dissenting. Since I am of the opinion that the “clear and convincing” standard must be satisfied in all subsequent recommitment hearings, I must dissent from the majority opinion in this case.
The hearing for transfer in the cause sub judice was conducted under R.C. 2945.40(F), which states in relevant part:
<<* * * jf thg court or prosecutor does request a hearing within the fifteen-day period [after notice of the impending transfer], the trial court shall hold a full hearing on the person’s commitment not more than thirty days after the hearing is requested * * *. At the conclusion of the hearing, the trial court may * * * transfer the person or continue commitment pursuant to division (C) of this section.” (Emphasis added.)
R.C. 2945.40(C) provides in pertinent part:
“If the court finds by clear and convincing evidence that the person is a mentally ill * * * person subject to hospitalization * * * by court order, it shall make a commitment authorized by divisions (C) to (E) of section 5122.15 * * * of the Revised Code * * (Emphasis added.)
R.C. 5122.15(E) states:
“In determining the place to which or the person with whom, the respondent is to be committed, the court shall * * * order the implementation of the least restrictive alternative available and consistent with treatment goals and, in the case of a person found not guilty by reason of insanity, with public safety.”
It should be pointed out that the “least restrictive alternative” requirement of R.C. 5122.15(E) is the same standard required by R.C. 2945.40(D) (1).
In reading the above provisions in pari materia, it becomes clear that the transfer hearing undertaken in this cause is merely a variety of commitment hearing to which the “clear and convincing” standard of proof applies.
In my view, R.C. 2945.40(C) and 5122.15(E) clearly imply that the “clear and convincing” evidence standard is required for the determination of the least restrictive confinement alternative. Moreover, this standard has been accepted by a number of this state’s courts of appeals. See, e.g., State v. Shepard (1984), 13 Ohio App. 3d 389, 13 OBR 473, 469 N.E. 2d 1040; and State v. Bruton (1985), 27 Ohio App. 3d 362, 27 OBR 457, 501 N.E. 2d 651. As the court in Shepard concluded at 392, 13 OBR at 476, 469 N.E. 2d at 1043-1044, the “clear and convincing” evidence standard is more consonant with due process of law under the Fourteenth Amendment, and with the patient’s right not to be deprived of his or her liberty through errors or ambiguity in the fact-finding process. See, also, Jackson v. Indiana (1972), 406 U.S. 715; Addington v. Texas (1979), 441 U.S. 418; and In re Burton (1984), 11 Ohio St. 3d 147, 11 OBR 465, 464 N.E. 2d 530.
Based on the foregoing, I would reverse the decision of the court of appeals and remand the cause for further proceedings.
Wright, J., concurs in the foregoing dissenting opinion.