concurring specially and dissenting.
I concur in the result and most of the rationale expressed in the opinion, but I do not agree with the following statement in the opinion:
“The trial court’s determination of whether or not there is clear and convincing evidence that a respondent is a person in need of treatment is a finding of fact which this Court will not set aside on appeal unless it is clearly erroneous under Rule 52(a), N.D.R.Civ.P.”
The statement per se is inconsistent. This is no more legally correct than it is to state that in a criminal bench trial the court’s determination that the evidence establishes beyond a reasonable doubt that the defendant is guilty will not be set aside unless it is clearly erroneous under Rule 52(a) because Rule 52(a) only requires some evidence.
A finding is “clearly erroneous when although there is some evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made.” United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948). We adopted Rule 52 from the Federal Rule presumptively with the interpretations placed upon the Rule, and as early as In re Estate of Elmer, 210 N.W.2d 815 (N.D.1973), and since then, the construction placed upon Rule 52(a) by the United States Supreme Court has been adopted by this Court. In this respect my special concurrence and dissent in Dayap v. Kupperion, 331 N.W.2d 22 (N.D.1983), further expresses my dissent to the unrestricted use of Rule 52(a) to this type of case.
I find it difficult to understand why a strained and squeezed effort is made to fit appeals under North Dakota Century Code § 25-03.1-29 into Rule 52(a), NDRCivP, particularly where a simpler and more correct position is readily available. Our standard of review should be, “After viewing the evidence in the light most favorable to the decision is the evidence clear and convincing?”
In this instance there was and is no need to refer to Rule 52(a) under any concept because the evidence was not clear and convincing.
I do, however, agree that the use of the form for disposition by the trial court should be eliminated for several reasons. It defies logic to assume that in every case a “finding of fact” can be squeezed into one of the predetermined slots. This becomes more objectionable because that the predetermined slots are not “findings of fact” but a conclusion of law. Using the form as devised in this instance tends to make a mockery out of justice. I find nothing wrong in using checklists for some purposes, such as instructions to members of the staff or to attorneys, and such related items, but not for the final disposition of a case or as a “finding of fact.”