determined to decide this case pursuant to Section I, Paragraph 3(d) of

our Internal Operating Rules, which provides for noncitable memorandum opinions. The

District Court’s findings of fact are supported by substantial evidence and the legal issues

are controlled by settled Montana law, which the District Court correctly interpreted.

¶17    We affirm.




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                          /S/ PATRICIA COTTER



We concur:

/S/ MIKE McGRATH
/S/ JAMES C. NELSON
/S/ BETH BAKER
/S/ MICHAEL E WHEAT




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