In re Necessity for 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 ...