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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. (3/22/2019) sp-7345

In Re Hospitalization of Connor J. (3/22/2019) sp-7345

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

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

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

                                                                                       

         corrections@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. 7345 - March 22, 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 Jahna Lindemuth, 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  

                                                                                                                   

                    Connor  J.         was  living  at  Covenant  House,  an  Anchorage  shelter  for  



                                                                                                                       

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



                                                                                              

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



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



                                                                                                              

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



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



                                                                        

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



               

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



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



                                                                                             

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



                                        

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



and several counseling centers.  



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



                              

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



                                                                                

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



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



                                                               -2-                                                             7345  


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

                                                                        

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



petition again described Connor's delusions and paranoia and alleged that he was gravely  



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



                                                                              

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



psychotropic drug.  



               

          B.        Proceedings Before The Master  



                                                                  

                    The Public Defender Agency was appointed to represent Connor at the  



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



                                                                                                              

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



                                      

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



                                                                                                        

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



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



                                                                                                            

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



                                                      

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



                                       

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



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



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



understanding."  



                                                                                           

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



                                                                           

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



                                             

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



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



                                                                                                     

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



                                                                                                                  

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



person."  



                                                              -3-                                                        7345
  


----------------------- 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-                                                         7345
  


----------------------- 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  



                     The master issued written proposed orders consistent with her oral findings,  



                                                  

recommending that the superior court grant the petition for 30-day commitment and deny  



                                                                  

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



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



                                                                                                          

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



                                                                                                             

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



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



                                                                                            

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



                                                                 -5-                                                          7345
  


----------------------- 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  



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



necessary to help [Connor]."  



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



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



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



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



III.       STANDARD OF REVIEW  



                                                                                                    

                      " 'Factual findings in involuntary commitment or medication proceedings  



                                                                            

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



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



                                                                     -6-                                                                   7345  


----------------------- 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."    

                   We review issues raised for the first time on appeal for plain error.5  



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  

                                                                                                             The statute  

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



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. , 3                84   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-	                                                     7345
  


----------------------- 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  

mistake' that is 'obviously prejudicial.' "8  Connor contends that both prongs of the plain  



                                

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  



                                                                                                                              9  

                                                                                                                                  The  

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



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



                                                                                                               10 

                                                                                                                  but it does not  

incapacity "if the respondent is incapable of giving informed consent," 



           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-                                                           7345
  


----------------------- 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  

right has the client's informed consent to do so.                            This assumption arises in part from  



                                     

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-                                                         7345
  


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

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

                                                                                                

duties, absent evidence to the contrary.12  

                                                               



                    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 is not otherwise explained but 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 allow him another 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-                                                        7345
  


----------------------- 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-                                                           7345  


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

not established any violation of that right."                14  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 Err In Finding By Clear And Convincing  

                   Evidence  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  



                                    16  

restrictive  alternatives."               "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-	                                                     7345
  


----------------------- 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-                                                           7345  


----------------------- 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  



                                   

supported by clear and convincing evidence.  The court found that Connor was "gravely  



                                                                   

disabled":    this  finding  itself  presupposes  an  inability  to  "live  safely  outside  of  a  



                                     19 

                                                                                 

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  



          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-                                                        7345
  


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

if the record 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  



hospitalization was premised largely on his expectation that Connor 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  

protecting  him  from  harm.                           Martone  also  testified  that  he  would  continue  to  offer  



                                                                                                                              

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  



                              22  

                                                                                                                                 

physical injury,"                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-                                                                    7345
  


----------------------- 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  

                     In In re Hospitalization of Mark V. ,   we affirmed a finding that there were  



                                                                                 

no less restrictive alternatives to hospitalization.  The respondent 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  



                                                                                                                    25  

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



                                                                          26 

                     In In re Hospitalization of Joan K. ,   we affirmed a finding that there were  



                                                     

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-                                                          7345
  


----------------------- 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 supported by clear and convincing evidence.  



                                  

            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-	                                                                         7345  


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

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

correct the "harm to others" finding by issuing an amended 30-day commitment order.29  



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-                                                           7345
  


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

            In 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.	                                                  )                      Order  

                                                            )           Withdraw an Opinion  

                                                            )  

                                                            )  

                                                            )         Date of Order: 03/22/2019  

__________________________________)  

Trial Court Case # 3AN-17-02075 PR  



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

                       



         IT IS ORDERED,   SUA   SPONTE :  



          1.	      Opinion  No.  7329,  issued  on  January  18,  2019,  is  WITHDRAWN  and  

                   Opinion No. 7345 is issued in its place.  



         2.	       References to the standard of review have been modified on pages 12, 14,  

                                                                                                                

                   and 17.  



         Entered by direction of the court.  



                                                                 Clerk of the Appellate Courts 



                                                                                    /s/  

                                                                                                                    

                                                                 Meredith Montgomery 



 cc:	    Supreme Court Justices  

         Judge Herman Walker  

         Publishers  



 Distribution:  



         Megan R. Webb                                           Laura Fox  

         Alaska Public Defender Agency                           Assistant Attorney General  

                   th                                                       th  

         900 W. 5    Avenue, Suite 200                           1031 W. 4   Avenue, Suite 200  

         Anchorage, AK 99501                                     Anchorage, AK 99501  

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