                                                                                         June 7 2016


                                     DA 14-0777
                                                                                    Case Number: DA 14-0777

            IN THE SUPREME COURT OF THE STATE OF MONTANA

                                     2016 MT 137



IN THE MATTER OF:

S.H.,

         Respondent and Appellant.



APPEAL FROM:      District Court of the Thirteenth Judicial District,
                  In and For the County of Yellowstone, Cause No. DI 14-0090
                  Honorable Ingrid Gustafson, Presiding Judge


COUNSEL OF RECORD:

           For Appellant:

                  Chad Wright, Chief Appellate Defender, James Reavis, Assistant
                  Appellate Defender, Helena, Montana

           For Appellee:

                  Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
                  Attorney General, Helena, Montana

                  Scott D. Twito, Yellowstone County Attorney, Ryan Nordlund, Deputy
                  County Attorney, Billings, Montana



                                              Submitted on Briefs: April 13, 2016

                                                         Decided: June 7, 2016


Filed:

                  __________________________________________
                                    Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1    S.H. appeals from an order entered by the Thirteenth Judicial District Court,

Yellowstone County, committing her to the Montana State Hospital for a period not to

exceed three months. We affirm.

¶2    S.H. presents the following issues for review:

      1.     Did the District Court rely on sufficient evidence to determine S.H.
             required commitment because she was either unable to care for her basic
             needs or was a threat to others?

      2.     Did S.H. receive ineffective assistance of counsel?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3    On November 9, 2014, S.H. sought help from the emergency department at the

Billings Clinic. S.H. complained she was suffering from food poisoning, that there were

snakes in her stomach, black bugs in the toilet, and the voices of God and Satan were

arguing in her head. Dr. Mark Nicholson (Dr. Nicholson), a psychiatrist at the Billings

Clinic examined S.H. and, upon his recommendation, the State filed a petition to

involuntarily commit S.H. on November 12, 2014. The petition notified S.H. of her

rights—including her “right to refuse any but lifesaving medication for up to 24 hours

prior to any hearing held pursuant to [§ 53-21-115(11), MCA].” The District Court

ordered S.H. detained at the Billings Clinic pending resolution of the petition. The

District Court appointed counsel to represent S.H., held an initial hearing, and appointed

Dr. Nicholson as the professional person to evaluate S.H.




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¶4     Diane Goedde (Goedde), a nurse practitioner at the Billings Clinic, evaluated S.H.

and filed a report with the District Court. Goedde’s report explained that S.H. arrived at

the Billings Clinic complaining that she had been poisoned, there was a snake in her

stomach, a black bug in her toilet, and she was having auditory hallucinations. Goedde’s

report indicated S.H. has a history of bipolar disorder and was manic when she entered

the Billings Clinic. S.H. received antipsychotic medications initially, but later refused to

take them because she believed she had been healed. Goedde described S.H.’s mood as

labile, or unstable, and her thoughts as disorganized. She reported that S.H. was verbally

attacking staff, interfering with the care of other patients, and being very loud. S.H.

called 911 several times to report, falsely, that the Billings Clinic staff were physically

and sexually abusing other patients. Goedde stated S.H. could not convey a coherent

plan for what she would do upon discharge.         S.H. told Goedde she would contact

celebrity musicians and get a job.

¶5     At 9:00 a.m. on November 17, 2014, the District Court held a hearing on the

petition to involuntarily commit S.H. Although she had been living in her van before

coming to the Billings Clinic, Goedde testified that S.H. was meeting her basic needs,

was not malnourished, and was taking care of her hygiene. Goedde testified that S.H. did

not have a clear plan of where she would go if released from the Billings Clinic. Goedde

testified that S.H. was not welcome at local shelters. S.H. told Goedde she could stay

with a friend, Matt, but then said she would not stay with him and would prefer to

continue living in her van. Goedde questioned whether Matt knew “what he was getting

into” by offering to let S.H. stay. Goedde testified she was concerned that staying in her


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van was not a good choice for S.H. because the weather had recently turned very cold.

Goedde testified that, on the evening before the commitment hearing, while she was not

present, S.H. was engaged in a physical altercation with another Billings Clinic patient.

Goedde testified that S.H. “may be at risk of harming someone else.” Goedde testified

that she was primarily concerned about S.H.’s lack of ability to care for herself because

of her poor judgment and also that “she may get into other altercations with other people

and end up being physically harmed.”       Goedde testified that S.H. refused to take

medication, a method of treating her mental disorder, because she believes God healed

her. Goedde testified that Billings Clinic staff involuntarily medicated S.H. after her

physical altercation the previous night. Goedde stated, “over the past four days, she has

not taken any medications, other than what we made her take because of the altercation.”

¶6    S.H. testified that she received Supplemental Security Income and also worked

through Advanced Employment as both a housekeeper at hotels and parking cars at

Yellowstone Medical Center. S.H. testified that she only went to the emergency room to

get treated for food poisoning. She explained, “I don’t know what I was poisoned with at

Denny’s restaurant downtown, North 27th Street, by a bunch of felons that worked there,

and I believe they were getting paid by the cops . . . as secret informants or whatever.”

S.H. continued that she was not treated for food poisoning. She thought she had food

poisoning because her cousin told her that food poisoning is caused by parasites and she

saw a bug in her toilet. In S.H.’s testimony, she tried to describe the reason for her

physical altercation the prior night. She said, “I was molested by another female patient

named Samantha, and they would not give me her name . . . . And she hugged me like a


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sicko molester lesbian, and I screamed for help and I pushed her away, and then she tried

to take me down . . . .” S.H. testified that she could stay with Matt in an emergency.

When asked whether Matt had helped her in the past, S.H. responded:

       Yes. He -- I owe him thousands of dollars, because last time they had me
       locked up in a group home, and he has been locked up in jail, he knows
       how the devil works. It’s just devil schemes, you know.
       But that’s why I requested the President Obama -- that President Obama be
       called at my hearing before with Todd Baugh . . . .

S.H. testified that she did not need psychotic medication because she believes it makes

people obese.

¶7     The District Court found that the State proved to a reasonable medical certainty

that S.H. suffers from the mental disorder of bipolar disorder and that S.H. “is in a manic

state, delusional, agitated and paranoid.” The District Court also found that the State

proved beyond a reasonable doubt that S.H. needs to be committed under

§ 53-21-126(1)(a) and (c), MCA, because “[s]he is an imminent threat to others and

substantially unable to care for her basic needs because of her mental disorder.” The

District Court ordered S.H. committed to the Montana State Hospital for a period not to

exceed three months. S.H. appeals. On December 16, 2014, the professional person for

S.H. filed a notice of pending discharge unconditionally terminating S.H.’s commitment

and setting a discharge date of December 19, 2014.

                              STANDARDS OF REVIEW

¶8     We review a civil commitment order to determine whether its 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 (citation omitted). A finding of fact is


                                            5
clearly erroneous if it is not supported by substantial evidence, if the district court

misapprehended the effect of the evidence, or if, after reviewing the record, we are left

with the definite and firm conviction that a mistake was made. L.K.-S., ¶ 14 (citation

omitted).

¶9     An appeal from an order of involuntary commitment is not moot despite the

respondent’s release because the issues are capable of repetition and yet would otherwise

evade review. In re R.F., 2013 MT 59, ¶ 18, 369 Mont. 236, 296 P.3d 1189 (citations

omitted).

                                      DISCUSSION

¶10 1. Did the District Court rely on sufficient evidence to determine S.H. required
commitment because she was either unable to care for her basic needs or was a threat to
others?

¶11    Before a district court may involuntarily commit a respondent, it must first

determine he or she suffers from a mental disorder. Section 53-21-126(1), MCA. S.H.

does not contest the District Court’s finding that she suffers from a mental disorder.

       If the court determines that the respondent is suffering from a mental
       disorder, the court shall then determine whether the respondent requires
       commitment.        In determining whether the respondent requires
       commitment . . . 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



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             (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. Predictability may be established by the respondent’s
      relevant medical history.

Section 53-21-126(1), MCA.       The District Court found S.H. required commitment

because she was both substantially unable to provide for her own basic needs, under

§ 53-21-126(1)(a), MCA, and posed an imminent threat of injury to others, under

§ 53-21-126(1)(c), MCA. S.H. disputes whether the District Court relied on sufficient

evidence to find she required commitment under either of these two subsections.

Section 53-21-126(1)(a), MCA.

¶12   In In re S.M., 2014 MT 309, 377 Mont. 133, 339 P.3d 23, S.M. challenged

whether sufficient evidence supported the district court’s conclusion that she required

commitment.     There, the district court found S.M. required commitment under

§ 53-21-126(1)(a), MCA, because she was “unable to provide for her own basic needs,

most particularly her health and safety.” S.M., ¶ 7. Evidence in the record indicated S.M.

could not care for her health because she was refusing treatment and medication for her

bipolar disorder, which led her condition to deteriorate.     S.M., ¶ 20.   Additionally,

evidence showed S.M. ran away from her mother because she believed her mother was

stalking her, wandered onto strangers’ properties, inappropriately removed her clothes

and touched others, and believed others were changing her underwear in the night. S.M.,

¶ 20. This Court concluded the evidence was sufficient and affirmed the district court’s




                                            7
finding that S.M. required commitment under § 53-21-126(1)(a), MCA, because she was

not able to care for her basic needs of health and safety. S.M., ¶ 20.

¶13    Similar to S.M., here, S.H. refused treatment and medication for her bipolar

disorder and wished to continue living in her van. S.H. does not dispute the District

Court’s finding that she does, in fact, suffer from a mental disorder.         S.H. refused

treatment because she believed God healed her and medications because she believed

they cause obesity. Similar to S.M., S.H. exhibited her paranoia when, after finding a bug

in her toilet, she believed felons working at Denny’s restaurant poisoned her. Evidence

showed the winter weather in Billings was inclement and S.H. wanted to continue living

in her van. S.H. was not welcome at local shelters and could not describe whether she

was willing or able to stay with her friend Matt. While refusing to take medication

should not be the only basis for an order of involuntary commitment, here, evidence

showed the District Court that S.H.’s refusal to obtain treatment, coupled with her

paranoia, resulted in a lack of winter shelter. We conclude that the District Court relied

on sufficient evidence—S.H.’s refusal to obtain treatment and her apparent lack of winter

shelter—to find she required commitment under § 53-21-126(1)(a), MCA, because she

was substantially unable to care for her basic needs.

Section 53-21-126(1)(c), MCA.

¶14    “Imminent threat of self-inflicted injury or injury to others must be proved by

overt acts or omissions, sufficiently recent in time as to be material and relevant as to the

respondent’s present condition.” Section 53-21-126(2), MCA. “Imminent threat does

not mean that a person may possibly cause an injury at some time in the distant or


                                             8
uncertain future. The danger must be fairly immediate. At the same time, the law does

not require proof beyond a reasonable doubt that an injury will occur in the future.

Threat is not certainty.” In re Mental Health of A.S.B., 2008 MT 82, ¶ 27, 342 Mont.

169, 180 P.3d 625, quoting Matter of F.B., 189 Mont. 229, 233, 615 P.2d 867, 869

(1980). In A.S.B., this Court affirmed the district court’s finding that A.S.B. required

commitment under § 53-21-126(1)(c), MCA. A.S.B., ¶ 32. There, A.S.B. believed local

police officers were conspiring against him and repeatedly placed himself in situations,

by parking his vehicle near homes and businesses and living out of it, requiring the police

to investigate him. A.S.B., ¶¶ 7, 29. When investigated, A.S.B. acted aggressively, was

intimidating, disrupted an investigation of an unrelated crime, and occasionally refused

basic police requests, requiring an officer to draw his weapon.        A.S.B., ¶ 29.    We

concluded that this was substantial credible evidence supporting the district court’s

conclusion that A.S.B. posed an imminent threat of injury to himself under

§ 53-21-126(1)(c), MCA. A.S.B., ¶ 29.

¶15    Here, S.H. was involved in a physical altercation with another Billings Clinic

patient the night before her commitment hearing. S.H. testified that she pushed the

patient away from her because the patient was a “sicko molester lesbian” who hugged her

and then tried to take her down. This physical altercation provided the District Court

with evidence of an overt act of S.H. that occurred the day before her hearing, sufficiently

recent in time as to be material and relevant to her condition at the time. Although there

was no evidence of injury, this act provided the District Court with evidence that S.H.

poses an imminent risk of injury to others because of her delusions, agitation, and


                                             9
paranoia. We conclude that the District Court relied on sufficient evidence to find S.H.

required commitment under § 53-21-126(1)(c), MCA.

¶16    2. Did S.H. receive ineffective assistance of counsel?

¶17    Article II, Section 17, of the Montana Constitution and Title 53, Chapter 21,

MCA, provide “an individual subject to an involuntary commitment proceeding the right

to effective assistance of counsel, including the right to challenge a commitment order

through a claim of ineffective assistance of counsel.” In re Mental Health of C.R.C.,

2009 MT 125, ¶ 15, 350 Mont. 211, 207 P.3d 289 (citation omitted) (C.R.C. II). To

measure effective assistance of counsel in involuntary commitment proceedings, we look

to five critical areas including:     1) appointment of counsel; 2) counsel’s initial

investigation; 3) counsel’s interview with the client; 4) the patient-respondent’s right to

remain silent; and 5) counsel’s role as an advocate for the patient-respondent. C.R.C. II,

¶ 16 (citation omitted). The record is viewed as a whole and each factor is evaluated

based upon the facts and circumstances of the entire case. In re Mental Health of T.J.F.,

2011 MT 28, ¶ 33, 359 Mont. 213, 248 P.3d 804 (citation omitted). The only factor

implicated here is counsel’s role as an advocate for the patient-respondent. In that regard,

the proper role of the attorney is to “represent the perspective of the respondent and to

serve as a vigorous advocate for the respondent’s wishes.” C.R.C. II, ¶ 18 (citation

omitted).   S.H. argues her Counsel was ineffective because she failed to object to

testimony presented by someone other than the court appointed professional person and

failed to ask for a continuance when she learned Billings Clinic staff involuntarily




                                            10
medicated S.H. within 24 hours preceding her hearing. We address each contention in

turn:

Failure to object to testimony presented by someone other than the court appointed
professional person.

¶18     On November 14, 2014, the District Court appointed Dr. Nicholson to be S.H.’s

professional person, evaluate her, and file a report with the Court. Instead, Goedde

evaluated S.H. and filed a report with the Court. The Notice of Doctor’s Report and the

District Court’s rder indicate that “Diane Goedde, FNP, a nurse practitioner with the

Billings Clinic, filed her report with the court on behalf of Dr. Nicholson.” Goedde

testified that her report was based on her 10-15 minute daily meetings with S.H. from

November 10 until November 14, 2014. S.H. argues Counsel was ineffective for not

objecting to Goedde’s report and testimony on the bases that Goedde was not the court

appointed professional person and her evaluation did not satisfy § 53-21-123(1), MCA,

because it was conducted, at least in part, prior to the Court ordering S.H. be evaluated.

¶19     S.H. relies upon § 53-21-123, MCA, and In re C.R.C., 2004 MT 389, 325 Mont.

133, 104 P.3d 1065 (C.R.C. I), as support for her contention that Counsel rendered

ineffective assistance. Section 53-21-123(1), MCA, provides:

        Following the initial hearing, whether before a judge or justice of the peace,
        the respondent must be examined by the professional person without
        unreasonable delay. The examination may not exceed a period of 4 hours.
        The professional person shall immediately notify the county attorney of the
        findings in person or by phone and shall make a written report of the
        examination to the court, with copies to the respondent’s attorney and the
        county attorney.




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Importantly, § 53-21-123(1), MCA, does not specify what constitutes an examination by

a professional person except to require that it be conducted following the initial hearing

and to limit it to a maximum of four hours. In C.R.C. I, ¶ 9, the district court appointed

Dr. Mark Heppe, M.D. to evaluate C.R.C. and file a report, which he did not do.

However, Eric Greenburg met with C.R.C. for twenty minutes on the morning of the

hearing and, then during the hearing, the court appointed him as the professional person

to evaluate C.R.C. C.R.C. I, ¶ 36. There, we concluded “Greenburg’s testimony cannot

be used to support the District Court’s finding that C.R.C. required commitment.” C.R.C.

I, ¶ 36. Significantly, C.R.C. I did not address an ineffective assistance of counsel claim

and Greenburg was not evaluating C.R.C. on Dr. Mark Heppe, M.D.’s behalf.

¶20    Here the District Court held an initial hearing on November 13, 2014, at 8:45 a.m.

and Goedde filed her report on November 14, 2014, at 3:03 p.m. Goedde’s report was

based, at least in part, on meetings she had with S.H. after the initial hearing and,

therefore, complied with § 53-21-123(1), MCA. S.H. does not contend Goedde was

unqualified to act as a professional person and, based on the authority S.H. advances on

appeal, the District Court’s reliance on Goedde’s report and testimony was not improper.

Viewing the record as a whole, as we must, there are numerous indications that Counsel

provided effective representation. On November 12, 2014, Counsel filed a notice of

appearance on S.H.’s behalf.      At the commitment hearing, Counsel capably cross-

examined the witnesses.     Counsel elicited testimony that revealed Goedde was not

present during S.H.’s physical altercation, S.H. had an income and was capable of

working, S.H. could stay with a friend in an emergency, and S.H. did not appear to be


                                            12
malnourished and was hygienic. Counsel attempted to redirect S.H. when her testimony

veered off-topic and asked several questions that could have helped S.H., but S.H. was

incapable of answering them in a coherent manner. We conclude that the record as a

whole demonstrates that Counsel vigorously represented S.H.’s wishes. T.J.F., ¶ 33.

Failure to ask for a continuance when Counsel learned Billings Clinic staff
involuntarily medicated S.H. within 24 hours preceding her commitment hearing.

¶21   Section 53-21-115(11), MCA, confers “the right to refuse any but lifesaving

medication for up to 24 hours prior to any hearing held pursuant to this part.” Billings

Clinic staff involuntarily medicated S.H., by giving her an injection, the evening before

her morning commitment hearing. The record does not indicate whether the injection

was lifesaving or whether S.H. was still under its effects at the time of the hearing.

Counsel did not learn about the involuntary medication until Goedde revealed it during

her testimony. In light of the evidence that indicates Counsel’s vigorous representation

of S.H. and Counsel’s lack of knowledge about S.H.’s involuntary medication until

during the hearing, we cannot conclude that failing to ask for a continuance defeats

Counsel’s otherwise effective representation.

                                    CONCLUSION

¶22   We conclude sufficient evidence supported the District Court’s conclusion that

S.H. required commitment under both § 53-21-126(a) and (c), MCA, and Counsel did not

render ineffective assistance. Affirmed.


                                                /S/ LAURIE McKINNON




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We Concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE




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