In Interest of JS

530 N.W.2d 331, 1995 N.D. LEXIS 73, 1995 WL 215727
North Dakota Supreme Court·Decided April 13, 1995·No. Civ. 950076·Published·Cited by 37 cases

Opinions

MESCHKE, Justice.

In this expedited appeal, J.S. seeks review of orders for his continuing treatment and forced medication. We affirm the orders, but remand for J.S. to have an opportunity to remedy his improper ejection from the courtroom during the hearing.

J.S. has been a patient at the North Dakota State Hospital in Jamestown since October 6, 1989, when he was charged with criminal terrorizing after he threatened a peace officer, Human Service Center staff at Devils Lake, and a state’s attorney. He was diagnosed with schizophrenia, paranoid type, chronic, and was eventually given periodic injections of an anti-psychotic medication, haldol decanoate, after he refused oral medications. J.S. was found unable to assist in his own defense, and was committed to the State Hospital under NDCC 12.1-04-08 for up to three years.

In April 1992, J.S. became aggressive and hit a doctor with a pool cue, breaking the doctor’s finger. In October 1992, when his [333]*333initial commitment ended, J.S.’s guardian authorized a 45-day voluntary admission for him. In November 1992, the trial court entered a 14-day temporary treatment order, and in December 1992 the trial court ordered J.S.’s treatment to continue for 90 days until March 10,1993. On March 10,1993, the trial court extended his treatment for another year. J.S. appealed that order, and we affirmed. In Interest of J.S., 499 N.W.2d 604 (N.D.1993). We explained that J.S.’s psychiatrist, Dr. Leonardo Arevalo, testified “J.S. is delusional, has a propensity for aggressive behavior, and had recently assaulted another patient without provocation.” Id. at 605. We concluded at 607'that evidence showed “alternative treatment programs would not be adequate to meet J.S.’s treatment needs. Violent, aggressive, and unpredictable behavior constitutes clear and convincing evidence that treatment outside the hospital would not be appropriate.”

The trial court entered another one-year treatment order for J.S. on February 23, 1994. On January 3, 1995, the trial court ordered continuation of J.S.’s forced medication. J.S. appealed. In Interest of J.S., 528 N.W.2d 367 (N.D.1995). Summarizing a psychiatrist’s testimony that “J.S. would likely regress to the behavior underlying the 1989 criminal terrorizing charge if not treated” and that “there is no less restrictive means of treating J.S. because nothing else reduced the agitation caused by the delusions,” id. at 368, we affirmed the forced medication order but remanded for the court to specify the exact medication in the order.

On January 20, 1995, the State Hospital petitioned to continue treatment of J.S. and to continue to medicate him with haldol decanoate, because the most recent order for continuing treatment was to expire on February 23, 1995. J.S. was present at the hearing on February 15, 1995, but the trial court ejected him from the hearing and returned him to the State Hospital because of his interruptions and outbursts.

After the hearing, the trial court ordered that J.S. “be hospitalized and treated by the North Dakota State Hospital until February 15, 1996, a period of one year, or until further order of the Court” and that “[t]he North Dakota State Hospital medicate the respondent involuntarily with Haldol Decanoate until May 16, 1995, a period not to exceed ninety days from the date of the hearing on this matter.” J.S. appeals these orders.

J.S. argues that he did not knowingly waive his right to be present at the hearing nor did he request to leave, and thus the trial court, by ejecting him from the courtroom, violated his statutory right under NDCC 25-03.1-15 and his constitutional due process right to be present at the hearing. J.S. also argues that the trial court failed to explicitly state in its findings that there was a reasonable expectation that J.S. posed a serious risk of harm to himself and others if not medicated, and that the trial court erroneously relied on J.S.’s past actions to determine a substantial likelihood of harm to J.S. or to others presently exists. We agree J.S.’s rights to be present were compromised, but we reject his other contentions.

To balance the competing interests of protecting a mentally ill person and of preserving that person’s liberty, our standards of decision require trial courts to use a clear and convincing standard of proof while we use a more probing “clearly erroneous” standard of review. Matter of Guardianship of Braaten, 502 N.W.2d 512, 518 (N.D.1993). As we explained in In Interest of R.N., 513 N.W.2d 370, 371 (N.D.1994), “we will affirm an order for involuntary treatment unless it is induced by an erroneous view of the law or if we are firmly convinced it is not supported by clear and convincing evidence.”

I

J.S. argues that the trial court erred in finding that his conduct demonstrated a substantial likelihood of harm to himself or others because there were only generalizations about his past conduct, rather than specific, first-hand testimony about each of his past episodes of violence. Of course, past decisions and findings about J.S.’s violent behavior are not res judicata, and by themselves do not condemn a committed person to remain hospitalized for life. Still, past deci[334]*334sions and findings of recurrent violent behavior reflect J.S.’s medical history.

At the hearing, Dr. Arevalo, the only witness to testify, described J.S.’s recent threatening behavior, testified from his history that J.S. is violent when not on medication, and believed that he is capable of escalating his threats to actual violence. Accepting Dr. Arevalo’s testimony, the trial court found:

7.
That [J.S.] is threatening to others and doesn’t believe that anyone can force him to do anything.
8.
That in 1989, [J.S.] threatened a peace officer, Human Service Center staff at Devils Lake, and a state’[s] attorney. He has broken a doctor’s finger in 1993. [J.S.’s] recent assaultive behavior, including threats of force in day-to-day requests and interactions, point he is required to be put in seclusion. [J.S.] refuses to participate in treatment. He has a difficult time socializing with others and tends to isolate himself.
9.
That [J.S.] exhibits behavior described as fighting words. The doctor believes that [J.S.] will go beyond words and resort to physical violence. '

The court concluded “that the respondent suffers from schizophrenia, paranoid type, chronic which substantially impairs his capacity to use self-control, judgment and discretion, and that there is a substantial likelihood of harm to himself and others as demonstrated by past actions and threats” and ordered a continuation of treatment for one year.

Specific evidence about every past episode of violent behavior need not be repeated by eye-witnesses at each hearing in order to prove the substantial likelihood of J.S. harming himself and others, when there is a current expert diagnosis that the uncontrollable violent behavior reflected in his history will recur without medication and treatment. Duplication of all past testimony is not necessary.

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In Interest of JS, 530 N.W.2d 331, 1995 N.D. LEXIS 73, 1995 WL 215727 (N.D. 1995).

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