In re N.H.

In re N.H.  (97-255); 168 Vt. 508; 724 A.2d 467

[Filed 18-Dec-1998]


  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, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.

                                 No. 97-255


  In re N.H.	                               Supreme Court

  					       On Appeal from
                                               District Court of Vermont,
                                               Unit No. 4, Waterbury Circuit

                                               June Term, 1998


       Marilyn S. Skoglund, J.

       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., 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.(FN1)

       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
  non-hospitalization.  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
  non-hospitalization, 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 non-hospitalization
  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
  non-hospitalization.  If the original order of continued treatment were
  reversed, the subsequent order of non-hospitalization 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 burden of proof that strikes a fair balance
  between the rights of the individual and the legitimate interests of the
  state."  Addington v. Texas, 441 U.S. 418, 431 (1979).  While 

  

  we have seldom explored its precise meaning, it should be understood that
  the clear-and-convincing-evidence standard represents a very demanding
  measure of proof.  Although something less than proof beyond a reasonable
  doubt, it is substantially more rigorous than the mere preponderance
  standard usually applied in the civil context, and is generally said to
  require proof that the existence of the contested fact is "highly probable"
  rather than merely more probable than not.  See Masaki v. General Motors
  Corp., 780 P.2d 566, 574 (Haw. 1989); Taylor v. Comm'r of Mental Health,
  481 A.2d 139, 152 (Me. 1984). 

       The purpose of fixing a standard of proof for the trial courts is to
  "instruct the factfinder concerning the degree of confidence our society
  thinks he should have in the correctness of factual conclusions for a
  particular type of adjudication."  In re Winship, 397 U.S. 358, 370 (1970)
  (Harlan, J., concurring).  Given the significant deprivation of liberty
  that results from an order of continued treatment, the clear-and-convincing
  evidence standard should operate as a fundamental caution upon the minds of
  all judges, barring such orders unless the evidence results in a firm
  conviction as to the truth of the allegations to be established.

       Clear and convincing does not mean, however, that the State's evidence
  must be wholly uncontradicted or unimpeached.  See Bishop v. Bishop, 961 S.W.2d 770, 773 (Ark. Ct. App. 1998) ("A requirement that the evidence be
  clear and convincing does not mean that the evidence must be
  uncontradicted."); People v. Cregar, 526 N.E.2d 1376, 1385 (Ill. App. Ct.
  1988) ("clear and convincing is not synonymous with uncontradicted or
  unimpeached").  Nor is a reviewing court free to ignore the trial court's
  findings, reweigh the evidence, and make its own independent findings and
  conclusions.  "Even where the standard of proof is clear and convincing
  evidence, we will uphold the trial court findings as long as there is
  substantial evidence to support them although they are contradicted by
  credible evidence."  Vermont Women's Health Center v. Operation Rescue, 159
  Vt. 141, 147, 617 A.2d 411, 414 (1992).  We rely on the factfinder's
  assessment of the credibility of the witnesses and weighing of the
  evidence.  See id.  The test on review is not whether this Court is
  persuaded that there was clear 

  

  and convincing evidence, but whether the factfinder could reasonably have
  concluded that the required factual predicate was highly probable.  See
  Taylor, 481 A.2d  at 153.

       We recognize the significant liberty interest at stake in a civil
  commitment proceeding, but as we observed in Operation Rescue, "even in
  criminal cases, with a beyond-a-reasonable-doubt standard, we take the
  evidence in the light most favorable to the State, and affirm a finding of
  guilt if the evidence fairly and reasonably supports the finding."  159 Vt.
  at 147, 617 A.2d  at 415.  Thus, if the trial court reasonably finds that
  the evidence supporting an order of continued treatment is clear and
  convincing, we will not upset that finding.

                                    III.

       With this standard of review in mind, we turn to N.H.'s claim that the
  evidence failed to support the trial court's conclusion that she was a
  patient in need of further treatment under 18 V.S.A. § 7620.  That
  conclusion required, in turn, a finding that N.H. suffered from a mental
  illness, and that, as a result of that illness, her capacity to exercise
  self-control, judgment, or discretion in the conduct of her affairs and
  social relations was so lessened that she posed a danger to herself or
  others.  See id. § 7101(17).  Mental illness is statutorily defined as a
  "substantial disorder of thought, mood, perception, orientation or memory"
  which grossly impairs judgment, or the ability to recognize reality or meet
  the ordinary demands of life.  Id. § 7101(14).

       N.H. contends the court's conclusion that she suffered from a mental
  illness cannot be sustained under a clear-and-convincing evidence standard
  because there was conflicting expert testimony on the issue.  As noted,
  however, clear and convincing evidence is not synonymous with
  uncontradicted evidence.  See Cregar, 526 N.E.2d  at 1385.  Dr. Malloy
  testified unequivocally that N.H. suffered from a psychotic disorder which
  affected her thought content and ability to function.  Although he
  indicated that his diagnosis was provisional, he used the term to signify
  that the diagnosis was based upon the available information, noting that
  N.H. had refused a number of medical and psychological tests.  Dr. Malloy
  also stated that his diagnosis 

  

  was based in large part upon the decline that he had observed in N.H.'s
  psychological health over several years.  While Dr. Linder, contrary to Dr.
  Malloy, testified that he had not observed any symptoms from which he could
  diagnose a psychosis, he acknowledged that he had spent considerably less
  time with N.H. than Dr. Malloy.  Dr. Linder also conceded that N.H.'s
  condition might constitute a form of personality disorder, which may be
  accompanied by brief psychotic episodes.   

       The trial court was entitled to weigh the testimony of the two
  experts, consider their respective opportunities to observe N.H. over time,
  and evaluate the points on which they agreed and the areas where they
  diverged.  See Operation Rescue, 159 Vt. at 147, 617 A.2d  at 414
  (factfinder is best situated to weigh evidence).  Based on the record
  evidence summarized above, we cannot conclude that the court clearly erred
  in finding by clear and convincing evidence that N.H. suffered from a
  mental illness within the statutory definition. 

       N.H. also contends the evidence failed to support the court's finding
  that her illness so lessened her self-control and judgment that she posed a
  danger of harm to herself or others.  The court relied on the extreme
  nature of N.H.'s assault on her sister, as well as evidence that she had
  engaged in bizarre and violent behavior in the wards, had progressively
  isolated herself at home and in the hospital, and had experienced thought
  blockages at home and in dialogues with staff and psychiatrists.  The
  record as a whole amply supported the court's finding that without the
  structure of continued hospitalization, N.H.'s condition would deteriorate,
  her tenuous grip on self-control and reality would slip further, and she
  would pose a danger to herself or others.  Thus, the court's conclusion
  that N.H. was a patient in need of further treatment was reasonably
  supported by the evidence, and must be upheld. 

       Affirmed.

                               FOR THE COURT:


                               _______________________________________
                               Associate Justice



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                                  Footnotes


  FN1.  Our holding was reached without reference to the Human Services
  Board Order of September 24, 1997.