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In re Stephen O.

Supreme Court of Alaska

December 17, 2013

In the Matter of the Necessity for the Hospitalization of STEPHEN O.

Page 1186

Michael Schwaiger, Assistant Public Defender, and Quinlan G. Steiner, Public Defender, Anchorage, for Appellant.

John W. Erickson, Jr. and Laura Fox, Assistant Attorneys General, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for Appellee.

Before: CARPENETI, Chief Justice, FABE, WINFREE, STOWERS, and MAASSEN, Justices.


STOWERS, Justice.


Parents of a man who were concerned that he had suffered a possible psychotic break reported his behavior to a mental health clinician in Haines. The clinician obtained an ex parte order to take the man into custody and transport him to the hospital in Juneau for examination and treatment. Haines police took him into custody, but due to bad weather he remained in the Haines jail for six days before he was transported to Juneau for evaluation. After a contested hearing, the superior court found by clear and convincing evidence that the man was gravely disabled under AS 47.30.915(7)(B) and issued an order for a 30-day involuntary commitment. The man appeals the order for involuntary commitment. Because the superior court's conclusion that the man was gravely

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disabled was not supported by clear and convincing evidence, we reverse and vacate the superior court's 30-day involuntary commitment order.


A. Facts

Shortly after Christmas 2009 Stephen O.[1] experienced what he believed to be a religious conversion and, as he described it, " got [his] relationship back" with Jesus. In the weeks leading up to the holiday that year, Stephen had been " a little nervous" because his children were about to depart for a visit to their mother in Seattle for their Christmas vacation, the first Christmas he had spent without the children in a decade. Stephen and his wife of eleven years had separated in May 2009, when she left their home in Haines to live with her mother. Following the separation, Stephen had been attempting to " rebuild[ ] the trust" in their relationship for the benefit of their two children, who had been living with Stephen in Haines since August 2009.

Stephen testified that when the children returned from their visit shortly after Christmas, he began to hear the voice of Jesus speaking to him, telling Stephen that his sins were forgiven and he should " get on a path of repentance." According to Stephen, Jesus told him to go to church and, in particular, to talk to a neighbor across the street who attended a Pentecostal church. Stephen visited and prayed with the neighbor, who put Stephen in touch with his pastor. The pastor invited Stephen to attend his church.

Around this same time, Stephen's father became concerned about him after Stephen's 12-year-old daughter reported that Stephen's behavior was " creeping her out." [2] Stephen had awakened his daughter at night and talked to her about Jesus, going to church, and following " a path of repentance." Stephen's father and daughter were alarmed because they believed Stephen's behavior was similar to behavior he had exhibited about six years earlier, in 2004, when he heard voices that led him to jump off a ledge approximately 16 to 18 feet high. He broke his ankle, gashed his head, sustained a concussion, and was temporarily wheelchair-bound as a result. This incident occurred at a hospital in Olympia, Washington; Stephen had been taken to the hospital by members of a church after he asked them to take him to a doctor because he was experiencing " total fear" as a result of hearing voices. Following this incident, Stephen was prescribed Risperdal, an antipsychotic medication, which he took for approximately one to two years. Stephen also began receiving Social Security disability benefits for psychiatric illness.

On January 8, 2010, a petition for initiation of involuntary commitment was filed at the prompting of Stephen's family members. The petition for commitment alleged that Stephen had been " presenting with psychotic features" and exhibiting behaviors " similar to those he has exhibited in the past, prior to a suicide attempt." Specifically, the petition alleged that Stephen had been " hearing the voice of Jesus." On the basis of this allegation, the Haines Police Department took Stephen into emergency custody under AS 47.30.705(a). [3] The following day, Master

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Bruce Horton of the Sitka Superior Court issued an ex parte order to have him taken into custody and transported to Bartlett Regional Hospital in Juneau, " the nearest appropriate evaluation facility," for an evaluation as provided for in AS 47.30.710(a). [4] Stephen was taken to the Haines jail. He remained there from January 8 to January 14 because bad weather prevented his transportation to Juneau for evaluation. He arrived at Bartlett Regional Hospital on January 14, 2010, and was evaluated the next day by Dr. John Pappenheim, the medical director for psychiatric services. On January 20 Elizabeth Ziegler, a court-appointed visitor, met with Stephen and issued a two-page report concerning his condition. The report stated that Stephen " was friendly and presented well." The report also described Stephen's concerns about taking psychotropic medication; according to the report, Stephen stated he did not need medication because he believed he was healthy, but that " if the court ordered him to take medication he would not harm people and would take an injection." The report also summarized a conversation Ziegler had with Stephen's mother concerning his mental health history and current condition.

B. Proceedings

On January 20, 2010, Superior Court Judge Patricia A. Collins conducted a 30-day commitment hearing. At the outset, the court explained that it had not been able to read the entirety of Ziegler's report before the hearing. Further, the court noted that Stephen's attorney had been appointed only one day before the hearing, which the court acknowledged did not give him " a lot of opportunity to follow up with the information that ha[d] been presented."

The court heard testimony from both Dr. Pappenheim and Stephen. Much of the testimony focused on Stephen's 2004 episode; as Dr. Pappenheim explained, " in substantial part, my diagnosis and my concern in this case are derived from the history that I have obtained from [Stephen's] father," who stated that during the 2004 episode Stephen had " behaved in precisely the same fashion that he's behaving now," namely that he had been " hearing the voice of Jesus telling him that he was heading down a path of repentance." Dr. Pappenheim also testified that he spoke with Stephen about the 2004 episode and that Stephen told him he had felt " extremely fearful" during that episode and heard the voice of Lucifer, who he believed was threatening him. Dr. Pappenheim acknowledged that in the present instance there was nothing to suggest that Stephen was feeling fearful, depressed, or suicidal. Dr. Pappenheim also acknowledged that he had not been able to compare the information gleaned from his interviews with Stephen and his father with Stephen's medical records from the 2004 episode, explaining that he had not " had a chance" to obtain the medical records from the Olympia, Washington hospital where Stephen had been treated.

Stephen testified that during the 2004 episode he felt " total fear" and " knew something was not right." He explained that this fear motivated him to ask to be taken to the hospital to seek treatment. By contrast, in discussing his current condition, Stephen testified that he did not feel any fear or distress. Rather, he stated that he felt optimistic about the future and happy that Jesus had forgiven his sins. In response to a question concerning Dr. Pappenheim's testimony that Stephen had an irrationally positive view of his circumstances, Stephen responded, " If he's thinking that I don't know the situation, that I'm happy about the things that are going on, well, no, I'm not happy about certain things.... I couldn't even talk to my kids for the first week [in custody], you know? I miss them. I love them."

Stephen also testified concerning his religious background. He testified that he had previously attended and been baptized at a Pentecostal church in Cordova, though he had not attended church since moving to Haines. He stated that his parents did not

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raise him to be religious, but that he had believed " in [the] Lord Jesus Christ with all [his] heart" since he was ten years old. Stephen explained that his father had never been " real religious" and that in the past they had disagreed over religion, but he also stated that he " love[d]" his father, and that he understood his father was " concerned" about him. Stephen also described an altercation he had with his brother shortly before he was taken into custody in January 2010. Stephen testified that he was at home praying when his brother " just barged in and said [some] awful things," including that Stephen was " bad for loving Jesus" and that Stephen was going to go " back to the hospital" and they would " never let [him] out." Stephen tried to avoid a confrontation with his brother and went outside, where his brother followed him and threw him to the ground. Stephen then went back into his home, where he picked up his Bible. His brother " said something bad about Jesus" and then tried to take the Bible from Stephen. After a struggle, his brother again knocked Stephen to the ground.

With respect to Stephen's religious background, Dr. Pappenheim testified that Stephen's father had " mentioned very briefly in passing that he wasn't particularly religious," but the doctor did not know how Stephen's father felt in general about people who are religious, nor did he know if the father had any bias or prejudice against religious practice or belief. Dr. Pappenheim acknowledged that he never " specifically asked" Stephen whether Stephen identified with any particular religious group. The doctor also acknowledged that his familiarity with the Pentecostal religion with which Stephen had been associated was " [v]ery superficial" and, when asked if Pentecostalism has any " born-again characteristics," Dr. Pappenheim replied " I couldn't tell you." With respect to Stephen's belief that Jesus was speaking to him, Dr. Pappenheim testified that he believed Stephen's belief was not genuine but instead was " delusional." Dr. Pappenheim explained:

A delusion is a belief that is arrived at by other than rational means which is not subject to change by the normal means of logic and persuasion. Now, if somebody had a religious belief that they grew up with that was part of their culture, that is considered a rational means for that belief. However, in [Stephen's] case, the religiosity that he manifested started five years ago and led him to behave in a way that was substantially dangerous to himself, and could have killed him. And it doesn't come from a cultural, historical context. It comes out of the blue. It's not there on a persistent basis. It disappeared for a number of years. And now it has returned again. All of that is consistent with something outside of religiosity and that falls into the category of delusions.

Dr. Pappenheim also testified concerning his observations of Stephen's current psychiatric condition, stating that " [Stephen] has a distinctively and abnormally persistent elevation, or expansiveness[,] of mood that's the singular feature of bipolar disorder." Dr. Pappenheim explained that Stephen's " very elevated ... if not modestly euphoric mood" was indicative of a problem because it was not congruent with the circumstances of Stephen's unfortunate situation:

[I]t's this ... completely illogical, irrational response of everything's great [despite the fact that he's being held against his will, that] his children are no longer with him, and that his father thinks that he has a mental illness that needs to be treated, and that the psychiatrist that's been appointed to work with him thinks that he has a mental illness that needs to be treated, and that [the psychiatrist] thinks he should take medication and [Stephen] doesn't want to take medication.

Dr. Pappenheim explained further that Stephen was incapable of making a decision about voluntary treatment because he was operating under the belief that he does not have a mental illness.

According to Dr. Pappenheim, Stephen's inability to understand his situation and refusal to accept treatment for it constituted grave disability. The doctor testified that Stephen refused to take a mood stabilizer

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and an antipsychotic,[5] which Dr. Pappenheim believed were " requisite treatment [s]" for someone with manic psychosis. According to Dr. Pappenheim, Stephen objected to taking psychotropic medicine primarily because it made him feel " somehow not like himself, not in touch with [his] feelings" and because he believed such medication would interfere with his ability to hear Jesus' voice. Dr. Pappenheim testified that without treatment, Stephen was at risk of hurting himself as he had during the 2004 episode, because " [p]ast patterns of behavior are really the only good predictors of future behavior." Dr. Pappenheim acknowledged that there were no current allegations that Stephen had failed to care for his children. But Dr. Pappenheim explained that Stephen's refusal to accept treatment " places him in substantial danger of deteriorating condition, the development of a chronic psychotic process, [and] the risk of ... harming himself."

Dr. Pappenheim's main concern was that, if Stephen were allowed to leave the hospital, Stephen's condition would " persist and worsen, [and] that he would at one point listen to a voice that would tell him to do something ... very dangerous and self harmful." Dr. Pappenheim explained that without treatment Stephen's condition was " not going to abate" and " there [would] be a chronic worsening" that may develop into " a chronic psychotic process." Ultimately, Dr. Pappenheim concluded that there was no less restrictive alternative to a 30-day commitment to ensure Stephen's safety and provide him with requisite care.

Following this testimony the superior court prefaced its findings by observing that this was " an extremely difficult case" and by acknowledging the " very high burden of proof that applies in this case[,] ... clear and convincing evidence." The court then summarized its observations of Stephen's current condition. The court observed that Stephen was appropriately dressed and groomed, looked as though he was eating well, and overall appeared to be in better condition than the typical respondent in a commitment hearing.[6] The court also observed that it was " commendable" that Stephen had sought psychiatric care during his psychotic episode in 2004 and had " worked with [his] family" to address his mental health difficulties. Finally, the court observed that, prior to his present commitment, Stephen had taken " responsibility for ... the care and feeding of [Stephen's two] children" and had been able to " provide for those needs."

The court then proceeded to summarize the evidence in favor of granting the commitment. First, the court reviewed the circumstances in which Stephen came to be committed, focusing in particular on the comment by Stephen's daughter that Stephen's behavior was " creeping her out." The court seemed to regard this as an important factor, but also suggested that the statement was ambiguous and expressed regret that it had not heard testimony from the daughter herself on this matter: " Maybe that was just an inappropriate comment by a 12-year-old, unrelated to ... appropriate religious beliefs you hold. But I guess I put a lot of emphasis on that. And frankly, wish I could hear more from her about what drove her to that conclusion. But, I mean, I have to look at all the facts."

Second, the court noted:

We've got the prior psychiatric break, a hospitalization, and what appears to have been a suicide attempt, in response to a perceived conversation with— I'm not sure if it was Jesus or Lucifer. Depends on who you talk to, I guess, in terms of who that conversation was with. But that occurred when there was no prior evidence of any particular strong religiosity. Maybe there had been, but I hadn't heard that, other than that you've cared about Christ since you were 10. And— but I also heard you say that, you know, you haven't regularly attended church.

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Third, the court observed that " there's both a prior and current diagnosis of bipolar disorder with psychotic features" and that Stephen had been " found eligible in a stringent test by Social Security disability ...

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