IN RE KAREN PERRY , 2017 D.C. App. LEXIS 3 ( 2017 )

District of Columbia
Court of Appeals
No. 15-FM-180 JAN 12 2017
IN RE KAREN PERRY,
Appellant.
MRE-21-03
On Appeal from the Superior Court
of the District of Columbia
BEFORE: WASHINGTON, Chief Judge; and EASTERLY, and MCLEESE, Associate
Judges.
JUDGMENT
This case came to be heard on the transcript of record and the briefs filed,
and was argued by counsel. On consideration whereof, and for the reasons set forth in
the opinion filed this date, it is now hereby
ORDERED and ADJUDGED that the reviewing judge’s order affirming
the magistrate judge’s order is vacated, and the case is remanded for further proceedings.
For the Court:
Dated: January 12, 2017.
Opinion by Associate Judge Roy W. McLeese.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
1/12/17
No. 15-FM-180
IN RE KAREN PERRY, APPELLANT.
Appeal from the Superior Court of the District of Columbia
Family Division
(MRE-21-03)
(Hon. Aida L. Melendez, Magistrate Judge)
(Hon. Carol Ann Dalton, Reviewing Judge)
(Argued October 11, 2016 Decided January 12, 2017)
Pierre E. Bergeron for appellant.
Stacy L. Anderson, Senior Assistant Attorney General, with whom Karl A.
Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor
General, and Loren L. AliKhan, Deputy Solicitor General, were on the brief, for
appellee District of Columbia.
Charles H. Fitzpatrick, guardian ad litem for appellant, filed a statement
adopting appellee’s brief.
Before WASHINGTON, Chief Judge, and EASTERLY and MCLEESE, Associate
Judges.
MCLEESE, Associate Judge: In 2004, appellant Karen Perry was
involuntarily committed to a residential facility under the Citizens with Intellectual
Disabilities Act, D.C. Code § 7-1301 et seq. (2012 Repl. & 2016 Supp.), on the
grounds that she had a moderate intellectual disability and needed assistance to
2
develop necessary life skills. In 2012, the District of Columbia Department on
Disability Services moved to have Ms. Perry’s involuntary commitment lifted,
contending that Ms. Perry had only a mild intellectual disability and thus could no
longer properly be involuntarily committed. Through court-appointed counsel,
Ms. Perry opposed the lifting of her involuntary commitment, arguing that
commitment was necessary to ensure that Ms. Perry did not have the option to
leave her residential facility and thus lose access to necessary services. The
magistrate judge denied Ms. Perry’s requests for an evidentiary hearing and for
funds to obtain an expert to assist Ms. Perry’s counsel. Taking into account both
recent and prior evaluations of Ms. Perry, the magistrate judge concluded that there
was a reasonable doubt as to whether Ms. Perry was moderately intellectually
disabled. The magistrate judge therefore terminated Ms. Perry’s involuntary
commitment. In this court, Ms. Perry argues, among other things, that she should
have been granted an evidentiary hearing and the assistance of an expert in
connection with that hearing. We agree that Ms. Perry should have been afforded
an evidentiary hearing. We therefore vacate the judgment and remand the case for
further proceedings.
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I. Facts and Procedural Background
Ms. Perry was involuntarily committed to a residential facility pursuant to
D.C. Code § 7-1303.04, which authorizes such commitment only if the individual
being committed has at least a moderate intellectual disability. To have a moderate
intellectual disability, a person must be at least moderately impaired both
cognitively and adaptively. D.C. Code § 7-1301.03 (2). The court reviewed Ms.
Perry’s commitment annually, as required under D.C. Code § 7-1304.11, and Ms.
Perry was evaluated in connection with those reviews. Although a number of
those evaluations indicated that Ms. Perry’s cognitive functioning was moderately
impaired, some evaluations indicated that Ms. Perry’s cognitive functioning was
instead mildly impaired. Through 2009, the trial court determined that Ms. Perry
was moderately intellectually disabled. In 2010, 2011, and 2012, the trial court
found that Ms. Perry was mildly cognitively impaired and moderately adaptively
impaired, but continued her commitment nonetheless.
In 2012, the Department on Disability Services moved to have Ms. Perry’s
involuntary commitment terminated, arguing that Ms. Perry was only mildly
cognitively impaired. In response, the magistrate judge ordered the District to
arrange for a new psychological evaluation of Ms. Perry. That evaluation was
4
conducted by Dr. William H. Byrd, who diagnosed Ms. Perry as being mildly
cognitively impaired and moderately adaptively impaired.
Ms. Perry filed a motion for an independent psychological evaluation,
pursuant to D.C. Code § 7-1304.04, arguing that Dr. Byrd’s examination did not
provide an adequate assessment of Ms. Perry’s cognitive functioning. The
magistrate judge granted that request and appointed a guardian ad litem (GAL) to
select a psychologist to perform an independent evaluation of Ms. Perry’s level of
intellectual disability. A dispute arose in the trial court about the extent of the
District’s involvement in the selection of the independent evaluator.
In July 2014, the GAL submitted the report of the evaluator, Dr. Brenda
Fawcett, along with his own recommendations.1 Although Ms. Perry’s full-scale
IQ score placed her in the range of moderate cognitive impairment, Dr. Fawcett
1
The trial court initially appointed the GAL for the limited purpose of
selecting an independent evaluator. The GAL subsequently participated more
broadly, both in the trial court and in this court. The trial court appears to have
appointed the GAL as a neutral aid to the court, rather than as an advocate charged
with determining Ms. Perry’s wishes and seeking to advance those wishes. See
generally In re J.J.Z., 630 A.2d 186, 192 n.10 (D.C. 1993) (comparing differing
roles played by GALs appointed as advocates and GALs appointed as neutral
factfinders); S.S. v. D.M., 597 A.2d 870, 876-77 (D.C. 1991) (discussing differing
roles played by GALs in various settings). On remand, the magistrate judge may
wish to clarify both the scope and the nature of the GAL’s role in this case.
5
viewed that score as “a statistical anomaly” and concluded that Ms. Perry’s test
scores as a whole placed Ms. Perry in the range of mild intellectual disability, both
cognitively and adaptively. The GAL recommended that Ms. Perry’s commitment
be terminated based on Dr. Fawcett’s diagnosis.
Ms. Perry contested Dr. Fawcett’s findings. Ms. Perry also requested both
an evidentiary hearing and the appointment of a psychologist, chosen by Ms.
Perry’s counsel, to either conduct a further examination or provide a written report
based on existing data, and to assist counsel in connection with the evidentiary
hearing. After denying Ms. Perry’s requests for an expert and for an evidentiary
hearing, the magistrate judge terminated Ms. Perry’s involuntary commitment.
Ms. Perry filed a motion with the Superior Court seeking review of the magistrate
judge’s order. The reviewing judge affirmed.
II. Discussion
On appeal, “we review the magistrate judge’s factual findings . . . for abuse
of discretion or a clear lack of evidentiary support.” In re C.L.O., 41 A.3d 502,
510 (D.C. 2012) (internal quotation marks omitted). We review alleged errors of
law de novo. Id.
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A. Ms. Perry’s Request for an Evidentiary Hearing
We turn first to Ms. Perry’s argument that the magistrate judge erred by
failing to conduct an evidentiary hearing. We agree.
Under the Citizens with Intellectual Disabilities Act, the court must conduct
annual hearings to review the involuntary commitment of an intellectually disabled
person. D.C. Code § 7-1304.11 (a). Although involuntary-commitment hearings
may be informal, respondents at such hearings have the right to be present, to
testify, to call witnesses and present evidence, and to cross-examine opposing
witnesses. D.C. Code § 7-1304.06. The District suggested at oral argument that
these procedural protections apply only to initial commitment hearings, not to
subsequent annual reviews. We conclude to the contrary. Section 7-1304.06 is not
explicitly limited to initial commitment hearings. Rather, Section 7-1304.06
provides a right to present evidence and to cross-examine witnesses at “hearings”
generally. Moreover, the right to an evidentiary hearing extends to “respondents,”
a term that includes a “person whose . . . continued commitment is being sought in
any proceeding under [Chapter 13 of Title 7 of the D.C. Code].” D.C. Code § 7-
1301.03 (24). Section 7-1304.06 thus provides a right to an evidentiary hearing
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when continued involuntary commitment on the basis of intellectual disability is at
issue. Although this case is in an unusual posture because Ms. Perry seeks her own
continued commitment, Ms. Perry nevertheless is a respondent entitled to the
protections of Section 7-1304.06, because her “continued commitment is being
sought.” We therefore conclude that Ms. Perry had a statutory right to an
evidentiary hearing, at least upon proper request. Cf. D.C. Code §§ 7-1303.09 (a),
.10 (b) (where District seeks to transfer committed person to less restrictive facility
or to discharge committed person from residential care, committed person has right
to evidentiary hearing upon request).
The District argues that although Ms. Perry requested an evidentiary
hearing, she always tied that request to her request for the assistance of an expert.
Thus, the District argues, if the magistrate judge correctly denied Ms. Perry’s
request for the assistance of an expert, then Ms. Perry’s request for an evidentiary
hearing was also properly denied. It is true that Ms. Perry often linked her requests
for an evidentiary hearing and her requests for the assistance of an expert. Ms.
Perry indicated several times in the trial court, however, that she wanted an
evidentiary hearing at least in part in order to cross-examine the experts relied
upon by the District. Moreover, the magistrate judge did not deny Ms. Perry’s
request for an evidentiary hearing on the ground that that request was dependent on
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Ms. Perry’s request for expert assistance. Rather, the magistrate judge denied the
request on the ground that an evidentiary hearing was “not required where the most
recent psychological evaluation meets accepted professional standards, shows the
exercise of sound professional judgment, and is consistent with previous
findings.”2 In upholding the magistrate judge’s ruling, the reviewing judge stated
that there was not “any statutory authority for an evidentiary hearing in the instant
case.” Because Ms. Perry adequately indicated that she was requesting an
evidentiary hearing in part in order to confront the experts relied upon by the
District, and because the trial court denied Ms. Perry’s request on the merits, we
conclude that Ms. Perry preserved an independent claim to an evidentiary hearing.
Ms. Perry reasonably sought an evidentiary hearing in this case to cross-
examine the experts relied upon by the District and to dispute the proper weight to
be given to the most recent psychological evaluation. For the foregoing reasons,
we hold that Ms. Perry was entitled to such an evidentiary hearing. Although the
District suggests that the failure to afford Ms. Perry such a hearing was harmless,
2
In denying Ms. Perry’s request for an evidentiary hearing, the magistrate
judge appeared to rely on D.C. Code § 7-1304.04. Section 7-1304.04, however,
states the standard applicable to requests for an independent comprehensive
evaluation of a respondent. It does not address a respondent’s right to an
evidentiary hearing.
9
we are not confident on the current record that affording Ms. Perry an evidentiary
hearing would not have affected the outcome of the review proceeding. See, e.g.,
In re Ty.B., 878 A.2d 1255, 1267 (D.C. 2005) (“We must determine whether the
error was sufficiently insignificant to give us fair assurance that the judgment was
not substantially swayed by it.”) (brackets and internal quotation marks omitted).
We therefore vacate the judgment and remand the case for the trial court to hold an
evidentiary hearing.3 Cf. White v. United States, 146 A.3d 101 (D.C. 2016)
(vacating judgment and remanding case on ground that trial court failed to conduct
necessary evidentiary hearing).
3
Ms. Perry also raises several challenges to the magistrate judge’s finding
that there was a reasonable doubt as to whether Ms. Perry was moderately
intellectually disabled. Most broadly, Ms. Perry argues that the evidence
compelled the magistrate judge to find beyond a reasonable doubt that Ms. Perry
was at least moderately intellectually impaired. Ms. Perry therefore requests that
we remand the case with instructions that Ms. Perry’s involuntary commitment be
continued. We agree with the reviewing judge, however, that the current record
permitted the magistrate judge to have a reasonable doubt as to whether Ms. Perry
was moderately intellectually disabled. Cf., e.g., Davis v. United States, 564 A.2d
31, 35 (D.C. 1989) (“[W]here the facts admit of more than one interpretation, the
appellate court must defer to the trial court’s judgment.”). Because the magistrate
judge will address the issue of the degree of Ms. Perry’s intellectual disability
again on a different record after the evidentiary hearing, we do not address Ms.
Perry’s other specific challenges at this point.
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B. Ms. Perry’s Request for Expert Assistance
We also address Ms. Perry’s claim that the magistrate judge erred by failing
to provide Ms. Perry with expert assistance in connection with the review hearing.
We conclude that the magistrate judge should further address that issue on remand.
Relying on the Criminal Justice Act, D.C. Code § 11-2601 et seq. (2012
Repl.) and the Citizens with Intellectual Disabilities Act, Ms. Perry asked the
magistrate judge to approve the expenditure of public funds so that Ms. Perry
could obtain an expert who would assist her in connection with the review
proceeding. The magistrate judge denied that request, concluding that the Criminal
Justice Act was inapplicable, because the Act is “a criminal statute pertaining to
representation of indigents in criminal cases” and because the Act specifies that
counsel may only obtain expert services at public expense “if necessary for an
adequate defense.” D.C. Code § 11-2605 (a)-(b). The reviewing judge also
concluded that the Criminal Justice Act was inapplicable.
Interpreting the applicable provisions of law de novo, In re C.L.O., 41 A.3d
at 510, we hold that the trial court has discretionary authority to provide an expert,
at public expense, to assist counsel representing an indigent person who is
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intellectually disabled and whose continued involuntary commitment is at issue in
a review proceeding.
Involuntary commitment proceedings are not criminal in character. See In
re Amey, 40 A.3d 902, 915 (D.C. 2012). One therefore would not leap
immediately to the conclusion that a provision in the Criminal Justice Act would
apply to such proceedings. In a case involving involuntary civil commitment on
the ground of mental illness, however, this court long ago held that “[a] respondent
in a civil commitment case is certainly entitled to the services of a psychiatric
expert upon a showing of financial inability to obtain the expert and a
demonstration that the service is ‘necessary [for] an adequate defense.’” In re
Morrow, 463 A.2d 689, 692 (D.C. 1983) (quoting D.C. Code § 11-2605 (a) (1981)
(Criminal Justice Act provision that authorizes courts to approve payment of expert
for services necessary for adequate defense)). Perhaps for that reason, the Superior
Court Rules for Mental Retardation Proceedings contemplate that appointed
attorneys will submit vouchers for payment under the Criminal Justice Act. Super.
Ct. Ment. Ret. R. 2 (a).
On the other hand, the Citizens with Intellectual Disabilities Act contains its
own provisions authorizing the appointment of counsel and the payment of
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expenses, including expenses associated with experts designated by the court.
D.C. Code §§ 7-1304.02, .12; see also Super. Ct. Ment. Ret. R. 11 (b) (indicating
that counsel in mental-disability proceedings shall be appointed “pursuant to D.C.
Code § 7-1304.02” and “paid in accordance with Criminal Justice Act criteria
established by the Court”).
Both the Criminal Justice Act and the Citizens with Intellectual Disabilities
Act grant trial courts discretionary authority to provide expert assistance, at public
expense, to indigent litigants. Although the Criminal Justice Act uses the term
“necessary,” we have interpreted the Act to require the trial court to assess requests
for such assistance “on a standard of reasonableness.” Jackson v. United States,
768 A.2d 580, 587 (D.C. 2001) (internal quotation marks omitted). Because we
see no material difference between the scope of the trial court’s discretion to
provide expert assistance under the Criminal Justice Act and the scope of that
discretion under the Citizens with Intellectual Disabilities Act, we need not and do
not decide in this case the precise source of the trial court’s authority. Rather, we
hold only that the trial court has discretionary authority to provide expert
assistance, at public expense, to indigent respondents with intellectual disabilities
whose involuntary commitment is at issue.
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The magistrate judge’s order arguably suggests that the magistrate judge in
any event would not have been inclined to provide Ms. Perry with an expert. The
magistrate judge’s exercise of discretion on remand might be affected, however, by
our holding that Ms. Perry is entitled to an evidentiary hearing. On remand, the
magistrate judge therefore should consider anew any request by Ms. Perry for the
assistance of an expert in connection with that evidentiary hearing.
We note that the question whether the magistrate judge should provide Ms.
Perry with expert assistance is distinct from the question whether the magistrate
judge erred in its handling of the most recent independent comprehensive
evaluation conducted pursuant to D.C. Code § 7-1304.04. Cf. Williams v. United
States, 310 A.2d 244, 247 n.4 (D.C. 1973) (noting distinction between appointment
of expert to assist court and appointment of expert to assist litigant). Ms. Perry
claims that the evaluation was not independent, because the District in effect
selected the psychologist who performed the evaluation. The District disputes that
claim. Because the evidentiary hearing may shed light on this factual dispute, we
leave the matter to be further addressed on remand.
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For the foregoing reasons, we vacate the reviewing judge’s order affirming
the magistrate judge’s order and remand the case for further proceedings.
So ordered.