Opinion
No. 04-1046.
March 16, 2005.
Appeal from the Iowa District Court for Dubuque County, Monica Ackley, Judge.
J.H. appeals from a district court order which denied her appeal from the judicial hospitalization referee's decision to revoke her outpatient status as a chronic substance abuser and return her to involuntary inpatient commitment. AFFIRMED.
Christopher M. Soppe of Blair Fitzsimmons, P.C., Dubuque, for appellant.
Dubuque County Attorney, Dubuque, for appellee.
Considered by Sackett, C.J., and Zimmer and Hecht. JJ.
J.H. appeals from the district court order denying her appeal from the judicial hospitalization referee's decision, which revoked her outpatient status as a chronic substance abuser and returned her to involuntary inpatient commitment. She contends the referee violated her due process rights by taking an adversarial role in the proceedings, and that the court erred in finding she met the statutory definition of a chronic substance abuser. We affirm.
I. Background Facts and Proceedings.
On May 10, 2004, J.H. was unsuccessfully discharged from inpatient treatment for methamphetamine abuse, and ordered into an intensive outpatient program. She took up residence with her mother, a regular user of methamphetamine. The weekend of May 20 to May 22 J.H. relapsed for the second time since her release from inpatient treatment. That Sunday she checked herself into a hospital. Although J.H. was released from the hospital on Monday morning, she missed her Monday night outpatient session.
J.H. attended the Tuesday outpatient session, and admitted her relapse to two outpatient program counselors. Each counselor filed an application to revoke J.H.'s outpatient status. During hearing on the applications the court received testimony from the applicant counselors; from Mohammed Ansari, a doctor who had spoken with J.H. during her hospitalization and again, briefly, prior to the hearing; and from J.H. herself. Because the applicants were not represented by counsel, the referee questioned the applicants and Dr. Ansari. J.H.'s counsel cross-examined the three witnesses, and then directed the examination of J.H. The referee did not question J.H.
Following hearing the referee revoked J.H.'s outpatient status and ordered her returned to intensive inpatient treatment. J.H. appealed the referee's decision to the district court, contending (1) that her due process rights were violated by "having the Judicial Referee . . . do the Direct Examination of the witnesses," and (2) that she did not meet the statutory definition of a chronic substance abuser. The district court denied the appeal. J.H. appeals from the district court's order.
II. Scope and Standard of Review.
Involuntary civil commitment proceedings are triable as civil actions, and are reviewed for the correction of errors at law. Iowa Code § 125.82(3) (2003); Iowa R. App. P. 6.4; see also In re Oseing, 296 N.W.2d 797, 801 (Iowa 1980). The court's findings of fact are binding so long as they are supported by substantial evidence. In re J.P., 574 N.W.2d 340, 342 (Iowa 1998). "Evidence is substantial if a reasonable trier of fact could conclude the findings were established by clear and convincing evidence." Id. However, to the extent J.H.'s claims are constitutional in nature, our review is de novo. See In re Detention of Cubbage, 671 N.W.2d 442, 444 (Iowa 2003).
III. Due Process.
Involuntary civil commitments constitute a significant deprivation of liberty, and require due process protections. Addington v. Texas, 441 U.S. 418, 425, 99 S. Ct. 1804, 1809, 60 L. Ed. 2d 323, 330-31 (1979). J.H. contends that her right to due process was violated because the referee took on an adversarial role when questioning the witnesses, in effect becoming the applicants' attorney and presenting evidence in their stead. If true, this would be a violation of a procedural protection contained within Iowa Code section 124.82(1), which requires that evidence in support of commitment be presented by the applicants. It would also raise concerns about the fundamental fairness of the proceeding, as the referee would be acting in the dual role of advocate and decision maker. See In re J.S., 470 N.W.2d 48, 52 (Iowa Ct.App. 1991) (noting the essential requirement of due process is one of "fundamental fairness"). In reviewing the record, we conclude J.H. has not preserved error on this claim.
Section 125.82(1) also allows for the presentation of evidence "by an attorney for the applicant, or by the county attorney if the county attorney is the applicant," but neither alternative is relevant to the case at hand.
Because of the range of interests protected by our error preservation rules, we will consider the issue of error preservation sua sponte. See Top of Iowa Co-op. v. Sime Farms, Inc., 608 N.W.2d 454, 470 (Iowa 2000).
We first note that, during the revocation hearing, J.H. did not take exception to the referee's questioning of the three witnesses. Generally, a party is required to object or take exception to the court's actions in order to preserve error. See C.I.T. Corp. v. Furrow, 227 Iowa 961, 965, 289 N.W. 697, 698-99 (1940); see also Kengorco, Inc. v. Jorgenson, 176 N.W.2d 186, 189 (Iowa 1970). We recognize this rule should be of little practical import in an appeal from an involuntary substance abuse commitment, because the respondent is entitled to "stand for trial de novo" before the district court. Iowa Code section 229.21(3)(c). This procedure, which substitutes for the former statutory right to a trial by jury, Oseing, 296 N.W.2d at 800, provided J.H. the opportunity to try the matter anew before the district court, thereby curing any error by the referee. However, the record contains no indication that J.H. took advantage of her opportunity for a trial de novo. It appears the district court's review was conducted only upon the record made before the referee.
Perhaps more important, however, is the fact that the claim J.H. makes on appeal is different than the claim she made before the district court. During the district court hearing J.H. claimed only that her due process rights were violated by "having the Judicial Referee . . . do the Direct Examination of the witnesses," which the district court restated as a question of "whether the hospitalization referee as arbiter of the final decision is infringing upon the Respondent's due process rights as the person who makes inquiry of the affiants in support of hospitalization. . . ." Both these statements frame the issue to be decided by the district court as whether a party's right to due process is violated when the court directly questions witnesses.
On appeal, however, J.H. abandons her claim that her due process rights were violated because the evidence came in upon the questioning of the referee. In fact, she now admits such a procedure is permissible. See In re R.P., 606 N.W.2d 15, 17 (Iowa 2000). Instead she asserts that her due process rights were violated because the nature and extent of questioning by the referee rose to the level of advocacy. This claim was not raised before the district court, and was neither addressed nor ruled upon in the district court's order. Because the issue was not raised before or ruled on by the district court, it will not be addressed on appeal. Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002).
We do not believe J.H.'s reference to "direct examination" was sufficiently specific to raise a claim that her due process rights had been violated, not merely by the referee's questioning, but by its adversarial nature. Moreover, even if the district court was fairly apprised of J.H.'s current claim, the court's failure to rule on the claim, and J.H.'s failure to address the court's omission in a post-ruling motion, serve to waive any error. Meier, 641 N.W.2d. at 540.
Even if we were to reach the merits of J.H.'s due process claim, we would conclude there was no constitutional violation. As previously noted, due process is not violated merely because the evidence comes in upon the questioning of the referee, and the referee may question witnesses in order to "get the witnesses' testimony started." R.P., 606 N.W.2d at 17. In fact, commitment proceedings, which do not require applicants to be represented by counsel and "should be as informal as possible," necessarily tolerate a certain level of involvement by the referee. See id. at 17-18.
However, in questioning witnesses, courts must use restraint. State v. Cuevas, 288 N.W.2d 525, 533 (Iowa 1980). Because the essential requirement of due process is that of fundamental fairness, J.S., 470 N.W.2d at 52, courts must not cross the line into advocacy "by actions such as extensive questioning, leading of the witnesses, or cross-examination of the respondent." R.P., 606 N.W.2d at 17. They may nevertheless "clarify evidence through the questioning of witnesses when in the exercise of sound discretion it is reasonably deemed necessary." Cuevas, 288 N.W.2d at 533.
Here, where the applicants were not represented by an attorney, some level of questioning by the referee was necessary to facilitate the testimony. Although some of the referee's questions might reasonably be characterized as leading, we are not convinced the referee's involvement rose to the level of advocacy. Most of the questions asked by the referee were general, open-ended, or designed to affirm or clarify information already in the record via reports, statements, and prior orders. Notably, the referee did not cross-examine J.H. Moreover, all the questions were designed to elicit information the referee needed to make a fully-informed decision. Having all necessary information is vital in light of the stated statutory directive that "[t]he respondent's welfare is paramount." Iowa Code § 125.82(4).
A de novo review of this due process claim requires us to look, not merely to a handful of isolated questions, but to the totality of the record in order to judge the impact of the referee's questioning. Under the circumstances, we cannot conclude J.H. was deprived of a fundamentally fair proceeding.
IV. Substantial Evidence.
J.H. also contends the court erred in finding she met the statutory definition of a chronic substance abuser. Iowa Code section 125.2(4) provides:
"Chronic substance abuser" means a person who meets all of the following criteria:
a. Habitually lacks self control as to the use of chemical substances to the extent that the person is likely to seriously endanger the person's health, or to physically injure the person's self or others, if allowed to remain at liberty without treatment.
b. Lacks sufficient judgment to make responsible decisions with respect to the person's hospitalization or treatment.
J.H. does not contest the first element of section 125.2(4), but argues her actions in removing herself from her mother's residence, admitting herself to the hospital, attending her group meeting on Tuesday night, as well as her expressed intentions to continue attending outpatient and other support meetings, demonstrate that she has sufficient judgment to make responsible decisions about hospitalization and treatment. Although the foregoing facts lend some support to J.H.'s position, upon examination of the entire record we determine a reasonable fact finder could conclude clear and convincing evidence supports a finding that J.H. lacked sufficient judgment to make responsible decisions regarding her hospitalization and treatment. See J.P., 574 N.W.2d at 342.
Although neither the referee nor the district court specifically found that J.H. lacked sufficient judgment to make responsible decisions regarding her hospitalization and treatment, such a finding was implicit within each order. Moreover, J.H. did not file a motion pursuant to Iowa Rule of Civil Procedure 1.904(2), requesting the court to enlarge its findings. Accordingly, we presume the court decided facts necessary to support its judgment. See Meier, 641 N.W.2d at 540.
J.H. was discharged from her previous inpatient treatment program because she was noncompliant with facility rules and the treatment milieu. She then placed herself in a situation which would expose her to regular methamphetamine use. Her second relapse, a "three-day binge" which included both inhaled and intravenous methamphetamine use, occurred shortly before she was scheduled to graduate her current intensive outpatient group, and be moved to another office with a lower level of care. Despite J.H.'s Monday-morning assertions of a renewed commitment to her treatment program, she missed her Monday night outpatient session. In addition, the outpatient counselors believed J.H. required the structure of an inpatient setting to be successful. All the foregoing could be viewed by a reasonable fact finder as establishing the requirement of section 125.2(4)(b) by clear and convincing evidence.
Dr. Ansari, who had not yet fully evaluated J.H., declined to give an opinion as to whether inpatient treatment was necessary.
V. Conclusion.
J.H. has failed to preserve her due process claim. Moreover, even if we were to address the merits of this claim, we would not conclude J.H. was deprived of a fundamentally fair proceeding. As there is substantial evidence in the record to support a finding that J.H. is a chronic substance abuser, the district court's order is affirmed.
AFFIRMED.
Hecht, J., concurs; Sackett, C.J., dissents.
I respectfully dissent.
I disagree with the majority's conclusion error was not preserved. J.H.'s statement of issues to be presented for review states:
Whether the Judicial Hospitalization Referee violated J.H.'s due process right by taking on an adversarial role in the hearing and questioning witness while being the final arbiter of the hearing.
(Emphasis supplied). In ruling on her objection to the referee's adversarial involvement in the proceedings, the district court ruled:
The issue as to whether or not the hospitalization referee as arbiter of the final decision is infringing upon the Respondent's due process rights as the person, who makes inquiry of the affiants in support of hospitalization and of the Respondent, is a case of first impression with this Court. After a diligent search, no specific case law could be found indicating that this procedure is improper.
(Emphasis supplied).
It is clear to me that the district court had ample opportunity, without objection, to rule on the issue now put before us and the majority has strained to find otherwise. See DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002) (holding the State's failure to object to or resist a claim in the district court waives such challenge on appeal and allows the appellate court to address the merits of the claim).
While I recognize that the questioning of witnesses by decision makers has been approved, the approval has come only in limited situations where the judge has asked limited questions to get the matter started. In re R.P., 606 N.W.2d 15, 17 (Iowa 2000) ("[T]he referee did not display any evidence of becoming an advocate by such actions as extensive questioning [or] leading of the witnesses. . . . The referee's questions . . . were aimed merely at getting the witnesses' testimony started."). The record here clearly shows that the referee exceeded those limits.
The referee first asked general questions of both applicants and Dr. Ansari. The referee then moved into more specific and leading questions and crossed the line into advocacy. The following are some examples:
And your concern would be for her medical safety if she continued to be an I.V. drug user, is that correct?
Was she in any way agitated or threatening or anything of that nature during sessions?
And as a substance abuse counselor with expertise in relapse and treatment, what would your recommendation for what level of treatment do you think [J.H.] needs at this time?
Do you know if she has any criminal charges as a result of her drug use?
Do you know the terms of her probation?
Did she ever explain or do you know what was behind her using meth on this three-day binge, what the circumstances were?
Do you know why she didn't successfully complete MECCA?
Do you feel if left untreated, she would be a danger to herself due to the extent of her drug use?
I find such involvement by the referee violated J.H.'s right to due process and the district court erred in concluding the referee's actions were not improper. I therefore would reverse the district court on this issue.
I also disagree with the majority's conclusion that J.H. meets the statutory definition of a chronic substance abuser. Iowa Code section 125.2(4) provides:
"Chronic substance abuser" means a person who meets all of the following criteria:
a. Habitually lacks self control as to the use of chemical substances to the extent that the person is likely to seriously endanger the person's health, or to physically injure the person's self or others, if allowed to remain at liberty without treatment.
b. Lacks sufficient judgment to make responsible decisions with respect to the person's hospitalization or treatment.
Iowa Code § 125.2(4) (2003). J.H. argues her actions in admitting herself to the hospital and in arranging for continued intensive involvement in outpatient treatment and support groups like AA and NA demonstrates she has sufficient judgment to make responsible decisions about hospitalization and treatment.
Neither the district court nor the judicial hospitalization referee made specific findings on this statutory element. I conclude no clear and convincing evidence supports this element and would reverse the district court on this issue.
J.H. was denied her right to due process by the referee's advocacy in the revocation proceeding. The required element in Iowa Code section 125.2(4)(b) has not been proven by clear and convincing evidence. I therefore would reverse the decision of the district court denying her appeal from the revocation proceedings and remand for her release from involuntary inpatient commitment.