This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of
the Civil Commitment of:
Filed March 11, 2003
Dakota County District Court
File No. P5029259
Joe C. Dalager, Thuet, Pugh, Rogosheske & Atkins, Ltd., 222 Grand Avenue West, Suite 100, South St. Paul, Minnesota 55075 (for appellant McNamara)
Jim Backstrom, Dakota County Attorney, Jennifer Jackson, Assistant County Attorney, Dakota County Judicial Center, 1560 Highway 55, Hastings, Minnesota 55033 (for respondent petitioner)
Considered and decided by Hudson, Presiding Judge, Schumacher, Judge, and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges his commitment as mentally ill, arguing that: (a) he was improperly taken into custody; (b) the trial court did not have probable cause to support his pre-hearing confinement; and (c) the record does not support a finding that he is mentally ill. Because the pre-hearing confinement was proper and the record supports the trial court’s finding that appellant is mentally ill, we affirm.
On July 26, 2002, appellant Calvin McNamara was taken into custody from his apartment by Burnsville police and transported to Regions Hospital for a health and welfare check. McNamara’s apprehension came at the request of his father (petitioner). McNamara is a thirty-seven-year-old male who suffers from schizophrenia. He was first committed for this illness in 1989, and hehas had six commitments since that time, most recently in 1996. Medical records indicate that his illness had been controlled through medication, although McNamara claims he has not taken any medication since 1996. Medical records also indicate that he had taken neuroleptic medication until shortly before the start of these proceedings. McNamara has a history of violent behavior, which includes an assault against petitioner in 1996, and property damage in 1992. For the past four years, McNamara resided with petitioner, held a job, and, according to petitioner, complied with his medication schedule. A few weeks prior to this commitment, McNamara moved out of petitioner’s home and rented an apartment in Burnsville.
Petitioner became concerned about McNamara’s condition after noticing signs of decompensation. Petitioner recounts that in or around June 2002, McNamara stopped taking medication and left home, staying in a fish house up north for about a month. McNamara then drove to San Antonio, Texas, where he stayed with relatives for a day and a half, and returned home. These relatives contacted petitioner, expressing concerns about McNamara’s behavior. According to petitioner, McNamara was irate with petitioner when he came home, and petitioner noted significant changes in McNamara’s behavior and mood. Specifically, McNamara was becoming isolated, irritable, and argumentative. He appeared to respond to voices and stimuli heard only by him. Petitioner believed he was playing music loudly in an attempt to drown out these voices. Eventually, McNamara went to stay with a friend in Burnsville. But shortly thereafter, McNamara’s roommate contacted petitioner and informed him that he was "kicking" McNamara out of the apartment because of McNamara’s behavior. This information prompted petitioner to contact the Burnsville Police Department and ask that McNamara be taken into custody because petitioner believed that McNamara was now homeless.
During his stay at Regions Hospital awaiting the pre-commitment hearing, McNamara was uncooperative with the hospital staff, continually denied that he was mentally ill, and refused to take any medication. At the pre-commitment hearing on August 5, 2002, McNamara testified that he had not been kicked out of his apartment, was not homeless, and had sufficient income to provide for his daily needs. McNamara also admitted that he was not currently taking any medication. The trial court found that McNamara posed a likelihood of serious imminent physical harm to himself or others if he did not remain confined and ordered McNamara’s continued confinement until the commitment hearing.
The trial court, the Honorable Michael V. Sovis presiding, held the commitment hearing on August 22, 2002. At the start of the hearing, McNamara moved to have the proceedings dismissed, arguing that his initial apprehension and hold was invalid. McNamara had not raised this issue at the pre-commitment hearing. The trial court denied McNamara’s motion, concluding that McNamara was impermissibly attacking its earlier pre-commitment hearing ruling that sufficient probable cause existed to continue McNamara’s confinement pending the final hearing.
At the hearing, the court-appointed examiner, Dr. Roger Sweet, testified that although McNamara appeared to be adequately caring for himself when he was taken to Regions Hospital, McNamara continued to deny his mental illness and had vague plans about where he would go if discharged from the hospital. In addition, Dr. Sweet testified that, according to hospital records, McNamara pushed a nurse at the hospital and followed hospital staff around in a threatening manner when his demands were not met. Hospital records also indicate that McNamara jabbed a nurse in the chest, but then said, “Can’t you take a friendly tap? We should spar sometime.” Based on these behaviors, hospital staff expressed great concern that McNamara posed significant risk to others. Dr. Robert Roddy, a psychiatrist who interviewed McNamara on two occasions, testified that McNamara has been diagnosed with paranoid schizophrenia, lacks insight into his illness, and appears to be delusional. Dr. Roddy also testified that McNamara constitutes a danger to himself and others. But Dr. Roddy noted that McNamara has previously responded positively to neuroleptic medication.
McNamara testified that he was not homeless and that his roommate had not kicked him out. He produced a copy of a canceled check in the amount of $600, dated July 8, 2002, payable to his landlord. McNamara testified that the check was for his deposit and the July 2002, rent. McNamara also testified that he had approximately $800 in his bank account to cover his basic needs.
The trial court concluded that McNamara was mentally ill and ordered him committed dually to Regions Hospital and the Anoka Metro Regional Treatment Center. The trial court also signed an order authorizing the use of neuroleptic medication. This appeal followed.
D E C I S I O N
A reviewing court is not bound by and need not give deference to a trial court’s decision on a purely legal issue. Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984). Our review in a civil commitment case is limited to "whether the trial court complied with the requirements of the statute." In re Gonzalez, 456 N.W.2d 724, 727 (Minn. App. 1990). We will not set aside findings of fact justifying commitment unless they are clearly erroneous. In re Schaefer, 498 N.W.2d 298, 300 (Minn. App. 1993).
McNamara argues that he was improperly taken into custody and that the trial court abused its discretion when it denied his motion to dismiss. An officer is authorized to take a person into custody if the officer has "reason to believe that the person is mentally ill and in danger of injuring self or others if not immediately detained." Minn. Stat. § 253B.05, subd. 2(a) (2002). Specifically, McNamara claims that the police failed to make the written report required under section 253B.05, subdivision 2(a), specifying the reasons for and circumstances under which McNamara was taken into custody. But McNamara did not challenge the reliability of petitioner’s information until the final commitment hearing, rather than at the pre-commitment hearing when the issue of probable cause was before the trial court. As a consequence, the trial court denied McNamara’s motion without considering his claim that his initial apprehension and hold was invalid. In addition, McNamara never raised the issue of the absence of the police report to the trial court, waiting instead to raise it for the first time here on appeal.
Generally, this court will not consider matters not argued and considered in the trial court. Thiele v. Stich, 425 N. W.2d 580, 582 (Minn. 1988). Consequently, we do not consider the issue of the lack of a report. In any case, because McNamara was afforded a preliminary hearing where he had an opportunity to address the issue of custody, and because McNamara was properly confined after the preliminary hearing, the validity of his initial apprehension and hold is not properly before us. See In re Galusha, 372 N.W.2d 843, 846 (Minn. App. 1985) (upholding subsequent confinement although patient not properly taken into custody, concluding patient afforded preliminary hearing and properly held following hearing).
McNamara argues, for the first time on appeal, that the record did not support a finding of probable cause for his continued confinement pending the final hearing. As previously stated, this court generally will not consider matters not argued before the trial court. Thiele, 425 N.W.2d at 582. Therefore, McNamara has waived this issue for review.
Even if he had properly preserved the issue for review, the record amply supports the trial court’s finding that McNamara posed a threat of serious harm to himself or others if not confined pending the final hearing. Minnesota law provides, in relevant part:
The court may continue the judicial hold of the proposed patient if it finds, by a preponderance of the evidence, that serious physical harm to the proposed patient or others is likely if the proposed patient is not immediately confined.
Minn. Stat. § 253B.07, subd. 7(d) (2002). The statute requires a probable-cause determination only as to "whether it is likely that serious imminent physical harm will result to the proposed patient or others unless the person is confined." In re Ayres, 570 N.W.2d 21, 24 (Minn. App. 1997) (emphasis added). This is not the same type of probable-cause determination employed in a criminal proceeding. Id.
Here, the trial court relied on numerous reports and exhibits in finding that McNamara posed a likelihood of serious imminent physical harm to himself or others if he did not remain confined pending the final hearing. Dr. James Jacobson, the court-appointed examiner, recommended continued confinement because of McNamara’s diagnosis of schizophrenia, his refusal to take medication, his denial of his mental illness, and his history of agitated and threatening behavior. Jacobson also reported that even though McNamara had not been violent or aggressive while in the hospital, the hospital staff believed that he had the potential to be violent.
Furthermore, the medical records indicate that McNamara refused to take medication or have lab work collected, and was uncooperative with the hospital staff. In fact, Dr. Janet Zander, the staff psychiatrist, petitioned for forced antipsychotic medication to treat McNamara’s schizophrenia. The record sufficiently supports the trial court’s finding that confinement was required, and this finding is not clearly erroneous.
Lastly, McNamara contends that the trial court’s finding that he was “threatening physical violence toward the hospital staff” is not supported by clear and convincing evidence, and, therefore, insufficient evidence exists to find him mentally ill. We disagree.
A trial court’s findings of whether a person is mentally ill are not set aside unless clearly erroneous. In re McGaughey, 536 N.W.2d 621, 623 (Minn. 1995). The commitment may be reversed if the findings are insufficient to support the commitment. See id. at 624. Minnesota law 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;
(2) an inability for reasons other than indigence to obtain necessary food, clothing, shelter, or medical care as a result of the impairment and it is more probable than not that the person will suffer substantial harm, significant psychiatric deterioration or debilitation, or serious illness, unless appropriate treatment and services are provided;
(3) a recent attempt or threat to physically harm self or others * * * .
Minn. Stat. § 253B.02, subd. 13(a) (2002) (emphasis added).
The Minnesota Supreme Court has emphasized that the likelihood of harm must be demonstrated by an overt failure to obtain necessities or a recent attempt or threat to harm self or others; mere speculation is insufficient. McGaughey, 536 N.W.2d at 623. The record supports the trial court’s finding that McNamara engaged in threatening behavior. In the August 20, 2002, medical record (two days before the final hearing), the treating nurse made a notation that “Pt. hit elbow in anger.” Apparently McNamara was angry because he was not permitted to use the phone. At the commitment hearing, Dr. Sweet testified that “[McNamara] pushed a nurse yesterday.” In the August 21, 2002, medical record (one day before the final hearing), the treating nurse made a notation that “Pt. jabbed finger into my chest in anger but then said ‘can’t you take a friendly tap, we should spar sometime.’” Dr. Sweet testified that when McNamara’s demands are not met, he follows the staff around in a harassing or threatening manner. Dr. Sweet also testified that Dr. Gratzer, McNamara’s treating psychiatrist, and the hospital staff were concerned that McNamara posed a significant risk of danger to others.
McNamara contends that because nothing in the record demonstrates that the nurse felt threatened or that he attempted to do violence to the nurse, the trial court could not find his conduct was a physical threat to the hospital staff. We find this argument without merit. The evidence clearly indicates that McNamara initiated physical contact with two hospital staff members in anger. Under these facts, the physical contact alone sufficiently establishes that McNamara’s conduct was threatening. Moreover, McNamara has orally threatened physical violence. The August 16, 2002, medical record indicates that McNamara told another patient that, “The first thing I’ll do when I get out of here is take out my father.” In fact, McNamara previously assaulted his father in 1996. Probably most indicative of McNamara’s potential likelihood of harm to himself or others is his continuing denial of his mental illness and his absolute refusal to take medication to treat his condition. See In re Allen, 451 N.W.2d 68, 71 (Minn. App. 1990) (upholding finding of substantial likelihood of harm where patient failed to take medication and engaged in threatening behavior while hospitalized).
The trial court’s finding that McNamara threatened physical violence toward the staff is supported by the record and is not clearly erroneous. Because McNamara suffers from schizophrenia and poses a substantial likelihood of physical harm to himself or others, the trial court properly concluded that McNamara is mentally ill within the meaning of section 253B.02, subdivision 13(a).
 The state attempted to solicit this statement at the commitment hearing, but the trial court sustained McNamara’s hearsay objection. But “[t]he Court may admit all relevant, reliable evidence, including but not limited to the respondent’s medical records, without requiring foundation witnesses.” Minn. R. Civ. Commitment and Treatment 15.