In re Necessity for the Hospitalization of Luciano G.

          Appeal from the Superior Court of the State of Alaska, No. 3 AN-17-00250 PR Third Judicial District, Anchorage, Erin B. Marston, Judge.

          Megan R. Webb, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for Appellant.

          David T. Jones, Assistant Attorney General, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for Appellee State of Alaska.

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

          OPINION

          CARNEY, JUSTICE.

         I. INTRODUCTION

         A man appeals the court order involuntarily committing him for mental health treatment. He argues that the court erred in making two findings: (1) that as a result of his mental illness he posed a risk of harm to others and (2) that there was no less restrictive alternative to committing him to the Alaska Psychiatric Institute (API). He contends that his conduct did not meet the statutory criteria of "likely to cause serious harm" and that there was insufficient evidence presented that there was no less restrictive alternative for his treatment. Because the superior court's findings were supported by clear and convincing evidence and the superior court properly determined that the man's conduct met the statutory criteria, we affirm the commitment order.

         II. FACTS AND PROCEEDINGS

         Anchorage airport police took Luciano G.^[1] into emergency custody and transported him to the psychiatric emergency department at Providence Alaska Medical Center for emergency detention and evaluation.^[2] Providence filed a petition for evaluation the same day; the petition was granted and Luciano was transported to API for evaluation. A few days later API staff filed a petition to commit him to API for up to 30 days for further treatment.^[3]

         At a hearing to address API's petition, an airport police officer testified that Luciano had come to her attention after an airline employee had called to report a man was acting "irate" at the ticketing counter. She said Luciano had repeatedly refused to state his destination before eventually naming Arizona, had instantly squared up and balled his fists when she contacted him, and had continued to clench his fists and tighten his shoulders even after he had been handcuffed. The officer testified Luciano had both carry-on bags and luggage to be checked located about 500 feet away from where she first made contact with him. She noted that one piece of the luggage was a gun case with no visible lock, which concerned her because "to fly with an airlines [sic] you have to have a locked, secured case for weapons to go underneath the aircraft." Officers took Luciano to their office. They took his luggage, including the case, for safekeeping and performed an inventory search. Inside the case were a rifle, two revolvers, and another handgun. Three of the guns were loaded. The officer testified: "One revolver had six bullets inside and it was aligned with the chamber[, ] [a]nother revolver had five bullets inside," and the third handgun had a fully loaded magazine with a bullet in the chamber. Luciano also had 120 rounds of ammunition and a "load bearing vest"^[4] in his other luggage.

         Dr. Anthony Blanford, a psychiatrist at API, was called as an expert witness; he testified that he had spoken with Luciano four or five times since Luciano's admission to API. He testified that Luciano appeared to suffer from an unspecified psychotic disorder. Dr. Blanford stated that people he had interviewed described Luciano's recent behavior as very odd, especially in the last month, and that Luciano said that he had suffered a head injury as a result of a motor vehicle accident in the last month. Dr. Blanford noted Luciano had recently lost his job at the Veterans Administration (VA).

         Dr. Blanford testified Luciano had been unwilling to talk to him about what happened at the airport other than to minimize the event and state it was just a misunderstanding. Dr. Blanford informed the court he had spoken to a person at the VA who described Luciano as engaging in an intense intimidating stare. Dr. Blanford testified Luciano had stared at him a couple of times and that the stare was "quite intimidating where [Luciano] would stop cooperating and then just engage in a stare, without blinking." He testified he interpreted Luciano's stare as a threat. Dr. Blanford stated, "So when . .. [Luciano] started doing that[, ] I actually asked him . .. what was he trying to do, intimidate[?] And he would say, well, why are you feeling scared, are you feeling frightened of me[?]" Dr. Blanford opined that Luciano's behavior at the airport reflected confused thinking and paranoia and that he would expect someone with Luciano's military background to know how to properly handle guns, including separating bullets from weapons. Dr. Blanford testified Luciano had told him that if he were released he wanted to go to Arizona to be near family, but that Luciano had refused to sign releases of information to enable API staff to confirm he could stay with family members.

         Dr. Blanford stated that Luciano did not believe he had a mental health problem. Dr. Blanford did not believe Luciano would participate in outpatient treatment because Luciano "believes he didn't really do anything wrong when he arrived at the airport, and he didn't threaten anybody." Dr. Blanford testified he expected Luciano's symptoms would continue if not treated and that his head injury might have made things worse. On cross-examination Dr. Blanford conceded that Luciano had not made any verbal threats and that Luciano's behavior "at the worst, [had been] described as menacing, and intense ... and not able to engage."

         Dr. Blanford also expressed concern that Luciano planned to escape from API because he demonstrated "elopement behavior," including asking to go outside frequently and carrying all of his belongings around API in a bag. Dr. Blanford described two incidents: Luciano attempted to "pull the fire alarm" so that he might escape, and he was observed in the gym attempting to "leap right up on a wall about six to eight feet high." Dr. Blanford believed that "[Luciano was capable] of trying to leap the wall in the yard."

         Luciano testified that after his discharge from the U.S. Army in 2015 he primarily worked as a security guard before obtaining a position at the VA as a medical support assistant. He testified that he left his job at the VA because he wanted to take a vacation. Luciano described the situation at the airport as "just a misunderstanding between [himself] and the airport clerk and the police." He conceded that his interaction with the police was "not good" and that he was frustrated by the police putting their hands on him.

         Luciano testified that he was not aware of having any mental health diagnoses, but that he did have an adjustment disorder he "personally... classified]... as a [traumatic brain injury]." He said he had suffered from too many head injuries to count and that he had not had treatment for many of those injuries. He described experiencing "[a] huge flash of light" countless times as a result of his head injuries and confirmed he had recently been in a motor vehicle accident.

         Luciano stated he could see a doctor through the VA if he "wanted" to and agreed he was willing to be "evaluated" by the VA. But when asked whether he would be willing to take medication if recommended "for adjustment disorder, insomnia, some of the things [he was] struggling with[, ]" he responded, "[P]ersonally ... I believe . .. I don't need it." When questioned further by his lawyer, Luciano agreed that he was willing to see a doctor. But he testified he did not want to be at API and would prefer to see an outpatient provider.

         Luciano stated that he never intended to harm anyone with the guns he had at the airport and that he did not at any point intend to harm himself. He also stated that he had not had any desire to harm anyone since he had been at API. He said if he were released he would go to a doctor's appointment scheduled for the next day and then he would want to get on a plane to go home. Luciano stated that if he were able to travel to Arizona, he would probably crash on his brother's couch, but acknowledged that his brother was not expecting him.

         On cross-examination Luciano admitted that he had received training about how to handle weapons while he was in the Army, but he stated that this had been his first time traveling at the airport as a civilian. He denied that his guns were loaded at the airport. Luciano agreed he had tried to stare down Dr. Blanford, but he could not remember asking if the doctor felt scared and denied that he had tried to stare down anyone else at API. He conceded that he had been balling his fists and squaring off to the officers at the airport, but said that he was not trying to send a message to the officers.

         The magistrate found by clear and convincing evidence that Luciano was suffering from a mental illness based upon Dr. Blanford's testimony and the adjustment disorder diagnosis from the VA, and that the mental illness finding was corroborated by Luciano's current behavior and some of his own testimony. The magistrate stated that it appeared Luciano had suffered a "psychotic break."

         The magistrate then considered "how much of an inference can be drawn from [Luciano's] showing up at the airport with loaded, unlocked guns and behaving in the manner that he did." She noted that she was particularly concerned by Luciano's denial that the weapons were loaded and believed that, given his military training and background, he would know not to come to the airport with loaded weapons. The magistrate stated that although she had not heard testimony of verbal threats, both the police officer and Dr. Blanford - professionals trained to assess these situations - testified they found Luciano's nonverbal behavior threatening. The magistrate found by clear and convincing evidence that Luciano was likely to cause harm to others as defined by the statute. This finding was, in part, based upon Luciano's apparent inability to assess and remember what was going on. The magistrate determined that there was no less restrictive alternative to confinement because there did not appear to be any place for Luciano to go and because she did not believe that he would follow up on treatment if released.

         The magistrate summarized the testimony of the police officer, Dr. Blanford, and Luciano in a proposed 30-day commitment order and emphasized the safety threat Luciano posed by arriving at the airport with loaded weapons. The proposed order noted that Luciano, by his own admission, was trained in the use of weapons; the court did not find credible his denial that the weapons were loaded, or that he had not known it was impermissible to bring unlocked loaded weapons when traveling by plane.^[5] The order outlined the testimony regarding Luciano's aggressive attitude. The magistrate gave particular weight to testimony by Dr. Blanford and the officer that they found Luciano's behavior threatening because they "are professionals trained to assess behavior."

         Luciano filed objections to the magistrate's proposed written findings the next day and requested a de novo hearing before the superior court. A few days later the superior court held an emergency hearing on Luciano's objections to the proposed 30-day commitment order.^[6] The next day the court signed the 30-day commitment order, adopting the magistrate's proposed written findings.

         Luciano appeals.

         III. STANDARD OF REVIEW

         " 'Factual findings in involuntary commitment . . . 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.' "^[7] "[W]hether factual findings comport with the requirements of AS 47.30," is a question of law that we review de novo.^[8] "[W]e will review de novo the superior court's decisions and use our independent judgment to determine whether, based on the underlying factual findings made by the superior court there was clear and convincing evidence that involuntary [commitment] was in [respondent's] best interests and was the least intrusive available treatment."^[9]

         IV. DISCUSSION

         A. The Superior Court Did Not Err In Finding By Clear And Convincing Evidence That Luciano Was Likely To Harm Others As A Result Of His Mental Illness.

         Following a 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."^[10] Evidence is clear and convincing if it produces "a firm belief or conviction about the existence of a fact to be proved."^[11] We have characterized this standard as "evidence that is greater than a preponderance, but less than proof beyond a reasonable doubt."^[12] A respondent is "likely to cause 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."^[13] We have previously stated, "The ... finding, of'danger to self or others,' is concerned with active forms of harm, where the respondent has demonstrated the affirmative ability or inclination to inflict harm to self or another person."^[14]

         Luciano argues that because he had not assaulted or attempted to assault anyone and had not verbally threatened anyone, the evidence was not sufficient to support a finding that he was likely to cause harm to himself or others. He focuses on the fact that there was no evidence that he made any verbal threats.

         Luciano cites no legal authority to support his argument that we should narrowly interpret "threatening harm" to mean only verbal threats. Noticeably absent from the definition in the controlling statute in this case is the word "verbal."^[15] The plain language of the statute does not foreclose the superior court from considering and drawing inferences from nonverbal conduct seen as threatening rather than from just words.^[16] Further, Luciano has not pointed to any legislative intent or rule of construction to support his narrow interpretation.

         In addition the common usage of the word "threat" encompasses more than verbal threats. The American Heritage Dictionary of the English Language defines "threat" as "an expression of an intention to inflict pain, harm, or punishment."^[17] It defines "threatening" as "making or implying threats."^[18] Neither of these definitions requires that the expression be verbal for conduct to be considered a threat or threatening.

         Luciano also challenges the inference that the superior court drew from the evidence presented at the commitment hearing. To address his challenge would require us to disturb the court's factual findings, and we will not disturb the superior court's factual findings unless we are left with a definite and firm conviction a mistake has been made.^[19] It appears that the magistrate largely credited the testimony of the officer and Dr. Blanford over Luciano's testimony, and the superior court endorsed the magistrate's factual determinations in adopting the proposed commitment order.

         Testimony revealed that Luciano had been behaving erratically leading up to his leaving or being fired from the VA, that he acted irately at the airport with both the ticket agent and the officer, and that he had loaded weapons in a gun case with no visible lock. The magistrate did not believe a former soldier like Luciano would be unaware of how to appropriately secure his weapons as required by regulation for air travel, ^[20] and noted her concern that he continued to insist that the guns had not been loaded. Based in part on this determination she also found it was not credible that Luciano, who had arrived at the airport unticketed, carrying these unsecured and loaded weapons, and refusing to provide a destination, was there for the benign purpose of travel. Both the officer and Dr. Blanford testified that they believed Luciano's behavior was threatening, and the officer characterized his actions of tightening his shoulders, balling his fists, and squaring up to her as "pre-assault indicators." Dr. Blanford testified that the menacing behavior continued at API.^[21]

         The superior court was entitled to consider and credit all of this testimony; "[conflicting evidence is generally insufficient to overturn a fact finding, and we will not reweigh evidence if the record supports the court's finding."^[22] Our task on appeal is rather to determine whether the superior court's findings, so long as they are not clearly erroneous, are sufficient when taken together to establish by clear and convincing evidence that Luciano was likely to cause harm to himself or others as a result of his mental illness.^[23] We conclude that in this case they are: Luciano's arrival at the airport with unsecured and loaded firearms and his repeated refusal to name a destination, coupled with his physically aggressive body language, are enough to generate "a firm conviction or belief that he posed a substantial risk of harm to himself or others.^[24] We therefore conclude that the superior court's finding that Luciano was likely to harm himself or others because of his mental illness was supported by clear and convincing evidence.

         B. The Superior Court Did Not Err In Finding By Clear And Convincing Evidence That There Was No Less Restrictive Alternative To Confinement.

         Luciano also appeals the superior court's finding that there was no less restrictive alternative to confinement at API. He argues that the evidence was insufficient to show what alternatives to confinement were considered and by whom, or why a less restrictive alternative was not viable.

         The petitioner in an involuntary commitment proceeding must prove by clear and convincing evidence that there is no less restrictive alternative to confinement.^[25] The term "least restrictive alternative" means that the treatment facilities and conditions "are no more harsh, hazardous, or intrusive than necessary to achieve the treatment objectives of the patient" and "involve no restrictions on physical movement nor supervised residence or inpatient care except as reasonably necessary for the administration of treatment or the protection of the patient or others from physical injury."^[26]

         The superior court in this case found that no less restrictive alternative existed because Luciano did not appear to have anywhere to stay and was unlikely to follow up with treatment if not committed. The evidence in this case supports these findings: Luciano himself testified that he had no place to live, and Dr. Blanford stated that API staff were unable to verify that he would be able to stay with family due to his refusal to provide a release of information. Although Luciano argues that Dr. Blanford's failure to contact his treatment providers at the VA should preclude the court from finding that there was not a less restrictive alternative, the court clearly credited Dr. Blanford's testimony that Luciano was unlikely to seek treatment if released over Luciano's equivocal testimony that he would.^[27] Whether his previous providers would have been willing to help him did not matter if Luciano would not seek their help. And Dr. Blanford testified he did not believe Luciano would participate in outpatient treatment. Dr. Blanford further testified that he believed Luciano's symptoms would continue if not treated. Dr. Blanford was also concerned that Luciano continually tried to leave API.

         We have previously affirmed a superior court's finding that there was no less restrictive alternative based upon similar evidence. In In re Hospitalization of Joan K. we affirmed the superior court's finding that living with family was not a viable less restrictive alternative for a respondent because family members were not able to watch her 24 hours a day and because the respondent changed her mind rapidly about what she would or would not do if released.^[28] We emphasized that the record showed that she "lacked perspective regarding her bipolar disorder" and that she denied having a mental illness or needing treatment.^[29] In In re Hospitalization of Mark V. we similarly affirmed the superior court's less restrictive alternative finding where the record showed that a respondent's need for medication and his inability to follow an outpatient regimen supported the magistrate's finding that no less restrictive alternative was available.^[30]

         To disturb the court's finding that there was no less restrictive alternative available for Luciano's treatment would require us to reweigh conflicting evidence, which we will not do as it is the province of the trial court to weigh testimony and make credibility determinations.^[31] The record supports the superior court's underlying factual findings that Luciano lacked a place to live and would not seek treatment unless committed; these findings are sufficient to establish by clear and convincing evidence that no less restrictive alternative to commitment at API existed.

         V. CONCLUSION

         We AFFIRM the superior court's commitment order.

          STOWERS, Chief Justice, dissenting.

         I. INTRODUCTION

         The superior court ordered Luciano G.'s involuntary commitment to the Alaska Psychiatric Institute (API) because he brought unlocked and loaded weapons to the airport and because airport and API personnel viewed Luciano's behavior as threatening. The court did so on the theory that this showed Luciano to be a danger to others. By affirming this order today, I believe this court dangerously broadens Alaska's involuntary commitment statute, giving short shrift to Luciano's constitutionally protected liberty interests.^[1] Finally, I conclude the superior court failed to adequately consider less restrictive alternatives to commitment at API. I therefore respectfully dissent from the court's opinion.

         II. DISCUSSION

         A. Luciano's Behavior Did Not Meet The Legal Standard Of "Likely ...