P.S., In re, 96-208

CourtUnited States State Supreme Court of Vermont
Citation167 Vt. 63,702 A.2d 98
Docket NumberNo. 96-208,96-208
PartiesIn re P.S.
Decision Date08 August 1997

Page 98

702 A.2d 98
167 Vt. 63
In re P.S.
No. 96-208.
Supreme Court of Vermont.
Aug. 8, 1997.

Page 99

Michael Benvenuto, Vermont Legal Aid, Inc., Waterbury, for appellant P.S.

Jeffrey L. Amestoy, Attorney General, Montpelier, Ira N. Morris and Jessica G. Porter, Assistant Attorneys General, and Marybeth McCaffrey, Special Assistant Attorney General, Waterbury, for appellee Department of Developmental and Mental Health Services.

Before GIBSON, DOOLEY, MORSE and JOHNSON, JJ., and ALLEN, C.J. (Ret.), Specially Assigned.

DOOLEY, Justice.

P.S. appeals the Washington Family Court's decision to revoke her order of nonhospitalization, and enter a new order of hospitalization, based upon findings that she was not complying with the order and was a patient in need of further treatment. The issues raised on appeal are (1) whether the family court's findings are supported by clear and convincing evidence, and (2) whether the applicable statutes, or (3) the Vermont or federal constitution, require a court to find that a patient is dangerous to herself or others at the time of revocation of an order of nonhospitalization. We conclude that the issue regarding the family court's findings is moot; we affirm the trial court's application of the "patient in need of further treatment" standard in determining whether to rehospitalize P.S.

Page 100

P.S. was formerly a patient at the Vermont State Hospital and is mentally ill. In April 1995, she was released from the hospital on an order of nonhospitalization pursuant to 18 V.S.A. § 7621(c). The order provided for extensive supervision by the community mental health agency in the area in which P.S. went to reside. She was required to take all medicine prescribed by her psychiatrist and to take it in the presence of agency staff if they so required. She was required to comply with her treatment plan and keep all appointments with her case manager. Initially, she was required to live in a facility with twenty-four-hour supervision, but the agency could, and did, allow her to move to her personal condominium on August 15, 1995.

The family court made the following finding about P.S.:

She requires for this illness, both medication and frequent, regular contact with mental health professionals. Her illness has a long history with a well established pattern in which she periodically stops taking her medication, decompensates to a serious degree, such that she requires hospitalization. Her history establishes that in the early stages of decompensation she refuses medication, shows poor judgment, becomes angry and irritable. Her history also shows that she tends to decompensate rapidly, which is characteristic of her particular form of mental illness. She can do so within a period of two to four weeks. Her history also shows that it takes quite a long time for her to respond to the resumption of medication and to get back on track after a period of decompensation.

On August 24, 1995 the Commissioner of Mental Health and Mental Retardation, acting on behalf of the State pursuant to 18 V.S.A. § 7621(d), notified the family court that P.S. was out of compliance with the court's order of nonhospitalization, and requested permission to rehospitalize P.S. due to her noncompliance. At the hearing on the petition, the State produced evidence showing that P.S. had refused to take her medication in front of staff, was unable to keep all her medical appointments, and occasionally missed her day treatment program. The court found that P.S.'s behavior violated the order of nonhospitalization and that

[i]f she were to receive no treatment for her mental illness, at this time she would most certainly decompensate within a matter of days.... And within a matter of a few days, she represents a danger to herself in that her judgment and mood are so seriously affected by her mental illness, that she'd be unable to provide for her daily needs.

The court found P.S. to be a patient in need of further treatment and that hospitalization "is adequate and appropriate to her condition." The court revoked the order of nonhospitalization and ordered P.S. to be hospitalized.

P.S. filed a motion to reconsider the court's revocation order, arguing that the court incorrectly revoked her order of nonhospitalization on a finding of future dangerousness, rather than a finding of current dangerousness. On March 28, 1996, the family court issued an opinion, affirming its decision to revoke the order of nonhospitalization and concluding that the appropriate standard for revocation is that of a patient in need of further treatment. P.S. appeals the court's findings and the standard of dangerousness used at the revocation hearing.


We must first determine whether the issues raised by P.S. are moot. The general rule is that a case becomes moot when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome. In re H.A., 148 Vt. 106, 108, 528 A.2d 756, 757 (1987). The actual controversy must be present at all stages of review, not just when the case was filed. See Doria v. University of Vermont, 156 Vt. 114, 117, 589 A.2d 317, 319 (1991). At the time of argument to this Court, P.S. had been released under a new order of nonhospitalization and was living in the community. Thus, the order she appeals no longer has any effect on her commitment status or residence. As a result, the case is moot unless it fits within an exception to the mootness doctrine.

Page 101

This Court has recognized two exceptions to the mootness doctrine which might apply to all or part of this case. First, a case is not moot when negative collateral consequences are likely to result from the action being reviewed. See State v. Condrick, 144 Vt. 362, 363, 477 A.2d 632, 633 (1984). In the past, we have applied this exception to commitment cases due to the social stigmatization that remains after being involuntarily committed in a state facility. Id. at 364, 477 A.2d at 633; State v. O'Connell, 136 Vt. 43, 45, 383 A.2d 624, 625 (1978) (negative collateral consequences can apply in mental health commitment cases because "[t]he legal disabilities radiating from the label of mentally incompetent are myriad"). Second, a case is not moot when the underlying situation is capable of repetition, yet evades review. See State v. Tallman, 148 Vt. 465, 469, 537 A.2d 422, 424 (1987). This exception applies only if: "(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again." Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 349, 46 L.Ed.2d 350 (1975).

Whether the trial court's findings are supported by clear and convincing evidence does not fall within either of the exceptions to mootness. First, the exception for negative collateral consequences does not apply because P.S. has already been committed a number of times in the past. In addition, the issue on appeal is the location of commitment, not the fact of commitment. We do not believe that any additional collateral consequences hinge on the result of this appeal. Cf. In re C.C., 150 Vt. 112, 113, 549 A.2d 1058, 1059 (1988) (where patient concedes she is mentally ill, adverse collateral consequences from order of involuntary medication are "minimal"; dispute over order is mooted by State's statement that it would no longer enforce order); O'Connell, 136 Vt. at 45, 383 A.2d at 625 (ruling that exception applies must be based on facts of case before court; fact that patient had been hospitalized on one prior occasion "does not necessarily vitiate the collateral consequences of the contested commitment"); In re M.A.C., 134 Vt. 522, 523, 365 A.2d 254, 255 (1976) (on record before court, mental health commitment case was moot). Second, the exception for situations capable of repetition yet evading review does not apply because the court's findings were specific to August 1995; any future revocations of P.S.'s order of nonhospitalization will be based on new fact patterns. See State v. Gundlah, 160 Vt. 193, 196, 624 A.2d 368, 370 (1993) (exception to mootness does not apply because repetition of fact pattern is unlikely).

The standard of dangerousness to be applied at revocation hearings does, however, fall within the exception for situations capable of repetition yet evading review. Given P.S.'s past history, the general circumstances that gave rise to the revocation of P.S.'s nonhospitalization order are likely to occur again. Furthermore, the parties continue to disagree on when the Commissioner may intervene and seek revocation of the nonhospitalization order, and what standard of dangerousness should apply at the revocation hearing. We therefore conclude that the standard of dangerousness to be applied at revocation hearings of nonhospitalization orders is not a moot issue. See Condrick, 144 Vt. at 364, 477 A.2d at 633.


P.S. contends that, under the Vermont mental health statutes, an order of nonhospitalization may not be revoked unless the Commissioner proves that a patient is dangerous to himself or others...

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