IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0086
                             Filed January 11, 2017


IN THE MATTER OF T.J.,
Alleged to Be Seriously Mentally Impaired,

T.J.,
     Respondent-Appellant.
________________________________________________________________


        Appeal from the Iowa District Court for Lucas County, Martha L. Mertz,

Judge.



        T.J. appeals from the district court’s order finding him to be seriously

mentally impaired. REVERSED.



        John C. Audlehelm of Audlehelm Law Office, Des Moines, for appellant.

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

Attorney General, for appellee State.



        Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
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VAITHESWARAN, Judge.

       A magistrate found T.J. seriously mentally impaired and ordered him

committed for inpatient treatment and, subsequently, for outpatient treatment.

T.J. appealed the order to the district court, which affirmed the magistrate’s

decision following an evidentiary hearing. The court ordered T.J. to “remain[]

under an out-patient commitment until further order.” On appeal, T.J. challenges

the sufficiency of the evidence supporting the district court’s finding of a “serious

mental impairment.”

       Iowa Code section 229.1 (2016) defines “seriously mentally impaired” as

follows:

              “Seriously mentally impaired” or “serious mental impairment”
       describes 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.
              b. Is likely to inflict serious emotional injury on members of
       the person’s family or others who lack reasonable opportunity to
       avoid contact with the person with mental illness if the person with
       mental illness is allowed to remain at liberty without treatment.
              c. Is unable to satisfy the person’s needs for nourishment,
       clothing, essential medical care, or shelter so that it is likely that the
       person will suffer physical injury, physical debilitation, or death.

Iowa Code § 229.1(20).        This definition contains three elements: (1) mental

illness, (2) lack of sufficient judgment, and (3) the criteria labeled (a), (b), and (c),

which encompass the threshold requirement of dangerousness.                  See In re

Oseing, 296 N.W.2d 797, 800-01 (Iowa 1980) (analyzing predecessor statute).

“[T]he elements of serious mental impairment must be established by clear and

convincing evidence and the district court’s findings of fact are binding on us if
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supported by substantial evidence.”       In re J.P., 574 N.W.2d 340, 342 (Iowa

1998); accord In re B.B., 826 N.W.2d 425, 428, 432 (Iowa 2013).

       T.J. argues the record lacks substantial evidence to support a finding of a

mental illness. He notes that the psychiatrist who testified at the district court

hearing failed to include a formal diagnosis in his report. The report, completed

on a form titled “Physician’s Report of Examination pursuant to 229.10(2),” was

left blank under the question “state diagnosis and support observations or medical

history.”

       The psychiatrist acknowledged he forgot to specify the diagnosis under this

particular question. But he listed the diagnosis in the next question as “delusional

[disorder] persecutory type.”       At the district court hearing, he testified to

independently diagnosing T.J. with this condition after observing him for several

days.1 He characterized the disorder as “similar to schizophrenia” but without all

the symptoms. The report constitutes substantial evidence in support of a finding

of mental illness.

       We turn to the question of whether T.J. had sufficient judgment to make

responsible decisions. The psychiatrist answered “no” to this question, citing

T.J.’s “poor compliance and limited insight.” He stated, “[T]here is a big chance

for him to stop his meds and not follow up.” At the hearing, the psychiatrist

affirmed this answer. The report constitutes substantial evidence in support of a

finding that T.J. lacked sufficient judgment to make responsible decisions.



1
 The original commitment order was based on a report filed by another physician. The
physician who testified at the district court hearing and the earlier commitment hearing
worked with the other physician.
                                          4


        We are left with the element of dangerousness. As noted, this element

implicates the three statutory criteria set forth in Iowa Code section 229.1(20)(a),

(b) and (c). The threat the patient poses must be evidenced by a “recent overt

act, attempt or threat.” In re Mohr, 383 N.W.2d 539, 542 (Iowa 1986).

        The psychiatrist reported that, in his judgment, it was “hard to determine”

whether T.J. was likely to physically injure himself or others. He stated T.J. could

be released to the custody of a relative or friend without danger to himself or

others and, indeed, would “most likely” be discharged the following day.            In

response to the question whether T.J. was likely to inflict severe emotional injury

on those who could not avoid contact with him, he responded “this is still possible

but [on] his medication, he has shown better behavior and social interactions.”

Finally, he reported T.J. could be treated on an outpatient basis because there

was “no suicidality or homicidality at this point” and he was “able to take care of

his [activities of daily living.]”

        The psychiatrist reaffirmed these opinions at the district court hearing. He

stated, T.J. “is not a danger to himself. He is not suicidal or homicidal, but . . . it

doesn’t mean that he will take his medications or go to his appointments.” This

evidence does not amount to substantial evidence in support of a finding of

dangerousness.

        The State asks us to consider family affidavits proffered at the time of the

initial commitment. Those affidavits and the acts attested to in them were not

recent enough to establish that T.J. was a danger to himself or others at the time

of his commitment hearing. See In re Foster, 426 N.W.2d 374, 378 (Iowa 1988)

(“In the context of civil commitment, . . . an ‘overt act’ connotes past aggressive
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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 S.S., No. 15-0494, 2015 WL 6508809, at *5 (Iowa Ct. App. Oct. 28, 2015)

(“Although the doctor noted S.S. got ‘into arguments with family members’ and

‘seem[ed] to be having significant difficulties with family members,’ there is

nothing to connote the arguments to be evidence of aggressive behavior or

threats manifesting the probable commission of a dangerous act upon others that

is likely to result in physical injury.”); In re S.A.M., No. 04-0763, 2005 WL 292217,

at *3 (Iowa Ct. App. Feb. 9, 2005) (“S.A.M.’s weight in December of 2003 cannot

reasonably be considered to be a recent overt act showing that she was a

danger to herself at the time her commitment hearing was held in April 2004.”).

         The only other evidence that arguably could reflect dangerousness is a

reference to pending charges against T.J. on which he was jailed. However, the

record does not tell us why he was jailed and whether violence was involved.

         Because dangerousness was not proved, we reverse the civil commitment

order.

         REVERSED.