In re NH

• Decision Date: 18 December 1998
• Docket Number: No. 97-255.,97-255.
• Citation: 724 A.2d 467
• Parties: In re N.H.
• Court: Vermont Supreme Court

724 A.2d 467

In re N.H.

No. 97-255.

Supreme Court of Vermont.

December 18, 1998.

William Sorrell, Attorney General, Montpelier, and Marybeth McCaffrey, Special Assistant Attorney General, and Sean Brown, Law Clerk, Waterbury, for Plaintiff-Appellee.

Kristina I. Michelsen, Vermont Legal Aid, Inc., Waterbury, for Defendant-Appellant.

Present AMESTOY, C.J., and DOOLEY, MORSE and JOHNSON, JJ.

JOHNSON, J.

N.H. appeals from a family court order granting the Department of Developmental and Mental Health Services' application for continued treatment. N.H. contends the Department failed to present clear and convincing evidence that she was a patient in need of further treatment, as required by 18 V.S.A. § 7616(b). We affirm.¹

The material facts as found by the trial court are largely undisputed. In December 1995, N.H. became incensed at her younger sister and repeatedly assaulted her, screaming profanely and accusing her of killing their father. N.H.'s older sister testified that N.H.'s sanity had steadily eroded since their father's death in 1991, and that since that time she had threatened suicide, stated that taxis and buses were following her, complained that her landlord was routinely searching her apartment, and engaged in random and senseless acts of violence such as slapping her mother, smashing a fax machine, and breaking a remote control and videotape.

Following her arraignment on charges stemming from the 1995 assault, N.H. was evaluated at the Vermont State Hospital (VSH) and found to be competent to stand trial. She subsequently pled nolo contendere to two counts of unlawful mischief and was given two four-year deferred sentences. In August 1996, the court revoked both deferred sentences for violation of the counselling condition of her sentence and placed N.H. on probation with the same conditions. Several months later, an arrest warrant was issued for new violations. Thereafter, N.H. reportedly drove her car off the road. When the police responded, she was arrested on the outstanding warrant and admitted to VSH for a psychiatric evaluation. The evaluator concluded that N.H. was incompetent to stand trial and insane at the time of the violation. By stipulation, the court entered a judgment of not guilty by reason of insanity, dismissed the violation of probation charge, and, following a hearing, committed N.H. to VSH for ninety days.

Shortly after her commitment, the director of VSH filed an application for involuntary medication. Before that application went to hearing, N.H. filed an application for discharge, and the Department filed an application for continued treatment. The parties agreed to go forward with the hearing on the application for continued treatment, and N.H. withdrew her application for discharge.

At the hearing, N.H.'s older sister recounted N.H.'s marked decline since the 1995 assault. According to her sister, N.H. was increasingly unable to focus (requiring verbal prompting to turn while driving), displayed a flat affect, made no eye contact, wrote on the walls of her bedroom, and often spoke of suicide. She would not leave the house during daytime, but only under cover of darkness. N.H.'s younger sister also testified concerning N.H.'s steady decline, and expressed concerns for her own safety should N.H. be released without further treatment.

N.H.'s psychiatrist at VSH, Dr. Malloy, also testified. Based upon his observations and the reports of family members and hospital staff, Dr. Malloy diagnosed N.H. as suffering from a psychotic disorder which substantially affected her thought processes. He opined that her underlying psychotic features were steadily eroding her mental health and impairing her ability to function. Dr. Linder, who performed an independent psychiatric evaluation, testified that unlike Dr. Malloy he had not observed symptoms from which he could diagnose a psychosis, but conceded that further evaluation might reveal some form of personality disorder.

The court found that N.H. suffered from a mental illness that caused a substantial disorder of thought and impaired her judgment, and that as a result she posed a danger to herself or others. The court concluded, accordingly, that the Department had shown by clear and convincing evidence that N.H. was a patient in need of further treatment, and committed her to the custody of the Commissioner of the Department to be hospitalized for an indeterminate period. This appeal followed.

I.

Before turning to N.H.'s arguments, we address the Department's claim that the appeal should be dismissed as moot. During the pendency of her appeal, N.H. entered into a stipulation with the Department to modify the order of continued treatment from one of hospitalization to one of nonhospitalization. See 18 V.S.A. § 7617(b). The new order included conditions that N.H. take all prescribed medications, keep all medical appointments, comply with the treatment plan, and refrain from any threats, assaults or other behaviors that would pose a danger to herself or others.

The Department argues that by agreeing to an alternate program of nonhospitalization, N.H. implicitly conceded that she has a mental illness, and tacitly agreed to continue her involuntary commitment. Accordingly, the Department contends that by entering into the stipulation N.H. has either waived or mooted her appeal. We are not persuaded, however, that N.H. waived her right to appeal the original continued-treatment order merely by agreeing to a nonhospitalization placement. No such intent is stated in the parties' stipulation, and we are unwilling to infer an intent to forfeit such a fundamental right. Furthermore, it would not be in the public interest to condition a patient's opportunity to participate in an alternative treatment plan upon the patient's willingness to forego an appeal from the original order of continued treatment.

Nor are we persuaded that the appeal is moot as a result of the stipulation. A case becomes moot when the issues presented are no longer "live" or the parties lack a cognizable interest in the outcome. See In re P.S., 167 Vt. 63, 67, 702 A.2d 98, 100 (1997). Although her status has changed, N.H. remains subject to the conditions of the order of nonhospitalization. If the original order of continued treatment were reversed, the subsequent order of nonhospitalization would be void as a modification of an invalid underlying order. Accordingly, N.H. retains a cognizable interest in the outcome, and the matter cannot be considered moot.

II.

N.H.'s principal claim on appeal is that the Department failed to meet its burden of proving by clear and convincing evidence that she was a patient in need of further treatment. As a preliminary matter, however, she asserts that the usual standard of appellate review is inadequate, and urges this Court to adopt a new and more rigorous standard. Although the precise boundaries of her proposal are unclear, she suggests, at a minimum, that we abandon the traditional rule of deferring to trial court findings in favor of something approaching de novo review. Her justification for this extraordinary level of appellate scrutiny is the fundamental liberty interest at stake in civil commitment proceedings.

This Court has long recognized that confinement for compulsory psychological treatment represents a massive curtailment of liberty necessitating a heightened standard of proof. See In re W.H., 144 Vt. 595, 597, 481 A.2d 22, 24 (1984). Vermont has determined by statute that the State must prove its case by clear and convincing evidence, see 18 V.S.A. § 7616(b), a "middle level of burden of proof that strikes a fair balance between the rights of the individual and the legitimate concerns of the state." Addington v.. Texas, 441 U.S. 418, 431, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979). While we have seldom explored its precise meaning, it should be understood that the...