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In re D.S.

Supreme Court of Montana

January 29, 2019

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

          Submitted on Briefs: October 10, 2018

          APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DI 17-0062 Honorable Rod Souza, Presiding Judge

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

          For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Helena, Montana Scott D. Twito, Yellowstone County Attorney, Mark A. English, Deputy County Attorney, Billings, Montana

          OPINION

          Dirk Sandefur, Justice

         ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

         ¶2 D.S. appeals from the judgment of the Montana Thirteenth Judicial District Court, Yellowstone County, involuntarily committing him to the custody and care of the Montana State Hospital (MSH) for mental health treatment pursuant to Title 53, chapter 21, part 1, MCA. We affirm.

         ¶3 At the outset of the proceeding at issue, D.S. was a 59-year-old male with an array of previously diagnosed medical and developmental issues, including dysphagia, cerebral palsy, Type I diabetes, and a developmental disability impairing his intellectual capacity. D.S. cannot walk and is confined to a wheelchair. He requires 24-hour nursing care and has resided in Valley Nursing Care Facility (Valley Nursing Home) between 2013 and the events at issue.

         ¶4 On May 30, 2017, an ambulance transported D.S. to the Billings Clinic Psychiatric Center (Billings Clinic) for a mental health evaluation following an alleged assault of a Valley Nursing Home staff member the previous day. Upon D.S.'s admission to the Billings Clinic, Mark Ackerman, a resident psychiatric mental health nurse practitioner, evaluated D.S. According to his trial testimony, the available information that Ackerman considered in conducting his evaluation included Ackerman's clinical interview and observation of D.S., review of D.S.'s unspecified medical record, consultation with D.S.'s prior caregivers at Valley Nursing Home, and a consultation with D.S.'s sister. Upon his clinical evaluation of D.S., Ackerman requested that the Yellowstone County Attorney's Office petition for involuntary commitment of D.S. for mental health care and treatment pursuant to Title 53, chapter 21, part 1, MCA.

         ¶5 Based on Ackerman's attached mental health evaluation report, the State filed a petition pursuant to §§ 53-21-121, -126, and -127, MCA, for D.S.'s involuntary commitment to MSH for up to 90 days. Inter alia, Ackerman's report recounted D.S.'s precipitating behavior at Valley Nursing Home upon which the State predicated its petition and of which Ackerman had no personal knowledge. Following an initial hearing pursuant to § 53-21-122, MCA, and court appointment of Ackerman as the examining professional person, the matter came on for bench trial pursuant to § 53-21-126, MCA. Court-appointed counsel represented D.S. throughout all stages of the proceedings.

         ¶6 Ackerman was the only witness called by either party to testify at trial. Inter alia, he testified that D.S. suffered from cerebral palsy, dysphagia (an inability to chew food), and Type 1 diabetes. Ackerman further testified that D.S. has a low IQ, has a previously diagnosed developmental disability that has impaired his cognitive ability, and requires 24-hour nursing care in a therapeutic group home or nursing home because he is unable to care for himself. Ackerman further diagnosed D.S. as suffering from a mental disorder known as Intermittent Explosive Disorder (IED). Ackerman characterized IED as:

discreet episodes, or failure to resist aggressive impulses that result in serious assaultive acts or destruction of property . . . [with] the amount of anger, or rage, . . . far out of proportion to what precipitated it.

         Ackerman testified that D.S.'s IED manifests as "violence and aggression with rage," but is susceptible to treatment by medication. Ackerman further testified that "we have not seen [D.S. exhibit] any of the intermittent rage" during his stay at the Billings Clinic, but attributed that to the fact that D.S. had been compliant with prescribed medication while at the Clinic during which time he also received 24-hour nursing care "taking care of his needs." Though he did not have personal knowledge of D.S.'s alleged violent behavior at Valley Nursing Home, Ackerman testified without objection that during his clinical interview, D.S. admitted to him that D.S. had grabbed and punched somebody at his last nursing home.[1] It is undisputed on the record that Valley Nursing Home was D.S.'s last nursing home.

         ¶7 Though he opined that D.S. was not an imminent threat of harm to himself, Ackerman testified that, due to the combination of his mental disorder (IED) and other referenced afflictions and conditions, D.S. was unable to care for himself. He further testified that, due to his IED, D.S. was also an "unpredictable" risk of harm to others when not compliant with medication and not receiving 24-hour nursing care adequately attending to his needs. Ackerman stated that a community-based therapeutic group home or nursing home would be appropriate placements for D.S. but that, upon Ackerman's inquiry, the only group homes and nursing homes known to be potentially available placements refused to accept D.S. due to his history of violent behavior. Ackerman further stated that, upon his inquiry, the Montana Mental Health Nursing Home and Care Center in Lewistown, Montana, was unable to accept D.S. due to space ...


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