In re S.D.

• Decision Date: 17 July 2018
• Docket Number: DA 17-0179
• Citation: 392 Mont. 116,422 P.3d 122,2018 MT 176
• Parties: In the MATTER OF: S.D., Respondent and Appellant.
• Court: Montana Supreme Court

392 Mont. 116

422 P.3d 122

2018 MT 176

In the MATTER OF: S.D., Respondent and Appellant.

DA 17-0179

Supreme Court of Montana.

Submitted on Briefs: May 9, 2018

Decided: July 17, 2018

For Appellant: Chad Wright, Appellate Defender, James Reavis, Assistant Appellate Defender, Helena, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General, Helena, Montana, Ed Corrigan, Flathead County Attorney, Stacy Bowman, Deputy County Attorney, Kalispell, Montana

Justice Beth Baker delivered the Opinion of the Court.

¶1 The State filed a petition to involuntarily commit S.D. after she attempted to kill herself and expressed ongoing suicidal ideation and hopelessness. After the initial hearing, S.D.’s attorney filed a waiver of her rights, which included her signed consent to involuntary commitment. The District Court approved the waiver and ordered S.D.’s commitment. On appeal, S.D. argues that the District Court violated her statutory and due process rights when it committed her without holding a hearing. We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶2 In January 2017, the State filed a petition against 71-year-old S.D., alleging that she suffered from a mental disorder and required involuntary commitment. The State submitted and incorporated by reference a report by a mental health professional, Jami M. Flickinger (Flickinger), who had examined S.D. Flickinger’s report stated that S.D. had made efforts to kill herself while residing in two different assisted living facilities. It stated that at one of the facilities S.D. used a nurse’s unattended keys to access most of her medications, and at another facility S.D. had tried—unsuccessfully—to break a mirror to cut herself. According to Flickinger’s report, S.D. admitted "ongoing suicidal ideation and hopelessness due to her physical and mental health condition." Flickinger’s opinion was that S.D.’s mood was depressed and her affect flat, that she had no insight into the nature of her condition, and that she had inadequate judgment and impulse control. Flickinger also described S.D. as possessing a clear stream of thought without bizarre or illogical elements or spontaneous expressions of hallucinatory, illusional, or delusional thoughts or perceptions. Flickinger recommended that S.D. be committed to the Montana State Hospital for up to 90 days.

¶3 The State’s petition for involuntary commitment listed the procedural rights available to S.D. under §§ 53-21-115 to -118, MCA. Flickinger’s report, incorporated in the petition by reference, included a list of the same procedural rights, except for information about the right to voluntarily take necessary medications. Based on the State’s petition, the District Court issued an order that scheduled both an initial appearance and an adjudicatory hearing and designated two people to act as alternates as S.D.’s appointed friend.

¶4 The State appeared at the initial hearing before the District Court, and S.D. and her attorney appeared via videoconference. The record does not reflect whether S.D.’s appointed friend was present. The District Court ensured that all parties could see and hear one another and then advised S.D. of her civil commitment procedural rights. After advising S.D. of her rights, the District Court asked her if she had any questions. S.D. replied, "No, I don’t have any questions right now."

¶5 That same morning, S.D. and her attorney filed a "Waiver of Hearing on Petition" with the District Court. The waiver stated that S.D. acknowledged that she had received a copy of the State’s petition; that she discussed the petition with her attorney; and that she was aware of the "fundamental rights" set forth in the petition, as well as other rights. The waiver included several paragraphs that described the procedural rights in §§ 53-21-115 to -118, MCA, and stated that S.D. was aware, understood, and/or had knowledge of those; it also stated that S.D. had been informed by her attorney that she had the right to a jury trial and the right to appeal any final ruling. The waiver stated S.D.’s belief that she needed treatment for a "mental disease or disorder." It continued, "I wish to avoid any further hearings and I do hereby waive my right to attend any future hearings." S.D. then expressly waived all her listed rights except the right to receive treatment, and she consented to the court entering an order for her involuntary commitment to the Montana State Hospital for a period not to exceed 90 days.

¶6 S.D. and her attorney both signed the waiver. S.D. signed immediately beneath the following text:

I further certify that 1) I have discussed this waiver with my attorney; 2) I understand the rights listed above; 3) it is my desire and intent to voluntarily waive these rights; and 4) I have discussed the nature of these proceedings with my attorney and I understand the purpose of these proceedings.

S.D.’s attorney signed below text that stated:

I certify that 1) I have discussed this waiver with the [R]espondent; 2) I am satisfied that the Respondent understands the rights listed above; 3) I believe it is the Respondent’s desire and intent to voluntarily waive these rights; and 4) I have discussed the nature of these proceedings with the Respondent and I am satisfied that the Respondent understands the purpose of these proceedings.

The record does not reflect whether S.D.’s appointed friend participated in S.D.’s decision to sign the waiver or whether Flickinger concurred.

¶7 The District Court issued an order that day committing S.D. to the Montana State Hospital for up to 90 days. The Court stated in the order that it had considered the reasons for the waiver pursuant to § 53-21-119, MCA, and was satisfied that the "Respondent is aware of the waiver of hearing after having consulted with her attorney, and is capable of making a knowing decision therein."

STANDARD OF REVIEW

¶8 Due process claims in involuntary civil commitment cases are subject to plenary review. In re N.A., 2014 MT 257, ¶ 10, 376 Mont. 379, 334 P.3d 915. We review an involuntary civil commitment order to determine whether the district court’s findings of fact are clearly erroneous and its conclusions of law are correct. In re R.W.K., 2013 MT 54, ¶ 14, 369 Mont. 193, 297 P.3d 318. We require strict adherence to the involuntary commitment statutory scheme, considering the "utmost importance of the rights at stake." In re Mental Health of L.K.-S., 2011 MT 21, ¶ 15, 359 Mont. 191, 247 P.3d 1100.

DISCUSSION

¶9 S.D. argues that the District Court erred as a matter of law when it committed her to the Montana State Hospital upon her signed waiver without a hearing or trial. She contends that the court could not accept her waiver without "a hearing about the waiver, in a courtroom, in front of a judge." The State responds that the record establishes that S.D. was capable of making a knowing and intentional waiver, and the court did not need to hold a hearing.

¶10 Title 53, chapter 21, MCA, authorizes and prescribes the process for involuntary commitment of individuals for mental health treatment. This system is part of a "rather recent development" in the law to establish "strong procedural safeguards to protect the interests of those facing involuntary civil commitment" that are "focused on improving the fairness and accuracy of the process." In re S.M. , 2017 MT 244, ¶ 24, 389 Mont. 28, 403 P.3d 324. Those procedural safeguards are spelled out in §§ 53-21-115 to -118, MCA. Section 53-21-119, MCA, governs waiver of those rights. It provides in part:

(1) A person may waive the person’s rights, or if the person is not capable of making an intentional and knowing decision, these rights may be waived by the person’s counsel and friend of respondent, if a friend of respondent is appointed, acting together if a record is made of the reasons for the waiver. The right to counsel may not be waived. The right to treatment provided for in this part may not be waived.

(2) The right of the respondent to be physically present at a hearing may also be waived by the respondent’s attorney and the friend of respondent with the concurrence of the professional person and the judge upon a finding supported by facts that:

(a)(i) the presence of the respondent at the hearing would be likely to seriously adversely affect the respondent’s mental condition; and

(ii) an alternative location for the hearing in surroundings familiar to the respondent would not prevent the adverse effects on the respondent’s mental condition; or

(b) the respondent has voluntarily expressed a desire to waive the respondent’s presence at the hearing.

¶11 Breaking it down, this statute prescribes that: (1) all statutory rights afforded a respondent in a civil commitment proceeding may be waived, except for the right to counsel and the right to treatment, see In re S.M. , ¶ 30 (rejecting constitutional challenge to statute prohibiting waiver of right to counsel); (2) if capable of doing so, a respondent may waive her own rights, see In re R.W.K. , ¶ 10 (upholding trial court’s conclusion that respondent was capable of waiving his rights and stipulating to commitment); (3) if the respondent is not capable, her rights may be waived only when her counsel and appointed friend agree on the waiver and make a record of it, see In re L.K.-S. , ¶¶ 22-26 (reversing commitment where record did not show appointed friend’s concurrence in waiver); In re P.A.C. , 2013 MT 84, ¶ 13, 369 Mont. 407, 298 P.3d 1166 (reversing involuntary commitment where the record did not establish that respondent was capable of making an intentional and knowing decision to waive her rights); and (4) if the court holds a hearing and the respondent is not there, the hearing may go forward in her absence only if the respondent’s attorney and friend waive her presence, with the concurrence of the designated professional, and the presiding judge makes the factual findings required by subsection (2), see In re Matter of...