IN THE COURT OF APPEALS OF IOWA
No. 20-1255
Filed May 26, 2021
IN THE INTEREST OF K.B.,
Alleged to be Seriously Mentally Impaired,
K.B., Respondent,
Appellant.
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Appeal from the Iowa District Court for Butler County, Chris Foy, Judge.
K.B. appeals the district court’s order of continued commitment under Iowa
Code chapter 229 (2019). REVERSED AND REMANDED.
Elizabeth M. Wayne of Papenheim Law Office, Parkersburg, for appellant.
Thomas J. Miller, Attorney General, and Gretchen Kraemer, Assistant
Attorney General, for appellee State.
Considered by Doyle, P.J., and Mullins and May, JJ.
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MAY, Judge.
K.B. is an adult with a history of mental-health services.1 In 2013, he was
civilly committed. He was originally ordered to engage in inpatient treatment. But
in 2016, he progressed to outpatient treatment.
In 2019, K.B. challenged the continued commitment. On September 5, his
provider filed a progress report with the court. The report said K.B. “[h]as not been
seen since the last report was filed[ on July 8]. Scheduled to return Sept[ember]
19.” It recommended continued outpatient treatment. On September 24, a
magistrate denied K.B.’s request to end his commitment. K.B. timely appealed to
the district court. In an order dated March 31, 2020, the district court found the
State had shown that K.B. continues to be seriously mentally impaired. The court
ordered K.B. to continue outpatient treatment. K.B. now appeals. He challenges
the sufficiency of the evidence that he is seriously mentally impaired.
I. Standard of Review
In involuntary commitment proceedings, we review challenges to the
sufficiency of the evidence for errors at law. In re B.B., 826 N.W.2d 425, 428 (Iowa
2013). The elements of serious mental impairment must be established by clear
and convincing evidence, and the district court’s findings of fact are binding on us
if supported by substantial evidence. See In re J.P., 574 N.W.2d 340, 342 (Iowa
1998). Evidence is substantial if a reasonable trier of fact could conclude the
findings were established by clear and convincing evidence. See id.
1This is a companion case to In re K.B., No. 20-1528, ____ WL _______ (Iowa
Ct. App. May 26, 2020).
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II. Discussion
To establish serious mental impairment, as defined in Iowa Code
section 229.1(20) (2019),2 the State must prove “the individual: (1) has a mental
illness, (2) lacks sufficient judgment to make responsible decisions with respect to
the person’s hospitalization or treatment because of the mental illness, and (3) is
likely, if permitted to remain at liberty, to be a danger to self or others.” In re J.E.,
No. 19-0034, 2019 WL 3946051, at *2 (Iowa Ct. App. Aug. 21, 2019) (citation and
internal quotation marks omitted).
In this case, our analysis begins and ends with the third element.
“Dangerousness is embodied in the third element of the definition of serious mental
impairment as ‘constitutionally necessary . . . to provide a justification for depriving
2 Iowa Code section 229.1(20) states:
20. “Seriously mentally impaired” or “serious mental
impairment” describes 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.
b. Is likely to inflict serious emotional injury on members of the
person’s family or others who lack reasonable opportunity to avoid
contact with the person with mental illness if the person with mental
illness is allowed to remain at liberty without treatment.
c. Is unable to satisfy the person’s needs for nourishment,
clothing, essential medical care, or shelter so that it is likely that the
person will suffer physical injury, physical debilitation, or death.
d. Has a history of lack of compliance with treatment and any
of the following apply:
(1) Lack of compliance has been a significant factor in the
need for emergency hospitalization.
(2) Lack of compliance has resulted in one or more acts of
serious physical injury to the person’s self or others or an attempt to
physically injure the person’s self or others.
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individual liberty under the state’s police power.’” In re Foster, 426 N.W.2d 374,
377 (Iowa 1988) (alteration in original) (citation omitted). “Stringent proof under
the dangerousness standard is necessary because predicting dangerousness is
difficult and, at best, speculative.” Id. at 377–78. In particular, “[t]his element
requires that the threat the patient poses to himself or others be evidenced by a
‘recent overt act, attempt or threat.’” In re Mohr, 383 N.W.2d 539, 542 (Iowa 1986)
(citation omitted). “Overt act” means “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.” Foster, 426 N.W.2d at 378. As
for the recentness requirement, our court has held that acts approximately six
months prior were “too remote in time” to constitute “recent” acts, attempts or
threats. See In re S.S., No. 15-0494, 2015 WL 6508809, at *5 (Iowa Ct. App. Oct.
28, 2015); see also L.H., 890 N.W.2d 333, 341 (Iowa Ct. App. 2016) (noting “[t]o
support an accurate prediction of dangerousness, the prior manifestations must
not be too remote in time” and citing S.S., 2015 WL 6508809, at *5, for support).
K.B. argues the State did not submit evidence of any “recent overt act.” We
agree. Although the provider’s report indicated K.B. remained “seriously mentally
impaired,” it described no recent overt acts. And it did not mention danger. Nor
was there testimony about danger. K.B. was the only witness. Although he was
cross-examined at length, K.B. was not asked about—and he did not admit—acts
or words implying danger to himself or others. And by way of conscious repetition,
no treating provider opined about K.B.’s dangerousness, either through testimony
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or a report.3 See In re L.E.B., No. 14-0989, 2015 WL 7575399, at *4 (Iowa Ct.
App. Nov. 25, 2015) (finding insufficient evidence to establish dangerousness
when “the person who completed the preprinted physician’s report wrote ‘yes’ in
response to a question regarding dangerousness, [but] the person completing the
report did not provide any information supporting the conclusion”).
The State acknowledges that our cases require “substantial evidence of a
recent overt act, attempt, or threat” to continue K.B.’s commitment. See L.H., 890
N.W.2d at 341. But the State does not claim the evidence here showed any recent
overt act, attempt, or threat. Rather, the State notes “[t]he proof offered at this
hearing [was] based on the judicially approved form for periodic reports.” See Iowa
Ct. R. 12.36, Forms 19–21. And, as the State concedes, those forms “do not
require recitation of the elements of dangerousness.” The natural inference is that
the proof did not address “the elements of dangerousness.” As explained, we
reached the same conclusion through our independent review of the record.
The State suggests that, if we find the proof offered was insufficient, we
should make “recommendations for updating the judicially prescribed forms” with
the goal of “ensuring the appropriate information is provided in future hearings.”
We believe it would be better for the State to provide its recommendations directly
to the supreme court and the legislature, the institutions authorized to revise our
rules and accompanying forms. See Iowa Code §§ 602.4201, .4202. We also
note that, under the existing rules, we see nothing to prevent the State from
3On the September 5, 2019 report, a box was checked to indicate K.B. is “seriously
mentally impaired.” But the report did not mention danger or any acts suggesting
danger.
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submitting other evidence—in addition to the periodic reporting form—to show the
“recent overt act, attempt or threat” required for continued commitment. See L.H.,
890 N.W.2d at 341.
III. Conclusion
The record does not include substantial evidence of a recent overt act,
attempt, or threat by K.B. The State did not meet its burden of proving
dangerousness. So we reverse the district court’s order of March 31, 2020, and
we remand for entry of an order terminating K.B.’s commitment. In view of our
disposition, we need not address K.B.’s other pro se motions on appeal.
REVERSED AND REMANDED.