In re S.A.

NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
40 as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.


                                No. 89-225


In re Judicial Review of S.A.                Supreme Court

                                             On Appeal from
                                             District Court of Vermont,
                                             Unit No. 5, Brandon Circuit

                                             February Term, 1990

Theodore S. Mandeville, Jr., J.

Jeffrey L. Amestoy, Attorney General, and Joseph L. Winn, Assistant Attorney
   General, Brandon, for plaintiff-appellee, Department of Mental Health

Fitts, Olson, Carnahan, Anderson & Bump, Brattleboro, for defendants-
   appellants, S.A.'s parents

Nancy Breiden, Vermont Legal Aid, Inc., Brandon, for defendant-appellee,
   S.A.

Allan R. Keyes and John A. Serafino of Ryan Smith & Carbine, Ltd., Rutland,
   for amicus curiae Brandon Training School Association

Mickenberg, Dunn, Sirotkin & Dorsch, Burlington, for amici curiae, Vermont
   Developmental Disabilities Council, Vermont Protection and Advocacy, Inc.
   and Vermont Association for Retarded Citizens


PRESENT:  Allen, C.J., Peck, Gibson and Dooley, JJ., and Barney, C.J.
          (Ret.), Specially Assigned.

     PECK, J.  The parents of S.A. appeal a district court judgment finding
their son, S.A., eligible for conditional release to a community placement.
We affirm.
                                     I.
     S.A., age 44, has lived at Brandon Training School (Brandon) since age
4, after he suffered postinfectious encephalitis that damaged his central
nervous system and left him profoundly mentally retarded.  He requires
twenty-four hour care and supervision due to his considerable health
problems, including a seizure disorder that has caused fractures and
osteomyelitis.  The fracture of his mandible many years ago has remained an
ongoing health concern because S.A. must wear a helmet at all times when he
moves about.   S.A.'s general level of ability corresponds to that of a
young child.  His gross motor skills enable him to get in and out of bed and
walk on level surfaces, but he cannot climb or descend stairs.  S.A.'s fine
motor development has progressed to the level of opening "push" doors and
grasping small items with his thumb and fingers.  Although he is nonverbal,
S.A. communicates through vocalizations, listens at least momentarily when
spoken to by a caregiver, and smiles in response to the presence of familiar
people.  He does not, however, understand the word "no," or imitate sounds
immediately.  He also tends to wander unless closely supervised.  S.A. has
continued to learn during his adult years despite his severe handicaps:
between 1972 and 1976 he learned to walk again after being nonambulatory for
more than thirteen years.
     Appellants were appointed S.A.'s co-guardians in 1981 pursuant to 14
V.S.A. {{ 3069(b)(1) (power of general supervision, including choosing or
changing his residence, care, habilitation, education, and employment) and
3069(b)(5) (power of consent to surgery or other medical procedures).  The
present controversy developed because appellants, S.A.'s parents, were not
notified of the application for judicial review filed in the district court
by the Attorney General, on behalf of the Department of Mental Health (DMH),
on August 2, 1984.  Appellants first learned that the application had been
filed in March of 1988, when a paralegal from the Attorney General's Office
wrote to them of the tentative judicial review hearing date set for April 7,
1988.  They contend that as S.A.'s legal guardians they should have received
notice of the application filing and had an opportunity to attend hearings
at which the trial court assigned Vermont Legal Aid, Inc. (Legal Aid) as
counsel for S.A., appointed a guardian ad litem, and three status
conferences held in December of 1987, January and February of 1988.
     Appellants claim on appeal that the court violated S.A.'s due process
rights by failing to assure that he received an independent guardian ad
litem and an independent lawyer and that the court overlooked their
responsibilities and authority as S.A.'s legal guardians.  They further
assert that no legal standard exists making Brandon residents "eligible for
conditional release" to community placements and, in the alternative, that
even if such a legal standard does exist, the order finding that S.A. met
this standard was inconsistent with the court's own findings of fact.
                                    II.
                                    A.
     Appellants contend that their procedural due process rights were first
disregarded when DMH failed to notify them of the filing of the judicial
review application in August of 1984.  Appellants' due process rights
include the right to reasonable notice under the circumstances and an
opportunity to be heard.  Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950).
     Appellants have not shown that they were harmed in any way by not being
included in the prehearing proceedings.  Appellants received notice of the
tentative hearing date, and the court granted them a continuance.  The court
also granted appellants a hearing on the issue of the appointment of an
independent guardian ad litem and counsel.  The statute requires notice to
parents and guardians only of the scheduling of a hearing on the
application.  Section 8834(c) of Title 18 provides that the court "shall fix
a date and give notice of a hearing to . . . the person admitted to the
training school . . . and [the] attorney, legal guardian and spouse, parents
or children."  (Emphasis added).  The statute was complied with in this
case.  Appellants have not shown that they were injured in any way by the
procedures defined by { 8834(c). (FN1)
     Appellants also complain that the hearing was scheduled for more than
three years after the application was filed, and not within the thirty days
required by 18 V.S.A. { 8834(c).  Appellants have presented no specific
assertions of prejudice related to that delay.
                                    B.
     Appellants further contest the lack of appointment of and notice to a
guardian ad litem earlier in the review process.  They view the procedure
employed in this case as "a standardized routine" that ignored the rights of
S.A. to be treated as an individual as prescribed by statute and procedural
due process and that treated the guardian ad litem as mere "window
dressing."  Specifically, they claim that the sequence of appointing counsel
prior to appointing a guardian ad litem, precluded S.A., through his
guardian ad litem, (FN2) from electing to retain counsel pursuant to 18 V.S.A. {
7111, if he could afford it.  We disagree.  The court committed no
procedural errors by appointing counsel before a guardian ad litem.
     The statutes differ with respect to the appointment of counsel and of
a guardian ad litem.  Section 7111 requires a Brandon resident to be
represented by counsel "[i]n any proceeding."  In contrast, section 8831
states that no commitment order "shall lead to a presumption of legal
incompetence."  Since the court has an obligation to appoint a guardian ad
litem only for an incompetent person, V.R.C.P. 17(b), the appointment of a
guardian ad litem in a judicial review proceeding depends upon a
preliminary finding of legal incompetence by the court.  Similar statutes
concerning institutionalized persons appear elsewhere in Title 18.  See,
e.g., { 7006 (care and treatment of mentally ill or mentally retarded
persons) and { 8844 (care for retarded persons who present  a danger of harm
to others).  These provisions are designed to protect the liberty interests
of an institutionalized person because they require courts to make specific
findings on the issue of competency and not rely on "[m]ere recitations of
diagnostic labels."  State v. Ladd, 139 Vt. 642, 643-44, 433 A.2d 294, 295
(1981).  They also encourage lawyers to "obtain . . . all possible aid" from
a client, if the client is "capable of understanding the matter in question
or of contributing to the advancement of his [or her] interests" even if
the client may be "legally disqualified from performing certain acts."  Code
of Professional Responsibility EC 7-12.  If counsel cannot communicate with
the client, then counsel should ask the court to appoint a guardian ad
litem.  Reading {{ 7111 and 8831 together, as we must, In re S.B.L., 150 Vt.
294, 301, 553 A.2d 1078, 1083 (1988), we conclude that the court may
appoint counsel before a guardian ad litem.
     Moreover, the statute makes no express provision for the court to
specifically inquire into whether the guardian ad litem actually made a
choice on S.A.'s behalf between retained and appointed counsel. (FN3) In ruling
on appellants' motion, the court found that the guardian "generally
approves" of Legal Aid's position in the case.  Only limited circumstances,
such as entering a guilty plea, require the court to affirmatively question
a party to a proceeding as to his or her decision-making considerations.
The court had no further obligation in the present case to ask the guardian
ad litem whether she had chosen appointed counsel over retained counsel.
                                    III.
     Appellants next dispute the existence of a legal standard labeled
"eligible for conditional release."  Alternatively, appellants maintain that
even if such a legal standard does exist, the order finding that S.A. met
this standard was inconsistent with the court's own findings of fact.
                                    A.
     Appellants argue that the decision In re R.B., Nos. 27, 28, 44, 17, 13,
47-78 BR-MR-JR (Brandon District Ct. 1980) relied on by the trial court
improperly refers to a standard not contained in the statutes or legal
decisions.  Although S.A.'s eligibility for conditional release was clearly
the ultimate issue to be resolved in the hearing, appellants never raised
the legitimacy of this standard at the hearing and thus failed to preserve
the issue for appeal.  See Hinckley v. Town of Jericho, 149 Vt. 345, 346,
543 A.2d 260, 261 (1988).  We nevertheless consider it in order to determine
whether there were errors of such significance as to make the proceedings
fundamentally unjust.  See V.R.C.P. 61.  For the following reasons, we
conclude that the actions by the trial court were fair.
     The "eligible for conditional release" standard was first discussed in
In re M.G., 137 Vt. 521, 526, 408 A.2d 653, 656 (1979).  M.G. explained
that the statute appellants challenge in the present case, (FN4) actually
"embraces a larger purpose" than simply what happens to a Brandon resident
upon release.  Id.  18 V.S.A. { 8834(f) provides:
            If the court does not order the person's admission to
          continue, it may order further hearings or may appoint
          experts or may order that the person be discharged.  An
          order of discharge may be conditional or absolute and
          may have immediate or delayed effect.
M.G. interpreted the words "conditional or absolute discharge," and
articulated as follows the standard appellants now contest.
          This first review of the students is the initial step
          in determining which of the student population should
          not be confined to Brandon Training School under the
          law.  This particular screening will, of course, result
          in the largest number of students suitable for
          discharge.  It is more probable than not that the
          procedures for review may operate more speedily than the
          more involved placement process.  Yet, at the same time
          eligibility must be recognized and provided for.  Once
          the student population has all been reviewed and
          disposition made, the pattern of review and release will
          have a smaller and more predictable dimension.
M.G., 137 Vt. at 526-27, 408 A.2d 656 (emphasis added).  Section 8834(f)
allows for both delayed and conditional release; "eligible for conditional
release," reasonably read, denotes the same idea.
     Courts construe statutes as part of their judicial function, primarily
to determine and execute the intent of the legislature.  See In re S.B.L.,
at 301, 553 A.2d  at 1083.  When interpreting the words of the legislature,
courts often set forth standards not explicitly articulated by statute.
See, e.g., Peabody v. P.J.'s Auto Village, Inc., ___ Vt. ___, ___, 569 A.2d 460, 462 (1989) (Court sets forth three-part test explaining the words
"deceptive acts or practices" in 9 V.S.A. { 2453(a)).  The Court ascertains
the meaning of a statute by considering "every part of the statute, the
subject matter, its effects and consequences, and the reason and the spirit
of the law."  In re R.S. Audley, Inc., 151 Vt. 513, 519, 562 A.2d 1046, 1049
(1989).
     In describing the "eligible for conditional release" standard based on
our understanding of the statute, we stated that courts must apply the less-
restrictive-environment standard "within broad limits."  M.G., 137 Vt. at
526, 408 A.2d  at 656.
          Not even the statutory language can be fine-tuned enough
          to distinguish between the varying needs and circum-
          stances of each of the patients.  No matter how varied
          the community resources are, or how extensive the state
          support of the community release programs, there will
          likely always be students whose care requires a judg-
          mental evaluation as to the suitability of available
          resources.  We agree that the state cannot fulfill the
          stated statutory purposes by limiting the available
          dispositions to either total discharge or retention at
          Brandon.
Id. (emphasis added).  We conclude that in the present case, the court
properly looked to the "eligible for conditional release" standard in ruling
on S.A.'s application for judicial review and followed { 8834(f).  The court
thus committed no fundamental error.
                                    B.
     In reviewing appellants' final claim, we must determine: (1) whether
the court erroneously concluded that S.A. proved by clear and convincing
evidence that the measure of restraint of Brandon was not in the best
interests of S.A., M.G., 137 Vt. at 527, 408 A.2d  at 656, and (2) whether
the court made a reasonable inquiry as to the availability of appropriate
care, treatment, education, habilitation and remedial care in a less
restrictive environment, 18 V.S.A. { 8834(e).5
     The record reflects ample evidence that S.A.'s needs can be met in an
appropriate community placement.  The testimony at the hearing included
concurrence on the part of all three experts, Dr. Ravaris for appellants,
along with Dr. Hamilton and Jay Spiegel for Legal Aid, that S.A. would
benefit from an environment with a higher staff to student ratio.  Hamilton
and Spiegel agreed that such an environment would be available in a six-bed
community facility with a staff to student ratio of 1:3 or better, while at
the same time providing the twenty-four hour care and supervision essential
to S.A.
     Hamilton, an expert with extensive experience with profoundly retarded
persons who have seizure disorders, opined that institutional living has
inhibited S.A.'s adaptive skill development and believes that S.A. could
advance in habilitation if he were placed in a six-person home in the
community.  Hamilton added that S.A. would benefit from the increased
opportunities for socialization and individual attention available at a
smaller facility.
     The court did not abuse its discretion in concluding that appellees
presented clear and convincing evidence that S.A. met the "eligible for
conditional release" standard.
     Affirmed.

                                             FOR THE COURT:



                                             _____________________________
                                             Associate Justice



FN1.      DMH represents in its brief that in all future cases it will send
notification at the time the application is filed.  We recognize that there
may be policy reasons for notifying parents and guardians earlier in the
process, but the law does not compel this procedure.

FN2.      Legal Aid represents in its brief that S.A. is indigent and that
his parents are the representative payees of S.A.'s public benefits.

FN3.      Since we conclude that the court had no affirmative obligation to
interrogate the guardian ad litem as to whether she made a conscious choice
between retained and appointed counsel, we deny appellee Legal Aid's motion
to dismiss part one of appellee DMH's brief.

FN4.     In re M.G. discussed 18 V.S.A. { 8810(f) (1978), which is
identical to the current version at 18 V.S.A. { 8834(f).  137 Vt. 521, 526,
408 A.2d 653, 656 (1979).

FN5.    Appellee DMH asks the Court to reconcile M.G.'s "best interest of
the student" test, with the words of 18 V.S.A. { 8834 (e): "least
restrictive environment reasonably available to meet student's needs."  No
resolution is needed.  Both criteria should be applied.  Accordingly, we
deny Legal Aid's motion to dismiss part four of DMH's brief.  Appellees
agree that S.A. met the "eligible for conditional release" standard.