In the Matter of the Civil Commitment of: Adam Christopher Robb.
Opinion text
This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2012).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-0450, A14-0451
In the Matter of the Civil Commitment of: Adam Christopher Robb.
Filed August 11, 2014
Affirmed
Hudson, Judge
Aitkin County District Court
File No. 01-PR-13-528
Jim Ratz, Aitkin County Attorney, Sarah Winge, Assistant County Attorney, Aitkin,
Minnesota (for respondent county)
Erica Austad, Grand Rapids, Minnesota (for appellant)
Considered and decided by Halbrooks, Presiding Judge; Hudson, Judge; and
Reilly, Judge.
UNPUBLISHED OPINION
HUDSON, Judge
On appeal from a district court order extending his commitment as mentally ill and
committing him indeterminately as mentally ill and dangerous (MID), appellant argues
that (1) the district court did not have jurisdiction over the mentally ill petition; (2) the
district court erred by concluding that he meets the criteria for continued commitment as
mentally ill and MID; (3) the district court erred by concluding that he meets the criteria
for indefinite commitment as MID; and (4) the district court failed to place him in the
least restrictive alternative placement. We affirm.
FACTS
Appellant Adam Christopher Robb has a history of harassment, stalking, and
domestic assault against A.M., the mother of his children, as well as a history of
marijuana use. He has been previously committed twice. Most recently, in the summer
of 2013, while appellant was incarcerated at the Aitkin County jail on a probation
violation, respondent Aitkin County petitioned to civilly commit him as mentally ill after
appellant “engaged in numerous bizarre and aggressive incidents, and refused to take his
prescribed medication.” Appellant admitted to the petition and was transferred to the
Anoka Metro Regional Treatment Center (AMRTC) on July 10 for a commitment “not to
exceed six (6) months.” Prior to that hearing, appellant had five different evaluations by
mental-health professionals. All five diagnosed him with some form of schizoaffective
disorder. Appellant was also diagnosed with polysubstance abuse/dependence in
remission in a controlled environment and antisocial personality disorder.
On July 29, 2013, the county filed a petition to commit appellant as MID. The
district court appointed James Gilbertson, Ph.D., to examine appellant in connection with
the petition; he concluded that appellant has schizoaffective disorder, polysubstance
abuse/dependence in remission in a controlled environment, cognitive disorder, and
antisocial personality disorder. He opined that this combination of diagnoses “frequently
represents one of the highest risk configurations for aggressivity toward others.”
Dr. Gilbertson concluded that appellant meets the statutory requirements to be committed
as MID. Following a trial, the district court committed appellant as MID at the
Minnesota Security Hospital (MSH) on October 10.
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On November 21, Christopher Bollig, Psy.D., submitted a treatment report to the
district court, along with the county’s request to extend appellant’s commitment as
mentally ill. Dr. Bollig diagnosed appellant with a “mood disorder not otherwise
specified,” polysubstance dependence, and antisocial personality disorder. Dr. Bollig
noted that appellant presented with no visible symptoms of schizoaffective disorder,
bipolar disorder, of cognitive disorder, but stated it could be “the result of effective
symptom management resulting from his current medication regimen.” Dr. Bollig also
noted that appellant’s pervasive use of substances “appears to have impacted his
psychiatric functioning.” Overall, Dr. Bollig concluded that appellant “satisfies statutory
requirements for continued commitment to a treatment facility as a person who is
[m]entally [i]ll.”
The parties agreed to hold a joint hearing for both the request to extend appellant’s
commitment as mentally ill and the final hearing on the MID petition. The hearing was
set to take place in December (before the expiration of appellant’s commitment as
mentally ill in early January), but appellant’s attorney requested a continuance.
Appellant’s attorney explicitly waived the 14-day scheduling requirement and requested
that a hearing be set for mid-January.
Adam Milz, Ph.D., submitted a December 13 report on appellant’s condition in
relation to the MID petition. Dr. Milz diagnosed appellant with polysubstance
dependence and antisocial personality disorder, but deferred any diagnoses of a mental
illness. Dr. Milz expressed concern that appellant may have been feigning his psychotic
symptoms in the past to avoid incarceration and noted that appellant has repeatedly been
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described as a “poor historian” of his psychiatric symptoms. Dr. Milz did acknowledge
that appellant was exhibiting “psychiatric symptomatology” during his incarceration at
the Aitkin County jail and that these acts “appear[ed] to be a distinct difference from the
majority of [appellant’s] previous contacts with mental health treatment providers.”
Dr. Milz offered several possible explanations for those behaviors, including the fact that
appellant may actually suffer from schizoaffective disorder or bipolar disorder.
Nonetheless, Dr. Milz concluded that “[g]iven the uncertain nature of the respondent’s
psychiatric history, diagnoses of a psychotic or mood disorder are currently deferred.
Clarification of [appellant’s] psychiatric status requires additional information regarding
his functioning over an extended period of time and under close supervision.” Dr. Milz
stated that appellant’s diagnosis of antisocial personality disorder does not meet the
statutory definition of a person who is mentally ill, but that appellant “is at an elevated
risk of future violence.” Dr. Milz opined that appellant is “in need of treatment in a
secured, inpatient setting that offers structure and consistency in programming,
supervision and oversight; and access to multidisciplinary supports for an extended
period of evaluation in order to clarify his diagnoses.” Therefore, Dr. Milz recommended
a continuance of the MID petition for a year.
The district court held a hearing on January 21, 2014, on both the MID petition
and the request to extend appellant’s commitment as mentally ill. The district court
continued appellant’s commitment as mentally ill for one year and committed him as
MID for an indeterminate period of time. This consolidated appeal from both orders
follows.
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DECISION
I
Appellant argues that the district court did not have jurisdiction to continue his
commitment as mentally ill because the review hearing held on January 21 was untimely.
Although appellant argues that the district court lacked jurisdiction, we note that the
failure to hold timely hearings does not necessarily affect the district court’s ability to
conduct further proceedings related to the petition. See In re Civil Commitment of Giem,
742 N.W.2d 422, 430 (Minn. 2007) (concluding that the district court does not lose
subject matter jurisdiction when statutory deadlines in sexual-psychopathic-personality
and sexually-dangerous-person (SPP/SDP) proceedings pass before a hearing is held).
Based upon the record here, we conclude that appellant waived his right to a timely
review hearing.
Minn. Stat. § 253B.12, subd. 1(b), (c) (2012), requires that prior to the termination
of a patient’s initial commitment order, the treatment facility must file a written report
with the committing court that sets forth various details about the patient’s care and
provides a discharge plan or a basis for continued treatment. Minn. Stat. § 253B.12,
subd. 2a (2012), requires that the district court hold a hearing within 14 days of the
receipt of this report, or within another 14-day continuance if good cause is shown.
Dr. Bollig’s treatment report was submitted on November 21, 2013; thus appellant
correctly points out that the January 21 hearing was outside the statutory guidelines. But
appellant’s attorney explicitly requested the later date in writing and waived the 14-day
requirement. Nonetheless, appellant argues that waiver is not allowed under the statute
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because section 253B.12, subdivision 2a, does not mention waiver, while the
corresponding statute for MID review hearings explicitly allows waiver of the time
requirements. See Minn. Stat. § 253B.18, subd. 2 (2012). We disagree. See Minn. Stat.
§ 253B.12, subd. 6 (2012) (stating that “[a] patient, after consultation with counsel, may
waive any hearing under this section . . . in writing”); see also Giem, 742 N.W.2d at 431
(concluding that a patient involved in SPP/SDP proceedings could waive statutory
hearing deadlines although the statute did not explicitly allow for waiver). Accordingly,
the district court did not err by extending the deadline for the review hearing on
appellant’s mental-health file.1
II
Review of a district court’s order extending a patient’s commitment as mentally ill
“is limited to an examination of the district court’s compliance with the statute, and the
commitment must be justified by findings based on the evidence at the hearing.” In re
Thulin, 660 N.W.2d 140, 144 (Minn. App. 2003). We view the record in the light most
favorable to the district court’s decision and we will not set aside findings of fact unless
clearly erroneous. In re Knops, 536 N.W.2d 616, 620 (Minn. 1995). We review de novo
whether the record contains clear and convincing evidence to support the district court’s
legal conclusion regarding commitment. Thulin, 660 N.W.2d at 144.
1
In his brief to this court, appellant also argues that the district court did not state the
time period for which appellant’s commitment as mentally ill is to continue. But the
order plainly states that the commitment expires on January 6, 2015, and at oral
argument, appellant’s counsel acknowledged that the order so states.
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If, after the initial six-month commitment period, a mental-health facility
concludes that a patient committed as mentally ill is in need of further treatment, that
facility must file a written report with the committing court, which must conduct a review
hearing. Minn. Stat. § 253B.12, subds. 1(c), 2a. To order continued involuntary
commitment, the court must find by clear and convincing evidence that: (1) the person
continues to be mentally ill; (2) continued involuntary commitment is necessary to
protect the patient or others; and (3) there is no alternative to continued commitment.
Minn. Stat. § 253B.12, subd. 4 (2012). Appellant argues that there is not clear and
convincing evidence that he has a mental illness or that he poses a danger to himself or
others.
Mental Illness
A person is mentally ill, for purposes of civil commitment, if he or she
has an organic disorder of the brain or a substantial
psychiatric disorder of thought, mood, perception, orientation,
or memory which grossly impairs judgment, behavior,
capacity to recognize reality, or to reason or understand,
which is manifested by instances of grossly disturbed
behavior or faulty perceptions and poses a substantial
likelihood of physical harm to self or others.
Minn. Stat. § 253B.02, subd. 13(a) (2012). Here, the district court relied on Dr. Bollig’s
report, in which he diagnosed appellant with mood disorder not otherwise specified, a
diagnosis that fits the statutory definition of mental illness. Dr. Bollig also concluded
that appellant poses a substantial likelihood of physical harm to himself or others because
of appellant’s inability to “obtain necessary care as a result of his impairment.”
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Appellant argues that the more recent evaluation of appellant conducted by
Dr. Milz contradicts Dr. Bollig’s report because Dr. Milz deferred any diagnoses of a
psychotic or mood disorder. But, importantly, Dr. Milz never concluded that appellant
does not have a psychotic or mood disorder; in fact, Dr. Milz suggested that such a
disorder may be one possible explanation for appellant’s actions. The district court, as
fact finder, was free to weigh the two differing reports and reach its own conclusion. See
Thulin, 660 N.W.2d at 144. In addition to Dr. Bollig’s report, all five of the experts who
provided reports completed at the start of appellant’s commitment concluded that he has
some form of schizoaffective disorder. The district court did not err by concluding that
clear and convincing evidence supports this prong.
Physical Harm to Self or Others
The district court also “must find that the patient is likely to attempt to physically
harm self or others, or to fail to provide necessary personal food, clothing, shelter, or
medical care unless involuntary commitment is continued.” Minn. Stat. § 253B.12,
subd. 4.
Although appellant’s symptoms were improving while he was in treatment,
Dr. Bollig’s report stated that appellant “would likely be unable to care for himself and
meet his basic needs in healthy and prosocial ways, especially given [his] history of
discontinuing his medications and suffering subsequent psychiatric decompensations.”
Dr. Bollig concluded that appellant poses a risk of physical harm to himself or others
because of his inability to care for himself outside of a treatment setting. Dr. Milz noted
that, while he could not conclude appellant poses a risk of harm to himself, appellant
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does pose “an elevated risk of future violence” to others. Accordingly, because both
experts concluded that appellant poses a risk of harm to either himself or to others, the
district court did not err by concluding that there is clear and convincing evidence
supporting this prong.
III
Appellant argues that the district court erred by committing him indeterminately as
MID because there is not clear and convincing evidence that he meets the statutory
requirements. The petitioner has the burden of proving by clear and convincing evidence
that an individual is MID. In re Welfare of Hofmaster, 434 N.W.2d 279, 280 (Minn.
App. 1989). For purposes of civil commitment:
(a) A “person who is mentally ill and dangerous to
the public” is a person:
(1) who is mentally ill; and
(b) who as a result of that mental illness presents a
clear danger to the safety of others as demonstrated by the
facts that (i) the person has engaged in an overt act causing or
attempting to cause serious physical harm to another and
(ii) there is a substantial likelihood that the person will
engage in acts capable of inflicting serious harm on another.
Minn. Stat. § 253B.02, subd. 17 (2012).
Mental Illness
As discussed above, there are different opinions as to whether appellant was
suffering from a mental illness at the time of the hearing. In its MID order, the district
court took into consideration all of the psychiatric reports from appellant’s past
commitments, the most current reports of Dr. Bollig and Dr. Milz, and the testimony of
Dr. Milz. The district court noted that, of the approximately seven mental-health
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professionals who had evaluated appellant, most within the last year, Dr. Milz was “one
of the only evaluators to opine that [appellant] may not have an Axis I psychiatric
disorder and that [appellant] may not meet criteria as a ‘person with a mental illness’
under Chapter 253B.”
Appellant argues that Dr. Milz’s testimony was the only new evidence the district
court had following the initial MID petition and that therefore the district court could not
conclude that there is clear and convincing evidence that appellant has a mental illness.
But Dr. Bollig’s report was issued after the initial MID hearing and unequivocally
concluded that appellant has a mental illness that meets the statutory definition. Thus, the
district court did not err by concluding that this prong was satisfied.
Clear Danger to the Safety of Others as a Result of the Mental Illness
Overt Act
The district court concluded that appellant has engaged in overt acts causing or
attempting to cause serious physical harm to another. Appellant has a history of
assaultive behavior. One past mental-health examiner noted, “I am aware of several
incidents involving degrees of physical assaults by [appellant] while he was in jail.” One
treatment report detailed appellant’s past physical altercations with his girlfriend. During
one incident, appellant hit her several times, “head-butted her nose, smashed her head
into a coffee table, attempted to strangle her, and ‘threw her neck around.’” During
another incident, he held her “by the neck and ‘bashed her head into a car.” The report
also documented two other incidents of appellant hitting his girlfriend in the head and
throat.
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Appellant claims these acts were not as serious as other overt acts identified by the
supreme court, but “it is not necessary that ‘mayhem or murder’ occur, and less violent
conduct may meet the statutory requirement.” In re Civil Commitment of Carroll, 706
N.W.2d 527, 531 (Minn. App. 2005). In addition, the district court was free to rely on
past incidents that occurred before appellant was in treatment and receiving medication.
See In re Dirks, 530 N.W.2d 207, 210 (Minn. App. 1995) (relying on past acts to satisfy
the overt-acts requirement). Accordingly, there is clear and convincing evidence in the
record that appellant committed an overt act causing or attempting to cause serious
physical harm.
Substantial Likelihood
Next, the district court concluded that the evidence established “that there is a
substantial likelihood that [appellant] will engage in acts capable of inflicting serious
physical harm to another.” The statute requires that this substantial likelihood arises as a
result of the patient’s mental illness. Minn. Stat. § 253B.02, subd. 17(a). The record
supports the district court’s conclusion. Dr. Milz concluded that appellant has an
elevated risk of future violence that is “possibly, although not clearly, elevated by
psychopathy.” Notably, when Dr. Milz testified that he would recommend discontinuing
appellant’s medications in a controlled setting, appellant responded on the record, “What
if I end up killing somebody?” Dr. Bollig’s report indicated that appellant “poses a
substantial likelihood of physical harm to self or others as demonstrated by his apparent
inability [to] obtain necessary care as a result of his impairment.” In addition, the report
of Dr. Gilbertson, who evaluated appellant for purposes of the first hearing on the MID
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petition, concluded that appellant has a major mental illness (schizoaffective disorder) as
well as an antisocial personality disorder, the combination of which “frequently
represents one of the highest risk configurations for aggressivity toward others.”
Dr. Gilbertson noted that this aggressivity “even in the face of recognized
interventions/sanctions, i.e. psychiatric treatment, incarceration, probationary
supervision, suggests an aggressive persistence that . . . substantially increases his risk for
interpersonal harmful aggression.”
Based on the reports of the experts, the district court did not err by concluding that
clear and convincing evidence supports the conclusion that, based on his mental illness,
there is a substantial likelihood that appellant may engage in acts capable of inflicting
serious harm on others. Although Dr. Milz may have not explicitly made the connection
between appellant’s mental illness and his risk of these acts, other experts did. As fact-
finder, the district court was free to weigh the competing evidence. See Thulin, 660
N.W.2d at 144.
IV
Finally, appellant argues that the district court erred by failing to consider the
least-restrictive alternative placement possible.
If the court finds by clear and convincing evidence that the
proposed patient is a person who is mentally ill and
dangerous to the public, it shall commit the person to a secure
treatment facility or to a treatment facility willing to accept
the patient under commitment. The court shall commit the
patient to a secure treatment facility unless the patient
establishes by clear and convincing evidence that a less
restrictive treatment program is available that is consistent
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with the patient’s treatment needs and the requirements of
public safety.
Minn. Stat. § 253B.18, subd. 1(a) (2012). Appellant does not identify what evidence he
provided at the district court that showed by clear and convincing evidence that a less
restrictive treatment facility would be appropriate. Appellant simply reiterates his
argument that he should not have been committed at all because Dr. Milz did not
diagnose him with a mental illness. But Dr. Milz concluded that lesser restrictive
outpatient treatment options would not be appropriate for appellant. Dr. Bollig also
recommended that appellant be placed in “a structured setting.” Accordingly, appellant
has not provided clear and convincing evidence that a less-restrictive treatment program
would meet his needs or protect public safety.
Affirmed.
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