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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 Danielle B. (11/29/2019) sp-7420

In the Matter of the Necessity for the Hospitalization of Danielle B. (11/29/2019) sp-7420

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

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                       THE SUPREME COURT OF THE STATE OF ALASKA                                          



In  the  Matter  of  the  Necessity                                    )  

for  the  Hospitalization  of                                          )      Supreme  Court  No.  S-16665  

                                                                       )  

                       

DANIELLE B.                                                                                                                               

                                                                       )      Superior Court No. 3AN-17-00414 PR  

                                                                       )  

                                                                                                   

                                                                       )      O P I N I O N  

                                                                       )  

                                                                                                                           

                                                                       )     No. 7420 - November 29, 2019  

                                                                       )  



                                                                                                                 

                                    

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

                                                                                                     

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



                                                                                                          

                      Appearances: Callie Patton Kim, Assistant Public Defender,  

                                                                                                                    

                      and  Quinlan  Steiner,  Public  Defender,  Anchorage,  for  

                                                                                                          

                      Danielle   B.              Laura   Fox,   Assistant   Attorney   General,  

                                                                                                              

                      Anchorage,and JahnaLindemuth,Attorney General,Juneau,  

                                                        

                      for State of Alaska.  



                                                                                                           

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

                                            

                      and Carney, Justices.  



                                          

                      CARNEY, Justice.  



I.         INTRODUCTION  



                                                                                                                          

                      A woman who suffers from schizoaffective disorder was involuntarily  



                                                                                                                                         

committed for 30 days. She appeals, arguing that the State failed to prove that there were  



                                                                                                                                     

no less restrictive alternatives than commitment. Because the court did not err by finding  



                                                                                                                                            

clear and convincing evidence that there was no less restrictive alternative, we affirm the  



                                                                            

court's order committing her for involuntary treatment.  


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

II.       FACTS AND PROCEEDINGS
     



                                       1  

                     Danielle B.                                                                               

                                         is a 73-year-old woman who suffers from schizoaffective  



                                                                                                                                   

disorder, a chronic psychiatric illness involving psychotic symptoms and periods of  



                                                                                                                      

mania or depression.   Her illness has led to repeated hospitalizations and temporary  



                                                                                                                                

improvements with the help of medication.  But upon release she has deteriorated after  



                                                                                                 

stopping  the medication.                  As a result she has had  housing  problems  and  incidents  



                                                                                                                             

involving police due to her behavior, leading to more hospitalization.  Since the 1980s  



                                                                                                            

she has been admitted to Alaska Psychiatric Institute (API) 30 times.  



                                                                                                                                        

                     Danielle's most recent admission followed an incident in February 2017.  



                                                                                                                         

She became upset after being evicted from the motel where she was living and assaulted  



                                                                                                                      

a police officer who had been called to the scene.  The officer took her into emergency  



                                                                                                      

custody and delivered her to Providence Alaska Medical Center.  



                                                                                                                                 

                     An  emergency  room  counselor  interviewed  Danielle  shortly  after  she  



                                                                                                                                

arrived.        The  counselor's  notes  described  Danielle  as  "extremely  aggressive  and  



                                                                                                                       

hostile, . . . disorganized in her speech and appear[ing] delusional."  Danielle attempted  



                                                                                                                                        

to  assault hospital  staff  and had  to  be restrained.                           She refused to  take medication.  



                                                                                                                         

Because the counselor considered Danielle "likely to cause harm to others at this time  



                                                                                                                                 

and  gravely  disabled,"  he  filed  a  petition  to  authorize  hospitalizing  Danielle  for  



                 2  

evaluation.   



                     The court granted the petition for evaluation the following day, finding that  

                                                                                                                                 



Danielle was diagnosed with schizoaffective disorder, had previous admissions to API,  

                                                                                                                                



was currently aggressive and hostile, had assaulted a police officer and attempted to do  

                                                                                                                                   



the same to hospital staff, was disorganized in her speech and appeared delusional, and  

                                                                                                                                 



          1          A  pseudonym  has  been  used  to  protect  Danielle's  privacy.  



          2          AS  47.30.710.  



                                                                 -2-                                                              7420  


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

presented   as   likely   to   cause   harm   to   others   and  gravely   disabled.     Danielle   was  



transferred to API the next morning.                             



                       API medical staff later petitioned for a 30-day involuntary commitment                                    

                                  3   At the commitment hearing the State's expert witness, an API  

order for Danielle.                                                                                                                       



psychiatrist, testified that Danielle had assaulted a staff member that morning.   The  

                                                                                                                                                



psychiatrist testified that no one was hurt, but Danielle was "so loud and intrusive . . .  

                                                                                                                                                      



and nobody was able to [] console her or verbally redirect her, that she entered a crisis  

                                                                                                                                              



period and received involuntary medications."  

                                                                                   



                       The psychiatrist testified that he was familiar with Danielle from a number  

                                                                                                                                          



of previous admissions to API and that he was "familiar with her diagnosis, . . . patterns  

                                                                                                                                          



of  behavior,  and  response  to  medication."                                  He  did  not  think  Danielle  was  a  good  

                                                                                                                                              



candidate for a homeless shelter because "she'd be easily provoked, easily stressed, and  

                                                                                                                                                 



then would be at risk for possibl[e] victimization." He also testified that he was not sure  

                                                                                                                                                



whether she would eat if she were released.  

                                                                               



                       When asked if there were any less restrictive alternatives than commitment  

                                                                                                                                  



to API to treat Danielle's illness, the doctor responded that he did not "see her being  

                                                                                                                                             



involved in outpatient treatment at this point," noting that he did not believe that she had  

                                                                                                                                                 



any place to live, and that he did not think she would be safe.  He explained further that  

                                                                                                                                                 



although she had at times attempted outpatient treatment, his review of her records led  

                                                                                                                                                  



him to believe that "she's [n]ever bought in to followup with a . . . clinic or any kind of  

                                                                                                                                                    



outpatient treatment" after any of her previous discharges from API.  

                                                                                                                         



                       Danielle testified after the psychiatrist.   She acknowledged her mental  

                                                                                                                                           



illness but protested that she "can't diagnose myself" when asked if she knew what her  

                                                                                                                                                  



            3  

                                                                                                                                                  

                       On the same day API also filed a petition for involuntary medication, but  

                                                                                                                                     

it was withdrawn the next day after Danielle agreed to take medication.  AS 47.30.730.  



                                                                         -3-                                                                       7420  


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

                                                                                                                                

diagnosis was.  She also conceded that medication had helped her "[s]omewhat" in the  



                                                                                                                               

past but that she "really need[ed] talk therapy" and could not find the right clinic.  She  



                                                                                                                                 

testified that she had seen a doctor at Anchorage Community Mental Health Services for  



                                                                                                                                

"many years," but that the services there were "completely inadequate."  She said she  



                                                                                                                         

would look for a different agency if "they ha[d] some kind of a mental facility." Danielle  



                                                                                                   

also testified that she had a place to stay with her foster mother.  



                                                                                                                                 

                    In its oral findings the standing master found that the State had proved by  



                                                                                                                               

clear and convincing evidence that Danielle had a longstanding mental illness and that  



                                                                                                                    

without  medication  she  was  likely  to  cause  harm  to  others,  noting  her  aggressive  



                                                                                                                                      

encounters, including the assault of a police officer and API staff, to support its finding.  



                                                                                                                               

The standing master also found Danielle to be gravely disabled and unable to secure safe  



                                                                                                                      

housing.  The standing master additionally found that Danielle had refused voluntary  



                                                                                                                           

treatment at API and that there was no less restrictive alternative to API where she would  



                                                                       

participate in outpatient treatment if released.  



                                                                                                           

                    The superior court agreed with the standing master and issued its written  



                                                                                                                               

order of commitment on February 22.  It found by clear and convincing evidence that  



                                                                                                                                      

Danielle was mentally ill, likely to cause harm to herself or others, and gravely disabled.  



It found by clear and convincing evidence that there was no less restrictive alternative  



                                                                                                                            

to API that would adequately protect Danielle and the public. The court noted that "[h]er  



                                                                                                                          

behavior puts her at risk for harming others and for being a victim" - citing her assault  



                                                                                                                             

of the police officer, her lack of housing, and her current confusion. The court also noted  



                                                                                                                              

that Danielle had testified that "she would try to find alternative help elsewhere" but "[a]t  



                                                                  

this time there is no less restrictive place."  



                                                                                                                              

                    Danielle appeals her involuntary commitment at API, arguing that the State  



                                                                                               

did not prove that there was no less restrictive alternative for her.  



                                                                -4-                                                         7420
  


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

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                                                                                          



                                                                                                                               4  

and firm conviction                              that a mistake has been made.' "                                                    We grant "especially great                          



                                                                                                                                                                                           

deference"  when  the  "findings  require  weighing  the  credibility  of  witnesses  and  



                                                              5  

                                                                                                                                                                        

conflicting oral testimony."                                     "[W]hether factual findings comport with the requirements  



                                                                                                                                    6  

                                                                                                                                                                                          

of AS 47.30," is a question of law that we review de novo.                                                                              "[W]e will review de novo  



                                                                                                                                                                                 

the superior court's decisions and use our independent judgment to determine whether,  



                                                                                                                                                                                             

based on underlying factual findings made by the superior court, there was clear and  



                                                                                                                                                                                   

convincing evidence that involuntary [commitment] was in [respondent's] best interests  



                                                                                                             7  

                                                                                    

and was the least intrusive available treatment." 



IV.            DISCUSSION  



                                                                                                                                                                           

                               Danielle  argues  that  the  State  did  not  prove  by  clear  and  convincing  



                                                                                                                                                                                              

evidence that hospitalization at API was the least restrictive option.  She argues that the  



                                                                                                                                                                                   

court erred by not requiring the State to prove that community-based care and services  



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



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

overruled on other grounds by In re Hospitalization of Naomi B.                                                                                  , 435 P.3d 918 (Alaska            

2019)).  



               5              In re Hospitalization of Tracy C., 249 P.3d 1085, 1089 (Alaska 2011)  

                                                                                                                                                                                       

(quoting Bigley v. Alaska Psychiatric Inst., 208 P.3d 168, 178 (Alaska 2009)).  

                                                                                                                                                                  



               6               Wetherhorn, 156 P.3d at 375.  

                                                                                        



               7              In re Hospitalization of Lucy G., 448 P.3d 868, 878 (Alaska  2019) (citing  

                                                                                                                                                                                      

Myers v. Alaska Psychiatric Inst., 138 P.3d 238, 250 (Alaska 2006); see also id. at 19  

                                                                                                                                                                                               

n.53 ("[I]n the final analysis the answer must take the form of a legal judgment that  

                                                                                                                                                                                            

hinges not on medical expertise but on constitutional principles aimed at protecting  

                                                                                                                                                                             

individual choice." (quoting Myers, 138 P.3d at 250)).  

                                                                                                               



                                                                                               -5-                                                                                        7420
  


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

were inadequate to protect both Danielle and the public.                                               



                        Aninvoluntarycommitment                             petition will begrantedonly ifthereareno less                              

                                                                                                                  8   The petitioner, in this  

restrictive alternatives available to treat the individual's illness.                                                                                  



case the State, must prove by clear and convincing evidence that no such alternatives  

                                                                                                                                        

exist.9       A "least restrictive alternative" is "no more harsh, hazardous, or intrusive than  

                                                                                                                                                     



necessary to achieve the treatment objectives of the patient" and does not restrict an  

                                                                                                                                                        



individual except as reasonably necessary to provide treatment and protect the patient  

                                                                                                                                                 

and others from physical injury.10                              Commitment is authorized "only if no feasible less  

                                                                                                                                                      

restrictive alternative treatment is available."11  

                                                                                      



                        The        evidence             presented            during          Danielle's             commitment                 hearing  

                                                                                                                                             



demonstrated that she had assaulted or attempted to assault a police officer and the staff  

                                                                                                                                                     



at two different hospitals, with one assault occurring the morning of the hearing.  The  

                                                                                                                                                      



court noted that Danielle's "presentation during the hearing support[ed] the doctor's  

                                                                                                                                              



testimony" because she was "actively symptomatic, presenting with paranoia, derailed  

                                                                                                                                               



thoughts,  auditory  hallucinations  and  aggression/provocation."                                                        The  evidence  also  

                                                                                                                                                     



demonstrated that even within API's controlled environment she had to be involuntarily  

                                                                                                                                      



medicated to keep herself and others safe.  

                                                                              



                        The  API  psychiatrist  testified  that  Danielle  would  not  participate  in  

                                                                                                                                                        



outpatient treatment and was likely to cause harm to herself and others if released.  He  

                                                                                                                                                        



testified  that  Danielle  was  not  currently  able  to  participate  in  or  benefit  from  any  

                                                                                                                                                      



            8           In  re  Hospitalization  of  Connor  J.,  440  P.3d  159,  165  (Alaska  2019);  In  re  



Hospitalization  of  Mark   V.,  375  P.3d  51,  58  (Alaska  2016);  see  AS  47.30.730(a)(2).  



            9           In  re  Connor  J.,  440  P.3d  at   165  (quoting  In  re  Mark   V.,  375  P.3d  at  58).  



            10          AS  47.30.915(11).  



            11          In  re  Hospitalization  of  Naomi  B.,  435  P.3d  918,  932  (Alaska  2019).  



                                                                            -6-                                                                    7420
  


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

treatment outside the hospital and that additional restrictions - crisis medications -                                                                                                                           



were needed even while she was hospitalized.                                                                              He also testified that she had never                                           



previously "bought into" outpatient treatment while a patient at API.                                                                                                      And he expressed     



concern that her confusion put her at risk of hypothermia, while her aggressiveness made                                                                                                                   



it likely that she would either victimize others or, as a woman in her 70s, become a                                                                                                                                



                                    12  

victim herself.                           



                                 Danielle  herself  testified  that  she  would  not  participate  in  outpatient  

                                                                                                                                                                                             



treatment at the provider both parties acknowledged was a potential alternative.  She  

                                                                                                                                                                                                             



testified that she wanted to obtain outpatient treatment but was not willing to return to  



the only outpatient provider known to be available, and where she had been treated -  

                                                                                                                                                                                                                 



with inconsistent results  - for "many years."  She also conceded that she did not have  

                                                                                                                                                                                                            



an alternative provider or a plan to seek treatment at any specific place.  

                                                                                                                                                                                    



                                 The superior court was required to "consider whether a less restrictive  

                                                                                                                                                                                              

                                                                                                                                                 13  The standing master's oral  

alternative would provide adequate treatment" for Danielle.                                                                                                                                                    

                                                                                                                           



findings make clear that she considered the testimony from both witnesses about the  

                                                                                                                                                                                                                



availability and feasibility of alternatives to commitment before concluding that no less  

                                                                                                                                                                                                               



restrictive  alternative  would  adequately  protect  both  Danielle  and  the  public  while  

                                                                                                                                                                                                         



providing her with the treatment she needed.  

                                                                                                                 



                                 The superior court agreed with the standing master's findings in its written  

                                                                                                                                                                                                      



order. After concluding that no less restrictive facility would adequately protect Danielle  

                                                                                                                                                                                                   



or the public, the superior court ordered Danielle committed for up to 30 days.  Because  

                                                                                                                                                                                                   



                 12              See In re Mark V.                           , 375 P.3d at 60 (affirming 30-day commitment because                                                                  



"mental illness and resulting behavior currently impair his judgment and reasoning to the                                                                                                                        

point   where   he   would   be   entirely   unable   to   fend   for   himself   independently   in   the  

community").  



                 13              In re Hospitalization of Jacob S., 384 P.3d 758, 768 (Alaska 2016).  

                                                                                                                                                                                          



                                                                                                        -7-                                                                                                7420
  


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

the evidence provided by both witnesses demonstrated that commitment was necessary                                                                                                        



                                                                                                                                                               14  

for "the protection of [Danielle and] others from physical injury,"                                                                                                                      

                                                                                                                                                                    and that outpatient  



                                                                                                                                                                                          

treatment was not feasible, the superior court did not err in finding that no less restrictive  



                                                                     

placement alternatives were available.  



V.              CONCLUSION  



                                                                                                                                                                                               

                                Because,  upon  de  novo  review,  we  agree  with  the  superior  court's  



                                                                                                                                                                                             

conclusion that no less restrictive alternative was available, we AFFIRM the superior  



                                                                                                             

court's involuntary commitment order on its merits.  



                14  

                                                    

                                See AS 47.30.915(11)(B).  



                                                                                                     -8-                                                                                                      7420  

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