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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In Re Hospitalization of Connor J. (1/18/2019) sp-7329

In Re Hospitalization of Connor J. (1/18/2019) sp-7329

This has been WITHDRAWN - see Opinion # 7345

           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-16847  

                                                                   )  

                       

CONNOR J.                                                                                                                           

                                                                   )    Superior Court No. 3AN-17-02075 PR  

                                                                   )  

                                                                                             

                                                                   )    O P I N I O N  

                                                                   )  

                                                                                                                

                                                                   )    No. 7329 - January 18, 2019  



                                                                                                                 

                                    

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

                                                                                                               

                      Judicial District, Anchorage, Herman G. Walker, Jr., Judge.  



                                                                                                         

                      Appearances: Megan R. Webb, Assistant Public Defender,  

                                                                                                                   

                      and  Quinlan  Steiner,  Public  Defender,  Anchorage,  for  

                                                                                                         

                      Connor          J.     Laura        Fox,       Assistant          Attorney           General,  

                                                                                                              

                      Anchorage,and JahnaLindemuth,Attorney General,Juneau,  

                                           

                      for State of Alaska.  



                                                                                                             

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

                                            

                      and Carney, Justices.  



                                             

                      MAASSEN, Justice.  



I.         INTRODUCTION  



                                                                                                                                        

                      The superior court issued a 30-day involuntary commitment order after  



                                                                                                                               

finding that the respondent was gravely disabled and  there were no less restrictive  



                                                                                

alternatives to hospitalization.  The respondent appeals, arguing that it was plain error  



                                                                                                                                         

to find he waived his statutory right to be present at the commitment hearing, that it was  



                                                                                                                           

clear error to find there were no less restrictive alternatives, and that the commitment  


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

order should be amended to omit a finding that he posed a danger to others, a finding the                                                                                                             



superior court meant to reject.                          



                                We conclude that it was not plain error to find that the respondent waived                                                                                  



his presence at the hearing.   We further conclude that it was not clear error to find that                                                                                                        



there were no less restrictive alternatives to a 30-day hospital commitment.  However,   



because there is no dispute that the "danger to others" finding should not be included in                                                                                                               



the commitment order, we remand for issuance of a corrected order.                                                                                 



II.             FACTS AND PROCEEDINGS              



                A.              Petitions For Evaluation, 30-Day Commitment, And Medication                                                                          

                                                        1   was  living  at  Covenant  House,  an  Anchorage  shelter  for  

                                Connor   J.                                                                                                                                                         



homeless youth, when his psychiatric condition allegedly began to deteriorate. A social  

                                                                                                                                                                                               



worker at Southcentral Foundation filed a petition in superior court seeking authority to  

                                                                                                                                                                                                        



hospitalize Connor for evaluation.  The petition alleged that Connor was "exhibiting  

                                                                                                                                                                                 



increasing[ly]  more  bizarre  and  disturbing  behavior,"  that  he  was  "hearing  and  

                                                                                                                                                                                                  



responding  to  auditory  hallucinations,"  and  that  he  was  exhibiting  "persecutory  

                                                                                                                                                                            



delusions."  It alleged that Connor believed he had "planned and carried out the '9/11'  

                                                                                                                                                                                              



attacks," that the government was "monitoring him," and that staff were "out to get him."  

                                                                                                                                                                                                               



It noted that Connor had a history of suicidal thoughts; that he had been diagnosed at  

                                                                                                                                                                                                        



various times with depression, anxiety, post-traumatic stress disorder, and oppositional  

                                                                                                                                                                               



defiant disorder; and that he had been treated for mental illness in the past at a hospital  

                                                                                                                                                                                         



and several counseling centers.  

                                                                            



                                On the basis of the petition and supporting medical records, the superior  

                                                                                                                                                                                         



court ordered that Connor be transported to Alaska Psychiatric Institute (API) for an  

                                                                                                                                                                                                      



evaluation.  A few days later API filed a petition for 30-day commitment and a petition  

                                                                                                                                                                                          



                1               We  use  a  pseudonym  to  protect  the  respondent's  privacy.  



                                                                                                   -2-                                                                                                   7329  


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for approval to administer medication without Connor's consent.   The commitment  



                                                                                                                        

petitionagaindescribedConnor's delusions andparanoiaandalleged that hewas gravely  



                                                                                                                             

disabled as a result of mental illness.  The medication petition alleged that Connor was  



                                                                                                                    

incapable of giving or withholding informed consent to the administration of a necessary  



                      

psychotropic drug.  



                                                            

          B.        Proceedings Before The Master  



                                                                                                                              

                    The Public Defender Agency was appointed to represent Connor at the  



                                                                                                                        

hearing, and his lawyer and the State stipulated to a one-day continuance to "allow  



                                                                                                                            

consultation." The hearing was held on August 10, 2017, before a standing master. Also  



                                                                                                                              

present at the start of the hearing were the State's attorney, Connor's attorney, and the  



                                                                                                                                

State's witness, Gerald Martone, a psychiatric nurse practitioner who treated Connor at  



                                                                                                                                    

API.  Connor was not present, but Martone told the master that he would be coming.  



                                                                                                                                

Someone - apparently Connor's attorney - responded, "Oh, he wants . . . he wants to  



                                                                                                                         

come down?   Okay."   The master addressed a few preliminary matters, after which  



                                                                                                                   

Martone said, "Can I just call and find out what . . ."; and the State's attorney completed  



                                                                                                                              

the thought:  "what the status is?  Sure."  When Martone returned, he reported, "He has  



                                                                                                                             

declined  to  .  .  .  ";  and  Connor's  attorney  responded,  "All  right,  that  was  my  



understanding."  



                                                                                                                               

                    The master then stated, "As I understand it, the patient has declined to be  



                                                                                                                    

present at the hearing."  Neither party objected or otherwise challenged this statement,  



                                                                                                                              

and the hearing proceeded.  It was interrupted partway through when Connor called the  



                      

courtroom on the telephone.  The master gave Connor's counsel "a break . . . to speak  



                                                                                                                      

with him."  When the hearing resumed, the only further mention of Connor's presence  



                                                                                                                                

or absence was his counsel's statement near the end of the hearing that "he's not here in  



person."  



                                                               -3-                                                        7329
  


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

                                                                                                                                

                    The State called only Martone to testify in support of the petition for a 30- 



                                                                                                                               

day commitment. Martone was qualified as an expert in the field of psychiatry and  



                                                                                                                        

testified that he had the opportunity, as Connor's direct provider, to observe and evaluate  



                                                                                                                    

his behavior.  Martone testified that he diagnosed Connor with "unspecified psychosis"  



                                                                                                                                

because   he   had   "very   paranoid   delusions,"   "appear[ed]   to   be   responding   to  



                                                                                                                       

hallucinations," was "unable to judge what is real and what is not real," at times appeared  



                                                                                                                               

catatonic, and would get very angry and agitated without warning.  He explained that  



                                                                                                                                 

Connor in the past had "plucked out all his eyebrows and eyelashes," believed one of his  



                                                                                                                                      

teeth was "a transmitter to the FBI," and had "been trying to pull his own tooth out."  



                                                                                                                           

Martone testified that Connor remained "very paranoid and delusional," had a "fixed  



                                                                                                                                

belief that he was in the back of the plane on September 11th and [was] culpable in the  



                                                                                                                              

Trade Center  attacks," often  looked away  as if reacting  to  hallucinations,  and  said  



                                                            

"weird" and incomprehensible things.  



                                                                                                                          

                    Martone testified that he did not believe Connor could provide for himself  



                                                                                                 

outside the hospital setting.  He testified that Connor could be treated on an outpatient  



                                                                                                                               

basis "[i]f he took medications" but that Connor had refused to do so.  He testified that  



                                                                                                                                

he had tried to talk to Connor about outpatient treatments but had to break off the  



                                                                                                                  

conversation and leave the room because of Connor's anger and hostility.  



                                                                                                                               

                    According to Martone, Connor would benefit from a continued stay at API  



                                                                                                                         

because "[h]is lifetime prognosis would be greatly improved if he's assertively treated"  



                                                                                                                           

- meaning if he was administered medication.  But he also testified that Connor would  



                                                                                                                              

improve from treatment at API even without medication because "a structured safe  



                                                                                                                      

setting, no access to drugs, and a predictable routine would be helpful to him," clarifying  



                                                                                                                 

that the setting and routine were "supportive" while only medication was "remedial."  



                                                                                                                  

                    The master made oral findings on the record at the close of the commitment  



                                                                                                                                

phase of the hearing.  Her first finding was that "the patient's waived his presence."  No  



                                                                -4-                                                         7329
  


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

                                                                                                                             

one objected, and the master did not expand on the issue. The master then found by clear  



                                                                                                                 

and convincing evidence that Connor suffered from a mental illness - an "unspecified  



                                                                                                                          

psychosis" - that made him gravely disabled, and that his "severe and abnormal mental  



                                                                                                                    

disorder . . . [or] distress . . . is associated with significant impairment of judgment,  



                                                                                                                                 

reason, or behavior [which] causes a substantial deterioration of [his] previous ability to  



                                                                                                                    

function independently."  The master also found that there was "not a less restrictive  



                                      

placement at this time."  



                                                                                                              

                    The proceeding then turned to the issue of the involuntary administration  



                                                                                                           

of medication; a court visitor and Martone both testified.  The master again placed her  



                                                                                                                          

decision on the record, finding insufficient evidence that Connor was incapable of giving  



                                                                                                                            

informed consent.  She noted, however, that because "it sounds like there was some  



                                                                                                                               

difficulty in communicating with the patient today . . . [,] [she was] going to deny the  



                                                                                                                                 

petition for medication without prejudice,"  and that it might be appropriate for API to  



                                                                                                                           

refile the petition "after the patient is really given all of the necessary information about  



                                                                   

the risks [and] benefits of the medication."  



                                               

          C.        Superior Court Orders  



                                                                                                                       

                    Themaster issuedwrittenproposed orders consistent with her oral findings,  



                                                                                                                             

recommendingthat thesuperior courtgrantthepetition for 30-daycommitmentand deny  



                                                                                                                   

the medication petition. The written order also made a finding that Connor's "assaultive  



                                                                                                                                

conduct toward Mr. Martone" made it likely that he would "cause serious harm to  



                                                                                                               

others," and it made that finding one of the bases for commitment.  The superior court  



                                                                                                           

signed the proposed orders without modification.   In a subsequent order,  however,  



                                                                                                                             

"[a]fter  reviewing  the  whole  hearing,"  the  court  expanded  on  its  reasoning  and  



                                                                                                                        

specifically addressed written objections Connor had made to the master's oral findings  



                                                               -5-                                                         7329
  


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

                                                                                                                                                                                                                                                                                                                                                                                                                                   2  

on the 30-day commitment.                                                                                                                                           Citing  In re Hospitalization of Stephen O.                                                                                                                                                                                                                 ,  the court first                                              



concluded that the State had proved by clear and convincing evidence that Connor was                                                                                                                                                                                                                                                                                                                                                                                                              



gravely disabled because he "could not live safely outside of a controlled environment,                                                                                                                                                                                                                                                                                                                                                   



and had a condition of mental illness that, if left untreated, would cause him to suffer                                                                                                                                                                                                                                                                                                                                                                                              



 significant impairment of judgment, reason, or behavior."                                                                                                                                                                                                                                                                                                      The court noted that the                                                                                                             



master was not able to personally observe Connor because he waived his presence, citing                                                                                                                                                                                                                                                                                                                                                                                                 



Connor's statutory right to remain silent under AS 47.30.735(b)(8). The court stated that                                                                                                                                                                                                                                                                                                                                                                                                           



it would "not adopt" the finding that Connor was a danger to himself or others, because                                                                                                                                                                                                                                                                                                                                                                                   



the State had not alleged that as a basis for its petition.                                                                                                                                                                                                                                                               Finally, the court concluded that                                                                                                                                        



there   were   no   less   restrictive   treatment   alternatives   to   hospitalization,   relying  on  



Martone's testimony that Connor's psychosis would improve even without medication                                                                                                                                                                                                                                                                                                                                                                       



if he was "provided a structured setting, no access to drugs[,] and a routine."                                                                                                                                                                                                                                                                                                                                                                               The court   



found that the Brother Francis Shelter was Connor's only alternative for shelter because                                                                                                                                                                                                                                                                                                                                                                                  



he was barred from returning to Covenant House and that placement at the Brother                                                                                                                                                                                                                                                                                                                                                                                          



FrancisShelterwould "not providethestructured,drug[-]free[,]and                                                                                                                                                                                                                                                                                                                                    routineenvironment   



necessary to help [Connor]."                                                                           



                                                                              Connor appeals.                                                                                    He challenges the finding that he waived his statutory                                                                                                                                                                                                                             



right   to   be   present   at   the   commitment   hearing,   the   finding   that   there   was   no   less  



restrictive alternative                                                                                                    to hospitalization, and the court's failure to amend the commitment                                                                                                                                                                                                                                                  



order to correctly reflect its later rejection of the "harm to himself or others" finding.                                                                                                                                                                                                                                                                                                                                                                                                                         



III.                                    STANDARD OF REVIEW                                                                                         



                                                                              " 'Factual findings in involuntary commitment or medication proceedings                                                                                                                                                                                                                                                                                             



are reviewed for clear error,' and we reverse those findings only if we have a 'definite                                                                                                                                                                                                                                                                                                                                                                               



                                       2                                      314  P.3d   1185,   1195  (Alaska  2013).  



                                                                                                                                                                                                                                                     -6-                                                                                                                                                                                                                                     7329  


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

                                                                                                3  

and firm conviction that a mistake has been made.' "                                               "Whether those findings meet the                         



involuntary commitment and medication statutory requirements is a question of law we                                                                         



                                4  

review de novo."                    



                                                                                                                                                     5  

                                                                                                                                            

                         We review issues raised for the first time on appeal for plain error. 



IV.	        DISCUSSION  



                                                                                                                                                             

            A.	          It Was Not Plain Error To Find That Connor Waived His Right To Be  

                                                                                     

                         Present At The Commitment Hearing.  



                                                                                                                                                            

                         By statute, a person who is the subject of a petition for an involuntary 30- 



                                                                                                                                        6  

                                                                                                                                                      

day commitment has the right to be present at the commitment hearing.                                                                        The statute  



                                  

further provides:  



                                                                                                                

                         [T]his  right  may  be  waived  only  with  the  respondent's  

                                                                                                                             

                         informed consent; if the respondent is incapable of giving  

                                                                                                                                    

                         informed consent, the respondent may be excluded from the  

                                                                                                                                  

                         hearing  only  if  the  court,  after  hearing,  finds  that  the  

                                                                                                                                   

                         incapacity exists and that there is a substantial likelihood that  

                                                                                                                          

                         the respondent's presence at the hearing would be severely  

                                                                                                                                [  ]  

                                                                                                                                 7 

                                                                                                                    

                         injurious to the respondent's mental or physical health. 



                         The master found that Connor waived his right to attend the hearing based  

                                                                                                                                                        



apparently on the representation of Connor's counsel that that is what her client wanted.  

                                                                                                                                                                   



But the master made no findings about whether the waiver was based on "informed  

                                                                                                                                              



consent."  Connor contends this was error:  that the superior court should have inquired  

                                                                                                                                                   



            3            In re Hospitalization of Jacob S.                              , 384 P.3d 758, 763-64 (Alaska 2016)                           



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



            4            Id.  at  764.  



            5            Wetherhorn,   156  P.3d  at  379.  



            6            AS  47.30.735(b)(1).   



            7            Id.  



                                                                              -7-	                                                                      7329
  


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

into, and made findings about, the basis for Connor's apparent waiver.                                                                                                                       We do not need                 



to decide whether this was error, but we assume it was for purposes of the following                                                                                                                         



discussion.    



                                    Connor observes correctly that we subject the waiver issue to "plain error"                                                                                                          



review because he did not object at the time.                                                                                    "A plain                     error involves an 'obvious                        

                                                                                                            8  Connor contends that both prongs of the plain  

mistake' that is 'obviously prejudicial.' "                                                                                                                                                                                



error test are met.   He asserts that the mistake was obvious because the wording of  

                                                                                                                                                                                                                                  



AS 47.30.735 is clear and yet the court made no inquiry into the basis for his waiver.  

                                                                                                                                                                                                                                           



And he asserts that the "obvious prejudice" prong is met because if he had been present  

                                                                                                                                                                                                                     



"he would have had the opportunity to assist his attorney in challenging the petition,  

                                                                                                                                                                                                                  



either in providing information that might have helped his attorney present evidence or  

                                                                                                                                                                                                                                   



cross-examine Martone or - more importantly - through the opportunity to testify on  

                                                                                                                                                                                                                                  



his behalf," which may "have resulted in a different outcome."  

                                                                                                                                                                          



                                    But we cannot conclude that the assumed error was either obvious or  

                                                                                                                                                                                                                                  



obviously  prejudicial.                                           We  have  not  had  occasion  to  explore  the  requirements  of  

                                                                                                                                                                                                                                 

AS 47.30.735(b)(1), nor have we delineated a procedure for complying with it.9                                                                                                                                                The  

                                                                                                                                                                                                                             



statute  itself  requires  the  court  to  make  specific  findings  about  the  respondent's  

                                                                                                                                                                                                    

incapacity "if the respondent is incapable of giving informed consent,"10 but it does not  

                                                                                                                                                                                                                                



                  8                In re Hospitalization of Gabriel C.                                                            , 324 P.3d 835, 838 (Alaska 2014).                                          



                  9                 Cf. Lee v. State                        , 509 P.2d 1088, 1092 (Alaska 1973) (holding that attorney                                                                             



                                                                                                                                                                                                                                

may effectively waive client's right to be present in noncapital criminal case if "(1) the  

defendant has given counsel express authority in a knowing and intelligent manner, (2)                                                                                                                                           

                                                                                                                                                                                                                        

the defendant is present at the time of the waiver, has clearly been informed of his rights,  

                                                                                                                                                                                       

and remains silent, or (3) the defendant subsequently acquiesces in the proceedings in  

a knowing and intelligent manner").                                                                



                  10                AS 47.30.735(b)(1).  

                                              



                                                                                                                -8-                                                                                                        7329
  


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

tell the court what to do if the respondent                                                                                                                                                                   is  capable of giving informed consent.                                                                                                                                                           Here,  



with regard to the administration of medication, the master concluded that the evidence                                                                                                                                                                                                                                                                                                           



did not support a finding that Connor was "[in]capable of giving informed consent"; the                                                                                                                                                                                                                                                                                                                                         



 superior court adopted this finding, and neither party appealed it.                                                                                                                                                                                                                                                                             Although Connor   



 appears to argue on appeal that the court should have made findings about his capability,                                                                                                                                                                                                                                                                                                 



he notably does not argue that an inquiry would have reached a different conclusion with                                                                                                                                                                                                                                                                                                                                 



regard to waiving his presence than it did with regard to consenting to medication.                                                                                                                                                                                                                                                                             



                                                                   While the statute's requirement of "informed consent" is indeed clear, a                                                                                                                                                                                                                                                                                             



court in most civil contexts may justifiably assume that a lawyer who waives a client's                                                                                                                                                                                                                                                                                                             

                                                                                                                                                                                                                                                11            This assumption arises in part from  

right has the client's informed consent to do so.                                                                                                                                                                                                                                                                                                                                                                     



attorneys' professional duties.  Rule 1.4(a) of the Alaska Rules of Professional Conduct  

                                                                                                                                                                                                                                                                                                                                                                                                    



requires an attorney to "explain a matter [to the client] to the extent reasonably necessary  

                                                                                                                                                                                                                                                                                                                                                                                              



to  permit  the  client  to  make  informed  decisions  regarding  the  representation."  

                                                                                                                                                                                                                                                                                                                                                                                                                                                    



Rule 1.4(b) requires more specifically that the attorney "promptly inform the client of  

                                                                                                                                                                                                                                                                                                                                                                                                                                    



any decision or circumstance that requires the client's informed consent" and "refrain  

                                                                                                                                                                                                                                                                                                                                                                                                       



 from taking binding action on the matter" until informed consent has been given. Courts  

                                                                                                                                                                                                                                                                                                                                                                                                            



                                  11                               See In re Conservatorship of John L.                                                                                                                                                , 225 P.3d 554, 569 (Cal. 2010) ("[I]n                                                                                                                      



the absence of any contrary indication, the superior court may assume that an attorney                                                                                                                                                                                                                                                                                                               

is    competent    and    fully    communicates    with    the    [respondent]    about    the    entire  

proceeding.");  Sun Country Sav. Bank of N.M., F.S.B. v. McDowell                                                                                                                                                                                                                                                                              , 775 P.2d 730, 734                                                          

 (N.M.   1989) ("The authority of an attorney to enter an appearance, receive notice, and                                                                                                                                                                                                                                                                                                                                   

to act on behalf of the client at hearings may be inferred by the court from the actions of                                                                                                                                                                                                                                                                                                                                         

the attorney" but "may be dispelled by evidence that the acts of the attorney were not in                                                                                                                                                                                                                                                                                                                                            

 fact authorized by the client . . . .");                                                                                                                                              cf. Haziel v. United States                                                                                                            , 404 F.2d 1275, 1278                                                                 

 (D.C.  Cir. 1968) (observing that in criminal context, "the client may be bound by his                                                                                                                                                                                                                                                                                                                                        

counsel's   calculated   decision   when   trial   tactics   are   involved,"   whereas   "[i]n   other  

circumstances we rely upon counsel to speak for his client not because we believe the                                                                                                                                                                                                                                                                                                                                          

 attorney must make the decision, but because we assume the attorney has consulted with                                                                                                                                                                                                                                                                                                                                  

his client, advised him of what is at stake, and helped him toward a wise decision").                                                                                                                                                                                                                                                                                                                                                 



                                                                                                                                                                                                                 -9-                                                                                                                                                                                                   7329
  


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

may generally assume that attorneys are aware of and complying with these professional                                                           



                                                                            12  

duties, absent evidence to the contrary.                                          



                          Here, the master was not made aware of any "evidence to the contrary."  

                                                                                                                                                                          



Connor does not point to anything in the record suggesting that his counsel did not  

                                                                                                                                                          



comply with her professional duties; rather, the record supports the conclusion that she  

                                                                                                                                                                  



consulted with Connor about the issues pertinent to the hearing and that he made an  

                                                                                                                                                                    



informed decision to waive his presence. The hearing was continued for a day to "allow  

                                                                                                                                                            



consultation,"which isnot otherwiseexplainedbut reasonably implies an attorney-client  

                                                                                                                                             



meeting about the impending proceedings.  At the outset of the next day's hearing, the  

                                                                                                                                                                   



audio record appears to show Connor's counsel's surprise that her client "want[ed] to  

                                                                                                                                                                     



come" to the hearing, given her "understanding" that he did not wish to be present.  The  

                                                                                                                                                                 



master was there to observe counsel's reaction to this news. When the master noted later  

                                                                                                                                                                 



that Connor had "declined to be present at the hearing," his counsel did not object,  

                                                                                                                                                           



question her client's capability of giving informed consent, or otherwise challenge the  

                                                                                                                                                                   



master's  understanding.                            The  hearing  proceeded  in  Connor's  absence  until  it  was  

                                                                                                                                                                



interrupted by his telephone call, and the court recessed to allowhimanother opportunity  

                                                                                                                                                  



to consult with his attorney.  The hearing then resumed, again in Connor's absence and  

                                                                                                                                                                  



again without objection.  And when the master made an essential finding of fact at the  

                                                                                                                                                                   



close of the commitment hearing that Connor had "waived his presence," his counsel  

                                                                                                                                                          



again raised no objection and made no request for further findings about her client's  

                                                                                                                                                          



capability.  

                      



             12           See, e.g., State ex rel. Means v. King, 520 S.E.2d 875, 883 (W.Va. 1999)                                   



("We presume . . .                    that lawyers will follow the ethical tenets                                              of our        profession.");   

Henderson v. State                     , 708 So. 2d 642, 644-45 (Fla. Dist. App. 1998) ("We presume                                                    

attorneys   will   follow   the   rules   of   professional   conduct"   with  regard   to   discovery  

obligations in criminal cases.).                              



                                                                                -10-                                                                           7329
  


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

                                                                        Given this factual setting, the attorney's duties to her client, the express                                                                                                                                                                                                                                                                                    



 statutory requirement of a factual inquiry "if the respondent is incapable of giving                                                                                                                                                                                                                                                                                                                                                       



informed consent," and the absence of statutory language or case law requiring a specific                                                                                                                                                                                                                                                                                                                                         



inquiry if the respondent                                                                                                               is  capable of giving informed consent, we conclude that the                                                                                                                                                                                                                                                            



 assumed error in this case was not obvious for purposes of the plain error test.                                                                                                                                                                                                                                                                                                                             



                                                                        Nor can we conclude that the assumed error was obviously prejudicial.                                                                                                                                                                                                                                                                                                                                       



 Connor asserts that if he had been present he may have been able to assist his attorney                                                                                                                                                                                                                                                                                                                         



with her presentation of evidence or the cross-examination of Martone, or he may have                                                                                                                                                                                                                                                                                                                                                                   



testified himself, and that this may have affected the hearing's outcome.                                                                                                                                                                                                                                                                                                                                    But Connor   



notably does not assert that he                                                                                                                                 wanted  to be present at the hearing. And the error alleged                                                                                                                                                                                                                



is not that he was wrongly excluded, but rather that the master failed to inquire into                                                                                                                                                                                                                                                                                                                                                                     



whether he waived his presence with informed consent; Connor does not suggest what                                                                                                                                                                                                                                                                                                                                                                    



 such an inquiry would have uncovered.  He notably does not allege that it would have   



resulted in a finding that he lacked the capability to give informed consent (the opposite                                                                                                                                                                                                                                                                                                                                         



 of what he argued successfully in the medication phase of the hearing).                                                                                                                                                                                                                                                                                                                           



                                                                        In  Remy M. v. State, Department of Health & Social Services, Office of                                                                                                                                                                                                                                                                                                                       



 Children's Services                                                                                       , we declined to adopt a rule that the trial court in a child in need of                                                                                                                                                                                                                                                                                   



 aid case must directly address the parent to determine whether he or she wishes to testify                                                                                                                                                                                                                                                                                                                                                     

                                                                                                                                                                                                                                                                                                                                                                     13               We held that the  

before allowing that right to be waived by the parent's attorney.                                                                                                                                                                                                                                                                                                                                                                     



parent had "not even made the threshold allegation that he wished to testify and that his  

                                                                                                                                                                                                                                                                                                                                                                                                                                                                 



 attorney 'unlawfully usurped [his] decision,' " and thus, "even if [the parent] had the  

                                                                                                                                                                                                                                                                                                                                                                                                                                                                



 same right as a criminal defendant to make the final decision whether to testify, he [had]  

                                                                                                                                                                                                                                                                                                                                                                                                                                                     



                                    13                                  356  P.3d  285,  288-89  (Alaska  2015).  



                                                                                                                                                                                                                               -11-                                                                                                                                                                                                                     7329  


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

                                                                                                              14  

not established any violation of that right."                                                                       Here, similarly, Connor has not even made                                                         



the "threshold allegation" that he wished to be present and that the master's ruling -that                                                                                                                                



he had waived his presence - was contrary to his wishes. While Connor argues that this                                                                                                                                    



case is distinguishable from                                             Remy M.                 because, unlike the parent in                                             Remy M.                , he is simply       



arguing for the enforcement of a statutory process, this argument overlooks the nature  

                                                                                                                                                                                    15      Connor cannot  

of plain error review, where obvious prejudice is a necessary prong.                                                                                                                                              



establish obvious prejudice if he does not even allege that an inquiry into his capability  

                                                                                                                                                                                                          



would have made a difference to the proceedings.  

                                                                                                  



                                   We  conclude  that,  assuming  it  was  error  not  to  inquire  further  about  

                                                                                                                                                                                                                    



Connor's capability in the context of his waiver of his presence at the hearing, it was not  

                                                                                                                                                                                                                           



plain error requiring reversal of the 30-day commitment order.  

                                                                                                                                                     



                  B.	              The Superior Court Did Not Clearly Err By Finding That No Less  

                                                                                                                                                                                                                      

                                   Restrictive Placement Alternatives Were Available.  

                                                                                                                                                       



                                   In a proceeding for a 30-day commitment order, "a petitioner must prove,  

                                                                                                                                                                                                                   



by  clear  and  convincing  evidence,  the  petition's  allegation  that  there  are  no  less  

                                                                                                                                                                                                                        

restrictive  alternatives."16  

                                                                                                                                                                                                                               

                                                                           "Finding  that  no  less  restrictive  alternative  exists  is  a  

                                                                                                                                                               17        The  "least  restrictive  

                                                                                                                                                                                                       

constitutional  prerequisite  to  involuntary  hospitalization." 



alternative" is the one that is "no more harsh, hazardous, or intrusive than necessary to  

                                                                                                                                                                                                                              



achieve  the  treatment  objectives  of  the  patient"  and  "involve[s]  no  restrictions  on  

                                                                                                                                                                                                                            



physical movement nor supervised residence or inpatient care except as reasonably  

                                                                                                                                                                                                      



                  14               Id.  at 289 (quoting                              LaVigne v. State                            , 812 P.2d 217, 220 (Alaska 1991)).                                         



                  15               In re Hospitalization of Gabriel C.                                                         , 324 P.3d 835, 838 (Alaska 2014).                                         



                  16               In re Hospitalization of Mark V.                                                     , 375 P.3d 51, 58 (Alaska 2016).                                     



                  17               Id. at 59.  

                                                  



                                                                                                             -12-	                                                                                                    7329
  


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

necessary for the administration of treatment or the protection of the patient or others                                                

from physical injury."               18  



                      At  Connor's  hearing,  the  master  found  there  was  no  "less  restrictive  

                                                                                                                                 



placement  [than  API]  at  this  time,"  and  the  superior  court  adopted  the  master's  

                                                                                                                                   



explanation that Connor "had been staying at Covenant House but [was] not welcome  

                                                                               



back there" because of his "anger and violence." The court expanded on this two weeks  

                                                                                                                                        



later in its order on Connor's objections.  It found, based on Martone's testimony, that  

                                                                                                       



Connor's "psychosis will improve if he is provided a structured setting, no access to  

                                                                                                                                               



drugs[,] and a routine."  It found that because Connor could not return to the Covenant  

                                                                                                                                  



House, his only alternative for housing outside of API was the Brother Francis Shelter,  

                                                                                                                                      



which  would  "not  provide  the  structured,  drug[-]free[,]  and  routine  environment  

                                                                                                                            



necessary to help [Connor]."  

                                                  



                       Connor argues that these findings were inadequate.  He observes that the  

                                                                                                                                             



initial petition to have him evaluated by API recited his earlier outpatient treatment at a  

                                                                                                                                                 



hospital and two mental health counseling centers, but at the hearing API presented no  

                                                                                                                                              



evidence  that  it  had  contacted  these  other  providers  "to  learn  what  the  course  of  

                                                                                                                                              



[outpatient]  treatment  had  been  or  how  compliant  or  consistent  Connor  was  with  

                                                                                                                                          



treatment[,] or to determine whether any of these providers would be willing to provide  

                                                                                                                                      



treatment to Connor."  Connor also contends that the record does not support a finding  

                                                                                                                                      



that he needed to be confined: "According to Martone, the only treatment that would be  

                                                                                                                                               



beneficial to Connor was medication, regardless of whether he was in a residential  

                                                                                                                                



treatment program or an outpatient treatment program," and Connor "could be treated  

                                                                                                                                  



on an outpatient basis" as long as he was "willing to take medication."  And Connor  

                                                                                                                                     



argues  that  because  the  court  ultimately  found  that  he  could  not  be  medicated  

                                                                                                                                



           18  

                              

                      AS 47.30.915(11).  



                                                                      -13-                                                                    7329  


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

involuntarily, the only benefits Connor could possibly receive from confinement at API                                                                                                                                                                                                      



were, in Martone's words, "a structured safe setting, no access to drugs, and a                                                                                                                                                                                 predictable  



routine,"   benefits   that   do   not   directly   address  Connor's   mental   illness   and   are   not  



 sufficient to justify involuntary confinement.                                                                                                               



                                              We conclude, however, that the "least restrictive alternative" finding is not                                                                                                                                                                    



clearly erroneous.                                              The court found that Connor was "gravely disabled":                                                                                                                                            this finding   



                                                                                                                                                                                                                                                                                                         19  

itself presupposes an inability to "live safely outside of a controlled environment."                                                                                                                                                                                                                        



Connor  does  not  challenge  the  "gravely  disabled"  finding  on  appeal,  and  it  has  

                                                                                                                                                                                                                                                                                            



 significant  support  in  Martone's  testimony.                                                                                                                      Martone  testified  that  he  "doubt[ed]  

                                                                                                                                                                                                                                                                  



 [Connor] would be able to negotiate getting food on his own" or otherwise provide for  

                                                                                                                                                                                                                                                                                                



himself outside of the hospital, and he agreed that Connor was "not able to safely survive  

                                                                                                                                                                                                                                                                                 



if released to the community at this time," in part because he was barred from returning  

                                                                                                                                                                                                                                                                          



to Covenant House "because of his violence."  Martone's descriptions of Connor as  

                                                                                                                                                                                                                                                                                                  



hallucinating, volatile, and sometimes catatonic support his opinion that Connor could  

                                                                                                                                                                                                                                                          



not live safely on his own.  While Martone also agreed that Connor seemed able to take  

                                                                                                                                                                                                                                                                                           



care of some of his basic needs, "we will not reweigh [the] evidence if the record  

                                                                                                                                                                                                                                                                                  



                       19                     In re Hospitalization of Stephen O., 314 P.3d 1185, 1195 (Alaska 2013);   



see also                     AS 47.30.915(9)(B) (defining "gravely disabled" as "a condition in which a                                                                                                                                                                                              

person as a result of mental illness . . . will, if not treated, suffer or continue to suffer                                                                                                                                                                                        

 severe . . . distress . . . associated with significant impairment of judgment, reason, or                                                                                                                                                                                                       

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

independently") (emphasis added); AS 47.30.915(9)(A) (defining "gravely disabled" as                                                                                                                                                                                                               

"a condition in which a person as a result of mental illness . . . 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                                                 ") (emphasis added).                          



                                                                                                                                              -14-                                                                                                                                       7329
  


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

supports the court's finding," which it does.                              20  



                                                                                                                                  

                       Martone  also  testified  that  hospitalization  was  the  least  restrictive  



                                                                                                                                             

alternative available.  He testified that Connor could improve as an outpatient, but only  



                                                                                                                                   

"[i]f he took medications," and that Connor had refused medication on an outpatient  



                                                                           

basis and was currently refusing it at API.  



                                                                                                                                               

                       As  Connor  correctly  points  out,  Martone's  testimony  in  favor  of  



                                                                                                                                 

hospitalizationwaspremised largely on hisexpectation thatConnor could be"assertively  



                                                                                                                                                 

treated" at API with medication against his will, which the court ultimately refused to  



                                                                                                                                     

allow.  But there was no evidence that Connor's treatment objectives could be achieved  



                                                                                                                                                 

anywhere else, including Covenant House and the Brother Francis Shelter.  And API at  



                                                                                                                                                  

least afforded Connor the "structured[,] safe setting, [with] no access to drugs, and a  



                                                                                                                                           

predictable routine" that Martone testified would be "helpful" and "supportive" while  

                                               21    Martone also testified that he would continue to offer  

                                                                                                                                            

protecting him from harm. 



Connor medications "every night."  When, as here, there appear to be no good options  

                                                                                                                                        



that will both  "achieve the [patient's]  treatment objectives" and  protect him "from  

                                                                                                                                          

physical injury,"22  the least restrictive alternative may be the one that at least keeps the  

                                                                                                                                               



patient safe while his providers attempt treatment.  

                                                                                        



                       Martone's failure to contact Connor's previous outpatient providers (other  

                                                                                                                                          



than Covenant House) does not alter our conclusion. Martone believed medication to be  

                                                                                                                                                 



           20          In re Hospitalization of Jacob S.                       , 384 P.3d 758, 766 (Alaska 2016).               



           21          Cf. Bigley v. Alaska Psychiatric Inst., 208 P.3d 168, 186 (Alaska 2009)  

                                                                                                                                          

(describing "the state's parens patriae power" as "the 'inherent power and authority of  

                                                                                                                                                 

the state to protect "the person and property" of an individual who "lack[s] legal age or  

                                                                                                                                                 

capacity" ' " (alterations in original) (quoting Myers v. Alaska Psychiatric Inst., 138 P.3d  

                                                                                                                                             

238, 249 (Alaska 2006))).  

                               



           22          See AS 47.30.915(11)(A)-(B).  

                                     



                                                                      -15-                                                                 7329
  


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

the only "remedial" approach to Connor's psychosis, and he testified that he had talked                                                                                                                    



to Connor about taking medication on an outpatient basis and Connor refused to consider                                                                                                               



it. The court was entitled to rely on Martone's expert opinion that outpatient services -                                                                                                                            



regardless of their identity and regardless of whether they had treated Connor before -                                                                                                                             



were not a realistic option.                                         

                                                                                                                         23 we affirmed a finding that there were  

                                  In  In re Hospitalization of Mark V.                                                  ,                                                                                      



no less restrictive alternatives to hospitalization. Therespondent argued that the superior  

                                                                                                                                                                                                      



court erred in finding that he was unable to fend for himself because the court "failed to  

                                                                                                                                                                                                                      

account for his family support and thus required him to function successfully alone."24  

                                                                                                                                                                                                                             



But we concluded that the finding was supported by testimony about the respondent's  

                                                                    

need for medication and his unwillingness to follow an outpatient regimen.25  

                                                                                                                                                                                                    

                                                                                                                         26  we affirmed a finding that there were  

                                  In In re Hospitalization of Joan K.,                                                                                                                                         

                                                                                                                  



no less restrictive alternatives that would adequately protect both the respondent and the  

                                                                                                                                                                                                                   



public.  The respondent argued that the superior court erred by ruling out outpatient  

                                                                                                                                                                                                



treatment or a home placement even though the testifying physician did not contact the  

                                                                                                                                                                                                                   



family or prior psychiatrist to ask about the respondent's potential for success in these  

                                                                                                                

alternative settings.27  We noted witnesses' testimony that the respondent needed reliably  

                                                                                                                                                                                                        



administered medication to bring her manic symptoms under  control; that constant  

                                                                                                                                                                                                     



surveillance and care were necessary to ensure the success of this regimen; and that the  

                                                                                                                                                                                                                   



                 23               375 P.3d 51, 59-60 (Alaska 2016).                                      



                 24  

                                                 

                                 Id. at 59.  



                 25  

                                                 

                                 Id. at 60.  



                 26  

                                                                                                                

                                  273 P.3d 594, 601-02 (Alaska 2012).  



                 27              Id.  at 601.   



                                                                                                        -16-                                                                                                  7329
  


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

respondent's "changeable emotions" and "lack of insight" into her own behavior made                                                                     



it " 'very unlikely' [that] she would follow through with outpatient treatment even if she                                                                  

said she would."               28  



                                                                                                                                                      

                         We recognize the difference between these two cases and this one. Unlike  



                                                                                                                                                               

the respondents in In re Mark V. and In re Joan K., Connor was refusing medication at  



                                                                                                                                                 

API, and  thus hospitalization did not guarantee that he would receive the remedial  



                                                                                                                                                              

treatment Martone considered necessary to his recovery.  But as in In re Mark V. and In  



                                                                                                                                                 

re Joan K., the evidence here supports the court's finding that the hospital provided  



                                                                                                                                                              

structure and safety, at least temporarily, along with the possibility of improvement he  



                                                                                                                         

could not get elsewhere.  That finding is not clearly erroneous.  



                                                                            

             C.	         The Commitment Order Should Be Corrected To Omit The Finding  

                                                                                 

                         The Trial Court Ultimately Rejected.  



                                                                                                                                                           

                         Finally, Connor challenges the finding - first made by the master and then  



                                                                                                                                                      

adopted by the superior court when it signed the proposed orders - that he was "likely  



                                                                                                                                         

to cause serious harm to others."  Connor objected to this finding on the ground that it  



                                                                                                                                                            

was not included in the commitment petition as a basis for a finding of mental illness and  



                                                                                                                                                          

he thus had no notice that he was required to defend against it.  The State agreed with  



                                                                                                                                                            

Connor on this point, and the superior court, in deciding Connor's objections, stated that  



                                                                                                                                                            

it would "not rely upon this finding in its decision." But the court did not correct the 30- 



                                                                                                                                                         

day commitment order under which Connor had been hospitalized.  On appeal the State  



                                                                                                                                                       

argues that the superior court's decision on Connor's objections makes clear its intent  



                                                                                                                                                         

to disregard this finding, but the State "does not object to [this court] remanding for a  



                                                                                                                                       

more explicit correction of this aspect of Connor's commitment order."  



            28  

                                    

                         Id. at 602.  



                                                                             -17-	                                                                            7329  


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

                                           We agree with Connor that the proper course is for the superior court to                                                                                                                                                              



                                                                                                                                                                                                                                                                                   29  

correct the "harm to others" finding by issuing an amended 30-day commitment order.                                                                                                                                                                                                       



We remand for that limited purpose.  

                                                                                          



V.                    CONCLUSION  



                                           The case is REMANDED to the superior court for the limited purpose of  

                                                                                                                                                                                                                                                                                 



amending the 30-day commitment order to omit the mistaken finding of fact. In all other  

                                                                                                                                                                                                                                                                        



respects we AFFIRM the judgment of the superior court.  

                                                                                                                                                                      



                      29                   See Keturi v. Keturi                                             , 84 P.3d 408, 415 n.16 (Alaska 2004) (remanding in   



child support case for limited purpose of correcting mistake in father's income identified                                                                                                                                                                

by this court on appeal).                            



                                                                                                                                      -18-                                                                                                                              7329
  

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