In re the Matter of the Civil Commitment of: Sherry R. Linn.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-264

 

In re the Matter of

the Civil Commitment of:

Sherry R. Linn.

 

Filed September 30, 2003

Affirmed; motion granted Hudson, Judge

 

Koochiching County District Court

File No. P4-02-00610

 

Daniel L. Griffith, Griffith Law Office, 343 Third Street, International Falls, Minnesota 56649 (for appellant Linn)

 

Mike Hatch, Attorney General, David A. Rowley, Assistant Attorney General, 445 Minnesota Street, Suite 900, St. Paul, Minnesota 55101-2127; and

 

Jennifer J. Hasbargen, Koochiching County Attorney, Koochiching County Courthouse, 715 Fourth Street, International Falls, Minnesota 56649-2438 (for respondent state)

 

            Considered and decided by Randall, Presiding Judge; Halbrooks, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

            In this commitment appeal, appellant Sherry Linn argues that the district court erred by:  (1) denying her petition for discharge from her commitment as mentally ill and chemically dependent and failing to impose the least-restrictive treatment alternative in lieu of continuing appellant's civil commitment; and (2) authorizing the administration of neuroleptic medications.  Because clear and convincing evidence supports the district court's continued commitment of appellant as mentally ill and chemically dependent; and because the propriety of the order authorizing neuroleptic medications is moot, we affirm.

FACTS

            Appellant was committed as mentally ill and chemically dependent on December 3, 2002.  The facts leading up to appellant's commitment are largely undisputed.

            Appellant has a long and complicated medical history, having been diagnosed with, among other things, fibromyalgia and chronic pain syndrome.  She has also suffered a number of injuries from falls and motor vehicle accidents.  In addition, the record is replete with evidence of appellant's abuse of doctor-prescribed narcotics and inhalants, and in the months preceding her commitment, appellant refused medication-management assistance from Koochiching County Public Health.  For example, during a home visit, social worker Deb Walters found appellant wedged between her bed and two garbage cans, a phone, a box, and a stack of Rubbermaid drawers containing her prescription medication.  It took Walters 25 minutes to clear these items away and get appellant into bed.  According to Walters, appellant could not keep her eyes open that day.  Other examples of appellant's overmedication include insistence on grocery shopping despite her obvious sweating and staggering, speaking very slowly with long pauses, dozing off while talking on the phone or standing up at the pharmacy, and extreme confusion over simple matters such as making change and ordering prescriptions, as well as frequent falls.

            Appellant was treated by Medical Pain Clinics (MPC), a clinic specializing in pain management, but the clinic ultimately discontinued treatment because appellant failed to adhere to her opioid contract.[1]  According to MPC, appellant violated the terms of her contract by refusing to follow treatment recommendations, failing to keep appointments, and refusing to obtain a psychiatric consultation.  In addition to treatment at the pain clinic, appellant frequently called 9-1-1 and was taken to the hospital by ambulance on at least four occasions in the months preceding her commitment.  On one occasion, she called 9-1-1 from her hospital room in response to attempts to decrease her narcotics doses.  On another, paramedics, when called to her home, found appellant in possession of 63 assorted prescription medications; 31 of these were inhalers with several prescription dates going back to 1999.  The remaining 32 included several narcotics, namely Oxycontin, Oxycodone, and Methadone, with some prescription dates going back to 1997.  Paramedics believed she had additional medication in the home because appellant's prescription for Prozac was not among the 63 medications found.

Appellant's primary physician, Dr. Jeri Vergeldt, opined that appellant suffers from narcotics addiction and was "taking enough narcotics to put her at risk for harm."  She supported detoxification and commitment for chemical-dependency treatment.  Specifically, Dr. Vergeldt believes that appellant's physical disability does not justify the level of pain she reports.  The pre-petition screening report, co-authored by Walters, concluded that appellant is in need of involuntary commitment to a chemical-dependency program for detoxification and treatment.  Walters submitted a letter requesting that appellant be committed to a hospital with a psychiatric unit because withdrawal from narcotics can cause psychotic symptoms.  The court held a hearing on the petition on November 26, 2002.  Dr. Burton Helleloid, a court-appointed examiner, opined that appellant should be committed as a mentally-ill person as well as chemically dependent.  Dr. Helleloid's report stated that appellant could not manage her medications on an outpatient basis and should taper off her medications slowly in a supervised setting.  Dr. Helleloid further observed that appellant spoke slowly, but in a rambling manner, and moved with an unsteady gait, posing a danger to herself.  He recommended inpatient treatment to address both her chemical-dependency and mental-health issues, but noted that she does not present a danger to the public.  Appellant and her attorney agreed that "serious physical harm to [appellant] exists." 

The district court committed appellant as mentally ill and chemically dependent on December 3, 2002; three days later she was admitted to Brainerd Regional Human Services Center (BRHSC).  Pursuant to Minn. Stat. § 253B.17, subd. 1 (2002), on January 15, 2003, appellant filed a petition for a hearing and release from continuing commitment as mentally ill and chemically dependent.  Shortly thereafter, on January 17, 2003, BRHSC filed a petition seeking the court's authority to administer neuroleptic medications.  The court heard both petitions on January 28, 2003, which included testimony from Drs. Diessner, Morey, and Helleloid, as well as appellant.  Dr. Ardell Diessner, appellant's treating psychiatrist at BRHSC, testified that appellant suffers from thought-processing disorders as well as thought-content disorders.  He testified that appellant's primary diagnosis is psychosis NOS (not otherwise specified), which is composed of two component parts: "rambling thought" disorder and delusional-somatization disorder.  Dr. Diessner testified that appellant's expert, Dr. Morey, had missed a crucial diagnosisthe rambling-thought disorder.  Dr. Diessner explained that the test appellant's expert relied on, the Minnesota Multiphasic Personality Inventory (MMPI), could not detect that disorder; rather it could only be detected through working with an individual on a daily basis. 

Dr. Eldon Morey, appellant's court-appointed expert and clinical psychologist, noted that during the approximately six weeks that appellant had spent at BRHSC, she had markedly improved without the use of neuroleptic medications by discontinuing her abuse of doctor-prescribed medications.  Furthermore, he found no evidence of psychosis or delusion.  Dr. Morey stated that a person must be able to think in an organized fashion in order to complete the MMPI and he had never met a psychotic person who had been able to complete the test.  Dr. Morey opined that two nearly identical MMPI test scores were strong evidence of a rational thinking person.  He found that, although appellant spoke in great detail, at times more than necessary, this was not evidence of rambling-thought disorder.  Dr. Morey opined that, contrary to Dr. Diessner's opinion, rambling-thought disorder could be detected by the MMPI because a psychotic person does not think in an orderly fashion.

Appellant testified that, as a registered nurse, she is competent to make rational decisions about her treatment and that she is willing to take medication if appropriate.  Further, appellant admitted she is chemically dependent.

Finally, Dr. Helleloid testified.  The court asked him whether he had an opinion as to the need for neuroleptic medications, and whether appellant is chemically dependent and/or a mentally-ill person in need of treatment.  Dr. Helleloid acknowledged that both Drs. Diessner and Morey were knowledgeable practitioners with differing opinions as to appellant's functioning.  Ultimately, Dr. Helleloid supported Dr. Diessner's opinion, primarily due to Dr. Diessner's role as appellant's treating psychiatrist and his resulting opportunity to observe appellant over a significant period of time.

The district court adopted the reasoning of Drs. Diessner and Helleloid and denied appellant's petition for release from continued commitment as to both the mentally ill and chemically dependent commitments, and authorized the use of neuroleptic medications.  This appeal follows.

DECISION

            This court reviews civil commitments as "special proceedings" within the meaning of Minn. R. Civ. App. P. 103.03(g).  In re Rodriguez, 506 N.W.2d 660, 662 (Minn. App. 1993), review denied (Minn. Nov. 30, 1993).  The scope of review is limited to whether the district court complied with the commitment-act requirements.  In re Schaefer, 498 N.W.2d 298, 300 (Minn. App. 1993).  Under the commitment act, the district court, not the expert, must determine whether an individual is mentally ill.  In re Richmond, 433 N.W.2d 429, 432 (Minn. App. 1988).  That determination is a "mixed question of legal and medical judgment."  In re Moll, 347 N.W.2d 67, 70 (Minn. App. 1984).  The district court's findings are reviewed under a clearly erroneous standard, that is, the evidence must reasonably support the findings.  Minn. R. Civ. P. 52.01; Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999); In re Duvick, 497 N.W.2d 311, 313 (Minn. App. 1993).  Under this standard, the district court's decision is reversed only if, after reviewing the entire record, this court is "left with the definite and firm conviction that a mistake has been made."  Fletcher,589 N.W.2d at 101 (quotation omitted).

I

            Appellant petitioned for discharge pursuant to Minn. Stat. § 253B.17, subd. 1 (2002).[2]  The state bears the burden of demonstrating the need for continued commitment in discharge proceedings.  In re Harhut, 385 N.W.2d 305, 312-13 (Minn. 1986).  We first note that appellant appears to apply the standard of review applicable to a review of an initial commitment.  See Minn. Stat. § 253B.09, subd. 1 (2002).  But this is a review of a decision on a subdivision 17 petition for discharge, not of an initial commitment.  Minn. Stat. § 253B.17, subd. 1 (2002), does not specify the standard of review for this court to apply in such hearings.  However, Minn. Stat. § 253B.12, subd. 4 (2002), addressing continued commitment, does provide a standard:

The committing court shall not make a final determination of the need to continue commitment unless the court finds by clear and convincing evidence that (1) the person continues to be mentally ill, mentally retarded, or chemically dependent; (2) involuntary commitment is necessary for the protection of the patient or others; and (3) there is no alternative to involuntary commitment.

            In determining whether a person continues to be mentally ill, chemically dependent, or mentally retarded, the court need not find that there has been a recent attempt or threat to physically harm self or others, or a recent failure to provide necessary personal food, clothing, shelter, or medical care.  Instead, the court must find that the patient is likely to attempt to physically harm self or others, or to fail to provide necessary personal food, clothing, shelter, or medical care unless involuntary commitment is continued.

 

            Appellant argues that the district court erred by not granting her petition for release from commitment as a mentally ill person because, appellant claims, she is not mentally ill.  Appellant concedes that she is chemically dependent, but notes that the commitment statuteMinn. Stat. § 253B.02, subd. 13(b) (2002)expressly excludes chemical dependency from the definition of mental illness. 

            In order to continue the commitment, the court must find that the patient remains chemically dependent and mentally ill.  It "need not find that there has been a recent attempt or threat to physically harm self or others, or a recent failure to provide necessary personal food, clothing, shelter, or medical care."  Minn. Stat. § 253B.12, subd. 4 (2002).  Rather, the court must conclude that the person is likely to physically harm self or others or fail to provide necessities unless the court continues the involuntary commitment.  Id.

            Here, the trial court had sufficient evidence to conclude that appellant is mentally ill and chemically dependent, and remains a danger to herself unless her commitment is continued.  Dr. Diessner testified that appellant suffers from psychosis NOS, which consists of rambling-thought disorder and delusional-somatization disorder.  While she had adjusted socially since her admission, Diessner believed that appellant had not experienced any underlying cognitive changes.  Diessner also testified that appellant has virtually no insight into her condition and totally denied her mental illness.  Although Dr. Morey concluded appellant was not mentally ill, he admitted that she needed inpatient treatment and supervision in a secure unit for her chemical dependency. Moreover, all experts who testified at the January 28, 2003, hearing agreed that inpatient treatment for her chemical dependency was in appellant's best interest. 

Although Dr. Diessner and Dr. Morey disagreed on whether appellant suffers from psychosis, the trial court specifically found Diessner's testimony more credible, primarily because Diessner was appellant's treating psychiatrist.  The trial court's finding is reasonably supported by the record.  The fact that appellant is also chemically dependent does not preclude her commitment as mentally ill when the record shows her mental illness is continuing.  Moreover, the trial court was in the best position to resolve the conflicting testimony.  Thus, on this record, we find sufficient evidence to affirm the district court's denial of appellant's petition for discharge from her mental-illness/chemical-dependency commitment.

            Appellant further argues that the trial court erred by failing to consider a less-restrictive alternative, especially since she had shown marked improvement since her initial commitment hearing on December 3, 2002, simply by discontinuing her abuse of narcotics.  She argues that the district court should have considered each less-restrictive alternative, and that the fact it did so at her initial commitment hearing in December 2002 is irrelevant for purposes of determining whether continued commitment was necessary when she filed her petition for release in January 2003.  The state counters that the district court had thoroughly considered appellant's treatment options only a month earlier when she was initially committed, and therefore the court did not need to revisit these options at the January 2003 continued commitment hearing.  We find the state's argument persuasive.

            Appellant cites Minn. Stat. § 253B.09, subd. 1 (2002), in support of her argument that in a subdivision 17 proceeding, the court must consider whether she was committed to the least restrictive alternative:

            (b)       In deciding on the least restrictive program, the court shall consider a range of treatment alternatives including, but not limited to, community-based nonresidential treatment, community residential treatment, partial hospitalization, acute care hospital, and regional treatment center services.  The court shall also consider the proposed patient's treatment preferences and willingness to participate voluntarily in the treatment ordered.  The court may not commit a patient to a facility or program that is not capable of meeting the patient's needs.

 

But, again, contrary to appellant's contention, the court need not review the record as though reviewing an initial commitment.  Minn. Stat. § 253B.12, subd. 4 (2002); In re Melcher, 404 N.W.2d 309, 311 (Minn. App. 1987).  Nevertheless, Minn. Stat. § 253B.12, subd. 7 (2002), relating to continued commitments, requires that the findings of fact and conclusions of law state that "less restrictive alternatives have been considered and rejected by the court" and that "[r]easons for rejecting each alternative shall be stated."  "In reviewing whether the least restrictive treatment program that can meet the patient's needs has been chosen, an appellate court will not reverse a district court's finding unless clearly erroneous."  In re Thulin, 660 N.W.2d 140, 144 (Minn. App. 2003).  Here, the trial court's order from the initial commitment reflects that it considered and rejected less-restrictive alternatives, noting that appellant had "rejected outpatient treatment, and all local case management services have been totally unsuccessful."  That commitment hearing occurred on December 3, 2002; a little over a month before the January 28, 2003, hearing on appellant's petition for release from commitment.  Given this short interval, and because the district court clearly considered less-restrictive alternatives at the initial commitment hearing, we cannot say the district court's finding that continued commitment was necessary is clearly erroneous.

            Appellant also argues that her commitment should be reversed because of the "collateral consequences" of her commitmentthat is, the probable loss of her registered-nursing license.  But other than her claim here on appeal predicting the loss of her license, appellant has failed to produce any evidence that such collateral consequences will result from her commitment.  See, e.g., In re McCaskill, 603 N.W.2d 326, 329 (Minn. 1999) (stating a presumption of collateral consequences arises where "‘real and substantial' disabilities attach" to a judgment precluding a determination of mootness).  Accordingly, we reject this argument and affirm her continued commitment.  Further, in reviewing the merits of appellant's challenge to the denial of her petition, we must address whether the statutory standards are met, not the collateral consequences of the commitment.

II

            Appellant next argues that the district court erred by authorizing neuroleptic medications because, appellant claims, she is not mentally ill and had demonstrated significant improvementwithout the use of neuroleptic medicationssince her initial admittance at BRHSC.  Again, appellant concedes that she is chemically dependent, but notes that the commitment statute expressly excludes chemical dependency from the definition of mental illness. 

            Based on the representations of both counsel at oral argument, appellant was provisionally discharged from BRHSC in June 2003 and is no longer receiving neuroleptic medications.[3]  Further, when asked by the court at oral argument if appellant is no longer required to take the neuroleptic medication unless she consents, appellant's counsel agreed and said the court was correct.  An appellate court "will decide only actual controversies" and will "not issue advisory opinions" or "decide cases merely to establish precedent."  In re Schmidt, 443 N.W.2d 824, 826 (Minn. 1989).  "An appeal is not moot, however, where the issue raised is capable of repetition yet evades review or where collateral consequences attach to the judgment."  McCaskill, 603 N.W.2d at 327.  The appellate court must consider whether an appeal is moot even if not raised by the parties.  Schmidt, 443 N.W.2d at 826. 

First, appellant's challenge to the neuroleptics order is not capable of repetition yet evading review because, according to counsel, she will not be given neuroleptics unless she consents.  Cf. In re Blilie, 494 N.W.2d 877, 880-81 (Minn. 1993) (holding that when a person is still subject to an order authorizing neuroleptics, the issue is capable of repetition yet evading review).  Second, appellant's claim that the neuroleptics order may have possible collateral consequences on her nursing license is unsubstantiated and is therefore insufficient to avoid a mootness determination.  See State ex rel. Doe v. Madonna, 295 N.W.2d 356, 360 (Minn. 1980) (requiring actual evidence of collateral consequences to show issues as to prehearing confinement are not moot).  Cf. McCaskill, 603 N.W.2d at 329 (holding that where, under statutory scheme, commitment may be considered in assessing whether later "early intervention" is warranted, commitment may have collateral consequences precluding determination of mootness).  Accordingly, because the issue is moot, we need not decide it on the merits.

Finally, the state has filed a motion to strike portions of appellant's appendix as outside the record on appeal.[4]  Appellant filed an affidavit objecting to this motion.  At oral argument, appellant's attorney stated that she did not file the documents in her appendix with the district court because she was unable to obtain them prior to filing this appeal.  Appellant's counsel claims she ordered her medical records at the start of trial, but was unable to obtain copies in a timely manner to submit them to the district court.  Appellant's counsel also indicated it was too cost-prohibitive.  Admittedly, appellant was committed and indigent at the time; and we recognize the hardships appellant faced in obtaining the documents.  But the fact remains that the district court did not have the benefit of the records included in the appendix when reaching its decision.  Accordingly, the documents are not properly part of the record on appeal.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).

            Affirmed; motion granted.

 

[1] Generally, an opioid contract provides that the pain clinic will provide the patient with sufficient narcotics to treat the patient's pain, but the patient must agree to specific terms, such as providing urine samples, following doctor's treatment recommendations, receiving narcotic prescriptions from a single sourcethe pain clinicand filling prescriptions at a single pharmacy, usually of the patient's choice.

[2] Because in subdivision 17, the court is also addressing whether to continue the patient's commitment, we apply the standard set out in Minn. Stat. § 253B.12, subd. 4 (2002).

[3] Minn. Stat. § 253B.15, subd. 1 (2002), provides that:  "The head of the treatment facility may provisionally discharge any patient without discharging the commitment, unless the patient was found by the committing court to be a person who is mentally ill and dangerous to the public."  Thus, although appellant is still under a commitment and subject to various conditions, according to her attorney at oral argument, she is currently living at home. 

[4] Minn. R. Civ. App. P. 110.01 (defining record on appeal) provides:  "The papers filed in the trial court, the exhibits, and the transcript of the proceedings, if any, shall constitute the record on appeal in all cases."