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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In the Matter of the Necessity for the Hospitalization of: Sergio F. (5/12/2023) sp-7654
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.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
In the Matter of the Necessity for the )
Hospitalization of ) Supreme Court No. S-18326
)
SERGIO F. ) Superior Court No. 3AN-21-03051 PR
)
) O P I N I O N
)
) No. 7654 - May 12, 2023
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Adolf V. Zeman, Judge.
Appearances: George W.P. Madeira, Assistant Public
Defender, and Samantha Cherot, Public Defender,
Anchorage, for Sergio F. Adam Carman, Assistant Attorney
General, Anchorage, and Treg R. Taylor, Attorney General,
Juneau, for State of Alaska.
Before: Winfree, Chief Justice, Maassen, Carney,
Borghesan, and Henderson, Justices.
WINFREE, Chief Justice.
INTRODUCTION
After a man's persistent religious delusions led him to walk naked along
a road during the winter, he was taken into emergency custody. The superior court
ordered his evaluation at a treatment facility, and after a post-evaluation petition and a
hearing the court involuntarily committed him for up to 30 days of treatment. After yet
a subsequent petition and a hearing, the superior court ordered a 90-day involuntary
----------------------- Page 2-----------------------
commitment to the treatment facility, finding, by clear and convincing evidence, that
the man was gravely disabled, that the man needed additional treatment, and that the
facility was an appropriate treatment facility. The man argues on appeal that we should
vacate the superior court's 90-day commitment order because there was insufficient
evidence to show he was gravely disabled and because the court failed to grapple with
and determine whether his commitment to the treatment facility was, by clear and
convincing evidence, the least restrictive alternative for his treatment. We agree with
his latter argument and vacate the commitment order.
FACTS AND PROCEEDINGS
A. Detention And Emergency Custody
1
In late December 2021 police encountered Sergio F. walking naked up
O'Malley Road toward the mountains near Anchorage. The police transported Sergio
to a hospital emergency department and an officer filed a petition for Sergio's
2
emergency detention and evaluation. The superior court authorized Sergio's
1
We use a pseudonym to protect Sergio's privacy.
2
See AS 47.30.705(a) (permitting, among others, peace officer "who has
probable cause to believe that a person is gravely disabled or is suffering from mental
illness and is likely to cause serious harm to self or others . . . [to] cause the person to
be taken into custody . . . and delivered to the nearest . . . evaluation facility" under
certain circumstances); AS 47.30.710 (requiring mental h ealth professional to perform
emergency examination within 24 hours of respondent's detention under AS 47.30.705
and to apply for ex parte order authorizing hospitalization for evaluation under
AS 47.30.700 if one has not yet been obtained); AS 47.30.700 (permitting any adult to
petition for ex parte order for mental health evaluation of individual who is "reasonably
believed to present a likelihood of serious harm to self or others or is gravely disabled
as a result of mental illness"); see also In re Hospitalization of Gabriel C., 324 P.3d 835,
837 (Alaska 2014) ("After a person is detained by a police officer and brought to an
evaluation facility, a physician and a mental health professional must conduct an
emergency evaluation within 24 hours. If warranted, the mental health professional
may apply for an ex parte order authorizing hospitalization for a full evaluation."
(internal footnotes omitted)).
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3
hospitalization for an evaluation and he was transferred to Alaska Psychiatric Institute
4
(API), where he was diagnosed with schizoaffective disorder. API staff petitioned for
an order for Sergio's 30-day involuntary commitment for treatment and a hearing on
5
the petition was held before a superior court master.
B. 30-Day Commitment Hearing
Neither Sergio nor the State provided us with a transcript of the hearing,
but witnesses at the 30 -day commitment hearing apparently included Sergio's mother,
stepmother, and father, Sergio's API psychiatrist, and Sergio. Written findings and a
recommendation that Sergio be involuntarily committed for up to 30 days for treatment
were signed by the master that day.
The master found that , at baseline, Sergio was able "to manage his affairs
[and] hold a job" but that, in his current state, Sergio was "delusional" and "risk[ed] his
health by prolonged fasting" and exposure to freezing temperatures without clothes.
The master also found that Sergio acknowledged his mental illness and was willing to
take medication. The master concluded that there was clear and convincing evidence
3
See AS 47.30.700(a) (permitting court to grant ex parte order for
hospitalization for mental health evaluation upon showing of probable cause that
"respondent is mentally ill and that condition causes the respondent to be gravely
disabled or to present a likelihood of serious harm to self or others").
4
Schizoaffective disorder is "an illness manifested by an enduring major
depressive, manic, or mixed episode along with delusions, hallucinations, disorganized
speech and beh avior, and negative symptoms of schizophrenia. In the absence of a
major depressive, manic, or mixed episode, there must be delusions or hallucinations
for several weeks." Schizoaffective disorder , STEDMAN'S MEDICAL DICTIONARY (28th
ed. 2006).
5
See AS 47.30.730 (setting out procedure for health care professionals
conducting mental health evaluation under AS 47.30.710 to file petition for 30-day
commitment for treatment); AS 47.30.735 (providing for court hearing on petition for
30-day commitment for treatment and setting out required findings for commitment).
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----------------------- Page 4-----------------------
that Sergio was gravely disabled, that Sergio was unable "to stay safe in an uncontrolled
environment," and that no less restrictive facility would adequately protect Sergio and
the public, and the master recommended that the superior court order Sergio to be
committed to API for up to 30 days for treatment. The superior court approved the
recommendation and issued the commitment order. Sergio did not appeal that order.
C. 90-Day Commitment Hearing
Dr. Joseph Pace, Sergio's treating psychiatrist at API, later filed a petition
6
for an order for Sergio's involuntary 90-day commitment for treatment, asserting that
Sergio remained gravely disabled and posed a risk of serious harm to himself and others
and that his condition could be improved with a continued course of treatment at API.
The petition referred to Sergio's continued "messianic delusions," Sergio's statement
that he wanted to gamble all his money on a football game, a nd Sergio's plan to live
with a man who worked at a cannabis business despite Sergio's current psychosis
allegedly having been triggered by his marijuana use. A master held a hearing on the
petition; only Dr. Pace and Sergio testified.
Dr. Pace's testimony
Dr. Pace testified that Sergio's schizoaffective disorder diagnosis had not
changed since the earlier hearing and that Sergio was experiencing religious delusions
and believed he was meant to "fulfill prophecies." According to Dr. Pace, the "major"
issues were Sergio's religious delusions and lack of insight into his mental illness.
Dr. Pace's primary concern was that Sergio, if released, would attempt to "fulfill"
prophecies and likely would suffer harm as a result - for instance, by prolonged fasting
or going out naked into the cold again.
6
See AS 47.30.740, .750, .755 (setting out procedure for treating
professionals to petition court for additional 90 days commitment for further treatment);
AS 47.30.745 (providing for court hearing , including jury trial option, on petition for
90-day commitment and setting out required findings for commitment order).
-4- 7654
----------------------- Page 5-----------------------
Dr. Pace noted some improvements in Sergio's condition. He testified
that Sergio was maintaining hygiene and eating enough food. He stated that, as of the
hearing, Sergio had been taking an antipsychotic medication for several weeks and
recently had received an injection of the drug that would persist in his system for a
month. Dr. Pace said that the medicine had begun to have some positive effects.
Dr. Pace nonetheless concluded that continued commitment for furth er
treatment was necessary. He noted that Sergio's religious delusions and thought
processes remained largely the same even with the recent medication because the
medication can take several weeks to become effective . He expressed concern about
Sergio's judgment and ability to provide for his needs outside a controlled environment.
He explained that Sergio had cut himself off from his parents ' support due to his
delusional behavior and that Sergio demonstrated poor judgment by wanting to bet all
his money on a football game. According to Dr. Pace, these behaviors likely would
recur because Sergio had not "really improved sufficiently to . . . not follow the lines of
his delusion or hallucination." Dr. Pace stated that it could take up to "two or three
months" for the antipsychotic medication to take full effect, and that commitment was
necessary so Sergio could stabilize on his medication, or switch to a new one if needed,
in a controlled, supervised environment where he would be safe.
The master then queried about options other than involuntary
hospitalization: "I'm wondering . . . if there's a better way to address making sure
[Sergio] takes his medications and making sure he . . . retrieves his baseline which is a
functional, employable, stable person ." The master stated that "committing [Sergio]
for 90 days so that he can have three shots " and then be discharged seemed "like an
expensive thing to do." The master asked whether receiving medication through
outpatient treatment could be an option if Sergio were released.
Dr. Pace responded that Sergio was eligible to receive outpatient care
through the Alaska Native health care system, but that Sergio wou ld be unsupervised at
his friend's home between appointments. Dr. Pace testified that he did not believe
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----------------------- Page 6-----------------------
Sergio's needs could be met in a less restrictive setting "because of the lack of ability
to kind of monitor what he's up to and that he doesn't go off and do something unsafe."
Dr. Pace expressed concern that "he'd be on his own to . . . fulfill his religious mission."
Sergio's testimony
Despite having acknowledged his mental illness at the earlier hearing,
Sergio denied having a mental health issue, calling it an "unexplained diagnosis." He
admitted having religious preoccupations, but when asked whether he wanted Dr. Pace
to help him not be preoccupied with religious things, Sergio said "[n]o." He said that,
if released, he would not "go streaking naked again," did not intend to go into the
wilderness immediately, and would not use marijuana. He stated that he would continue
taking the antipsychotic medicine if released and could receive treatment at Alaska
Native Medical Center (ANMC). He said th at the medicine was helping him to not
overeat and to sleep better and that he was not opposed to taking medications. He later
expressly stated: "I'm completely willing to take [the medicine]." He also testified
that, if released from API, he would go t o his friend's house or to the shelter. He said
that his friend could offer him a job in a restaurant kitchen, in addition to a place to stay.
But he also stated that he did not know if his friend was back in town yet after a trip.
Throughout the hearin g Sergio repeatedly made religious references and interrupted the
proceedings.
Commitment order and appeal
The master stated at the end of the hearing that "this is one of the closest
cases [she had] encountered recently." The master found, by clear and convincing
evidence, that Sergio had a mental illness and was gravely disabled. The master said
she wished there were "a more effective, efficient cost saving way that is more humane
to this patient than to continue to keep him hospitalized," and that "it would be
inhumane at this point in time to discharge [him] to the street . . . because of his grave
disability"; without stating a level of proof, she also found that there was no treatment
alternative "reasonably available right now that can help him."
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----------------------- Page 7-----------------------
The master's subsequent written order stated that she found, by clear and
convincing evidence, that Sergio was mentally ill and gravely disabled and that API "is
an appropriate treatment facility." The master included a proposed order for the
superior court to sign based on the findings. The superior court approved the master's
recommendation and signed the order for Sergio's 90-day commitment for further
treatment at API.
Sergio appeals the 90-day commitment order, contending that the superior
court clearly erred by finding, by clear and convincing evidence, that he was gravely
disabled and erred by failing to find, by clear and convincing evidence, that no less
restrictive alternative to API was feasible and available for his continuing treatment.
We address only Sergio's latter argument because it is dispositive.
STANDARD OF REVIEW
Whether factual findings meet statutory standards for involuntary
7
commitment is a question of law to which we apply our independent judgment.
DISCUSSION
A. Legal Framework
We have "characterized involuntary commitment for a mental illness as a
'massive curtailment of liberty' that demands due process of law."8
A court may issue
period only if two
an order committing an individual to a treatment facility for a 30-day
9
conditions are established. First, the court must find, "by clear and convincing
evidence, that the [respondent] is mentally ill and as a result is likely to cause harm to
7
In re Hospitalization of Naomi B., 435 P.3d 918, 923 -24 (Alaska 2019)
(quoting In re Hospitalization of Jacob S., 384 P.3d 758, 763-64 (Alaska 2016)).
8
Id. at 931 (quoting Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371,
375-76 (Alaska 2007), overruled on other grounds by In re Naomi B ., 435 P.3d 918)).
9
AS 47.30.735(c)-(d).
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----------------------- Page 8-----------------------
10
[self] or others or is gravely disabled." Second, the court must determine that clear
and convincing evidence shows no feasible less restrictive alternative to involuntary
11
commitment exists.
"At any time during the respondent's 30-day commitment, [authorized
facility staff] may file with the court a petition for a 90-day commitment of that
12
respondent." After a hearing, "the court may commit the respondent to a treatment
facility for no more than 90 days if the court . . . finds by clear and convincing evidence
that the respondent is mentally ill and as a result is likely to cause harm to [self] or
13 14
others, or is gravely disabled," and that no less restrictive alternative exists.
"An important principle of civil commitment in Alaska is to treat persons
'in the least restrictive alternative environment consistent with their treatment
15
needs.' " "[F]inding that no less restrictive alternative exists is a constitutional
10
In re Naomi B., 435 P.3d at 931 (quoting AS 47.30.735(c)).
11
Id . at 932 (explaining that AS 47.30.735(d) and AS 47.30.755(b)
"authorize commitment only if no feasible less restrictive alternative treatment is
available").
12
AS 47.30.740(a); In re Jacob S., 384 P.3d at 768 (stating requirements for
30-day involuntary commitment carry over to 90-day petition).
13
AS 47.30.755(a).
14
In re Hospitalization of Mark V., 375 P.3d 51, 58 (Alaska 2016) ("[A]
petitioner must prove, by clear and convincing evidence, the petition's allegation that
there are no less restrictive alternatives."), abrogated by In re Naomi B ., 435 P.3d 918.
We explained in Mark V. that the least restrictive alternative requirement is a statutory
protection against unconstitutional commitment, citing AS 47.30.730(a)(2) and
AS 47.30.735(d). Id . We noted that "the 'clear and convincing evidence' standard is
not expressly extended by statute" to the least restrictive alternative finding, but held
that clear and convincing evidence is the required standard. Id . at n.31.
15
In re Hospitalization of Joan K., 273 P.3d 594, 601 (Alaska 2012)
(quoting AS 47.30.655(2)).
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----------------------- Page 9-----------------------
16
prerequisite to involuntary hospitalization." We have explained that "the trial court's
deliberate consideration of [whether less restrictive alte rnatives exist] is critical to the
17
protection of the respondent's liberty interests." It is the State's burden to prove, by
clear and convincing evidence, that there are no less restrictive alternatives to
18 19
commitment. A less restrictive alternative mus t be feasible, available, and provide
20
"adequate treatment" for a respondent.
B. Least Restrictive Alternative Treatment Analysis
Sergio contends that the superior court's written 90-day commitment
order "failed to determine whether an adequate less-restrictive alternative existed." The
State concedes that the superior court made no explicit determination about a less
restrictive alternative, noting that "neither the 90-day commitment order nor the
master's findings from the hearing use the key term 'least restrictive alternative.' " The
State maintains that the master nonetheless inquired about less restrictive alternatives
and that the superior court made an "implicit finding" that no less restrictive alternative
existed. According to the State, the omiss ion of the "key term" was harmless error
because the record supports the conclusion that involuntary commitment was the least
restrictive alternative. Sergio responds that the superior court's omission of a least
restrictive alternative analysis was not harmless and that there was not clear and
convincing evidence to support a finding that no less restrictive alternative was
available.
16
In re Naomi B ., 435 P.3d at 933 (quoting In re Mark V. , 375 P.3d at 59).
17
In re Mark V., 375 P.3d at 58.
18
In re Naomi B., 435 P.3d at 934.
19
Id. at 932; AS 47.30.735(d).
20
In re Hospitalization of Danielle B. , 453 P.3d 200, 204 (Alaska 2019)
(quoting In re Hospitalization of Jacob S., 384 P.3d 758, 768 (Alaska 2016)).
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----------------------- Page 10-----------------------
The lack of specific findings about possible less restrictive alternatives in
this case is particularly concerning because we have explained that "the trial court's
deliberate consideration of [whether less restrictive alternatives exist] is critical to the
21
protection of the respondent's liberty interests." The State attempts to alleviate this
concern with two primary arguments: that involuntary commitment to API was
necessary because (1) a finding of "gravely disabled " presupposes an inability to live
outside of a controlled environment and (2) Sergio's suggested discharge plan was
inadequate.
Effect of grave disability finding
The State argues that because the superior court found that Sergio was
gravely disabled, involuntary commitment was "necessarily the least restrictive
alternative." The State quotes our statement in In re Hospitalization of Connor J . that
a gravely disabled finding "presupposes an inability to 'live safely outside of a
22
controlled environment.' " But a gravely disabled finding presupposes only an
23
inability to live safely outside of a controlled environment without treatment. This is
distinct from the least restrictive alternative analysis, which is concerned with the
respondent's ability to live in the community with treatment. In In re Connor J. we
expressly considered the gravely disabled respondent's ability to be treated without
hospitalization and concluded that "there was no evidence" the "treatment objectives
could be achieved anywhere else" but the proposed psychiatric hospital and that the
superior court could rely on expert testimony that outpatient services "were not a
21
In re Mark V., 375 P.3d at 58.
22
440 P.3d 159, 166 (Alaska 2019) (quoting In re Hospitalization of Stephen
O., 314 P.3d 1185, 1195 (Alaska 2013)).
23
See id. at n.19 (referencing statutory definitions of "gravely disabled"
identifying condition resulting from mental illness "if not treated"
(AS 47.30.915(9)(B)) or "if care by another is not taken" (AS 47.30.915(9)(A))).
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----------------------- Page 11-----------------------
24
realistic option." Following the State's approach would, contrary to our previous
25
holdings, render the least restrictive alternative analysis superfluous.
Sergio's proposed discharge plan
The parties' primary dispute is whether Sergio's proposed discharge plan
was an adequate alternative to inpatient hospitalization. Sergio argues that his
suggested alternative of staying with a friend and obtaining outpatient treatment at
ANMC was a feasible and available less restrictive alternative. The State re sponds that
Sergio's discharge plan would not meet his treatment needs or keep him safe. The
master made no explicit findings about whether Sergio would be able to live safely at
his friend's house, stating only that "it would be inhumane at this point in time to
discharge this patient to the street." The superior court made no findings or conclusions
on this point.
The State refers to Dr. Pace's testimony that Sergio's plan to live with his
friend was inadequate because Sergio would lack the necessary su pervision to ensure
he did not do something unsafe in response to his delusions. Dr. Pace also testified that
Sergio required treatment in a supervised environment until his medication stabilized.
Sergio argues in response that the master considered his plan to stay with his friend and
receive outpatient treatment to be "not an unreasonable" plan. He contends that the
medication would have been in his system for one month; that he was willing to take
medications and access outpatient care; and that he co uld successfully access outpatient
care if released. He asserts that the superior court's determination was insufficiently
supported, pointing to the master's "conclusory" statement: "I wish there was . . . a
24
Id. at 166-67.
25
See, e.g., In re Mark V., 375 P.3d at 58-59 ("[The least restrictive
alternative requirement] is not a secondary concern, nor is it . . . something to be
considered only after the court has decided that the respondent should be committed.
Finding that no less restrictive alternative exists is a constitutional prerequisite to
involuntary hospitalization.").
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----------------------- Page 12-----------------------
more effective, efficient cost saving way tha t is more humane to this patient than to
continue to keep him hospitalized . . . but there isn't anything reasonably available right
now that can help him."
The adequacy of Sergio's discharge plan was a factual determination to
be resolved by considering conflicting testimony. Perhaps the master, and thus the
superior court, implicitly found that the discharge plan was inadequate. We could so
assume, and we then could determine whether that finding is clearly erroneous. But
doing so would not be disposi tive of the larger question whether the State proved, by
clear and convincing evidence, that no feasible less restrictive alternative was available.
This is a legal question to which we apply our independent judgment.
Consideration of alternative treatment options
The record does not reflect that the State discussed or explored any
alternatives beyond Sergio's suggested discharge plan. But it is not a respondent's
26
burden to prove the existence of less restrictive alternatives and outside support. The
27
burden lies with the State to prove the contrary. The State argued that Sergio's plan
was inadequate, but the standard is not whether the alternative suggested by a
respondent is suitable; the standard is whether clear and convincing evidence suppo rts
the State's position that no less restrictive alternative is available.
26
Id. at 56 ("We decline to place this burden on the respondent.").
27
Id. at 58 ("[W]e hold that a petitioner must prove, by clear and convincing
evidence, the petition's allegation that there are no less restrictive alternatives."). The
State asserted during the hearing that it met this burden because Sergio had experienced
two recent hospitalizations and subsequently went to a homeless shelter: "the fact that
[Sergio] went to the shelter once [proves that] we tried less restrictive and it didn't
work." But consideration of less restrictive alternatives requires more than repeatedly
discharging respondents to homeless shelters.
-12- 7654
----------------------- Page 13-----------------------
The State need not "prove the unavailability of every imaginable
28
alternative." But the State's failure to explore even a single alternative outpatient
treatment option (beyond Sergio's plan) suggests that the State did not meet its burden
of proving, by clear and convincing evidence, that there were no less restrictive
29
alternatives. This is a substantial burden commensurate with the "massive curtailment
30
of liberty" imposed by involuntary commitment.
The opportunity to explore this issue at a commitment hearing seems
31
readily available. As required by statute, the petition in this case, signed by Dr. Pace,
contained two salient paragraphs:
Commitment in a treatment facility is appropriate because
evaluation staff have considered but not found any less
restrictive alternative that would adequately protect the
respondent and the public and meet the respondent's
treatment needs.
. . . .
[API] is an appropriate treatment facility for the
respondent's condition and has agreed to accept the
respondent. The evaluation staff has considered, but has not
28
In re Hospitalization of Vern H., 486 P.3d 1123, 1131 n.31 (Alaska 2021)
(holding in context of emergency detention for evaluation that State must consider less
restrictive alternatives to jail).
29
See In re Hospitalization of Luciano G., 450 P.3d 1258, 1271 (Alaska
2019) (Stowers, J., dissenting) ( "[I]t is illogical and insufficient for a doctor to opine
that there are no less restrictive alternatives when the doctor has done nothing to
evaluate any less restrictive alternatives." (emphasis in original) (quoting In re
Hospitalization of Joan K., 273 P.3d 594, 606 (Alaska 2012) (Stowers, J., dissenting ))).
30
In re Hospitalization of Naomi B., 435 P.3d 918, 928 (Alaska 2019)
(quoting Wetherhorn v. Alaska Psychiatric Inst. , 156 P.3d 371, 375 (Alaska 2007),
overruled on other grounds by In re Naomi B ., 435 P.3d 918).
31
AS 47.30.740(a) (incorporating AS 47.30.730(a)(2)'s 30-day petition
requirements and requiring allegation that evaluation staff considered less restrictive
alternatives).
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----------------------- Page 14-----------------------
found, any les s restrictive alternatives available that would
adequately protect the respondent or others.
The obvious questions to ask Dr. Pace at the hearing were: What less restrictive
alternatives were considered and why were those alternatives inadequate to protect
Sergio and the public and provide for Sergio's treatment needs? Courts regularly
32
engage in this type of inquiry, although the failure to expressly consider specific
outpatient options might be harmless error when a respondent is so violent,
33
incapacitated, or uncooperative that inpatient treatment is clearly the only option. But
Sergio was taking care of his basic needs and was coherently engaged in discussing
discharge options, and the master found that he was not dangerous and was willing to
34
continue taking medication and seek outpatient treatment .
32
See, e.g., In re Naomi B., 435 P.3d at 934 (affirming commitment was
least restrictive option when "the parties explored several possible alternatives,
including outpatient community support and assisted living facilities" and "none of the
proposed less restrictive alternatives would protect the public 'from the danger to others
that [respondent poses] and that [respondent] needed a facility like API that is locked
and . . . provides 24/7 care' "); In re Hospitalization of Duane M. , No. S-16885, 2020
WL 1165853, at *8 (Alaska Mar. 11, 2020) (noting "various substance abuse treatment
programs" and "different housing options" had been considered but were unable to take
respondent); In re Hospitalization of Marvin S., No. S-16899, 2019 WL 2880963, at *7
(Alaska July 3, 2019) (explaining why outpatient options would be unsuitable).
33
In In re Hospitalization of Rabi R., 468 P.3d 721 (Alaska 2020), the
superior court did not expressly consider outpatient options, but we nonetheless
affirmed involuntary commitment as the least restrictive option because the
respondent's "overall condition" required commitment when he refused to take
medication needed for recovery, believed he did not need treatment , and was likely to
deteriorate. Id . at 735-36; see also In re Luciano G., 450 P.3d at 1264 -65 (affirming
commitment as least restrictive option despite superior court's failure to consider
specific outpatient options because respondent was unwilling to engage in discharge
planning and would not seek treatment if not committed).
34
Compare In re Hospitalization of Stephen O., 314 P.3d 1185, 1195
(Alaska 2013) (holding respondent's "willingness to get treatment . . . demonstrates his
ability to reason and make autonomous choices, contrary to the involuntary
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----------------------- Page 15-----------------------
Neither the parties nor the master engaged in the specific inquiry required
to address the petition's allegations that less restrictive alternatives were considered by
the treatment facility and rejected. And Sergio does not point us to anything suggesting
he urged the superior court to consider and reject the master's findings and
recommendation on this point. We reiterate that less restrictive alternatives to
hospitalization in a secure, locked facility must be considered before ordering
involuntary commitment and that it is the State's burden - not the respondent's
contrary burden - to show that those alternatives do not exist or are not feasible. That
did not happen in this case, and we decline the St ate's invitation to scour the record for
scraps of information to support a finding, by clear and convincing evidence, that was
not made by the superior court.
CONCLUSION
For the reasons stated above, we VACATE the 90 -day commitment order .
commitment ordered"), with In re Rabi R., 468 P.3d at 735 -36 (affirming commitment
as least restrictive option when respondent refused to take medication needed for
recovery and believed he did not need treatment), In re Hospitalization of Jacob S.,
384 P.3d 758, 768-69 (Alaska 2016) (holding same when superior court found
respondent was unlikely to take medication if released), In re Luciano G., 450 P.3d at
1264-65 (holding same when respondent was unwilling to engage in discharge planning
and would not seek treatment if not committed), In re Hospitalization of Mark V .,
375 P.3d 51, 59 -60 (Alaska 2016) (holding same when respondent believed he did not
need medic ation), In re Hospitalization of Danielle B., 453 P.3d 200, 203-04 (Alaska
2019) (holding same when psychiatrist and respondent testified that respondent would
not participate in proposed outpatient treatment), and In re Hospitalization of Connor
J. , 440 P.3d 159, 165-67 (Alaska 2019) (holding same when respondent refused
medication on an outpatient basis and was refusing medication at time of hearing).
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