This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C7-99-1692

In Re: Robert Biron Johnson

Filed February 15, 2000
Affirmed
Halbrooks, Judge

McLeod County District Court
File No. C299140

Ramona C. Lackore, 432 West Litchfield Avenue, PO Box 1529, Willmar, MN 56201 (for appellant)

Michael K. Junge, McLeod County Attorney, Mark Metz, Assistant County Attorney, 830 East 11th Street, #214, Glencoe, MN 55336 (for respondent)

Considered and decided by Halbrooks, Presiding Judge, Lansing, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

Appellant Robert Johnson challenges an order committing him as mentally ill to the Willmar Regional Treatment Center (WRTC). Appellant argues that the district court erred in determining he had recently attempted or threatened to physically harm others, and contends that the WRTC is not the least restrictive alternative and cannot meet his treatment needs. We conclude the district court did not err in committing Johnson to WRTC and, therefore, we affirm.

FACTS

Johnson suffers from mild dementia and mixed bi-polar disorder as a result of a traumatic brain injury he suffered in an assault in January 1997. Due to his condition, Johnson lacks the ability to engage in higher-level organization, insight, and judgment and these deficits have led to an inability to control his behavior and violence.

In October 1998, Johnson assaulted a friend. The following month he was placed at WRTC and shortly thereafter committed as chemically dependent. While hospitalized, Johnson assaulted a staff member sometime between November 1998 and February 1999. In March 1999, Johnson became angry in a staffing meeting and put his fist through a glass window. On August 11, 1999, a McLeod County social worker petitioned to have Johnson committed as mentally ill. In the course of a petition-related examination with Jon Standahl, Ph.D., Johnson raised his arm in what the psychologist felt was a threatening manner. After a hearing, the district court committed Johnson to WRTC as mentally ill. This appeal followed.

D E C I S I O N

When reviewing a commitment judgment, we view the record in the light most favorable to the district courtís decision. In re Knops, 536 N.W.2d 616, 620 (Minn. 1995).

Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.

Minn. R. Civ. P. 52.01. Whether the evidence is sufficient to meet the standard for commitment is a question of law, which we review de novo. In re Knops, 536 N.W.2d at 620.

To commit a person civilly as mentally ill, the district court must have clear and convincing evidence that the person is "mentally ill," as defined by the Minnesota Civil Commitment and Treatment Act ("Commitment Act"), Minn. Stat. ßß 253B.01-.23 (1998). See Minn. Stat. ß 253B.09, subd. 1 (setting out clear-and-convincing standard). The Commitment Act defines a mentally ill person as:

[A]ny person who has an organic disorder of the brain or a substantial psychiatric disorder of thought, mood, perception, orientation, or memory which grossly impairs judgment, behavior, capacity to recognize reality, or to reason or understand, which is manifested by instances of grossly disturbed behavior or faulty perceptions and poses a substantial likelihood of physical harm to self or others as demonstrated by:

(1) a failure to obtain necessary food, clothing, shelter, or medical care as a result of the impairment; or

(2) a recent attempt or threat to physically harm self or others.

Minn. Stat. ß 253B.02, subd. 13(a).

In this case, Johnson does not dispute he suffers from a substantial psychiatric disorder. But he challenges the sufficiency of the evidence to support the district courtís finding that he poses a substantial likelihood of physical harm to himself or others as demonstrated by a recent attempt to physically harm himself or others.

1. Attempt to harm others

After a careful review of the record, we conclude there is clear and convincing evidence to support the district courtís finding that Johnson made a recent attempt or threat to physically harm others. At the hearing, court-appointed psychologist Jon Standahl, Ph.D., testified that Johnson raised his arm in a threatening motion while Dr. Standahl was questioning him about his mental illness and anger. Although Johnson contends his action was only a gesture and not a threat to harm anyone, it was within the district courtís discretion to find Dr. Standahlís testimony more credible than Johnsonís testimony on this issue. See Minn. R. Civ. P. 52.01 (stating "due regard" shall be given to the trial courtís evaluation of witnessesí credibility).

Moreover, on the facts of this case, we conclude the assaults in October 1998 and late 1998 or early 1999 are not too remote to constitute a recent attempt or threat to physically harm others under Minn. Stat. ß 253 B.02, subd. 13(a). In determining whether a person has engaged in a recent attempt or threat to physically harm others, it is appropriate to consider the personís environment. As this court has previously held, "good behavior" in an "artificial environment" such as a prison or a hospital, "is not conclusive on the question of dangerousness to the public, when experts testify the proposed patient remains mentally ill and dangerous." In re Irwin, 529 N.W.2d 366, 374 (Minn. App. 1995) (quoting In re Hofmaster, 434 N.W.2d 279, 281 (Minn. App. 1989)), review denied (Minn. May 16, 1995).

From November 1998 until the petition hearing ten months later, Johnson was either hospitalized or in prison. As testified to by court-appointed psychologist Edmond Nadolny, Ph.D., in these controlled environments, Johnson is less likely to experience provocation resulting in aggressive responses and more likely to be conscious of the need to contain his reactions. Both Drs. Standahl and Nadolny testified that Johnson does not yet understand his mental illness, has not yet learned cognitive strategies to deal with his impulsive behavior, and remains a danger to others. Accordingly, the district court did not err in finding Johnson poses a substantial likelihood of physical harm to others.

2. Least restrictive alternative meeting treatment needs

Johnson also contends the district court erred in committing him to WRTC because it is not the least restrictive alternative and cannot meet his treatment needs. If the district court finds that a person is mentally ill, and that there is no suitable alternative to commitment, it shall commit the patient to the least-restrictive treatment program that can meet the patientís needs. Minn. Stat. ß 253B.09, subd. 1. A person receiving services under chapter 253B "has the right to receive proper care and treatment, best adapted, according to contemporary professional standards, to rendering further supervision unnecessary." Minn. Stat. ß 253B.03, subd. 7. The district courtís decision will not be reversed if the record supports the finding and the decision was not clearly erroneous. In re King, 476 N.W.2d 190, 193 (Minn. App. 1991).

Johnsonís treating physician at Bethesda Hospital, Robert Sevenich, M.D., and the court-appointed psychologists, all recommended an initial commitment to WRTC. Dr. Sevenich stated that Johnson suffered from "mood liability, anger outbursts, and physical aggression" and recommended he remain at WRTC for his protection and the protection of others. Similarly, Drs. Standahl and Nadolny testified that Johnson needed medical stabilization before he could be transferred to a facility specializing in traumatic brain injuries. Dr. Nadolny stated there was no indication whether or not Johnson was stable at the time of the hearing, and his treating physician at WRTC was in the best position to make this determination. Both psychologists also testified WRTC was capable of providing Johnson with the medical stabilization he needed.

The district court recognized WRTC could not meet Johnsonís long-term rehabilitation needs, but determined, based on the expertsí reports and testimony, that Johnson was not yet stabilized and WRTC was the least-restrictive alternative for meeting Johnsonís immediate need for stabilization. Johnson contends WRTC is merely a place to "warehouse" him indefinitely and will not provide him with the therapy he needs to return to society. But Johnsonís initial commitment under Minn. Stat. ß 253B.02, subd. 13, may not exceed a period of six months. Minn. Stat. ß 253B.09, subd. 5. After that time, his case must be reviewed. Minn. Stat. ß 253B.12. If, in fact, WRTC is not the appropriate facility for Johnsonís treatment beyond stabilization, a subsequent change is possible if found appropriate upon later review.

We have previously upheld continued hospital commitment as the least-restrictive alternative when the patient needed to be stabilized on medication and no expert recommended release. In re Melcher, 404 N.W.2d 309, 311-12 (Minn. App. 1987); In re Adams, 352 N.W.2d 117, 119 (Minn. App. 1984). The district courtís determination that commitment to WRTC was the least-restrictive alternative and able to meet Johnsonís initial treatment needs was not clearly erroneous.

Affirmed.