NO. 91-212 

IN THE SUPREME COURT OF THE STATE OF MONTAF?J .;4 gk 1992 

~21, 

. _.:-! “-.,wli %’ yJ z IN THE MATTER OF W.M., Respondent and Appellant. 

zi... , ;:..F suPamE COURT 

Sl-Y’rE OF MONTANA 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Dorothy McCarter, Judge presiding? 

j 

COUNSEL OF RECORD: 

. .. 

For Appellant: 

, ..c :;i.&tliaE COUR.i 

Andree Larose, Attorney at Law, Helena, M0htdna.r A;.X~T.~~~#, 

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 

2 
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 

3 
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 

4 
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 successfully 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. 

5 
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 IIa significant 

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 involun6 
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 

7 
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 

8 
proceeding initiated by a deputy county attorney, following the 

filing of criminal charges against W.M. 

The petition to commit W.M. to MDC was filed under 5 53-20- 

121, MCA (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 developmental disability services. Section 53-20-122, MCA (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), MCA (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 institutional 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, MCA (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 

9 
written recommendation and report with the court and shall request 

that the court order the admission. 

The record demonstrates that all of the procedural requirements 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 developmentally 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 

10 
We concur: 

11 
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