This opinion will be unpublished and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

C6-96-2477

In the Matter of the Well-Being of: Lynn Gruye.

Filed April 15, 1997

Affirmed

Kalitowski, Judge

Nobles County District Court

File No. P592361

Joel C. Wiltrout, Lucht, Wiltrout & Ahlquist, 906 Third Avenue, P.O. Box 475, Worthington, MN 56187-0475 (for Appellant Lynn Gruye)

Andrew E. Hagemann, Jr., Mork, Darling, Hagemann & Kohler, Nobles County Attorneys, 912 Third Avenue, P.O. Box 607, Worthington, MN 56187-0607 (for Respondent Nobles County)

Considered and decided by Kalitowski, Presiding Judge, Toussaint, Chief Judge, and Mansur, Judge.[*]

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

KALITOWSKI, Judge

Appellant Lynn Gruye challenges the district court order denying her petition for discharge from commitment to the Willmar Regional Treatment Center as mentally ill and chemically dependent pursuant to Minn. Stat. § 253B.17 (1996). We affirm.

D E C I S I O N

A committed person may petition the committing court for discharge pursuant to Minn. Stat. § 253B.17, subd. 1 (1996). In a section 253B.17 hearing, the burden of proof as to the propriety of the commitment is on the state. In re Harhut, 385 N.W.2d 305, 313 (Minn. 1986). In addressing a section 253B.17 petition for discharge, the court must address whether the patient is likely to attempt to physically harm self or others or fail to provide necessities upon release. See Minn. Stat. § 253B.12, subd. 4 (1996). Findings of fact will not be set aside unless clearly erroneous. In re McGaughey, 536 N.W.2d 621, 623 (Minn. 1995).

Appellant contends the district court had insufficient evidence to support the determination that her commitment at Willmar should continue. She cites the experts' testimony that she did not pose a likelihood of harm and was able to provide for her own needs. She contends she is being held involuntarily based on speculation as to what she might do in the future. See McGaughey, 536 N.W.2d at 623 (speculation as to likelihood of harm insufficient to justify commitment as a mentally ill person). Further, she contends the district court should have considered alternatives to commitment at Willmar, including her proposal to remain voluntarily at Willmar until outside placement could be arranged.

The district court found appellant continues to be mentally ill and chemically dependent, although she has improved dramatically because of treatment with neuroleptic medication and did not pose an immediate danger to herself. The court then considered options for placement if appellant were discharged. No rule 36 facilities were available and appellant's father indicated appellant could not live with him. The court found if appellant were released to live on her own, within a matter of days (1) she would stop taking the neuroleptic medication and her mental condition would deteriorate rapidly; (2) she would become homeless and unable to care for herself; and (3) she might resume the use of alcohol as she has in the past.

The findings of the district court are not clearly erroneous. We therefore conclude the court properly determined that at this time continued commitment to Willmar is necessary for appellant's protection and no less restrictive alternative is available. See In re McPherson, 476 N.W.2d 520, 522 (Minn. App. 1991) (commitment to state hospital upheld where community placement unavailable and patient receiving effective care, although facility is more restrictive than patient required), review denied (Minn. Dec. 13, 1991); In re Stewart, 352 N.W.2d 811, 812-13 (Minn. App. 1984) (though remand required for findings, evidence supported order for continued commitment based on previous failure to take medication on discharge and unsuccessful attempt to participate in day treatment program even though disease in remission due to medication and hospitalization). Finally, we note with approval that both counsel advised this court at oral argument that efforts were continuing to locate an appropriate rule 36 facility for appellant.

Affirmed.

[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.