O'Brien, Matter of, WD

• Citation: 600 S.W.2d 695
• Decision Date: 09 June 1980
• Docket Number: No. WD,WD
• Parties: In the Matter of Michael O'BRIEN, a person alleged to be mentally ill. 31807.
• Court: Court of Appeal of Missouri (US)

Page 695

600 S.W.2d 695

In the Matter of Michael O'BRIEN, a person alleged to be mentally ill.

No. WD 31807.

Missouri Court of Appeals, Western District.

June 9, 1980.

June Clark, Polsinelli, White & Schulte, Kansas City, for appellant.

Stephen H. Stiller, Kansas City, for respondent.

Before TURNAGE, P. J., and SHANGLER and MANFORD, JJ.

TURNAGE, Presiding Judge.

Michael O'Brien was ordered committed to the Western Missouri Mental Health Center for 14 days upon a finding by the court under § 202.135, RSMo 1978, that Michael, as a result of a mental illness, presents a likelihood of serious physical harm to himself or to others.

On this appeal Michael contends there was no clear, cogent and convincing evidence to show that he presented a likelihood of serious physical harm to himself or to others.

This court heard oral arguments and at the conclusion thereof issued an order discharging Michael from custody with an opinion to follow.

Michael's mother, Mrs. Josephine O'Brien, and Dr. Annie Thomas, a psychiatric resident physician, testified at the hearing to determine whether or not Michael should be involuntarily detained for a 14-day period. Mrs. O'Brien testified that she came home from the hospital, where her mother had just died, and met Michael who appeared to be angry. She said Michael had on one of his father's good coats and told her that he wanted to show her what he had done. He took her by the arm and took her downstairs to the basement. She stated that she did not want to go, and although she had never been scared of Michael before, at that time she was nervous because of her mother's death and she said she was "kind of scared" of Michael. When she got downstairs, Michael said that everything was nice, just the way he wanted it to be. She stated, in fact, that the basement was a disaster area with lines cut, all the clothes on the floor and things turned over. He had apparently removed all the fuses from the electrical fuse box and had broken a window. They went upstairs and he showed her his father's room. There he had knocked everything over and a couple of things were broken. She then told Michael that she was going outside for a while, and he told her he wanted some matches. She told him she did not have any. He asked for a cigarette lighter and she told him she did not have that. He stated he wanted one right now and she inquired as to the reason he wanted these. He said that she would see and she was just to get them. She said he got real mad and started yelling, and she stated she would see what she could do. She then asked him if he was going to burn the house down and he said, " 'Well, you'll see if I'm going to burn the house down. . . . I you'll find out when I when you get the matches and cigarette lighter. And I'm going to finish the job that I started to do.' You know, whatever that meant I don't know."

Mrs. O'Brien ran to a neighbor's house, the police were called, and they picked up Michael.

On cross-examination Mrs. O'Brien stated Michael did not attempt to hit her, nor did he threaten her in any way.

Dr. Annie Thomas stated she was a resident physician in psychiatry at Western Missouri Mental Health Center. She had observed Michael daily from April 25 through May 1, 1980, at the Center. She stated Michael was restless and had delusions against his father. She stated he believed his father manipulated him with his Seiko-Deneral watch. He thinks his father built in all sort of electrical wires and pulled Michael to get him into the house. He thinks his father was doing illegal things and he wanted to protect the family, so he pulled out the electrical cords and cut the electrical wires. He said he was doing this with a lot of energy because he was guided by God, that Mother Nature was with him, and that the birds outside were very happy because they were making a lot of noise. Dr. Thomas said Michael's delusions were mainly persecutory in nature about his father. She said his mood reflects anger and hostility. She said Michael told her he was not going to press any charges for his father's illegal acts.

Dr. Thomas did not relate any physical findings of significance except that Michael is blind in his right eye. On an emotional level, she stated that Michael gets angry very easily, but did not "act out or anything" when he became angry. She stated she had not heard of Michael threatening anyone, and in talking about his father he said, "If I want to, I can use my pen-knife, but I never use it. He is my father." Dr. Thomas gave her diagnosis as paranoid schizophrenia. Her recommendation was that he be treated with an anti-psychotic medication for at least two weeks, and be given other therapy like activity and "one-to-one interbasis" in talking to humans.

In oral argument, Michael's counsel conceded that Michael has a mental illness, but contended the standard of proof of clear, cogent and convincing evidence had not been met to show that Michael presented a likelihood of serious physical harm to himself or to others. This standard of proof as imposed by § 202.135.5 is an intermediate standard between the preponderance of the evidence and beyond a reasonable doubt.

In Grissum v. Reesman, 505 S.W.2d 81, 86(1) (Mo.1974), the court considered the meaning of the phrase, "clear, cogent and convincing evidence" and stated, "As we now...