August 4 2008
DA 06-0738
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 266
IN THE MATTER OF T.P.,
Respondent and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. CDI 2006-04
Honorable Thomas C. Honzel, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Andree M. Larose (argued) and Thomas A. Dooling, Disability Rights
Montana, Inc., Helena, Montana
For Appellee:
Hon. Mike McGrath, Attorney General; Sheri Sprigg, Assistant Attorney
General (argued), Helena, Montana
Leo Gallagher, Lewis & Clark County Attorney; K. Paul Stahl, Deputy
County Attorney, Helena, Montana
Argued and Submitted: September 19, 2007
Decided: August 4, 2008
Filed:
__________________________________________
Clerk
Justice John Warner delivered the Opinion of the Court.
¶1 T.P. appeals from the order entered by the First Judicial District Court, Lewis and
Clark County, recommitting her to the Montana Developmental Center (MDC).
¶2 T.P. presents numerous issues and sub-issues pertaining to the appropriate standard of
proof. However, as the Court has determined that the dispositive issue on appeal is whether
the record contains sufficient evidence to sustain the District Court’s conclusion of law that
T.P. is seriously developmentally disabled, we address only this issue.
¶3 T.P. is a developmentally disabled woman. In January 2006, the State of Montana’s
Department of Public Health and Human Services (DPHHS) petitioned for the involuntary
commitment of T.P. to MDC. DPHHS and T.P. stipulated to her commitment to MDC for a
period not to exceed ninety days. Based on this stipulation, on February 1, 2006, the District
Court entered an order finding that T.P. had behaviors posing an imminent risk of serious
harm to herself or others and that she could not be safely and effectively habilitated in
community-based services at that time. The court concluded that T.P. was seriously
developmentally disabled, and she was committed to MDC. Under §§ 53-20-125(1)(b), 53-
20-125(8), MCA (2005), the “seriously developmentally disabled” determination is a
prerequisite for committing or recommitting a person to MDC.
¶4 On May 1, 2006, DPHHS petitioned for T.P.’s recommitment. The petition stated
that Larry LeRoux, the Qualified Mental Retardation Professional (QMRP) assigned to T.P.,
had requested the petition through QMRP Bobbie Janacaro (Janacaro). The petition alleged,
among other things, that T.P. continued to be seriously developmentally disabled and in need
of commitment.
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¶5 Attached to the petition was an individual treatment plan from early March 2006
(March Plan) and a QMRP report written by Janacaro, dated April 27, 2006 (Janacaro’s
Report). The Janacaro Report stated T.P. “is currently not able [sic] engaging in behaviors
that are harmful to herself due to the limitations/supervision provided in her current living
environment, along with medication adjustments.” Under the heading “[d]escribe behaviors
that pose an imminent risk of serious harm to others,” the report stated “[n]one at this time
due to environment. [sic] (structure and supervision).” Under the heading of “potential for
risk to self,” it stated “[n]one at this time. However, potential is high if given opportunity.”
Under the heading of potential for risk to others, the report stated “[p]otential is high if given
opportunity.”
¶6 As required by statute, the District Court referred the petition to the Residential
Facility Screening Team (RFST). The RFST determined T.P. was seriously developmentally
disabled and recommended her recommitment. The RFST Report stated that T.P. had forty-
one incidents of verbal aggression, thirty-four incidents of environmental disruption, thirteen
incidents of physical aggression and four incidents of deliberate self-harm while at MDC.
The RFST Report was devoid of any description of the listed incidents.
¶7 The District Court held a hearing on the petition for T.P.’s recommitment on
September 6, 2006. Daphne Crosbie, DPHHS representative and RFST chairwoman, was
the sole witness in support of T.P.’s recommitment. Crosbie testified that “the document
[the RFST] looked at was the . . . treatment plan dated 5/2/06” (May Plan). This May Plan
had not been filed with the petition in District Court, nor was it admitted into evidence at the
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hearing. Thus, the District Court never saw the May Plan. Crosbie herself could not provide
any information regarding the reported incidents involving T.P., other than a statement that
the incidents all occurred in February, the month T.P. was committed.
¶8 T.P. was not present at the hearing. An advocacy specialist with the Montana
Advocacy Program testified in opposition to T.P.’s recommitment. Her testimony is not
pertinent to the issue we address here.
¶9 On October 2, 2006, the District Court entered its order recommitting T.P. for one
year or until a suitable placement in a less restrictive environment could be obtained.
Among other things, it determined T.P. has behaviors that pose an imminent risk of serious
harm to herself or others and is seriously developmentally disabled. T.P. appeals.
¶10 “We review a district court’s determination in a civil commitment case to determine
whether the court’s findings of fact are clearly erroneous and its conclusions of law are
correct.” In re T.S.D., 2005 MT 35, ¶ 13, 326 Mont. 82, ¶ 13, 107 P.3d 481, ¶ 13. To
determine whether a finding is clearly erroneous, we apply the following three-part test: (1)
we review the record to see if the findings are supported by substantial evidence; (2) if the
findings are supported by substantial evidence, we determine if the trial court
misapprehended the effect of the evidence; (3) if substantial evidence exists and the effect of
the evidence was not misapprehended, we may determine that a finding is “clearly
erroneous” when, although there is evidence to support it, a review of the record leaves us
with the definite and firm conviction that a mistake was made. See In re G.M., 2008 MT
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200, ¶ 22, 344 Mont. 87, ¶ 22, 186 P.3d 229, ¶ 22; In re T.S.D., ¶ 13; Matter of Mental
Health of L.C.B., 253 Mont. 1, 6, 830 P.2d 1299, 1302 (1992).
¶11 A district court may recommit a person to MDC only if the court determines he or she
continues to be “seriously developmentally disabled” and in need of continued commitment
to MDC. Section 53-20-128(8), MCA (2005). “Seriously developmentally disabled” means
a person who “has a developmental disability,” is “impaired in cognitive functioning,” and
cannot be safely and effectively habilitated in community-based services because of
“behaviors that pose an imminent risk of serious harm to self or others[.]” Section 53-20-
102(15), MCA (2005).
¶12 No dispute exists that T.P. has a developmental disability and is impaired in her
cognitive functioning. T.P. challenges the District Court’s finding that she could not be
safely or effectively habilitated in community-based services because she has behaviors
posing an imminent risk of serious harm to herself or others. T.P. asserts the evidence does
not support this finding and maintains that general statements regarding “physical
aggression” and “deliberate self harm,” without more, do not support a finding of actual or
potential serious harm. We agree.
¶13 As set forth above, the first inquiry under the clearly erroneous test is whether
substantial evidence supports a challenged finding. See In re T.S.D., ¶ 13; In re Mental
Health of L.C.B., 253 Mont. at 6, 830 P.2d at 1302. The District Court did not set forth in its
findings of fact what evidence it considered in reaching the ultimate question of whether T.P.
was seriously developmentally disabled. Nor did the District Court file an opinion or
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memorandum of decision explaining how it reached its decision that T.P. was seriously
developmentally disabled.
¶14 This Court has recently concluded that, given the district court’s role in civil
commitment proceedings, the district court may consider the contents of reports filed
according to statute. As noted in In re G.M., ¶ 32, the district court must view all potentially
relevant information in order to determine the treatment and habilitation needs of the
respondent, citing In re Mental Health of L.C.B., 253 Mont. at 7, 830 P.2d at 1303; § 53-20-
101, MCA (2005). Further, § 53-20-128(6), MCA, grants the court authority to order a
recommitment based on the filed reports when the petitioner does not request a hearing.
Although the March Plan, Janacaro’s Report, and the RFST Report were not formally
offered into evidence, these documents were filed with the District Court before the hearing
as required by statute and were available to the court and both parties. Neither party objected
to the court’s considering them. These reports provided relevant information bearing on the
issue at hand. Therefore, these documents could be considered by the District Court in
making its findings of fact. In re G.M., ¶ 34.
¶15 Nevertheless, after a review of the reports and the testimony at the hearing, we
conclude that DPHHS did not present to the District Court substantial evidence that T.P.
posed an imminent risk of serious harm to herself or others. The March Plan contained
mostly T.P.’s history and one sentence stating that “[s]ince her admittance to MDC [T.P.]
has engaged in behaviors of verbal and physical aggression, and property destruction.”
Janacaro’s Report revealed that T.P. had not engaged in behaviors that posed an imminent
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risk of serious harm to herself or others. As for her potential to cause serious harm to others,
Janacaro reported “[p]otential is high if given opportunity.” This statement alone does not
constitute substantial evidence to recommit a person to a residential facility. The incident
reports introduced into evidence at the hearing did not demonstrate T.P.’s harmfulness to
herself or others. These reports combined do not constitute substantial evidence.
¶16 Crosbie merely stated that “as of that time when [T.P.’s treatment team] looked at her
in May, she had—then had 13 incidences of physical aggression” and four incidents of
deliberate self-harm at MDC. Crosbie conceded that the RFST does not have operational
definitions of the terms “physical aggression” or “serious harm.” The substance of Crosbie’s
testimony was that she herself did not know what T.P. had done, and the RFST members had
assumed she had some physical contact with someone. Crosbie suggested that the RFST
merely accepted, without examination of the facts, the conclusions of T.P.’s treatment
planning team set forth in the May Plan. This cursory review is not sufficient to recommit a
person to MDC, particularly when the supporting documentation is not all before the court
and what is before the court is unsubstantial.
¶17 The testimony at the hearing did not explain how T.P.’s problems would disqualify
her from a community placement. The reports before the District Court indicate that
structure, supervision and medication provided to T.P. at MDC from late February to
September 2006 assisted her to the point where she did not exhibit behaviors that posed
imminent risk of serious harm to herself or others. No evidence was presented that
community-based services lack structure, supervision and medication. Thus, neither the
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District Court nor this Court has any evidence upon which to base a finding of fact that
T.P.’s incidents of aggression or harm make her a threat to herself or anyone who lives with
her in a community setting.
¶18 The District Court’s finding of fact that T.P. posed an imminent risk of serious harm
to herself or others, such that she could not be habilitated in community-based services, is
clearly erroneous as it is not supported by substantial evidence. In re T.S.D., ¶ 13; In re
Mental Health of L.C.B., 253 Mont. at 6, 830 P.2d at 1302. The District Court erred in
recommitting T.P. to MDC as a seriously developmentally disabled person.
¶19 We reverse and remand with instructions to vacate the recommitment order.
¶20 Pursuant to M. R. App. P. 21(2), the Clerk of this Court shall issue remittitur
immediately.
/S/ JOHN WARNER
We Concur:
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
/S/ BRIAN MORRIS
Justice James C. Nelson concurs.
¶21 I joined Chief Justice Gray’s concurring Opinion in In re G.M., 2008 MT 200, 344
Mont. 87, 186 P.3d 229, and I join her concurring Opinion in the instant case. I have grave
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concerns about any statutory scheme that allows the State to deprive a person of his or her
liberty and dignity on the basis of oral and written hearsay; on documents not in evidence; on
the testimony of persons who have no direct knowledge of matters and incidents about which
they are testifying; on reports which contain undefined, confusing, inconsistently used, and
purely subjective terminology; and where the person who is the subject of the proceeding
may not even be present. That the persons who are subjected to this statutory scheme are
among the least able to defend themselves—not to mention, for far too long, the least
defended—exacerbates my anxiety.
¶22 I urge the Legislature to revisit the entirety of Title 53, chapter 20, and to enact
appropriate amendments and revisions to this statutory scheme so as to insure procedural and
substantive due process to developmentally disabled persons who are involuntarily
committed and recommitted. Indeed, it is fair to point out that we would not permit persons
accused of crimes to be charged, tried and imprisoned on the sorts of procedures and
evidence which the State routinely uses to commit and recommit persons whose only
“offense” is their neurologically disabling condition. Developmentally disabled persons are
entitled to no less protection of their fundamental constitutional rights to due process of law,
to individual dignity, and to seek safety, health and happiness1 than are persons who violate
society’s criminal laws. Our paternalistic attitude toward and manner of dealing with
developmentally disabled persons simply must change.
1 These rights are protected under Article II, Sections 17, 4 and 3, respectively, of the
Montana Constitution.
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¶23 That said, unless and until such a legislative reexamination of Title 53, chapter 20,
occurs, it will be up to defense counsel to aggressively challenge these statutes and the
processes and procedures by which developmentally disabled persons are involuntarily
institutionalized.
¶24 With these observations, I concur in Chief Justice Gray’s Concurrence.
/S/ JAMES C. NELSON
Chief Justice Karla M. Gray joins in the Concurrence of Justice James C. Nelson.
/S/ KARLA M. GRAY
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Chief Justice Karla M. Gray, specially concurring.
¶25 I concur in the Court’s resolution of this case, but only in limited portions of the Opinion. In
my concurring opinion in G.M., ¶ 74 (Gray, C.J., concurring), I observed that—contrary to certain
statements by the Court and the Dissent in that case—Mental Health of L.C.B. addressed the
inapplicability of the “criminal law exclusionary rule” to testimony and evidence admitted at a
hearing, and did not state that a district court in an involuntary commitment proceeding may view all
potentially relevant information in the universe. Here, I write separately to expand on my views that
certain evidentiary requirements apply in a commitment or recommitment hearing, documents
merely filed with a clerk of court are not “evidence” of their contents in the context of such a
hearing, and a district court may not properly base its findings on filed documents that are not
admitted into evidence at a hearing.
¶26 The first inquiry under the clearly erroneous test is whether substantial evidence supports a
challenged finding. See In re T.S.D., ¶ 13; Mental Health of L.C.B., 253 Mont. at 6, 830 P.2d at
1302. Section 26-1-101(2), MCA, defines “evidence” as “the means of ascertaining in a judicial
proceeding the truth respecting a question of fact, including but not limited to witness testimony,
writings, physical objects, or other things presented to the senses.” The initial burden of producing
evidence as to a particular fact is on the party who would be defeated if no evidence were given on
either side. Section 26-1-401, MCA. Thus, the party asserting a claim for relief—here, the State—
bears the burden of producing evidence in support of its claim that T.P. should be recommitted. See
Envir. Info. Center v. Dep. of Envir. Qual., 2005 MT 96, ¶ 14, 326 Mont. 502, ¶ 14, 112 P.3d 964, ¶
14 (citation omitted). Similarly, the burdens of persuasion and proof are on the party—here, the
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State—asserting the facts essential to the relief being claimed. See §§ 26-1-402 and -403, MCA.
“Proof” is the establishment of a fact by evidence. Section 26-1-101(4), MCA.
¶27 With certain exceptions not relevant here, the Montana Rules of Evidence apply to all
proceedings in Montana courts. M. R. Evid. 101(a); see also §§ 53-20-112(1) and 53-21-115(7),
MCA (2005). The Montana Rules of Evidence address such matters as relevance, hearsay,
authentication and identification, and the contents of writings and recordings. See M. R. Evid. 401-
403 and 801-1008. The court determines all preliminary questions concerning the admissibility of
evidence. M. R. Evid. 104(a).
¶28 Mental Health of L.C.B. cited to a prior involuntary commitment case relying on § 53-20-
101(1), MCA, and the Court likewise cites to that statute in ¶ 14. See Mental Health of L.C.B., 253
Mont. at 7, 830 P.2d at 1303. Section 53-20-101(1), MCA, which has not changed substantively
since its enactment in 1975, reads “[t]he purpose of this part is to: (1) secure for each person who
may be a person with developmental disabilities such treatment and habilitation as will be suited to
the needs of the person and to assure that such treatment and habilitation are skillfully and humanely
administered with full respect for the person’s dignity and personal integrity.” I have no quarrel with
our reliance in Mental Health of L.C.B. on § 53-20-101(1), MCA, in distinguishing involuntary
commitment cases from criminal cases for purposes of determining the applicability of the
exclusionary rule. I adamantly disagree, however, with the Court’s apparent reasoning in ¶ 14 that
the statutory subsection has any bearing on whether, under the clearly erroneous test which the Court
purports to apply, the evidence is sufficient to support a trial court’s findings. In re T.S.D., ¶ 13;
Mental Health of L.C.B., 253 Mont. at 6, 830 P.2d at 1302.
¶29 Further, while § 53-20-128(6), MCA (2005), contemplates the recommitment of a person
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without a hearing if no hearing is requested or held, the fact is that a hearing actually occurred here.
In the context of a hearing where the Montana Rules of Evidence apply, as discussed above, I cannot
conceive that the Legislature intended that a person could be involuntarily committed or
recommitted to the MDC for a full year after a hearing at which he or she had no meaningful
opportunity to challenge the evidentiary bases for the allegations supporting the petition for
commitment or recommitment. Stated differently, my view is that an involuntary commitment
hearing is not merely a procedural nicety, but the only chance for a person facing a loss of liberty to
put the State to its proof.
¶30 Based on the foregoing, I agree with the Court’s observations in ¶¶ 7 and 16 that, the May
Plan having not been offered into evidence nor even filed, Crosbie’s testimony regarding the May
Plan was insufficient to support findings necessary for T.P.’s recommitment. I disagree with the
Court’s reasoning that the District Court could have properly based its findings on the March Plan,
Janacaro’s Report and the RFST Report, which were neither introduced nor admitted into evidence.
¶31 I concur in the Court’s determination that the District Court erred in finding T.P. “seriously
developmentally disabled” and in the disposition of this case.
/S/ KARLA M. GRAY
Justice James C. Nelson joins in the foregoing special concurrence of Chief Justice Karla M. Gray.
/S/ JAMES C. NELSON
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