In re Necessity for Hospitalization of Jacob S.

         Appeal from the Superior Court No. 3AN-14-03156 PR of the State of Alaska, Third Judicial District, Anchorage, Patrick J. McKay, Judge.

          Appearances: Meg Allison Zaletel, Zaletel Law, Anchorage, for Appellant.

          Dario Borghesan, Assistant Attorney General, Anchorage, and Craig W. Richards, Attorney General, Juneau, for Appellee.

          Before: Stowers, Chief Justice, Winfree, Maassen, and Bolger, Justices.

          OPINION

          WINFREE, JUSTICE.

         I. INTRODUCTION

         The respondent in involuntary commitment and medication proceedings appeals a number of issues related to findings that he was mentally ill and posed a risk of harm to others. The superior court ordered both 30- and 90-day commitments - the latter following a jury trial. The court also entered medication orders after finding the respondent unable to make mental health treatment decisions.

         Primary among the issues the respondent raises are two legal questions. First, when a respondent requests a jury trial on a 90-day commitment petition, who - between the jury and the court - decides the factual underpinning for and the ultimate question of least restrictive alternative to commitment? We conclude that this decision making is for the court. Second, AS 47.30.837(d)(1) sets out a four-part test -joined by the conjunctive "and" - for determining whether a respondent is competent to make mental health treatment decisions; can a respondent be found incompetent if one part is not met? We conclude that the answer is "yes."

         With these conclusions in mind, we resolve the issues raised by the respondent in the State's favor. We therefore affirm the superior court's commitment and medication orders.

         II. FACTS AND PROCEEDINGS

         Jacob S.^[1] was hospitalized for a mental health evaluation in January 2015, after his domestic partner filed an involuntary commitment petition because Jacob stopped taking his medication, she observed him experiencing paranoid delusions about their neighbor, and she thought his delusions had caused him to act violently toward their neighbor. After an evaluation Dr. David Mack at Alaska Psychiatric Institute (API) filed a 30-day commitment petition asserting that Jacob had a mental illness and was likely to cause harm to himself or others. Dr. Mack also petitioned for court approval to administer psychotropic medication because Jacob lacked capacity to give informed consent.

         A magistrate judge held a hearing on the petitions. Both Jacob's neighbor and Jacob's partner testified telephonically. Jacob's neighbor testified that Jacob had filed a restraining order against her in November 2014 alleging that she was stalking him, had broken into his house, and had been tasing him with a "stop gun." The neighbor also testified to her suspicion that Jacob had thrown a rock through her window and attempted to set fire to her house with a "Molotov cocktail" on two separate occasions the previous month.

         Jacob's partner testified that she recognized several bottles from the "Molotov cocktail" incident as having come from their house. She also testified that Jacob had been doing "strange things" and then did not remember what he had done, for example connecting an electric welder to their house's back door. He had unplugged the telephone then denied doing so. He layered towels, cardboard, newspaper, and pillows over the house's windows and couch to protect himself from the neighbor's "tasing."

         Dr. Mack testified about Jacob's delusional disorder diagnosis. Dr. Mack was concerned that Jacob's strange behavior concerning his neighbor was connected to his fixed delusions, but Dr. Mack thought psychotropic medication might soften those delusions. Jacob refused to acknowledge he was suffering from delusional disorder, and he had not yet received medication.

         Finding that Jacob suffered from a mental illness and posed a risk of danger to others, the magistrate judge recommended the 30-day commitment. The magistrate judge then addressed the medication petition. The court-appointed visitor testified that although Jacob "demonstrate[d] rational thought process in regards to medications, " his inability to recognize his mental illness meant "he would not have the capacity based on that particular reason alone." Dr. Mack stated that treatment methods other than psychotropic medication would not be successful and that Jacob could meaningfully participate in treatment decisions only if he recognized his disorder. The magistrate judge found that Jacob lacked capacity to give informed consent, that medication was in Jacob's best interests, and that no less restrictive alternative was available. The superior court approved and adopted these findings and issued the orders.

         Dr. Mack filed another petition in February for a 90-day commitment order and an accompanying petition to continue administration of psychotropic medication. Jacob requested a jury trial.^[2] Much of the trial testimony concerned Jacob's mental health and actions prior to his original commitment and was repetitious of that given at the 30-day commitment hearing. Jacob's brother testified that he was willing to provide housing if Jacob were released from API. Because Jacob's brother's residence is only two blocks away from Jacob's, the State questioned whether that placement would protect Jacob's neighbor. Jacob's brother responded that he would monitor Jacob and prevent him from returning there. Timothy Mannen, a board-certified psychiatric nurse practitioner at API, testified that someone with Jacob's delusions would not simply get better over time and that merely moving Jacob to a new residence would not alleviate the delusions. Mannen stressed that although treatments other than commitment and medication, like therapy, are available, it is difficult to convince a person suffering from delusional disorder to "restructure or realize that what... they are thinking that is fixed and false and disordered is not true."

         The jury found that Jacob was mentally ill; that as a result he was likely to cause harm to others; and that he was advised of, but did not accept, voluntary treatment. The superior court then held a further evidentiary hearing to decide whether a less restrictive alternative to commitment existed and whether involuntary medication was in Jacob's best interests. Jacob testified, expressing a willingness to take medication and participate in therapy if he were released to a family member's home. Mannen testified that placement with a family member was not appropriate because Jacob's response to the medication was not yet "robust" enough. The court visitor who had interviewed Jacob a week earlier testified that he did not have the capacity to participate in his treatment planning. The court determined that until Jacob's delusions softened, releasing him to a family member would not adequately protect the public. The court also expressed doubt that Jacob would take his medication if released from API. The court determined that no less restrictive alternative to commitment at API existed at that time, and that medication was in Jacob's best interests.

         Jacob appeals, arguing that allowing telephonic testimony at the 30-day hearing violated his due process rights and was an abuse of discretion and that the 30-and 90-day commitment orders and the medication orders were erroneously issued. The State contends that the superior court's rulings were correct and that Jacob's challenges to the medication orders are moot.

         III. STANDARDS OF REVIEW

         We review a trial court's decision to allow telephonic testimony for abuse of discretion.^[3] "We will find an abuse of discretion when the decision on review is manifestly unreasonable."^[4] "Factual findings in involuntary commitment or medication proceedings are reviewed for clear error, " and we reverse those findings only if we have a "definite and firm conviction that a mistake has been made."^[5] Whether those findings meet the involuntary commitment and medication statutory requirements is a question of law we review de novo.^[6] "We apply our independent judgment to the interpretation of both the Alaska Constitution and statutes, adopting 'the rule of law that is most persuasive in light of precedent, reason, and policy.' "^[7] We use our independent judgment to determine if a pending controversy is moot.^[8]

         IV. DISCUSSION

         A. The 30-Day Commitment Order

         1. It was not error to allow telephonic testimony at the hearing.

         Jacob asserts that it was a violation of his due process rights to allow his partner and his neighbor to testify telephonically at the 30-day hearing because their credibility was a central issue. "A civil litigant's right to confront witnesses is . . . founded upon notions of procedural due process, " and the question we must decide is "whether due process, in this case, necessitates that" Jacob "be afforded the right to [confront]" the witnesses in person rather than telephonically.^[9] Alaska uses the Mathews v. Eldridge three-part balancing test "for determining the necessary extent of due process" in the commitment context.^[10] We consider:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.^[11]

         Involuntary commitment imposes a serious limitation on an individual's liberty interest, ^[12] and Jacob's insistence that witnesses testify in person thus implicates a private interest of significant weight.

         We have previously examined the risk of erroneous deprivation of a right and stated that "[a]lthough the due process analysis is a flexible and contextual one focusing on the interest and not the outcome, there must be some actual prejudice under the second prong and not merely the 'theoretical possibility of prejudice.' "^[13] This means Jacob must show that he "was likely to have achieved a more favorable outcome" had the witnesses testified in person.^[14] Jacob's attorney cross-examined the witnesses, but chose not to attack their credibility during the cross-examination. When Jacob's attorney objected to the telephonic testimony, the magistrate judge responded that he would "be careful" about credibility issues. Because Jacob's right to cross-examine the witnesses was protected and he made no express attempt to bring their credibility into question, we cannot easily conclude that a different result would have been reached had the witnesses testified in person.

         The State's asserted interest is in providing evidence quickly so that "potentially dangerous people will [not] be released from the hospital without treatment that protects them and the community." Involuntary commitment hearings must occur within 72 hours of the respondent's initial detention, ^[15] requiring flexibility in gathering evidence to meet the deadline. We recognize the significant weight of the State's interest in protecting respondents and the community by providing evidence within that short time period.

         Because the low erroneous deprivation risk and the State's great health and public safety interest tip the scale in the State's favor - even balanced against Jacob's significant liberty interest - we conclude that telephonic testimony at the 30-day hearing did not deprive Jacob of his due process rights.

         In addition to his due process argument, Jacob contends that the magistrate judge abused his discretion because no good cause existed for the witnesses to appear telephonically. Courts have discretion to allow a witness to appear telephonically at a hearing "for good cause and in the absence of substantial prejudice to opposing parties."^[16] The State expressed doubt that the witnesses could arrive at the hearing in a timely manner, in part because one witness is wheelchair bound; both witnesses also had protective orders in place against Jacob. The record supports that there was good cause for allowing telephonic testimony and Jacob has failed to establish any resulting prejudice. We therefore conclude that the magistrate judge did not abuse his discretion in allowing the telephonic testimony.

         2. The 30-day order was not erroneously issued.

         At the conclusion of a 30-day commitment hearing a court "may commit the respondent to a treatment facility ... if it finds, by clear and convincing evidence, that the respondent is mentally ill and as a result is likely to cause harm to the respondent or others."^[17] The respondent is "likely to cause serious harm" if the respondent "poses a substantial risk of harm to others as manifested by recent behavior causing, attempting, or threatening harm, and is likely in the near future to cause physical injury, physical abuse, or substantial property damage to another person."^[18]

         The superior court found that Jacob was mentally ill and was likely to cause harm to others as a result of his mental illness because of: (1) Jacob's partner's "serious concerns" about Jacob "doing things . . . that he was disavowing any knowledge of, " including connecting an electric welder to their home's metal door; (2) his partner's recognition of "the bottles used to make the so-called Molotov cocktails . . . from her own house"; (3) his partner's testimony that there were "a couple incidents" involving "dangerous things occurring"; and (4) Dr. Mack's statements about whether Jacob's "delusions . . . [and] fixed false beliefs, [were] resulting in behavior that poses a substantial risk to others."

         Jacob does not challenge the finding that he was mentally ill. But Jacob urges us to review de novo the superior court's decision regarding harm to others because Jacob "was committed based on speculation and not on facts sufficient to meet a clear and convincing standard of proof." We decline to do so because Jacob's argument, though couched as a legal question, simply asks us to reweigh the evidence presented at the 30-day hearing and choose between conflicting interpretations. We will not overturn a fact finding unless left "with a definite and firm conviction that a mistake has been made."^[19] Conflicting evidence is generally insufficient to overturn a fact finding, and we will not reweigh evidence if the record supports the court's finding.^[20]

         Jacob's partner testified that she was concerned for her safety because of his actions. She stated that she recognized the bottles used to set fire to their neighbor's house as coming from her house. The neighbor's testimony also supports the court's inference that Jacob had been involved with both the rock and "Molotov cocktail" incidents. Dr. Mack described the danger of Jacob's delusional disorder as his false beliefs about his neighbor manifesting in actions like "setting dangerous booby traps, taking preemptive activities, or going to extreme measures to ensure security." Because evidence in the record supports the court's finding, we cannot say it is clearly erroneous. Accordingly, the 30-day order was not erroneously issued.

         B. The 90-Day Commitment Order

         1. The 30-day order did not taint the 90-day order.

         Alaska Statute 47.30.740(c) allows "findings of fact relating to the respondent's behavior made at a 30-day commitment hearing under AS 47.30.735" to be admitted as evidence, and those findings "may not be rebutted except that newly discovered evidence may be used for the purpose of rebutting the findings."^[21] Jacob asserts that this statute allowed the State to present much of the same evidence at the 90-day hearing as was provided at the 30-day hearing, prejudicing him because he could not raise issues concerning his partner's and neighbor's credibility or challenge the allegedly erroneous findings from the 30-day hearing without newly discovered evidence.

         Jacob's first contention, that he was not able to raise issues concerning his partner's or neighbor's credibility, is without merit. Jacob could have raised issues about those witnesses' credibility at the 90-day hearing regardless of any finding made at the 3 0-day hearing.^[22] But when Jacob cross-examined both witnesses at the 90-day hearing, he made no attempt to suggest they were not credible.

         Jacob's second contention is also without merit. Jacob argues that because he could not refute findings from the 30-day hearing without new evidence, legal and factual errors occurring in that proceeding tainted any findings from the 90-day hearing. But, as explained above, the 30-day order was not erroneously issued, and we find no error in accepting the facts established at the 30-day hearing.

         2. The jury instructions were correct.

         Jury Instruction No. 17 reads:

On January 12, 2015, the court issued findings of fact following hearings related to a petition for hospitalization. These facts cannot be rebutted during this hearing, unless [Jacob] brings forth new evidence. This means you must accept those facts as true. The facts ...