In the Matter of the Civil Commitment of: Adam Howard Torke.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0145

In the Matter of the Civil Commitment of: Adam Howard Torke.

Filed July 9, 2018
Affirmed
Schellhas, Judge

Kandiyohi County District Court
File No. 34-PR-17-57

John E. Mack, Mack & Daby P.A., New London, Minnesota (for appellant Torke)

Shane D. Baker, Kandiyohi County Attorney, Willmar, Minnesota (for respondent county)

Considered and decided by Schellhas, Presiding Judge; Bratvold, Judge; and
Klaphake, Judge.
*
U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Appellant challenges his civil commitment and order for involuntary administration
of neuroleptics, arguing that the district court failed to make adequate findings. We affirm.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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FACTS
Appellant Adam Torke has an extensive history of substance abuse and dependence,
suicide attempts, psychiatric treatment, and hospitalization. Torke has been the subject of
civil-commitment orders almost every year from 2005 through 2017.
In March 2017, Prairie St. John’s Ho spital (St. John’s) admitted Torke for
depression, anxiety, pain, and intermittent suicidal th oughts. Kathryn Ney, M.D.,
diagnosed Torke with major depressive diso rder, severe with psychotic features vs.
schizoaffective disorder, acute stress disorder, alcohol-use disorder, opioid-use disorder,
and borderline personality disorder. St. J ohn’s attempted to place Torke in multiple
outpatient care facilities, but it ceased its pl acement efforts after Torke refused discharge
and due to Torke’s history of significant behavioral problems.
In June 2017, St. John’s petitioned for auth orization to administer neuroleptics to
Torke and requested a Jarvis hearing, and respondent Kandiyohi County petitioned for
Torke’s judicial commitment. The district c ourt ordered that Torke be confined at St.
John’s, examined by Linda Marshall, Ph.D., and appoin ted an attorney. Dr. Marshall’s
evaluation concluded that suffi cient criteria existed to commit Torke as mentally ill and
chemically dependent (MI/CD). In her report, Dr. Marshall supported Torke’s confinement
and the administration of neurol eptics, stating that Torke “l acks insight into his mental
health,” “engages in medication seeking,” “presents as a danger to himself due to
intermittent suicidal ideation and a danger to others by his threat s and aggression,” and
“lacks the capacity to make decisions” regarding his treatment.

3
At the Jarvis hearing, Dr. Marshall and Dr. Ney testified and agreed that Torke was
MI/CD, lacked capacity to make decisions regarding neuroleptics, and required continued
confinement and use of neuroleptics. Torke tes tified that he did not want confinement or
neuroleptics, and that St. John’s staff had poisoned him. The district court found that Torke
suffered from mental illness, the benefits of neuroleptics outweighed the risks, and ordered
a six-month commitment extension.
In August 2017, the county transferred Torke to Anoka Metro Regional Treatment
Center (AMRTC). On November 16, the Minnesota Department of Human Services (DHS)
recommended a 12-month commitment extension. A six-month report stated that Torke
lacked capacity to provide informed consent for treatment and understand his illnesses.
At a November 30 hearing, Lyubod Burleson, M.D., Torke’s AMRTC psychiatrist,
testified in support of continued commitment and neuroleptic treatment. Dr. Burleson cited
Torke’s delusional thinking, violent threats, and halluci nations. Torke repeatedly
interrupted the district court and Dr. Burles on’s testimony, claiming that it was “a bunch
of lies.” Torke testified that he disagreed with both his diagnosis of chemical dependency
and the assertion that he had voices in his head. He also testified that he did not want further
commitment.
The district court ordered an additiona l commitment period not to exceed six
months, expiring on May 30, 20 18. In a November 30 order, the court found that Torke
was MI/CD and met the statutory criteria fo r civil commitment, citing his continued
hallucinations, behavioral outbursts, and opioid addiction. The court found that Torke was
a danger to himself because he would not be ab le to provide for his own needs due to his

4
MI/CD, citing to his isolativ e and bed-bound beha vior at AMRTC. The court explicitly
stated that it had considered alternatives, bu t that none were available. The court also
ordered continued use of neuroleptics. Torke filed his notice of appeal on January 25, 2018.
We take judicial notice of Torke’s case file records, which reveal events that
occurred after the district court’s November 30, 2017 order. See Minn. R. Evid. 201(b)
(allowing for judicial notice of facts “capable of accurate and ready determination by resort
to sources whose accuracy cannot reasonably be questioned”). The events described do not
serve as the basis for our decision today, but we include them to provide context.
On February 9, 2018, the district court provisionally discharged Torke, and AMRTC
released him. But, on February 28, the coun ty sought an order to apprehend and detain
Torke for violating his provisional discha rge. The county repor ted that Torke was
exhibiting “suicidal ideation,” increased paranoia, and failing to manage his symptoms.
Torke had held a butcher knife and a paring knife to his neck, while making threats to harm
himself. On March 6, the c ourt revoked Torke’s provisiona l discharge and ordered him
committed for the remainder of his commitment to expire on May 30, 2018.
This appeal from the district cour t’s November 30, 2017 order follows.
D E C I S I O N
I.
Torke contends that the district court failed to abide by the requirements of the
Minnesota Commitment and Treatment Act, Minn. Stat. §§ 253B.01-.24 (2016), and failed
to make the requisite findings to continue his civil commitment. On appeal, we are “limited
to an examination of the [district] court’s compliance with the statute, and the commitment

5
must be justified by findings based upon evidence at the hearing.” In re Knops, 536 N.W.2d
616, 620 (Minn. 1995). We review the record in the light most favorable to the district
court’s decision. Id. We will not set aside findings of fact, whether based on oral or
documentary evidence, unless cl early erroneous, giving due regard to the district court’s
opportunity to judge the credibility of the witnesses. Id. When findings rest almost entirely
on expert testimony, the district court’s evaluation of credibility is particularly significant.
Id. We review the district court’s legal conclusions de novo. In re Thulin, 660 N.W.2d 140,
144 (Minn. App. 2003).
“To civilly commit a person as mentally ill, the [district] court must find by clear
and convincing evidence that the person is ‘mentally ill,’ as defined by the Minnesota Civil
Commitment Act.” In re McGaughey, 536 N.W.2d 621, 623 (M inn. 1995) (citing Minn.
Stat. §§ 253B.02, subd. 13, 253B.09, subd. 1 (1994)).
A person who is mentally ill is defined as any person who has
an organic disorder of the brai n or a substantial psychiatric
disorder of thought, mood, perception, orientation, or memory
which grossly impairs judgment, behavior, capacity to
recognize reality, or to reas on or understa nd, which is
manifested by instance of grossly disturbed behavior or faulty
perceptions and poses a substantial likelihood of physical harm
to self or others as demonstrated by:

. . . .

(3) a recent attempt or threat to physically harm self or others.
Minn. Stat. § 253B.02, subd . 13(a). For an initial commitm ent, the commitment statute
“requires that the substantial lik elihood of physical harm must be demonstrated by . . . a

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recent attempt or threat of harm to self or others.” McGaughey, 536 N.W.2d at 623
(emphasis omitted).
Following an initial commitment, when the district court must determine whether a
person continues to be mentally ill, “the court need not find that there has been a recent
attempt or threat to physically harm self or others. Instead, the court must find that the
patient is likely to attempt to physically ha rm self or others . . . unless involuntary
commitment is continued.” Minn. Stat. § 253B.12, subd. 4. When continuing an
involuntary commitment, a district court’s “fi ndings of fact and conc lusions of law shall
specifically state the conduct of the proposed patient which is the basis for the final
determination, that the statutory criteria of co mmitment continue to be met, and that less
restrictive alternatives have been considered a nd rejected by the court.” Id., subd. 7. The
district court must state its reasons for rejecting less-restrictive treatment alternatives. Id.
In this case, the district court’s order reflects that the court reviewed Torke’s
conduct, including his “behavio ral outbursts,” “delusional be havior,” “hallucinations,”
belief that “he is being poisoned,” and that he has been “isolative and largely bed-bound.”
The order also reflects the cour t’s consideration of treatment alternatives, along with its
determination that “there is no reasonable and available alternative.” The court noted in the
order that it considered th e “petition and attachments”; the “Pre-Petition Screening
Report”; Dr. Ney’s “Physician’s statement” ; Dr. Marshall’s “Psychological Evaluation,”
60-90 day report and six-mont h report; and Dr. Burleson’s te stimony. Torke argues that
the district court failed to make the requisite findings and that even if the record supports

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the court’s order, this court must reverse and remand to make the proper findings. We
disagree and conclude that the court made the requisite findings.
Torke argues that the record does not support the district court’s finding that he is a
danger to self and would not be able to provide for his own needs due to his MI/CD, arguing
that “[f]ew facts were elic ited which would support this finding.” We disagree. Dr.
Burleson testified about Tork e’s “delusional thinking” and “behavioral outburst[s].” She
also testified that he is “unable to take care of himself at this ti me,” explaining that his
room is often “very messy” and that he does not “get out of bed all day.” She also stated
that Torke still required supervision as a commi tted patient because he posed a threat to
himself and others and physically threatened hospital staff.
Torke argues that the district court cannot rely on Dr. Burleson’s testimony because
it violates Minn. R. Evid. 703, and that he r only qualifications were as “a licensed
psychiatrist and has been Mr. Torke’s treating psychiatrist for five weeks.” Torke did not
object to Dr. Burleson’s testimony at trial. We therefore conclude that Torke forfeited this
argument. See State v. Lilienthal, 889 N.W.2d 780, 785 (Minn. 2017) (“[The supreme court
has] held that an objection to the admissibility of evidence must be made at the first
opportunity, and that the failure to do so forfeits the right to raise the question on appeal.”);
Stand Up Multipositional Advantage MRI, P.A. v. Am. Family Ins. Co. , 889 N.W.2d 543,
550–51 n.8 (Minn. 2017) (applying forfeiture doctrine to a civil case).
And even if we disregard Dr. Burleson’s testimony, clear and convincing evidence
considered by the district c ourt supports Torke’s continue d commitment. Both the 60-90
day report and 6-month report recommende d continued commitment. Each contains

8
detailed information about Torke’s status a nd treatment, and recommended “a safe and
therapeutic environment” that can be accomplished with a “[c]ommitment extension.”
While the better practice for the district court would have been to make more
detailed findings, citing portions of the record on which it relied, clear and convincing
evidence supports its conclusion. See Grein v. Grein, 364 N.W.2d 383, 387 (Minn. 1985)
(affirming district court’s order where “on re mand the [district] court would undoubtedly
make findings that comport with the statutory language”). We therefore conclude that the
district court properly con tinued Torke’s commitment. See Thulin , 660 N.W.2d at 144
(affirming continued commitment where the “evidence in the record [was] sufficient to
support the statutory requirements for continued commitment”).
II.
Torke contends that the district court di d not make the proper findings to support
continued neuroleptic treatment. We disagree.
If the district court “finds by clear and convincing evidence that the proposed patient
is a person who is ‘MI/CD,’” then it “shall commit the patient to the least restrictive
treatment program” that “can meet the patient ’s treatment needs.” Minn. Stat. § 253B.09,
subd. 1(a). A district court may order involunt ary neuroleptic treatment if it finds that the
patient lacks capacity to manage his or her medication. Minn. Stat. § 253B.092 , subd. 8(e).
“A patient is presumed to have capacity to make decisions regarding administration
of neuroleptic medication.” Id., subd. 5(a). In determining a person’s capacity to make
decisions regarding the involuntary administration of neuroleptics, the court shall consider:

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(1) Whether the person demonstrates an awareness of the
nature of the person’s situation, including the reasons for
hospitalization, and the possibl e consequences of refusing
treatment;
(2) whether the person demonstr ates an understanding of
treatment with neuroleptic medications and the risks,
benefits, and alternatives; and
(3) whether the person communicates verbally or nonverbally
a clear choice regarding treatment with neuroleptic
medications that is a reasone d one not based on delusion,
even though it may not be in the person’s best interests.
Id., subd. 5(b). This determination must be supported by “clear and convincing evidence.”
Thulin, 660 N.W.2d at 145.
Here, the district court’s order auth orizes the continued involuntary use of
neuroleptics, concluding that it considered alte rnatives, but that no reasonable alternative
existed. The order contains a review of Torke’s state and treatment progress.
Torke nevertheless argues that the eviden ce does not support the district court’s
finding that no reasonable alternative to invo luntary use of neuroleptics exists. He argues
that the “only testimony given [that no alternative existed] was a brief opinion from Dr.
Burleson.” But Torke provides no legal authority to support the argument that the district
court erred if it only relied on one medical expert’s testimony to decide that no reasonable
alternatives were available. We therefore conclude that Torke wa ived this argument. See
Fannie Mae v. Heather Apartments Ltd. P’ship , 811 N.W.2d 596, 600 n.2 (Minn. 2012)
(“Summary arguments made without citation to legal support are waived.”).
Moreover, the record cont ains clear and convincing evidence in support of the
district court’s order. Dr. Burleson testified about Torke’s incapacity to make an informed
decision regarding neuroleptics and the unavailability of reasonable alternatives. She cited

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Torke’s “delusional” and “dis organized thinking” and his “behavioral outburst[s]” that
could cause him to “refuse [his] medication.” She explained how Torke “believes that he’s
being poisoned” and “shot . . . in his head by his perpetrator.” Torke’s own testimony
alluded to his delusions. The court’s order cites the 60-90 day report, 6-month report, and
the testimony of Torke’s previous psychiatrist . Both reports support the court’s order to
continue neuroleptics, concluding that Torke “lacks the capacity” to give informed consent
on treatment and its risks and benefits, and was “unable to take care of himself.”
We conclude that clear and convincing evidence supports continued involuntary
neuroleptic use. See In re Civil Commitment of Janckila, 657 N.W.2d 899, 904 (Minn. App.
2003) (relying only on testimony from three mental-health professionals to support
involuntary neuroleptic treatment and stating that “[w]hen the findings of fact rest almost
entirely on expert testimony, th e district court’s evaluation of credibility is particularly
significant”). The district court therefore properly ordered continued involuntary
neuroleptic use. See Thulin , 660 N.W.2d at 145–46 (affi rming order continuing use of
involuntary neuroleptics where the “record pr ovides clear and conv incing evidence to
support” the district court’s determination be cause “nothing had chan ged with respect to
that issue since the court’s initial [commitment] order”).
Affirmed.