Black v. State

Bernadette BLACK v. STATE of Arkansas

CA 95-179                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division II
               Opinion delivered February 21, 1996


1.   Appeal & error -- mootness -- moot issues not ordinarily
     decided -- exceptions. -- Although a mootness challenge would
     otherwise be dispositive of an appeal, where a case involves
     a public interest or tends to become moot before litigation
     can run its course, or where a decision might avert future
     litigation, appellate courts have regularly refused to permit
     mootness to determine the outcome.

2.   Appeal & error -- mootness -- involuntary-commitment statute
     provides for short-term commitment -- not enough time for
     appeal to be decided -- mootness not determinative of result.
     -- Where the involuntary-commitment statute involved in the
     present case provided for short-term commitment up to 180
     days, most persons committed under the statute would, like
     appellant, have been released before their appeals could be
     decided; the mootness argument was not determinative of the
     result where the record did not contain the clear and
     convincing proof prescribed for hearings concerning additional
     periods of involuntary admission.

3.   Public health & welfare -- involuntary admission -- additional
     periods -- criteria. -- Under Ark. Code Ann.  20-47-215(c)(3)
     (Repl. 1991), the need for additional involuntary admission
     must be proven by clear and convincing evidence; the appellate
     court declared that the criteria for involuntary admission
     prescribed in Ark. Code Ann. 20-47-207(c) (Repl. 1991)
     applied to the present case.

4.   Evidence -- clear and convincing evidence defined. -- Clear
     and convincing evidence has been defined as proof so clear,
     direct, weighty, and convincing that the fact finder is able
     to come to a clear conviction, without hesitation, of the
     matter asserted; it is that degree of proof that will produce
     in the trier of fact a firm conviction respecting the
     allegation sought to be established; clear and convincing
     evidence is evidence by a credible witness whose memory of the
     facts about which he or she testifies is distinct, whose
     narration of the details is exact and in due order, and whose
     testimony is so direct, weighty, and convincing as to enable
     the fact finder to come to a clear conviction, without
     hesitation, of the truth of the facts related.

5.   Public health & welfare -- involuntary admission -- no clear
     and convincing evidence that appellant posed clear and present
     danger to herself or others -- order reversed and dismissed. -
     - The appellate court concluded that, although there was proof
     that appellant needed mental-health treatment on a continuing
     basis, and the record showed that she had been involuntarily
     committed in the past, the State failed to prove by clear and
     convincing evidence that appellant posed a clear and present
     danger to herself or to others, or that she was unable to care
     for herself; the appellate court reversed and dismissed the
     order of additional involuntary admission, holding that it was
     error for the probate court to grant the petition for
     involuntary commitment and to order appellant to undergo an
     additional 180-day period of treatment.


     Appeal from Pulaski Probate Court, Ninth Division; Mary
McGowan, Judge; reversed and dismissed.
     William R. Simpson, Jr., Public Defender, and Julie B.
Jackson, Deputy Public Defender, by: Stephen W. Parker, Deputy
Public Defender.
     Winston Bryant, Att'y Gen., by:  Vada Berger, Asst. Att'y
Gen., for appellee.

     Wendell L. Griffen, Judge. *CA*ADVREP7*               DIVISION II





                                   CA 95-179

                                                February 21, 1996



BERNADETTE BLACK                   AN APPEAL FROM PULASKI PROBATE 
                APPELLANT          COURT, NINTH DIVISION
                                   NO. 89-1042

V.                                 HONORABLE MARY MCGOWAN, JUDGE


STATE OF ARKANSAS                         
                APPELLEE           REVERSED




                   Wendell L. Griffen, Judge.

    Bernadette Black appeals the order of involuntary commitment
entered by the Pulaski County Probate Court on December 6, 1994. 
After hearing testimony from Tracy Petty, a member of the
appellant's treatment team, and from appellant, the probate judge
ordered appellant to undergo an additional period of treatment for
her mental illness at the Little Rock Community Mental Health
Center "or other appropriate facility."  This appeal followed. The
record does not indicate that a stay was obtained to suspend
enforcement of the order entered by the probate judge.  Thus, the
180-day period of treatment would have ended by June 1995, as is
argued by the appellee in its brief urging that the appeal is now
moot.
    Although appellee's mootness challenge would otherwise be
dispositive of this appeal, when a case involves a public interest,
or tends to become moot before litigation can run its course, or a
decision might avert future litigation, appellate courts have
regularly refused to permit mootness to determine the outcome. 
Campbell v. State, 311 Ark. 641, 846 S.W.2d 639 (1993).  The
involuntary commitment statute involved in this litigation provides
for short-term commitment up to 180 days.  Therefore, most persons
committed under the statute will, like appellant, have been
released before their appeals can be decided.  Because the record
does not contain proof pursuant to the clear and convincing
evidence standard that Ark. Code Ann. 20-47-215 (Repl. 1991)
prescribes for evidence at hearings seeking an additional period of
involuntary admission, we are not persuaded that the mootness
argument should determine the result.  Sub-section (c)(3) of that
statute states that the "need for additional involuntary admission
shall be proven by clear and convincing evidence."  The criteria
for involuntary admission prescribed in Ark. Code Ann. 20-47-
207(c) apply to this case.
    Clear and convincing evidence, which is a higher burden of
proof than preponderance, has been defined as proof so clear,
direct, weighty, and convincing that the fact finder is able to
come to a clear conviction, without hesitation, of the matter
asserted.  It is that degree of proof that will produce in the
trier of fact a firm conviction respecting the allegation sought to
be established.  Maxwell v. Carl Bierbaum, Inc., 48 Ark. App. 159,
893 S.W.2d 344 (1995).  In McLain v. McLain, 36 Ark. App. 197, 820 S.W.2d 295 (1991), we declared that clear and convincing evidence
is evidence by a credible witness whose memory of the facts about
which he or she testifies is distinct, whose narration of the
details is exact and in due order, and whose testimony is so
direct, weighty, and convincing as to enable the fact finder to
come to a clear conviction, without hesitation, of the truth of the
facts related.  See also First Nat. Bank v. Rush, 30 Ark. App. 272,
785 S.W.2d 474 (1990).
    There was not "clear and convincing evidence" at the December
6, 1994, hearing before the probate court that appellant posed a
clear and present danger to herself or to others.  There was no
proof that she had inflicted serious bodily injury to herself, had
attempted suicide or other serious self-injury, or that there was
any probability (let alone a reasonable probability as required by
the statute) that such conduct would be repeated without extending
her involuntary admission.   There was no proof that appellant had
engaged in recent behavior demonstrating that she lacked the
capacity to care for her own welfare, and that there was reasonable
probability of death, serious bodily injury, or serious physical or
mental debilitation without involuntary admission.  In short, there
was insufficient evidence to meet the clear and convincing evidence
standard applicable to this case.  Instead, the probate court
granted the petition to extend appellant's involuntary admission
based upon the unsupported testimony of her social worker who
conceded during cross-examination that appellant had been compliant
with outpatient appointments and medication, and who admitted that
she had not witnessed appellant threaten or harm herself or others. 
The social worker also admitted that appellant was able to care for
herself and her personal hygiene.  While the social worker
testified that appellant had refused to keep a day treatment
appointment at Pinnacle Pointe, she also conceded that the
treatment staff had taken no action to have appellant taken into
custody despite the knowledge that she was already under an
involuntary commitment order.  This testimony does not support the
premise that appellant's treatment team viewed her condition to be
life-threatening.
    Before a person can be committed for mental-health treatment
against her will the law demands that clear and convincing
evidence, the highest standard of proof applicable to civil
litigation, be presented regarding the basis for involuntary
commitment.  That proof was not introduced.  There was proof that
appellant needs mental-health treatment on a continuing basis, and
the record shows that she had been involuntarily committed in the
past.  But on the petition for additional involuntary commitment
that is the subject of this appeal, the State failed to prove by
clear and convincing evidence that appellant posed a clear and
present danger to herself, to others, or that she was unable to
care for herself.  Therefore, it was error for the probate court to
grant the petition for involuntary commitment and order appellant
to undergo an additional 180-day period of involuntary commitment.
    We reverse and dismiss the probate order appealed from in this
case, and order that the record of appellant's involuntary
commitment be removed from the treatment records of the Community
Mental Health Center of Little Rock.  See Campbell v. State, 51
Ark. App. 147, 912 S.W.2d 446 (1995).
    Reversed and dismissed.
    Cooper and Stroud, JJ., agree.