J.A.D., In Interest of, 920298

• Decision Date: 05 November 1992
• Docket Number: No. 920298,920298
• Citation: 492 N.W.2d 82
• Parties: In the Interest of J.A.D., Respondent and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 82

492 N.W.2d 82

In the Interest of J.A.D., Respondent and Appellant.

Civ. No. 920298.

Supreme Court of North Dakota.

Nov. 5, 1992.

As Corrected Nov. 20, 1992.

Randall L. Hoffman, Jamestown, for respondent and appellant.

Wendy P. Sulewski, State's Atty., Jamestown, for appellee.

VANDE WALLE, Justice.

J.A.D. appealed from an order of the county court of Stutsman County requiring that he be hospitalized and treated for mental illness for a period not to exceed 90 days. We reverse.

On September 3, 1992, a preliminary hearing concerning the petition for J.A.D.'s involuntary treatment was held in accordance with section 25-03.1-17, NDCC. J.A.D. was committed to the North Dakota State Hospital under a temporary treatment order for a period of 14 days. NDCC Sec. 25-03.1-17. On September 16, 1992, an involuntary treatment hearing was held pursuant to section 25-03.1-19, NDCC. At the treatment hearing the county court found that J.A.D. "suffers from a mental illness, which substantially impairs his capacity to use self-control, judgment and discretion, and that there is a substantial likelihood of substantial harm to himself as demonstrated by past acts which indicate that he is not able to take advantage of things available to him outside the State Hospital." The county court entered an order requiring that J.A.D. receive a maximum of 90 days treatment at the North Dakota State Hospital.

The two issues before us on this appeal are:

1. Whether the trial court was clearly erroneous in its determination that there is clear and convincing evidence that J.A.D. suffers from a mental illness which substantially impairs his capacity to use self-control, judgment, and discretion.

2. Whether the trial court was clearly erroneous in its determination that there is clear and convincing evidence that there exists a substantial likelihood of substantial harm by J.A.D. to himself as demonstrated by past acts which indicate that he is not able to take advantage of things available to him outside of the State Hospital.

Before a court can issue an order for an involuntary treatment, the petitioner must prove by clear and convincing evidence that the respondent is a person requiring treatment. NDCC Sec. 25-03.1-19. Kottke v. U.A.M., 446 N.W.2d 23 (N.D.1989). The determination that an individual is a "person requiring treatment" under the statutory definition is a two-step process: (1) the court must find that the individual is mentally ill, and (2) the court must find that there is a reasonable expectation that if the person is not hospitalized there exists a serious risk of harm to himself, others, or property. NDCC Sec. 25-03.1-02(10); ¹ Kottke, supra. The scope of review we follow in appeals under section 25- 03.1-29, NDCC, is limited to the examination of the procedures, findings, and conclusions of the lower court. NDCC Sec. 25-03.1-29. The majority of our court has held that the trial court's determination there is clear and convincing evidence the respondent is a person in need of treatment is a finding of fact which we will not set aside on appeal unless it is clearly erroneous. Rule 52(a), NDRCivP; Kottke, supra; In Interest of Kupperion, 331 N.W.2d 22 (N.D.1983). We therefore focus on the evidence that J.A.D. was mentally ill and that there was a substantial likelihood of substantial harm to J.A.D. to determine if there is clear and convincing evidence to support the findings of the trial court. In Interest of M.H., 475 N.W.2d 552 (N.D.1991).

The record demonstrates that J.A.D. is suffering from a mental illness. ² The record also fairly indicates that without treatment, J.A.D.'s mental health would be at a substantial risk of deterioration. ³ However, as we have previously held, the need for treatment alone is not sufficient to order hospitalization. In Interest of M.S.H., 466 N.W.2d 151 (N.D.1991). The issue is therefore whether or not this likely deterioration of J.A.D.'s mental health will predictably result in dangerousness to himself, others, or property. NDCC Sec. 25-03.1-02(10)(d); M.H., supra.

The record is tenuous as to whether J.A.D. poses a danger to himself, to others, or to property. Testimony at the hearing indicates that J.A.D. may be a danger to himself, though most likely not a danger to others or to property. ⁴ The concern over J.A.D.'s dangerousness to himself centered around his homelessness and his ability to take care of himself, such as his resourcefulness at getting food and proper nutrition, and his propensity to seek out shelter during the winter months.

Of the three witnesses testifying in support of the involuntary treatment, one was a human service center caseworker who dealt with homeless and mentally ill people, another was with a religious and philanthropic organization known for its assistance to the very poor. These witnesses, commendably, were concerned with J.A.D.'s physical and mental well being. Their testimony describing some of J.A.D.'s more bizarre behavior may provide a basis for an expert witness to conclude that J.A.D. was mentally ill, but the testimony is not clear and convincing that J.A.D. is in need of treatment in the sense of our mental health commitment statutes.

Dr. Kottke, the third witness to testify in support of involuntary treatment, provided clear and convincing evidence that J.A.D. is mentally ill, and much of his testimony was concerned with that issue. However, Dr. Kottke's testimony that J.A.D. was in need of treatment as defined by the statutes was not clear and convincing. Dr. Kottke's conclusion, that absent commitment to the State Hospital there exists a strong risk of harm to J.A.D., was also premised on his concern that J.A.D. would not seek appropriate shelter when winter came, as it surely will, in North Dakota.

All three witnesses expressed concern that because J.A.D. was a recent arrival from the deep South he was not aware of the severe cold which the winter season may bring to North Dakota and would not seek appropriate food and shelter. These concerns were essentially premised on isolated incidents in which J.A.D. did not take advantage of shelter the caseworker had arranged, the fact that J.A.D. took shelter in abandoned buildings, that he talked about obtaining a hotplate, and the fact that he once placed food he received from the private organization in a garbage dumpster because, according to the witness, he could not remember where he obtained the food and was afraid to eat it. J.A.D. denied that was the reason he placed the food in the dumpster, alleging instead that he placed it there for safekeeping. Assuming the witness is correct, such action may be indicative of mental illness, but is not clear and convincing evidence that J.A.D. cannot care for himself. To the contrary, it might as well indicate J.A.D. is aware of his health and will not take action which would endanger it. The witness, in fact, agreed that despite several months of homeless status, J.A.D. was in good physical condition, thus indicating an ability to care for himself under circumstances which many of us would consider adverse and with which we perhaps would not contend as successfully as J.A.D. See In Interest of R.N., 450 N.W.2d 758 (N.D.1990) [no deterioration in physical health due to poor judgment].

Not all homeless people are mentally ill and in need of treatment. Homelessness may in some instances be a product of mental illness, but it may also be the result of economic hardship or simply lifestyle choice. We cannot categorize homeless people as people in need of compulsory mental therapy simply because they do without a traditional home, kitchen, plumbing, or electricity. Homeless people may be very resourceful in obtaining food and shelter, as evidenced by J.A.D. seeking out the Salvation Army and social programs offered by the various state and private agencies in the community. J.A.D. has been receiving food and meals, and has sought shelter. Because he did not make use of the shelter which he was offered during the summer months is not necessarily indicative of a propensity to not seek shelter in the winter months. J.A.D. had the wherewithal to travel to North Dakota, and we can presume that he has the wherewithal to leave. In the winter, he may seek assistance for shelter as he has in the past, or simply leave the state for warmer locations. There is no presumption that J.A.D., as a homeless person, will neither be able to fend for himself during the winter months nor be able to take care of his needs.

The burden of proof in these proceedings is with the petitioner and there is a presumption in favor of J.A.D. that he does not require treatment. NDCC Sec. 25-03.1-19; In Interest of Rosenthal, 392 N.W.2d 796 (N.D.1986); Kupperion, supra. The record in this case is not unlike In Interest of M.B., 467 N.W.2d 902, 904 (N.D.1991) in which the expert witness testified that if M.B. was not involuntarily committed and monitored on a regular medication program, there "probably" would be "problems as far as taking care of his day to day needs, food and shelter and that type of thing." We concluded that:

"[a]t best the record leads only to the conclusion that M.B. is a person who would benefit from treatment with medication and that such treatment is only possible if he were hospitalized, because otherwise he refuses to take medication. That is not the statutory standard which authorizes our courts to commit the mentally ill. The standard for involuntary commitment remain [sic] clear and convincing proof that the mentally ill individual is a person who requires treatment as defined by the statute. In Interest of R.N., 450 N.W.2d 758 (N.D.1990). That standard was not met here."

M.B., supra at 904. We likewise conclude that the standard was not met in this case.

Our review of the finding that J.A.D. may be a danger to himself, others, or property is governed by the requirement that the finding be supported by clear and convincing evidence....