This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-96-1712

In Re: Brenda Kathleen Burk.

Filed December 24, 1996

Affirmed

Norton, Judge

Blue Earth County District Court

File No. P896995

John C. Peterson, McLean Peterson Law Firm, 325 South Broad Street, P.O. Box 1360, Mankato, MN 56002-1360 (for Appellant Brenda K. Burk)

Ross E. Arneson, Blue Earth County Attorney, Paige M. Snover, Assistant County Attorney, 410 South Fifth Street, P.O. Box 3129, Mankato, MN 56002-3129 (for Respondent Blue Earth County Human Services)

Considered and decided by Huspeni, Presiding Judge, Norton, Judge, and Forsberg, Judge.[*]

U N P U B L I S H E D O P I N I O N

NORTON, Judge

Appellant challenges her commitment as mentally ill, contending there was insufficient evidence that she posed a substantial likelihood of physical harm to herself or others. We affirm.

FACTS

Appellant has been the subject of several commitments and hospitalizations since her psychiatric problems began in 1991; two arose out of referrals from criminal charges for writing bad checks and for a DWI. Appellant also has a history of noncompliance with medication and excessive alcohol use.

In mid-June 1996, appellant made a number of 911 calls. When Mankato police officers investigated, appellant initially denied making the calls, but then accused the police department of possessing her property and conspiring to violate her constitutional rights. One of the officers testified appellant appeared intoxicated and was somewhat aggressive. At one point, she began shaking her finger very close to the officer's face and chest. Later, while the officer stood by the door, appellant lunged towards the door and the officer in an attempt to escape. The officers then handcuffed her and transported her to the hospital on a 72-hour hold.

While at the hospital, appellant refused to cooperate when asked to put on her pajamas and get into bed, and she had to be placed in four-point restraints. The next day, she was transferred to the St. Peter Regional Treatment Center because of her unmanageable behavior. There, she was hostile to authority figures, her thoughts were disorganized, she shouted to unseen figures in the halls, and she was sarcastic and insulting.

Dr. Linda Marshall, the first court-appointed examiner, and Dr. Loren Boutin, the second court-appointed examiner, both attempted to examine appellant. She did not cooperate and each examination lasted only ten minutes. The examiners agreed appellant suffers from paranoid schizophrenia and requires commitment. Dr. John Kluznik, appellant's treating psychiatrist at the St. Peter Regional Treatment Center, testified appellant probably suffers from paranoid schizophrenia but has refused additional treatment or evaluation that could reveal whether she suffers from another disorder. All agreed that she would benefit from treatment with neuroleptic medication, as she has in the past while hospitalized.

The mental health experts discussed appellant's dangerousness. Dr. Marshall considered her dangerous to herself because of her diagnoses of paranoid schizophrenia as well as episodic alcohol use and her inability to care for herself. Dr. Marshall testified appellant cannot function in the community because she has no insight into her need for medication or treatment and no insight into her mental illness. Dr. Marshall believed appellant's hostile manner may cause her to be assaulted or assault others in the community.

Dr. Boutin believed appellant would be dangerous to herself because she would fail to provide medical care. He also recommended evaluation for alcoholism. He supported the commitment as mentally ill because appellant does not recognize that she has a serious mental illness and needs treatment.

Dr. Kluznik testified that without neuroleptic medication, appellant would be "stuck" on her hostile, arrogant, offensive relationships with those in the community, and her mental state would remain the same or deteriorate over time. Dr. Kluznik did not know whether appellant would assault another person, but explained she makes herself so offensive she is likely to be assaulted. Dr. Kluznik believed appellant has clearly demonstrated that she cannot take care of herself in the community, and he cited her arrests for passing bad checks, her 911 calls, and her public drunkenness.

The trial court committed appellant as mentally ill and she appeals.

D E C I S I O N

A trial court must find the standards for commitment are met by clear and convincing evidence. Minn. Stat. § 253B.09, subd. 1 (1994). Trial court findings will not be set aside unless clearly erroneous. Minn. R. Civ. P. 52.01; In re McGaughey, 536 N.W.2d 621, 623 (Minn. 1995). When the record is such that the trial court could, but was not compelled to, order a particular commitment, a decision by this court to reverse the trial court would be error. In re Colbert, 454 N.W.2d 614, 615 (Minn. 1990).

Appellant challenges her commitment based on the argument that the evidence was insufficient to show she posed a substantial likelihood of physical harm to herself or others. Minn. Stat. § 253B.02, subd. 13(b) (1994). This showing of the likelihood of harm must be demonstrated by a failure to obtain necessary food, clothing, shelter, or medical care as a result of the impairment, or a recent threat or attempt to physically harm herself or others. Id. While the person need not come to harm or harm others before commitment is justified, the likelihood of harm cannot be speculative. McGaughey, 536 N.W.2d at 623.

Appellant argues that the evidence merely showed she was verbally aggressive, had an unpleasant demeanor, and has been an annoyance to local law enforcement because of her 911 calls. She cites the lack of evidence showing she physically struck or threatened to harm anyone, or that she was suicidal or threatening towards herself. She argues that her failure to recognize her illness or her need for treatment, even when coupled with her abrasive demeanor and verbal aggressiveness, is insufficient to meet the statutory standard for harm for involuntary commitment.

The trial court cited appellant's most recent apprehension during which she was intoxicated, her history of four hospitalizations, and her diagnosis of paranoid schizophrenia. Based on her complete lack of cooperation with treatment and lack of insight into her illness, the trial court found she cannot properly care for herself as far as food, clothing and shelter and would constitute a danger to herself.

On this record, we cannot say the trial court was clearly erroneous in committing appellant as mentally ill. Appellant cannot function in the community, did not take her medication, was uncooperative with her treatment, had no insight into her illness, and cannot care for herself. See In re Fusa, 355 N.W.2d 456, 457 (Minn. App. 1984) (appellant posed substantial likelihood of physical harm by refusing psychotropic medication, neglecting personal hygiene, and striking mental health worker). In the incident leading to her apprehension, appellant, who was intoxicated, shook her finger close to the officer and later lunged toward the officer while trying to escape. Appellant showed behavior more threatening than the patient in McGaughey, who was not assaultive but only engaged in some inappropriate sexual behavior. 536 N.W.2d at 624. Her offensive manner makes it likely she will be assaulted in the community, or she may assault someone. See In re Martin, 458 N.W.2d 700, 705 (Minn. App. 1990) (noting that appellant's behavior would be very provocative in the open community). The record supports appellant's commitment as mentally ill.

Affirmed.

[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 2.