People ex rel. Vivekanathan

Decision Date24 October 2013
Docket NumberCourt of Appeals No. 13CA1203
Citation338 P.3d 1017
PartiesThe PEOPLE of the State of Colorado, Petitioner–Appellee, INthe INTEREST OF Gabriel VIVEKANATHAN, Respondent–Appellant.
CourtColorado Court of Appeals

Sean C. McGill, County Attorney, Fort Collins, Colorado, for PetitionerAppellee

The Life & Liberty Law Office, Sarah Schielke, Fort Collins, Colorado, for RespondentAppellant

Opinion

Opinion by JUDGE FOX

¶ 1 Respondent, Gabriel Vivekanathan, appeals the district court's order upholding his certification, pursuant to section 27–65–107, C.R.S.2013, for involuntary commitment and treatment at the Colorado Mental Health Institute at Pueblo (CMHIP). We conclude that the appeal is moot.

I. Facts and Procedural History

¶ 2 Respondent, a twenty-five-year-old man, has suffered from schizophrenia since he was approximately sixteen years old. After he was hospitalized in April 2013 because of his mental illness, he and his mother sought voluntary treatment at an inpatient mental health facility called Choice House. In the next two months, Vivekanathan left Choice House twice. The second time Vivekanathan left, he was found by police and taken to Centennial Peaks Hospital for a seventy-two-hour involuntary commitment pursuant to section 27–65–105, C.R.S.2013.

¶ 3 A Centennial Peaks psychiatrist then filed with the Larimer County District Court a “Notice of Certification and Certification for Short–Term Treatment,” which certified respondent for involuntary commitment to CMHIP based on the psychiatrist's finding that Vivekanathan was “gravely disabled” as a result of his mental illness. The psychiatrist later explained that he sought to transfer Vivekanathan to CMHIP because Centennial Peaks is an acute stabilization unit with normal stays of only three to five days, whereas CMHIP is designed for longer-term inpatient treatment.

¶ 4 Three days after the psychiatrist certified Vivekanathan for involuntary commitment at CMHIP, Vivekanathan submitted a letter to the district court, objecting to the certification and requesting a hearing. The court appointed counsel to represent Vivekanathan, and counsel was notified of her appointment five days later. The following day, Vivekanathan's counsel again requested a hearing, and the court held a hearing twelve days after Vivekanathan's initial request.1

¶ 5 At the July 1, 2013 hearing, the Centennial Peaks psychiatrist testified by telephone and Vivekanathan and his mother testified in person. The district court upheld the certification, concluding that [Vivekanathan] is mentally ill and as a result of that illness is gravely disabled [and a] danger to self.”2

¶ 6 Vivekanathan appeals the order upholding his certification.

¶ 7 On August 12, 2013, after this appeal was lodged and before the Larimer County Attorney's Office filed a response, Vivekanathan's civil commitment was terminated early by a different physician, thus raising the issue of whether a live controversy remains. After this court was notified of this development, we issued a September 18, 2013 order to show cause why this appeal is not moot as a result of the termination of Vivekanathan's civil commitment.

¶ 8 Vivekanathan argues that the appeal is not moot because “next time [Vivekanathan] is deemed to have run away or wandered from an institutional setting, the same physician will likely seek to re-certify him for short-term commitment on the exact same erroneous grounds.” Accordingly, he asserts that this is an issue “capable of repetition yet evading review.” The state concurs. We disagree and conclude that the appeal is moot.

II. Mootness Analysis

¶ 9 In certain cases, an appeal of a short-term mental health treatment order does not become moot when the order expires if the issue on appeal is capable of repetition but evading review. See, e.g., Gilford v. People, 2 P.3d 120, 124 (Colo.2000) ; People in Interest of Ofengand, 183 P.3d 688, 691 (Colo.App.2008).

¶ 10 However, in the cited cases, the issue on appeal was a procedural issue relating to the particular circumstances in which the short-term treatment order was entered. See Gilford, 2 P.3d at 122 (whether failure to comply with the statutory requirement that petition seeking certification for long-term care and treatment be personally delivered divests the trial court of personal jurisdiction); Ofengand, 183 P.3d at 691 (whether respondent validly waived her right to counsel); People in Interest of Hoylman, 865 P.2d 918, 921 (Colo.App.1993) (whether Colorado citizens have statutory right to jury hearing on factual issues supporting short-term treatment certification). These cases addressed procedural issues that were capable of repetition yet evading review, and thus the exception to the mootness doctrine applied.

¶ 11 In People in Interest of King, 795 P.2d 273, 274 (Colo.App.1990), the division addressed a patient's challenge to a short-term commitment order because the record reflected that he had been repeatedly subject to short-term treatment orders. Thus, the division concluded that the matter was capable of being, and even likely to be, repeated.

¶ 12 In this case, however, Vivekanathan is not seeking review of a procedural matter related to his treatment. Nor does the record disclose how many times he has been committed previously, or under what circumstances. While Vivekanathan's response to the show cause order represents that he has been “subject to compulsory institutionalizations previously (with one occurring just six weeks prior to the one at issue [here] ), and [that two] institutionalizations were requested on the exact same grounds by the exact same physician,” the record is insufficient as to this representation.3 The Centennial Peaks psychiatrist vaguely alluded to a prior hospitalization, but neither counsel asked him about the circumstances of that hospitalization, or about the circumstances of any prior civil commitment.

¶ 13 The issue Vivekanathan argues in this appeal is whether the commitment order was supported by evidence submitted at the July 1, 2013 hearing. Vivekanathan points to the court's finding that he is gravely disabled. He argues that his circumstances do not satisfy the statutory requirement that he be gravely disabled, and that the evidence only supported a finding that he has mental illness.

¶ 14 Whether Vivekanathan is gravely disabled is a fact-specific determination, and it depends on his condition at the time the finding is made. Thus, even if the district court erred in making the finding in the July 2013 order, this finding does not determine whether at some point in the future Vivekanathan may be found to be gravely disabled. Therefore, the particular issue of whether the July 2013 finding of “gravely disabled” was erroneous has become moot. Vivekanathan's release leaves nothing for us to adjudicate, and our ruling on the district court's order would have no practical effect. See Trinidad Sch. Dist. No. 1 v. Lopez, 963 P.2d 1095, 1102 (Colo.1998) (“An issue becomes moot when the relief granted by the court would not have a practical effect upon an existing controversy.”). Any decision on the merits would result in an advisory opinion, and we should not issue such opinions.

¶ 15 On this record, any suggestion that Vivekanathan would be subject to the same action again is mere speculation. See, e.g., Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 381 (Alaska 2007) (where the patient was committed based on a set of facts establishing a grave disability, the court concluded that the facts were specific to her condition at, and immediately before, the hearing and any subsequent commitment “would be based on a different set of facts specific to [a] different” circumstance and thus not capable of repetition); In re Joseph P., 406 Ill.App.3d 341, 348 Ill.Dec. 107, 943 N.E.2d 715, 719–20 (2010) (concluding that the patient did not meet his burden to show a substantial likelihood that the issue, and its resolution, would recur where the order appealed was based on his condition at a specific time and any determination as to the sufficiency of the evidence supporting that order would have no impact on future litigation); In Interest of W.O., 673 N.W.2d 264, 267 (N.D.2004) (appeal was rendered moot where the trial court entered an order for less restrictive treatment); E.S. v. State, 178 Vt. 519, 872 A.2d 356, 359 (2005) (where a mental health patient had been released, the court concluded that an appellate ruling would not affect the former patient's custodial status and no exception to mootness existed).

¶ 16 Vivekanathan's appeal presents issues that have become moot as a result of the termination of the civil commitment order.

¶ 17 While we need not reach the merits, we disagree with the dissent's conclusion that there is insufficient evidence to support the district court's determination that Vivekanathan is gravely disabled.4

¶ 18 The appeal is dismissed.

JUDGE BOORAS concurs.

JUDGE HAWTHORNE dissents.

JUDGE HAWTHORNE, dissenting.

Because I conclude that the issues raised in this appeal are capable of repetition while evading review, and therefore not moot, I dissent.

I. Mootness

Generally, Colorado courts invoke their judicial power only when an actual controversy exists between adverse parties. Trinidad Sch. Dist. No. 1 v. Lopez, 963 P.2d 1095, 1102 (Colo.1998) ; accord People v. Back, 2013 COA 114, ¶ 10, ––– P.3d ––––, 2013 WL 3943162 ; Grossman v. Dean, 80 P.3d 952, 960 (Colo.App.2003). If such a controversy no longer exists, or if the relief granted by a court would have no practical effect upon an existing controversy, then the issue before the court is considered moot and typically unreviewable. People in Interest of O.C., 2013 CO 56, ¶ 9, 308 P.3d 1218. However, a court may resolve an otherwise-moot issue on its merits if it is capable of repetition while evading review, involves matters of great public importance, or involves an allegedly...

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