In the Matter of K.G., Alleged to be Seriously Mentally Impaired

IN THE COURT OF APPEALS OF IOWA

No. 19-0560
Filed December 18, 2019

IN THE MATTER OF K.G.,
Alleged to be Seriously Mentally Impaired,

K.G.,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Dubuque County, Monica Zrinyi

Wittig, Judge.

K.G. challenges the civil commitment order issued under Iowa Code

chapter 229 (2019). AFFIRMED.

Francis J. Lange, Dubuque, for appellant.

Thomas J. Miller, Attorney General, and Gretchen Kraemer, Assistant

Attorney General, for appellee State.

Considered by Bower, C.J., and Potterfield and Greer, JJ.
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POTTERFIELD, Judge.

K.G. challenges the district court’s order affirming the magistrate’s civil

commitment order issued under Iowa Code chapter 229 (2019). On appeal, K.G.

argues (1) the State failed to meet its burden to prove by clear and convincing

evidence that she was a danger to herself or others due to her mental illness; (2)

the district court erred in not appropriately conducting a de novo hearing under

Iowa Code section 229.21(3); and (3) the district court erred by taking judicial

notice of two criminal complaints involving K.G. in violation of K.G.’s rights under

the Fifth Amendment to the United States Constitution.

I. Background

K.G. was involuntarily hospitalized following an altercation between herself

and her husband on February 24, 2019. In the days before the incident, K.G.’s

family had noticed an alarming change in K.G.’s behavior. She was “constantly

agitated and irrational” and had started using vulgar and racist language in

public. She had also become paranoid and believed most of her family was

conspiring against her. K.G.’s family tried to convince her to seek treatment for

several days before the altercation. K.G. had refused.

The police report describes the February 24 incident. K.G.’s husband and

son were on the phone with K.G.’s sister discussing what to do about K.G. K.G.

heard their conversation and became upset. She entered the room and slapped

her husband in the chest. The three went into the hallway outside the room,

where K.G. grabbed a lamp from a stand and tried to hit her husband with it, only

to be stopped by her son. K.G. then struck her husband with either a cane or a

grabbing tool. K.G.’s husband then went outside the house to call the police.
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K.G. followed him out and tried to hit him with a glass vase but was once again

stopped by her son. The police arrived soon after. The police report notes K.G.

“was making circular statements about her dislike for her husband and how he is

trying to poison her” when she was taken into custody.

K.G. was at first committed to a forty-eight hour hold at the local hospital

but became “too difficult to handle” for hospital staff and was moved to jail. She

denied anything was wrong with her and refused medication and treatment. K.G.

was eventually examined by the psychiatrist Dr. Lee Berman on March 1. Dr.

Berman diagnosed K.G. with “bipolar type one most recent episode mania with

psychotic features.”

K.G.’s sister filed an application for involuntary hospitalization on February

26. The hearing on the application occurred on March 1, after K.G. was

examined by Dr. Berman. Dr. Berman, K.G.’s sister, K.G.’s father, and K.G. all

testified at the hearing. Dr. Berman testified K.G. could not make responsible

decisions for her treatment and that she needed to remain at the hospital “[u]ntil

stable” and noted she would likely be able to move to outpatient treatment within

a week. When asked by the magistrate about whether K.G. was dangerous, Dr.

Berman stated, “Well, if she—if she wasn’t in a stable environment and she could

become worse and more agitated while she’s here if we don’t treat this. So there

is a possibility of that.” He added K.G.’s condition was “[s]omething that if you

don’t treat will continue to get worse.”

K.G.’s sister testified that K.G. had told her, “It has taken all the strength in

me not to kill myself.” K.G.’s father testified K.G. then backtracked on that

statement, saying that she has corrected herself to mean, “I’d really like to kill
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[her husband]” and not herself. Both testified K.G. was paranoid and

uncharacteristically vulgar in the days before the February 24 incident. K.G.

testified last. She insisted her sister was “very, very, very controlling” and

believed her husband was “not only controlling my mind” but was also controlling

“my son’s mind, my family’s mind because he can do it.”

After hearing this testimony, the magistrate found K.G. to be seriously

mentally impaired and ordered her involuntary hospitalization. K.G. filed a notice

of appeal and requested a hearing on March 6; a de novo review hearing took

place on March 29. At the hearing, K.G.’s sister and father testified. Dr. Berman

did not testify but submitted a March 13 progress report to the district court. Over

K.G.’s objection, the district court took notice of the criminal complaints against

K.G. The district court affirmed the magistrate, noting

[K.G.] has now received medications and treatment that permitted
her to be released to outpatient care. She presented with danger to
self or others in the form of her threats to kill her spouse, the
allegations that resulted in her arrest concerning striking him,
holding a knife to her wrist and indicating it was taking all the
strength she had not to kill herself.

K.G. appeals.

II. Standard of Review

“We review challenges to the sufficiency of the evidence in involuntary

commitment proceedings for errors at law.” In re B.B., 826 N.W.2d 425, 428

(Iowa 2013). “If the findings of fact are supported by substantial evidence, they

are binding on us.” In re L.H., 890 N.W.2d 333, 339 (Iowa Ct. App. 2016).

“Evidence is substantial if a reasonable trier of fact could conclude the findings

were established by clear and convincing evidence.” In re. B.T.G., 784 N.W.2d
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792, 796 (Iowa Ct. App. 2010). “Clear and convincing evidence is less

burdensome than evidence establishing proof beyond a reasonable doubt, but

more burdensome than a preponderance of the evidence.” B.B., 826 N.W.2d at

428. “It means that there must be no serious or substantial doubt about the

correctness of a particular conclusion drawn from the evidence.” In re J.P., 574

N.W.2d 340, 342 (Iowa 1998).

III. Discussion

a. Error Preservation

We first address the State’s error preservation argument. The State

argues K.G. failed to preserve error on all her arguments related to the district

court’s alleged procedural deficiencies when conducting its de novo review

except her objection to the court’s consideration of the two criminal complaints

against K.G. “It is a fundamental doctrine of appellate review that issues must

ordinarily be both raised and decided by the district court before we will decide

them on appeal.” Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). If the

district court was asked to rule on an issue but failed to do so, the moving party

must file another motion to ask the district court to rule on the issue. Lamasters

v. State, 821 N.W.2d 856, 863 (Iowa 2012). The error preservation rule,

however, “is not concerned with the substance, logic, or detail in the district

court’s decision. If the court’s ruling indicates that the court considered the issue

and necessarily ruled on it, even if the court’s reasoning is ‘incomplete or sparse,’

the issue has been preserved.” Id. at 864 (quoting Meier, 641 N.W.2d at 540).

The district court’s review hearing was not recorded or reported. On

appeal, the district court approved a joint statement of the record of the review
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hearing under Iowa Rule of Appellate Procedure 6.806. The district court also

attached its notes from the proceeding to its order approving the joint statement.

After reviewing these documents and the district court’s order affirming the

magistrate’s findings, we conclude K.G. has not preserved error on her

constitutional argument or her argument related to the lack of physician

testimony. According to the records, the only objection raised was to the district

court’s taking judicial notice of the two criminal complaints against K.G. The

ruling does not indicate K.G. objected to the omission of the physician’s

testimony or argued taking judicial notice of the two criminal complaints violated

her rights under the Confrontation Clause of the Fifth Amendment to the United

States Constitution. As a result, we decline to address those arguments for the

first time on appeal. See Taft v. Iowa Dist. Ct., 828 N.W.2d 309, 322 (Iowa 2013)

(“Even issues implicating constitutional rights must be presented to and ruled

upon by the district court in order to preserve error for appeal.”).

b. Procedural Deficiencies

K.G. argues the district court erred by considering the two criminal

complaints against her, which she contends were inadmissible hearsay. But

chapter 229 provides that the district court “shall receive all relevant and material

evidence which may be offered and need not be bound by the rules of evidence.”

Iowa Code § 229.12(3)(a). The district court did not err by considering the

criminal complaints at the de novo hearing.

Next, K.G. argues the district court did not apply the correct standard of

review at the hearing. See id. § 229.21(3)(c) (“When appealed, the matter shall

stand for trial de novo.”). K.G.’s entire argument is one sentence long, points to
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no authority in support of her position, and rests on the rule 6.806(1) statement of

the proceedings, which described how the district court apparently noted the only

issue before the court was “whether sufficient evidence supports the magistrate’s

commitment order.” We do not find K.G.’s assertion persuasive. Elsewhere in

the court’s order on appeal, the district court repeatedly notes the magistrate’s

determination was reviewed de novo. The court also wrote that the hearing was

de novo on the court’s own handwritten notes from the hearing. The court did

not limit its consideration to the record presented to the magistrate. The district

court’s review included all of the evidence presented de novo.

c. Sufficiency of the Evidence

K.G. alleges the determination that she is seriously mentally impaired is

not supported by substantial evidence. Chapter 229 defines “serious mental

impairment” as

the condition of a person with mental illness and because of
that illness lacks sufficient judgment to make responsible decisions
with respect to the person’s hospitalization or treatment, and who
because of that illness meets any of the following criteria:
a. Is likely to physically injure the person’s self or others if
allowed to remain at liberty without treatment.

Iowa Code § 229.1(20). The definition has essentially three elements—“mental

illness, lack of judgment, and dangerousness.” L.H., 890 N.W.2d at 340. Each

element must “continue to exist” throughout the person’s commitment even if the

person is undergoing inpatient or outpatient treatment. Id.
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On appeal, K.G. only challenges the dangerousness element.1 “This

element requires a predictive judgment, ‘based on prior manifestations but

nevertheless ultimately grounded on future rather than past danger.’” In re

Oseing, 296 N.W.2d 797, 801 (Iowa 1980) (quoting Randall P. Bezanson,

Involuntary Treatment of the Mentally Ill in Iowa: The 1975 Legislation, 61 Iowa L.

Rev. 261, 304 (1975)). The threat of harm must be “probable or reasonably to be

expected,” id. at 801, and must “be evidenced by a ‘recent overt act, attempt or

threat.’” In re Mohr, 383 N.W.2d 539, 542 (Iowa 1986) (quoting Stamus v.

Leonhardt, 414 F. Supp. 439, 451 (S.D. Iowa 1976)). An overt act is “past

aggressive behavior or threats by the respondent manifesting the probable

commission of a dangerous act upon himself or others that is likely to result in

physical injury.” In re Foster, 426 N.W.2d 374, 378 (Iowa 1988). And “[t]o

support an accurate prediction of dangerousness, the prior manifestations must

not be too remote in time.” L.H., 890 N.W.2d at 341. On appeal, K.G. argues

(1) her statements about wanting to kill herself and her husband were not threats

of violence and (2) even if they were, there is insufficient evidence to establish

K.G. was dangerous on the day of the March 29 hearing. Because we conclude

sufficient evidence supports the district court’s finding of dangerousness even

1
The parties disagree whether K.G. has appealed the sufficiency of evidence of lack of
judgment. The State’s brief claims K.G. “does not argue that she has judgmental
capacity.” K.G. disputes this claim in her reply brief. After reviewing K.G.’s appellate
brief, we conclude she has not raised lack of judgment on appeal. K.G. mentions lack of
judgment in her appellate brief, but does not cite to case law or otherwise explain why
the evidence presented is insufficient to show K.G. lacked judgment. See Iowa R. App.
P. 6.903(2)(g) (“The argument section . . . . shall include . . . (3) An argument containing
the appellant’s contentions and the reasons for them with citations to the authorities
relied on . . . . Failure to cite authority in support of an issue may be deemed waiver of
that issue.”).
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without considering K.G.’s statements before the March 1 hearing, we need not

address K.G.’s first argument.

In general, cases in which we have concluded the prior overt acts were

remote dealt with significantly longer gaps than here. See, e.g., id. (concluding

insufficient evidence to support a finding of dangerousness where the overt acts

occurred “nearly one year before” the placement review hearing); In re S.S., No.

15-0494, 2015 WL 6508809, at *5 (Iowa Ct. App. Oct. 28, 2015) (six-month gap).

But events occurring nearly two months before review hearings have been

considered recent to determine dangerousness under chapter 229. See In re

B.T.G., 784 N.W.2d 792, 798 (Iowa Ct. App. 2010) (considering threats made in

March 2009 evidence of overt acts sufficient to support a finding of

dangerousness at a May 2009 review hearing); In re C.I.T., No. 16-0278, 2016

WL 4036244, at *1 (Iowa Ct. App. July 27, 2016) (affirming a prisoner’s January

2016 civil commitment order based on “a physical altercation with another inmate

in November of 2015” and threats against prison staff that same year).

Having concluded the evidence gathered at the March 1 hearing is recent

enough to support a finding of dangerousness at the March 29 de novo hearing,

we must now decide whether there is sufficient evidence of recent overt acts to

support a finding of dangerousness. We conclude there is. As detailed above,

the criminal complaint described several acts of violence and attempted acts of

violence committed by K.G against her husband in the days before the March 1

hearing. At the March 1 hearing, Dr. Berman noted that, while K.G. had not been

violent at the hospital, “she could become violent” if her paranoia is not treated.

Dr. Berman also stated K.G. had refused to take medication, and that he
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believed involuntary medication was necessary if K.G. continued to refuse

medication. This evidence is sufficient to support the district court’s finding that

K.G. is likely to injure herself or others if allowed to remain at liberty without

treatment.

AFFIRMED.