Opinion
NHHCV175040765S
12-11-2018
PROBATE APPEAL OF Faida KANDJRIKA
UNPUBLISHED OPINION
OPINION
Wahla, J.
The question presented on the probate appeal is whether the subject appeal should be sustained because the granting of the Yale Psychiatric Hospital’s petition of commitment was clearly erroneous in view of reliable, probative and substantial evidence on the whole record. The appeal is sustained for the reasons set forth below.
I
FACTUAL & PROCEDURAL CONTEXT
Faida Kandjrika, the plaintiff, has filed this appeal on the grounds that her commitment hearing before the New Haven Probate Court should be sustained pursuant to General Statutes § 45a-186b because the subject hearing was on the record. The record reveals that on or about September 22, 2017, the plaintiff went to Yale Psychiatric Hospital (hospital) seeking treatment at her own accord, i.e., voluntarily. Approximately a month later, the plaintiff revoked her voluntary status. The hospital filed a petition for involuntary commitment with the New Haven Probate Court. On October 27, 2017, the Probate Court held a hearing and issued an order of commitment (first decree). The first decree stated that the Probate Court did not find clear and convincing evidence that the plaintiff has psychiatric disabilities and is dangerous to herself or to others or gravely disabled. The first decree did state, however, that the plaintiff should be committed for the treatment of psychiatric disabilities, and stated that a less restrictive placement was not available. The hospital did not discharge the plaintiff.
This court received a copy of the Probate Court record (record), and a record of the hearings was filed on April 30, 2018, (Entry No. 119.00) stating that the record has been filed with the Clerk’s Office Medical Records. Although the Probate Court was unable to produce a copy of the recording of the hearing, the parties agreed that a transcript prepared by Pullman & Comley, LLC from a recording of the hearing obtained from the New Haven Probate Court prior to the loss or destruction of the original recording is an accurate representation of the proceedings. See Joint Trial Management Statement. For clarity, citations to the transcript will hereafter be referred to as "Probate Tr., ___" and citations to the documents in the probate record will hereafter be referred to as "Probate Record, ___."
On November 17, 2017, the hospital filed a motion for reconsideration alleging that the first order contained a scrivener’s error, as it ordered the patient committed although it stated that she was not gravely disabled or a danger to herself or others. The Probate Court issued an amended decree (amended decree). The amended decree stated that the respondent is "dangerous to others" and should be committed. The hospital again filed a motion for reconsideration, dated December 20, 2017, to change the standard recited in the decree, or, in addition to the standard recited, state that the plaintiff was committed by reason of being a "danger to self" or "gravely disabled." The plaintiff was discharged from the Hospital on December 21, 2017, and the Probate Court did not rule on this second motion for reconsideration.
On December 4, 2017, the plaintiff filed this appeal on the ground that the amended decree is the legal document that deprived her of liberty when clear and convincing evidence had not been presented to support the conclusion that she was dangerous to others. The plaintiff contends that as a matter of fact no evidence was presented to support the commitment criteria established under § 17a-498(c)(3), which in essence requires that the commitment should be based on the following factors: danger to self, danger to others, or grave disability.
II
STANDARD OF REVIEW
In this case the commitment hearing at the Probate Court was held on the record. The plaintiff appealed the Probate Court’s decision pursuant to § 45a-186b. General Statutes § 45a-186b provides in relevant part: "The Superior Court shall affirm the decision of the Court of Probate unless the Superior Court finds that substantial rights of the person appealing have been prejudiced because the findings, inferences, conclusions or decisions are: (1) In violation of the federal or state constitution or the general statutes, (2) in excess of the statutory authority of the Court of Probate, (3) made on unlawful procedure, (4) affected by other error of law, (5) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record, or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the Superior Court finds such prejudice, the Superior Court shall sustain the appeal and, if appropriate, may render a judgment that modifies the Court of Probate’s order, denial or decree or remand the case to the Court of Probate for further proceedings. For the purposes of this section, a remand is a final judgment."
General Statutes § 45a-186(a) provides in relevant part: "Appeals from any decision rendered in any case after a recording is made of the proceedings under section 17a-498, 17a-543, 17a-543a or 17a-685, sections 45a-644 to 45a-667v, inclusive, or section 51-72 or 51-73 shall be on the record and shall not be a trial de novo."
"[A]n appeal from a probate order or decree to the Superior Court is not a civil cause of action. It has no more of the ordinary attributes of a civil action than the original proceedings in the court of probate ... [A]ppeals from probate are not civil actions because it has always been held that the Superior Court, while hearing appeals from probate, sits as a court of probate and not as a constitutional court of general or common-law jurisdiction. It tries the questions presented to it de novo, but in so doing it is ... exercising a special and limited jurisdiction conferred on it by the statute authorizing appeals from probate." (Internal quotation marks omitted.) In re Probate Appeal of Cadle Co., 152 Conn.App. 427, 439, 100 A.3d 30 (2014); see also Papa v. Hoffman, Superior Court, judicial district of New Haven, Docket No. CV-156008077-S (Cronan, J., April 6, 2016). "The Superior Court may not consider or adjudicate issues beyond the scope of those proper for determination by the order or decree attacked ... Inasmuch as the motion for the appeal is made in the Court of Probate and forms a part of the proceedings in that court, no amendment to it may be made in the Superior Court. The Superior Court, therefore, cannot enlarge the scope of the appeal." (Emphasis omitted, internal quotation marks omitted.) In re Probate Appeal of Cadle Co, supra, 439. Moreover, "[a]n appeal from probate does not vacate the decree appealed from nor does it lift the entire cause from the probate court into the superior court. On the contrary, it leaves the entire matter as it was in the probate court, there to be continued with and completed according to law, presenting in the meanwhile to the superior court for redetermination, after a retrial of the facts, the special and limited issues embraced within the particular decree appealed from." (Emphasis omitted, internal quotation marks omitted.) Id., 440.
III
DISCUSSION
In this case, the plaintiff claims that the operative Probate Court decree is the amended decree dated October 26, 2017, issued on November 17, 2017, for a hearing held on October 27, 2017. The Amended Decree states "THE COURT FINDS by clear and convincing evidence that the respondent has psychiatric disabilities and is dangerous to others." (Probate Record, Amended Decree.) The thrust of the plaintiff’s argument is that the appeal should be sustained because the record on appeal is devoid of any evidence, let alone clear and convincing evidence that she was a danger to others. The plaintiff contends that the Probate Court’s findings of danger to others is clearly erroneous. The plaintiff also argues that the decree is clearly erroneous because the decree is dated prior to the hearing. The hospital counters that the October 26 date on the decree is nothing more than a scrivener’s error. The court agrees that the date of October 26, 2017, itself on the decree is most likely an error and could be construed as harmless error. The plaintiff raises a number of additional issues which the court will address in turn. The plaintiff argues that the court should sustain the appeal and either reverse or vacate the order for civil commitment, or remand it to the Probate Court with instructions to vacate the decision.
In response, the hospital argues that the record is replete with evidence that the plaintiff suffered from a psychiatric disability and was gravely disabled and/or a danger to herself. Thus, while the hospital impliedly concedes that there is no evidence that the plaintiff was a danger to others, the hospital argues that the Probate Court intended to order the plaintiff confined, and merely omitted the reference to the standards for which there was the most evidence (namely, grave disability and/or danger to self). It is the defendant’s position that the court should either deny or dismiss the plaintiff’s appeal, or remand the case to the Probate Court with instructions to correct the order of commitment to reflect that the plaintiff was a danger to herself and/or gravely disabled.
A. Constitutional Liberty Interest of the Plaintiff
The plaintiff argues that the "involuntary commitment to a mental hospital, like involuntary commitment of an individual for any reason, is deprivation of liberty which the State cannot accomplish without due process of law." (Internal quotation marks omitted.) Fasulo v. Arefeh, 173 Conn. 473, 476, 378 A.2d 553 (1977). In Fasulo the State Supreme Court goes on to state that "[c]ommitment must be justified on the basis of a legitimate state interest, and the reasons for committing a particular individual must be established in an appropriate proceeding. Equally important, confinement must cease when those reasons no longer exist. See McNeil v. Director, Patuxent Institution, 407 U.S. 245, 249-50, [92 S.Ct. 2083, 32 L.Ed.2d 719 (1972) ]; Jackson v. Indiana, 406 U.S. 715, 738, [92 S.Ct. 1845, 32 L.Ed.2d 435 (1972) ]." (Internal quotation marks omitted.) Fasulo v. Arefeh, supra, 476.
The plaintiff contends that "the authority of the state to confine an individual is contingent upon the individual’s present mental status, which must be one of mental illness amounting to a need for confinement for the individual’s own welfare or the welfare of others or the community ... The original involuntary commitment proceeding can only establish that the state may confine the individual at the time of the hearing and for the period during which the individual is subject to the requisite mental illness." (Citation omitted.) Fasulo v. Arefeh, supra, 173 Conn. 476. The plaintiff cites in support of her position that "the United Supreme Court has recognized, [a]t the least, due process requires that the nature and the duration of commitment bear some reasonable relation to the purpose for which an individual is committed ... Once the purpose of the commitment no longer exists, there is no constitutional basis for the state to continue to deprive the individual of his liberty." (Citation omitted; internal quotation marks omitted) Id., 476-77.
General Statutes § 17a-498(c)(3) provides in relevant part: "If the court finds by clear and convincing evidence that the respondent has psychiatric disabilities and is dangerous to himself or herself or others or gravely disabled, the court shall make an order for his or her commitment, considering whether or not a less restrictive placement is available, to a hospital for psychiatric disabilities to be named in such order, there to be confined for the period of the duration of such psychiatric disabilities or until he or she is discharged or converted to voluntary status pursuant to section 17a-506 in due course of law." See also State v. Long, 268 Conn. 508, 529, 847 A.2d 862, 876, cert. denied, 543 U.S. 969, 125 S.Ct. 424, 160 L.Ed.2d 340 (2004).
The commitment should only continue for the period of the duration of the mental illness or until he or she is discharged in due course of law. The state’s power to confine terminates when the patient’s condition of such mental condition no longer meets the legal standard for confinement. See Fasulo v. Arefeh, supra, 173 Conn. 479. The plaintiff contends that since the state’s power "is measured by a legal standard, the expiration of the state’s power can only be determined in a judicial proceeding which tests the patient’s present mental status against the legal standard for confinement That adjudication cannot be made by medical personnel unguided by the procedural safeguards which cushion the individual from an overzealous exercise of state power when the individual is first threatened with the deprivation of his liberty." Id.
B. Necessary Legal Elements for Commitment
The plaintiff argues that a commitment is a legal standard and not a medical one, as has been enunciated by the State Supreme Court in Fasulo She contends that the issue is not whether the patient would benefit from the inpatient psychiatric treatment. She emphasizes that in order to meet the constitutional and statutory requirements for involuntary requirements for the involuntary commitment, petitioner must submit and have admitted clear and convincing evidence that the respondent is a person with a psychiatric disability, which "means any person who has a mental or emotional condition which has substantial adverse effects on his or her ability to function and who requires care and treatment ..." General Statutes § 17a-495(c). Additionally, the petitioner must prove by clear and convincing evidence that the respondent is a danger to herself or others, which "means there is a substantial risk that physical harm will be inflicted by an individual upon his or her own person or upon another person"; General Statutes § 17a-495(b); or is gravely disabled, which "means that a person, as a result of mental or emotional impairment, is in danger of serious harm as a result of an inability or failure to provide for his or own basic human needs such as essential food, clothing, shelter or safety, and that hospital treatment is necessary and available and that such person is mentally incapable of determining whether or not to accept such treatment because his judgment is impaired by his psychiatric disabilities." General Statutes § 17a-495(b). The court must also consider whether or not a less restrictive placement is available. See General Statutes § 17a-498(c)(3).
C. Clear and Convincing Evidence
The substantive and the only issue before this court is whether the Probate Court’s finding that the plaintiff was "dangerous to others" is supported by the statutory requirement, i.e., clear and convincing evidence. The court agrees with the plaintiff that the Probate Court’s finding that the plaintiff was a danger to others is not supported by clear and convincing evidence and, therefore, is clearly erroneous. Accordingly; the plaintiff’s rights have been prejudiced, and her appeal must be sustained.
The record on appeal provided by the parties to this court is transcripts of sworn testimony and the physician’s certificate from Dr. Gregory Peterson, one of the court-appointed independent psychiatrists. The plaintiff argues and the record supports that Dr. Peterson was not present at the hearing, but in his Physician’s Certificate states that the plaintiff was a person with disability but that she was not a danger to self or others or gravely disabled. (Probate Record, Peterson Physician’s Certificate, p. 1.) Specifically, Dr. Peterson indicated that inpatient hospital treatment was not necessary for the plaintiff because: "patient stable, no symptoms, no S.I. [suicidal ideation]." (Probate Record, Peterson Physician’s Certificate, p. 2.) Dr. Peterson also indicated that a less restrictive placement was appropriate for the plaintiff, writing, "patient stable in all areas, judgment intact." Finally, Dr. Peterson described the plaintiff’s present mental condition as "calm, cooperative, pleasant, no delusions, no paranoia, no hallucinations, no suicidal thoughts. Able to plan, organize and think rationally. Judgment intact. A+O x 3 [alert and oriented times three to person, place and time]." (Probate Record, Peterson Physician’s Certificate, p. 2.) At trial, the Probate Court judge noted that Dr. Peterson’s recommendations meant that the plaintiff would be released on the date of the hearing, October 27, 2017. (Probate Tr. p. 2.)
The Hospital in its brief points out that Dr. Peterson’s report dated October 21, 2017, stated that the plaintiff suffered from schizophrenia. (Probate Record, Peterson Physician’s Certificate, p. 1.)
The record shows that the second court-appointed psychiatrist was Dr. Michael Nelken. The plaintiff contends that Dr. Nelken’s Physician’s Certificate was neither signed nor admitted into evidence. However, Dr. Nelken offered his testimony under oath at the commitment hearing on October 27, 2017. The plaintiff points out and the review of the probate court hearing supports that Dr. Nelken was neither asked nor testified as to whether the plaintiff was a danger to others. Dr. Nelken expressed his concerns about her previous hallucinations, but acknowledged that she was currently taking psychiatric medication and was not experiencing hallucinations. (Probate Tr. pp. 4-5.) The plaintiff highlights that Dr. Nelken’s testimony was more focused on the plaintiff’s family, their Muslim culture and non-traditional healing beliefs (bloodletting), their religious beliefs, and a report that she had stabbed herself, of which he acknowledged he did not have any knowledge. (Probate Tr. pp. 2-4.)
The court finds that Dr. Nelken’s testimony and assertions are primarily premised on hearsay and without substantial evidentiary basis and not supported in the record. The plaintiff clarified that she did not stab herself and offered to show her stomach to everyone at the hearing. (Probate Tr. p. 10.) The record also reveals that the plaintiff and her brothers at the hearing clarified that there was no bloodletting, only a practice called "cupping." (Probate Tr. p. 11; p. 14.)
The Hospital argues that Dr. Nelken testified that the patient suffered from schizoaffective disorder. (Probate Tr. p. 2.) The hospital also points to Dr. Nelken’s Physician’s Certificate dated October 25, 2017, which reports that the patient had no understanding of her condition or needs and lacked insight, and that the patient experienced "command hallucination to kill herself" and was "too confused to mange on her own." (Probate Record, Nelken Physician’s Certificate, pp. 1-2.) Dr. Nelken testified as to the same. (See Probate Tr. p. 2.)
During Dr. Nelken’s testimony he was asked by the Probate Court appointed attorney:
Attorney Carchia: Dr., at the time of the interview with Faida, did you have an interpreter for ----
Dr. Nelken: She-I-I-
The Court: Yes or no, Doctor.
Dr. Nelken: No.(Probate Tr. pp. 2-3.)
The record of hearing reveals that "the hospital has indicated that they believe that she needed an interpreter for at least some of the questioning, or some of the period of the time that she has responded to some things." (Probate Tr. p. 2.) Dr. Nelken was pressed during his testimony at the Probate Court hearing as to where he received the information about the plaintiff’s stabbing incident. He conceded that he did not examine the plaintiff’s stomach to see a scar to evaluate the severity. (Probate Tr. p. 2.) In light of foregoing, this court is concerned as to how much weight is to be accorded to Dr. Nelken’s testimony. Also, Dr. Nelken’s assessment about the hallucination was retrospective.
The plaintiff asserts that the only other witness for the hospital was Dr. Heather Paxton, the plaintiff’s treating psychiatrist. (Probate Tr. p. 5.) The plaintiff claims that Dr. Paxton did not testify that the plaintiff was a danger to others. Dr. Paxton was concerned about medication compliance and family influence. The hospital counters that Dr. Paxton testified that the plaintiff suffered from schizoaffective disorder, hallucination, and had attempted to jump out of second story window to escape her family. (Probate Tr. p. 6.)
Dr. Paxton testified that the plaintiff "said that she had tried to stab her stomach." (Probate Tr p 6.) The Probate Judge inquired, "was there any actual evidence of a stab wound?" Dr. Paxton replied, "[s]o, she is very covered up, and we do not disrobe necessarily." (Probate Tr. p. 6.) Dr. Paxton’s concern about the cultural differences, seeking advice from Ethics Committee Evaluation, and administration of medical care could be arguably well intended; see Probate Tr. p. 8; but the hearing transcripts reveal that the plaintiff and her brother had concerns about the way the hospital, doctors and staff were treating her, i.e., ignoring her. (Probate Tr. p. 18.) The Probate Judge was aware of it and was genuinely concerned about it. It can be reasonably inferred that the doctor patient relationship between the plaintiff, her family and Dr. Paxton were strained to say the least, if not broken.
The record is clear and the court is compelled to conclude that three doctors have offered differing opinions. Dr. Peterson’s report categorically stated that the plaintiff was not a danger to herself, was not a danger to others, and is not gravely disabled. As a matter of fact, Dr. Peterson wrote that the plaintiff was caring well for herself. (Probate Record, Peterson Physician’s Certificate, p. 1.) Dr. Peterson’s report is totally in contrast to Dr. Nelken’s testimony. Dr. Nelken’s stress on confusion is misplaced, and the plaintiff correctly points that confusion is not relevant to the commitment standard. In light of all this and contradictory evidence which is not supported by the record before the court, it would be very hard to make a finding that the plaintiff was a danger to others.
As noted above, the plaintiff argues that the hospital had failed to offer clear and convincing evidence, a statutory prerequisite for commitment. She argues that a finding of danger to others must show that the plaintiff currently presented a "substantial risk that physical harm will be inflicted" on another person, a legal statutory definition according to § 17a-495(b). The plaintiff further argues that "[t]he phrase ‘clear and convincing proof’ denotes a degree of belief that lies between the belief that is required to find the truth or existence of the issuable fact in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution. One court has suggested that ‘clear and convincing proof’ is strong, positive, free from doubt, and full, clear and decisive." (Internal quotation marks omitted.) Dacey v. Connecticut Bar Ass’n, 170 Conn. 520, 536-37, 368 A.2d 125 (1976).
The plaintiff contends that the evidence and admissible facts that tend to demonstrate that a respondent is a danger to others could include things like a significant criminal history of convictions for assaults, testimony from family that one or more of them has been assaulted by the respondent, assaults on peers or staff on the unit, multiple emergency medication administration for assaults or threats of assault on the unit, restrain and seclusion on the unit, or clear and direct threats from the patient to assault a peer or staff documented in the chart and admitted as evidence. The plaintiff claims that no evidence of any of foregoing factors has been presented in this case. Dr. Nelken did not directly or categorically testify to the issue of the plaintiff being a danger to others. The reports of these doctors do not directly address the issue of being a danger to others. At best, the symptoms mentioned in these three doctors’ reports do not seem to agree with each others, but rather, contradict each other. Nevertheless, the plaintiff emphatically argues, and court agrees, that record does support the assertion that the plaintiff is a danger to others.
As for the hospital’s argument that the Probate Court intended to order the plaintiff confined, but merely omitted the reference to the standard for which there was the most evidence, this court is not persuaded. The hospital’s post-trial brief reflects that the hospital filed a motion for reconsideration with the Probate Court, dated December 20, 2018, to change amended decree to reflect that the plaintiff was a danger to herself and/or gravely disabled. General Statutes § 45a-128(b) provides in relevant part: "[A]ny order or decree other than a decree authorizing the sale of real estate made by a court of probate may, in the discretion of the court, be reconsidered and modified or revoked by the court, on the court’s own motion or on the written application of any interested person. Such application shall be made or filed within one hundred twenty days after the date of such order or decree and before any appeal is allowed or after withdrawal of all appeals. The court may reconsider and modify or revoke any such order or decree for any of the following reasons: (1) For any reason, if all parties in interest consent to reconsideration, modification or revocation, or (2) for failure to provide legal notice to a party entitled to notice under law, or (3) to correct a scrivener’s or clerical error, or (4) upon discovery or identification of parties in interest unknown to the court at the time of the order or decree." (Emphasis added.) The plaintiff filed an appeal on December 4, 2017; however, the hospital’s post-trial brief reflects that the hospital did not file its second motion for reconsideration until December 20, 2017, and that the Probate Court never ruled on this second motion. This court notes that, even if the hospital’s motion for reconsideration had been filed before the present appeal, the statute is clear that it is within the Probate Court’s discretion whether to modify its decree. The court agrees with the plaintiff that the Probate Court’s amended decree did not make any findings of danger to self or grave disability and, therefore, those criteria are not in issue. Thus, the operative, amended decree states only that the plaintiff is a danger to others. The substantial rights of the plaintiff have been prejudiced because the Probate Court’s finding that she is a danger to others is clearly erroneous in view of the evidence on the whole record.
D. Whether the Case is Moot
The hospital contends that the case is moot. The plaintiff has been released from the hospital and there is no case or controversy at the present time. The plaintiff counters that her appeal is not moot because she continues to suffer injury and aggrievement for which the court can award relief. The plaintiff was discharged from the hospital on December 21, 2017. She claims that she should have not been committed after October 27, 2017, and should have not lost her liberty. The plaintiff argues that her aggrievement includes the damage done by the decree finding her dangerously mentally ill, the stigma attached to such an order, being in the Department of Mental Health and Addiction Services (DMHAS) and Department of Emergency Services and Public Protection (DESPP) database as dangerously mentally ill, and the implication of the decree on her right to seek damages for wrongful commitment and violations of her patient’s bill of rights. The court agrees with the plaintiff that the case is not moot.
IV
CONCLUSION
For all of the foregoing reasons, the plaintiff’s appeal is sustained and the order of commitment is vacated.
It is So Ordered.