IN THE COURT OF APPEALS OF IOWA
No. 19-0560
Filed December 18, 2019
IN THE MATTER OF K.G.,
Alleged to be Seriously Mentally Impaired,
K.G.,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Monica Zrinyi
Wittig, Judge.
K.G. challenges the civil commitment order issued under Iowa Code
chapter 229 (2019). AFFIRMED.
Francis J. Lange, Dubuque, for appellant.
Thomas J. Miller, Attorney General, and Gretchen Kraemer, Assistant
Attorney General, for appellee State.
Considered by Bower, C.J., and Potterfield and Greer, JJ.
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POTTERFIELD, Judge.
K.G. challenges the district court’s order affirming the magistrate’s civil
commitment order issued under Iowa Code chapter 229 (2019). On appeal, K.G.
argues (1) the State failed to meet its burden to prove by clear and convincing
evidence that she was a danger to herself or others due to her mental illness; (2)
the district court erred in not appropriately conducting a de novo hearing under
Iowa Code section 229.21(3); and (3) the district court erred by taking judicial
notice of two criminal complaints involving K.G. in violation of K.G.’s rights under
the Fifth Amendment to the United States Constitution.
I. Background
K.G. was involuntarily hospitalized following an altercation between herself
and her husband on February 24, 2019. In the days before the incident, K.G.’s
family had noticed an alarming change in K.G.’s behavior. She was “constantly
agitated and irrational” and had started using vulgar and racist language in
public. She had also become paranoid and believed most of her family was
conspiring against her. K.G.’s family tried to convince her to seek treatment for
several days before the altercation. K.G. had refused.
The police report describes the February 24 incident. K.G.’s husband and
son were on the phone with K.G.’s sister discussing what to do about K.G. K.G.
heard their conversation and became upset. She entered the room and slapped
her husband in the chest. The three went into the hallway outside the room,
where K.G. grabbed a lamp from a stand and tried to hit her husband with it, only
to be stopped by her son. K.G. then struck her husband with either a cane or a
grabbing tool. K.G.’s husband then went outside the house to call the police.
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K.G. followed him out and tried to hit him with a glass vase but was once again
stopped by her son. The police arrived soon after. The police report notes K.G.
“was making circular statements about her dislike for her husband and how he is
trying to poison her” when she was taken into custody.
K.G. was at first committed to a forty-eight hour hold at the local hospital
but became “too difficult to handle” for hospital staff and was moved to jail. She
denied anything was wrong with her and refused medication and treatment. K.G.
was eventually examined by the psychiatrist Dr. Lee Berman on March 1. Dr.
Berman diagnosed K.G. with “bipolar type one most recent episode mania with
psychotic features.”
K.G.’s sister filed an application for involuntary hospitalization on February
26. The hearing on the application occurred on March 1, after K.G. was
examined by Dr. Berman. Dr. Berman, K.G.’s sister, K.G.’s father, and K.G. all
testified at the hearing. Dr. Berman testified K.G. could not make responsible
decisions for her treatment and that she needed to remain at the hospital “[u]ntil
stable” and noted she would likely be able to move to outpatient treatment within
a week. When asked by the magistrate about whether K.G. was dangerous, Dr.
Berman stated, “Well, if she—if she wasn’t in a stable environment and she could
become worse and more agitated while she’s here if we don’t treat this. So there
is a possibility of that.” He added K.G.’s condition was “[s]omething that if you
don’t treat will continue to get worse.”
K.G.’s sister testified that K.G. had told her, “It has taken all the strength in
me not to kill myself.” K.G.’s father testified K.G. then backtracked on that
statement, saying that she has corrected herself to mean, “I’d really like to kill
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[her husband]” and not herself. Both testified K.G. was paranoid and
uncharacteristically vulgar in the days before the February 24 incident. K.G.
testified last. She insisted her sister was “very, very, very controlling” and
believed her husband was “not only controlling my mind” but was also controlling
“my son’s mind, my family’s mind because he can do it.”
After hearing this testimony, the magistrate found K.G. to be seriously
mentally impaired and ordered her involuntary hospitalization. K.G. filed a notice
of appeal and requested a hearing on March 6; a de novo review hearing took
place on March 29. At the hearing, K.G.’s sister and father testified. Dr. Berman
did not testify but submitted a March 13 progress report to the district court. Over
K.G.’s objection, the district court took notice of the criminal complaints against
K.G. The district court affirmed the magistrate, noting
[K.G.] has now received medications and treatment that permitted
her to be released to outpatient care. She presented with danger to
self or others in the form of her threats to kill her spouse, the
allegations that resulted in her arrest concerning striking him,
holding a knife to her wrist and indicating it was taking all the
strength she had not to kill herself.
K.G. appeals.
II. Standard of Review
“We review challenges to the sufficiency of the evidence in involuntary
commitment proceedings for errors at law.” In re B.B., 826 N.W.2d 425, 428
(Iowa 2013). “If the findings of fact are supported by substantial evidence, they
are binding on us.” In re L.H., 890 N.W.2d 333, 339 (Iowa Ct. App. 2016).
“Evidence is substantial if a reasonable trier of fact could conclude the findings
were established by clear and convincing evidence.” In re. B.T.G., 784 N.W.2d
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792, 796 (Iowa Ct. App. 2010). “Clear and convincing evidence is less
burdensome than evidence establishing proof beyond a reasonable doubt, but
more burdensome than a preponderance of the evidence.” B.B., 826 N.W.2d at
428. “It means that there must be no serious or substantial doubt about the
correctness of a particular conclusion drawn from the evidence.” In re J.P., 574
N.W.2d 340, 342 (Iowa 1998).
III. Discussion
a. Error Preservation
We first address the State’s error preservation argument. The State
argues K.G. failed to preserve error on all her arguments related to the district
court’s alleged procedural deficiencies when conducting its de novo review
except her objection to the court’s consideration of the two criminal complaints
against K.G. “It is a fundamental doctrine of appellate review that issues must
ordinarily be both raised and decided by the district court before we will decide
them on appeal.” Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). If the
district court was asked to rule on an issue but failed to do so, the moving party
must file another motion to ask the district court to rule on the issue. Lamasters
v. State, 821 N.W.2d 856, 863 (Iowa 2012). The error preservation rule,
however, “is not concerned with the substance, logic, or detail in the district
court’s decision. If the court’s ruling indicates that the court considered the issue
and necessarily ruled on it, even if the court’s reasoning is ‘incomplete or sparse,’
the issue has been preserved.” Id. at 864 (quoting Meier, 641 N.W.2d at 540).
The district court’s review hearing was not recorded or reported. On
appeal, the district court approved a joint statement of the record of the review
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hearing under Iowa Rule of Appellate Procedure 6.806. The district court also
attached its notes from the proceeding to its order approving the joint statement.
After reviewing these documents and the district court’s order affirming the
magistrate’s findings, we conclude K.G. has not preserved error on her
constitutional argument or her argument related to the lack of physician
testimony. According to the records, the only objection raised was to the district
court’s taking judicial notice of the two criminal complaints against K.G. The
ruling does not indicate K.G. objected to the omission of the physician’s
testimony or argued taking judicial notice of the two criminal complaints violated
her rights under the Confrontation Clause of the Fifth Amendment to the United
States Constitution. As a result, we decline to address those arguments for the
first time on appeal. See Taft v. Iowa Dist. Ct., 828 N.W.2d 309, 322 (Iowa 2013)
(“Even issues implicating constitutional rights must be presented to and ruled
upon by the district court in order to preserve error for appeal.”).
b. Procedural Deficiencies
K.G. argues the district court erred by considering the two criminal
complaints against her, which she contends were inadmissible hearsay. But
chapter 229 provides that the district court “shall receive all relevant and material
evidence which may be offered and need not be bound by the rules of evidence.”
Iowa Code § 229.12(3)(a). The district court did not err by considering the
criminal complaints at the de novo hearing.
Next, K.G. argues the district court did not apply the correct standard of
review at the hearing. See id. § 229.21(3)(c) (“When appealed, the matter shall
stand for trial de novo.”). K.G.’s entire argument is one sentence long, points to
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no authority in support of her position, and rests on the rule 6.806(1) statement of
the proceedings, which described how the district court apparently noted the only
issue before the court was “whether sufficient evidence supports the magistrate’s
commitment order.” We do not find K.G.’s assertion persuasive. Elsewhere in
the court’s order on appeal, the district court repeatedly notes the magistrate’s
determination was reviewed de novo. The court also wrote that the hearing was
de novo on the court’s own handwritten notes from the hearing. The court did
not limit its consideration to the record presented to the magistrate. The district
court’s review included all of the evidence presented de novo.
c. Sufficiency of the Evidence
K.G. alleges the determination that she is seriously mentally impaired is
not supported by substantial evidence. Chapter 229 defines “serious mental
impairment” as
the condition of a person with mental illness and because of
that illness lacks sufficient judgment to make responsible decisions
with respect to the person’s hospitalization or treatment, and who
because of that illness meets any of the following criteria:
a. Is likely to physically injure the person’s self or others if
allowed to remain at liberty without treatment.
Iowa Code § 229.1(20). The definition has essentially three elements—“mental
illness, lack of judgment, and dangerousness.” L.H., 890 N.W.2d at 340. Each
element must “continue to exist” throughout the person’s commitment even if the
person is undergoing inpatient or outpatient treatment. Id.
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On appeal, K.G. only challenges the dangerousness element.1 “This
element requires a predictive judgment, ‘based on prior manifestations but
nevertheless ultimately grounded on future rather than past danger.’” In re
Oseing, 296 N.W.2d 797, 801 (Iowa 1980) (quoting Randall P. Bezanson,
Involuntary Treatment of the Mentally Ill in Iowa: The 1975 Legislation, 61 Iowa L.
Rev. 261, 304 (1975)). The threat of harm must be “probable or reasonably to be
expected,” id. at 801, and must “be evidenced by a ‘recent overt act, attempt or
threat.’” In re Mohr, 383 N.W.2d 539, 542 (Iowa 1986) (quoting Stamus v.
Leonhardt, 414 F. Supp. 439, 451 (S.D. Iowa 1976)). An overt act is “past
aggressive behavior or threats by the respondent manifesting the probable
commission of a dangerous act upon himself or others that is likely to result in
physical injury.” In re Foster, 426 N.W.2d 374, 378 (Iowa 1988). And “[t]o
support an accurate prediction of dangerousness, the prior manifestations must
not be too remote in time.” L.H., 890 N.W.2d at 341. On appeal, K.G. argues
(1) her statements about wanting to kill herself and her husband were not threats
of violence and (2) even if they were, there is insufficient evidence to establish
K.G. was dangerous on the day of the March 29 hearing. Because we conclude
sufficient evidence supports the district court’s finding of dangerousness even
1
The parties disagree whether K.G. has appealed the sufficiency of evidence of lack of
judgment. The State’s brief claims K.G. “does not argue that she has judgmental
capacity.” K.G. disputes this claim in her reply brief. After reviewing K.G.’s appellate
brief, we conclude she has not raised lack of judgment on appeal. K.G. mentions lack of
judgment in her appellate brief, but does not cite to case law or otherwise explain why
the evidence presented is insufficient to show K.G. lacked judgment. See Iowa R. App.
P. 6.903(2)(g) (“The argument section . . . . shall include . . . (3) An argument containing
the appellant’s contentions and the reasons for them with citations to the authorities
relied on . . . . Failure to cite authority in support of an issue may be deemed waiver of
that issue.”).
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without considering K.G.’s statements before the March 1 hearing, we need not
address K.G.’s first argument.
In general, cases in which we have concluded the prior overt acts were
remote dealt with significantly longer gaps than here. See, e.g., id. (concluding
insufficient evidence to support a finding of dangerousness where the overt acts
occurred “nearly one year before” the placement review hearing); In re S.S., No.
15-0494, 2015 WL 6508809, at *5 (Iowa Ct. App. Oct. 28, 2015) (six-month gap).
But events occurring nearly two months before review hearings have been
considered recent to determine dangerousness under chapter 229. See In re
B.T.G., 784 N.W.2d 792, 798 (Iowa Ct. App. 2010) (considering threats made in
March 2009 evidence of overt acts sufficient to support a finding of
dangerousness at a May 2009 review hearing); In re C.I.T., No. 16-0278, 2016
WL 4036244, at *1 (Iowa Ct. App. July 27, 2016) (affirming a prisoner’s January
2016 civil commitment order based on “a physical altercation with another inmate
in November of 2015” and threats against prison staff that same year).
Having concluded the evidence gathered at the March 1 hearing is recent
enough to support a finding of dangerousness at the March 29 de novo hearing,
we must now decide whether there is sufficient evidence of recent overt acts to
support a finding of dangerousness. We conclude there is. As detailed above,
the criminal complaint described several acts of violence and attempted acts of
violence committed by K.G against her husband in the days before the March 1
hearing. At the March 1 hearing, Dr. Berman noted that, while K.G. had not been
violent at the hospital, “she could become violent” if her paranoia is not treated.
Dr. Berman also stated K.G. had refused to take medication, and that he
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believed involuntary medication was necessary if K.G. continued to refuse
medication. This evidence is sufficient to support the district court’s finding that
K.G. is likely to injure herself or others if allowed to remain at liberty without
treatment.
AFFIRMED.