This opinion will be unpublished and
may not be cited except as
provided by
Minn. Stat. § 480A.08, subd. 3
(1998).
IN COURT OF APPEALS
C5-99-1643
In the Matter of Andre T. Bell
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.
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discharge, this court filed an unpublished opinion on August 24, 1999, dismissing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.