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In re J.S.

Supreme Court of Montana

August 30, 2017

IN THE MATTER OF: J.S., Respondent and Appellant.

          Argued and Submitted: June 28, 2017

         APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis And Clark, Cause No. CDI 16-21 Honorable James P. Reynolds, Presiding Judge

          For Appellant: Chad Wright, Chief Appellate Defender, Kristen L. Peterson, James Reavis (argued), Assistant Appellate Defenders, Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Mardell Ployhar (argued), Assistant Attorney General, Helena, Montana, Leo J. Gallagher, Lewis and Clark County Attorney, Helena, Montana

          For Amicus Curiae: Beth Brenneman (argued), Roberta R. Zenker, Disability Rights Montana, Helena, Montana, Alex Rate, Legal Director ACLU of Montana, Missoula, Montana

          OPINION

          LAURIE McKINNON, JUSTICE

         ¶1 J.S. challenges her involuntary commitment to the Montana State Hospital (MSH) ordered by the First Judicial District Court, Lewis and Clark County. The only issue J.S. raises on appeal is whether she was denied the effective assistance of counsel. We address J.S.'s claim of ineffective assistance of counsel and, in doing so, reconsider by what standard such a claim should be measured. We affirm J.S.'s commitment.

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶2 J.S. suffers from bipolar disorder. On January 30, 2016, an ambulance transported J.S. to St. Peter's Hospital after she was found in the middle of Lincoln Road in Helena. J.S. had been "clipped" by a car and hit by the car's mirror. She sustained several cuts and abrasions. Because she was extremely psychotic and delusional, the emergency room physician contacted Western Montana Mental Health Center (WMMHC) to do an evaluation. Kim Waples (Waples), a mental health professional with WMMHC, conducted an evaluation and concluded that J.S. was in need of emergency detention. Waples contacted the County Attorney who filed a petition for J.S.'s involuntary commitment. Pending trial on the State's petition, J.S. was detained at MSH and reassessed. Based on the reassessment, the State dismissed its petition and J.S. was discharged to the community.

         ¶3 Several days later, on February 9, 2016, J.S. called 911 requesting help to get to the Center for Mental Health. An officer transported J.S. there, but the Center for Mental Health informed J.S. that she could not be seen for two days. The officer was concerned about J.S. and asked her to go to the hospital, which J.S. agreed to do. While at the hospital, emergency room staff contacted Kristina Gillespie (Gillespie), a mental health professional, because J.S. was unable to communicate due to her extreme level of psychosis and delusional thinking. She was paranoid, irritable, and unable to consent to voluntary treatment. Additionally, J.S. had a serious wound on her leg which was not being treated. Based on Gillespie's evaluation, J.S. was detained on an emergency basis at the Journey Home, a local mental health center. The State filed a petition to have J.S. involuntarily committed. Trial was held on February 11, 2016.

         ¶4 Justin Kennedy (Kennedy), a nurse at the Journey Home who has experience with skin and wound issues, treated J.S. Kennedy testified J.S. had two "dime-sized" open areas which were 70 percent necrotic, or dead, tissue. The wound bed was at a high risk of infection, which, if not treated correctly, could lead to loss of J.S's leg or J.S. becoming septic. Treatment of the wound required J.S. to change the dressings twice a day and take two antibiotics, one of which J.S. had to take four times a day and the other two times a day. J.S. would need to maintain supplies, which might be difficult given Kennedy's understanding that J.S. was homeless. Kennedy testified that he explained to J.S. the regimen for changing her dressings and the frequency and need to take her antibiotics; however, when he stepped away for five minutes and returned to reassess whether she understood, J.S. was unable to repeat the regimen to Kennedy. She could not restate the names of the antibiotics or how often she was supposed to take them. She could not state how often she was to change her dressings. Kennedy testified that J.S.'s mental illness was definitely playing a part in her inability to adequately care for her wound.

         ¶5 Waples conducted J.S.'s evaluation in preparation for trial. In Waples's report to the court she indicated that J.S. was highly agitated, aggressive, and "postur[ing] towards another resident in the [emergency detention] unit." J.S. denied any history of mental illness and when asked if she had ever been treated for a mental illness, responded emphatically that she had not.[1] Waples noted an extensive history of mental illness, suicide attempts, and prior commitments. During trial, Waples testified that J.S. was suffering from unspecified bipolar and related disorder, which could not be stabilized without psychotropic medications. She presented as manic. She was delusional, agitated, and irritable. Her thoughts were disorganized, punctuated by moments of clarity, but then becoming disorganized again. Waples explained that while some people present as delusional all the time, some will have moments of clarity. J.S. was grandiose and had tangential speech. During Waples's evaluation of J.S., J.S. would start to answer questions, but then her thoughts would "derail[]" and her thinking would become disorganized. Waples indicated that J.S. did not believe she had a mental disorder and that such a belief would significantly affect J.S's willingness and ability to seek treatment on her own. According to Waples, a person who is disorganized in her thinking is unable to consistently care for herself. Waples testified it is "hit and miss" and that sometimes J.S. could get appropriate help, but if J.S.'s thoughts were delusional and disorganized, "she might not really be able to connect where to go and what type of help to ask for." Finally, Waples asked J.S. if she knew what kind of care her leg required; J.S. just looked at Waples and shrugged.

         ¶6 Waples testified that MSH was the least restrictive placement for J.S. because her history showed she does not think she has a mental illness. Waples opined that J.S. would not seek treatment if she did not believe she was ill. Waples testified outpatient community based programs such as the Program for Assertive Community Placement, the Journey Home, or St. Peter's Behavioral Health Unit were not appropriate because they are voluntary and would require J.S. to seek help. Waples testified that J.S. told her she did not need help or need to take psychotropic medications.

         ¶7 The record indicates that J.S.'s counsel attended Waples's evaluation of J.S. at the Journey Home and also obtained an independent examination from another professional person, Dr. Bowman Smelko (Dr. Smelko). J.S.'s counsel chose not to present testimony from the independent evaluation. On cross-examination of Waples, J.S.'s counsel established many facts in support of her client's position that the petition should be dismissed, including J.S. had called 911 on her own, seeking transportation to the Center for Mental Health; J.S. agreed to go to the hospital with police; J.S. understood the need to take care of her wound; J.S. voluntarily took her medications during her prior detention at MSH; J.S. voluntarily took medication to stabilize her acute mental distress while at St. Peter's Hospital prior to transfer to the Journey Home; and J.S. was not responsible for knowing the timing of her medications when someone else was responsible for giving them to her. J.S.'s counsel argued that the court should dismiss the petition because J.S. had sought help when needed and accepted help each time it was offered. J.S.'s counsel vigorously maintained that being homeless and not taking care of medical problems is insufficient for the State to meet its burden to show that a person should be involuntarily committed.[2] Counsel also consistently maintained that the State had two burdens to meet: that commitment was necessary and that the commitment must be to the least restrictive placement. Counsel argued that the State failed to meet each burden and, consequently, the petition should be dismissed.

         ¶8 The District Court found counsel's argument on behalf of J.S. compelling and expressed its unwillingness to order commitment to MSH simply because a person is homeless and unable to take care of medical needs. Although the court agreed that J.S. initiated a call for services, the court nonetheless found the State had established J.S.'s mental disorder was interfering with her ability to care for her severe infection. The court lamented that it had no alternatives other than MSH, having ascertained that the Journey Home was not an option, but determined that J.S's history supported a conclusion that J.S. would not take her medication, which was necessary to stabilize her mental disorder. The court's conclusion was supported by its finding that "the respondent's inability to consent to voluntary medication and her recent track record make her inappropriate for community based placement."

         STANDARD OF REVIEW

         ¶9 Issues of due process and right to counsel in a civil commitment proceeding are subject to plenary review. In re Mental Health of T.M., 2004 MT 221, ¶ 7, 322 Mont. 394, 96 P.3d 1147. Claims of ineffective assistance of counsel are mixed questions of law and fact that this Court ...


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