This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-99-1643

 

 

In the Matter of Andre T. Bell

 

 

Filed March 14, 2000

Affirmed

Halbrooks, Judge

 

Hennepin County District Court

File No. P29960088

 

 

Gregory R. Solum, 5275 Edina Industrial Blvd., Suite 105, Edina, MN 55439; and

 

Nancy Olkon, 431 South 7th Street, Suite 2444, Minneapolis, MN 55415 (for appellant)

 

Amy Klobuchar, Hennepin County Attorney, Reid S. Raymond, Assistant County Attorney, C-2000 Hennepin County Government Center, Minneapolis, MN 55487 (for respondent petitioner)

 

 

            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 Andre T. Bell challenges his involuntary commitment, arguing that (1) the evidence was insufficient to support his commitment as a chemically-dependent person; (2) the trial court erred in ruling that he knowingly and freely waived his presence at the trial; and (3) the appeal is not moot despite his subsequent discharge from commitment.  We affirm.   

FACTS

 

            On April 13, 1999, appellant was committed as a chemically-dependent person to Fergus Falls Regional Treatment Center.  He appealed that commitment to this court on May 3, 1999.  On approximately May 14, 1999, appellant was discharged from his commitment at Fergus Falls.  As a result of the discharge, this court filed an unpublished opinion on August 24, 1999, dismissing the appeal as moot for lack of an actual controversy.  See In re Andre T. Bell, No. C6-99-727 (Minn. App. Aug. 24, 1999).  In addition, this court rejected appellant’s challenges to the district court’s findings, and the sufficiency of the evidence, as well as appellant’s contention that collateral legal consequences existed.   

            Within the three-month period following appellant’s discharge from the Fergus Falls Regional Treatment Center, he had approximately 15 admissions to the Salvation Army Detox.  On about 11 of the admissions, the Minneapolis Police transported appellant to detox.  In total, appellant spent at least 40 out of the next 81 days at the Salvation Army Detox.

On July 21, 1999, Gary Wick, treatment team member from the Salvation Army Detox, filed a petition alleging that appellant was a chemically-dependent person in need of hospitalization.  At the trial court’s request, appellant was examined by Gary Fischler, Ph.D.

The commitment hearing was originally scheduled for July 29, 1999, but was continued to August 5, 1999, at appellant’s request, to allow him the opportunity to contact witnesses.   

Appellant failed to appear at the hearing on August 5, 1999, and his attorney was unable to explain his absence.  Appellant’s counsel moved for a second continuance.  The motion was denied, but appellant was given until the close of business on August 9, 1999, to present evidence that the hearing should be reopened because “he was unavoidably detained or that there was a good reason completely beyond his control for his not being [present].”

Four witnesses testified on behalf of respondent:  Gary Wick, the petitioner and Rule 25 Assessor; Matthew George, a Minneapolis Park Police Officer; Nina Keeling, nursing supervisor from the detox center; and Dr. Fischler.  Wick testified to appellant’s pattern of admits and stated that the detox staff believes appellant is incapable of managing his affairs due to his habitual, excessive use of alcohol.  Officer George testified that in the preceding 1 1/2 months he had seen appellant “in various stages of consciousness.”  George further stated that on two specific occasions he found appellant passed out to the point that rousing him was difficult.  Further, George stated he believes appellant is vulnerable to being victimized due to his frequent intoxicated state. 

Nurse Keeling testified generally about appellant’s many recent admits to detox and specifically about one incident where appellant’s blood alcohol concentration was .323.  She stated that the number of admits indicates a habitual and excessive use of alcohol.  Because appellant’s highest blood-alcohol content (.323) occurred on appellant’s then most recent admit, she believed that appellant exhibited a “progressive-wise danger” of liver and other physical problems.  Keeling recommended long-term treatment in a program with psychological services. 

Dr. Fischler testified that he evaluated appellant on July 26, 1999, concluding appellant was chemically dependent and, as a result, unable to manage his affairs.  Like Keeling, Dr. Fischler recommended long-term chemical dependency treatment.

No witnesses were called at the hearing by appellant’s attorney.  No evidence that appellant’s failure to appear was beyond his control was provided to the court by the August 9, 1999 deadline.  Consequently, the court held that appellant had been informed of the time and place of the trial and had freely and knowingly failed to attend.  The court then found appellant to be a chemically-dependent person, unable to manage his affairs by reason of habitual and excessive use of alcohol, and committed him to the Anoka-Metro Regional Treatment Center (AMRTC).

            On August 17, 1999, appellant moved to reopen the record, claiming his reason for not appearing was due to his father’s grave medical condition.  The district court denied appellant’s motion. 

            On August 30, 1999, appellant was provisionally discharged from AMRTC with certain conditions attached to his release. 

            On September 27, 1999 appellant filed an appeal with this court challenging his commitment to AMRTC.

At the request of appellant’s case manager, appellant’s provisional discharge was revoked by the district court on September 17, 1999, on the grounds, inter alia, that appellant was readmitted to detox on or about September 4, 1999, and failed to keep an appointment with his case manager on September 7, 1999.  Appellant moved the court to rescind the revocation.  The district court held hearings on October 4 and 7, 1999, and affirmed appellant’s revocation on October 15, 1999. 

Five days later, on October 20, 1999, appellant was directly discharged from commitment and further proceedings were terminated by order of the district court. 

            In light of appellant’s discharge from AMRTC, and given the fact that we dismissed appellant’s prior challenge to his Fergus Falls commitment as moot, this court requested that the parties address in their briefs whether the second commitment appeal is now moot.

D E C I S I O N

1.         Mootness

 

            An appellate court will decide only actual controversies; an issue will be deemed moot if the court is unable to grant effectual relief which will result in the dismissal of the appeal.  In re Schmidt, 443 N.W.2d 824, 826 (Minn. 1989).  Nonetheless, there are exceptions to this rule.  One exception is if the issues are capable of repetition yet evading review.  Id.  The other exception occurs when collateral consequences attach to the judgment.  See State ex rel. Doe v. Madonna, 295 N.W.2d 356, 360-61 (Minn. 1980).  Appellant argues that this matter is not moot because both exceptions apply.

            The Minnesota Supreme Court recently analyzed a similar argument in the context of the Minnesota Commitment and Treatment Act, Minn. Stat. § 253B.064-066 (1998).  In re McCaskill, 603 N.W.2d 326 (Minn. 1999).  In McCaskill, the court concluded that the issue raised — the sufficiency of the evidence in the particular commitment — was unique to and related only to that commitment and was, therefore, not capable of repetition yet evading review.  Id. at 328.  Likewise, in the instant case, appellant’s challenge to the sufficiency of the evidence supporting the trial court’s commitment of him to AMRTC is unique to this case.  Thus, his claim, like the one in McCaskill, is not “capable of repetition yet evading review.”

            Appellant further contends that his discharge from his most recent chemical-dependency commitment does not avoid the possibility of adverse collateral legal consequences.  See In re Ballay, 482 F.2d 648, 651-53 (D.C. Cir. 1973) (identifying numerous “legal disabilities radiating from the label ‘mentally incompetent’” as collateral consequences of commitment); Elzie v. Commissioner of Pub. Safety, 298 N.W.2d 29, 32 (Minn. 1980) (reviewing the merits of a challenge to the notice and hearing procedures used to suspend plaintiffs’ drivers’ licenses because although the suspensions had terminated, the plaintiffs could face suspension again).  According to appellant, the court in the second commitment proceeding adversely utilized findings from the first commitment order in determining to order the second commitment.

            Although not directly on point, the supreme court’s decision in McCaskill also provides guidance on this issue.  In McCaskill, the supreme court concluded that due to the seriousness of the potential consequences created by the early intervention provisions in Minn. Stat. § 253B.065, subd. 5, collateral consequences attach to persons committed as mentally ill under Minn. Stat. § 253B.09 (1998).  McCaskill, 603 N.W.2d at 331.  The supreme court explained that under these provisions,

            [i]f a petition for early intervention relating to [mentally ill patient] is filed within three years of his commitment, the court will consider this commitment in determining whether early intervention is warranted.  * * *

 

            [A] court may rely on a commitment from which a proposed patient was unable to obtain review to support further involuntary treatment.  A court may also compare a proposed patient’s current symptoms or behavior with that precipitating his or her prior commitment though the sufficiency of the evidence supporting the prior commitment has never been reviewed.  In this respect, appellant’s inability to have the specific facts leading to this commitment reviewed could affect the outcome of a subsequent early intervention.

 

Id. at 330.  While we recognize early intervention provisions apply only to commitments of mentally ill persons, we conclude that similar “real and substantial disabilities” attach as a consequence of civil commitments for chemical dependency. 

            Multiple past commitments for chemical dependency treatment may very well affect later judicial determinations as to the need for further treatment or commitment because a person’s past behavior is generally accepted as relevant to an assessment of current behavior.  See, e.g., In re Linehan, 518 N.W.2d 609, 614 (Minn. 1994) (listing person’s history of violent behavior as a factor for determining likelihood of person’s future dangerousness).  If the person has been discharged from treatment before appellate review can occur, the appropriateness of the past commitments is never determined, but the record of commitments remains.  It seems likely that such a record could influence a court to order further commitment or intervention. 

            Moreover, the McCaskill court’s concern that many patients will be discharged prior to receiving appellate review of commitments for mental illness applies equally to commitments for chemical dependency because both circumstances are subject to the same statutory structure.  Minn. Stat. § 253B.09, subd. 5, provides that an initial commitment order may not exceed six months for any type of civil commitment, and Minn. Stat. § 253B.12, subd. 2 (1998), provides for early discharge of a patient “not in need of further institutional care * * * .”  Thus, as occurred in the instant case, this statutory structure may result in a patient being discharged and re-committed prior to receiving appellate review of the initial commitment. 

            Because we conclude that collateral consequences exist, we address the merits of appellant’s arguments.

2.         Sufficiency of the Evidence

            When reviewing a commitment judgment, we view the record in the light most favorable to the district court’s 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 assess the credibility of the witness. 

 

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.  Knops, 536 N.W.2d at 620. 

            Appellant’s primary contention is that the evidence at trial was insufficient to support his commitment as a chemically-dependent person.

            The statute defines chemically dependent to mean any person

                        (a) determined as being incapable of self-management or management of personal affairs by reason of the habitual and excessive use of alcohol, drugs, or other mind-altering substances; and (b) whose recent conduct as a result of habitual and excessive use of alcohol, drugs, or other mind-altering substances poses a substantial likelihood of physical harm to self or others as demonstrated by (i) a recent attempt or threat to physically harm self or others, or (ii) evidence of recent serious physical problems, or (iii) a failure to obtain necessary food, clothing, shelter, or medical care.

 

Minn. Stat. § 253B.02, subd. 2 (1998).  The standard of proof requires the petitioner to show by clear and convincing evidence that involuntary commitment is the least restrictive alternative.  Minn. Stat. § 253B.09, subd. 1.

            A.        Self-Management of Personal Affairs

            Appellant contends that there is insufficient evidence that he was incapable of self-management based on his habitual and excessive use of alcohol.  Minn. Stat. § 253B.02, subd. 2(a).  Appellant argues the evidence offered showing his failure to provide the necessities of life was speculative in nature and, therefore, insufficient as a matter of law.  In support of his argument, appellant claims that there are no pending legal charges, he is well-nourished and well-dressed, he can obtain shelter, and his medical problems are covered by insurance.

            Self-management “refers to one’s handling of the ordinary occurrences of daily life.”  In re Heurung, 446 N.W.2d 694, 696 (Minn. App. 1989).  One who is capable of self-management performs the ordinary activities of daily life, copes with ordinary stresses, and independently cares for oneself.  Id. 

            Here, the respondent presented evidence that appellant (1) had 30 detox admissions between November 5, 1998 and March 1, 1999; (2) was committed to the Fergus Falls Regional Treatment Center from March 1, 1999 to mid-May 1999, and immediately resumed drinking upon discharge; and (3) had 15 detox admissions between May 14, 1999, and August 2, 1999, with blood-alcohol contents ranging from .188 to .323. 

            While there was no showing that appellant was poorly nourished or poorly dressed, appellant was described as basically “residing” in the detox center due to his continual intoxication and the number of times his alcohol consumption resulted in admissions.  Detox team treatment members Wick and Nurse Keeling testified they believed appellant was homeless and unable to manage his affairs.

            Under these circumstances, it is clear appellant is not performing the ordinary activities of daily living.  Instead, his habitual alcohol use has repeatedly required outside intervention to assist in providing for his basic needs. 

            B.        Likelihood of harm

            Next, appellant contends that his conduct did not pose a substantial likelihood of physical harm to himself or others.  Minn. Stat. § 253B.02, subd. 2(b).  We disagree.

            Almost all of appellant’s detox admissions have resulted from police finding him “down and out” on the streets or in a park.  Officer George testified as to appellant’s increased vulnerability due to his frequent incapacitated state.  Further, Nurse Keeling testified that because of appellant’s pattern of increasing blood-alcohol content (including .323), she believes appellant exhibits a progressive danger of liver and other physical problems.  No evidence was brought forth by appellant to contradict respondent’s witnesses.  We, therefore, conclude appellant’s conduct poses a substantial likelihood of physical harm to himself.

3.         Waiver

            Finally, appellant argues the trial court erred in holding that he knowingly and freely waived his presence at the commitment hearing.  He appears to claim that under Minn. Stat. § 253B.08, subd 5(a) (1998), the court was required to put appellant’s waiver on record.  Absent that waiver, the court was mandated not to proceed.  Section 253B.08, subd. 5(a) states:

Absence permitted.  (a) The court may permit the proposed patient to waive the right to attend the hearing if it determines that the waiver is freely given.  At the time of the hearing the patient shall not be so under the influence of drugs, medication, or other treatment so as to be hampered in participating in the proceedings.  When the licensed physician or licensed psychologist attending the patient is of the opinion that the discontinuance of drugs, medication, or other treatment is not in the best interest of the patient, the court, at the time of the hearing, shall be presented a record of all drugs, medication or other treatment which the patient has received during the 48 hours immediately prior to the hearing.

 

Nothing in that section requires appellant’s waiver to be on the record or prevents the hearing from proceeding in appellant’s absence after the court finds appellant freely waived his appearance.

            Appellant claims that his nonappearance was necessary due to his father’s grave medical condition and that it did not constitute a free waiver of his presence at trial.  However, it was not until August 17, 1999, when appellant filed a motion to reopen the record, that anyone became aware of the reasons as to why appellant failed to appear at the August 5, 1999 hearing.  The court inquired at the August 5 hearing as to appellant’s whereabouts.  Because no one, including appellant’s attorney, knew of appellant’s whereabouts, the court proceeded and informed the parties that appellant would have four days to provide evidence that his nonappearance was due to circumstances beyond his control.  No such evidence was provided by appellant. 

            While appellant admits he was aware of the hearing date, he claims that his decision to be with his ill father was not made “freely.”  The court heard directly from appellant on this issue on August 23, 1999.  Appellant was unable to present verifiable evidence concerning his absence from the hearing.  Further, it appears the trial court did not find appellant’s testimony to be credible.  See Minneapolis Comm. Dev. Agency v. Opus Northwest, LLC, 582 N.W.2d 596, 602 (Minn. App. 1998) (stating “[f]indings of fact and credibility determinations, upon which the trial courts base legal conclusions, will not be set aside unless clearly erroneous”).  The trial court did not err in holding that appellant waived his right to be present at the hearing.

            Affirmed.