In the Matter of the Civil Commitment of Latasha Farrar. A05-2220, Court of Appeals Unpublished, April 18, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2220

In the Matter of the Civil Commitment

of Latasha Farrar.

Filed April 18, 2006

Affirmed

Shumaker, Judge

Hennepin County District Court

File No. 27-MH-PR-05-746

Gregory R. Solum, 1125 Wells Fargo Plaza, 7900 Xerxes Avenue South, Bloomington, MN 55431 (for appellant Farrar)

Amy Klobuchar, Hennepin County Attorney, John L. Kirwin, Assistant County Attorney, 300 South Sixth Street, Minneapolis, MN 554587 (for respondent Hennepin County Medical Center)

Considered and decided by Shumaker, Presiding Judge; Lansing, Judge; and Halbrooks, Judge.

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

SHUMAKER, Judge

On appeal from an order committing appellant to the Minnesota Security Hospital as mentally ill and dangerous, appellant contends that the district court erred by determining that she presents a clear danger to the safety of others because the court relied on an overt act that was relied on in a previous commitment as mentally ill and because there was insufficient evidence to show that she was likely to engage in harmful acts in the future, and in determining that less-restrictive commitment alternatives are not available.

FACTS

On June 17, 2005, appellant Latasha Farrar was admitted to the Hennepin County Medical Center (HCMC) inpatient psychiatry unit because she had set off the fire alarm in her building in response to paranoid ideation. Upon admission she was “rambling nonsensically,” describing manic-like symptoms, and making grandiose statements. A security guard injured his thumb trying to restrain her. A petition to commit Farrar as mentally ill and for authorization to administer neuroleptic medication (Jarvis petition) was filed on June 21, 2005, and a hearing was scheduled for June 29, 2005. Jarvis v. Levine, 418 N.W.2d 139 (Minn. 1988) (neuroleptic drugs may be administered involuntarily only by judicial approval).

On June 27, 2005, Farrar assaulted R.G., an HCMC nurse. An eyewitness stated that Farrar

entered the nursing station where [R.G.] was charting, she hit [R.G.] in the head as she was grabbing her hair. [R.G.’s] head and neck whipped back as she was being pulled out of her chair by her hair, and then pulled out from behind the nursing station. [Farrar] commented that [R.G] called security on her for no reason. [R.G] tried to move with [Farrar], and lost her footing. One of [R.G.’s] shoes came off. ([R.G.] screamed) . . . . [Farrar] still had a grip on [R.G.’s] hair. I started to pull [Farrar’s] fingers to loosen the grip she had on her hair. [Farrar] was trying to kick [the three staff people who intervened] during this time.

The assault resulted in R.G. suffering a cervical strain, needing pain medication and physical therapy, and missing six days of work. Farrar acknowledges that she assaulted R.G., but, according to Dr. Keul, Farrar’s last treating psychiatrist at HCMC, she “expresses no remorse for her assault and in fact blamed the nurse, stating that, ‘She put voodoo on me.’” After examining Farrar, Dr. Keul concluded that the assault was “without provocation” and that Farrar is in need of treatment and should be committed to a treatment facility.

Following the hearing on June 29, 2005, the district court authorized the use of neuroleptic medication (Jarvis order) and committed Farrar as mentally ill with a “severe psychotic disorder[.]” The court found that, because of her disorder, Farrar’s thinking is disorganized and contradictory and her behavior is erratic, bizarre, and grossly disturbed. Additionally, she poses a substantial likelihood of causing physical harm while being “hostile, uncooperative, loud and physically aggressive.” Before being transferred to the Anoka Metro Regional Treatment Center (AMRTC) under the order for commitment as mentally ill, Farrar exhibited aggressive behavior on several occasions. Twice she attacked other patients, and another time she attempted to attack the head nurse, who managed to get behind the nurses’ station and lock the door.

At AMRTC, Farrar also engaged in bizarre behavior. She described one doctor’s eyes as being like cameras, changing colors, and looking at her like she stole something. She also stated that this was similar to the way the nurse she assaulted at HCMC had looked at her. Furthermore, she was continually verbally aggressive toward other patients and showed signs of delusional beliefs. When she returned from a court appearance, she said that others could look into her thoughts.

After the hearing for commitment as mentally ill, HCMC continued to gather historical information about Farrar and filed another petition on July 20, 2005, to commit her as mentally ill and dangerous. Following a hearing on this petition, the district court ordered Farrar’s commitment as mentally ill and dangerous.

The record shows numerous occasions of assaultive behavior in Farrar’s history. During a previous commitment at AMRTC in 2004, she attacked a physician, kicked her in the stomach, threw her to the floor, and ripped up all of her daily progress notes. In 1992, while left alone to look after her younger brother, Farrar became frustrated by his crying and put a pillow over his face, contemplating suffocating him. But after a few seconds, she realized that her actions were wrong and she removed the pillow.

Farrar’s legal history includes an arrest for aggravated assault, terroristic threats and obstructing justice in 2000, and a charge of fifth-degree assault and obstructing legal process in 2004. The arrest in 2000 stemmed from an incident at a gas station in which Farrar pointed a knife at a woman, threatened to kill a man, punctured vehicle tires, and kicked a police officer in the leg during the arrest. She was arrested in 2004 because she physically assaulted her neighbor, and, while police were escorting her out of her apartment, she tried to punch a police officer and grazed him on the head. Following the fifth-degree assault, Farrar underwent a rule 20 evaluation and was committed after being found incompetent to stand trial because of mental illness.

Farrar’s mental-health history includes a diagnosis of schizoaffective disorder and cannabis abuse, and hospitalization on several occasions. She was hospitalized in 1996 while experiencing auditory and visual hallucinations, in 1998 for depression and suicidal ideation, in 2000 under a rule 20 evaluation, in 2003 when she agreed to treatment, and in 2004 after being charged with assault. During the 2004 hospitalization, Farrar attempted to attack a staff member in response to receiving bad news of some sort.

As a child, Farrar was a victim of emotional, sexual, and physical abuse. Before the age of 18, she was placed in foster care and was threatened at gunpoint by her uncle because she had hit her mother with a broom. She also had suicidal thoughts while holding a knife during an argument with her father. Farrar graduated from high school, attended Job Corps, and remained single without any children. She admits to having used marijuana and cocaine and having undergone treatment twice for chemical dependency.

Farrar contends that, during her stay at AMRTC, she became stabilized by medication, “did a good job” in her diabetes- and anger-management groups, and demonstrated insight into her prior behaviors. During the hearing on the petition for commitment as mentally ill and dangerous, several experts gave opinions as to the most appropriate course of treatment for Farrar. The district court found that Farrar’s psychosis prevents her from recognizing that she is in control of the violent acts that cause great harm to others and that this lack of insight makes it impossible for her to develop coping mechanisms and strategies to prevent her violent acts in the future. Farrar’s mental illness and history of prior violent acts led the district court to conclude that she presents “a clear and present danger to the safety of others” and needs to be in a treatment facility to keep herself and others safe. The court found that alternatives to commitment described during the hearing are unsuitable to Farrar’s needs and condition. Additionally, after considering alternative treatments—including but not limited to community-based nonresidential treatment, community residential treatment, partial hospitalization, acute-care hospitalization, and regional treatment services—the court determined that the Minnesota Security Hospital is the least-restrictive program able to meet Farrar’s treatment needs. This appeal followed.

D E C I S I O N

Farrar challenges the district court’s order committing her as mentally ill and dangerous. On appeal from a civil commitment, the reviewing court is limited to determining whether the district court complied with the statutory law and whether its conclusions of law are justified by its findings. In re Knops, 536 N.W.2d 616, 620 (Minn. 1995). This court reviews the record in the light most favorable to the district court’s decision and will affirm the district court unless its findings are clearly erroneous. Id. As the trier of fact, the district court is entitled to resolve factual conflicts and weigh the credibility of witnesses. See Minn. R. Civ. P. 52.01. “Where the findings of fact rest almost entirely on expert testimony, the trial court’s evaluation of credibility is of particular significance.” Knops, 536 N.W.2d at 620.

Mentally Ill and Dangerous

Minnesota law defines a mentally ill and dangerous person as one who is mentally ill and who, because of that mental illness, presents a “clear danger to the safety of others” revealed by the fact that “(i) the person has engaged in an overt act causing or attempting to cause serious physical harm to another and (ii) there is a substantial likelihood that the person will engage in acts capable of inflicting serious physical harm on another.” Minn. Stat. § 253B.02, subd. 17 (2004).

A mentally ill person is one who has a chemical disorder or suffers from a substantial psychotic disorder affecting thought, mood, perception, orientation, or memory, resulting in a gross impairment in judgment, behavior, capacity to recognize reality, or to reason or understand. Minn. Stat. § 253B.02, subd. 13 (2004). Instances of grossly disturbed behavior or faulty perception posing a substantial likelihood of physical harm to self or others are manifestations of mental illness. Id. Mental illness is demonstrated if (1) the impairment results in a failure or inability, for reasons other than indigence, to obtain necessities such as food, clothing, shelter, or medical care, and it is more likely than not that the person will suffer “substantial harm, significant psychiatric deterioration or debilitation, or serious illness” without appropriate treatment and services, or (2) there has been a recent threat or attempt to physically harm self or others, or (3) there has been recent “volitional conduct involving significant damage to substantial property.” Id.

There is a key difference between commitment as mentally ill and commitment as mentally ill and dangerous. “The supreme court has cautioned that courts must pay due respect to the difference between the less-serious conduct required for commitment as mentally ill and the more-serious conduct required for indeterminate commitment as mentally ill and dangerous.” In re Civil Commitment of Carroll, 706 N.W.2d 527, 530 (Minn. App. 2005). While commitment as mentally ill requires only a showing of a “substantial likelihood” of physical harm to self or others, shown by “a recent attempt or threat to physically harm self or others[,]” commitment as mentally ill and dangerous requires “a clear danger to the safety of others[,]” shown by the fact that “the person has engaged in an overt act causing or attempting to cause serious physical harm to another[,]” and is substantially likely to do so in the future. Minn. Stat. § 253B.02, subds. 13, 17.

Clear Danger to the Safety of Others

Farrar’s first contention on appeal is that the district court erred in basing its commitment of her as mentally ill and dangerous on the June 27, 2005 assault, which it had relied on earlier when it committed her as mentally ill. She asserts that the district court erroneously relied primarily on the fact that R.G.’s physical injuries were more severe than had been known at the hearing for commitment as mentally ill.

But HCMC maintains that it decided to proceed with the hearing on the petition for commitment as mentally ill and the Jarvis hearing that were scheduled two days after the assault for reasons other than the extent of R.G.’s injuries. HCMC disagrees with Farrar’s contention that R.G.’s physical injuries were later found to be more severe than had been known at the hearing. Instead, HCMC asserts that the extent of R.G.’s injuries was well known before the hearing because she felt pain and was diagnosed with a cervical strain on the same day as the assault. In fact, the morning before the hearing, R.G. was not able to get out of bed because of the pain in her neck.

HCMC decided to proceed with the scheduled hearing in order to obtain the neuroleptic-medication order. Because Farrar was placed on nonconsensual neuroleptic medication on an “emergency” basis immediately following the June 27, 2005 assault, the only way HCMC could continue administering the medication was by obtaining a commitment order. See Minn. Stat. § 253B.092, subds. 1, 8 (2004) (stating that neuroleptic medication court order is only available for committed patients).

Additionally, HCMC employs a more comprehensive procedure for filing petitions for commitment as mentally ill and dangerous than for petitions for commitment as mentally ill. To file a petition for commitment as mentally ill and dangerous, records regarding the patient’s treatment and behavioral history are gathered to the extent possible; a team considers a possible petition for commitment as mentally ill and dangerous; and an evaluation is obtained from at least one additional psychiatrist. HCMC took more than two weeks following the assault to obtain the additional information needed to file the petition for commitment as mentally ill and dangerous, although an order to allow administration of neuroleptic drugs was granted at the hearing for commitment as mentally ill only two days after the assault.

Farrar does not cite any legal authority that would prohibit HCMC from pursuing a petition for commitment as mentally ill and dangerous after a hearing and commitment as mentally ill. The district court did not err by allowing petitioner to bring a petition for commitment as mentally ill and dangerous because, as the court stated at the hearing, although this “appears to be a case of first impression,” double jeopardy and res judicata do not apply. See In re Civil Commitment of Martin, 661 N.W.2d 632, 641 (Minn. App. 2003) (determining that because civil commitment as sexually dangerous person under Minn. Stat. § 253B.02, subds. 7a, 18c (1998), is for purposes of treatment and not punishment, commitment does not violate double jeopardy) review denied (Minn. Aug. 5, 2003); Joelson v. O’Keefe, 594 N.W.2d 905, 911 (Minn. App. 1999) (determining that civil commitment as sexual psychopathic personality under Minn. Stat. § 253B.02, subd. 18b (1998), does not violate prohibition against double jeopardy because commitment is for purposes of treatment, not preventative detention) review denied (Minn. July 28, 1999); In re Linehan, 557 N.W.2d 167, 171 (Minn. 1996) (district court refused to apply res judicata although it had incorporated findings made during the initial commitment proceeding into its final determination to civilly commit appellant as a sexually dangerous person), vacated on other grounds, Linehan v. Minnesota, 522 U.S. 1011, 118 St. Ct. 596 (1997).

Overt Act

Farrar’s second contention is that the district court erred in finding that her overt act or assault upon R.G. was sufficiently serious to satisfy the statute for commitment as mentally ill and dangerous. She argues that because the act of grabbing the nurse’s hair and pulling her out of the nurses’ station had already been determined by the district court to have been “a recent attempt or threat to physically harm another” and to be “a substantial likelihood of physical harm[,]” a later finding that the nurse was more seriously injured does not justify redefining the act as “causing or attempting to cause serious physical harm to another” and presenting “a clear danger to the safety others” because the overt act is not defined by the resulting harm. We disagree. See In re Jasmer, 447 N.W.2d 192, 195-96 (Minn. 1989) (determining that it is not required that the actor intend to harm the victim or that any actual harm result).

Whether there is sufficient evidence to prove that an overt act took place is a legal question subject to de novo review. Knops, 536 N.W.2d at 620. In cases involving commitment as mentally ill and dangerous, the meaning of the word “serious” is limited to its common understanding. Id. Further, the act must be capable of causing serious physical harm. Jasmer, 447 N.W.2d at 195.

Farrar’s assault against the nurse on June 27, 2005, is similar in nature to the acts in Carroll, 706 N.W.2d at 528-29, which upheld commitment as mentally ill and dangerous. In that case, the patient assaulted two mental-health workers. Id. He hit one in the eye while the other tried to protect the first by placing a cushion between him and the patient, who at this point had picked up a chair. Id. The patient caused the first mental-health worker to require emergency-room treatment by hitting him in the nose and mouth and causing him to crumble to the floor. Id. The patient also punched the worker in the left temple with a closed fist and knocked off his glasses. Id. In this case, Farrar came up behind the nurse and “came down on her head with her fist . . . as she hit her, her neck wrenched down and snapped back . . . . [H]er hand just—it just came down with a force. You could just see the force.” Farrar then dragged the nurse by the hair for six to ten feet out of the nurses’ station, hitting her body on the door frame as she pulled her through it. One witness heard the nurse’s hair “kind of ripping” as staff members attempted to release Farrar’s grip.

Farrar contends that, because the assault took place in a psychiatric facility, it was not as serious as it would have been if it had taken place in public because medical staff are better trained to handle inappropriately aggressive behavior. But caselaw clearly shows that a commitment as mentally ill and dangerous may be based on attacks that take place in treatment facilities. See Carroll, 706 N.W.2d at 531.

Additionally, because the statute for commitment as mentally ill and dangerous does not require the act to be recent, it was appropriate for the court to take into account Farrar’s prior acts of aggression and assault in committing her as mentally ill and dangerous. Minn. Stat. § 253B.02, subd. 17; In re Welfare of Hofmaster, 434 N.W.2d 279, 281 (Minn. App. 1989) (holding that overt dangerous act that occurred 11 years earlier was sufficient to support the mentally ill and dangerous commitment).

Future Physical Harm to Another

Farrar next contends that, because she was successful in her treatment at AMRTC, the court erred in concluding that she was substantially likely to engage in acts in the future that will endanger others.

In order to commit a person as mentally ill and dangerous, the petitioner must prove by clear and convincing evidence that there is a substantial likelihood that in the future that person “will engage in acts capable of inflicting serious physical harm on another.” Minn. Stat. § 253B.02, subd 17. The district court may determine whether a person remains a clear danger to others by relying on that person’s entire history, including past harmful acts. Hofmaster, 434 N.W.2d at 281. The district court properly did so with respect to Farrar.

The factors that indicate Farrar’s likelihood of danger in the future include past dangerous behavior; lack of insight into her own illness and actions and ability to control her behavior; and, the most important risk factor, medication noncompliance. It is undisputed that Farrar has engaged in assaultive and inappropriately aggressive behavior in the past. Additionally, although there was conflicting testimony regarding whether or not she has gained insight into her behavior, the district court concluded that her illness prevents her from being able to gain insight into her situation. The district court is entitled to resolve factual conflicts and has done so properly here. See Minn. R. Civ. P. 52.01.

Most importantly, Farrar has a history of medication noncompliance. She contends that she has been successful in her treatment at AMRTC by stabilizing her behavior. But her behavior has become stabilized during hospitalization at AMRTC because she has been involuntarily receiving neuroleptic medication under a Jarvis order. Because she has received the medication consistently every two weeks, it has stabilized her aggressive and inappropriate behavior.

The four expert witnesses who testified at the hearing were Dr. Thomas Keul, M.D., staff psychiatrist at HCMC; Dr. Ray Conroe, Ph.D., licensed psychologist; Dr. Thomas Alberg, Ph.D., licensed psychologist; and Roy Gorza, appellant’s social worker at AMRTC. All of the witnesses except Gorza testified that Farrar satisfies the future-dangerous-conduct requirement. Although Farrar disagrees with the experts, she has failed to show that they lack credibility. Because there is ample evidence in the record, including expert testimony, to support the district court’s finding that Farrar poses a substantial likelihood of future harm, the court’s conclusion was not clearly erroneous.

Less-Restrictive Alternative

Farrar’s final contention is that the district court erred by failing to acknowledge evidence of less-restrictive alternatives. The record shows that, although less-restrictive alternatives exist, none is appropriate to address Farrar’s mental-health needs.

According to the Minnesota Commitment and Treatment Act, a court shall commit a patient that it finds mentally ill and dangerous “to a secure treatment facility unless the patient establishes by clear and convincing evidence that a less restrictive treatment program is available that is consistent with the patient’s treatment needs and the requirements of public safety.” Minn. Stat. § 253B.18, subd. 1(a) (2004). One secure treatment facility is “the Minnesota security hospital . . . .” Minn. Stat. § 253B.02, subd 18a (2004).

Farrar disputes the court’s statement that “[n]o evidence was presented that another secure treatment facility or any other treatment facility would accept [Farrar] under commitment.” She argues that there was clear and convincing evidence presented at the hearing on the petition for commitment as mentally ill and-dangerous to show that the treatment and discharge plan prepared by the AMRTC treatment team was less restrictive and an appropriate alternative to commitment at the Minnesota Security Hospital. During the hearing on the petition for commitment as mentally ill and dangerous, Gorza testified that Farrar has been doing well enough for the treatment team to decide on a two-step treatment plan. The treatment plan involves transfer to an intensive regional treatment center where she could remain for up to 90 days, after which she would be discharged back into the community with medication monitoring, outpatient psychiatry, and visiting-nurse services. But Dr. Conroe was not optimistic about the discharge plan and recommended that Farrar be committed as mentally ill and dangerous. Gorza testified that a provisional discharge would be more successful this time than it has been in the past because during her stay at AMRTC her behavior was “appropriate” and she had gained more insight. But he admitted that his knowledge of Farrar’s history and the treatment program at the Minnesota Security Hospital was limited. Also, Dr. Alberg recommended commitment as mentally ill and dangerous and testified that Farrar needed additional structure because the main issue is medication compliance.

After hearing all the testimony, the district court determined that “[n]one but the Minnesota Security Hospital at St. Peter is suitable” to treat Farrar’s illness, while providing supervision and protection for herself and others.

A careful review of the record leads this court to the conclusion that the district court was not clearly erroneous in determining that committing Farrar to the Minnesota Security Hospital as mentally ill and dangerous is the most appropriate disposition to protect her and the public. It was proper for the district court to use Farrar’s overt act from the hearing for commitment as mentally ill in the later proceeding for commitment as mentally ill and dangerous, and Farrar has failed to show that the success in her treatment is a result of anything other than stabilization by involuntary medication or that there is any less-restrictive alternative capable of addressing her mental-health needs.

Affirmed.