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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In Re Darren M. (9/14/2018) sp-7298

In Re Darren M. (9/14/2018) sp-7298

           Notice:   This opinion is subject to correction before publication in the P                      ACIFIC  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@akcourts.us.  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                         



In  the  Matter  of  the  Necessity                                    )  

for  the  Hospitalization  of                                          )     Supreme  Court  No.  S-16524  

                                                                       )  

                   

DARREN M.                                                                                                                                

                                                                       )     Superior Court No. 3AN-16-02059 PR  

                                                                       )  

                                                                                                  

                                                                       )     O P I N I O N  

                                                                       )  

                                                                                                                          

                                                                       )     No. 7298 - September 14, 2018  

                                                                       )  



                                                                                                            

                      Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  

                                                                                                               

                      Third Judicial District, Anchorage, Erin B. Marston, Judge.  



                                                                                                         

                      Appearances: Laurence Blakely, Assistant Public Defender,  

                                                                                                                   

                      and  Quinlan  Steiner,  Public  Defender,  Anchorage,  for  

                                                                                                           

                      Appellant Darren M.  Kathryn R. Vogel, Assistant Attorney  

                                                                                                         

                      General,   Anchorage,   and   Jahna   Lindemuth,   Attorney  

                                                                                       

                      General, Juneau, for Appellee State of Alaska.  



                                                                                                             

                      Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,  

                                            

                      and Carney, Justices.  



                                                      

                      STOWERS, Chief Justice.  



I.         INTRODUCTION  



                                                                                                                                       

                      After an involuntary commitment trial, the superior court issued an order  



                                                                                                                                         

committing the respondent to the Alaska Psychiatric Institute (API) for 90 days.  The  



                                                                                                                               

respondent appeals, arguing that the jury was incorrectly instructed on the unanimity  



                                                                                                                                       

requirement relating to a finding of grave disability.  He also argues that the court erred  



                                                                                                                                

in finding there was sufficient evidence that his condition would improve with treatment  


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

to support an involuntary commitment order.                                                                              On the second issue, his appeal raises                                                  



questions regarding the applicable legal standard. We conclude that any error in the jury                                                                                                                             



instructions was invited error, that the superior court applied the correct legal standard                                                                                                                



regarding respondent's chance of improvement, and that the court's finding on that issue                                                                                                                            



is supported by the record and not clearly erroneous.                                                                                         We affirm the superior court's                                  



commitment order.   



II.              FACTS AND PROCEEDINGS                  



                                                                                                                      1  

                                   In August 2016, after Darren M.                                                                                                                                                         

                                                                                                                         removed the screen from the window of  



                                                                                                                                                                                                                           

his third-floor apartment, he told his niece that he intended to jump. The niece called an  



                                                                                                                                                                                                                          

ambulance,  which  transported  Darren  to  the  psychiatric  emergency  department  at  



                                                                                                                                                                                                                            

Providence Alaska Medical Center (Providence).  Later that same day, a counselor at  



                                                                                                                                                                                                                       

Providence  filed  a  petition  for  an  order  authorizing  Darren's  hospitalization  for  



                                                                                                                                                                                                      

evaluation based on her determination that Darren, who had previously been diagnosed  



                                                                                                                                                                                                                    

with bipolar disorder, was gravely disabled and a danger to himself or others.   The  



                                                                                                                                                                                                                          

petition  alleged  that  Darren  presented  "with  loose  associations,  actively  talking  to  



                                                                                                                                                               

himself, appearing psychotic" and that he was not taking his medications.  



                                                                                                                                                                                                          

                                   The superior court granted the petition and ordered Darren to be admitted  



                                                                                                                                                                                                                 

to API for a mental health evaluation to be completed within 72 hours.   The State,  



                                                                                                                                                                                                                      

representing API, subsequently filed a petition seeking to have Darren committed to API  



                                                                                                                                                                                                             

for 30 days. After a hearing on Darren's mental condition, the court granted the petition  



                                                                                                                                                                                                                              2  

                                                                                                                                                                                                                                   

on the basis that Darren was mentally ill and likely to cause harm to himself or others. 



Near the end of the 30-day commitment period, the State filed another petition seeking  

                                                                                                                                                                                                             



                  1                We use a pseudonym for "Darren" to protect his privacy.                                                                        



                 2                 Darren has not appealed either the order authorizing hospitalization for                                                                                                             



                                                                                                    

evaluation or the 30-day commitment order.  



                                                                                                             -2-                                                                                                   7298
  


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

to extend Darren's commitment for an additional 90 days.                                                                                                     The petition alleged that                                 



Darren was mentally ill, that as a result he was both gravely disabled and likely to cause                                                                                                                         

                                                                    3 that there was reason to believe his mental condition could  

harm to himself or others,                                                                                                             

                                                                         4  and that there was no less restrictive treatment alternative  

be improved with treatment,                                                                                                                                                                           

                                                



available.  Before trial, the State withdrew the allegation that Darren presented a risk to  

                                                                                                                                                                                                                            



himself or others, proceeding solely on a theory of grave disability.  A bifurcated trial  

                                                                                                                                                                                                                       

was held in October 2016:  a six-person jury5  considered whether Darren was mentally  

                                                                                                                                                                                                           



ill and as a result gravely disabled, and a subsequent bench hearing was held on whether  

                                                                                                                                                                                                             



a less restrictive treatment alternative was available and whether there was reason to  

                                                                                                                                                                                                                            



believe Darren's mental condition could improve with treatment.  

                                                                                                                                                



                 A.                Testimony Before The Jury  

                                                                                                   



                                   At the jury portion ofthetrial, Darren's niece, daughter, and son all testified  

                                                                                                                                                                                                             



about Darren's mental condition, living situation, and recent behavior.  The jury also  

                                                                                                                                                                                                                       



heard  testimony  by  Gerald  Martone,  a  psychiatric  nurse  practitioner  and  Darren's  

                                                                                                                                                                                                         



primary care provider at API.   The court recognized Martone as an expert witness.  

                                                                                                                                                                                                            



                                   Darren's daughter testified that Darren has a history of mental illness going  

                                                                                                                                                                                                                   



                 3                 Under AS 47.30.730(a)(1), a petition for a 30-day commitment must allege                                                                                                       



that the respondent, as a result of mental illness, is gravely disabled or likely to cause                                                                                                                         

harm to himself or others. The allegation requirements for 30-day commitment petitions                                                                                                                     

are incorporated by reference in the statutes regarding petitions for 90-day and 180-day                                                                                                                    

commitment orders. See  AS 47.30.740(a); AS 47.30.770(a).                                                                                                       The court may commit a   

respondent    on    any    one    or    more    of    those    grounds.       See    AS    47.30.735(c);  

AS 47.30.755(a); AS 47.30.770(b)-(c).                    



                 4                 Under AS 47.30.730(a)(3), a commitment petition based on a theory of  

                                                                                                                                                                                                                            

grave disability must allege "that there is reason to believe that the respondent's mental  

                                                                                                                                                                                                                

condition could be improved by the course of treatment sought."  

                                                                                                                                                                           



                 5                 See AS 47.30.745(c).  

                                                        



                                                                                                             -3-                                                                                                    7298
  


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

                                                                                                                               

back to the 1980s when he was diagnosed with bipolar disorder.  Darren lived with her  



                                                                                                                      

in Oregon from approximately October 2015 until April 2016; in that time she observed  



                                                                                                                      

that Darren struggled "with bouts of mania and depression"; suffered from paranoia,  



                                                                                                                                     

delusions, "racing thoughts," and insomnia; and was "not able to hold a conversation."  



                                                                                                                            

                    In the spring of 2016, Darren moved to Alaska and lived with his niece  



                                                                                                                 

while she helped him find senior housing.   After Darren transitioned to independent  



                                                                                         

living in senior housing, it appears his condition declined further:  his niece, daughter,  



                                                                                                                              

and son all expressed concern about Darren's ability to care for his own needs.  The  



                                                                                                                      

niece testified that Darren would become forgetful when cooking and that he confused  



                                                                                                                      

his current address with one for a home where he had not lived in 15 years.  Darren's  



                                                                                                                       

daughter testified that his apartment was "a little messy" and that she found clothing  



                                                                                                                              

soiled with feces in the bathroom garbage that "smelled like it had been there for a little  



                                                                                                                    

while." His son testified that Darren stopped buying groceries when he had previously  



                                                                                                                         

gone shopping almost daily, that he "wasn't eating very  well," and  that he started  



                                                                                                                            

drinking "much more than he . . . ever normally would," to the point of scaring other  



                                                                                                                                     

residents of his apartment complex, as well as falling down and breaking his collar bone.  



                                                                                                                                

                     Their testimonywasparticularly concernedwith Darren's ability to carefor  



                                                                                                                            

his medical needs.  The daughter testified that in August 2016, Darren told her "[h]e  



                                                                                                                               

hadn't been taking his medications since spring."  She testified that Darren "did not  



                                                                                                                     

understand that you have to make appointments" to see a doctor.   On one occasion,  



                                                                                                                          

Darren had told her that he had walked into a doctor's office concerned that "his mouth  



                                

was cancerous" and demanded a biopsy; because he did not have an appointment, "he  



                                                                                                                                     

just left and didn't get screened at all and didn't make . . . an appointment for the future."  



                                                                                                                  

The niece testified that Darren believed "doing arm exercises and push ups to help  



                                                                                                                               

strengthen him" would help heal his fractured collar bone.  The niece testified that she  



                                                                -4-                                                        7298
  


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

                                                                                                                             

had  discovered  an  empty  bottle  of  heart  medication  in  Darren's  apartment;  this  



                                                                                                                               

concerned her because she had previously seen the bottle full with enough pills in the  



                                                                                                                               

bottle to "last quite a while."  Her testimony also indicated that she was not sure her  



                                                                                                                   

uncle knew what the medication was: Darren told her it was not actually his medication  



                                                                                                                             

but that he had found it on the bus and taken pills from it anyway.   The niece also  



                                                                                                                            

testified that she once found Darren with "very swollen" legs that he "didn't seem  



                                                                                                                               

concerned about" and a black eye that he was seemingly unaware of and could not  



explain.  



                                                                                                                               

                    Darren's niece testified in detail about the events of August 19, 2016, the  



                                                                                                                              

day she called the ambulance. Earlier, either that morning or the day before, Darren had  



                                                                                                                             

pulled the communal fire alarms in his buildings, apparently out of concern that they  



                                                                                    

were not working.  The niece later found Darren with his coat on inside his apartment  



                                                                                                                             

with the window open and the screen removed. When she asked why his windows were  



                                                                                                                          

open, Darren responded that "the fire alarms weren't working and that he had to jump"  



                                                                                                                           

but that he first needed to buy a candle from the store.  Concerned that Darren might  



                                                                                                                             

actually jump from the third-floor window, the niece called for an ambulance to take  



                                                                                                                            

Darren to Providence.  While the two waited for the ambulance, Darren told his niece  



                                                                                                                              

that a nearby streetlight would turn on if tapped three times with a lighter or rock and  



                                                                                        

indicated an interest in rewiring the light "to make it stay on."  



                                                                                                                               

                    Darren's sonanddaughter testifiedabout hiscondition duringhis initial 30- 



                                                                                                                              

day  commitment.               When  his  daughter  visited  him,  Darren  insisted  they  sit  at  the  



                                                                                                                              

children's table so that he could see out the front door and "see who was coming in and  



                                                                                                                                

going out," expressed concerns about keeping her safe, and wanted the police to be  



                                                                                                                                 

present during her visit.  She noticed various cuts, scrapes, and bruises on her father, as  



                                     

well as swollen ankles, and she worried he was not taking care of his congestive heart  



                                                               -5-                                                         7298
  


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

failure.   Darren did not take his medications consistently, and he told his daughter that                                                                                                    



taking his medications would "make him visible" and prevent him from protecting her                                                                                                             



and her brother.                      Darren told her that he wanted "to get a handgun as soon as he gets out                                                                                   



of API" and told his niece that "he wanted to get a gun because he didn't want his son                                                              

to know where he lived."  According to his son, Darren likened himself to Jack Ruby                                                                                                                  6  



and believed he "would be fit to be . . . [a] contract killer." The son testified that Darren  

                                                                                                                                                                                       



suffered from delusions, describing demons and "religious, spiritual things" that others  

                                                                                                                                                                                         



could not see.  The son also noticed a cut on Darren's leg that Darren said he sustained  

                                                                                                                                                                                  



when "the floor came up  and  cut him," referencing the "T-1000," a shape-shifting  

                                                                                                                                                                      



android assassin featured in the movie Terminator 2.  

                                                                                                                      



                               Martone testified that in addition to bipolar illness, Darren suffers from  

                                                                                                                                                                                            



Korsakoff syndrome, which is a form of permanent, irreversible nerve damage caused  

                                                                   



by vitamin B1 deficiency, and which is most commonly a result of chronic alcoholism.  

                                                                                                                                                                                                         



He testified that Korsakoff syndrome causes brain function to deteriorate, resulting in  

                                                                                                                                                                                                  



confusion, eye-twitching, and a tendency to "confabulate" - inventing information to  

                                                                                                                                                                                                   



fill in for knowledge deficits - all of which were symptoms he saw in Darren.  Bipolar  

                                                                                                                                                                                      



illness, by contrast, is a mood disorder that involves "cycling between extremes of  

                                                                                                                                                                                                  



moods, both highs and lows."  Martone testified that while "people with bipolar in a  

                                                                                                                                                                            



manic state have poor judgment and decision making," bipolar illness would not cause  

                                                                                                                                                                                          



the confusion Darren was exhibiting.  

                                                             



                               Regarding Darren's ability to function outside a controlled environment,  

                                                                                                                                                                        



               6               Jack Ruby was the Dallas, Texas nightclub owner who fatally shot Lee                                                                                           



HarveyOswaldwhileOswaldwas                                                   in policecustodychargedwith                                          assassinating President  

John F. Kennedy.                             Amy Tikkanen                        , Jack Ruby                 , E   NCYC . B            RITANNICA   (Jan. 18, 2018),                     

https://www.britannica.com/biography/Jack-Ruby.  



                                                                                                -6-                                                                                        7298
  


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

                                                                                                                          

Martone testified that Darren's "reality decision making [was] impaired," that Darren  



                                                                                                                               

"[did] not know the consequences of his action[s]," that "he [did] not have insight into  



                                                                                                                               

his illness," and that he was unable to communicate coherently.  Martone explained that  



                                                                                                                                

a "KELS test" - an "evaluation of living skills" - was given to Darren at API, and the  



                                                                                                                            

test indicated that Darren "would need assistance to perform his activities of daily living  



                                                                                                                    

independently." Martone also testified that Darren would not "be safe in the community  



                                                                                                                             

if  he  were  to  be  released  [at  the  time  of  trial]"  because  "his  judgment  [was]  very  



                                                                                                                         

impaired,"he"ha[d]troubleforming newmemories,"and hewould"get[]easily angered  



                                                                                                                                

and irritated."  By contrast, Martone testified that API would be a "very safe place" for  



                                                                                                                               

Darren.   Finally, Martone corroborated the daughter's testimony that Darren did not  



                                                                        

always take his medication, against Martone's advice.  



                                                                                                                

                    Darren did not testify and did not call any witnesses on his behalf.  



                                                                                     

          B.        The Jury Instructions And The Jury's Findings  



                                                                                                                                

                    After the close of evidence, the superior court instructed the jury on the  



                                                                                                                                 

findings it was required to make.   Instruction 12 told the jury:   "[Darren] should be  



                                                                                                                               

involuntarily committed for treatment at Alaska Psychiatric Institute only if you find that  



                                                                                                                                  

the [S]tate has proved by clear and convincing evidence that [he] is mentally ill and as  



                                                                                                             

a result is gravely disabled."  Instruction 14 defined the term "gravely disabled":  



                                                                                                     

                               Gravely disabled means a condition in which a person,  

                                                     

                    as a result of mental illness:  



                                                                                                          

                               (1)       is in danger of physical harm arising from such  

                                                                                                             

                    complete neglect of basic needs for food, clothing, shelter or  

                                                                                                        

                    personal safety as to render serious accident, illness or death  

                                                                                              

                    highly probable if care by another is not taken; or  



                                                                                                        

                               (2)       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  



                                                                -7-                                                         7298
  


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

behavior causing a substantial deterioration of the person's previous ability to function                                                                                                  

independently.   This distress refers to a level of incapacity that prevents the person in                                                                                                                

                                                                                                                                                                                    [  ]  

question from being able to live safely outside of a controlled environment.                                                                                                         7 



Instruction 22 informed the jury about the unanimity requirement:  

                                                                                                                                                                



                                To  reach  a  verdict  in  this  case,  five  of  you  must  be  in  

                                                                                                                                                                         

                                agreement as to each answer you give on the special verdict  

                                                                                                                                                               

                                form.             The  same  five  jurors  need  not  agree  as  to  every  

                                                                                                                                                                 

                                answer, as long as any combination of five jurors agrees to  

                                                                                                                                                                          

                                each answer on the special verdict form.  

                                                                                                                    



The special verdict form given to the jury asked two questions: whether the State had  

                                                                                                                                                                                                      



proved by clear and convincing evidence that Darren was mentally ill, and whether the  

                                                                                                                                                                                                                 



State had proved by the same standard that Darren was gravely disabled as a result.  

                                                                                                                                                                                        



                                While Darren's  attorney  made some pre-trial objections to  the  State's  

                                                                                                                                                                                              



proposed grave disability instruction, the instructions used by the court on the issues of  

                                                                                                                                                                                                          



grave disability and jury unanimity, as well as the special verdict form, were all either  

                                                                                                                         



identical or nearly identical to the instructions and verdict form Darren's attorney had  

                                                                                                                                                                                                      



proposed.   At trial, neither party made further objections regarding the substance of  

                                                                                                                                                                                                         

either the jury instructions or the verdict form.8  

                                                                                                  



                                The jury returned a verdict finding that the State had proved by clear and  

                                                                                                                                                                                                      



convincing evidence that Darren was both mentally ill and as a result gravely disabled.  

                                                                                                                                                                                                                 



                7               Apart from the final sentence of subdivision (2), this definition mirrors                                                                                    



verbatimthestatutory                                definitionof"gravelydisabled"provided                                                            inAS47.30.915(9). The                            

final sentence reflects our decision in                                                       Wetherhorn v. Alaska Psychiatric Institute                                                               , in   

which we held that the second part of the statutory definition was constitutional only "if                                                                                                               

construed to require a level of incapacity so substantial that the respondent is incapable                                                                                              

of surviving safely in freedom."                                               156 P.3d 371, 384 (Alaska 2007).                                   



                8               The parties did ask for a correction to a clerical error in the jury unanimity  

                                                                                                                                                                                       

instruction, which the court granted.  

                                                                    



                                                                                                    -8-                                                                                            7298
  


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

                                                                       

          C.        Post-Trial Hearing And Court Order  



                                                                                                                               

                    The day after the jury verdict, the court held an evidentiary hearing on the  



                                                                                                          

two remaining issues:  whether there was reason to believe Darren's mental condition  



                                                                                                                               

could be improved by treatment and whether involuntary commitment at API was the  



                                                                                                                          

least restrictive treatment alternative.   The State again called  Martone as an expert  



                                                                  

witness.  Darren did not testify or call any witnesses.  



                                                                                                                   

                    Martone's testimony was  primarily focused on the issue of improving  



                                                                                                                             

Darren's  condition.              In  his  testimony  before  the  jury,  Martone  had  testified  that  



                                                                                                                         

Korsakoff syndrome is a "permanent, irreversible" condition and that Darren's bipolar  



                                                                                                                              

illness is a "lifelong diagnosis." At the bench hearing, Martone nonetheless testified that  



                                                                                                                              

with treatment, Darren's Korsakoff symptoms had already "improved slightly" and that  



                                                                                                                            

he would "expect a slight more improvement." Specifically, Martone testified that daily  



                                                                                                                              

doses of vitamin B1 had caused a slight improvement in Darren's eye twitching and that  



                                                                                                                                     

further improvement, including to Darren's "thinking or perceptions," couldbepossible.  



                                                                                                                          

He testified that "in 25 percent of cases, you can have a slight improvement if you're  



                                                                                                                         

consistently getting vitamin B1 every day," although he could not say whether Darren  



                                                                                                                                

would be in that group.  Martone testified that some of Darren's other symptoms -  



                                                                                                                         

specifically, his agitation, frustration, delusions, and paranoia - as well as his bipolar  



                                                                                                                              

illness,  could  be  treated  with  the  antipsychotic  drug  Haldol  (a  brand  name  for  



                                                                                                                        

haloperidol), though they would likely not be completely relieved. Martonealso testified  



                                                                                                                                     

that Darren was already showing signs of improvement from treatment with Haldol.  



                                                                                                                       

With respect to Darren's confusion, however, Martone testified that it was a result of  



                                                                                                           

Korsakoff syndrome and therefore he would "only expect . . . a slight improvement."  



                                                                                                                              

                    On the issue of less restrictive treatment alternatives, Martone testified that  



                                                                                                                                 

Darren was not "showing insight into his mental illness," that Darren had refused to  



                                                               -9-                                                         7298
  


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

                                                                                                                              

discuss the  idea  of  working with an outpatient provider, and that Darren was "too  



                                                                                                                                 

agitated and disorganized" to work with an outpatient provider if he were ordered to do  



                                                                                                                                 

so. However, Martone believed it would be possible for Darren to improve to such an  



                                                                                                                            

extent that he might at some point be able to work with an outpatient provider. On cross- 



                                                                                                                              

examination, Martone repeated many of the same points, and testified that API's goal  



                                                                                                                           

was not to keep Darren long term but to "hold him and try to treat him until [they could]  



                                                                                              

find a suitable place for him . . . to live . . . with a little more freedom[]."  



                                                                                                                          

                    In closing, the State asked the court to find "that there's reason to believe  



                                                                                                                             

that  the  respondent's  mental  condition  could  be  improved  by  treatment"  and  "that  



                                                                                                                               

commitment is the least-restrictive alternative." Darren argued that the State had not met  



                                                                                                                                      

its burden to prove either  of these requirements by clear and convincing evidence.  



                                                                                                                        

Specifically, Darren argued the State's showing was insufficient because, as Martone  



                                                                                                                              

testified, Darren's Korsakoff syndrome could not be cured, and because there was only  



                                                                                                                               

a 25 percent chance of even a slight improvement, with no indication that Darren was  



                                                                                                                            

within those 25 percent. The State argued in rebuttal that Martone had testified to actual  



                                                                                                                               

and expected improvement in other symptoms, such as Darren's paranoia, agitation, and  



                                                                                                               

delusions, and asserted that the law requires only "an improvement in the [respondent's]  



                                                                                                                                 

mental condition" viewed broadly, and that the State need show only a likelihood of  



                                                                                                                    

improvement, not of "great improvement."  Darren's attorney added as a concluding  



                                                                                                                 

remark that she believed it to be "a very dangerous thing to think that slight improvement  



            

would qualify."  



                                                                                                                              

                    The superior court expressed frustration with the case on two points: first,  



                                                                                                                                  

API expected only "slight improvement" in Darren's condition whereas "the amount of  



                                                                                                                    

liberty  that's  being  taken  away  is  great";  second,  because  there  are  no  alternative  



                                                                                                                               

facilities available in Anchorage, the only options were that "someone is locked up and  



                                                               -10-                                                         7298
  


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

 treated or they're let go in the streets and there's no treatment."                                                                                                     Even so, the court held                            



 that the State met its burden to prove by clear and convincing evidence that "treatment                                                                                                                   



 could improve [Darren]" and that "there is not . . . presently a less-restrictive treatment                                                                                                                  



 [alternative]."  



                                    Based on the findings from the jury trial and the bench hearing, the court                                                                          



 issued an order committing Darren to API for 90 days.                                                                                              Darren appeals.   



 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                                                                                                                          



                                                                                    9  

 precedent, reason, andpolicy.'                                                  "                                                                                                                    

                                                                                        Wereviewfactualfindings ininvoluntarycommitment  



 proceedings for clear error, and "we reverse only if our review of the record leaves us  



                                                                                                                                                                                  10  

                                                                                                                                                               

 with a definite and firm conviction that a mistake has been made." 



                                                                                                                                                                                                                    

                                    "Invited error 'occurs when the court takes erroneous action at the express  



                                                                                                                                                                                                                                   11  

                                                                                                                                                                                                                                         

 request of [a party], and then [that party] urges reversal on that basis on appeal.' " 



                                                                                                                                                                                                                                

 When an alleged error is invited, we examine that error to see whether there is an  



                                                                                                                                                                                                                              

 "exceptional  situation"  making  reversal  "necessary  to  preserve  the  integrity  of  the  



                                                                                                                                                  12  

                                                                                                                             

judicial process or to prevent a miscarriage of justice." 



                  9                  Wetherhorn, 156 P.3d at 375 (footnotes omitted) (quoting                                                                                                Guin v. Ha                   , 591   



 P.2d 1281, 1284 n.6 (Alaska 1979)).                                           



                   10               Id.  



                   11               Roderer  v.  Dash,  233  P.3d  1101,  1114  (Alaska  2010)  (alterations  in  

                                                                                                                                                                                                                                 

 original) (quoting Barrett v. State, 772 P.2d 559, 568 n.10 (Alaska App.1989)).  

                                                                                                                                                                                    



                   12               Id. (quoting Parson v. State, Dep't of Revenue, Alaska Hous. Fin. Corp.,  

                                                                      

 189 P.3d 1032, 1038 (Alaska 2008)).  

                                                                                 



                                                                                                               -11-                                                                                                       7298
  


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

                          "We apply our independent judgment in determining mootness because, as                                                                    

a matter of judicial policy, mootness is a question of law."                                                     13  



IV.          ANALYSIS  



                                                                                                                                                                         

                          Darren challenges the superior court's commitment order on two grounds.  



                                                                                                                                                      

He argues that the court erred (1) in how it instructed the jury on the grave disability  



                                                                                                                                                            

issue and (2) in finding that there was sufficient evidence that Darren's condition would  



                                                                                                                                               

improve with treatment.  For the reasons discussed below, we affirm the commitment  

order.14  



                                                                                                                                                         

             A.           Any Error In The Challenged Jury Instructions Was Invited Error.  



                                                                                                                                                                     

                          Under AS 09.20.100, "not less than five-sixths of the jury may render a  



                                                                                                                                                                   

verdict, which is entitled to the legal effect of a unanimous verdict at common law."  At  



                                                                                                                                                        

the conclusion of the jury trial, the jury was asked on the special verdict form whether  



                                                                                                                                                      

the  State  had  shown,  by  clear  and  convincing  evidence,  that  Darren  was  "gravely  



                                                                                                                                                     

disabled" as a result of mental illness. The jury returned a special verdict formindicating  



                                                                                                                                                       

that at least five of six jurors believed the State had done so. However, both the statutory  



                                                                  15  

                                                                                                                                                               

definition  of  "gravely  disabled"                                    and  the  one  provided  to  the  jury  contain  two  



             13           Long v. Arnold, 386 P.3d 1217, 1223 n.19 (Alaska 2016) (quoting                                                                   Akpik  



v.  State, Office of Mgmt. & Budget                                , 115 P.3d 532, 534 (Alaska 2005)).                     



             14           The State contends that Darren's appeal is moot because the commitment  

                                                                                                                                                

order has already expired and Darren has already been released from API. However, the  

                                                                                                                                                                  

State  suggests  that  this  court  "may  wish  to  hear  his  appeal  on  the  merits  under  a  

                                                                                                                                                                     

mootness exception" - specifically, the public interest exception.  See In re Tracy C.,  

                                                                                                                                                                  

249 P.3d 1085, 1089-90 (Alaska 2011).  Darren appears to concede that his appeal is  

                                                                                                                                                                     

technically moot, but he argues that the public interest exception applies and that we  

                                                                                                                                                                  

should hear the case on its merits.  We agree and will consider this appeal.  

                                                                                                                                   



             15           AS 47.30.915(9).  

                                  



                                                                                -12-                                                                          7298
  


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

 subdivisions, allowing the jury to conclude that Darren was gravely disabled either                                                                                                                                                                                                                                                                                 



 because he was in danger of physical harm arising from neglect of his basic needs or                                                                                                                                                                                                                                                                                                 



 because   severe   and   abnormal   distress   associated   with   significant   impairment   of  



judgment,  reason,   or   behavior   rendered   him   incapable   of   living   safely   outside   a  



 controlled environment. Darren argues that it was legal error for the court not to instruct                                                                                                                                                                                                                                                                   



 the jury that it had to agree on a specific part of the definition as the basis for its verdict.                                                                                                                                                                                                                                                                                                   



                                                            Darren did not raise this issue before the trial court: he did not object to the                                                                                                                                                                                                                                       



 court's jury instruction and did not request a jury instruction that would require the jury                                                                                                                                                                                                                                                                                  



 to agree on a specific basis for a finding of grave disability.                                                                                                                                                                                                     On the contrary, the court's                                                                



jury   instructions   defining  "gravely   disabled"   and   explaining   the   jury   unanimity  



 requirement, as well as the special verdict questions, are effectively identical to those                                                                                                                                                                                                                                                                             



 Darren himself requested.                                            



                                                            It is clearly established under Alaska law that a party cannot complain of                                                                                                                                                                                                                                                



 errors in jury instructions after that party requested, approved, or advocated for the                                                                                                                                                                                                                                                                                          



 disputed instructions at trial.                                                                                                      For example, in                                                              Power Constructors, Inc. v. Taylor &                                                                                                                               



 Hintze, we held that the plaintiff's claimof error was waived when the plaintiff expressly                                                                                                                                                                                                                                                           

                                                                                                                                                                                                                               16  This principle derives from Alaska  

 endorsed the instructions that were read to the jury.                                                                                                                                                                                                                                                                                                           



 Civil Rule 51(a), which provides that "[n]o party may assign as error the giving or the  

                                                                                                                                                                                                                                                                                                                                                                                  



 failure to give an instruction unless the party objects thereto before the jury retires to  

                                                                                                                                                                                                                                                                                                                                                                                      



 consider its verdict, stating distinctly the matter to which the party objects and the  

                                                                                                                                                                                                                                                                                                                                                                                 



 grounds of the objection."  

                                                                   



                               16                           960 P.2d 20, 34 (Alaska 1998);                                                                                                           see also Aviation Assocs., Ltd. v. TEMSCO                                                                                                       



 Helicopters, Inc.                                                         ,881P.2d                                   1127, 1131-32 (Alaska1994);                                                                                                          BenLomond,Inc. v. Campbell                                                                                                         ,  

 691 P.2d 1042, 1048 (Alaska 1984);                                                                                                                            Saxton v. Harris                                                        , 395 P.2d 71, 72-73 (Alaska 1964).                                                                                          



                                                                                                                                                                                        -13-                                                                                                                                                                               7298
  


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

                     When   a   party   on   appeal   urges   reversal   on   the   basis   of   an  allegedly  



erroneous  action  taken  by  the  court  at  the  express  request  of  that  party,  the  error  -  if  any  



                              17  

-  is  invited  error.            "When  an  error  is  invited,  an  appellate  court  examines  the  error  to  



see   if   there   is   an   'exceptional   situation'   where   reversal   is   necessary   to   preserve   the  



                                                                                                              18  

integrity  of  the  judicial  process  or  to  prevent  a  miscarriage  of  justice."                             The  facts  of  this  



case   do   not come  near   this   level.    Darren   concedes   that   "API's   case   supported  both  



theories  of  grave  disability,"  and  he  has  not  articulated  -  beyond  merely  conclusory  



statements  -  how  the  alleged  error  was  prejudicial.   We  hold  that  any  error  in  the  jury  



instructions  was  invited  error  and  that  Darren  waived  any  challenge  to  the  instructions  

given  to  the  jury  on  the  issue  of  grave  disability  when  he  himself  requested  them.19  



           B.	        There  Was  No  Error  In  The  Court's  Chance-Of-Improvement  

                                                                                               

                                  

                     Finding.  



                     Darren next argues that "the trial court erred in concluding that Darren's  

                                                                                                                             



condition  would  improve  with  commitment  and  treatment."                                          Darren's  argument  is  

                                                                                                                                        



primarily a sufficiency of the evidence argument, that the evidence "does not support a  

                                                                                                                                          



finding that  treatment  will  improve  his  condition."                                But  Darren  also  raises  a  legal  

                                                                                                                                   



argument regarding the standard of what the State must prove - must the State prove  

                                                           



that treatment "will" improve the respondent's condition, or that treatment "could"  

                                                                                                              



improve  respondent's  condition?                          We  will  first  clarify  the  legal  standard  before  

                                                                                                                                             



           17	       See Roderer         , 233 P.3d at 1114.         



           18        Id. (quoting Parson v. State, Dep't of Revenue, Alaska Hous. Fin. Corp.,  

                                          

 189 P.3d 1032, 1038 (Alaska 2008)).  

                                                 



           19         Our statement should not be read as implying that the superior court's jury  

                                                                                                                                     

instruction was actually erroneous. We do not reach that issue because the alleged error  

                                                                                                                                    

was invited.  

        



                                                                  -14-	                                                            7298
  


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

addressing whether the evidence meets that standard.                                                                                                                                                     



                                                              1.	                           The court applied the correct legal standard to the chance-of-                                                                                                                                                                                             

                                                                                            improvement issue.   



                                                             Thesuperior court "determined by clearand convincing                                                                                                                                                                                                     evidencethat                                                 there  



is reason to believe that [Darren's] mental condition could be improved by treatment."                                                                                                                                                                                                                                                                                                                       



Darren argues that the court applied the wrong standard, and that Darren could be                                                                                                                                                                                                                                                                                                             



"committed for grave disability only upon a finding that treatment                                                                                                                                                                                                                                                    will  improve [his]   



condition."    (Emphasis added.)                                                                                                                    The State contends that Darren mischaracterizes the                                                                                                                                                                                     



applicable standard and that the evidence presented "amply satisfie[d] the statutory                                                                                                                                                                                                                                                                             



requirement that there be reason to believe Darren's condition could improve."                                                                                                                                                                                                                                             



                                                             The question whether a respondent's mental condition is likely to improve                                                                                                                                                                                                                               



with treatment derives from Alaska's involuntary commitment statutes, as revised in                                                                                                                                                                                                                                                                                                              



 1981.  As expressed in AS 47.30.655(6), one of the principles underlying the revision                                                                                                                                                                                                                                                              



was "that persons who are mentally ill but not dangerous to others be committed only if                                                                                                                                                                                                                                                                                                             



there is a reasonable expectation of improving their mental condition."                                                                                                                                                                                                                                                          Pursuant to that                                         



principle, a petition for involuntary commitment "must . . . allege with respect to a                                                                                                                                                                                                                                                                                                               



gravely disabled respondent that there is reason to believe that the respondent's mental                                                                                                                                                                                                                                                                                   



                                                                                                                                                                                                                                                                                                                         20  

condition   could  be   improved   by   the course of treatment sought."                                                                                                                                                                                                                                                                                                                  

                                                                                                                                                                                                                                                                                                                                         Curiously,  the  



                                                                                                                                                                                                                                                                                                                                   

legislature did not include an explicit requirement that the State make a corresponding  



                                                                                                                                                                                                                                                                                                                                                                                       

 showing, and the commitment statutes do not mention the question of improvement with  



                                                                            

treatment again.  



                                                                                                                                                                                                                                                                                                                                                                                                 

                                                             If read literally, the statutes require the petitioner to allege a possibility of  



                               20                            AS   47.30.730(a)(3)   (requiring   this   allegation   in   a   petition   for   30-day  



commitment);  see  AS47.30.740(a) (incorporatingthesamerequirementin                                                                                                                                                                                                                                                                         theprocedure   

for seeking a 90-day commitment); AS 47.30.770 (incorporating the same requirement                                                                                                                                                                                                                                                                 

for 180-day commitment petitions).                                                                                  



                                                                                                                                                                                             -15-	                                                                                                                                                                                   7298
  


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

improvement but allow the court to commit the respondent without having to make any                                                                                                               



finding on that topic, as long as the court "finds, by clear and convincing evidence, that                                                                                                       



the respondent is mentally ill and as a result is likely to cause harm to the respondent or                                                                                                          

                                                                             21       Of  course,  this  literal  reading  of  the  statutory  

others,   or   is   gravely   disabled."                                                                                                                                            



requirements would run directly  contrary to the underlying legislative statement of  

                                                                                                                                                                                                    



purpose "that persons who are mentally ill but not dangerous to others be committed only  

                                                                                                                                                                                                

if there is a reasonable expectation of improving their mental condition."22  

                                                                                                                                                



                               We  have  addressed  this  issue  only  once  before.                                                                          In  E.P.  v.  Alaska  

                                                                                                                                                                                         



Psychiatric Institute  we were asked  whether the State has to prove a likelihood of  

                                                                                                                                                                                                    

improvement when it seeks to commit a person who poses a danger to himself.23   Based  

                                                                                                                                                                                            



on the language of AS 47.30.655(6), E.P. argued that a finding of likely improvement  

                                                                                                                                   



is required in all cases where the respondent does not pose a harm to others - that is,  

                                                                                                                                                                                   



both in cases where the respondent is gravely disabled and in cases where he is likely to  

                                                                                                                                                                                                      

                                                             24          We   concluded   that   the   statement   of   purpose   in  

cause   harm   to   himself.                                                                                                                                                                                

                                        



AS47.30.655(6) conflictswith thesubstantivestatutesregarding therequired allegations  

                                                                                                                                                                                 

and that the substantive statutes control.25                                                              Because the substantive statutes require  

                                                                                                                                                                                         



alleging  a  possibility  of  improvement  only  "with  respect  to  a  gravely  disabled  

                                                                                                                                                                                     



                21             AS47.30.735(c)(requiring this finding                                                     for30-day commitmentorders);                                             see  



AS 47.30.755(a) (incorporating the same for 90-day commitments); AS 47.30.770(b)                                                                                            

(incorporating the same for 180-day commitments).                                     



                22             AS 47.30.655(6).  

                                         



                23             205 P.3d 1101, 1108 (Alaska 2009).  

                                                                                                     



                24             Id.  



                25             Id.  



                                                                                                -16-                                                                                          7298
  


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

respondent," we held that "the state is not required to show a likelihood that, in the case                                                               



of a mentally ill person who poses a danger to himself, treatment will improve his                                                                          

condition."26  



                                                                                                                                                              

                         Underlying  our  decision  in  E.P.  was  the  assumption  that  the  State  is  



                                                                                                                                                  

required  to  show an  expectation  of improvement in  the case of a gravely  disabled  

              27    But in that case we directly addressed only the question whether such a  

person.                                                                                                                                                        



requirement also applies to proceedings based on a theory of self-harm, and we declined  

                                                                                                                                                  

to extend the requirement to that context.28                                     We now clarify that the assumption in E.P.  

                                                                                                                                                          



was correct. It would be absurd to interpret the commitment statutes to require the State  

                                                                                                                                                         



to allege a fact that has no further relevance to the subsequent proceedings.  It is also  

                                                                                                                                                          



clear that the State, API, and the Public Defender Agency have all been operating under  

                                                                                                                                                        



the assumption that this finding is required in the grave disability context, at least since  

                                                                                                                                                        



2009 when E.P. was decided; we see no reason to change this, particularly since neither  

                                                                                                                                                     



party has asked us to.  We therefore hold that when the State seeks to commit a mentally  

                                                                                                                                                 



ill person on a theory of grave disability, it must prove a reasonable expectation of  

                                                                                                                                                              



improvement with treatment.  

                                    



                         We also hold that this showing must be made by clear and convincing  

                                                                                                                                             



evidence.  In In re Stephen O. we explained that the "clear and convincing" standard  

                                                                                                                                                  



applies to all findingsrelevant to involuntary commitment "to impress the factfinder with  

                                                                                                                                                          



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

                                                                                                                                                          



            26           Id.  



            27           See id.      at 1109.   



            28  

                                    

                         Id. at 1108-09.  



                                                                             -17-                                                                       7298
  


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

                                                                                                 29  

inappropriatecommitments will beordered."                                                             Although  InreStephen O.                                onlyexpressly   



addressed the burden of proof for the findings required by statute, the same underlying                                                                               



policy is applicable to all required findings in involuntary commitment cases "because                                                                                    



of the great 'importance of the liberty right involved' and the 'massive curtailment of                                                                        

liberty' that such commitments entail."                                               30  



                             The question, then, is to what level of certainty the State is required to show  

                                                                                                                                                                                   



a possibility of improvement with treatment. Again, the only relevant precedent is E.P.,  

                                                                                                                                                                                    



in which we assumed what we have now concluded - that a person can be committed  

                                                                                                                                                                       



for  grave  disability  only  upon  a  showing  of  possible  improvement  with  treatment.  

                                                                                                                                                                                                



However, E.P. does not provide a clear answer to the question of what, exactly, the State  

                                                                                                                                                                                    



must show.  In a section heading, we stated in E.P. that "A Person Can Be Committed  

                                                                                                                  



for Grave Disability Only upon a Finding that Treatment  Will Improve the Person's  

                                                                                                                                                                           

Condition."31                   This is the formulation Darren asks us to adopt, and it is the most strict  

                                                                                                                                                                                   



formulation of this requirement found anywhere in E.P.  We also used similar phrases  

                                                                                                                  

                                                                                                           32  But our opinion in E.P. also phrased  

such as "that treatment will lead to improvement."                                                                                                                           

                                                                           



the required showing as "reason to believe that the respondent's mental condition could  

                                                                                                                                                                                  



be improved by treatment," and as "a likelihood that the respondent's condition could  

                                                                                                                                                           



               29             314   P.3d  1185,  1193   (Alaska   2013)   (quoting   Wetherhorn   v.   Alaska  



Psychiatric Inst.                   , 156 P.3d 371, 377 n.26 (Alaska 2007)).                                   



               30            Id. (quoting Wetherhorn, 156 P.3d at 375-77).  

                                                                                                                 



               31            E.P., 205 P.3d at 1108 (emphasis added).  As indicated by the discussion  

                                                                                                                                                                       

above, this heading does not reflect the subsequent analysis and the holding of that case.  

                                                                                                                                                                                                

In E.P., we were not asked to address this question; rather, we assumed this requirement  

                                                                                                                                                                    

applies in grave disability cases but declined to extend it to the self-harm context.  

                                                                                                                                                                  



               32            Id. at 1109 (emphasis added).  

                                                                               



                                                                                           -18-                                                                                    7298
  


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

                                                                            33  

be improved by treatment."                                                        Our opinion did not explain whether improvement has to                                                                                                  



be definitive or merely possible - whether treatment "would" or "could" result in                                                                                                                                                        



improvement -and did not clarify whether the State has to conclusively prove that there                                                                                                                                           



is   a   chance   of   improvement   or   merely   show   that   there   is   "reason   to  believe"   that  



treatment could improve the respondent's condition.                                                                  



                                     As discussed above, the commitment statutes do not explicitly require the                                                                                                                         



court to make any finding on this issue; they merely require the initial petition to allege                                                                                                                                    



that "there is reason to believe that the respondent's mental condition could be improved                                                                                                                            

                                                                                               34  But this guidance is sufficient, as it provides a clear  

by the course of treatment sought."                                                                                                                                                                                             



formulation ofwhat the legislature intended, and wedeclineto deviatefromthis statutory  

                                                                                                                                                                                                                       



language. The formulation Darren promotes is simply too strict: as Martone's testimony  

                                                                                                                                                                                                                    



in this case indicates, psychiatric medicine rarely promises absolutely certain results.  

                                                                                                                                                                                                                                                  



Requiring the State to prove that treatment definitely would improve Darren's condition  

                                                                                                                                                                                                                     



would be a tall order, and one that medical science might struggle to fulfill even under  

                                                                                                                                                                                                                               



ideal circumstances. We therefore hold that the State was required to prove, by clear and  

                                                                                                                                                                                                                                     



convincing evidence, exactly what it was required to allege:  that there was reason to  

                                                                                                                                                                                                                                         



believe that Darren's mental condition could be improved by the course of treatment  

                                                                                                                                                                                                                    



sought.  The superior court applied the correct standard when deciding this issue.  

                                                                                                                                                                                                                 



                                     2.	               The  court's  chance-of-improvement  finding  is  supported  by  

                                                                                                                                                                                                                                      

                                                       substantial evidence and was not clearly erroneous.  

                                                                                                                                                                               



                                     Martone  testified  that  25%  of  Korsakoff  patients  experience  a  "slight  

                                                                                                                                                                                                                           



improvement" with treatment but that he could not tell whether Darren would be in that  

                                                                                                                                                                                                                                     



25% group.   Darren argues that this is simply too speculative to satisfy the State's  

                                                                                                                                                                                                                           



                  33                 Id.  at   1108  (emphasis  added).  



                  34                 AS  47.30.730(a)(3);  see  AS  47.30.740(a);  AS  47.30.770(a).  



                                                                                                                  -19-                                                                                                                      7298  


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

burden; because Korsakoff syndrome is an irreversible condition, he contends the State                                                                                               

failed to show that Darren was likely to improve with treatment.                                                                               35  However, Martone  



                                                                                                                                                                        

also  testified  that  Darren  had  already  seen  slight  improvement  in  his  Korsakoff  



                                                                                                                                                                                 

symptoms, and he explained a number of other ways in which treatment would benefit  



                                                                                                                                                                             

Darren, particularly in reducing Darren'ssymptoms ofbipolar disorder,such asagitation  



                                                                                                                     

and paranoia.  Martone's testimony did not indicate that this improvement was a mere  



                                                                                                                                                                            

possibility, as was the case with the Korsakoff treatment; rather, Martone expected  



                                                                                                                                                                          

Darren's agitation to attenuate and diminish. And while Martone testified that Korsakoff  



                                                                                                                                                                                       

syndrome was Darren's "primary diagnosis," he also testified that the main reason why  



                                                                                                                                                     

Darren  was unable to work  with  an outpatient provider  - and thus  why  Martone  



                                                                                                                             

believed commitment was appropriate - was Darren's agitation, disorganization, and  



                                                                                                                                                                         

paranoia resulting from his bipolar disorder.   When asked whether, with treatment,  



                                                                                                                                                                                           

Darren "could improve to the extent that at some point he may be able to work with an  



                                                                                                                                                                                                  

outpatient provider,"Martoneindicated that Darren could, answering: "That's thegoal."  



                                                                                                                                                                                

                              On this record, we conclude that there was substantial evidentiary support  



                                                                                                                                                                                

for  the  superior  court's  finding  that  there  was  reason  to  believe  Darren's  mental  



                                                                                                                                                                                         

condition could be improved with treatment, and the court's finding was therefore not  



                 

clearly erroneous.  



V.             CONCLUSION  



                                                                                                                                       

                              We AFFIRM the superior court's commitment order.  



               35             Darren's brief interprets Martone's testimony as concluding that Darren                                                                            



suffers  only  from Korsakoff syndrome, and not also from bipolar disorder.                                                                                               Darren is   

clearly mistaken. Martone                                  consistently testified that Darren suffers fromboth                                                           conditions   

and that while Darren's confusion is attributable to Korsakoff syndrome, several other                                                                                               

of his mental symptoms are attributable to bipolar disorder.                                                     



                                                                                            -20-                                                                                     7298
  

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