In re B.O.T.

• Decision Date: 10 February 2015
• Docket Number: No. DA 14–0041.,DA 14–0041.
• Citation: 378 Mont. 198,342 P.3d 981,2015 MT 40
• Parties: In the Matter of B.O.T., Respondent and Appellant.
• Court: Montana Supreme Court

378 Mont. 198

342 P.3d 981

2015 MT 40

In the Matter of B.O.T., Respondent and Appellant.

No. DA 14–0041.

Supreme Court of Montana.

Submitted on Briefs Dec. 10, 2014.

Decided Feb. 10, 2015.

For Appellant: Kathryn McEnery, McEnery Law Office, PLLC, Kalispell, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General, Helena, Montana, Kirsten H. Pabst, Missoula County Attorney, Erica Grinde, Deputy County Attorney, Missoula, Montana.

Opinion

Justice LAURIE McKINNON delivered the Opinion of the Court.

¶ 1 Appellant B.O.T. appeals from the order and judgment of the Fourth Judicial District Court, Missoula County, committing him to Montana State Hospital for 90 days. We affirm.

¶ 2 B.O.T. presents the following issue for review:

Whether there was substantial evidence to conclude that B.O.T., because of a mental disorder, was unable to provide for his own basic needs of food, clothing, shelter, health or safety.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 3 On December 24, 2013, the State filed a petition for commitment alleging that on the night of December 23, 2013, B.O.T. was taken by ambulance to the emergency room of Community Medical Center in Missoula. B.O.T. had apparently been lying on the ground at a Missoula bus station. The District Court later observed that the night was cold, and that it was “sleeting and raining and extraordinarily miserable.” B.O.T. was admitted to Community Medical Center overnight for observation and treatment. Further diagnosis revealed that B.O.T. suffered from several chronic health conditions: diabetes, hypertension, and hyperkalemia.¹

¶ 4 The petition further alleged that hospital staff reported B.O.T. was very uncooperative and pulled out his IV in order to get some candy. After the IV was put back in place, B.O.T. broke it into two pieces. Due to B.O.T.'s irrational behavior and his refusal to take medications as directed, B.O.T. was referred for a mental health evaluation to be conducted by J. David Washburn, a licensed clinical social worker. Mr. Washburn found B.O.T. difficult to evaluate because B.O.T.'s thinking was extremely disorganized, his mumbled speech was difficult to understand, and B.O.T. did not provide much useful information. Mr. Washburn deduced that B.O.T. was a client at Winds of Change Mental Health Center, and upon further inquiry, Washburn learned that B.O.T.'s condition had been deteriorating because of B.O.T.'s refusal to cooperate with the administration of medication by staff at that facility. In addition, Mr. Washburn learned that B.O.T. was given a food stamp card to purchase food, but was either unwilling or unable follow through with getting a PIN to activate the card. B.O.T. was also reportedly “having delusions about receiving large sums of money deposited into his account from his sister in Louisiana....”

¶ 5 On December 26, 2013, the District Court held an initial appearance on the State's petition and advised B.O.T. of his rights pursuant to § 53–21–115, MCA. B.O.T. was appointed counsel, professional persons were appointed to examine B.O.T., and a case manager from Western Montana Mental Health Center was appointed as friend to protect B.O.T.'s interests. A commitment hearing was scheduled for December 27, 2013. Pending the hearing, the District Court ordered that B.O.T. be detained at Montana State Hospital (MSH) pursuant to § 53–21–124, MCA.

¶ 6 During the commitment hearing on December 27, 2013, the State presented the testimony of Thomas Hodgetts, a licensed clinical social worker and certified mental health professional with Western Montana Mental Health Center. Hodgetts had evaluated B.O.T. around noon the day of the hearing. Prior to the evaluation and commitment hearing, Hodgetts reviewed the evaluation conducted by Washburn, the records of MSH, and consulted with Rosie Jennings, a treatment provider at Winds of Change. Hodgetts explained that B.O.T. had been residing at several group homes operated by Winds of Change, but was no longer able to do so because of inappropriate sexual behavior and refusal to take medication. He was not able to stay at the Poverello Center for the same reasons. Additionally, Hodgetts related that B.O.T. had some misdemeanor charges involving inappropriate sexual behavior, which resulted in a three-week stay in the Missoula Detention Center. Hodgetts indicated B.O.T. was released about ten days prior to the State's filing of the petition, and had been residing at area motels. However, B.O.T. had been evicted from the Colonial Motel and feared he would be arrested for nonpayment of room charges.

¶ 7 Hodgetts surmised that Winds of Change was the designated protective payee for B.O.T.'s Supplemental Security Income (SSI) funds. Finally, Hodgetts described that, based upon available information, B.O.T. “absolutely did not want to create a PIN number in order to access his [food stamp] card. He was noncompliant with his case manager's suggestions on how to do that. He would not cooperate with the case manager in obtaining a PIN number.”

¶ 8 Hodgetts concluded that B.O.T. was “unable—not allowed to go to the Poverello Center, which puts him at risk of homelessness in the middle of winter. That certainly would be harmful.” Further, Hodgetts noted B.O.T. was not able to access his food stamp card. Hodgetts explained that “even though B.O.T. may have the [financial] resource, he does not seem able to utilize the resource that's available to get food. So he does not have access to safe shelter and safe food at this time.”

¶ 9 Hodgetts also testified that, based upon a reasonable degree of medical certainty, B.O.T. suffers from schizo affective disorder and it was Hodgetts's opinion, based upon the foregoing information, that B.O.T. is unable to meet basic needs of food and shelter. Hodgetts opined that the least restrictive environment for treatment of B.O.T. was MSH. Finally, because B.O.T. had been uncooperative in receiving his injectable antipsychotic medication, Hodgetts believed an involuntary medication order was necessary.

¶ 10 B.O.T. testified that his plan, if he were permitted to leave the hearing, was to go to the bus station, go to the Winds of Change “compound” to get “the balance of $700 due me,” and then go to Wal–Mart to buy some tape to finish boxing up his things. After boxing up his things, he would travel “westward, to El Monte, California,” where his brother has a medical practice “that is in need of a research associate.” When counsel inquired about what he would do for food, B.O.T. explained that he would get his last month's check from Winds of Change, go charge his debit card, and “go to the Savmor food store and buy a pastrami sandwich.” He would then buy his bus ticket for El Monte and leave at “11 o'clock tonight.” If he did not have enough money for a bus ticket he anticipated he would go back to the Missoula Detention Center. B.O.T. also clarified that his diagnosis is schizo type and not schizoaffective or schizophrenic, and that he takes 1.1 milligrams of Risperdal for his mental disorder and metformin for his diabetes. Although B.O.T. was able to articulate coherent answers to some questions with reasonable specificity, his answers overall can only be characterized as disjointed and disorganized.

¶ 11 The District Court made the following observation at the conclusion of the hearing:

Well, this is a tough case because there's a lot of people that are odd out there, and we can't lock them all in Warm Springs. There's a lot of people that have trouble with day-to-day living, and we can't lock them all up.

On the other hand, [B.O.T.'s] thinking is plainly disorganized. By his own admission, he's got some kind of schizo-related disease. And it's pretty apparent that he was at risk on at least the night of the 23rd because he ended up at the emergency room for some kind of medical condition.

And it does appear that he's got an issue with housing. I'm not even sure that the Colonial, based on his testimony, is available to him. His plan to go to California is all hinged on getting money from ... Winds of Change, I guess which ... I'm not sure that's possible, although I don't know.

And I think he is a danger to himself in his current condition; not because he's going to do self-harm, as the witness said, but because he's going to either engage in some kind of conduct that gets him back in jail or in the hospital.

¶ 12 In its written order, the District Court concluded that “[B.O.T.] was unable to provide the Court with a clear plan to care for his basic needs.” B.O.T. “admitted to having a serious mental illness” and is “unable to demonstrate how he would care for himself to protect himself from harm if released from inpatient treatment.” The District Court ordered B.O.T. committed to MSH for 90 days and that medication could be involuntarily administered.

STANDARD OF REVIEW

¶ 13 We review a district court's order of commitment to determine whether the court's findings 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. A finding of fact is clearly erroneous if it is not supported by substantial evidence or if, after review of the entire record, we are left with the definite and firm conviction that a mistake has been made. L.K.–S., ¶ 14, 247 P.3d 1100. When determining whether substantial evidence supports the district court's findings, this Court views the evidence in the light most favorable to the prevailing party. In re Mental Health of T.J.F., 2011 MT 28, ¶ 17, 359 Mont. 213, 248 P.3d 804.

DISCUSSION

¶ 14 Whether there was substantial evidence to conclude that B.O.T., because of a mental disorder, was unable to provide for his own basic needs of food, clothing, shelter, health or safety.

¶ 15 At the trial on a petition for commitment, the court must first determine whether the respondent suffers from a mental disorder, defined as “any organic, mental, or emotional...