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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In Re Necessity for the Hospitalization of Stephen O. (12/17/2013) sp-6857

In Re Necessity for the Hospitalization of Stephen O. (12/17/2013) sp-6857

          Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

          Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

          303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                           

          corrections@appellate.courts.state.ak.us.  



                    THE SUPREME COURT OF THE STATE OF ALASKA  



In the Matter of the Necessity for the                    )  

Hospitalization of                                        )         Supreme Court No. S-13764  

                                                          )  

STEPHEN O.	                                               )         Superior Court No. 1JU-10-00020 PR  

                                                          )  

                                                          )         O P I N I O N  

                                                                                          

                                                          )  

                                                          )        No. 6857 - December 17, 2013  

                                                          )  



                   Appeal from the Superior Court of the State of Alaska, First  

                                                                                         

                   Judicial District, Juneau, Patricia A. Collins, Judge.  



                   Appearances:               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.
  

                   CARPENETI, Chief Justice, with whom FABE, Justice, joins, dissenting.
  

                                                                                                      



I.        INTRODUCTION  



                   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,  

                                 


----------------------- Page 2-----------------------

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 disabled was not supported by clear and convincing evidence,  



we reverse and vacate the superior court's 30-day involuntary commitment order.   



II.       FACTS AND PROCEEDINGS  



          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  



          1        We use pseudonyms to protect Stephen's privacy.  



                                                             -2-                                                          6857  


----------------------- Page 3-----------------------

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."  



          2         Neither Stephen's father nor his daughter testified at the hearings in the  



superior court.  Instead Stephen's father reported his reasons for seeking involuntary  

commitment  to  Dr.  John  Pappenheim,  Stephen's  examining  psychiatrist  at  Bartlett  

                                                                               

Regional Hospital, who relied on them in his diagnosis.  



                                                               -3-                                                             6857  


----------------------- Page 4-----------------------

                                                                               

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 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  



          3        Alaska Statute 47.30.705(a) provides in relevant part:  



                             A  peace  officer,  a  psychiatrist  or  physician  who  is  

                   licensed to practice in this state or employed by the federal  

                   government, or a clinical psychologist licensed by the state  

                                                                                         

                   Board       of    Psychologist          and      Psychological          Associate  

                   Examiners who has probable cause to believe that a person is  

                                                                                              

                   gravely disabled or is suffering from mental illness and is  

                   likely  to  cause  serious  harm  to  self  or  others  of  such  

                                                                  

                   immediate nature that considerations of safety do not allow  

                   initiation of involuntary commitment procedures set out in  

                   AS 47.30.700, may cause the person to be taken into custody  

                                                                                

                   and  delivered to the nearest evaluation facility.  A person  

                   taken  into  custody  for  emergency  evaluation  may  not  be  

                                                                                        

                   placed  in  a  jail  or  other  correctional  facility  except  for  

                                   

                   protective   custody   purposes   and   only   while   awaiting  

                   transportation to a treatment facility.  



          4        Alaska Statute 47.30.710(a) states:  



                                 

                             A respondent who is delivered under AS 47.30.700 - 

                   47.30.705         to    an     evaluation        facility      for    emergency  

                   examination and treatment shall be examined and evaluated  

                   as  to  mental  and  physical  condition  by  a  mental  health  

                   professional and by a physician within 24 hours after arrival  

                                                   

                   at the facility.  



                                                            -4-                                                      6857
  


----------------------- Page 5-----------------------

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  

                          



                                                              -5-                                                        6857
  


----------------------- Page 6-----------------------

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  



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  

                                                                                         



                                                                -6-                                                         6857
  


----------------------- Page 7-----------------------

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  



                                                             -7-                                                       6857
  


----------------------- Page 8-----------------------

                   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 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  



          5  

                                                                                       

                   However, as noted above, Ziegler stated in her visitor's report that Stephen  

agreed to take medication if ordered to do so by the court.  



                                                             -8-                                                         6857  


----------------------- Page 9-----------------------

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  



                                                                -9-                                                         6857
  


----------------------- Page 10-----------------------

                                    6  

a  commitment  hearing.     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.  



          6         Similarly, as noted above, the court-appointed visitor described Stephen as  



                                                         

"friendly and present[ing] well," and Dr. Pappenheim acknowledged that Stephen "can  

carry on a very rational conversation on day-to-day topics."  



                                                             -10-                                                            6857  


----------------------- Page 11-----------------------

                    And - but I also heard you say that, you know, you haven't  

                                                                             

                    regularly attended church.  



                    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  for  receipt  of  benefits  due  to  [a]  

                                    



psychiatric condition."  



                    Finally, the court relied on "the testimony [from Dr. Pappenheim] that  



[Stephen] believe[s] that Jesus is telling [him] that [he  does not] need mental health  

                                                                                       



help."  



                                                                                                                  

                    Following this, the court concluded that "the issue before me today is one  



                                                                               

that is such that I am going to grant the petition for hospitalization.  It does not mean I  



                                                             

am necessarily going to grant a request for involuntary medication.  And it also doesn't  



                                                                              

mean that I would not be open to hearing additional testimony" from Stephen's daughter  



                                                                                        

or other persons "about exactly what was going on there in Haines that resulted in this  



situation."    Nevertheless, the superior court found that Stephen was "gravely disabled"  



                                                                                     

under AS 47.30.915(7)(B) and ordered that Stephen be involuntarily committed for 30  



days.  



                                                   

                    Later,  the  superior  court  heard  additional  testimony  on  the  petition  to  



                                                                                             

involuntarily  administer  psychotropic  medication.    In  the  interim,  Dr.  Pappenheim  



received  records  from  the  hospital  in  Olympia  where  Stephen  was  treated  in  2004.  



                                                                               

Dr. Pappenheim testified that he was "surprised" by the assessment because it described  



                                                                                              

"a presentation that is . . . much more overt and disturbing than that which we see today."  



The  doctor  elaborated  that  there  was  "much  greater  evidence  of  illness  from  their  



                                     

description than what I have seen" in Stephen's current behavior.  The doctor testified,  



however, that the records strengthened his opinion that Stephen's current hospitalization  



                                                                                                             

was  appropriate  "because  of  the  markedly  regressed  psychotic  state  that  [Stephen]  



                                                              -11-                                                         6857
  


----------------------- Page 12-----------------------

                                                                                                 

came . . . in with [in 2004] and [his] concern that . . . he would return to that at some  



point."  



                    The superior court denied the petition to administer medication, concluding  



                             

that there was not clear and convincing evidence that harm to Stephen was imminent  



because his mental condition had not deteriorated during the time he was in custody.  



The court nevertheless continued the 30-day commitment order, finding that Stephen was  



still gravely disabled.  



                    On January 29, 2010, Stephen was discharged early because the State's  



petition  to  involuntarily  administer  medication  was  denied,  Stephen  refused  to  take  



medication voluntarily, and "gains [would] not be achieved without medication."  



                                              

                    Stephen appeals the order for involuntary commitment and requests that it  

be vacated.7  



III.      STANDARD OF REVIEW  



                                                                                 

                    We apply our independent judgment to the interpretation of the Alaska  



Constitution and statutes, adopting "the rule of law that is most persuasive in light of  



                                                   8  

                                                                     

precedent,   reason,   and   policy."       Factual   findings   in   involuntary   commitment  



                                                                                                              

proceedings are reviewed for clear error, and we overturn these findings only where a  



                                                                                     

review of the record leaves us "with a definite and firm conviction that a mistake has  



                   9  

been made."   Whether factual findings comport with the requirements of AS 47.30  



          7         Stephen  also  argues  that   his  extended  detention  before  evaluation  at  a  



hospital violated his rights to due process and equal protection of the law.                                    We do not  

reach these issues on appeal because Stephen waived them at trial.  



          8         Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 375 (Alaska 2007)  



(quoting Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979)).  



          9         Id. (citing Martin N. v. State, Dep't of Health & Soc. Servs., Div. of Family  



                                                                                                            (continued...)  



                                                             -12-                                                        6857
  


----------------------- Page 13-----------------------

presents a legal issue, which we review de novo.10  



IV.       DISCUSSION  



          A.        Stephen's Appeal Is Not Moot.  



                                                                        

                    Stephen argues on appeal that the superior court erred when it found him  



                                

"gravely disabled."  We asked for supplemental briefing on whether Stephen's claim is  



moot.    The  hospital  released  Stephen  before  the  order  for  commitment  had  expired  



because the hospital had not been authorized to administer medication.  Although the  



                                                                                          

superior court denied the petition to administer medication, it did not vacate its finding  



                                                                            

that Stephen was gravely disabled.  Stephen now seeks to vacate the superior court's  



order for commitment.  



                                                                                                                       

                    Stephen's evidentiary challenge to the superior court's finding that he was  



                                                                                       

"gravely disabled" would be moot under the standard we established in  Wetherhorn v.  



                                           11  

Alaska Psychiatric Institute .                 However, in In re the Hospitalization of Joan K. , we  



adopted   the   collateral   consequences   exception   to   mootness   in   the   involuntary  



                                12  

commitment context.                 The collateral consequences exception "allows courts to decide  



otherwise-moot cases when a judgment may carry indirect consequences in addition to  



          9         (...continued)  



& Youth Servs., 79 P.3d 50, 53 (Alaska 2003)).  



          10        Id.  



          11        156 P.3d at 381 (holding that the public interest exception to mootness does   



not  apply  to  an  evidentiary  challenge  to  an  involuntary  commitment  that  has  since  

expired).  



          12  

                                                     

                    273 P.3d 594, 597-98 (Alaska 2012).  Stephen's appeal preceded Joan K.'s  

                                            

appeal, but Stephen's appeal was deferred after we invited supplemental briefing on the  

mootness question.  In the meantime, we issued our opinion in Joan K .  



                                                             -13-                                                        6857
  


----------------------- Page 14-----------------------

                                                                                                                           13  

                                                                         

its direct force, either as a matter of legal rules  or as a matter of practical effect." 



Among  the  collateral  consequences  we  considered  were  "social  stigma,  adverse  



                                                                    

employment restrictions, application in future legal proceedings, and restrictions on the  



                                     14 

                                                                                                

right to possess firearms."              These general collateral consequences also apply to a person  



                                                                                                           15  

                                                                                                               Collateral  

who has previously been voluntarily hospitalized for psychiatric reasons. 



consequences flow from the judicial classification that forms the basis of an involuntary  

                                                                                                         

                           16  An individual's choice to voluntarily seek psychiatric care does not  

commitment order.                                                



diminish the collateral consequences of a later court order that commits him against his  



will.  



                   We  held  in  Joan  K.  that  "there  [were]  sufficient  general  collateral  



                                                                                         

consequences, without the need for a particularized showing, to apply the doctrine in an  

                                                                                                                 17  In this  

otherwise-moot appeal from . . . a person's first involuntary commitment order." 



case,  Stephen  and  the  State  stipulated  that  Stephen's  previous  hospitalization  in  



                                          18  

Washington  was  voluntary.                     Thus,  because  this  is  Stephen's  first   involuntary  



          13       Id. at 597-98 (footnote omitted).  



          14       Id. at 597 (footnotes omitted).  



          15       See,  e.g.,  18  U.S.C.    922(g)(4)  (2012)  (criminalizing  possession  of  



firearms by individuals who have been committed to a  mental institution).  



          16       Joan  K. ,  273  P.3d  at  608  (Stowers,  J.,   dissenting)  ("[I]n  this  age  of  



prevalent   information             mining,       collection,      and     storage   into   increasingly   large,  

interconnected, and searchable data banks, the fact that a citizen has been involuntarily  

                                              

committed to a mental institution will follow that individual for all of her life.").  



          17       Id. at 598.  



          18       While Stephen and the State agree that we should consider the merits of  



Stephen's  challenge,  they  disagree  about  which  party  should  bear  the  burden  of  

establishing whether a patient has previously been subject to involuntary commitment.  

                                                                           

                                                                                                          (continued...)  



                                                            -14-                                                      6857
  


----------------------- Page 15-----------------------

commitment order, we do not require a showing of particularized consequences resulting  

                                                          



from the superior court's finding that he was gravely disabled.  Sufficient generalized  



                                                                                                                   

collateral consequences flow from this judicial determination to allow us to reach the  



merits of Stephen's appeal.  



                                                                                                                                 

          B.	       The Superior Court Erred In Finding That Stephen Was Gravely  

                                                                   

                    Disabled Based On Evidence Offered At Stephen's January 20, 2010  

                    Commitment Hearing.  



                                                                       

                    Stephen  argues  that  the  factors  the  court  relied  upon  in  making  its  



                                                                                                            

determination that he was gravely disabled "even taken together" do not provide "clear  



and convincing evidence" that he was gravely disabled.  We agree. 



                                                           

                     Under AS 47.30.735(c), a court may involuntarily commit a person to a  



                                                         

treatment facility for up to 30 days if the court finds by clear and convincing evidence  



                                                                                                        

that the person is "mentally ill" and as a result is either "likely to cause harm to [himself]  



or others or is gravely disabled."  The "clear and convincing"standard of proof required  



by the statute demands "a firm belief or conviction about the existence of a fact to be  



             19  

proved."         "Clear and convincing evidence has been characterized as evidence that is  



                                                                                                                   20  

                                                                                                                       As we  

greater than a preponderance, but less than proof beyond a reasonable doubt." 



                                        

explained  in  Wetherhorn  v.  Alaska  Psychiatric  Institute,  requiring  this  heightened  



                                                                    

standard of proof in involuntary commitment cases "is one way to impress the factfinder  



                                                                            

with the importance of the decision and thereby  perhaps  to reduce the chances that  



          18        (...continued)  



But because the parties stipulated that Stephen's previous hospitalization was voluntary,  

we do not decide this issue.  



          19        In re Johnstone , 2 P.3d 1226, 1234 (Alaska 2000) (quoting Buster v. Gale ,  



866 P.2d 837, 844 (Alaska 1994)).  



          20        Brynna B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth   



Servs., 88 P.3d 527, 530 n.12 (Alaska 2004) (quoting Buster , 866 P.2d at 844).  



                                                             -15-	                                                       6857
  


----------------------- Page 16-----------------------

                                                                21  

inappropriate commitments will be ordered."                         Such caution is required in involuntary  



                                                                                  

commitment cases because of the great "importance of the liberty right involved" and the  



                                                                                         22  

                                                                                             We reaffirmed these  

"massive curtailment of liberty" that such commitments entail. 



                        

principles in In re Tracy C. , where we observed that "our decision in  Wetherhorn . . .  



                                                                                                                23  

emphasized the high standard required to justify . . . involuntary commitment."                                        



                   Stephen's  involuntary  commitment  was  executed  under  the  "gravely  



                                                       

disabled" prong of AS 47.30.735(c).  Alaska Statute 47.30.915(7)(B) defines "gravely  



disabled" as:  



                                                                                 

                   [A] condition in which a person as a result of mental illness  

                            . . .  



                   will, if not treated, suffer or continue to suffer severe and  

                   abnormal  mental,  emotional,  or  physical  distress,  and  this  

                   distress     is   associated        with     significant      impairment         of  

                   judgment,        reason,      or   behavior        causing       a   substantial  

                   deterioration  of  the  person's  previous  ability  to  function  

                                                                             

                   independently.  



In  Wetherhorn, we concluded that "in order to be constitutional, AS 47.30.915(7)(B)  



must be construed so that the 'distress' that justifies commitment refers to a level of  



incapacity that prevents the person in question from being able to live safely outside of  



         21        Wetherhorn v. Alaska Psychiatric Inst.                  , 156 P.3d 371, 377 n.26 (Alaska  



2007) (quoting Addington v. Texas , 441 U.S. 418, 427 (1979)).  



         22        Id. at 375-77 (quoting Humphrey v. Cady , 405 U.S. 504, 509 (1972); citing  



O'Connor v. Donaldson, 422 U.S. 563, 567 (1975)).  



         23        In re Tracy C. , 249 P.3d 1085, 1092 (Alaska 2011) (citing Wetherhorn, 156  



P.3d at 378); see also Joan K., 273 P.3d at 602-608 (Stowers, J., dissenting) (discussing  

                                                             

the role of the clear and convincing standard in involuntary commitment cases).  



                                                          -16-                                                     6857
  


----------------------- Page 17-----------------------

                                        24  

a controlled environment."                  We explained that  



                    [t]his  construction  of  the  statute  is  necessary  not  only  to  

                                                                                          

                    protect persons against the massive curtailment of liberty that  

                    involuntary  commitment  represents,  but  also  to  protect  

                    against a variety of dangers particular to those subject to civil  

                                                                           

                    commitment.  For example, there is a danger that the mentally  

                    ill  may  be  confined  merely  because  they  are  physically  

                    unattractive or socially eccentric or otherwise exhibit some  

                                                        

                    abnormal  behavior  which  might  be  perceived  by  some  as  

                    symptomatic of a mental or emotional disorder, but which is  

                    in   fact   within       a    range     of    conduct   that         is   generally  

                                                            

                                    [25] 

                    acceptable.  



                                                                                                      

                    The superior court cited the following facts in support of its conclusion that  



                                               

Stephen was gravely disabled:  (1) Dr. Pappenheim's recollection of Stephen's father's  



statement that Stephen's 12-year-old daughter complained Stephen was "creeping her  



                    

out"; (2) Dr. Pappenheim's discussion of the similarities between Stephen's 2004 prior  



psychotic break, hospitalization, and apparent suicide attempt as recounted by Stephen's  



father; (3) Stephen's diagnosis of bipolar affective disorder, current manic with psychotic  



features, and his eligibility for and receipt of Social Security disability benefits for a  



                                                                                        

psychiatric condition; (4) Dr. Pappenheim's testimony that Stephen believed that Jesus  



was telling Stephen that he did not need mental help.  These findings together cannot  



                                                           

support a firm belief or conviction that Stephen was "gravely disabled" for purposes of  



          24        Wetherhorn, 156 P.3d at 378.  See also   O'Connor, 422 U.S. at 576 ("In  



short, a State cannot constitutionally confine without more a nondangerous individual  

who is capable of surviving safely in freedom by himself or with the help of willing and  

                                                                                                     

responsible family members or friends."); see also Myers v. Alaska Psychiatric Inst. , 138  

                                                                          

P.3d 238, 242 (Alaska 2006) ("Persons are deemed 'gravely disabled' when they are so  

                                                                                                                        

unable to care for themselves that it seems very likely that they will come to serious harm  

                                                                                                  

without help.") (footnote omitted).  



          25        Wetherhorn,  156  P.3d  at  378  (footnotes  and  internal  quotation  marks  



omitted).  



                                                             -17-                                                       6857
  


----------------------- Page 18-----------------------

involuntary commitment.26  



                                                                     

                       First, as the superior court itself acknowledged, the meaning of Stephen's  



daughter's comment that he was "creeping [her] out" was unclear.  The quote from  



 Stephen's daughter came from Dr. Pappenheim's testimony relaying what Stephen's  



            26         The dissent principally argues that we are "substituting [our] judgment for   



the trial court's" judgment and "re-weighing the evidence."                                              With respect, the dissent  

misunderstands the applicable standard of review.  Our review of whether a superior   

court's factual findings comport with the legal requirements of AS 47.30 presents a legal   

question, which we review de novo.   Wetherhorn, 156 P.3d at 375.  



                       In this case, the ultimate question before the superior court was whether   

 Stephen was gravely disabled as provided and defined in AS 47.30.735(c) (the "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 gravely disabled"),  

                                                                                                        

AS 47.30.915(7)(B) (defining "gravely disabled" as "a condition in which a person as  

a result of mental illness . . . will, if not treated, suffer or continue to suffer severe and  

abnormal mental, emotional, or physical distress, and this distress is associated with  

                  

 significant   impairment   of   judgment,   reason,   or   behavior   causing   a   substantial  

deterioration   of   the   person's   previous   ability   to   function   independently"),   and  

 Wetherhorn, 156 P.3d at 378 ("in order to be constitutional, AS 47.30.915(7)(B) must  

be construed so that the 'distress' that justifies commitment refers to a level of incapacity  

                                                                                                                       

that prevents the person in question from being able to live safely outside of a controlled  

environment.").  The superior court made a number of factual findings, and from these  

                                                                                                           

findings reached its ultimate conclusion:  Stephen was gravely disabled.  



                       On appeal under a de novo standard of review, it is this court's task to  

ascertain whether the evidence relied on by the superior court satisfied the requisite legal  

                                                                          

 standards by the mandatory evidentiary burden of clear and convincing evidence.  This  

task demands that we carefully review that evidence to determine whether it satisfies the  

                                                                                                                                 

legal standard.  Having done so, we conclude that the evidence before the superior court  

                                                                                     

did not clearly and convincingly establish that Stephen was gravely disabled as defined  

                                                                                                       

by AS 47.30.735(c), AS 47.30.915(7)(B), and  Wetherhorn.  We are not substituting our  

                                                                                                                    

judgment or re-weighing facts found by the trial court;  we simply conclude that the  

                                                                                                                       

evidence  the  court  relied  on  was  insufficient  to  meet  the  legal  requirements  of  

AS  47.30's  standards  for  "gravely  disabled."                                  In  other  words,  we  do  not  re-weigh  

                                                                                         

evidence when we point out that the evidence is insufficient to satisfy the legal standard.  



                                                                       -18-                                                                6857
  


----------------------- Page 19-----------------------

                                                                                        

father told Dr. Pappenheim the daughter said to him. Dr. Pappenheim admitted he never  



directly spoke to Stephen's children and only spoke to Stephen's father.  The superior  



                                                                                                                             

court is certainly not required to ignore this hearsay-upon-hearsay statement, but its  



                                                    

reliability and probative value do not meaningfully contribute to the elevated evidentiary  



burden in this case.  



                     Second,  the  record  and  testimony  reveal  marked  differences  between  



                                                                         

Stephen's conduct, behavior, and experience in 2004 - six years before the present  



commitment hearings - and his conduct, behavior, and experience in 2010, such that  



                                                                     

the  2004  evidence  is  insufficient  to  form  the  basis  for  any  firm  conclusions  about  



                                                                                                             

Stephen's condition in 2010.  As detailed above, both Stephen  and  Dr. Pappenheim  



                                                                                                                          

testified concerning the differences between Stephen's experience in 2004 - when he  



                                                                                                 

was "extremely fearful" and "knew something was not right" - and his experience in  



                                                                                      

2010, when he was calm, at peace, and optimistic about the future.  Stephen testified that  



                                                                                        

he was in "total fear" in 2004 "when the voices started" and ran to church so someone  



                                          

there could take him to see a doctor because he "didn't want to hurt [anyone]."  On direct  



                                                                                                                    

examination Stephen was asked if he presently felt "any of the types of emotions or  



                                                                                                                                  

[heard] the types of voices" he experienced in 2004 or whether he felt "any pains or . . .  



                                                                      

internal sufferings" or "physical distress" as in 2004, and Stephen replied "no."  On the  



                                                                                                                 

contrary, Stephen testified that he felt he was "doing good" and he was looking to the  



future because "[t]hings . . . always work out better."  



                                             

                     Moreover, Dr. Pappenheim acknowledged that his conclusions concerning  



                                                                          

the similarities between the two instances were substantially based on information from  



                                                                                

Stephen's father that Dr. Pappenheim was unable to corroborate with the medical reports  



                                                                                                    

from  the  Olympia  hospital.    Dr.  Pappenheim  recognized  that  his  conclusions  about  



                                                                            

Stephen's condition hearing voices had "a bit of a speculative component to it."  When  



                                                                                                                           

asked if his concern was that Stephen "might eventually act the same way he did five  



                                                                -19-                                                          6857
  


----------------------- Page 20-----------------------

years   ago,  even  though  [Stephen  was]  not  showing  signs  of  similar  behaviors,"  



Dr. Pappenheim replied, "[c]orrect."  In short, Dr. Pappenheim's speculative conclusions  



                                                                                                     

based in part on hearsay evidence gathered solely from Stephen's father provide little  



support for a finding of gravely disabled by clear and convincing evidence.  



                  Third,  while  the  superior  court  was  entitled  to  weigh  the  evidence  of  



                

Stephen's  diagnosis of bipolar disorder in its gravely disabled determination, courts  



should proceed with caution when relying on mental illness as a basis for involuntary  



                  27  

commitment.             As  the  United  States  Supreme  Court  explained  in  O'Connor  v.  



Donaldson ,  the  State  may  not  "fence  in  the  harmless  mentally  ill  solely  to  save  its  

citizens from exposure to those whose ways are different[.]"28  We have said that "mental  



illness, without more, 'does not disqualify a person from preferring his home to the  



                                         29  

comforts of an institution.' "               In order to involuntarily commit someone "it is not  



enough  to  show  that  care  and  treatment  of  an  individual's  mental  illness  would  be  



                                                                     30 

                                                                         Stephen's diagnosis of illness and  

preferred or beneficial or even in his best interests." 



eligibility  for  Social  Security  benefits  on  the  basis  of  his  diagnosis  likewise  do  not  



                                                                                           

contribute  much  to  the  elevated  burden  of  proof  required  in  this  case  to  justify  



commitment.  



                  Fourth, Stephen did not express any general objections to "mental health  



                                                                                             

help," but only to psychotropic medication, particularly because of the side effects that  



         27       Id.  at  376  (citing  O'Connor,  422  U.S.  at  575)  (mental  illness  alone  is  



insufficient to form a constitutionally adequate basis for involuntary commitment).  



         28       422 U.S. at 575.  



         29        Wetherhorn, 156 P.3d at 378 (quoting O'Connor, 422 U.S. at 575).  



         30       Id. (quoting In re LaBelle , 728 P.2d 138, 146 (Wash. 1986)) (alterations  



and internal quotation marks omitted).  



                                                        -20-                                                   6857
  


----------------------- Page 21-----------------------

he had previously experienced when taking such medication. Stephen stated that he was    



willing to comply with a court order for involuntary psychotropic medication if the court  



                                                                   

so decided.  A finding of gravely disabled by clear and convincing evidence in this case  



                                                     

required the superior court to have a firm belief in the fact that Stephen 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.  Stephen's willingness to get treatment if the court so ordered demonstrates his  



                                                                       

ability to reason and make autonomous choices, contrary to the involuntary commitment  



ordered.  Expressing a preference for treatment is not synonymous with refusing all  



mental help.  



                    In sum, the superior court's decision  to commit Stephen was based on  



partial  and  unclear  evidence,  much  of  which  was  hearsay,  and  which  the  court  



                                                                                               

acknowledged was in tension with significant evidence in favor of Stephen's ability to  



                                                                   

function independently and live outside of a controlled environment.  By contrast, in In  



re Jeffrey E. we upheld the commitment of a respondent who had been in a catatonic  



state for several days before being restored to a "functioning" condition by means of  



                                                                                                           

medication the day before the hearing and who could return to catatonia "in a matter of  



                                                                       31  

hours" if he were to stop taking the medication.                           In that case, there was "no dispute"  



        

that  the respondent's catatonia "made him gravely disabled, or that catatonia would  

                                                                          32  Here, on the other hand, Stephen  

reoccur shortly after the cessation of medication."      



was functioning independently before and during the hearing, and concern that Stephen  

                                                               



would decompensate and harm himself at some time in the future was speculative.  



                                                 

                    The only condition that Dr. Pappenheim identified as a "probability" with  



          31       In re Jeffrey E. , 281 P.3d 84, 86-88 (Alaska 2012).  



          32       Id. at 88.  



                                                             -21-                                                          6857  


----------------------- Page 22-----------------------

                                                                                                                            33  

                                                            

respect to Stephen was a "deterioration with the development of chronic psychosis." 



Undoubtedly "chronic psychosis" is a deeply unfortunate condition, but as we have  



                                                                                                                   

explained, in order to involuntarily commit someone "it is not enough to show that care  



                                                                     

and treatment of an individual's mental illness would be preferred or beneficial or even  



                              34  

                                                                                  

in his best interests."          Further, as Stephen points out in his brief, if "chronic psychosis"  



means merely a continuation of his current symptoms, namely a persistent sense that  



                                                                                                   

Jesus is speaking to him and telling him to attend church, follow his teachings, and have  



                                                                                

an  optimistic  outlook  on  the  future,  that  condition  would  in  no  way  compromise  



Stephen's capacity to function independently or live safely.  



                   Finally,  there  was  much  discussion  at  the  January  20  hearing  about  



                                                                              35  

Stephen's religious background, belief, and practice.                             Dr. Pappenheim testified that  



                              

Stephen's religious beliefs were irrational and delusional, principally because they did  



          33       BLACK 'S  LAW  DICTIONARY  defines  "chronic"  as  "of   long   duration,  or  



characterized by slowly progressive symptoms; deepseated and obstinate, or threatening  

a long continuance; - distinguished from acute."  BLACK 'S LAW DICTIONARY 241-42  

(6th ed. 1990).  Of greater significance, TABER 'S  CYCLOPEDIC  MEDICAL DICTIONARY  

defines  "chronic"  as  "[d]esignating  a  disease  showing  little  change  or  of  slow  

progression.  Opposite of acute."  TABER 'S  CYCLOPEDIC  MEDICAL  DICTIONARY 355  

(16th ed. 1989).  A condition that is merely chronic without more cannot satisfy the high  

                                                                                                          

bar set by the  Wetherhorn standard, which is chiefly concerned with the severity of the  

                                                                                                          

illness, not its duration.  See, e.g., In re Tracy C., 249 P.3d 1085, 1094 (Alaska 2011)  

                                                                                        

(affirming  an  involuntary  commitment  order  when  the  respondent  suffered  from  an  

"acute" condition).   



          34        Wetherhorn,  156  P.3d  at  378  (quoting    LaBelle ,  728  P.2d  at  146)  



(alterations omitted).  



          35       As we have reiterated on numerous occasions, "[n]o value has a higher  



                                                                        

place in our constitutional system of government than that of religious freedom."  Sands  

                                                                                               

v. Living Word Fellowship, 34 P.3d 955, 958 n.11 (Alaska 2001) (alteration in original)  

(quoting Frank v. State ,  604 P.2d 1068, 1070 (Alaska 1979)).  



                                                            -22-                                                       6857
  


----------------------- Page 23-----------------------

                                             

not "come from a cultural, historical context" but rather came "out of the blue."  The  



superior court also seemed to regard Stephen's religious background as important, noting  



that Stephen had not "regularly attended church," although the court also commented  



that a person's decision "in a time of stress" to find a "religious connection" and to  



                                                                                                                

proceed "to an active involvement with God" could not be regarded as "mental illness."  



                                                                                                                

In  any  event,  even  if  Stephen's  beliefs  did  come  about  suddenly,  this  should  not  



                                       36  

                                                                                          

undermine their validity.                   More to the point, there was nothing harmful or dangerous  



about  Stephen's  religious  beliefs  or  experiences.    Stephen  testified  that  Jesus  had  



forgiven his sins and told him to repent and to have a positive outlook on the future,  



                                                               

messages that gave Stephen a sense of happiness and relief.  Stephen also testified that  



he began to pray, that he wanted to pray with his children, and that, through his neighbor,  



he had been put in touch with the pastor of a local Pentecostal church.  None of these  



activities or experiences rendered Stephen gravely disabled or interfered with his ability  

to live safely outside of a controlled environment.37  



           36        As one court has observed, religious history "is replete with examples of   



sudden  conversions  precipitated  by  crisis,  e.g.  Saul  of  Tarsus   .   .   .   on  the  Road  to  

Damascus[,] and by apparently irrelevant events, e.g. Gotama Buddha under the Bohdi                                        

Tree."  U.S. v. Jennison, 402 F.2d 51, 56 n.2 (6th Cir. 1968).  



           37        Stephen  correctly  argues  that  nothing  about  his  religious  experience,  



                                                                                                           

practice, or belief "would be out of place in [a] myriad [of] churches across the country,"  

                                                                               

or indeed around the world.  Prayer, repentance, forgiveness of sins, and attendance at  

church are all familiar aspects of Christianity.  Less familiar to some observers, perhaps,  

is the subset of Christianity known as Pentecostalism.  Briefly, then, it should be noted  

                          

that Pentecostals typically "emphasize such spiritually renewing 'gifts of the Holy Spirit'  

                                                                                                     

as speaking in tongues, divine healing and prophesying" and, "[e]ven more than other  

Christians . . . believe that God, acting through the Holy Spirit, continues to play a direct,  

                                                                                                                      

active role in everyday life."   The Pew Forum on Religion & Public Life, Spirit and  

                                                                                                      

Power:             A      10-Country            Survey         of     Pentecostals            3     (2006),        available          at  

http://www.pewforum.org/files/2006/10/pentecostals-08.pdf .                                                  Further,         "many  

                                                                                                                    (continued...)  



                                                                 -23-                                                            6857
  


----------------------- Page 24-----------------------

V.       CONCLUSION  



                  Because the superior court committed error when it found that Stephen was  

                                                                                                       



gravely disabled by clear and convincing evidence, we REVERSE the decision of the  

            



superior  court  granting  the  30-day  commitment  order  and  VACATE  the  order  of  

                                                    



commitment.  



         37       (...continued)  



pentecostals" say they have "received a direct revelation from God," and many also  

believe in "the intervention of supernatural forces in everyday life," including the activity  

of "angels and demons . . . in the world."  Id. at 20, 28.  We note that it is incumbent on  

                                                                                                  

courts and the attorneys and mental health professionals who are involved in mental  

health   commitment   proceedings   to   become   acquainted   with   at   least   the   core  

characteristics  of  the  religious  belief  systems  of  respondents  when  respondents  are  

alleged to be "gravely disabled" because they are engaging in their religious beliefs.   



                                                        -24-                                                   6857
  


----------------------- Page 25-----------------------

CARPENETI, Chief Justice, with whom FABE, Justice, joins, dissenting.  



                                                                                

                   I disagree with the court's conclusion that an experienced trial judge, who  



saw and heard the witnesses, committed clear error when she made the factual finding  



                                

that Stephen O. posed a risk of once again harming himself and therefore committed him  



to the care and custody of the State for 30 days.  



                                   

                   Because I view the facts somewhat differently than today's opinion views  



them - and I view them more in line with the superior court's view - I begin with a  



recitation of the salient facts.  I then discuss each of the reasons advanced by today's  



                                                       

opinion to reverse the superior court's factual finding and show that the court reaches its  



decision to reverse principally by re-weighing the evidence, in violation of our role as  



a reviewing court.  



                   Facts  



                   In 2004 Stephen O. heard "voices that told him to jump off a wall."  He  



                          1 

                                                                                                                     

obeyed the voices  and, in an apparent suicide attempt, "jumped off a ledge some 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.  Following this incident, Stephen began  



receiving  Social  Security  disability  benefits  for  psychiatric  illness.    He  was  also  



                                                                         

prescribed Resperdal, an antipsychotic medication, which he took for approximately one  



to two years following this psychotic break.  



          1  

                                                                                 

                   Testimony at the commitment hearing was unclear as to whether Stephen  

heard the voice of Jesus or the voice of Lucifer.  



                                                           -25-                                                        6857  


----------------------- Page 26-----------------------

                                                                                                        

                   In January 2010, Stephen's father became concerned about him again after  



                                                                                            2  

                                                                                                 Stephen  had  begun  

Stephen's  daughter  reported  that  he  was  "creeping  [her]  out." 



waking his children up at night and talking to them about God, attending church, and  

                                                      



following "a path of repentance."  Stephen's father and daughter were alarmed because  



this behavior was very similar to Stephen's behavior in his previous psychotic break,  



                                                         

where he reported hearing voices and "heading down a path of repentance" and then  



severely injured himself.  Stephen's mother also considered this behavior to be abnormal  



because prior to early January 2010 she did not consider him to be a religious person.  



                   Concerned  for  his  safety,  Stephen's  parents  reported  his  behavior  to  a  



                                                                     

community mental health clinician, who filed  a  petition for initiation of involuntary  



commitment on January 8, 2010.  The petition identified the following facts that required  



                      

an evaluation: "Client is presenting with psychotic features including hearing the voice  



of Jesus.  Client exhibits behaviors similar to those he has exhibited in the past, prior to  



a suicide attempt."  



                   On   January   8,   2010,   the   Haines   Police   Department   took   Stephen  



                                                                       3  

into emergency custody under AS 47.30.705(a).   The following day, Master Bruce  



          2        Neither  Stephen's  father  nor  daughter  testified  at  the  hearings  in  the  



superior court.  Instead Stephen's father reported his reasons for seeking involuntary  

commitment to Dr. John Pappenheim, Stephen's treating physician at Bartlett Regional  

                                     

Hospital.  



          3        Alaska Statute 47.30.705(a) provides in relevant part:  



                   A peace officer, a psychiatrist or physician who is licensed to  

                                                                   

                   practice in this state or employed by the federal government,  

                                                     

                   or  a  clinical  psychologist  licensed  by  the  state  Board  of  

                   Psychologist and Psychological Associate Examiners who  

                   has  probable  cause  to  believe  that  a  person  is  gravely  

                   disabled or is suffering from mental illness and is likely to  

                                                                          

                                                                                                         (continued...)  



                                                           -26-                                                      6857
  


----------------------- Page 27-----------------------

                                                                                                                 

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  



                                                                                                             4  

evaluation facility," for an evaluation as provided for in AS 47.30.710(a).   



                                                                                              

                    Stephen remained in the Haines jail 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.  He was evaluated the next day by Dr. John  



Pappenheim,  the  medical  director  for  psychiatric  services.    A  30-day  commitment  



hearing was set for January 20, 2010.  



                    Proceedings  



                    On January 20, 2010, Superior Court Judge Patricia A. Collins conducted  



the 30-day commitment hearing.  Dr. Pappenheim and Stephen testified regarding the  

                                                                                                             



State's request for Stephen's 30-day commitment.  The court also considered a report by  

                                            



Elizabeth Ziegler, the court-appointed visitor.  On January 27 and 28 the court heard  

                             



          3	        (...continued)  



                    cause serious harm to self or others of such immediate nature  

                                                                             

                    that  considerations  of  safety  do  not  allow  initiation  of  

                           

                    involuntary commitment procedures set out in AS 47.30.700,  

                                                                           

                    may cause the person to be taken into custody and delivered  

                    to the nearest evaluation facility.  A person taken into custody  

                                         

                    for emergency evaluation may not be placed in a jail or other  

                                                                                                  

                    correctional facility except for protective custody purposes  

                    and only while awaiting transportation to a treatment facility.  

                                           



          4	        Alaska Statute 47.30.710(a) states:  



                                                                                    

                    A   respondent   who   is   delivered   under   AS   47.30.700- 

                    47.30.705         to    an     evaluation         facility      for     emergency  

                    examination and treatment shall be examined and evaluated  

                    as  to  mental  and  physical  condition  by  a  mental  health  

                    professional and by a physician within 24 hours after arrival  

                                                     

                    at the facility.  



                                                             -27-	                                                       6857
  


----------------------- Page 28-----------------------

further testimony from Dr. Pappenheim, Stephen, and Ziegler on the State's petition to  

                                                                                                      



administer medication.  



                    Dr.  Pappenheim  gave  expert  testimony  on  the  diagnosis  of  Stephen's  

                          



mental  illness  and  the  risks  associated  with  his  behavior.    He  testified  that  Stephen  



"suffers from bipolar affective disorder, current manic with psychotic features."  Dr.  



Pappenheim's diagnosis was based "in substantial part" on information he received from  

                                                                                  



Stephen's father regarding his psychotic break six years  prior and on interviews he  



conducted  with  Stephen.    Stephen's  father  reported  that  during  his  prior  episode  of  



psychosis, Stephen was behaving "in precisely the same fashion" as in early January  



2010:  "once again [Stephen was] manifesting the presentation of hearing the voice of  

                              



Jesus, becoming religiously preoccupied, wanting to head down a path of repentance."  

                                           



Stephen's father had confirmed that his recent change in behavior was a "substantial and  

                                                                                                



marked departure from his previous condition."  Dr. Pappenheim was concerned because  



this departure "has historically been associated with behavior that's very  harmful to  

                                                                                                                



[Stephen]."  



                    Dr. Pappenheim testified 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  

                                                                                              



                                                             -28-                                                       6857
  


----------------------- Page 29-----------------------

                    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.  Stephen  



refused to take a mood stabilizer and an antipsychotic, which Dr. Pappenheim believed  



                                                                                    

are  "requisite  treatment[s]"  for  someone  with  manic  psychosis.    Without  treatment,  



                                                                 

Stephen  was  at  risk  of  hurting  himself  as  he  had  during  his  previous  episode  of  



psychosis, 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 himself or his children.  But, based on the similarity  



                                                                                            

between his current behavior and past episode of psychosis, 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."  



                                      

                    If  Stephen  were  allowed  to  leave  the  hospital,  Dr.  Pappenheim's  main  



                                                                               

concern was that his 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   characterized   Stephen's   condition   as   a   significant  



                                                                                                          

impairment.  He 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.  



                                                              -29-                                                         6857
  


----------------------- Page 30-----------------------

                    Stephen also testified at the hearing.  He reported on the breakdown of his  



marriage and recent events in his life.  He disputed his family members' reports that he  



had been behaving abnormally and he disagreed with Dr. Pappenheim's opinion that he  



was mentally ill.  



                    The  court  also  reviewed  a  report  that  outlined  Stephen's  meeting  with  



                             

Elizabeth Ziegler, the court-appointed visitor.  In the report, Ziegler described Stephen  



                                                                        

as  friendly  and  presenting  well.    The  report  noted  his  description  of  his  previous  



                                                                                                                   

psychotic break and treatment, and his current objection to taking medication.  The report  



also described his mother's report of his previous psychotic break, and her concerns  



about his recent religiosity and behavior toward his children.  



                    Acknowledging the "very high burden of proof that applies in this case,  



                                                                          

. . . clear and convincing evidence," the superior court found that Stephen was "gravely  



                                                                                                                

disabled" under AS 47.30.915(7)(B).  The court cited the following facts in support of  



                                             

its conclusion: (1) Stephen's prior psychotic break, hospitalization, and apparent suicide  



attempt; (2) his diagnosis of bipolar affective disorder, current manic with psychotic  



                                                                                                                 

features;  (3)  his  eligibility  for  and  receipt  of  Social  Security  disability  benefits  for  



                                                                                                           

psychiatric condition (eligibility which was based on a "stringent test" administered by  



                                       

Social  Security);  (4)  his  daughter's  report  that  he  was  "creeping  [her]  out";  (5)  his  



family's concerns about the similarity between his current behavior and his behavior  



                                      

during his prior episode of psychosis; and (6) his belief that Jesus was telling him that  



                                                 

he does not need mental health help.  The court ordered that Stephen be involuntarily  



committed for 30 days.  



                                                   

                    Later,  the  superior  court  heard  additional  testimony  on  the  petition  to  



                                                                                                         

involuntarily  administer  psychotropic  medication.    In  the  interim,  Dr.  Pappenheim  



                                                                                           

received records from the hospital in Olympia, Washington, where Stephen was treated  



during  his  previous  psychotic  episode.    Dr.  Pappenheim  testified  that  the  records  



                                                              -30-                                                         6857
  


----------------------- Page 31-----------------------

                                                                                         

strengthened his opinion that Stephen's hospitalization was appropriate "because of the  



                                                                            

markedly regressed psychotic state that [Stephen] came into . . . and [his] concern that  



. . . he would return to that at some point."  



                    The superior court denied the petition to administer medication, concluding  



                                                                                           

that there was not clear and convincing evidence that harm to Stephen was imminent  



                                                          

because his mental condition had not deteriorated during the time he was in custody.  



                                                                                     

Judge Collins continued the 30-day commitment order finding that Stephen was still  



gravely disabled, but declined to permit involuntary medication, noting that there was  



                                                                                                          

"an even higher burden that has to be met with respect to administration of psychotropic  



medications."  



                                                                                                                 

                    On January 29, 2010, Stephen was discharged early because the State's  



                                                                                       

petition to involuntarily administer medication was denied, he refused to take medication  



voluntarily, and "gains [would] not be achieved without medication."  



                    Discussion  



                    (1)       The ambiguity of Stephen's daughter's comment  



                                                                                                      

                    The first reason advanced by today's opinion to support the conclusion that  



                     

the trial court committed clear error is that the meaning of Stephen's daughter's comment  



was  "unclear."    The  precise  meaning  of  a  12-year-old's  complaint  that  her  father's  



                                                                       

actions - waking the child in the middle of the night and talking to her about Jesus and  



                                                                           

a path of repentance - were "creeping [her] out" may be uncertain, but in context it is  



                                                                                 

certainly a piece of evidence that the superior court is entitled to consider and give  



weight to.  The context - which today's opinion ignores - is that Stephen's actions  



                                                                               

frightened his daughter:  "she remembered . . . what had happened previously and was  



                                                    

scared and went to her grandfather and expressed that concern."  The majority's handling  



of  this  piece  of  evidence  is  just  the  first  of  many  examples  of  re-weighing  of  the  



evidence.  But weighing of the evidence is the trial court's function, not ours.  



                                                             -31-                                                        6857
  


----------------------- Page 32-----------------------

                   (2)       "[M ]arked differences" between Stephen's conduct in 2004 and 2010  



                   The second reason advanced by today's opinion to support the conclusion  



that  the  trial  court  committed  clear  error  were  the  "marked  differences"  between  



Stephen's conduct, behavior, and experiences in 2004 and in 2010.  But it is the court  



              

today - an appellate court - which is finding "marked differences" between Stephen's  



                                                                                                          

circumstances in 2004 and 2010.  It is not the trial court - which saw the witnesses and  



                                 

heard the evidence - nor is it Stephen's father or daughter.  The trial court relied on the  



                         

similarity of the situation in 2010 to that in 2004.  Stephen's father characterized his son  



                                                                    

as behaving in "precisely the same fashion" as he had previously.  Stephen's daughter's  



actions were characterized this way by the court in her comments to Stephen:  



                                

                   But for . . . a child that remembers . . . when you had this  

                   previous psych[ot]ic break and she almost lost her father to  

                                                                                     

                   the event that you described on the stand in a way that was  

                                                                                            

                   sort of chilling.  Where whatever drove you to do it, you . . .  

                   took action that could have easily led to your death.  



                             Well, I don't blame a little 12-year-old girl for being  

                   real worried.  



                                                 

In short, in making its "marked differences" finding, this court simply re-weighs the  



              5 

evidence,  choosing to ignore evidence such as the testimony from Stephen's father that 



          5        The court also seizes on Dr. Pappenheim's statement that his conclusions  



about Stephen's condition hearing voices had "a bit of a speculative component to it,"  

and then proceeds to refer to the doctor's "speculative conclusions."  In fairness to the  

                                                                                                     

psychiatrist, I set out the entire exchange here:  



                   Q:        [by Stephen's lawyer] [Is there] anything to indicate  

                                                                                           

                   that he's been hearing the voice of Lucifer?  



                   A:        Well, that's an interesting question.  His father tells me  

                   that five years ago he was reporting he was hearing the voice  

                                                          

                   of  Jesus.    When  I  specifically  queried  [Stephen  O.]  about  

                                                                                                          (continued...)  



                                                            -32-                                                      6857
  


----------------------- Page 33-----------------------

                                                                                          

Stephen was behaving "in precisely the same fashion" as his previous psychotic break,  



                                                                                                   

and Dr. Pappenheim's testimony that "past patterns of behavior are really the only good  



predictors of future behavior."  



                    (3)	     Evidence of Stephen's bipolar disorder  



                    The  evidence  of  Stephen's  bipolar  disorder  is  clearly  relevant  to  the  



                                                                                              

superior court's ultimate determination. The superior court did not misuse or overstate  



this evidence.  That courts should proceed with caution in this area, that evidence of  



            

mental illness alone is insufficient for hospitalization, and that treatment might be in a  



                                                                                             

person's best interest but is also insufficient for hospitalization are nowhere challenged  



by the superior court's action.  The majority's third reason for finding clear error is no  



reason at all to reverse the trial court.  



                    (4)	     Stephen's non-objection to mental health help  



                                                                                               

                    The court next notes that "Stephen did not express any general objections  



                                                                              

to  'mental  health  help,'  but  only  to  psychotropic  medication."    The  basis  for  this  



          5	        (...continued)
  



                    that, he said, no it was the voice of Lucifer.  Now, he was
  

                            

                    hearing a voice.  And at some point, it was, according to his
  

                                                                 

                    father, the voice [of] Jesus.  At some point it turned to the
  

                    voice of Lucifer.  And I'm certainly concerned that what he's
  

                                                     

                    hearing now will not stay as it has been, and may change.
  



                    Q:	      But that's just speculation, correct?  



                    A:       Well, I think it's a little bit more than speculation.  But  

                    there's a speculative component to it, yes.  



In the context of these questions and answers, the characterization of Dr. Pappenheim's  

                                                                                                  

testimony as self-admitted "speculative conclusions" is inaccurate.  More, it suggests that  

we will require of testifying psychiatrists a type of prescience about the likelihood of a  

future disaster that would ill serve the interests of both the mentally ill and all Alaskans.  

                             



                                                             -33-	                                                      6857
  


----------------------- Page 34-----------------------

                                   

statement is unclear.  Stephen objected to both hospitalization and forced medication.  



                                                                                                       

He nowhere expressed a general "willingness to get treatment if the court so ordered it,"  



                                                                                                                   

as the court claims.  All he said, as reported by the visitor, was that  he  objected to  



                                     

medication but that "if the court ordered him to take medication he would not harm  



                                                                                                                    

people and would take an injection."   If this is what the court relies on to support its  



                                                                                                                  

argument regarding "Stephen's willingness to get treatment," it is a slim reed indeed.  



Stephen not only objected in the superior court to the administration of medication (and  



                                                                                                                     

won), he believed that he was not mentally ill and objected to any treatment for  mental  



illness, and he appealed the superior court's adverse decision on that issue.  



                    The court then compares the facts of this case to those of In re Jeffrey E. ,  



where  we  upheld  a  commitment.    I  agree  that  Jeffrey  E.  is  a  stronger  case  for  



commitment,  but  that  in  no  way  means  that  the  superior  court  erred  in  committing  



                       

Stephen.  And the court misses the holding of Jeffrey E. :  Alaska Statute 47.30.915(7)(B)  



                                                                                                               

is forward-looking in nature and calls upon the superior court to consider the probability  



that a person suffering from mental illness will deteriorate and harm himself.  Here, the  



          

court gave great weight to the similarity of Stephen's actions in the previous case (when  



                                                                               

he  harmed  himself)  and  the  present  case,  and  it  gave  great  weight  to  the  expert's  



                                               

testimony that past patterns of behavior are the only good predictors of future behavior.  



                    Finally, on the relationship between Stephen's religious beliefs and the  



                                                       

superior court's findings, the court both mischaracterizes Dr. Pappenheim's testimony  



                                                   

and mistates the superior court's treatment of the issue.  The court says Dr. Pappenheim  



                                                                                              

testified that Stephen's beliefs were irrational and delusional "principally because they  



                                                                                                                   

did not 'come from a cultural, historical context' but rather 'came out of the blue.' "  But  



what Dr. Pappenheim said was this:  



                                                                                                    

                    Now, if somebody had a religious belief that they grew up  

                                                                        

                    with that was part of their culture, that is considered a rational  



                                                               -34-                                                         6857
  


----------------------- Page 35-----------------------

                    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.  



(Emphasis  added.)  While  Dr.  Pappenheim  emphasized  the  recency  of  Stephen's  

                                                                                                            



religiosity,  he  appears  to  have  relied  at  least  as  much  on  the  notion  that  the  voices  



directed Stephen to throw himself off a building.  With regard to the superior court, the  

                                                                         



majority suggests that the superior court was unduly concerned with Stephen's religious  



background.  But the record shows that both parties had adduced substantial evidence  



on the subject and that Judge Collins merely made careful findings about it.  



                    Conclusion  



                                                                             

                    This was a difficult case.  A troubled young man, suffering from mental  



                                                                                                    

illness, had a few years previously responded to voices directing him to leap from a  



                                                                            

building, seriously injuring himself.  Again he was hearing voices.  His worried family  



                                                                                             

sought to obtain his hospitalization for his benefit and reported that he was behaving "in  



precisely  the  same  fashion"  now  as  he  had  in  his  previous  psychotic  episode.    An  



                                                                              

experienced trial judge, after hearing from the patient and a psychiatrist who reported the  



                                                                                                           

family's concerns, found facts sufficient to support the determination that the patient was  



gravely disabled.  Today's majority reverses that finding by re-weighing the evidence  



                                                                                    

and substituting its judgment for the trial court's and by requiring a predictive capacity  



that no expert will be able to satisfy.  Because I believe that the trial court did not clearly  



err, I respectfully dissent.  



                                                             -35-                                                       6857
  

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