This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of:
Filed November 27, 2001
Dissenting, Kalitowski, Judge
Olmsted County District Court
File No. P8011370
Suzanne L. Peterson, Suzanne L. Peterson Law Office, 1530 Greenview Drive SW, Suite 210, Rochester, MN 55902 (for appellant Judith Kempton)
Raymond F. Schmitz, Olmsted County Attorney, Geoffrey A. Hjerleid, Assistant County Attorney, 151 Fourth Street SE, Rochester, MN 55904-3710 (for respondent Olmsted County Community Services)
Considered and decided by Toussaint, Chief Judge, Kalitowski, Judge, and Klaphake, Judge.
Appellant Judith Kempton challenges her commitment as mentally ill. Because there was no clear and convincing evidence showing that she posed a substantial likelihood of physical harm to herself or others, we reverse.
Appellant claims that there is no clear and convincing evidence that she posed a substantial likelihood of harm to herself or others. Findings of fact by the district court will not be set aside unless clearly erroneous. In re McGaughey, 536 N.W.2d 621, 623 (Minn. 1995). The issue of whether the evidence is sufficient to meet the standards for commitment is reviewed de novo. In re Knops, 536 N.W.2d 616, 620 (Minn. 1995).
A mentally ill person is defined as one with a substantial psychiatric disorder who
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. § 253B.02, subd. 13(a) (2000).
Appellant does not dispute the determination that she suffers from a substantial psychiatric disorder, but contends that there was no showing that she posed a substantial likelihood of physical harm to herself or others. This determination is crucial, because there is “no constitutional basis for confining [mentally ill] persons involuntarily if they are dangerous to no one and can live safely in freedom.” O’Connor v. Donaldson, 422 U.S. 563, 575, 95 S. Ct. 2486, 2493 (1975). Our supreme court has emphasized that “the substantial likelihood of physical harm must be demonstrated by an overt failure to obtain [necessities] * * * or by a recent attempt or threat to harm self or others[;]” mere speculation is insufficient. McGaughey, 536 N.W.2d at 623.
Based on the court-appointed examiners’ opinions, the district court found that appellant “is clearly psychotic to the extent that she is unable to provide for her own fundamental needs or act in a reasonable fashion regarding her or others’ safety,” and that she had no insight into her illness and no interest in treatment. The record shows the court-appointed examiners based their determination of harm on appellant’s vulnerability due to her delusions, and they believed that her symptoms would worsen until she obtains medication and treatment.
Neither the findings nor the record, however, demonstrates the substantial likelihood of physical harm required for commitment under Minn. Stat. § 253B.02, subd. 13(a). There was no showing that appellant was unable to provide for her own food, clothing, shelter, or medical care, or that she threatened herself or others. Cf. In re Gonzalez, 456 N.W.2d 724, 729 (Minn. App. 1990) (upholding commitment where proposed patient made threatening comments, could not provide for own shelter, and acted in manner that could provoke attacks from others). The supreme court has made it clear that speculation that individuals may fail to obtain necessities or attempt or threaten harm to themselves in the future is not sufficient; instead, there must be an overt failure showing such likelihood presently exists. McGaughey, 536 N.W.2d at 623; see In re Nadeau, 375 N.W.2d 85, 87-88 (Minn. App. 1985) (where proposed patient was appropriately dressed, not malnourished, and able to obtain shelter and where witnesses agreed she did not pose danger to others despite her delusions, commitment standards were not met). Here, the district court’s findings and the record are devoid of any such overt evidence.
The dissent cites appellant’s refusal to accept treatment and medication for her mental illness and the examiner’s prediction that her condition will worsen as a result. But basing the harm factor solely on appellant’s symptoms of mental illness, without more, would remove the separate harm requirement and impermissibly base the commitment solely on appellant’s mental illness. We therefore conclude that the substantial likelihood of physical harm required has not been met and reverse the district court.
Respondent seeks a remand in the event that this court determines the findings are insufficient. See In re Danielson, 398 N.W.2d 32, 37 (Minn. App. 1986) (remanding where evidence supported commitment but findings wholly inadequate). Because neither the findings nor the record supports commitment in this case, a remand is not an appropriate disposition. Instead, if appellant’s condition so warrants, a new petition for commitment may be filed at that time.
KALITOWSKI, Judge (dissenting)
I respectfully dissent. Because the district court had clear and convincing evidence from which to conclude that appellant posed a substantial likelihood of physical harm to herself, I would affirm.
Commitment as mentally ill requires a showing of a substantial likelihood of physical harm as demonstrated by “a failure to obtain necessary food, clothing, shelter, or medical care” or “a recent attempt or threat to physically harm self or others.” Minn. Stat. § 253B.02, subd. 13(a) (2000). The likelihood of harm cannot be speculative, but the courts need not wait for the person to “either come to harm or harm others before commitment as a mentally ill person is justified.” In re McGaughey, 536 N.W.2d 621, 623 (Minn. 1995).
It is undisputed that appellant suffers from schizophrenia. The first court-appointed examiner opined in her report that appellant is “currently psychotic to the extent that she is unable to provide for her own fundamental needs or act in a reasonable fashion regarding her or others’ safety.” The examiner testified that appellant refuses medication for her mental illness because she does not believe she is psychotic. Likewise, the second court-appointed examiner reported that appellant has no insight into her illness and no interest in treatment or medication. He also explained that her paranoid delusions are significant enough to place her “at risk for making decisions and taking actions that could be harmful to herself or others.” Moreover, he testified that without neuroleptic medication her condition could worsen and develop into an intact delusional or hallucinatory system.
This evidence provided the district court with clear and convincing evidence that appellant posed a substantial likelihood of physical harm to herself by failure to obtain medical care for her schizophrenia. I would affirm the district court’s commitment of appellant as mentally ill.
 Appellant also challenges the district court’s denial of her request for a continuance so that she could present additional witnesses. Because of our disposition in this matter, we decline to address this issue other than to note that it was within the district court’s discretion to deny the continuance motion. See Dunshee v. Douglas, 255 N.W.2d 42, 45 (Minn. 1977) (district court’s decision on continuance motion discretionary; appellate court will not reverse decision unless it constitutes abuse of discretion).