                     IN THE COURT OF APPEALS OF IOWA

                                    No. 13-1497
                                Filed June 10, 2015

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

E.L.,
     Respondent-Appellant.
________________________________________________________________

        Appeal from the Iowa District Court for Linn County, Mary E. Chiccelly

(involuntary commitment) and Sean M. McPartland (writ of habeas corpus),

Judges.



        A respondent challenges his involuntary commitment under Iowa Code

chapter 229 (2013). AFFIRMED.



        Kelly D. Steele, Cedar Rapids, for appellant.

        Thomas J. Miller, Attorney General, Gretchen Witte Kraemer, Assistant

Attorney General, Jerry Vander Sanden, County Attorney, and Matt Kishinami,

Assistant County Attorney, for appellee.



        Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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TABOR, J.

       E.L. contends the district court wrongly determined he was seriously

mentally impaired and required involuntary hospitalization.         Specifically, he

argues the State did not present evidence of recent overt acts sufficient to show

he posed a danger to himself or others as required by Iowa Code section

229.1(17) (2013). Because we find substantial evidence in the record to support

the finding E.L. was assaultive and threatening before his involuntary

commitment, we affirm.

I.     Background Facts and Proceedings

       E.L. arrived in Iowa in the spring of 2013, according to the staff at the

Abbe Center Transitional Living Program in Cedar Rapids.              Area shelters

referred E.L. to the Abbe Center due to his disruptive behavior and delusions.

The Abbe Center set him up with an apartment. But the apartment manager

complained to Abbe Center staff that E.L. was screaming, swearing, and

threatening others in the parking lot. Witnesses also saw E.L. throwing items off

a second floor deck because he believed they were “possessed.”

       On August 15, 2013, Abbe Center staff members sought to have E.L.

involuntarily committed because they believed he was a danger to himself and

others.   Staff member Carmen Johnson filed an affidavit in support of the

application for an order of involuntary hospitalization. The affidavit said E.L. had

become “increasingly psychotic” over the previous two weeks. E.L.’s behavior

included “yelling vulgarities at the staff,” “grabbing himself (sexually) in public

while screaming about rapists,” and “screaming racial slurs, threats, etc.” to staff,
                                          3



neighbors, and strangers. Neighbors expressed their fear of E.L. Police were

called to avoid escalation.

       Psychiatrist Jeffrey Wilharm admitted E.L. into St. Luke’s Hospital on

August 16, 2013. Dr. Wilharm noted E.L. engaged in assaultive and threatening

behavior on the day before the hospitalization.         On August 21, 2013, the

hospitalization referee found E.L. needed to be involuntarily committed because

he was “assaultive & threating.” E.L. appealed that ruling and filed a writ of

habeas corpus. The district court held a hearing on September 9, 2013.

       At the hearing, Dr. Wilharm testified he had seen E.L. previously in May

2013. E.L. had a diagnosis of schizophrenia. Dr. Wilharm testified E.L. “can get

disoriented, and at times can get very suspicious and formulate thoughts and

patterns of behavior that aren’t based on reality.” The psychiatrist further testified

E.L. could “get paranoid at times” and when he acted on his paranoia it led to his

“hospitalization situations.”

       Dr. Gregory Keller also testified at the hearing. Dr. Keller took over E.L.’s

care on August 23, 2013, at the Clarinda Mental Health Facility. In a report

admitted as an exhibit at the hearing, Dr. Keller stated E.L. had been treated in

the past for schizo-affective disorder, bipolar type and paranoid schizophrenia.

Dr. Keller also concluded E.L. was likely to injure himself or others. The report

included the question “What overt acts have led you to conclude [E.L.] is likely to

physically injure himself or others?” Dr. Keller responded, “If he were to go

untreated . . . his thinking, mood and behaviors would rapidly decompensate,

leading to events similar to those that brought him to the hospital, which included
                                        4



episodes of yelling at this apartment complex and at local businesses disturbing

many people that were around him.”

       E.L. also took the stand, testifying he did not injure anyone and did not

pose a danger to himself.

       On September 10, 2013, the district court affirmed the finding of the

hospitalization referee.    The court held: “E.L.’s threatening and assaultive

behavior presents a danger to people around him.” The court also denied E.L.’s

petition for writ of habeas corpus.

       E.L. filed another petition for writ of habeas corpus, which was denied at a

hearing on December 16, 2013, when the parties agreed he was receiving

outpatient therapy and not confined for the purposes of Iowa Code section

229.37.1 E.L. now appeals his involuntary hospitalization, claiming the record did

not support the conclusion that he was a danger to himself or others.

II.    Standard of Review

       “We review challenges to the sufficiency of the evidence in involuntary

commitment proceedings for errors at law.” In re B.B., 826 N.W.2d 425, 428

(Iowa 2013). The State must prove the allegations in an involuntary commitment

proceeding by clear and convincing evidence.          Id.   Clear and convincing

evidence means “there must be no serious or substantial doubt about the

correctness of a particular conclusion drawn from the evidence.” Id. (quoting In

re J.P., 574 N.W.2d 340, 342 (Iowa 1998)). This clear-and-convincing evidence

standard is less onerous that proof beyond a reasonable doubt. Id. at 342.


1
 On September 3, 2014, the Iowa Supreme Court ordered the appeals combined. E.L.
does not raise an issue concerning the writ of habeas corpus in this appeal.
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III.   Mootness

       The State argues this appeal is moot and attempts to distinguish B.B., 826

N.W.2d at 431. In that case, our supreme court held, because of the stigma

associated with serious mental impairment, involuntary commitment cases are

not moot even if the person has been released from the commitment. Id. at 430–

31.    But B.B. left open the possibility that “a series of recent, successive

involuntary commitments that were either not appealed or upheld on appeal

might effectively remove any stigma resulting from a later involuntary

commitment proceeding.” Id. at 432.

       E.L. was discharged from treatment and his commitment was dismissed

on December 3, 2014. The State argues because E.L. was dismissed from his

current commitment and had “several prior recent hospitalizations,” this appeal

should be considered moot.

       The record before us does not show E.L. had a succession of prior

involuntary commitments which were not appealed or were upheld on appeal.

The record refers to two hospitalizations earlier in 2013, but gives no context to

those hospitalizations.   Accordingly, we cannot find this case stands as an

exception to B.B. See id. As a result, we turn to the merits.

IV.    Serious Mental Impairment

       For purposes of involuntary hospitalization, a person is seriously mentally

impaired if he suffers from mental illness,

       [A]nd 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:
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              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.

Iowa Code § 229.1(17).

       Under this statute the State must prove three elements: (1) the person has

a mental illness and because of that illness, (2) the person lacks sufficient

judgment to make responsible decisions with respect to his hospitalization or

treatment, and (3) is likely to inflict physical injury on the person’s self or others

or is unable to satisfy the person’s physical needs. See J.P., 574 N.W.2d at 343.

       E.L. does not dispute he was diagnosed with a mental illness or that

because of the illness he lacked the judgment to make responsible decisions

about his hospitalization and treatment. Instead, he claims there is insufficient

evidence in the record to support a finding he was likely to physically injure

himself or others. He asserts the State did not establish he caused physical

injuries or made threats of a physical nature. He contends references during the

hearing to him “yelling” and “disturbing” people were not sufficient “overt acts” to

undergird the “endangerment” element. According to E.L., “there is no reference

to any threats or acts involving likely physical injury to any person.”

       In interpreting section 229.1(17), the term “likely” means “probable or

reasonably to be expected.” In re Oseing, 296 N.W.2d 797, 801 (Iowa 1980).

The statutory provision “requires a predictive judgment, based on prior
                                          7



manifestations but nevertheless ultimately grounded on future rather than past

danger.” Id. The danger a person poses to himself or others must be evidenced

by a “recent overt act, attempt or threat.” See J.P., 574 N.W.2d at 344 (citing In

re Mohr, 383 N.W.2d 539, 542 (Iowa 1986)).               Behavior that is socially

unacceptable, standing alone, does not satisfy the overt act requirement. Mohr,

383 N.W.2d at 542. Rather, an “overt act” implies past aggressive behavior or

threats that manifest in the probable commission of a dangerous act upon the

respondent himself or others. In re Foster, 426 N.W.2d 374, 378–79 (Iowa 1988)

(holding verbalized delusions do not constitute the type of overt act necessary to

establish dangerousness).

       The State agrees a recent overt act is required to prove the endangerment

element of a civil commitment.       The State contends the testimony of E.L.’s

treating physician, Dr. Wilharm, satisfied the requirement to show the respondent

engaged in recent overt acts signaling the likelihood of injury to himself or others.

       Dr. Wilharm testified E.L.’s “misinterpretation of reality” led to an assault.

The psychiatrist explained:

       I think he felt he was acting on behalf of protecting someone, but it
       turned out that it became an assault situation. I think at times he
       has had some comments and made some threats to others as well
       that certainly I think would be putting both he and the other person
       at risk of possibly leading to some kind of physical altercation as
       well.

       In his own testimony, E.L. acknowledged being involved in a contentious

interaction with two other people that required police intervention. E.L. denied

assaulting anyone, but acknowledged the police “asked us to stay away from

each other.”
                                          8



       The evidence supporting the endangerment element is stronger here than

it was in Foster. In that case, the doctor conceded Foster was not the aggressor

in the incidents at issue and there was not an imminent likelihood he would

become violent. Id. at 379. By contrast, Dr. Wilharm testified E.L. engaged in

“threatening” and “very out-of-the-ordinary bizarre behaviors.” Dr. Keller’s report

indicated without treatment E.L.’s “thinking, mood and behaviors would rapidly

decompensate, leading to events similar to those that brought him to the

hospital.”   E.L. was not simply provoking acts of aggression toward himself.

Because of his disorganized thinking, he misunderstood the actions of others and

responded aggressively.      In addition, the Abbe Center staff reported recent

incidents where E.L. threw items from a second floor deck believing they were

possessed and screamed about “rapists” while “grabbing himself (sexually) in

public.” E.L. was not confined “simply because [his] conduct was unusual or

bizarre.”    See id.   His verbal abuse was coupled with intimidating physical

actions. We conclude the evidence was sufficient to support the district court’s

finding that E.L. was likely to physically injure himself or others if released without

treatment.

       AFFIRMED.
