This opinion will be unpublished and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

C8-97-1857

In the Matter of: Linda F. Ellison.

Filed February 3, 1998

Affirmed

Short, Judge

Hennepin County District Court

File No. P89760155

Terry L. Hegna, 961 Grand Avenue, St. Paul, MN 55105 (for appellant)

Michael O. Freeman, Hennepin County Attorney, William Neiman, Assistant County Attorney, A-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Considered and decided by Short, Presiding Judge, Amundson, Judge, and Harten, Judge.

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

SHORT, Judge

A petition was filed to commit Linda F. Ellison as mentally ill as defined by Minn. Stat. § 253B.02, subd. 13 (Supp. 1997). After a contested hearing, the trial court issued an order committing Ellison to Anoka County Regional Treatment Center. On appeal from that judgment, Ellison argues she does not meet the statutory definition of a mentally ill person because she does not pose a substantial risk of harm to herself or others. We affirm.

D E C I S I O N

Involuntary commitment is justified when a proposed patient suffers from a "substantial psychiatric disorder," as "manifested by instances of grossly disturbed behavior or faulty perceptions," and "poses a substantial likelihood of physical harm to self or others." Minn. Stat. §§ 253B.02, subd. 13 (Supp. 1997), see also 253B.09, subd. 1 (Supp. 1997) (providing court shall commit patient to least restrictive treatment program if it finds by clear and convincing evidence proposed patient is mentally ill, and after careful consideration of reasonable alternatives). A likelihood of harm may be shown by a recent attempt at or threat of physical harm or by a failure to obtain needed food, clothing, shelter, or medical care. Minn. Stat. § 253B.02, subd. 13(a). The trial court's findings as to this determination 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 reviewing the record, however, we keep in mind that the supporting evidence must be clear and convincing. See Minn. Stat. § 253B.09, subd. 1 (requiring finding of clear and convincing evidence of mental illness before commitment).

Ellison argues there is insufficient evidence she presents a danger to herself or others. We disagree. The record demonstrates Ellison: (1) was subject to a restraining order due to her offensive conduct towards neighbors; (2) violated the restraining order by chasing a neighbor down the street and punching her in the stomach on July 15, 1997; (3) bit one daughter's finger on August 13, 1997, and pulled another child's hair and ripped her shirt; and (4) violently resisted arrest on both July 15, 1997 and August 13, 1997. In addition, a court-appointed expert testified Ellison suffers from a substantial psychiatric disorder and presents a substantial likelihood of harm due to her assaultive behavior, agitated moods, excessive drinking, poor management of her diabetes, and lack of insight into her psychiatric problems. Further, a psychiatric social worker testified Ellison exhibits mood swings and irritability, and refuses to accept treatment/medication for her diabetes or psychiatric disorder. Given these facts, there is clear and convincing evidence that Ellison poses a substantial likelihood of harm as a result of her psychiatric disorder. See In re Zemple, 489 N.W.2d 818, 820-21 (Minn. App. 1992) (holding no clear error where trial court found substantial likelihood of harm to others based on individual slapping father in face); In re Martin, 458 N.W.2d 700, 705 (Minn. App. 1990) (holding clear and convincing evidence to support commitment where testimony that individual exhibited tendency to be assaultive and to engage in provocative behavior in an open community); In re Terra, 412 N.W.2d 325, 327-28 (Minn. App. 1987) (concluding likelihood of harm established where individual was hostile, aggressive, intrusive, and required use of physical force to remove him from building).

Ellison also argues the trial court failed to consider the effect of alcohol on her behavior. See Minn. Stat. § 253B.02, subd. 13 (b)(3) (stating person not mentally ill under section if impairment due to brief periods of intoxication by alcohol or drug use). However, the trial court found Ellison's conduct was not due solely to her excessive drinking but was attributable to her mental illness and her lack of insight regarding her illness. Because the record supports that finding, we cannot say it is clearly erroneous. Under these circumstances, the trial court did not err in committing Ellison as mentally ill to Anoka County Regional Treatment Center.

Affirmed.