State of Missouri, Department of Mental Health v. Robert J. Rousseau, Jr.

• Court: Missouri Court of Appeals
• Decided: January 26, 2021
• Docket: WD83607
• Status: Published

Opinion

In the Missouri Court of Appeals Western District

STATE OF MISSOURI, DEPARTMENT ) OF MENTAL HEALTH, ) Appellant,) v. ) WD83607 ) ROBERT J. ROUSSEAU, JR., ) FILED: January 26, 2021 Respondent. )

APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY THE HONORABLE BRYAN ROUND, JUDGE

BEFORE DIVISION TWO: W. DOUGLAS THOMSON, PRESIDING JUDGE, LISA WHITE HARDWICK AND EDWARD R. ARDINI, JR., JUDGES

The Missouri Department of Mental Health (“DMH”) appeals the circuit

court’s grant of conditional release of Robert Rousseau from DMH custody. DMH

contends that the circuit court erred because Rousseau did not present clear and

convincing evidence that he was not likely to be dangerous throughout his

release. DMH also contends that the court erroneously applied the law by relying

on the presumptions of medical professionals to find that Rousseau met the

requirement for conditional release. For reasons stated herein, we affirm the

judgment.

FACTUAL AND PROCEDURAL HISTORY Rousseau has a longstanding diagnosis of paranoid schizophrenia. In 1990,

while in a nightclub, Rousseau responded to auditory hallucinations that

compelled him to stab and kill a woman, Megan Wood, whom he did not know. In

the ensuing trial, Rousseau was found not guilty by reason of insanity and was

committed to DMH.

In February 1996, Rousseau was granted a conditional release from the St.

Joseph State Hospital. While conditionally released, Rousseau again responded

to hallucinations compelling him to travel to Israel. Despite experiencing

psychotic symptoms, Rousseau told his social worker only that he was “stressed”

and needed a change in his medication. Rousseau ultimately flew to Israel in

violation of the terms of his release and remained there for four days before

returning to the United States. Rousseau’s trip to Israel was “uneventful,” and he

was arrested upon his return while trying to visit his mother in California.

Rousseau returned to DMH custody, where he has remained since.

Rousseau again applied for conditional release in 2011 and 2018. His 2011

application was denied, and his 2018 application proceeded to a bench trial. After

hearing the evidence, the circuit court granted Rousseau’s conditional release

from DMH custody for one year. The order included a plan for Rousseau to be

housed in facility under strict conditions to follow the DMH rules and regulations,

as well as directives from his DMH forensic case manager. Rousseau was also

ordered to follow ongoing security directives, treatment, and medical orders, in

addition to being subject to random drug and alcohol testing. DMH appeals.

2 STANDARD OF REVIEW

When reviewing a court-tried case for an application of conditional release,

we affirm the decision “unless it is not supported by substantial evidence, is

against the weight of the evidence, or it erroneously declares or applies the law.”

In re George, 45 S.W.3d 516, 518 (Mo. App. 2001). We give deference to the circuit

court’s findings of fact and credibility determinations. State v. Cromer, 186

S.W.3d 333, 341 (Mo. App. 2005); State v. Gratts, 112 S.W.3d 12, 19 (Mo. App.

2003).

ANALYSIS

In its first point, DMH contends the circuit court erred in granting

Rousseau’s conditional release because Rousseau failed to present clear and

convincing evidence that he was not likely to be dangerous if released. “[A]

committed person . . . may file an application in the court having probate

jurisdiction over the facility where the person is detained for a hearing to

determine whether the committed person shall be released conditionally.” §

552.040.10, RSMo 2016.1 “The burden of persuasion for any person committed to

a mental health facility under the provisions of this section . . . shall be on the

party seeking release to prove by clear and convincing evidence that the person

for whom release is sought is not likely to be dangerous to others while on

1 All statutory references are the to the Revised Statutes of Missouri 2016. 3 conditional release.” § 552.040.12. Clear and convincing evidence is “’evidence

that instantly tilts the scales in the affirmative when weighed against the evidence

in opposition,’ so that the court is left with . . . ‘the abiding conviction that the

evidence is true.’” Greeno v. State, 59 S.W.3d 500, 505 (Mo. banc 2001) (citing In

re S.H., 915 S.W.2d 399, 403 (Mo. App. 1996)).

The circuit court summarized the evidence as follows:

The State’s evidence in support of its position seeking a denial of Mr. Rousseau’s request for conditional release can be summarized as follows: 1) Dr. James Reynolds’ review of Mr. Rousseau’s file, including a detailed history of his offense and treatment, acknowledging that he is not and has never been Mr. Rousseau’s treating psychiatrist; 2) Dr. Reynolds’ twenty-five (25) minute conversation with Mr. Rousseau in April of 2019; 3) cross- examination of other witnesses; and 4) the victim impact statement noting the terrible toll this crime has taken on her family, provided by Ms. Mary Kathleen McInerny Wood, the mother-in-law of the Defendant’s stabbing victim, Megan Wood.

The evidence presented in support of Mr. Rousseau’s request for a conditional release includes the testimony of: 1) social worker Monica Campbell, a member of Mr. Rousseau’s treatment team, who had regular and frequent contact with Mr. Rousseau; 2) Dr. Bruce Parsa, M.D., a member of Mr. Rousseau’s treatment team, and the staff psychiatrist assigned to Mr. Rousseau’s team; 3) Dr. A. E. Daniel, M.D., a psychiatrist retained by Deanna Rousseau to act as a psychiatric resource and consultant related to Mr. Rousseau’s treatment for approximately nineteen (19) years, has reviewed approximately five thousand (5,000) pages of records related to Mr. Rousseau, and in addition to meeting with Mr. Rousseau on numerous occasion throughout their nineteen (19) year relationship; 4) Ms. Deanna Rousseau; and 5) Mr. Robert Rousseau. All of these witnesses support Mr. Rousseau’s request for conditional release. Additionally, Ms. Danielle Wright provided testimony concerning the living conditions and restrictions under which Mr. Rousseau would live and be assigned, were he conditionally released.

4 In its decision, the circuit court determined that the only medical testimony

favoring a denial of conditional release came from Dr. James Reynolds. The court

emphasized, however, that Reynolds’ contact with Rousseau was limited to a

review of Rousseau’s file and to a twenty-five-minute conversation with

Rousseau. Reynolds further admitted that he had not treated Rousseau as a

patient since 2003. In contrast, the court emphasized that the social worker and

other medical professionals whose testimony favored release had longstanding

involvement in Rousseau’s treatment and daily life. Through these points of

emphasis, the court ostensibly made credibility determinations that the testimony

from medical personnel with a long involvement in Rousseau’s treatment should

receive greater weight than from those not involved. We agree and give

deference to the circuit court’s credibility determinations. Cromer, 186 S.W.3d at

341; Gratts, 112 S.W.3d at 19.

Nevertheless, DMH contends that Rousseau’s evidence improperly focused

on his unlikeliness to be “violent” or “aggressive” rather than “dangerous,” as

Section 552.040.12 requires. Dangerous behavior is a broader category than

merely violent or aggressive behavior. See McKee v. State, 923 S.W.2d 525, 527

(Mo. App. 1996) (finding that the commission of a nonviolent crime may still

evince dangerous behavior). Beyond hearing ample evidence that Rousseau was

unlikely to be violent, however, the court also heard evidence that: (1) there have

been “no reported instances” of any unlawful conduct since 2011; (2) Rousseau

was aware of the nature of his 1990 crime, was remorseful for his conduct, and

5 was unlikely to repeat his prior unlawful acts; (3) Rousseau is not a risk to himself

or others; (4) Rousseau has actively participated in his treatment and has “been

fully compliant with his anti-psychotic medicine regimen”; (5) there have been no

reports of any psychotic episodes from Rousseau since at least 2009; (6) “for at

least the past decade,” Rousseau “has exhibited no symptoms whatsoever of an

active mental illness”; (7) under Rousseau’s proposed release plan, he would

receive continued monitoring, support, and treatment in the facility he would be

released to; and (8) Rousseau and his treatment team are aware of the nature of

his mental illness and the stressors that exacerbate it, and, in addition to

treatment and medication, have a prevention plan in place that aids Rousseau in

mitigating those stressors as they arise. This evidence more than fills the gaps

between “violence” and “danger.”

Moreover, while “dangerous” behavior encompasses more than “violent”

behavior, DMH’s argument also ignores that evidence of violence and aggression

necessarily weighs heavily on a determination of whether a person is likely to be

dangerous. Violence and aggression are two of the most recognizable subsets of

dangerous behavior. Therefore, while not dispositive, evidence of Rousseau’s

lack of violent or aggressive behavior is still significant under the circumstances.

DMH also contends that Rousseau’s trip to Israel in 1996 tips the scales in

its favor. We disagree. DMH relies on evidence that Rousseau was suffering from

a psychotic outbreak when he absconded to Israel. Although Rousseau told his

case worker at the time that he was “stressed” and his medication needed to be

6 adjusted, he did not directly discuss his psychotic symptoms with anyone.

Moreover, the record reveals that no one was aware of Rousseau’s psychotic

outbreak until after he had returned from Israel and had been arrested. DMH

contends that these events are evidence enough to overturn Rousseau’s release

because of the possibility that he might mask his symptoms and violate his

release once again.

While Rousseau’s foray to Israel and the circumstances surrounding it

weigh against Rousseau’s release, they are attenuated by other evidence on the

record. Rousseau has “exhibited no symptoms” of psychosis in over a decade.

Members of Rousseau’s treatment team opine that he will be able to conform his

conduct to the law, and will not repeat his prior misconduct, moving forward.

Additionally, in 1996, Rousseau himself suggested that he needed a change in

medication, presumably to prevent the psychotic outbreak that led him to Israel.

Indeed, in a 1996 forensic review following Rousseau’s return from Israel, forensic

psychologist Dr. Sam Parwatikar noted that Rousseau’s 1996 outbreak was likely

the result of improper dosages in his medication. The circuit court found that,

since then, “[t]he evidence is undisputed that, for at least the past decade,

[Rousseau] has actively participated in a myriad of treatment programs, has

exhibited no symptoms whatsoever of an active mental illness, and has been fully

compliant with his anti-psychotic medicine regimen.” The court also found that,

under Rousseau’s proposed release plan, he would be released to a facility where

he would receive continued monitoring and where “medication is taken in front of

7 staff and observed to be ingested”—thus ensuring continued medication

compliance. Therefore, evidence on the record supports a finding that Rousseau

is unlikely to repeat the events of his 1996 outbreak. The mere possibility of an

outbreak on release, without support from additional evidence, does not refute

substantial evidence that Rousseau has, and likely will remain, symptom free and

treatment compliant on conditional release.

Rousseau has provided evidence that he is unlikely to be violent or

aggressive. He has also provided evidence that he has, and will remain, medicine

and treatment compliant, and compliant with the law if conditionally released.

DMH’s evidence to the contrary is attenuated and overshadowed by ample

evidence to the contrary. We are left with an abiding conviction that Rousseau’s

evidence is true, and that it instantly tips the scales in his favor. The circuit court

did not err in finding that Rousseau met his burden by clear and convincing

evidence. We deny Point I.

In Point II, DMH contends the circuit court erred by erroneously applying

the law. Specifically, DMH argues that the court improperly deferred to medical

testimony in its decision to grant conditional release. “The determination of

whether the evidence satisfies the conditions for release is made by the courts not

the treating physicians.” State v. Nash, 972, S.W.2d 479, 482 (Mo. App. 1998)

(quoting Grass v. Nixon, 926 S.W.2d 67, 70 (Mo. App. 1996)). DMH relies on two

portions of the circuit court’s decision to support its contention. The court stated:

8 (1) the eight professionals that make up [Rousseau]’s treatment team concur with [his] request for a conditional release and, presumably attest that [he] meets all legal requirements for receiving a conditional release;

and

(2) [t]he treatment team, as a whole, imply by their support of the application for conditional release (sic) meets the statutory requirements for receiving a conditional release including that [Rousseau] is not likely to commit another violent crime because of this mental illness.

DMH argues that the court’s language indicated that it relied on medical

testimony alone to reach its decision. Therefore, DMH contends, the court

essentially allowed medical testimony to decide whether Rousseau met the

requirements of conditional release. This argument ignores, however, the court’s

detailed findings where it discussed the facts of this case in light of the relevant

factors for a grant of conditional release enumerated in Section 552.040.12.

Specifically, these factors are:

(1) The nature of the offense for which the committed person was committed;

(2) The person's behavior while confined in a mental health facility;

(3) The elapsed time between the hearing and the last reported unlawful or dangerous act;

(4) The nature of the person's proposed release plan;

(5) The presence or absence in the community of family or others willing to take responsibility to help the defendant adhere to the conditions of the release; and

9 (6) Whether the person has had previous conditional releases without incident.

§ 552.040.12.

Beyond merely relying on the presumptions and implications, as DMH

contends, the record reveals the court’s thorough consideration of all evidence

presented—medical or otherwise. The court ultimately found that Rousseau was

unlikely to be violent or aggressive, he was aware of and remorseful for his prior

conduct, he had a long history of remaining medicine and treatment compliant, he

had long remained lawful and incident free, he had been without psychotic

symptoms for over a decade, he would not likely relapse if he continued to remain

compliant, he intended to remain compliant, he was aware of his stressors and

how to prevent them, and his conditional release would involve continued care

and monitoring to ensure his success. We, therefore, find that the court’s reliance

on these presumptions and implications was not in isolation, but rather in

addition to its own lengthy list of considerations used to reach its decision.

DMH also relies on Grass v. Nixon, 926 S.W.2d 67 (Mo. App. 1996), to

support its argument. In Grass, the Eastern District overturned Grass’s

conditional release because, while Grass’s treatment team recommended his

release, the team had not yet determined Grass’s specific medical ailment or the

stressors that aggravated it. Id. at 71. Grass had also only been in treatment for a

few years at the time of his release hearing. Id. Unlike Grass, Rousseau has been

in treatment for over two decades since his last release in 1996. The record also

reveals multiple points of evidence supporting that Rousseau and his treatment 10 team are aware of his specific mental ailment, the stressors that exacerbate his

ailment, and have a plan in place, in addition to ongoing medicinal treatments, to

avoid and combat those stressors. Grass is not dispositive to the case before us.

Likewise, DMH relies on State v. D.W., 558 S.W.3d 589 (Mo. App. 2018).

This reliance is misplaced, however, because D.W. involves an unconditional

release rather than a conditional release. Id. at 595. The court in D.W. denied an

application for unconditional release because, aside from a single family member,

the applicant would no longer have a monitoring system in place to ensure she

remained treatment and medicine compliant if released. Id. at 597. The court was

specifically reluctant to cede the State’s compliance monitoring duties to a lone

family member. Id. Here, we are considering a more restrictive conditional

release. According to Rousseau’s proposed release plan, he would be released to

a facility where staff members are present at all hours of the day, where medicine

must be ingested in front of staff members, where residents follow various rules

and regulations, and where residents receive continued monitoring and care from

treatment professionals—among other things. Like Grass, D.W. is not dispositive

to the case before us. The circuit court did not erroneously apply the law. We

deny Point II.

CONCLUSION

The judgment is affirmed.

____________________________________ LISA WHITE HARDWICK, JUDGE

11 ALL CONCUR.