In Re Bjp

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

In re BJP.

WILLIAM ROBBINS, UNPUBLISHED

April 20, 2023

Petitioner-Appellee,

v No. 363409

Kalkaska Probate Court

BJP, LC No. 22-010814-MI

Respondent-Appellant.

Before: O’BRIEN, P.J., and MURRAY and LETICA, JJ.

PER CURIAM.

Respondent appeals as of right the probate court order requiring her to receive involuntary

mental health treatment. Following a hearing on the petition for mental health treatment, the

probate court found respondent to be a “person requiring treatment” under MCL 330.1401(1)(a)

and (c). Respondent contests those findings on appeal. We affirm.

I. BACKGROUND

In early September 2022, petitioner, a peace officer, requested that respondent be

hospitalized because she had called the Kalkaska Village Police Department 37 times since July

31, 2022, to report that the “Illuminati” were attacking her, pulling out her hair, and breaking her

teeth. The petition noted that these 37 calls did “not include the number of calls” made to the

Kalkaska Sheriff’s Department or to the Michigan State Police. Petitioner alleged that respondent

believed the “Illuminati” were hurting her through her “TENS[1] unit” and that “demons” inserted

1

The parties never clarified what was meant by a “TENS unit,” but it seems that “TENS” is an

acronym for “Transcutaneous Electrical Nerve Stimulation,” which is a therapy that “involves the

use of low voltage electrical current to provide pain relief” through the placement of a “small

device [that] delivers the current at or near nerves.” See Cleveland Clinic, Transcutaneous

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a transmitter in her head to torment her. According to petitioner, respondent was not receiving

any mental health treatment, although she had been previously involuntarily committed in 2020

for making more than 80 emergency calls to Grand Traverse Law Enforcement.

The probate court held a hearing on the petition on September 20, 2022. Dr. Jonathan

Dozeman, a psychiatrist at Pine Rest Christian Mental Health Services (Pine Rest), testified as an

expert in the field of psychiatry. Dr. Dozeman met with respondent and diagnosed her with

schizophrenia. Dr. Dozeman explained that respondent was supposed to be taking an antipsychotic

medication as recently as 2020, but respondent had not been taking her medication or receiving

any treatment. Dr. Dozeman testified that respondent had called the police 37 times since July 31,

2022, to report that she was being attacked by the Illuminati. On one occasion, respondent dragged

her furniture outside of her house and stabbed it with a knife because she thought there was a “dark

liquid in the furniture.” Dr. Dozeman testified that upon respondent’s arrival at Pine Rest,

respondent “presented as very disorganized with a tangential thought process.” Dr. Dozeman

stated that respondent did not believe she had a mental illness, and she was unwilling to take any

of the recommended psychotropic medication for treatment. Respondent was responding to

“internal stimuli” and was documented throughout the day to be having conversations with herself.

At night, respondent did not sleep well. For instance, the night before the hearing, respondent

walked restlessly around the unit and talked to herself as she stared at a wall. Dr. Dozeman testified

that respondent posed an inadvertent risk to herself given her level of paranoia, but she did not

pose a risk to others. Dr. Dozeman recommended that respondent be hospitalized, and stated that

hospitalization was the least restrictive form of treatment available.

Respondent testified that she did not have schizophrenia because such a diagnosis “means

you hear—you hear voices in your head,” and the voices she heard were “not coming from my

head” but were “coming from sources in the distance.” Respondent testified that she was not a

danger to herself or other people, and she asked the court to dismiss the petition and allow her to

leave the hospital.

The court found respondent to be a person requiring treatment under MCL 330.1401(1)(a)

and (c). The court ordered that respondent receive combined hospitalization and assisted

outpatient treatment for no longer than 180 days, with up to 60 days of hospitalization. This appeal

followed.

II. PERSON REQUIRING TREATMENT

Respondent argues that the trial court erred by finding that she qualified as a “person

requiring treatment” under MCL 330.1401(1)(a) or (c). We disagree.

A probate court’s dispositional rulings are reviewed for an abuse of discretion, and its

factual findings are reviewed for clear error. In re Portus, 325 Mich App 374, 381; 926 NW2d 33

(2018). A probate court abuses its discretion when it chooses an outcome outside the range of

reasonable and principled outcomes. Id. Clear error exists when this Court is left with a definite

Electrical Nerve Stimulation (TENS), https://my.clevelandclinic.org/health/treatments/15840-

transcutaneous-electrical-nerve-stimulation-tens.

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and firm conviction that a mistake has been made, even if there is evidence to support the finding.

Id. This Court reviews de novo matters of statutory interpretation. Id.

A probate court must find that an individual is a “person requiring treatment” before it can

order the individual to receive involuntary mental health treatment. See id. at 385. MCL

330.1401(1) provides, in relevant part, that the phrase “person requiring treatment” means:

(a) An individual who has mental illness, and who as a result of that mental

illness can reasonably be expected within the near future to intentionally or

unintentionally seriously physically injure . . . herself, . . . and who has engaged in

an act or acts or made significant threats that are substantially supportive of the

expectation.

* * *

(c) An individual who has mental illness, whose judgment is so impaired by

that mental illness, and whose lack of understanding of the need for treatment has

caused . . . her to demonstrate an unwillingness to voluntarily participate in or

adhere to treatment that is necessary, on the basis of competent clinical opinion, to

prevent a relapse or harmful deterioration of . . . her condition, and presents a

substantial risk of significant physical or mental harm to the individual or others.

A judge or jury cannot “find that an individual is a person requiring treatment unless that fact has

been established by clear and convincing evidence.” MCL 330.1465. Clear and convincing

evidence

produces in the mind of the trier of fact a firm belief or conviction as to the truth of

the allegations sought to be established, evidence so clear, direct and weighty and

convincing as to enable the factfinder to come to a clear conviction, without

hesitancy, of the truth of the precise facts in issue. [In re Pederson, 331 Mich App

445, 472; 951 NW2d 704 (2020) (quotation marks and citation omitted).]

“Evidence may be clear and convincing despite the fact that it has been contradicted.” Id.

(Quotation marks and citation omitted.)

Respondent argues that she did not qualify as a person requiring treatment under MCL

330.1401(1)(a) because (1) there was no evidence that respondent was at risk of unintentionally

seriously physically injuring herself and (2) there was no evidence that she had engaged in acts or

made threats that supported an expectation of self-harm. We disagree.

The probate court heard testimony from Dr. Dozeman, who stated that since July 31, 2022,

respondent had called the police 37 times to report being attacked by the Illuminati, and respondent

thought that the Illuminati were putting things inside of her body and inside of her home. Dr.

Dozeman testified that “[i]t got to the point where she was stabbing furniture, and thinking her,

and her family were in danger.” Dr. Dozeman, testifying as an expert in the field of psychiatry,

believed respondent posed “an inadvertent risk to herself given her level of paranoia,” but he did

not think that respondent was a danger to others. Thus, the probate court did not clearly err when

it found that respondent was “at least an inadvertent risk of harm to self” but “not a direct risk of

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harm to others.” Although respondent testified that she did not stab the furniture and instead

merely “opened the upholstery to see what was inside,” this Court gives broad deference to the

probate court’s credibility determinations because it is in the best position to assess witness

credibility. See In re Portus, 325 Mich App at 397. Thus, we need not credit respondent’s

testimony, as respondent urges on appeal. Moreover, to the extent that respondent’s testimony, if

credited, may contradict certain evidence on which the trial court relied to reach its conclusion,

evidence may be clear and convincing even if it was contradicted. In re Pederson, 331 Mich App

at 472. Accordingly, because the probate court’s findings do not leave us with a definite and firm

conviction that a mistake was made, we conclude that the probate court did not clearly err when it

found by clear and convincing evidence that respondent was a person requiring treatment under

MCL 330.1401(1)(a). See In re Portus, 325 Mich App at 381.

Respondent further argues that she did not qualify as a person requiring treatment under

MCL 330.1401(1)(c) because (1) there was no evidence that treatment was necessary to prevent a

relapse or harmful deterioration of her condition and (2) there was no evidence that she presented

a substantial risk of significant physical or mental harm to herself. While we need not address this

argument because we conclude that respondent qualified as a person requiring treatment under

MCL 330.1401(1)(a), we address respondent’s arguments for completeness, and explain why we

disagree.

Both Dr. Dozeman’s and respondent’s testimony showed that treatment was necessary to

prevent a relapse or harmful deterioration of respondent’s condition, which may result in physical

or mental harm to respondent herself. Dr. Dozeman testified that respondent “had three prior

hospitalizations for psychosis in Traverse City before this hospitalization,” and that she had not

been taking any medications even though she was supposed to be taking an antipsychotic

medication as recently as 2020. According to Dr. Dozeman, upon respondent’s hospitalization

pursuant to this petition, respondent “presented as very disorganized with a tangential thought

process,” and she was focused on her home being attacked by the Illuminati. Dr. Dozeman testified

that respondent did not understand her diagnosis and need for treatment, and respondent refused

to take any psychotropic medication while she was hospitalized. Dr. Dozeman reported that

respondent did not sleep during the three nights before the hearing on the petition, and she was

“documented throughout the day to be having conversations with herself.” Respondent’s

testimony confirmed that she was unwilling to recognize and address problems she was

experiencing with her mental health—respondent testified that she did not suffer from

schizophrenia because schizophrenia was when you hear voices in your head, whereas the voices

that respondent heard came “from sources in the distance.” On the basis of this evidence, the

probate court did not clearly err when it found by clear and convincing evidence both that treatment

was necessary to prevent a harmful deterioration of respondent’s condition and that respondent

presented a substantial risk of harm to herself. Accordingly, the probate court properly found that

respondent was a person requiring treatment under MCL 330.1401(1)(c).

III. DUE PROCESS

Respondent next contends that the probate court denied her the right to due process because

the court did not allow respondent to personally cross-examine Dr. Dozeman or allow respondent

to provide additional testimony as a witness. Respondent additionally argues that the probate court

denied her the right to due process by failing to consider respondent’s post-hearing letter to the

court as a motion for new trial under MCR 2.611. We disagree.

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This Court reviews de novo claims of constitutional error. In re Jestila, ___ Mich App

___, ___ n 3; ___ NW2d ___ (2023) (Docket No. 362500); slip op at 2.

“Proceedings seeking an order of involuntary mental health treatment under the Mental

Health Code for an individual on the basis of mental illness . . . generally are referred to as ‘civil

commitment’ proceedings.” In re Portus, 325 Mich App at 382. Such proceedings “are not

criminal in nature.” In re Londowski, ___ Mich App ___, ___; ___ NW2d ___ (2022) (Docket

No. 355635); slip op at 3-4. Nevertheless, “[t]he United States Supreme Court has recognized that

civil commitment proceedings . . . implicate important liberty interests protected by due process.”

Id. at ___; slip op at 6. Due process in civil proceedings “requires that a party receive notice of

the proceedings against it and a meaningful opportunity to be heard.” In re Jestila, ___ Mich App

at ___; slip op at 2 (quotation marks and citation omitted). The opportunity to be heard is “the

fundamental requisite of due process of law.” Bullington v Corbell, 293 Mich App 549, 556; 809

NW2d 657 (2011) (brackets omitted).

First, respondent argues that the probate court denied respondent due process because the

court did not allow respondent to personally cross-examine Dr. Dozeman or allow respondent to

provide additional testimony as a witness after direct examination concluded. Pursuant to MCL

330.1459(1), respondent had a right to cross-examine Dr. Dozeman. However, that does not mean

that respondent herself had the right to conduct cross-examination. Respondent was represented

by court-appointed counsel, and, pursuant to MCR 5.732(A), respondent’s counsel was required

to represent respondent in the hearing on the petition. It was therefore appropriate for the probate

court to ask respondent’s attorney, not respondent, for cross-examination of Dr. Dozeman.

Although respondent’s attorney chose not to ask Dr. Dozeman any questions, that decision did not

require the court to allow respondent to personally question Dr. Dozeman. Under the Michigan

Rules of Evidence, which apply to proceedings under the Mental Health Code, see MCL

330.1459(2), the probate court was allowed to “exercise reasonable control over the mode and

order of interrogating witnesses and presenting evidence,” MRE 611. The probate court did that

when it asked respondent’s counsel, not respondent, to cross-examine Dr. Dozeman. Similarly,

the probate court exercised reasonable control over the mode in which respondent provided

testimony as a witness when it stopped respondent from testifying when there was no question

asked of respondent. See MRE 611; MCL 330.1459(2).2

2

Respondent alternatively argues that her counsel rendered ineffective assistance by failing to

cross-examine Dr. Dozeman and refusing to ask respondent more questions. This issue was never

raised in respondent’s statement of questions presented and is otherwise unpreserved. Regardless,

to establish a claim of ineffective assistance, respondent must show that (1) counsel’s performance

was deficient under an objective standard of reasonableness and (2) but for counsel’s deficient

performance, the outcome of the proceedings would have been different. In re Londowski, ___

Mich App at ___; slip op at 12. “Decisions regarding what evidence to present and whether to call

or question witnesses are presumed to be matters of trial strategy, and this Court will not substitute

its judgment for that of counsel regarding matters of trial strategy.” People v Davis, 250 Mich

App 357, 368; 649 NW2d 94 (2002). Respondent merely asserts that her trial counsel should have

cross-examined Dr. Dozeman and asked respondent more questions, which is not sufficient to

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Second, respondent argues that the probate court denied respondent the right to due process

when it failed to consider respondent’s post-hearing letter as a motion for new trial. The letter

referenced by respondent was a three-page document that consisted of two pages of bullet points

identifying “false claims” made by the petitioning officer and Dr. Dozeman, and one page that

stated, “Re: denial of 1st appeal of judgement.” Pursuant to MCR 1.109(D)(1)(b), the first part of

every document filed with the court “must contain a caption stating . . . the identification of the

document.” MCR 1.109(D)(1)(b)(iv) (emphasis added). Respondent’s letter did not identify itself

as a motion for new trial. In fact, the letter did not even state that respondent was seeking any type

of relief. We are hesitant to hold that the probate court should have sua sponte interpreted an

ambiguous (at best) letter in a specific way. Further, even if we were not hesitant to render such a

holding, respondent fails to cite any authority that would permit this Court to hold that the trial

court was required to interpret respondent’s letter as a motion for a new trial.3 Accordingly,

because respondent did not identify her letter as a motion for new trial, and because she provides

no basis on which this Court could require the probate court to sua sponte interpret respondent’s

ambiguous letter as a motion for a new trial, we conclude that the probate court did not err when

it did not treat respondent’s letter as a motion for new trial.

Affirmed.

/s/ Colleen A. O’Brien

/s/ Christopher M. Murray

/s/ Anica Letica

overcome the strong presumption that trial counsel’s decisions to not do so was sound strategy.

Further, respondent has not presented an offer of proof regarding the evidence that would have

been gained through a cross-examination of Dr. Dozeman or additional testimony from

respondent, so we have no basis to conclude that the outcome of the proceedings would have been

different had respondent’s counsel cross-examined Dr. Dozeman or asked respondent additional

questions. Accordingly, respondent has failed to establish either prong of her ineffective assistance

claim.

3

The closest respondent gets to citing supportive authority is citing In re Moriconi, 337 Mich App

515; 977 NW2d 583 (2021), which, according to respondent, held “that the trial court erred in

failing to allow [the] respondent to exercise a deferral and enter voluntary treatment, instead

moving forward with a trial, merely because [the] [r]espondent failed to fill out the right form to

request a deferral.” Contrary to respondent’s argument, however, Moriconi’s holding is very

different from what respondent requests this Court to hold here. Moriconi held that, because the

respondent “made clear that she desired a deferral and sought guidance from the court regarding

the form and the means necessary to comply,” the probate court erred by denying the respondent’s

request for deferral merely because she failed to follow the statutory procedure. Id. at 528. Here,

in contrast, respondent’s letter in no way conveyed to the trial court that she was requesting a new

trial. Instead, respondent wishes this Court to hold that the probate court was required to sua

sponte interpret respondent’s ambiguous letter as a motion for a new trial. This is clearly different

from the situation in Moriconi, so respondent’s analogy to Moriconi is inapposite.

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