No. 8 9 - 3 5 2
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
IN THE MATTER OF THE
MENTAL HEALTH OF E. P.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Terry L. Seiffert, Billings, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
George Schunk, Asst. Atty. General, Helena
Harold F. Hanser, County Attorney; Terence M. Swift,
Deputy, Billings, Montana
Submitted on Briefs: Sept. 21, 1 9 8 9
Decided: February 13, 1 9 9 0
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Filed: o
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Justice Fred J. Fleber delivered the Opinion of the Court.
The original opinion in this cause was dated December
20, 1989, and filed with the Clerk of the Supreme Court on
that date. Following request for rehearing, we have modified
that original opinion. Our original opinion in this cause
dated December 20, 1989 is hereby withdrawn.
The District Court of the Thirteenth Judicial District,
Yellowstone County, committed E.P. to Montana State Hospital
at Warm Springs for a period of treatment and evaluation not
to exceed three months. E.P. appealed that commitment. E.P.
was released from Warm Springs prior to the hearing of this
appeal. We affirm the commitment to Warm Springs. We review
the procedure prior to commitment under the provisions of §
53-21-131, MCA, and conclude that there were serious viola-
tions of the statutory and due process protections as to E.P.
The issues are:
1. Did the District Court err in committing E.P. to
Warm Springs as a seriously mentally ill person?
2. Whether E.Pts statutory and due process rights were
violated.
There is no factual dispute with regard to the medical
condition of E.P. She is a 44 year old woman with a medical
history which had been previously diagnosed on several occa-
sions as chronic paranoid schizophrenia. On May 4, 1989, she
refused the Billings Police entry for the purposes of service
of notice of unlawful detainer and repossession of the apart-
ment. After the officers gained entrance and served her with
the notice of eviction, an officer testified they were unable
to get E.P. to understand she was being evicted. The Dis-
trict Court pointed out in its holdings that all of the
officers concluded that E.P. did not comprehend the meaning
of the eviction and insisted on attempting to return to her
apartment. Because of her verbal hostility and the represen-
tation by E.P.'s son to the police that he would later ar-
range for commitment, they took her to the emergency
admission at Deaconess Medical Center of Billings, Inc.
(Center) .
On the morning of May 4, the record shows that E.P. was
examined by Dr. Yaney, a psychiatrist for the Center, and
also by Peggy Hough, a registered nurse who works at the
Center and who made a mental status examination. The record
establishes that both Dr. Yaney and Ms. Hough were convinced
that an "emergency situation existed" and that E.P. was
seriously mentally ill and a danger to herself. E.P. was
detained at the hospital.
As more fully discussed under Issue 11, the Center
failed to comply with the statutory requirements which pro-
vided that on May 5 the Center was to release E. P. , or file
findings with the county attorney who in turn was required to
file a petition. While the record demonstrates that Dr.
Yaney examined E.P. on May 4, 5, 8, 10 and 11, the statutory
provisions with regard to hearing or release were essentially
disregarded. On May 10, a petition was filed with the County
Attorney and in turn the County Attorney prepared a petition
for commitment which was considered by the District Court on
May 10. Notice was given and E.P. appeared before the court
on May 11 and on May 12, with her attorney, Terry L. Seifert.
On May 12, a hearing was conducted and the the District Court
concluded that E.P. was beyond a reasonable doubt seriously
mentally ill and ordered that E.P. should receive treatment
at the Montana State Hospital, Warm Springs, Montana.
Appeal was taken in behalf of E.P. and we consider the
issues which we deem essential for determination of the case.
I
Did the District Court err in committing E.P. to Warm
Springs as a seriously mentally ill person?
On May 10, 1989, Dr. Yaney in behalf of the Center
contacted Mary Spoja, social worker for Yellowstone County
Department of Family Services, and requested her to prepare
the commitment papers. Mary Spoja filed a petition with the
County Attorney on May 10, along with a report from Dr.
Yaney. The petition was not completely filled out, although
the missing factors were noted elsewhere in the record.
However, we remind all those involved that a petition must
conform with S 53-21-121, MCA, and should be complete. On
May 10 the County Attorney prepared and filed a petition for
commitment which was considered by the District Court on May
10.
The District Court gave notice on May 10 of the petition
for commitment and ordered that E.P. appear before the court
on May 11, 1989, and also appointed Terry L. Seifert as
attorney. On May 11, the District Court set the matter for
hearing on May 12; and directed that E.P. be examined by
Ralph Yaney, psychiatrist; and ordered that E.P.'s son was
appointed as "friend to protect her interests."
On May 12, 1989, the hearing was conducted before the
District Court. E.P. was present with her attorney. Dr.
Yaney and Ms. Hough both testified at the hearing as did
police officers. On May 12, 1989, the District Court con-
cluded that E.P. was seriously mentally ill and in need of
further evaluation and treatment and ordered that she be
committed to Montana State Hospital at Warm Springs for a
period of treatment and evaluation, not to exceed three
months. The District Court concluded that treatment may
include medication by injection if deemed necessary by the
attending physician. The order of May 12, 1989 was supple-
mented by findings of fact and conclusions signed by the
District Court on May 22, 1989, which were incorporated into
the order of commitment signed on May 12, 1989.
The findings and conclusions of the District Court
stated that Dr. Yaney's oriqinal impression was that E.P. was
qrossly hallucinating both visually and with auditory
hallucinations. The court found that E.P. refused to cooper-
ate in her examination and refused all medications; that E.P.
is a chronically paranoid schizophrenic and functions only
marginally at best; that E.P. has a persistent inability to
deal with her life-reality situation, and that she cannot
properly care for herself; that E.P. did not comprehend the
meaning of the eviction and continued to insist on returning
to her apartment; and that E.P. would not cooperate in the
examination performed by Ms. Hough and appeared to be hallu-
cinating. Ms. Hough testified that E.P. had severely sun-
burned legs and that notwithstanding that fact, E.P. stated
that she would still sunbathe. Ms. Houghls opinion was that
E.P. was seriously mentally ill and "totally unable to take
care of herself." The District Court concluded that E.P. was
in need of long term treatment for her condition and that the
least restrictive environment in which she could receive the
supervision and care was Montana State Hospital at Warm
Springs. Last the court concluded that "respondent is beyond
a reasonable doubt seriously mentally ill as defined in 5
53-21-102, MCA."
The counsel for E.P. has argued that there was not
sufficient evidence upon which to base the findings and
conclusions of the District Court. Under M.R.Civ.P. 52(a),
findings of fact shall not be set aside unless clearly erro-
neous, and due regard shall be given to the opportunity of
the District Court to judge the credibility of the witnesses.
We have carefully reviewed the transcript and the reports and
other matters of record. We conclude there is substantial
evidence, which could even be classed as overwhelming evi-
dence, to support the findings and conclusions of the Dis-
trict Court, which culminate in the conclusion that E.P.
beyond a reasonable doubt was seriously mentally ill as
defined in § 53-21-102, MCA. F e affirm the holdings of the
7
District Court, including the commitment to Montana State
Hospital at Warm Springs.
I1
Whether E.P.'s statutory and due process rights were
violated.
Section 53-21-131, MCA, provides those persons ordered
to long term commitment with a right to appeal at any time
within 90 days after discharge. Therefore, we will consider
the procedural issues raised by E.P. even though she was
discharged prior to the consideration of her appeal. Howev-
er, our determination on the procedural issues does not
affect her commitment to Warm Springs.
In the petition filed by the County Attorney on May 10,
1989, there is a statement of E.P.'s rights as set forth in 5
53-21-111 through 53-21-119, MCA (1987). These are summa-
rized as requiring the right to notice reasonably in advance
of the hearing; the right to know in advance of hearing the
names and addresses of witnesses who will testify; the right
to offer evidence and present witnesses; the riqht to cross
examine witnesses; the right to be represented by counsel;
the right to remain silent; the right to be proceeded against
according to the rules of evidence; the right to view and
copy all petitions; the right to be examined by a profession-
al person of her choice when such professional person is
reasonably available; the right to refuse any but lifesaving
medications for up to 24 hours; and the right to valid review
of any order of commitment. Unfortunately a number of the
foregoing rights granted to E.P. under the statutes were
disregarded by the Center and the County.
Section 5 3 - 2 1 - 1 2 9 , MCA, sets forth the procedure to be
followed when an "emergency situation" exists. It requires
that a police officer take a person who appears to he seri-
ously mentally ill and thus a danger to herself, into custody
only for a sufficient time to contact a professional person.
That was done when the Billings Police promptly brought E.P.
to the Center. The section further requires that if the
professional person agrees that the person detained appears
to be seriously mentally ill and that an emergency situation
exists then the person may be detained and treated.
That was also complied with here when both the psychia-
trist and nurse examined E.P. on the morning of May 4.
However the right of the Center to detain and treat lasted
only until May 5, the next regular business day. The statute
provides that at that time the professional person shall
release the detained person or file findings with the county
attorney. If he determines probable cause to exist, the
county attorney shall file a petition. The professional
person also is required to file a report with the court
explaining his actions. That portion of 5 53-21-129, MCA,
was totally disregarded.
When the Center failed to file with the County Attorney,
the Center should have released E.P. as required by statute.
Instead of doing so, the Center retained E.P. from May 5 to
May 10, 1989, without any proper authority for doing so.
Under these statutes, the proper procedure would have been
for the Center to have filed the findings of Dr. Yaney with
the County Attorney by May 5, together with Dr. Yaney's
report. In turn the County Attorney should then have filed a
petition with the District Court on May 5, rather than on May
10 as was actually done. On May 5 notice of the petition
should have been hand delivered to E.P. and to her counsel on
or before the initial appearance. Notice of the petition and
order setting the time and place of hearinq and name of her
counsel, professional person and friend, should have been
hand delivered to her on May 5.
Even though proper procedure was followed on the actual
commitment, which proceedings took place on May 10, 11 and
12, 1989, there has been a serious failure to follow the due
process requirements of our statutes and law. It is criti-
cally necessary that such due process rights of our citizens
be protected. As stated by the Supreme Court of the United
States in Minnesota ex re1 Pearson v. Probate Court of Ramsey
County, 309 U.S. 270:
We fully recognize the danger of a deprivation of
due process in proceedings dealing with persons
charged with insanity . . . and the special impor-
tance of maintaining the basic interests of liberty
in a class of cases where the law though "fair on
its face and impartial in appearance" may be open
to serious abuses in administration and the courts
may be imposed upon - - substantial rights of
if the
persons charged - - adequately safeguarded at
are not
every stage - - proceeding.
of the (Emphasis add)
de.
Here it is clear that the substantial rights of E.P.
were not adequately safeguarded. There was a total failure
to follow the essential elements of the statutes which re-
quired the release of E.P. on May 5, 1989 in the absence of
appropriate filings. In the same way, she should hayre been
released on May 6, 7, 8 and 9, in the absence of the appro-
priate procedures.
It may be that the Center would argue that they should
not be chastised because the medical care which was given
from May 4 through May 12 by the Center was clearly adequate.
While the record supports that conclusion, adequate medical
care is not a basis for disregarding the due process and
statutory rights of a person who is charged with being seri-
ously mentally ill. We admonish the Center, the County
Attorney's office, and the Yellowstone County Department of
Family Services for their failure to comply with the statuto-
ry due process rights on the part of E.P. We recommend that
they immediately confer and set up procedures which will
protect against a reoccurrence of this type of denial of due
process. We caution the District Court in Yellowstone County
to take appropriate steps so that in the future, due process
rights on the part of such persons as E.P. will be properly
and adequately protected. We point out that this case is a
reoccurrence of a similar problem in Yellowstone County as
discussed in Matter of T.J.F. (1987), 227 Mont. 473, 747 P.2d
1356.
We hold that the statutory and due process rights of
E.P. were violated from May 5 through May 9. We further hold
that the commitment proceedings which commenced on May 10
were sufficient and we affirm her commitment.
We Concur:
#d.<9~. Chief Justice
Justices
Justice Diane G. Barz did not participate in this Opinion.