NO. 91-212
IN THE SUPREME COURT OF THE STATE OF MONTAF?J
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1992
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IN THE MATTER OF W.M., Respondent and Appellant. . _.:-! “%w i
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Sl-Y’rE O F MONTANA
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Dorothy McCarter, Judge presiding?
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COUNSEL OF RECORD:
For Appellant:
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Andree Larose, Attorney at Law, Helena, M0htdna.r ; . X ~ T . ~ ~ ~ # ,
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For Respondent:
Hon. Marc Racicot, Attorney General, Helena,
Montana: Kathy Seeley, Assistant Attorney General,
Helena, Montana; Mike McGrath, County Attorney,
Helena, Montana; K. Paul Stahl, Deputy County
Attorney, Helena, Montana.
Submitted on Briefs: February 6, 1992
Filed:
Clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
W.M. appeals the order of the District Court of the First
Judicial District, Lewis and Clark County, which involuntarily
committed him to the Montana Developmental Center. We affirm.
The issue is whether the District Court erred in finding that
W.M. was seriously developmentally disabled and in ordering him
committed to the Montana Developmental Center for one year.
W.M. was adopted as an infant and lived with his adoptive
family until he was sixteen years old, when he moved to a foster
home. After he ran away from the foster home repeatedly, he
returned to live at his adoptive home for a short time and then was
briefly and unsuccessfully placed in several group homes for
developmentally disabled adults. He was first admitted to
Montana's state institution for the developmentally disabled, the
Montana Developmental Center (MDC), in 1983, when he was nineteen
years old. At the time of these proceedings, W.M. was an athletic
twenty-six-year-old man diagnosed as functioning in the severe
range of mental retardation.
On May 29, 1990, W.M. moved from MDC into the Jerome House
group home for developmentally disabled adults, located in Helena,
Montana, and operated by West Mont. That evening at about 1O:OO
p.m., W.M. ran away from the group home wearing only his night
clothes. Although the staff immediately implemented their in-house
missing persons policy, they were unable to locate W.M. About an
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hour later, neighbors from approximately six blocks away returned
W.M. to the group home. They said that he had knocked on their
door and asked for help.
On June 21, 1990, after emptying the garbage outside at 9:45
p.m., W.M. again ran away from the group home. The staff called
city police to help locate him. According to police reports, he
was seen lying on a highway at about 1:00 a.m. He was apprehended
by the police two hours later, miles from the group home, while
trying to enter a woman's mobile home.
On the afternoon of July 29, 1990, residents of Jerome House,
including W.M., went to the Last Chance Stampede Fair and Carnival.
As they were leaving the fairground at about 4:30 p.m., W.M. ran
away from the group. A staff member was able to follow, but not to
stop him during the next hour and a half. During his flight, W.M.
ran through an empty field and then into a housing subdivision. He
trampled through people's gardens and threw rocks at the staff
person who was following him, some of which missed their target and
hit homes and other property. He took a bicycle from a garage and
rode it (at which point neighbors joined in the chase) and punched
the Jerome House staff person when the staff person caught up with
him. W.M. entered a vehicle which he found running in a driveway,
put it into reverse gear, and ran into the owner's fifth-wheel
trailer. When the vehicle stalled, he resumed running on foot
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until he was apprehended and physically subdued by police officers
about a quarter mile from the accident.
W.M.'s July 29, 1990 run resulted in approximately $5,000
worth of damages, two misdemeanor and two felony charges against
him, and a petition by a deputy county attorney that he be detained
and treated at MDC. At the hearing held before W.M. was committed
to MDC, the District Court heard the following evidence:
Glen Cuchine, an MDC employee who qualified as a "professional
person" under 5 53-20-102(7), MCA (1989), testified that he had
evaluated W.M. pursuant to the District Court's order. He filed
with the court his written conclusion that W.M. was seriously
developmentally disabled and that the most appropriate placement
for him was MDC. Cuchine testified that W.M.'s running behavior
was of longstanding duration and had occurred both in group homes
and at MDC. He testified that he was not aware of a group home in
the state that had enough space or staff to handle W.M.'s running
behavior, but that MDC had the resources to handle the behavior.
Daphne Crosbie, an employee of the Montana Department of
Social and Rehabilitation Services who handled placement of
developmentally disabled persons throughout the state, testified
that in her opinion there was no group hone in the state where a
placement was available and appropriate for W.M. She testified
that, at Jerome House, "I don't think they have the staffing
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capability given what he needs when an incident occurs, a running
incident.
The habilitation coordinator for West Mont, Jan Paulsen,
testified that when W.M. left on his May 29 run there was only one
staff person on duty. When he went on his second run, his leaving
caused another resident of the group home to become "very upset"
and "highly aggressive," which occupied the attention of the staff
and led them to call the police to locate W.M. She testified that
the staff at West Mont felt that the only way they could success-
fully serve W.M. would be if they had the ability to lock him in
the house, and that this would pose a risk to other persons in the
group home. She testified that they would also need a registered
nurse on staff to administer a shot intermuscularly, and perhaps
mechanical restraints, which would require the hiring of additional
staff. She further testified that because these things were not
feasible,
if [W.M.] came back to the Jerome House we would allow
him to run, we would probably not be able to follow him,
and we would just have to let the city police deal with
it and let [W.M.] be at large in the community.
She testified that W.M. was on medication for frontal lobe seizures
and that when persons have seizure activities they are not in
control of their physical movements or their mental capabilities.
She also testified that, following a run, W.M. did not remember his
actions on the run.
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Did the District Court err in finding that W.M. was seriously
developmentally disabled and in ordering him committed to MDC for
one year?
Section 53-20-103(12), MCA (1989), provides the following
definition of "seriously developmentally disabled:"
developmentally disabled due to developmental or physical
disability or a combination of both, rendering a person
unable to function in a community-based setting and which
has resulted in self-inflicted injury or injury to others
or the imminent threat thereof or which has deprived the
person afflicted of the ability to protect his life or
health.
Civil commitment for any purpose constitutes Ia significant
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deprivation of liberty that requires due process protection."
Addington v. Texas (1979), 441 U.S. 418, 425, 99 S.Ct. 1804, 1809,
60 L.Ed.2d 323, 330-31. As a result, clear and convincing evidence
is the standard of proof in a civil commitment proceeding.
Addinaton, 441 U.S. at 433.
W.M. cites Youngberg v. Romeo (1982), 457 U.S. 307, 102 S.Ct.
2452, 73 L.Ed.2d 28, as authority that he has a constitutional
right to receive minimally adequate habilitation and treatment
necessary to afford him freedom from involuntary commitment. In
doing so, he equates "freedom from undue restraint," Younqberq, 457
U.S. at 319, with a right to community placement. The holding in
Younqberq is not that broad. In Younsberq, the Court addressed the
substantive due process rights of involuntarily committed retarded
persons within the institution. The Court held that an involun-
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tarily committed person "enjoys constitutionally protected
interests in conditions of reasonable care and safety, reasonably
nonrestrictive confinement conditions, and such training as may be
required by these interests." Younsberq, 457 U . S . at 324. Several
United States Circuit Courts of Appeal have held that there is no
constitutionally-founded right of developmentally disabled persons
to receive treatment in a community setting. Gieseking v. Schafer
(W.D. Mo. 1987), 672 F.Supp. 1249, citing cases from the Second,
Third, Fifth, and Seventh Circuits.
W.M. points out the statutory preference for community
placement over institutionalization of developmentally disabled
persons in Montana. Section 53-20-101, MCA. But that preference
does not create an absolute right to community placement. The
preference for community-based settings is to be given Itwhenever
possible." Section 53-20-101(2), MCA.
W.M. claims that if the behavior management program used with
him at MDC had been used in the group home, the placement would
have been successful. On this basis, he maintains that it has not
been proven that he was unable to function in a community-based
setting.
The record reveals several immediate problems with that
argument. Jan Paulsen from West Mont testified that
[tlhe part of the program that we did not implement was
the punishment part. The part that would decelerate the
behaviors. Taking away his tokens, his money, and
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physically restraining him, possibly mechanically re-
straining him. We are unable to initiate a program of
that level of punishment until we have gone through a
base line period and a reinforcement period.
In other words, Jerome House was unable to immediately use all
components of the behavior management program used at MDC.
According to the written copy of the MDC program which was
admitted into evidence, another part of the program used at MDC was
an "accompanied walk with a staff member" when W.M. exhibited
antecedent behaviors or tried to run away. This part of the
program would not be feasible with one staff person on duty at the
group home, as was the case on the occasion when W.M. first ran
away. Also, Glen Cuchine from MDC testified that when W.M. ran
from that facility, he was able to free up a number of staff
persons to go find him. Given the level of staffing at the group
home, that procedure was clearly not always possible in that
setting.
We conclude that after hearing the above testimony, it was not
necessary that the District Court hear further testimony on the
failure of the group home to duplicate the behavior management
program used with W.M. at MDC.
W.M. points out that the emergency exit procedure set out in
administrative rules at DD Policy 481.2 was not followed. That
policy relates to administrative dismissals from group home
programs due to client behaviors. In contrast, this was a judicial
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proceeding initiated by a deputy county attorney, following the
filing of criminal charges against W.M.
The petition to commit W.M. to M D C was filed under 5 53-20-
121, M C A (1989). That section allows a county attorney, at the
request of a professional person, to file a petition alleging that
a respondent is developmentally disabled and in need of develop-
mental disability services. Section 53-20-122, M C A (1989),
provides that, if the district court finds probable cause, it shall
direct a professional person to examine the respondent and to make
an inquiry concerning the circumstances of the case.
Section 53-20-123(1), M C A (1989), requires the professional
person to report to the court in writing on whether the respondent
is developmentally disabled and to make a recommendation for
evaluation and treatment including an opinion on whether institu-
tional or community-based services are required. That statute
requires that the recommendation as to placement be based on
consultation with the Department of Institutions and the Department
of Social and Rehabilitation Services, and that the two departments
develop written policies to implement this requirement. Section
53-20-125, M C A (1989), provides that if the professional person
concludes that the respondent is seriously developmentally disabled
and recommends treatment and habilitation in a residential facility
on an extended basis, the professional person shall file the
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written recommendation and report with the court and shall request
that the court order the admission.
The record demonstrates that all of the procedural require-
ments of the above statutes were met. In addition, the petition
for commitment advised W.M. of his procedural rights enumerated at
§ 53-21-115, MCA, as made applicable to developmentally disabled
persons under 5 53-20-112, MCA (1989).
In light of the unanimous opinion of the witnesses who
testified at the commitment hearing that W.M. could not be served
in a presently-existing group home setting, we hold that the
District Court's determination that W.M. is seriously developmen-
tally disabled and its decision to commit him to MDC are supported
by clear and convincing evidence. W.M. has not shown that his
procedural or substantive due process rights were violated. The
order committing W.M. to MDC is affirmed.
,
. Chief Justice
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We concur:
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March 10, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
ANDREE LAROSE
Montana Advocacy Program
1410 Eighth Avenue
Helena, MT 59601
K. PAUL STAHL
Deputy County Attorney
Lewis and Clark County Courthouse
228 Broadway
Helena, MT 59601
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA