                                                                                             01/03/2017


                                        DA 15-0489
                                                                                        Case Number: DA 15-0489

            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2017 MT 1



IN THE MATTER OF:

D. L. B.,

             Respondent and Appellant.


APPEAL FROM:         District Court of the Tenth Judicial District,
                     In and For the County of Fergus, Cause No. DI 2015-11
                     Honorable Jon A. Oldenburg, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Chad Wright, Chief Appellate Defender, Kristen L. Peterson, Assistant
                     Appellate Defender, Helena, Montana

              For Appellee:

                     Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant
                     Attorney General, Helena, Montana

                     Thomas P. Meissner, Fergus County Attorney, Craig R. Buehler, Special
                     Deputy County Attorney, Lewistown, Montana



                                                  Submitted on Briefs: November 2, 2016

                                                             Decided: January 3, 2017


Filed:

                     __________________________________________
                                       Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     D.L.B. appeals the order of the Tenth Judicial District Court, Fergus County,

recommitting him for a period of up to six months to the Montana Mental Health Nursing

Care Center (Nursing Care Center) in Lewistown. We affirm, and state the issue as

follows:

      Did the District Court err by extending D.L.B.’s commitment to the Nursing Care
Center?
               FACTUAL AND PROCEDURAL BACKGROUND

¶2     D.L.B. is a 75-year-old male who, unfortunately, has suffered from mental illness

his entire adult life. He was originally diagnosed with paranoid schizophrenia after his

first psychotic episode, at age 22.       Since this initial diagnosis, D.L.B. has been

involuntarily committed to mental hospitals throughout his life. D.L.B.’s May 2015

Mental Health Assessment for Recommitment states that he has been involuntarily

committed to mental health hospitals at least six times and that other “[r]ecords indicate

[that] he [has] likely had other psychiatric hospitalizations through the years, but

[complete] information is not available.”1 D.L.B.’s last four hospital commitments, in

2004, 2011, 2012, and 2014, were to the Montana State Hospital (MSH).

¶3     D.L.B.’s psychosis centers around a fear of the Nazis and of being persecuted by

them. He also suffers from delusions regarding an imaginary wife and children who

1
  The record also includes an October 2015 Mental Health Assessment for Recommitment that
was filed with the District Court on December 18, 2015, as part of a subsequent recommitment
proceeding that led to the filing of another recommitment order. D.L.B. has also appealed that
matter, which is pending before the Court as Cause No. DA 16-0281. Briefing has not been
completed. The October 2015 Assessment was not part of the record before the District Court in
the subject proceeding.
                                             2
reside in Canada. Critically, he has a pervasive history of medication noncompliance

arising from his belief that he does not suffer from a mental illness.

¶4     D.L.B.’s 53-year history of mental illness evidences a relatively predictable and

cyclical pattern, typically beginning with a psychotic episode. During these episodes, he

acts out and is a physical danger to himself, as well as to others. The episodes typically

result in an involuntary commitment of D.L.B. to a mental health hospital, where he is

medicated and begins to stabilize.      After improving, D.L.B. is transferred from the

hospital to a mental health nursing care facility, where supervision helps him to stay on

his medication and maintain stability. After he is released from the mental health nursing

care facility to a community based rehabilitation center or treatment program, he

typically stops taking his medicine, leading to another psychotic episode and a repeat of

the cycle.

¶5     At the July 8, 2015, recommitment hearing, the District Court verbally

summarized D.L.B.’s condition as follows:

       [D.L.B.] does suffer from a mental disorder that being paranoid
       schizophrenia which in his case causes him to have a lack of insight in to
       his own mental disorders and how those affect him and leads to a persistent
       desire and a pattern of medication refusal and removing himself from the
       medication which then causes his mental disorder to spiral out of control
       and causes [D.L.B.] to decompensate and have to start over again with his
       treatment. This presents a danger to [D.L.B.] as each and every time he has
       to start over it takes more and more to get him back to normal and during
       those psychotic episodes he’s a danger to himself and could be a danger to
       others just basically due to his lack of insight and ability to control himself.

¶6     In 2014, D.L.B. was living at a rehabilitative center in Dillon when he again

refused to take his medicine. He decompensated to the point that he “believed staff at the
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facility were contracting with the Nazi’s [sic] to torture him and inflict pain on him with

infrared devices.” He became verbally aggressive and attempted to physically strike the

staff, leading to his commitment to MSH on September 23, 2014. On March 24, 2015,

after he had stabilized, D.L.B. was transferred from MSH to the Nursing Care Center.

Based on his behaviors, however, D.L.B. was considered an elopement risk. At the

Nursing Care Center, D.L.B. received regular medical and psychiatric care. Despite this

care, D.L.B. continued to have visual hallucinations and paranoid delusions, be verbally

and physically aggressive toward the staff, refuse to take his medication, and isolate

himself.   On June 2, 2015, the State filed the subject petition to extend D.L.B.’s

commitment to the Nursing Care Center for further evaluation and treatment.

¶7     In support of the petition, the State submitted a report by Susan Stevens (Stevens),

a Mental Health Professional.2 Stevens’ report explained that D.L.B. had a long history

of medication noncompliance and, consequently, a recurring inability to successfully live

independently in community-based placements, despite his receipt of supportive services.

She also opined that:

       [A]s a result of [D.L.B.’s] mental illness he presents as a danger to self and
       potentially others when he is medication non-compliant. Commitment
       proceedings should not be dismissed. [D.L.B.] presents as a danger to self
       due to florid psychosis (delusions and hallucinations). He has an extensive
       history of becoming medication non-compliant then decompensates very
       quickly and becomes confused and unable to meet and maintain his most
       basic needs of food, clothing, shelter, health, and safety. He potentially


2
 Stevens holds a MS and is a LMFT. She is a Mental Health Professional, her certification
number is MHF-436, and she is employed as a Psychology Specialist at the Nursing Care Center.
“Mental health professional” is defined at § 53-21-102(11), MCA.
                                             4
       presents as a danger to others due to his recent history of becoming verbally
       and physically aggressive towards others.

¶8     On July 8, 2015, an adjudicatory hearing was held at the Nursing Care Center.

Debbie Moore (Moore), Director of Nursing at the Center, testified that D.L.B. continued

to exhibit characteristic behaviors of paranoid schizophrenia such as auditory

hallucinations, delusions, false beliefs that people were plotting against him, and

delusions of grandeur. While noting that D.L.B. was “beginning to do well,” she stated

that he continued to deny the need for medication and to make statements about not

wanting to take medication. Moore opined that D.L.B. continued to meet the admission

criteria for the Nursing Care Center based on his continued delusions, paranoid thoughts,

and a lack of judgment and insight into his mental health needs. Stevens testified that the

Nursing Care Center was a lesser restrictive environment than D.L.B.’s prior placement

at MSH, and opined that D.L.B. was not yet ready for a less restrictive, community based

placement. At the conclusion of the hearing, the District Court orally extended D.L.B.’s

commitment to the Nursing Care Center for a period of not more than six months. A

written order was entered on July 16, 2015, which did not specify under what statutory

provisions D.L.B. was being re-committed.

¶9     D.L.B. appeals.

                              STANDARD OF REVIEW

¶10    We review commitment orders to determine whether a district court’s findings of

fact are clearly erroneous and its conclusions of law are correct. In re S.G.R., 2016 MT

70, ¶ 13, 383 Mont. 74, 368 P.3d 1180 (citing In re S.M., 2014 MT 309, ¶ 13, 377 Mont.
                                         5
133, 339 P.3d 23). A finding of fact is clearly erroneous if it is not supported by

substantial evidence, if the district court misapprehended the effect of the evidence or if,

after a review of the entire record, we are left with a definite and firm conviction that a

mistake had been made. In re S.G.R., ¶ 13 (citing In re Mental Health of L.K.-S., 2011

MT 21, ¶ 14, 359 Mont. 191, 247 P.3d 1100 [hereinafter In re L.K.-S.]). Whether a

district court’s findings of fact meet statutory requirements is a question of law that we

review for correctness. In re S.G.R., ¶ 13 (citing In re L.L.A., 2011 MT 285, ¶ 6, 362

Mont. 464, 267 P.3d 1).

                                      DISCUSSION

¶11 Did the District Court err by extending D.L.B.’s commitment to the Nursing Care
Center?

¶12    Arguing that Montana’s involuntary commitment statutes require that a

recommitment meet the identical standards of an original commitment, D.L.B. contends

that the District Court’s findings are insufficient to satisfy the commitment criteria under

§ 53-21-126(1)(a), (b), or (c), MCA, and that the evidence satisfies recommitment only

under § 53-21-126(1)(d), MCA. Commitments ordered pursuant to § 53-21-126(1)(d),

MCA, may only be made “to a community facility or program or an appropriate course of

treatment . . . and may not require commitment at the state hospital, a behavioral health

inpatient facility, or the Montana medical health nursing care center.”             Section

53-21-127(7), MCA.        D.L.B. thus argues that his recommitment to the Lewistown

Nursing Care Center violates these provisions. In essence, D.L.B. asserts that these

statutes must be narrowly interpreted and that the criteria stated in § 53-21-126(1)(a)-(d),
                                         6
MCA, are the only appropriate considerations in determining whether recommitment

should be ordered.

¶13    The State responds that the § 53-21-126(1), MCA, criteria must be evaluated in

the context of a recommitment. Noting that this statute states that, when “determining

whether the respondent requires commitment and the appropriate disposition. . . ., the

court shall consider” the listed criteria, the State argues the statute does not prohibit

consideration of additional circumstances related to a respondent, including, in a

recommitment proceeding, a respondent’s relevant medical history and continuing

treatment requirements.    Section 53-21-126(1), MCA (emphasis added).          The State

contends that, when placed in this context, the District Court’s findings are sufficient to

support recommitment.

¶14    Section 53-21-128(1), MCA, provides that “[n]ot less than 2 weeks” before the

expiration of a commitment, the professional person in charge of the patient at the place

of commitment may petition the district court “for extension of the commitment period.”

The same hearing procedures used for an initial commitment are followed in a

recommitment proceeding, except the respondent is not entitled to a jury trial. Section

53-21-128(1)(c), MCA. If the district court “finds that the patient continues to suffer

from a mental disorder and to require commitment, the court shall order commitment as

set forth in 53-21-127.” Section 53-21-128(1)(d), MCA. In turn, § 53-21-127(7), MCA,

governs dispositional hearings, commitment options, least restrictive alternatives, and




                                         7
necessary findings of fact to be made by the district court, and provides that

“[s]atisfaction of any one of the criteria listed in 53-21-126(1) justifies commitment.”

¶15    In relevant part, § 53-21-126(1), MCA, states:

       In determining whether the respondent requires commitment and the
       appropriate disposition under 53-21-127, the court shall consider the
       following:
         (a) 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;
         (b) whether the respondent has recently, because of a mental disorder and
       through an act or an omission, caused self-injury or injury to others;
         (c) whether, because of a mental disorder, there is an imminent threat of
       injury to the respondent or to others because of the respondent’s acts or
       omissions; and
         (d) whether the respondent’s mental disorder, as demonstrated by the
       respondent’s recent acts or omissions, will, if untreated, predictably result
       in deterioration of the respondent’s mental condition to the point at which
       the respondent will become a danger to self or to others or will be unable to
       provide for the respondent’s own basic needs of food, clothing, shelter,
       health, or safety.

As noted by D.L.B., if the court relies solely upon the criterion provided in subsection

(1)(d), “the court may require commitment only to a community facility or program,” and

not “the Montana mental health nursing care center.” Section 53-21-127(7), MCA.

¶16    The recommitment statute, § 53-21-128, MCA, incorporates the procedures and

standards for commitment provided in §§ 53-21-126 and -127, MCA, but states the

inquiry is whether the respondent “continues to suffer” from a mental disorder and

continues “to require commitment.” Section 53-21-128(1)(d), MCA. The recommitment

statute thus includes a time component, which requires a determination of whether the

respondent’s condition has improved, since his original commitment, to the point where

                                          8
he no longer suffers from a mental disorder requiring commitment. The inquiry can

include consideration of the respondent’s medical history, the original commitment

proceeding, the treatment received since the original commitment, as well as the

respondent’s current status and treatment needs. While the stated legal standards for

recommitment are the same as in an original commitment proceeding, the record and

necessary considerations may not be. Further, the longer-term view called for by the

recommitment statute permits an additional perspective of the evidence. Of course,

respondents are not bound by their past medical histories, but histories and continuing

treatment requirements are relevant considerations in the recommitment context.

¶17    Unfortunately, in its Order for Recommitment, the District Court neglected to cite

in its findings and conclusions to the particular criteria under § 53-21-126(1), MCA, upon

which it based D.L.B.’s recommitment to the Nursing Care Center, a problem we have

previously highlighted. See generally, e.g., In re B.D., 2015 MT 339, ¶ 8, 381 Mont.

505, 362 P.3d 636 (the District Court’s “failure to specify the subsection relied upon [for

commitment] was clearly an oversight to be avoided.”). Similarly, we have noted the

paucity of written findings in commitment orders, which we are again presented with in

this case. See generally, e.g., In re M.P.-L., 2015 MT 338, ¶ 20, 381 Mont. 496, 362 P.3d

627 (concluding that while “the District Court’s written findings are bare-boned,” they

provided “sufficient reasoning to justify the commitment.”). We have looked to a court’s

oral findings to supplement its written findings, In re S.M., ¶ 27, and have applied the

doctrine of implied findings that were necessary to the court’s determination. In re S.M.,

                                         9
¶ 28; In re M.P.-L, ¶ 20; In re S.G.R., ¶ 21. However, we will “decline to expand the

doctrine of implied facts to the degree necessary to affirm a commitment order that is

beyond ‘bare-bones’ and ‘spartan.’” In re C.C., 2016 MT 174, ¶ 23, 384 Mont. 135, 376

P.3d 105. These holdings underscore the necessity of “strict adherence” by district courts

with the statutory requirements governing involuntary commitment proceedings, despite

the commonly urgent nature of the proceedings, In re L.K.-S., ¶ 15, including the entry of

findings of fact. Section 53-21-127(8), MCA.

¶18    Our review of the record leads to the conclusion that the District Court’s findings

of fact establish a need for continued commitment to the Nursing Care Center under

§ 53-21-126(1)(a), MCA. D.L.B. “continues to suffer,” § 53-21-128(1)(d), MCA, from a

mental disorder that renders him “substantially unable to provide for [his] own basic

needs of food, clothing, shelter, health, or safety.” Section 53-21-126(1)(a), MCA. The

District Court’s oral findings determined that D.L.B. continues to suffer from paranoid

schizophrenia, causing him to “have a lack of insight in to his own mental disorders” and

a lack of “ability to control himself,” including a continuing “medication refusal” that has

not resolved, even with current treatment. The record includes a May 28, 2015 Mental

Health Assessment for Recommitment, which noted D.L.B. has continuing problems with

hallucinations and paranoid delusions along with verbal and physical aggressiveness

toward staff, including:

       05/19/15      When [D.L.B.] asked why he had to be here Dr. Whitworth
       stated ‘because you are mentally ill’. [D.L.B.] replied in a loud voice ‘The
       hell I am doctor, the hell I am’. . . When [D.L.B] was asked about prior
       reports of Nazi’s [sic] he leaned forward in his chair and shouted at Dr.
                                         10
       Whitworth ‘The Nazi’s [sic] are right here in this fuckin room doctor, they
       are invisible’.

                                           .   .     .

       04/06/15        [D.L.B.] exhibited both grandiose and paranoid delusions
       (e.g. Nazi’s [sic] are trying to torture him, invisible wife and
       children) [ . . . D.L.B.] did inquire about taxi service and related ‘I fled
       Washington for my life, I put on heavy clothes and walked away before the
       Nazi’s [sic] found me. I may need to flee here if they find me!’ [D.L.B.] is
       an elopement risk due to his delusions.

                                           .   .     .

       04/01/15      Nursing noted “[D.L.B.] is refusing to take any of his
       breakfast meds. . . ‘I’m refusing; take me back to Warm Springs’. Gave a
       cooling off time, reapproached, he hangs his head and refuses to answer or
       acknowledge . . . []

(Internal punctuation original; emphasis added.)

¶19    Consistent with this evidence, the District Court’s written findings state that

D.L.B. continues to suffer from paranoid schizophrenia, and cites Stevens’ testimony that

D.L.B. “is a danger to himself due to his lack of insight . . . .” Stevens’ report stated

“[D.L.B.] presents as a danger to self due to florid psychosis (delusions and

hallucinations) . . . . He potentially presents as a danger to others due to his recent history

of becoming verbally and physically aggressive toward others,” which we can add to the

District Court’s findings by implication. In re S.M., ¶ 28. The District Court found “the

most appropriate and least restrictive placement for [D.L.B.] is the Montana Mental

Health Nursing Center,” and the treatment plan filed with the District Court was

appropriate, subject to “regular review.”          The District Court authorized involuntary


                                          11
administration of medication to D.L.B., finding that “he is unable to appreciate the

necessity for a proper medication regimen to control his mental illness.”

¶20    Although the District Court’s findings were sparse, we conclude they were

sufficient to support a conclusion that recommitment to the Nursing Care Center was

authorized under §§ 53-23-128(1)(d) and 53-21-126(1)(a), MCA. Despite treatment,

D.L.B.’s condition has not sufficiently improved, since his original commitment, to the

point where he no longer suffers from a mental disorder requiring commitment.

¶21    Affirmed.



                                                  /S/ JIM RICE

We concur:


/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ JAMES JEREMIAH SHEA



Justice McKinnon, dissenting.

¶22    These proceedings are indistinguishable from S.G.R. in which I dissented because

the order extending commitment was statutorily insufficient for failing to set forth

adequate factual findings and for failing to indicate which subsection, (a), (b), (c), or (d),

required recommitment under § 53-21-126(1), MCA.             Again, this Court combs the

transcript to “imply” both factual findings and conclusions of law, despite the statute

clearly requiring “a detailed statement of the facts upon which the court found the
                                          12
respondent to be suffering from a mental disorder and requiring commitment[.]” Section

53-21-127(8)(a), MCA.      We have often “stressed the critical importance of strict

compliance with the statutory requirements addressing involuntary commitment.” In re

C.C., ¶ 14.

¶23    Here, the statutory language of Montana’s involuntary commitment statute

requires that an extension of a commitment meet the standards of an original

commitment. See § 53-21-126(1), MCA (providing that for an original commitment the

court must determine the person suffers from a mental disorder and “requires

commitment”); § 53-21-128(1)(d), MCA (providing that for an extended commitment the

court must determine the person continues to suffer from a mental disorder and to

“require commitment”). Thus, the statutory criteria to grant the original commitment

under § 53-21-126(1), MCA, also applies to an extension of a commitment pursuant to

§ 53-21-128(1)(d), MCA.

¶24    Section 53-21-126(1), MCA, explains that “requiring commitment” means the

court consider whether there is sufficient evidence of at least one of the four criteria

which result from the person’s mental disorder. In my opinion, for the simple reason that

the statutory provisions are plain and that involuntary commitment statutes are to be

strictly construed, this Court errs when it adds to the four criteria which justify

commitment by including a “time component.” Opinion, ¶ 16. The Legislature has

indicated that both initial commitments and recommitments are not pro forma

proceedings. Even where the initial confinement of an individual was constitutionally

                                       13
permissible, the confinement may not constitutionally continue if the reasons for the

initial confinement no longer exist. See O’Connor v. Donaldson, 422 U.S. 563, 574-75,

95 S. Ct. 2486, 2493 (“Nor is it enough that [the respondent’s] original confinement was

founded upon a constitutionally adequate basis, if in fact it was, because even if his

involuntary confinement was initially permissible, it could not constitutionally continue

after that basis no longer existed.”).

¶25    Here, we have no indication from this Court’s opinion or the District Court’s order

which statutory criteria were satisfied making it necessary to recommitment D.L.B. I

therefore would reverse the District Court’s order of commitment, based upon the

foregoing and the analysis I set forth more thoroughly in In re S.G.R., ¶¶ 26-31

(McKinnon J., dissenting). To the extent we hold otherwise, I dissent.


                                                       /S/ LAURIE McKINNON




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