In Re the Necessity for the Hospitalization of Joan K.

273 P.3d 594, 2012 WL 1149398, 2012 Alas. LEXIS 51

• Court: Alaska Supreme Court
• Decided: April 6, 2012
• Docket: S-13800
• Status: Published

Opinions

OPINION

WINFREE, Justice.

I. INTRODUCTION

An adult woman diagnosed with a mental illness appeals her already completed 30-day involuntary commitment to Alaska Psychiatric Institute (APT), arguing the evidence did not support the superior court's findings that: (1) she was likely to cause harm to herself or others due to her mental illness; and (2) API was the least restrictive alternative placement for her. Because our existing case law provides that an evidentiary-based "weight of the evidence" challenge to a completed involuntary commitment is moot absent accompanying legal issues appropriate for decision under the mootness doctrine's public interest exception, we asked the parties to submit supplemental briefing on mootness. As a result, we now confront a question not directly raised in our earlier cases: should our application of the mootness doctrine in this context accommodate the importance of collateral consequences arising from an involuntary commitment? We answer that question "yes" and therefore reach the merits of this appeal. On the merits, we affirm the superior court's involuntary commitment order.

II. FACTS AND PROCEEDINGS

In February 2010 Joan K. disappeared from her mother's house.¹ Three weeks later Joan's mother received a telephone call from an unknown woman saying Joan was "confused or impaired" and should be picked up. Joan's mother found Joan and brought her to Fairbanks Memorial Hospital (FMH). Emergency room staff examined Joan and found her "very confused"; she also tested positive for amphetamines and cocaine. Joan was admitted to the psychiatric ward, where she had been voluntarily hospitalized twice in November 2009.

The next day a FMH staff physician applied for an ex parte order authorizing Joan's involuntary hospitalization for a mental health evaluation.² The superior court granted the application. Dr. Victor Bell, a psychiatrist, observed Joan over the course of five days. Dr. Stephen Parker, a psychologist, also observed Joan on two occasions. Neither Dr. Bell nor Dr. Parker contacted Joan's family or the psychiatrist who had previously treated Joan for a short time.

The superior court held a 30-day commitment hearing on March 1, 2010.³ The court found that Joan had bipolar disorder and that this mental illness altered her perception of reality, causing Joan to use drugs. The superior court found she was therefore likely to cause serious harm to herself through illegal drug use. The court stressed that Joan was "not being detained because she [was] a drug addict."

The superior court also found that as a result of her mental illness Joan was likely to cause harm to others, based on an incident at FMH and evidence of her unstable emotions. The court said Joan might "present aggressively out in the public in front of lay people who may not know of [Joan's] mental disability and who may react violently or who may be hurt by her, may not know how to talk her down and certainly are not going to have drugs available [such as Valium] to ameliorate her mood as was true here."

The superior court found no less restrictive facility than API would adequately protect Joan and the public. Finding Joan had refused voluntary treatment, the court ordered her committed to API for a period not to exceed 30 days. Although the record does not indicate when API actually released Joan, 30 days from her commitment date was April 1, 2010.

Joan appeals the superior court's 30-day commitment order.

III. STANDARD OF REVIEW

Mootness is a matter of judicial policy and its application is a question of law.⁴ We adopt the rule of law that is "most persuasive in light of precedent, reason, and policy."⁵ We review fact findings in involuntary commitment proceedings for clear error, reversing only if we are left with a "definite and firm conviction that a mistake has been made."⁶ We review related questions of law de novo, "including whether the fact findings meet the statutory standards for involuntary commitment."⁷

IV. DISCUSSION

A. Mootness And Collateral Consequences

1. Framing the issue

In Wetherhorn v. Alaska Psychiatric Institute we established that commitment-order appeals based on assertions of insufficient evidence are moot if the commitment period has passed, subject to the public interest exception.⁸ Because Joan's post-release appeal from the superior court's commitment order is based on an assertion of insufficient evidence and neither Joan nor the State discussed mootness in their original briefs, we ordered supplemental briefing on that issue.

In her supplemental briefing, Joan suggests we should overrule Wetherkhorn because it mistakenly focused on release from commitment, rather than vacating the commitment order, as the relief sought in a commitment-order appeal. She also argues the public interest exception to mootness applies because "(unless this court reviews commitment orders for sufficiency of the evidence, the masters and trial court judges hearing these cases will have no standards by which to measure the cases before them." Finally, she argues that we should adopt the collateral consequences exception to mootness in commitment-order appeals. The State responds that Wetherkorn mandates dismissal of Joan's appeal as moot because: (1) the public interest exception to mootness does not apply; and (2) Joan has not established any actual collateral consequences resulting from her commitment order.

We ordered oral argument on the mootness question, directing that the parties be prepared to discuss the authority and appropriateness of issuing a vacatur order to remedy possible collateral consequences arising from an otherwise-moot commitment order.⁹

2. We decline to consider overturning Wetherhorn, but we adopt the collateral consequences exception to mootness in this context.

a. Issues not considered

In response to our supplemental briefing order, Joan asserts that in Wetherhorn we "erred in focusing on the period of the commitment rather than the relief that Wetherhorn sought" when we held that an evidentiary-based challenge to a completed commitment is generally moot. Joan asserts the true relief Wetherhorn sought was vacating the "gravely disabled" finding; although not expressly stating it, she suggests the true relief she seeks is vacating the finding that she is a danger to herself or others.

Our order for supplemental briefing did not anticipate questioning Wethkerkorn's fundamental holding, nor did Joan address the standards we impose for overturning our precedent.¹⁰ We therefore do not consider overturning Wetherhorn's holding that an ev-identiary-based challenge to a completed 30-day commitment generally is moot.

Joan also argues her evidentiary-based appeal of her 30-day commitment should be considered under the public interest exception to mootness. She contends that given her bipolar disorder, she is likely to face future commitment proceedings and the issues of this case are likely to be repeated. She also contends we "must provide guidance to the trial courts" on the evidence necessary to meet the legal standards for: (1) finding someone a danger to self or others; and (2) least restrictive treatment alternatives. In connection with this latter argument, Joan cursorily asserts in her supplemental opening brief that her statutory right to appeal her commitment order is "meaningless" if we choose not to review the order.¹¹ Although Joan's interpretation of the statute as overriding the judicial policy of not deciding moot cases appears overbroad, we do not need to address this argument, or her overall public interest exception argument, because we agree with Joan that we should adopt the collateral consequences exception to mootness in this context and consider the merits of her appeal.¹²

b. Collateral consequences exception to mootness

Joan notes that several other courts have applied the collateral consequences exception to mootness in the involuntary commitment context. She points to social stigma,¹³ adverse employment restrictions,¹⁴ application in future legal proceedings,¹⁵ and restrictions on the right to possess firearms¹⁶ as recognized consequences from involuntary commitment orders. She argues we should adopt the collateral consequences exception to mootness and urges us to do so without adopting case-specific requirements; she contends a commitment proceeding will not focus on future collateral consequences and the record available for appellate review will be inadequate. Joan also argues that when we decline to review the merits of involuntary commitment orders, we should vacate them rather than leaving them in place.

The State acknowledges there are collateral consequences from an involuntary commitment order, but argues that: (1) an exception from the general rule of mootness requires a case-specific analysis; and (2) Joan has not established any actual collateral consequences arising from her involuntary commitment order. At oral argument the State also argued that certain collateral consequences from an involuntary commitment order, such as restrictions on the right to possess a firearm, are important, and we therefore should consider an appeal's merits rather than simply vacate the underlying commitment order.

We have previously recognized that the collateral consequences doctrine "allows courts to decide otherwise-moot cases when a judgment may carry indirect consequences in addition to its direct force, either as a matter of legal rules or as a matter of practical effect."¹⁷ Both Joan and the State have articulated sound reasons to adopt the doctrine, at least to some extent, in the involuntary commitment order context.

We conclude that there are sufficient general collateral consequences, without the need for a particularized showing, to apply the doctrine in an otherwise-moot appeal from a person's first involuntary commitment order. But we do note that some number of prior involuntary commitment orders would likely eliminate the possibility of additional collateral consequences, precluding the doctrine's application.¹⁸

3. Joan's commitment order is reviewable under the collateral consequences exception to mootness.

Based on our adoption of the collateral consequences exception to mootness in the involuntary commitment order context, we agree that Joan's commitment order, her first, is reviewable.

B. Merits of Joan's Appeal

1. Legal framework

To involuntarily commit someone to a treatment facility for up to 80 days, a court must first find, by clear and convincing evidence, that the person "is mentally ill and as a result is likely to cause harm to [self] or others or is gravely disabled."¹⁹ Although the statute does not define "harm," we have found AS 47.30.915(10) relevant,²⁰ defining "likely to cause serious harm" as when a person:

(A) poses a substantial risk of bodily harm to that person's self, as manifested by recent behavior causing, attempting, or threatening that harm;

(B) poses a substantial risk of harm to others as manifested by recent behavior causing, attempting, or threatening harm, and is likely in the near future to cause physical injury, physical abuse, or substantial property damage to another person; or

(C) manifests a current intent to carry out plans of serious harm to that person's self or another[.]

The court must also consider whether a less restrictive alternative would provide adequate treatment.²¹ Alaska Statute 47.80.915(9) defines "least restrictive alternative" as treatment conditions that:

(A) are no more harsh, hazardous, or intrusive than necessary to achieve the treatment objectives of the patient; and

(B) involve no restrictions on physical movement nor supervised residence or inpatient care except as reasonably necessary for the administration of treatment or the protection of the patient or others from physical injury[.]

As discussed below, we affirm the superior court's findings by clear and convincing evidence that Joan suffered from a mental illness and that as a result she posed a substantial risk of bodily harm to herself under AS 47.30.915(10)(A)"²² We therefore do not need to discuss the evidence or the superior court's finding that Joan posed a substantial risk of harm to others.

2. Expert witness testimony

Dr. Bell testified Joan suffered from bipolar disorder, a serious mental illness which caused Joan to suffer mixed emotional states with manic elements, depressed elements, and psychotic manifestations. Joan told Dr. Bell that she could sense other people's feelings, that Fairbanks was the center of the galaxy and the separation point between heaven and hell, and that she was responsible for maintaining the balance between heaven and hell. Joan also told him he was preserib-ing the wrong medicines because she needed amphetamines and OxyContin to deal with the stress of sensing others' thoughts. Dr. Bell was unable to determine whether Joan had organic brain damage because her manic bipolar disorder symptoms prevented a complete examination. Dr. Bell thought Joan had been abusing drugs for the three weeks she disappeared because her admission drug sereens were positive for amphetamines and cocaine and because she appeared to be in a state of "lethargy or torpor," which typically follows prolonged stimulant abuse.

Dr. Bell was primarily concerned Joan would harm herself by further illegal drug use. -He thought Joan would use drugs if she left the hospital because she believed she needed amphetamines and OxyContin to manage the stress associated with her delusions. Dr. Bell testified that using illegal substances in Joan's mental state would make her thought process "so completely disorganized" that she would not "know what she was doing." Using drugs would also cause "further de-stabilization of [Joan's] mental and mood state, which would aggravate her ability to conform ... to reasonably safe behaviors."

Dr. Bell testified there was not a less restrictive facility than API that could meet Joan's needs. He testified Joan needed a "very secure mental health unit" that would "very closely control[ ]" her and provide "a lot of emotional support, with careful control of her sleep pattern and regular appetite." Dr. Bell thought Joan would "need a long period of treatment, though it could be concluded within 30 days were she to accept medication reliably and begin to understand how drugs and alcohol impact on the exacerbation of her mental illness."

Dr. Parker testified he had not personally diagnosed Joan, but her records indicated she had bipolar disorder and a history of attention deficit hyperactivity disorder, poly-substance abuse, and alcohol abuse. In Dr. Parker's opinion, Joan was at risk of causing herself bodily harm through drug use if she were not committed. He said Joan's mental stability "can change very rapidly" due to her bipolar disorder. He also noted she had disappeared for three weeks and used drugs prior to her hospital admission. Dr. Parker testified Joan locked herself in a bathroom and threatened to blow herself up in November 2009. When the superior court asked what danger, if any, illegal drug use posed for Joan, Dr. Parker replied it would not be "good for the system" and was "self-destructive," but he could not say it posed "imminent danger." Dr. Parker acknowledged Joan had not expressed suicidal ideations after her February hospital admittance, nor did she directly indicate any intent to harm herself or others.

Like Dr. Bell, Dr. Parker testified there was not a less restrictive facility than API that could meet Joan's needs. Dr. Parker thought Joan needed to come out of her current manic episode and return to her baseline before release, otherwise she would continue her "uncontrolled manic behavior" and substance abuse. Dr. Parker noted that the day before the hearing nurses had to medicate Joan after an incident at the nurses' station. He also thought outpatient treatment was not a viable option for Joan because outpatient psychiatry or psychology requires patients to "have some kind of insight on their behavior and some ... sort of consistency of behavior." Joan had denied to him that she had any mental illness or needed treatment; due to her lack of insight, Dr. Parker thought it "very unlikely" Joan would follow through with outpatient treatment even if she said she would. Dr. Parker also testified that for a family wrap-around plan or 24-hour surveillance by a family member to work Joan would have to agree, and Joan changed her mind too frequently for such plans.

3. Substantial risk of harm to self

Joan does not contest the superior court's finding of a mental illness. Joan instead contends the superior court erred by finding that due to her mental illness she was likely to cause harm to herself, arguing: (1) there was no evidence illegal drug use physically harmed her and she did not make affirmative statements that she would use illegal drugs if released; and (2) she did not manifest a current intent to carry out a plan to seriously harm herself.²³

We decided a similar issue in L.P. v. Alaska Psychiatric Institute.²⁴ E.P. had a history of inhaling gasoline fumes and other substances to get high (huffing),²⁵ which caused organic brain damage.²⁶ He was involuntarily committed to API several times and "maintained that, if discharged from API, he [would] likely go back to huffing."²⁷ We held E.P.'s organic brain damage was "a condition apart from, and more than, his drug addiction" and met the statutory definition of "mental illness" under AS 47.30.915(12).²⁸ We also held the evidence supported the multiple masters' reports and superior court orders, which found huffing gas damaged E.P.'s brain and E.P. would continue huffing gas if released.²⁹ Thus "E.P.'s continued intent to huff gas, as a result of his impaired judgment and understanding, [met] the standards of AS 47.30.915(10)(A) and (C)."³⁰ "E.P.'s intent to huff gas constitute[d] intent to cause himself bodily harm, and ... resultled] from his mental illness.³¹ Here, the superior court expressly stated it was not finding Joan was likely to harm herself based on drug addiction alone. The superior court noted and, as we did in E.P., distinguished Joan's case "from one in which an addicted person with full mental capacity chooses to continue abusing harmful substances, no matter how unwise one might consider that choice."³² The superior court stated:

I find that [Joan] is suffering from a mental illness. She has bipolar disorder, which according to Dr. Bell's testimony, renders her unable to perceive reality. Her bipolar disorder is manifesting itself in psychosis right now. She is feeling that she is experiencing the feelings of other people, both close and far away, that Fairbanks is at the center point between heaven and hell and that she is responsible for maintaining balance between heaven and hell and keeping the universe centered.

She has advised Dr. Bell that she believes that she must take [amphetamines] and oxycontin to manage the stresses that are caused by her current situation; that is, by the fact that she is responsible for balancing the equal point between heaven and hell....

[Joan] is not being detained because she is a drug addict. She is taking drugs because of her perception of reality caused by her bipolar disorder and ... she's being detained because her mental illness is causing her to take the drugs.

The superior court's finding is amply supported by Dr. Bell's testimony.

The superior court also heard evidence that fllegal drug use would "pose a substantial risk of bodily harm" to Joan by exacerbating her mental illness.³³ Dr. Bell testified if Joan used illegal drugs in her current mental state, her thought process would get "so completely disorganized" that she would not "know what she was doing." IMegal drug use would also cause "further de-stabilization of [Joan's]! mental and mood state, which would aggravate her ability to conform ... to reasonably safe behaviors." In short, Dr. Bell's testimony supported the conclusion that Joan's continued illegal drug use would exacerbate her mental illness and cause a self-destructive downward spiral of her mental and physical health.

Finally, the superior court heard evidence regarding Joan's "recent behavior causing, attempting, or threatening" harm to herself by illegal drug use.³⁴ Although Dr. Bell and Dr. Parker both acknowledged Joan neither articulated a desire to harm herself nor did so beyond using illegal drugs, both thought she would continue using illegal drugs if she were not committed. Joan's emergency room toxicology report showed traces of amphetamines and cocaine in her system. Dr. Bell testified Joan showed symptoms of "lethargy or torpor" that follow stimulant abuse. Dr. Bell also testified Joan showed symptoms of opioid withdrawal. The plain text of AS 47.80.915(10)(A) directs courts to consider "recent behavior" and does not, as Joan argues, require affirmative statements regarding future drug use.³⁵ Even if affirmative statements were required, Joan told Dr. Bell he was prescribing the wrong medicines because she needed amphetamines and OxyContin.³⁶ This is sufficient to support the superior court's finding that Joan was likely to continue using illegal drugs if released.

Based on these findings, the superior court did not err by finding clear and convincing evidence that, under AS 47.30.785 and AS 47.30.915(10)(A), Joan was likely to cause harm to herself due to her mental illness.

4. Least restrictive alternative placement

An important principle of civil commitment in Alaska is to treat persons "in the least restrictive alternative environment consistent with their treatment needs."³⁷

Joan argues the superior court erred in finding commitment to API would be the least restrictive alternative placement. Joan also contends no testimony supported a finding that she refused outpatient treatment or a home placement, particularly in light of Dr. Bell's and Dr. Parker's decisions not to contact her family or prior psychiatrist to ask about Joan's potential success in such alternative settings. Joan's second argument reflects a misunderstanding of the superior court's findings-the court found outpatient treatment was not a viable option, and therefore the lack of evidence that Joan refused voluntary outpatient treatment is irrelevant.

The superior court found there was "[nlo less restrictive facility [that] would adequately protect [Joan] and the public." The court explained:

API is an appropriate treatment facility, that there is no less restrictive facility that would adequately protect the respondent and the public at this time. The reason for that finding is Dr. Parker's testimony that in order for a family wraparound to work or 24-hour surveillance by a family to work, she would have to agree to it and he has witnessed her changing her mind rapidly about what she will do and what she will not do. So, I can't trust that committing her to her family's care would be a less restrictive alternative that would likely work for her.

The record supports the superior court's finding.

First, Dr. Bell and Dr. Parker both testified there was no less restrictive facility than API that could meet Joan's needs. Dr. Bell testified Joan needed a "very secure mental health unit" that would "very closely control[ ]" her and provide "a lot of emotional support, with careful control of her sleep pattern and regular appetite." Dr. Bell thought Joan "need[ed] a long period of treatment, though it could be concluded within 30 days were she to accept medication reliably and begin to understand how drugs and alcohol impact on the exacerbation of her mental illness." Dr. Parker testified Joan needed to come out of her current manic episode and return to her baseline before being released, otherwise she would continue her "uncontrolled manic behavior" and substance abuse.

Second, Dr. Parker testified outpatient psychiatry or psychology require a patient stable enough to have insight into one's behavior and some "sort of consistency of behavior." Joan was not stable because she had changeable emotions and could change her mind "from one minute to the next." Joan also lacked perspective regarding her bipolar disorder, denying she had any mental illness or needed treatment. Because of Joan's lack of insight, Dr. Parker thought it "very unlikely" she would follow through with outpatient treatment even if she said she would.

The superior court did not err by finding API was the least restrictive placement.

V. CONCLUSION

We AFFIRM the superior court's involuntary commitment order on its merits.

CHRISTEN, Justice, not participating.

1 . We use a pseudonym to protect Joan's identity.

2 . See AS 47.30.710(b) (authorizing hospitalization if mental health professional "has reason to believe that the respondent is (1) mentally ill and that condition causes the respondent to be gravely disabled or to present a likelihood of serious harm to self or others, and (2) is in need of care or treatment," and requiring application for an ex parte order if no judicial order has been obtained under AS 47.30.700).

3 . See AS 47.30.730-.735 {setting forth requirements for 30-day commitment petition and 30-day commitment hearing).

4 . In re Tracy C., 249 P.3d 1085, 1089 (Alaska 2011) (quoting Clark v. State, Dep't of Corr., 156 P.3d 384, 386 (Alaska 2007)).

5 . Olson v. State, 260 P.3d 1056, 1059 (Alaska 2011) (quoting Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979)).

6 . In re Tracy C., 249 P.3d at 1089 (quoting Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 375 (Alaska 2007)).

7 . E.P. v. Alaska Psychiatric Inst., 205 P.3d 1101, 1106 (Alaska 2009) (citing Wetherhorn, 156 P.3d at 375).

8 . 156 P.3d at 380-81. See also E.P., 205 P.3d at 1106-08.

9 . See Camreta v. Greene, - U.S. -, 131 S.Ct. 2020, 2035, 179 L.Ed.2d 1118 (2011) ("The point of vacatur is to protect an unreviewable decision 'from spawning any legal consequences,' so that no party is harmed by what we have called a 'preliminary' adjudication." (quoting United States v. Munsingwear, Inc., 340 U.S. 36, 40-41, 71 S.Ct. 104, 95 L.Ed. 36 (1950))); Peter A. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 146 P.3d 991, 994-96 (Alaska 2006) (finding equity requires vacatur of challenged order when prevailing party's unilateral actions below resulted in issue becoming moot); City of Valdez v. Gavora, Inc., 692 P.2d 959, 960-61 (Alaska 1984) (vacating judgment because it was moot and to prevent it having later legal effect).

10 . See, e.g., State v. Carlin, 249 P.3d 752, 756 (Alaska 2011) ("We will overturn one of our prior decisions only when we are 'clearly convinced that the rule was originally erroneous or is no longer sound because of changed conditions, and that more good than harm would result from a departure from precedent.' " (quoting Pratt & Whitney Can., Inc. v. Sheehan, 852 P.2d 1173, 1175-76 (Alaska 1993))).

11 . See AS 47.30.1765 (providing that a "respondent has the right to an appeal from an order of involuntary commitment").

12 . We therefore do not address the dissenting opinion's discussion of the statute.

13 . In re Alfred H.H., 233 Ill.2d 345, 331 IIl.Dec. 1, 910 N.E.2d 74, 84 (2009) (citing In re Splett, 143 Ill.2d 225, 157 Ill.Dec. 419, 572 N.E.2d 883, 885 (1991)); State v. Lodge, 608 S.W.2d 910, 912 (Tex.1980); State v. J.S., 174 Vt. 619, 817 A.2d 53, 55-56 (2002).

14 . Alfred H.H., 331 Ill.Dec. 1, 910 N.E.2d at 84.

15 . Id. ("[A] reversal [of commitment order] could provide a basis for a motion in limine that would prohibit any mention of the hospitalization during the course of another proceeding."); In re Hatley, 291 N.C. 693, 231 S.E.2d 633, 634-35 (1977) (stating evidence of prior commitment order could be used to attack capacity of witness, to impeach witness, to attack character of defendant, and in subsequent commitment proceedings).

16 . In re Walter R., 850 A.2d 346, 349 (Me.2004) (citing 18 U.S.C. § 922(g)(4) (2000)).

17 . Peter A. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs., 146 P.3d 991, 994-95 (Alaska 2006) (internal quotation and citation omitted). See also id. (discussing other cases where court held issue was not moot based on potential collateral consequences); Martin v. Dieringer, 108 P.3d 234, 236 (Alaska 2005) (holding petition to remove personal representative of estate was not moot because findings were used to dismiss related civil suit based on collateral estoppel); Graham v. State, 633 P.2d 211, 213 (Alaska 1981) (holding driver's license revocation was not moot because collateral consequences of revocation "may be substantial," including higher insurance rates and adverse employment consequences); E.J. v. State, 471 P.2d 367, 368-70 (Alaska 1970) (holding child's claim he was improperly adjudicated as delinquent not moot even though adjudication was later declared void ab initio because child's records were easily obtainable by others such as school authorities, social workers, judges at sentencing, military, and prospective employers).

18 . See, e.g., Bigley v. Alaska Psychiatric Inst., 208 P.3d 168, 172-73 (Alaska 2009) (describing " 'revolving door' pattern of arrest, hospitalization, release, and relapse" and noting respondent had been admitted to API at least 68 times).

19 . AS 47.30.735(c). "Mental illness" is defined in AS 47.30.915(12) as "an organic, mental, or emotional impairment that has substantial adverse effects on an individual's ability to exercise conscious control of the individual's actions or ability to perceive reality or to reason or understand; mental retardation, epilepsy, drug addiction, and alcoholism do not per se constitute mental illness, although persons suffering from these conditions may also be suffering from mental illness."

20 . E.P., 205 P.3d at 1110 (holding that because EP. is "risking harm from [his own] affirmative action[, we conclude that E.P.'s continued intent to huff gas, as a result of his impaired judgment and understanding, meets the standards of AS 47.30.915(10)(A) and (C). ...").

21 . See AS 47.30.655(2) (noting principle of modern mental health care "that persons be treated in the least restrictive alternative environment consistent with their treatment needs"); AS 47.30.1735(d) ("If [at a 30-day commitment hearing] the court finds that there is a viable less restrictive alternative available and that the respondent has been advised of and refused voluntary treatment through the alternative, the court may order the less restrictive alternative treatment for not more than 30 days if the program accepts the respondent.").

22 . Clear and convincing evidence is evidence that produces "a firm belief or conviction" that the asserted fact is true. In re Johnstone, 2 P.3d 1226, 1234 (Alaska 2000) (quoting Buster v. Gale, 866 P.2d 837, 844 (Alaska 1994)) (emphasis added).

23 . Cf. AS 47.30.915(10)(A), (C).

24 . 205 P.3d 1101.

25 . Id. at 1103.

26 . Id. at 1104.

27 . Id.

28 . Id. at 1109.

29 . Id. at 1110.

³⁰

31 . Id. at 1110-11.

32 . Id. at 1111.

33 . See AS 47.30.915(10)(A).

³⁴

35 . EP. did not hold that affirmative statements were required to find someone likely to cause serious harm. We relied on evidence of E.P.'s statements that he would return to huffing, but we did not suggest such statements were required as a matter of law. See E.P., 205 P.3d at 1110-11.

36 . Joan asserts that at the time of the hearing she "would not have felt the need to take illegal drugs" because she had been taking medication for several days. No evidence provided at the hearing supports this contention.

37 . AS 47.30.655(2).