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In re S.D.

Supreme Court of Montana

July 17, 2018

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

          Submitted on Briefs: May 9, 2018

          APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DI 17-003D Honorable Dan Wilson, Presiding Judge

          For Appellant: Chad Wright, Appellate Defender, James Reavis, Assistant Appellate Defender, Helena, Montana.

          For Appellee: Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General, Helena, Montana Ed Corrigan, Flathead County Attorney, Stacy Bowman, Deputy County Attorney, Kalispell, Montana.

          OPINION

          Beth Baker Justice

         ¶1 The State filed a petition to involuntarily commit S.D. after she attempted to kill herself and expressed ongoing suicidal ideation and hopelessness. After the initial hearing, S.D.'s attorney filed a waiver of her rights, which included her signed consent to involuntary commitment. The District Court approved the waiver and ordered S.D.'s commitment. On appeal, S.D. argues that the District Court violated her statutory and due process rights when it committed her without holding a hearing. We affirm.

         PROCEDURAL AND FACTUAL BACKGROUND

         ¶2 In January 2017, the State filed a petition against 71-year-old S.D., alleging that she suffered from a mental disorder and required involuntary commitment. The State submitted and incorporated by reference a report by a mental health professional, Jami M. Flickinger (Flickinger), who had examined S.D. Flickinger's report stated that S.D. had made efforts to kill herself while residing in two different assisted living facilities. It stated that at one of the facilities S.D. used a nurse's unattended keys to access most of her medications, and at another facility S.D. had tried-unsuccessfully-to break a mirror to cut herself. According to Flickinger's report, S.D. admitted "ongoing suicidal ideation and hopelessness due to her physical and mental health condition." Flickinger's opinion was that S.D.'s mood was depressed and her affect flat, that she had no insight into the nature of her condition, and that she had inadequate judgment and impulse control. Flickinger also described S.D. as possessing a clear stream of thought without bizarre or illogical elements or spontaneous expressions of hallucinatory, illusional, or delusional thoughts or perceptions. Flickinger recommended that S.D. be committed to the Montana State Hospital for up to 90 days.

         ¶3 The State's petition for involuntary commitment listed the procedural rights available to S.D. under §§ 53-21-115 to -118, MCA. Flickinger's report, incorporated in the petition by reference, included a list of the same procedural rights, except for information about the right to voluntarily take necessary medications. Based on the State's petition, the District Court issued an order that scheduled both an initial appearance and an adjudicatory hearing and designated two people to act as alternates as S.D.'s appointed friend.

         ¶4 The State appeared at the initial hearing before the District Court, and S.D. and her attorney appeared via videoconference. The record does not reflect whether S.D.'s appointed friend was present. The District Court ensured that all parties could see and hear one another and then advised S.D. of her civil commitment procedural rights. After advising S.D. of her rights, the District Court asked her if she had any questions. S.D. replied, "No, I don't have any questions right now."

         ¶5 That same morning, S.D. and her attorney filed a "Waiver of Hearing on Petition" with the District Court. The waiver stated that S.D. acknowledged that she had received a copy of the State's petition; that she discussed the petition with her attorney; and that she was aware of the "fundamental rights" set forth in the petition, as well as other rights. The waiver included several paragraphs that described the procedural rights in §§ 53-21-115 to -118, MCA, and stated that S.D. was aware, understood, and/or had knowledge of those; it also stated that S.D. had been informed by her attorney that she had the right to a jury trial and the right to appeal any final ruling. The waiver stated S.D.'s belief that she needed treatment for a "mental disease or disorder." It continued, "I wish to avoid any further hearings and I do hereby waive my right to attend any future hearings." S.D. then expressly waived all her listed rights except the right to receive treatment, and she consented to the court entering an order for her involuntary commitment to the Montana State Hospital for a period not to exceed 90 days.

         ¶6 S.D. and her attorney both signed the waiver. S.D. signed immediately beneath the following text:

I further certify that 1) I have discussed this waiver with my attorney; 2) I understand the rights listed above; 3) it is my desire and intent to voluntarily waive these rights; and 4) I have discussed the nature of these proceedings with my attorney and I understand the purpose of these proceedings.

         S.D.'s attorney signed below text that stated:

I certify that 1) I have discussed this waiver with the [R]espondent; 2) I am satisfied that the Respondent understands the rights listed above; 3) I believe it is the Respondent's desire and intent to voluntarily waive these rights; and 4) I have discussed the nature of these proceedings with the Respondent and I am satisfied that the Respondent understands the purpose of these proceedings.

         The record does not reflect whether S.D.'s appointed friend participated in S.D.'s decision to sign the waiver or whether Flickinger concurred.

         ¶7 The District Court issued an order that day committing S.D. to the Montana State Hospital for up to 90 days. The Court stated in the order that it had considered the reasons for the waiver pursuant to § 53-21-119, MCA, and was satisfied that the "Respondent is aware of the waiver of hearing after having consulted with her attorney, and is capable of making a knowing decision therein."

         STANDARD OF REVIEW

         ¶8 Due process claims in involuntary civil commitment cases are subject to plenary review. In re N.A.,2014 MT 257, ¶ 10, 376 Mont. 379, 334 P.3d 915. We review an involuntary civil commitment order to determine whether the district court's findings of fact are clearly erroneous and its conclusions of law are correct. In re R.W.K.,2013 MT 54, ¶ 14, 369 Mont. 193, 297 P.3d 318. We require strict adherence to the involuntary commitment statutory scheme, considering the "utmost ...


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