In the Interest of L.T.Hugh Thorfinnson v. L.T.

795 N.W.2d 324

2011 ND 51

In the Interest of L.T.Hugh Thorfinnson, Petitioner and Appellee

v.L.T., Respondent and Appellant.

No. 20110040.

Supreme Court of North Dakota.

March 22, 2011.

Fallon Matthew Kelly (argued), State's Attorney, Lisbon, ND, for petitioner and appellee.Jeffrey Keith Leadbetter (argued), Lisbon, ND, for respondent and appellant.CROTHERS, Justice.

[¶ 1] L.T. appeals the district court's order finding him “mentally ill or chemically dependent” and requiring alternative outpatient treatment including appropriate psychotropic medication and alcohol counseling. We reverse and remand for determination whether L.T. waived his right to be present at the hearing.

I

[¶ 2] L.T. was involuntarily committed to the North Dakota State Hospital from September 21, 2010, until November 1, 2010. His involuntary commitment was based on findings that he was a danger to himself and others because he stopped taking his medications, that he told people he would harm the police if they tried to arrest him for his driving under the influence charge and would harm anyone who hurt his dog, that he had a loaded gun in his house and that he lost forty to fifty pounds in one month due to improper eating.

[¶ 3] On November 1, 2010, the district court entered an order for less restrictive treatment requiring L.T. to complete outpatient treatment with the Southeast Human Service Center and to take his medications. On December 16, 2010, the State filed a petition for continuing treatment, alleging L.T. continues to drink alcohol, has a history of not taking prescribed medication, has little insight into his psychotic symptoms, and is diagnosed with schizophrenia, paranoid type and alcohol abuse. On December 28, 2010, a deputy sheriff served the notice of hearing by leaving the notice with E.T., L.T.'s brother, at a dwelling L.T. apparently used as his residence.

[¶ 4] A continuing treatment hearing was held on January 6, 2011. L.T. did not attend the hearing. The court delayed the hearing for fifteen to twenty minutes past its scheduled starting time, waiting for L.T. to arrive. The district court stated that because L.T. received notice of the hearing and because his counsel was present, the hearing would continue without L.T.'s presence. L.T.'s attorney did not object to proceeding with the hearing in L.T.'s absence.

[¶ 5] After hearing the petitioner's witness, the district court issued an order for continuing treatment, finding L.T. suffers from psychotic disorder NOS, he is chemically dependent, his psychological conditions manifest itself in paranoia, he keeps a loaded gun in the house and he has made statements about moving to another state where he will not be forced to take treatment. The district court also found L.T. needs treatment because he has poor insight into his condition. L.T. appealed.

II

[¶ 6] L.T. argues the district court erred by holding the continuing treatment hearing when he was not present and had not waived his right under N.D.C.C. § 25–03.1–15 to be present at the hearing. The State claims L.T. waived his right to be present by receiving notice of the hearing and not attending, and by his attorney participating in the hearing on L.T.'s behalf.

[¶ 7] We have stated:

“Our precedents on the ... care, treatment, and commitment of mentally ill persons, identify the conflicts between the needs for protection and liberty in imposing involuntary controls. To balance the competing interests of protection and liberty in these situations, our decisions expect trial courts to use a clear and convincing evidentiary standard, while our appellate review under NDRCivP 52(a) uses a more probing ‘clearly erroneous' standard. Under this standard of review, we do not replace the trial court's decision with our own. Instead, 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.”

In re R.N., 513 N.W.2d 370, 371 (N.D.1994) (quotation and internal citation omitted). See Grinnell Mut. Reinsurance Co. v. Thompson, 2010 ND 22, ¶ 9, 778 N.W.2d 526 (quoting State v. Brown, 2009 ND 150, ¶ 15, 771 N.W.2d 267) (interpretation and application of a statute is reviewed de novo because it is a question of law). Here, whether L.T. waived attendance at his hearing under N.D.C.C. § 25–03.1–15 is a question of law, which we review de novo.

[¶ 8] Section 25–03.1–15, N.D.C.C., provides, “The respondent must be present at all hearings unless the respondent waives the right to be present either orally or in writing.” The United States Supreme Court and this Court have recognized “that due process for a commitment hearing, ‘requires that [the respondent] be present with counsel, have an opportunity to be heard, be confronted with witnesses against him, have the right to cross-examine, and to offer evidence of his own.’ ” In re J.S., 530 N.W.2d 331, 335 (N.D.1995) (quoting Specht v. Patterson, 386 U.S. 605, 610, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967)).

[¶ 9] Our statute requires that waiver be either oral or written. N.D.C.C. § 25–03.1–15. An intended beneficiary of a statute generally can waive his rights under a statute. See Brunsoman v. Scarlett, 465 N.W.2d 162, 167 (N.D.1991) (“Statutory rights or benefits may generally be waived by the party entitled to such benefits.”). Section 25–03.1–15 was intended to benefit the respondent in a mental health hearing by requiring his presence at the hearing unless waived.

[¶ 10] Inherently, mental health proceedings involve respondents who are alleged to be mentally ill to a point necessitating forced treatment. These respondents' waiver of their right to appear at a commitment hearing...