In the Matter of the Necessity for the Hospitalization of CONNOR J.
Appeal
from the Superior Court of the State of Alaska, 3 AN-
17-02075 PR Third Judicial District, Anchorage, Herman G.
Walker, Jr., Judge.
Megan
R. Webb, Assistant Public Defender, and Quinlan Sterner,
Public Defender, Anchorage, for Connor J. Laura Fox,
Assistant Attorney General, Anchorage, and Jahna Lindemuth,
Attorney General, Juneau, for State of Alaska.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
Carney, Justices.
OPINION
MAASSEN, JUSTICE.
I.
INTRODUCTION
The
superior court issued a 30-day involuntary commitment order
after finding that the respondent was gravely disabled and
there were no less restrictive alternatives to
hospitalization. The respondent appeals, arguing that it was
plain error to find he waived his statutory right to be
present at the commitment hearing, that it was clear error to
find there were no less restrictive alternatives, and that
the commitment order should be amended to omit a finding that
he posed a danger to others, a finding the superior court
meant to reject.
We
conclude that it was not plain error to find that the
respondent waived his presence at the hearing. We further
conclude that it was not clear error to find that there were
no less restrictive alternatives to a 30-day hospital
commitment. However, because there is no dispute that the
"danger to others" finding should not be included
in the commitment order, we remand for issuance of a
corrected order.
II.
FACTS AND PROCEEDINGS
A.
Petitions For Evaluation, 30-Day Commitment, And
Medication
Connor
J.[1]
was living at Covenant House, an Anchorage shelter for
homeless youth, when his psychiatric condition allegedly
began to deteriorate. A social worker at Southcentral
Foundation filed a petition in superior court seeking
authority to hospitalize Connor for evaluation. The petition
alleged that Connor was "exhibiting increasing[ly] more
bizarre and disturbing behavior," that he was
"hearing and responding to auditory
hallucinations," and that he was exhibiting
"persecutory delusions." It alleged that Connor
believed he had "planned and carried out the
'9/11' attacks," that the government was
"monitoring him," and that staff were "out to
get him." It noted that Connor had a history of suicidal
thoughts; that he had been diagnosed at various times with
depression, anxiety, post-traumatic stress disorder, and
oppositional defiant disorder; and that he had been treated
for mental illness in the past at a hospital and several
counseling centers.
On the
basis of the petition and supporting medical records, the
superior court ordered that Connor be transported to Alaska
Psychiatric Institute (API) for an evaluation. A few days
later API filed a petition for 30-day commitment and a
petition for approval to administer medication without
Connor's consent. The commitment petition again described
Connor's delusions and paranoia and alleged that he was
gravely disabled as a result of mental illness. The
medication petition alleged that Connor was incapable of
giving or withholding informed consent to the administration
of a necessary psychotropic drug.
B.
Proceedings Before The Master
The
Public Defender Agency was appointed to represent Connor at
the hearing, and his lawyer and the State stipulated to a
one-day continuance to "allow consultation." The
hearing was held on August 10, 2017, before a standing
master. Also present at the start of the hearing were the
State's attorney, Connor's attorney, and the
State's witness, Gerald Martone, a psychiatric nurse
practitioner who treated Connor at API. Connor was not
present, but Martone told the master that he would be coming.
Someone - apparently Connor's attorney-responded,
"Oh, he wants ... he wants to come down? Okay." The
master addressed a few preliminary matters, after which
Martone said, "Can I just call and find out
what..."; and the State's attorney completed the
thought: "what the status is? Sure." When Martone
returned, he reported, "He has declined to . . . ";
and Connor's attorney responded, "All right, that
was my understanding."
The
master then stated, "As I understand it, the patient has
declined to be present at the hearing." Neither party
objected or otherwise challenged this statement, and the
hearing proceeded. It was interrupted partway through when
Connor called the courtroom on the telephone. The master gave
Connor's counsel "a break ... to speak with
him." When the hearing resumed, the only further mention
of Connor's presence or absence was his counsel's
statement near the end of the hearing that "he's not
here in person."
The
State called only Martone to testify in support of the
petition for a 30-day commitment. Martone was qualified as an
expert in the field of psychiatry and testified that he had
the opportunity, as Connor's direct provider, to observe
and evaluate his behavior. Martone testified that he
diagnosed Connor with "unspecified psychosis"
because he had "very paranoid delusions,"
"appear[ed] to be responding to hallucinations,"
was "unable to judge what is real and what is not
real," at times appeared catatonic, and would get very
angry and agitated without warning. He explained that Connor
in the past had "plucked out all his eyebrows and
eyelashes," believed one of his teeth was "a
transmitter to the FBI," and had "been trying to
pull his own tooth out." Martone testified that Connor
remained "very paranoid and delusional," had a
"fixed belief that he was in the back of the plane on
September 11th and [was] culpable in the Trade Center
attacks," often looked away as if reacting to
hallucinations, and said "weird" and
incomprehensible things.
Martone
testified that he did not believe Connor could provide for
himself outside the hospital setting. He testified that
Connor could be treated on an outpatient basis "[i]fhe
took medications" but that Connor had refused to do so.
He testified that he had tried to talk to Connor about
outpatient treatments but had to break off the conversation
and leave the room because of Connor's anger and
hostility.
According
to Martone, Connor would benefit from a continued stay at API
because "[h]is lifetime prognosis would be greatly
improved ifhe's assertively treated" -meaning if he
was administered medication. But he also testified that
Connor would improve from treatment at API even without
medication because "a structured safe setting, no access
to drugs, and a predictable routine would be helpful to
him," clarifying that the setting and routine were
"supportive" while only medication was
"remedial."
The
master made oral findings on the record at the close of the
commitment phase of the hearing. Her first finding was that
"the patient's waived his presence." No one
objected, and the master did not expand on the issue. The
master then found by clear and convincing evidence that
Connor suffered from a mental illness - an "unspecified
psychosis"-that made him gravely disabled, and that his
"severe and abnormal mental disorder . . . [or] distress
... is associated with significant impairment of judgment,
reason, or behavior [which] causes a substantial
deterioration of [his] previous ability to function
independently." The master also found that there was
"not a less restrictive placement at this time."
The
proceeding then turned to the issue of the involuntary
administration of medication; a court visitor and Martone
both testified. The master again placed her decision on the
record, finding insufficient evidence that Connor was
incapable of giving informed consent. She noted, however,
that because "it sounds like there was some difficulty
in communicating with the patient today ...[, ] [she was]
going to deny the petition for medication without
prejudice," and that it might be appropriate for API to
refile the petition "after the patient is really given
all of the necessary information about the risks [and]
benefits of the medication."
C.
Superior Court Orders
The
master issued written proposed orders consistent with her
oral findings, recommending that the superior court grant the
petition for 30-day commitment and deny the medication
petition. The written order also made a finding that
Connor's "assaultive conduct toward Mr.
Martone" made it likely that he would "cause
serious harm to others," and it made that finding one of
the bases for commitment. The superior court signed the
proposed orders without modification. In a subsequent order,
however, "[a]fter reviewing the whole hearing," the
court expanded on its reasoning and specifically addressed
written objections Connor had made to the master's oral
findings on the 30-day commitment. Citing In re
Hospitalization of Stephen O., [2] the court first concluded
that the State had proved by clear and convincing evidence
that Connor was gravely disabled because he "could not
live safely outside of a controlled environment, and had a
condition of mental illness that, if left untreated, would
cause him to suffer significant impairment of judgment,
reason, or behavior." The court noted that the master
was not able to personally observe Connor because he waived
his presence, citing Connor's statutory right to remain
silent under AS 47.30.735(b)(8). The court stated that it
would "not adopt" the finding that Connor was a
danger to himself or others, because the State had not
alleged that as a basis for its petition. Finally, the court
concluded that there were no less restrictive treatment
alternatives to hospitalization, relying on Martone's
testimony that Connor's psychosis would improve even
without medication if he was "provided a structured
setting, no access to drugs[, ] and a routine." The
court found that the Brother Francis Shelter was Connor's
only alternative for shelter because he was barred from
returning to Covenant House and that placement at the Brother
Francis Shelter would "notprovide the structured, drug
[-] free [, ] and routine environment necessary to help
[Connor]."
Connor
appeals. He challenges the finding that he waived his
statutory right to be present at the commitment hearing, the
finding that there was no less restrictive alternative to
hospitalization, and the court's failure to amend the
commitment order to correctly reflect its later rejection of
the "harm to himself or others" finding.
III.
STANDARD OF REVIEW
"
'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.'
"[3] "Whether those findings meet the
involuntary commitment and ...