DA 12-0071

IN THE SUPREME COURT OF THE STATE OF MONTANA

2012 MT 258

IN THE MATTER OF:

C.R.,

 Respondent and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and For the County of Yellowstone, Cause No. DI 12-0006

Honorable Gregory R. Todd, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Robin A. Meguire, Attorney at Law; Great Falls, Montana

For Appellee:

Steve Bullock, Montana Attorney General; Kathryn F. Schulz, Assistant 

Attorney General; Helena, Montana

Scott Twito, Yellowstone County Attorney; Kevin C. Gillen, Deputy 

County Attorney; Billings, Montana

Submitted on Briefs: September 4, 2012

 Decided: November 13, 2012

Filed:

__________________________________________

Clerk

November 13 2012
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Justice Beth Baker delivered the Opinion of the Court. 

¶1 C.R. appeals the Montana Thirteenth Judicial District Court’s order involuntarily 

committing him to the Montana State Hospital (MSH) and authorizing his involuntary 

medication. We affirm.

¶2 We address the following issues on appeal: 

¶3 1. Whether the District Court improperly disregarded C.R.’s hearing testimony.

¶4 2. Whether the District Court’s failure to offer C.R. a court-appointed friend 

violated C.R.’s statutory or constitutional rights.

¶5 3. Whether C.R. received ineffective assistance of counsel.

PROCEDURAL AND FACTUAL BACKGROUND

¶6 The District Court involuntarily committed and authorized the involuntary

medication of thirty-year-old C.R. after it determined that he suffered from a mental 

disorder and that his condition met the statutory criteria for involuntary commitment.

¶7 Prior to the commitment proceedings, C.R. resided with his brother, L.R., at L.R.’s 

residence. According to L.R., on January 8, 2012, C.R. exhibited “bizarre and erratic 

behavior at the residence, yelling uncontrollably at no one in particular,” and L.R.

contacted the Billings Clinic Psychiatric Center to check on C.R.’s welfare. Law 

enforcement transported C.R. to the Billings Clinic Emergency Room, where he became

“acutely aggressive” during his mental health evaluation. As a result of these behaviors, 

Dr. Faraz Masood, M.D., a psychiatric hospitalist at the Billings Clinic Psychiatric 

Center, requested that the Yellowstone County Attorney’s Office file a petition for 
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involuntary commitment. The County Attorney’s Office filed a petition on January 9, 

2012.

¶8 After reviewing the petition, the District Court found probable cause to believe 

that C.R. “may suffer from a mental disorder and may need to be committed because of 

his mental disorder.” The District Court appointed counsel to represent C.R., ordered 

him detained at the Billings Clinic Psychiatric Center pending resolution of the petition,

and set an initial hearing on the petition for January 10, 2012. After being advised by 

counsel of his rights regarding the petition, C.R. waived the initial hearing. The District 

Court appointed a professional person, Dr. Masood, to evaluate C.R. and set an 

evidentiary hearing for January 11, 2012. 

¶9 On January 10, 2012, Dr. Masood reported to the court that, since his admission to 

the Psychiatric Center, C.R. “remained labile, aggressive and hostile with disorganized 

behavior and thoughts.” Dr. Masood determined that C.R. suffered from severe 

psychosis, a mental disorder, and that he needed to be committed because he “cannot 

adequately care for his needs” and was “an imminent threat to himself.” In Dr. Masood’s

opinion, there was “no recourse but for placement at the state hospital in Warm Springs.”

¶10 During the January 11, 2012 evidentiary hearing on the petition, the District Court

heard testimony from L.R., Dr. Masood, and C.R. L.R. stated that his brother was not 

mentally well, appeared to be a risk to himself or others, and currently was unable to care 

for himself. L.R. was “[a] hundred percent” in support of committing C.R. Dr. Masood 

agreed that C.R. “poses a risk of imminent harm to himself or others,” due to psychosis
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coupled with schizophrenia. Dr. Masood stated that C.R. had shown little improvement 

since his admission to the Psychiatric Center, where he had refused medication, spit on 

staff, and required physical restraints on several occasions to prevent violent behavior. 

The hospital had to place C.R. in restraints three times and in seclusion twice during his 

short stay, which Masood testified was unusual. According to Masood, C.R. also 

continued to experience auditory hallucinations and delusions of paranoia, exhibit manic 

and impulsive behavior, and lack “insight and judgment . . . to be able to care for 

himself.” Masood testified that, absent treatment, C.R.’s condition would “[m]ost 

certainly” deteriorate. He recommended a ninety-day commitment to MSH as the “least 

restrictive placement option” and “if necessary, the involuntary administration of

medication” to facilitate C.R.’s treatment.

¶11 The District Court concluded that the State proved to a reasonable degree of

medical certainty that “[C.R.] suffers from a mental disorder,” namely “psychosis and 

schizophrenia.” It also concluded that the State proved beyond a reasonable doubt that 

C.R. required commitment in light of his inability to care for himself, the “real risk of 

harm” he posed to himself and others, and the likelihood that, absent treatment, his 

“mental health will further deteriorate.” The District Court ordered involuntary 

commitment of C.R. for up to three months and authorized the administration of 

involuntary medication, if needed “to protect [C.R.] and the public and facilitate effective 

treatment.” C.R. was hospitalized pursuant to the court’s order and later released.
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STANDARD OF REVIEW

¶12 We review a district court’s order of civil commitment “to determine whether the 

court’s findings of fact are clearly erroneous and its conclusions of law are correct.” In 

re Mental Health of L.K.-S., 2011 MT 21, ¶ 14, 359 Mont. 191, 247 P.3d 1100. A 

finding of fact is clearly erroneous if “it is not supported by substantial evidence, if the 

district court misapprehended the effect of the evidence or if, after a review of the entire 

record, we are left with the definite and firm conviction that a mistake has been made.”

L.K.-S., ¶ 14.

¶13 We require “strict adherence” to the statutory scheme governing involuntary 

commitment due to the “critical importance” of the constitutional rights at stake. L.K.-S., 

¶ 15 (citing In re Mental Health of C.R.C., 2004 MT 389, ¶ 16, 325 Mont. 133, 104 P.3d 

1065 and In re Mental Health of T.J.D., 2002 MT 24, ¶ 20, 308 Mont. 222, 41 P.3d 323).

¶14 An appeal from an order of involuntary commitment is not moot despite the 

appellant’s release, since the issues are capable of repetition, yet otherwise would evade 

review. In re Mental Health of D.V., 2007 MT 351, ¶ 32, 340 Mont. 319, 174 P.3d 503.

DISCUSSION

¶15 1. Whether the District Court improperly disregarded C.R.’s hearing testimony.

¶16 Section 53-21-126, MCA, details the standard of proof, procedural requirements 

and criteria that a court must apply when considering a petition for civil commitment. 

The standard of proof in commitment proceedings is “beyond a reasonable doubt with

respect to any physical facts or evidence and clear and convincing evidence as to all other 
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matters.” Section 53-21-126(2), MCA. Commitment is appropriate if the court 

determines, first, that the respondent suffers from a mental disorder and, second, that one 

of the following criteria has been met: 

(a) whether the respondent, because of a mental disorder, is substantially 

unable to provide for the respondent’s own basic needs of food, clothing, 

shelter, health, or safety; 

(b) whether the respondent has recently, because of a mental disorder and 

through an act or an omission, caused self-injury or injury to others;

(c) whether, because of a mental disorder, there is an imminent threat of 

injury to the respondent or to others because of the respondent’s acts or 

omissions; and

(d) whether the respondent’s mental disorder, as demonstrated by the 

respondent’s recent acts or omissions, will, if untreated, predictably result 

in deterioration of the respondent’s mental condition to the point at which 

the respondent will become a danger to self or to others or will be unable to 

provide for the respondent’s own basic needs of food, clothing, shelter, 

health, or safety. Predictability may be established by the respondent’s 

relevant medical history.

Section 53-21-126(1), MCA; see § 53-21-127(7) (“Satisfaction of any one of the criteria 

listed in 53-21-126(1) justifies commitment pursuant to this chapter.”). The District 

Court’s decision to commit C.R. was based on its findings under § 53-21-126(1)(a), (b), 

and (d), MCA, that, due to his mental disorder, C.R. could not care for himself and posed 

a threat to himself and others, and that his mental condition would further deteriorate if 

left untreated.

¶17 C.R. contends that, during the evidentiary hearing, “[h]e testified coherently that 

he did not believe he suffered from a mental disorder and that he had a place to live and 

could provide for his own basic needs.” C.R. posits that his involuntary medication prior 
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to his psychiatric evaluation “caused the symptoms described by Dr. Masood” and

resulted in his inability to recollect most events that took place the day before his hearing. 

C.R. argues that his “lucid” testimony during the evidentiary hearing was “sufficient to 

create a reasonable doubt as to C.R.’s need for involuntary commitment or at the very 

least render Dr. Masood’s testimony regarding C.R.’s need for commitment not ‘clear 

and convincing.’” 

¶18 We review for clear error the District Court’s determination that C.R. suffers from 

a mental disorder and that he meets the criteria for commitment under § 53-21-126(1), 

MCA. In re Mental Health of M.C.D., 2010 MT 15, ¶ 9, 355 Mont. 97, 225 P.3d 1214 

(we “will disturb the district court’s findings in a civil commitment case only if they are 

clearly erroneous, when viewed in a light most favorable to the prevailing party”) (citing 

In re C.R.C., 2004 MT 389, ¶ 11, 325 Mont. 133, 104 P.3d 1065). “We normally defer to 

a district court’s determination of witness credibility and evidentiary weight.” In re 

G.M., 2008 MT 200, ¶ 38, 344 Mont. 87, 186 P.3d 229 (citation omitted).

¶19 The District Court made the following findings based on Dr. Masood’s hearing 

testimony: 

Since his admission, [C.R.] has refused medication, has been in and out of 

physical restraints, and has been segregated from the general population at 

the Psychiatric Center because of his propensity towards violence. 

Currently, [C.R.] is at risk of causing harm to self and others[,] the result of 

his mental disability. He has spit on other patients. He has been in 

restraints on a number of occasions and on two occasions directly before 

this hearing because of concerns of physical confrontations with staff and 

other patients. [C.R.] has shown no improvement and continues with 

auditory hallucinations, has delusions of paranoia, demonstrates manic and 

impulsive behavior and has no judgment or insight into his mental disorder.
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The District Court also noted that L.R. testified he believed C.R. was “not mentally 

well,” could not “because of his current mental state, care for himself,” and had recently 

become violent. C.R. does not contest that Dr. Masood’s and L.R.’s testimony supported 

the District Court’s findings.

¶20 C.R. contends the District Court “did not even make a credibility finding with 

respect to C.R.’s testimony,” which it “completely ignored.” The District Court’s written 

order, however, indicates that it considered C.R.’s testimony and found it unreliable:

[C.R.] felt that others, not himself, had any issues, or alternatively, matters 

were not as bad as portrayed. [C.R.] indicated he could reside with his 

brother or other family members, however the brother indicated that 

placement with him at this time was not acceptable. [C.R.] was not able to 

grasp the seriousness of his mental disability. 

Viewing the evidence in the light most favorable to the State, we conclude the District 

Court’s findings were supported by substantial evidence, the District Court did not 

misapprehend the effect of the evidence and we are not left with a firm conviction that a 

mistake has been made. Thus, the District Court’s findings were not clearly erroneous. 

¶21 2. Whether the District Court’s failure to offer C.R. a court-appointed friend

violated C.R.’s statutory or constitutional rights.

¶22 Prior to 2009, respondents in civil commitment proceedings had a statutory right 

to a court-appointed friend. Section 53-21-122(2), MCA (2007) (“The judge shall 

appoint a professional person and a friend of respondent . . .”). In 2009, the Legislature 

amended § 53-21-122, MCA, which now provides, “If the court finds that an appropriate 

person is willing and able to perform the functions of a friend of respondent as set out in 
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this part and the respondent personally or through counsel consents, the court shall 

appoint the person as the friend of respondent.” Section 53-21-122(2)(b), MCA. The 

statute mandates appointment of a friend only when the court has determined that an 

appropriate person is willing to perform that function; it does not obligate the court to 

seek out, investigate, or offer a friend when, as here, none was presented. 

¶23 The 2009 amendments were made in response to two decisions of this Court 

reversing involuntary commitments for failure of the District Court to appoint a friend. 

In re Mental Health of J.D.L., 2008 MT 445, 348 Mont. 1, 199 P.3d 805; In re Mental 

Health of A.S.F., 2008 MT 450, 348 Mont. 45, 199 P.3d 808. Though C.R. 

acknowledges that the statute no longer mandates appointment of a friend to a respondent

in civil commitment proceedings, he contends that we recognized in J.D.L. and A.S.F. the 

constitutional underpinnings of the right to a court-appointed friend due to the liberty 

interests at stake. C.R. argues that he had “a right to at least be offered a court appointed 

friend” and the District Court’s failure to “investigate, inquire and/or offer C.R. a friend”

justifies reversal of its decision. (Emphasis added.) 

¶24 C.R. points out that under § 53-21-121(2)(f), MCA, a petition for commitment 

must include “the name and address of any person whom the county attorney believes

might be willing and able to be appointed as friend of respondent,” and that here, “the 

Petition merely stated ‘unknown.’” (Emphasis added.) The permissive language of the

statute does not support an argument that the county attorney is obligated to provide the 
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name of a willing friend if the county attorney knows of no person willing to assist the 

respondent.

¶25 While C.R. alleges a due process violation, our decisions in J.D.L. and A.S.F. were 

premised on the express language of the statute, which at the time left the district court no 

discretion. “The mandate of § 53-21-122(2), MCA, to appoint a friend was essentially 

ignored.” J.D.L., ¶ 12. Now, the statute does not provide a mandate. C.R. does not 

challenge the constitutionality of the current statute, but argues that the court cannot 

comply with even the permissive language of the statute if “it makes no inquiry into 

whether such a person exists.” 

¶26 In both J.D.L. and A.S.F., we applied plain error review to the court’s failure to 

follow the requirements of the statute. “We invoke plain error review sparingly and in 

only those limited situations where failure to review the alleged error may result in a 

manifest miscarriage of justice or may compromise the integrity of the judicial process.” 

J.D.L., ¶ 6. Here, there was no objection before the District Court to the absence of a 

court-appointed friend and the record does not indicate whether either the State’s attorney 

or C.R.’s counsel gave consideration to any potential person willing to serve. C.R.’s 

brother was involved in the proceedings and testified that commitment was in C.R.’s best 

interest. C.R.’s argument that a friend “could have advocated” for an independent 

evaluation does not establish that failure to inquire into the possibility of a friend resulted 

in a manifest miscarriage of justice or compromised the integrity of the proceeding. 
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Since the statute does not mandate appointment of a friend, we decline to invoke plain 

error review in this case. 

¶27 3. Whether C.R. received ineffective assistance of counsel.

¶28 We evaluate five “critical areas” in determining whether a respondent received 

ineffective assistance of counsel in involuntary commitment proceedings:

(1) appointment of competent counsel; (2) counsel’s initial investigation; (3) counsel’s 

interview with the client; (4) the patient-respondent’s right to remain silent; and 

(5) counsel’s role as an advocate for the patient-respondent. In re Mental Health of 

C.R.C., 2009 MT 125, ¶ 16, 350 Mont. 211, 207 P.3d 289 (citing In re Mental Health of 

K.G.F., 2001 MT 140, ¶¶ 70-86, 306 Mont. 1, 29 P.3d 485). “[U]pon a substantial 

showing of evidence . . . that counsel did not effectively represent the patientrespondent’s interests pursuant to the foregoing standards,” we will vacate an order of 

involuntary commitment. C.R.C., ¶ 16 (quoting K.G.F., ¶ 91) (internal quotation marks 

omitted). We consider the whole record and evaluate each factor “based on the facts and 

circumstances of the entire case.” C.R.C., ¶ 19.

¶29 C.R. contends that counsel did not adequately represent his interests because 

counsel “did not obtain an independent professional person to evaluate [him].” C.R. 

points out that § 53-21-115(9), MCA, provides “the right to be examined by a 

professional person of the person’s choice when the professional person is willing and 

reasonably available,” but alleges that “C.R. was never offered the option of an 

independent medical examination.” C.R.’s claim implicates the fifth factor only. Neither 
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his briefs nor the record as a whole indicate any insufficiency regarding the appointment 

of competent counsel, counsel’s initial investigation, counsel’s interview with C.R., or 

C.R.’s right to remain silent during his hearing. 

¶30 As in this case, C.R.C. involved a claim of ineffective assistance of counsel based 

only on the fifth factor. We noted, “. . . it is unclear whether a challenge based only on 

one of the five ‘critical areas’ discussed in K.G.F. would meet the threshold ‘substantial 

showing of evidence . . . that counsel did not effectively represent the 

patient-respondent’s interests.’” C.R.C., ¶ 19. We recognized, based on K.G.F., that 

counsel’s stipulation to C.R.C.’s commitment without her consent created a presumption 

of ineffective assistance of counsel. C.R.C. ¶ 17. We concluded, however, that the 

presumption was rebutted by otherwise effective representation—including counsel’s 

cross-examination of the doctor who had concluded C.R.C. posed an imminent threat to 

herself and others, counsel’s attempt to obtain an independent psychological evaluation,

his motion to stay execution of the order of involuntary medication, and his notifying the 

court that he intended to appeal the order. C.R.C., ¶¶ 23-24. 

¶31 C.R. cites no authority providing that counsel is prima facie ineffective for failing 

to obtain an independent evaluation. C.R. offers the MSH discharge report as evidence 

that another evaluation would have created reasonable doubt about the need for 

commitment. We do not consider that report as substantive evidence because it was 

prepared after entry of the District Court’s commitment order and following eight days of 

inpatient care and intensive observation, and is a speculative basis upon which to 
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conclude that a second evaluation prior to the hearing would have led to a different 

outcome. 

¶32 As the State points out, the record in this case does not demonstrate that counsel 

made no effort to obtain an independent examination of C.R., or that C.R. asked for a 

second opinion. There are numerous other indications of effective representation. 

Counsel met with C.R. and Dr. Masood prior to the hearing. Counsel cross-examined 

Dr. Masood during the hearing regarding the length of his evaluation of C.R. prior to 

diagnosing him with schizophrenia and paranoia—twenty to thirty minutes—and 

regarding C.R.’s disposition the day before the hearing, when, Dr. Masood agreed, he had 

been “cooperating and giving answers.” We conclude that the record as a whole 

demonstrates C.R.’s counsel served as “a vigorous advocate for the respondent’s wishes.” 

In re Mental Health of T.J.F., 2011 MT 28, ¶ 33, 359 Mont. 213, 248 P.3d 804. 

¶33 For the foregoing reasons, the judgment of the District Court is affirmed.

/S/ BETH BAKER

We concur: 

/S/ MIKE McGRATH

/S/ PATRICIA COTTER

/S/ MICHAEL E WHEAT

/S/ BRIAN MORRIS