2018 Mass. App. Div. 35

February 28, 2018

Appellate Division Northern District

Court Below: District Court, Campbridge Division

Present: Coven, P J., Crane & Flynn, JJ.

Appeals, Mootness.

Practice, Civil, Commitment.

Diane M. Geraghty Hall for the petitioner.

Anne Ravaud Kealy for the respondent.

FLYNN, J. The appellant, T.C., appeals from the trial court's order authorizing civil commitment under G.L. c. 123, §§7 and 8 and medical treatment under G.L.c. 123, §8B on August 16, 2016. T.C. filed a notice of appeal on August 23, 2016. She was discharged on September 28, 2016.

1. Background. T.C. was admitted to the hospital after having been picked up by the police under G.L. c. 123, §12 for delusional thinking. On admission, she was found to be very pressured with paranoid and grandiose delusions about people trafficking her. She was found to be paranoid, frightened, and did not trust anyone. She had poor oral intake and was very distressed. Petitions for civil commitment and authorization for treatment were filed on August 9, 2016, and a notice of hearing on the petitions issued on August 9 for a hearing on August 16 at 2:00 P.M.

Over the objection of T.C.'s counsel, the hearing was moved from 2:00 P.M. to 12:00 P.M. on August 16, 2016. At the start of the hearing, T.C.'s counsel also objected to the hospital calling T.C.'s mother as a witness claiming that she had no notice of the witness being called. While T.C.'s counsel had never asked whom the hospital was calling as a witness, the trial court, in response to this objection, did give T.C.'s counsel time to speak to the witness prior to starting the hearing after a brief recess.

T.C.'s mother provided testimony about T.C.'s history and described her recent behaviors prior to the hospitalization wherein she described T.C. as spaced out, difficult to communicate with, and confused. She indicated that she went to the police station based on her concerns about T.C. and that the police then picked her up.

The only other witness, Dr. Stephanie Valcourt ("Valcourt"), the attending psychiatrist, testified that on evaluation, she found T.C. to have paranoid and grandiose delusions about her family and other people trafficking her. She did not think her mother and grandmother were who they claimed to be, and she believed her mother was not her mother and that her mother and father were known famous celebrities. T.C. believed that her family was involved in this trafficking ring, and that her mother was evil and sold her into this ring when she was eight years old. T.C. did not trust anyone and did not feel safe at home in her apartment. She believed that there were three girls in Miami who were trying to take over her life and they were somehow involved in the issuance of the §12 on her. T.C. also was found to be very frightened in the hospital, thinking that she might be trafficked, harmed, and stalked. The doctor described her as having mood lability, and being distressed and distracted at times. T.C.'s sleep and oral intake were found to be poor, and her lab tests revealed

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that she had ketones in her urine on admission, which indicated that her intake was poor prior to the hospitalization.

Dr Valcourt testified she was of the opinion that T.C. suffered from a mental illness with a diagnosis of schizophrenia with persecutory delusions that others were intencling to harm her and that these delusions were interfering with her life and functioning.

Dr. Valcourt described T.C. as not directly posing a risk of harm to herself by suicide although she noted that T.C. did have a suicide attempt in 2013, her symptoms were currently severe, and that there may be a risk. She also testified that T.C. did not pose a risk of harm to others, but did note that she had assaulted a police officer in the past while delusional. Dr. Valcourt gave her opinion that T.C.'s judgment was impaired by her illness and that put her at risk of harm given her delusional beliefs that cause her to not trust anyone and feeling unsafe. She was concerned that T.C. would be vulnerable to the thought of suicide and to assaulting others. She was further concerned that T.C. would act on these delusional beliefs and planned to go leave the area so that no one could hurt her, yet she had no place to go and no plans for any travel. Dr. Valcourt was also concerned that she could not care for herself outside of the hospital given that she was not eating adequately prior to her hospitalization and was so preoccupied and distracted by her delusions. The doctor testified that T.C. had no insight into her condition and that there were no less restrictive alternative settings other than an inpatient psychiatric facility.

The trial court foWld that the petitioner had met its burden and allowed the commitment petition for up to six months. After hearing further testimony on the G.L. c. 123, §8B petition, the trial court also allowed that petition and ordered treatment with antipsychotic medications.

2. Discussion. a. Mootness. The hospital asserts that the matter is moot, in that T.C. has been discharged and the issues raised are not capable of repetition. The hospital further argues that because T.C. does not continue to have a personal stake or any cognizable interest in the outcome of this case, her claims are purely speculative. T.C. claims that this matter is not moot, and that she still has a substantial stake in the resolution of this appeal, despite her discharge.

"[L]itigation is considered moot when the party who claimed to be aggrieved ceases to have a personal stake in its outcome." Globe Newspaper Co. v. Chief Med. Examiner, 404 Mass. 132, 134 (1989), quoting Blake v. Massachusetts Parole Bd., 369 Mass. 701, 703 (1976). 'The general rule is that courts ordinarily will not decide moot questions." Norwood Hosp. v. Munoz, 409 Mass. 116 (1991). Courts have considered cases if an issue is moot when the matter is "capable of repetition, yet evades review." Kane v. Commissioner of Correction, 395 Mass. 1002 (1985), quoting Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 515 (1911). T.C. has been discharged from the hospital and is no longer subject to the orders of the court. As such, she no longer has a stake in the outcome of the case.

However, Massachusetts courts have consistently held that cases involving commi1ment and trea1ment of mentally ill persons are generally considered matters of public importance and are capable of repetition and evade review. Newton-Wellesley Hosp. v. Magrini, 451 Mass. 777, 782 (2008), citing Guardianship of Doe, 391 Mass. 614, 618 (1984); Acting Supt. of Bournewood Hosp. v. Baker, 431 Mass. 101, 103 (2000). It is within the court's discretion to decide an issue that is moot where it

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meets the above outlined factors. Newton-Wellesley Hosp., supra at 783. There have been many mental health cases in which courts have exercised their discretion and decided cases where the appellants are no longer subject to the orders of the court Matter of N.L, 476 Mass. 632 (2017); Newton-Wellesley Hosp., supra; Acting Supt. of Bournewood Hosp., supra. We have stated that the holdings in the Newton-Wellesley and Bournewood cases on mootness have not been interpreted to mean that all cases involving issues on mental illness are never moot Matter of LC., 2015 Mass. App. Div. 98, 100. Specifically, this Division has stated the issue of legal sufficiency of the evidence has been found to be unique to particular cases, to be uolikely to arise in similar circumstances, and would have little or no precedential value and therefore have been deemed moot. Id. at 100-101; In Re: Commitment of K.R., 2012 Mass. App. Div. 229, 230; BayRidge Hosp. v.]ackson, 2010 Mass. App. Div. 12. We so find here.

T.C. argues that her appeal is not moot because, as a result of her civil commitment, her name and other information are transmitted to the department of criminal justice information service. G.L. c. 123, §36C. She further notes that this information at the criminal justice information service affects her Second Amendment right to be issued a firearm identification card or a license to carry a firearm. However, as to the fireanns issue, there is no evidence or any mention that T.C. ever applied for a license to carry a firearm or expressed any interest in doing so. This Division dealt with a similar claim of mootness and Second Amendment rights in a recent case involving a commitment under G.L.c. 123, §35. Matter of K.M., 2017 Mass. App. Div. 93. In the K.M. case, the appellant claimed that the appeal was not moot because the commitment precluded her from obtaining a license to cany a firearm for at least five years. Id. In that case, as in the instant matter, there was no evidence that the respondent ever applied for a license or expressed any interest in doing so. Id. at 94. This Division "decline[d] to exercise [its] discretion to address issues concerning the consequences of the order of commitment upon any person's right to seek a license to carry a firearm or an FID card where the current respondent is not aggrieved thereby and has not argued that issue in her brief other than to present it as a speculative loss that she has neither sustained nor demonstrated any likelihood of doing so." Id.

Clearly, T.C. has presented no evidence she ever owned a gun or expressed a present interest in doing so. "Courts decline to [decide] moot cases because (a) only factually concrete disputes are capable of resolution through the adversary process, (b) it is feared that the parties will not adequately represent positions in which they no longer have a personal stake, (c) the adjudication of hypothetical disputes would encroach on the legislative domain, and (d) judicial economy requires that insubstantial controversies not be litigated." Matter of Sturtz, 410 Mass. 58, 60 (1991), quoting Wolf v. Commissioner of Pub. Welfare, 367 Mass. 293, 298 (1975). We so decline in this matter. See Matter of J.C., 2018 Mass. App. Div. 19 (No. 17-ADMH101NO, issued February 20, 2018).

T.C. argues that even the single fact of the finding of commitment permanently stigmatizes her with the label of being mentally ill and dangerous and this constitutes an issue of great public importance. She further claims that the involuntary commitment "could" prevent her from various types of employment, but, again, she has not made any type of claim or reference of any actual harm or other impact on employment or the prospect of any employment

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This mere fact of general stigmatizing or future employment interference, without more, is somewhat speculative, and such would require the appellate courts to review every case of this nature, on the sufficiency of the evidence, even though they are otherwise moot We decline to do so.

T.C. also claims that in the absence of written findings of fact and conclusions of law it is impossible to ascertain whether the trial judge applied the requisite standard of proof and how she concluded that the evidence presented met the standard and that this somehow prejudiced her client. There are no statutory mandates for a trial judge hearing a commitment matter to issue written findings, T.C. has not specified any legal requirement for the trial court in this matter to have issued any written findings. The trial judge in the instant matter clearly relied on the opinion testimony of the attending psychiatrist and issued the order based on that reliance. The record clearly supports the court's findings. Commonwealth v. Parham, 390 Mass. 833, 838 (1984); Commonwealth v. Gaulden, 383 Mass. 543, 547 (1981). We find no error in the lack of written findings. See Matter of AD., 2017 Mass. App. Div. 183, 184; Matter of D.S., 2017 Mass. App. Div. 157, 159.

b. Petition. Citing to Matter of S.S., 2016 Mass. App. Div. 101, where we held that it was a violation of a respondent's right to procedural due process to order commitment on the only ground supported by the evidence when this ground was not alleged in the petition, id. at 103, T.C. argues, without specificity, that the trial court "appeared" to have allowed the commitment on evidence not alleged in the petition, which was based on a substantial risk of serious harm to herself. Indeed, as the trial court was not required to, and did not, make findings, the appellant alleges that she does not know on what evidence the trial judge based her decision to commit T.C.

The evidence that was presented by way of the testimony of Dr. Valcourt in response to questions of T.C.'s impaired judgment placing her at risk of harm, stated that given her concerns about others intending her harm, T.C. would be vulnerable to the thought of suicide, assaulting others as both have occurred in the past, and that she may be vulnerable if she is not able to identify anyone to trust. The doctor further indicated that she was concerned about her ability to care for herself outside of the hospital given that she was not eating adequately before she came into the hospital because she had been so preoccupied and distracted by the delusions.

The evidence presented by the hospital in the instant matter was clearly sufficient to support the court's order of commitment. Dr. Valcourt stated that T.C. suffered from a mental illness, and diagnosed her with schizophrenia with persecutory delusions. She indicated that T.C. believed that she was being trafficked and that her family was involved in this. Testimony was given that T.C. did not trust anyone and that she did not feel safe at home or in the hospital and was very frightened of being harmed in some way. Her sleep was noted to be poor as well as her oral intake. The doctor indicated that the delusions were distressing to T.C. and interfered with her functioning. She opined that her impaired judgment did put her at risk of harm given her delusional beliefs by thoughts of suicide, assaulting others, and her inability to take in adequate nutrition. She also opined that there was no less restrictive alternative setting available or appropriate for her. There was no evidence from the respondent or any other clinical personnel to contradict the doctor's testimony on the presence of a mental illness and an imminent risk of harm.

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c. Hearing and witness. Lastly, T.C. claims that the court violated her fundamental due process rights by moving the start of the hearing from 2:00 P.M. to 12:00 P.M. without adequate notice and by allowing testimony from a witness without giving notice to T.C. We exercise our discretion to reach the issue. See In re Bolduc, 2001 Mass. App. Div. 4 (exercising discretion to reach due process considerations that were moot). "A fundamental requisite of 'procedural' due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner.' Armstrong v. Manzo, 380 U.S. 545,552 (1965). The concept is flexible, see Roe v. Attorney Gen., 434 Mass. 418, 427 (2001), and the features of the required hearing will be determined by the 'nature of the case.' Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)." Querubin v. Commonwealth, 440 Mass. 108, 117 (2003).

T.C. claims that the court was required to do more than simply allow a few moments for T.C.'s counsel to speak to the witness. She further claims that the lack of notice somehow deprived her of the right to prepare a meaningful defense, without presenting any evidence or argument of actual prejudice. Furthermore, she fails to state any statute, rule, or case regarding this alleged requirement for being notified of any witnesses to be called.

Appeal dismissed.