DA 12
- 0071 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 20 12MT 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 Yellowston e, 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 AttorneyGeneral; 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 20122

Justice Beth Baker delivered the Opinion of the Court. ¶1 C.R. appeals the Montana Thirteenth Judicial District Co urt ’s order involuntarily committing him

t o the Montana State Hospital( MSH) and authorizing his involuntary medication
. We af

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

**PROCEDURAL AND FACTUAL BACKGROUND** ¶6 The District Court involuntarily committed and authorizedthe involuntary medication of thirty
- year- old C.R. after it determined thath esuffered from a mental disorder and that his condition met the statutory criteria for involuntary commitment
. ¶7 Prior to the commitment proceedings , C.R. residedwith his brother, L.R. , at L.R. ’s residence. According to L.R. , on January 8, 2012 ,C .R. e xhibited “bizarre and erratic behavior at the residence, yelling uncontrollably at no one in particular,” and L.R. conta cted the Billings Clinic Psychiatric Center to check onC .R.’s welfare. Law enforcement transported C.R. to the Billings Clinic Emergency Room, where hebecame “acutely aggressive” during his mental healthev aluation. As a result of these behaviors, Dr. Faraz Maso od, M .D., ap sychiatrich ospitalistatthe Billings Clinic P sychiatric Center, requested that theYellowstone County Atto rney’s Office file a petiti on for3

involuntar

y commit ment . The Co unty Attorney’s Office filed ap etition on January 9, 2012 . ¶8 After rev

iewing the petition, the District Court found probable cause to believe that C.R. “ may su ffer from a mental disorder and may need to be committed be cause 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. Aft er being a dv ised by counsel of h is rightsregarding the petition , C.R. waived the initial hearing. The District Court appointed a professional person , Dr. Masood, to evaluate C.R. and set an ev identiary hearing for January 11, 2012. ¶9 On January 10, 2012, Dr. Masood reported to the courtthat, since his admissionto the Psychiatric Center , C.R. “remained labile, aggressive and hostile with disorganized behavior andt

houghts.” Dr. Maso od determined that C.R. sufferedf rom severe psychosis, amental disorder, and that he needed to be committed because he “cannot adequately care for his needs ” and was “ an imminentthreat 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 evidentiaryhearing on the petition, the District Court heardtestimony 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 ag reed that C.R. “poses a risk of imminent harm to himself or others , ” due to psychosis4

coupled withs chizophrenia
. Dr. Maso od stated that C.R. had shown littleimprovement since hi s admissionto the Psychiatric Center, where he had refused medication, spit on staff , and required physical restraint so n several occasions to prev entv iolent behavior. The hospital had to place C.R. in restraints three times and in seclusion twice durin g his short stay, which Masood testified was unusual. According to Masood, C.R. also continued to experienc e auditory hallucinations and delusions of paranoia, exhibit manic and impulsive behavior, and lack “ insight and judgment
. . . to be able to care f or himself.” Masood testifiedthat , absent treatment , C .R.’s condition would “[m]ost certainly”deteriorate . He recommended a ninety
- day commitment to MSHas the “least restrictive placement option” and “ if necessary, the involuntary a dministration of me dication” to facilitate C.R.’s treatment. ¶11 The District Court conc luded that the State proved to a reasonabled egree of medical certainty

that “ [C.R.] suffers from a mental disorder , ”n amely “psychosis and schizophrenia .” It also concluded that the State p roved 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 himse lf and others, and the likelihood that, absent treatment, his “mental healthwill further deteriorate.” The District Court ordered involuntary commitment of C.R. for up to three monthsand 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.5 **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
reM ental Health of

L .K.
- S. , 2011 MT 21, ¶ 14 , 359 Mont. 191, 247 P.3d 1100 . A finding of f act 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 conv iction that a mistake has been made.” L.K.
- S. , ¶ 14. ¶13 We require “strict adherence” to the statutory scheme go verning involuntary commitment due to the “critical importance” of the constitutional rights at stake. L.K.
- S. , ¶ 15 (citing In re Mental He a l th 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 A n appeal f

rom an order of involuntary commitment is not moot despite the appell ant’s release, since the issue sare capable of repetition, yet otherwise would evade rev iew
. 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 testi mony . ¶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 other6

matters.” S ection 53
-21
- 126(2), MCA. C ommitment is appropriate if the court determines, first, that the respondent suffers from a mental disorder and, second, th at 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 ha s 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’sa cts or omissions; and (d) whether the respondent’s mental disorder, as demonstrated by the respondent’s recent acts or omissions, will , i f untreated, predictably result in deterioration of the respondent’s mental condition to the point at which the resp ondent 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 , o r 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. contendst

hat, during the evidentiary hearing, “ [h]e testifi ed 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 prior7

to his psychiatric evaluation“ caused the symptoms descr ibed by Dr. Masood ” and resulted in his inability

to recollect most events that took placethe day before his hearing
. C.R. arg ues that his “lucid” testimony during the evidentiary hearing was “sufficient to create a reasonable doubt as to C.R.’s need for inv oluntary 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. suffer s from a mental disorder and that hemeets 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 fa vorable 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 ev identiary weight.” In re G.M. , 2008 MT 2 00, ¶ 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 g eneral population at the Psychiatric Center because of his propensity toward sviolence. Currently, [C.R.] is at risk of causing harm to self and others[,] the result of his mental disability. H e has spit on other patients. H e has be en in restraints on a number of occasions and on two occasions directly before this hearing because of concerns of p hysical confrontations with staff and other patients. [ C.R.] has shown no improvement and continues with auditory hallucinations, has delus ions of paranoia, demonstrates manic and impulsive behavior and has no judgment or insight into his mental disorder.8

The District Court also noted that L.R. t estified 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 ’sand L.R. ’s testimony supported the District Court’s findings. ¶20 C.R. contends the District Court “ did not even ma ke a credibility finding with respect to C.R.’s te stimony,” which it “completely ignored.” The District Court’s written o rder, however, indicates that it considered C.R.’s testimony and found it unreliable: [C.R.] felt that others, not himself, hadany issues, or alternatively, matters were not as bad asp ortrayed. [ C.R.] indicated he could reside with his brother or other fa mily me mbers, 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 thee vidence in t

he light most fa vorable to the S tate , we conclude t he District Court’s findingswere 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 werenot clearly erroneous
. ¶21 2. W

hether the District Court’ s failure to offer C.R. a court- appointed f riend violated C.R.’s statutory or constitutional rights. ¶22 Prior to 2009 , respondents in civi l commitment proceedings had a statutory right to a court - appointed friend. S ection 53
- 21
- 122(2), MCA (2007) (“The judge shall appoint a professional person and a friend of respondent . . .”). In 2009 , the Legislature amended § 53
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- 122 , MCA , whichnow 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 in9

this part and the respondent personally or through counsel consents, the court shall appoint the person as the fri end 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 oblig ate 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 rev ersing involuntary commitments for fa ilure of the District Court to appoint a friend. In re Mental Health of J.D.L. , 2008 MT 44 5, 348 Mont. 1, 199 P.3d 805 ; In reM ental Health of A.S.F. , 2008 MT 450, 348 Mont. 45, 199 P.3d 808. ThoughC .R. acknowledges that the statute no longer mandates appointment of a friend to a respondent in civil commitment proceedings , hecontends that werecognized 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 “aright to at least be o ffered 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. p oints 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 asf riend of respondent,” and that here, “the Petition merely stated ‘unknown.’” (Emphasis added.) The permissive lang uag e of the statute does not support an argument that t he county attorney isoblig ated to provide the10

name of a willing friend if the county attorney k nows of no person willing

to assist the respondent
. ¶25 While C.R. alleges a due process violation , our decisionsin 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. , ¶

1 2 . Now, the statute does not provide a mandate. C .R. does not challenge the constitutionality o f the current statute, but argues that the court cannot comply with ev

en the permissive lang

uag e of the statute if “it ma kes 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 rev iew sparingly and in only those limited situations where fa ilure to review the alleged error may result in a manifest miscarriage of justice or ma y compromise the integrity of the judici al 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 ga ve 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 adv ocated” for an independent ev aluation does not establish that failure to inquire into the possibility of a friendresulted in a manifest miscarriage of justice or c ompromised the integrity of the proceeding.11

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

c ompetentcounsel; (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, 3 06 Mont. 1, 29 P.3d 485). “ [ U] pon a substantial showing of evidence
. . . that counsel did not effectively represent the patient
respondent’s interests pursuant to the foregoing standards, ”we will vacate an order of involuntary commit ment. 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 fact s and circumstances of the entirecase.” C.R.C. , ¶ 19. ¶29 C.R. c ontends thatcounsel 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 onl y . Neither12

hisbriefs nor the recordas a wholeindicate any insufficiency regarding the appointment of c ompetentcounsel, counsel’s initial investigation, counsel’s interview with C.R., or C.R.’s right to remain silent during his hearing. ¶30 As inthis 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

e vidence
. . . that co unsel did not ef fectively 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 createda presumption of ineffective assistance of counsel
. C.R .C. ¶ 1 7. We concluded, however, that the presumption was rebuttedb y 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 a n independent psychological ev aluation, hismotion 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. citesno authority providing that counsel is prima facieineffective 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 e vidence 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 to13

conclude that a second evaluation prior to the hearing wouldh ave 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 indicatio ns of effective representation. C ounsel met with C.R. and Dr. Ma sood prior to the hearing. Counsel cross - examined Dr. Masood during the hearing reg arding the length of his evaluation of C.R. prior to diagnosing him with schizophrenia and paranoia

—twenty to thirty minutes

—and reg arding C.R. ’s disposition the day before the hearing, when, Dr. Masood agreed, hehad been “cooperating and giving answers . ” We conclude that the record as a whole demonstrates C.R.’s counsel serve das “ a vigorous advocate for therespondent’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 isaffirmed
.
/S/ BETH BAKER We concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S / MICHAEL E WHEAT /S/ BRIAN MORRIS