In re G.W. ( 2023 )

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
2nd Circuit Court-Haverhill Probate Division
No. 2021-0525
IN RE G.W.
Argued: November 17, 2022
Opinion Issued: July 13, 2023
John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (Laura E. B. Lombardi, senior assistant attorney general, on the brief
and orally), for the petitioner.
Amy B. Davidson, of Contoocook, on the brief and orally, for the
respondent.
BASSETT, J. The respondent, G.W., appeals a decision of the Circuit
Court (Rappa, J.) ordering her involuntary admission to the Secure Psychiatric
Unit (SPU) of the New Hampshire State Prison for a period of three years with a
conditional discharge when and if clinically appropriate. On appeal, G.W.
challenges the sufficiency of the evidence supporting the trial court’s
conclusion that she met the involuntary admission standard. See RSA 135-
C:34 (2021). She also argues that the court erred when it ordered that she
remain in jail, where she had been detained on pending criminal charges, until
a bed became available at the SPU. We affirm.
I. Factual and Procedural Background
The trial court found, or the record supports, the following facts. G.W.
has, in her lifetime, received a variety of mental health diagnoses, including
depression, post-traumatic stress disorder, and borderline personality disorder.
In May and June 2019, G.W. was arrested on a number of criminal charges,
including criminal threatening and violation of a protective order, based upon
her conduct towards a man with whom she previously had a romantic
relationship and that man’s current partner (the complainants). G.W.’s
conduct leading to her arrest included trespassing on the complainants’
property, contacting them after a protective order was in place, placing two
improvised explosive devices and one incendiary device in the complainants’
vehicles, and making a bomb threat to the workplace of one of the
complainants. Following her arrest, she was detained at the Grafton County
House of Corrections (jail).
In 2020, the superior court found that G.W. was incompetent to stand
trial on those charges and that her competency was not restorable. In July
2021, the superior court determined that G.W. was a danger to herself or
others and ordered, pursuant to RSA 135:17-a, V (2021), that she remain in
custody at the jail “for a period of 90 days to be evaluated for the
appropriateness of involuntary treatment” under RSA 135-C:34. The Grafton
County Attorney (the State) then filed a petition seeking the involuntary
admission of G.W.
A court-appointed psychiatrist evaluated G.W. and issued a report to the
court. See RSA 135-C:40 (2021). The examining psychiatrist opined that G.W.
did not meet the legal standard for involuntary admission under RSA 135-C:34
because she was “not currently displaying signs and symptoms of an Axis I
Mental Disorder” as defined in the applicable psychiatric diagnostic manual.
Following a three-day hearing on the petition in October 2021, the circuit
court concluded that the State had met its burden under RSA 135-C:34 of
proving by clear and convincing evidence that G.W. is “in such mental
condition as a result of mental illness as to create a potentially serious
likelihood of danger to herself or to others.” (Brackets omitted.) The court
acknowledged the examining psychiatrist’s opinion to the contrary but stated
that it was “expressly overrid[ing] that opinion pursuant to . . . RSA 135-C:45[,]
I.” It explained that, based upon G.W.’s behavior prior to and during her
detention, “treatment other than involuntary admission . . . would not be in the
best interest of [G.W.] and the community.” Accordingly, the court ordered that
G.W. be admitted to the New Hampshire Hospital for a period not to exceed
three years with the potential for conditional discharge if and when clinically
appropriate. It further ruled that “[u]ntil a bed becomes available at the New
Hampshire Hospital [G.W.] shall continue to be detained at the Grafton County
House of Corrections.”
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G.W. filed a motion to reconsider, which the court denied. New
Hampshire Hospital intervened and also filed a motion to reconsider,
requesting that the court order G.W. to be admitted to the SPU instead of New
Hampshire Hospital. The court granted that request. The parties agree that
G.W. was subsequently transferred from the jail to the SPU. This appeal
followed.
II. Analysis
On appeal, G.W. claims that the trial court erred when it ordered: (1)
G.W.’s involuntary admission based upon insufficient evidence that she met
the admission standard; and (2) that G.W. remain in jail pending availability of
a bed in the mental health services system. We address each argument in
turn.
A. Sufficiency of the Evidence
The standard for determining whether a person should be admitted to a
receiving facility for treatment on an involuntary basis is “whether the person
is in such mental condition as a result of mental illness as to create a
potentially serious likelihood of danger to [her]self or to others.” RSA 135-C:34.
To conclude that a respondent meets this standard, the court must find: (1)
that the respondent has a “mental illness”; and (2) that the respondent is in
such a mental condition as a result of that illness as to “create a potentially
serious likelihood of danger to [her]self or to others.” Id.; see also In re
Sanborn, 130 N.H. 430, 445 (1988). G.W. argues that there was insufficient
evidence for the court to make each of these predicate findings.
We review sufficiency of the evidence claims as a matter of law and
uphold the trial court’s findings and rulings unless they lack evidentiary
support or are tainted by error of law. In re R.M., 172 N.H. 694, 698 (2019).
The trial court’s factual findings are final “unless they are so plainly erroneous
that such findings could not be reasonably made.” RSA 567-A:4 (2019); see
R.M., 172 N.H. at 698. Accordingly, we do not reweigh the evidence to
determine whether we would have ruled differently. R.M., 172 N.H. at 698.
Instead, we review the record to determine if the trial court’s findings could be
reasonably made given the evidence before it. Id. We will uphold the court’s
decision to admit the respondent on an involuntary basis unless no rational
fact finder could have made the findings supporting that decision by clear and
convincing evidence. In re K.C., 175 N.H. 115, 118 (2022).
i. Sufficiency of Evidence of Mental Illness
G.W. first argues that the trial court’s conclusion that she had a mental
illness was tainted by an error of law. See R.M., 172 N.H. at 698. She
contends that the court did not have authority under RSA 135-C:45, I (2021) to
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override the expert’s medical opinion on “the existence or absence of a mental
illness.” The State counters that RSA 135-C:45, I, “expressly authorizes the
trial court to overrule the recommendation of the court-appointed psychiatrist”
and that, for the purposes of RSA 135-C:34, whether G.W. has a mental illness
is a legal — not a medical — determination to be made by the court. We agree
with the State.
Resolving the parties’ dispute requires us to interpret RSA 135-C:45, I.
We review the trial court’s interpretation of the statute de novo. Doe v.
Comm’r, N.H. Dep’t of Health & Human Servs., 174 N.H. 239, 247 (2021).
When construing a statute, we first look to the language of the statute itself,
and, if possible, construe that language according to its plain and ordinary
meaning. Id. We interpret legislative intent from the statute as written and
will not consider what the legislature might have said or add language that the
legislature did not see fit to include. Id. We construe all parts of a statute
together to effectuate its overall purpose and to avoid an absurd or unjust
result. Id. at 247-48.
As an initial matter, we observe that, for the purposes of RSA chapter
135-C, “mental illness” is defined, in relevant part, as “a substantial
impairment of emotional processes, or of the ability to exercise conscious
control of one’s actions, or of the ability to perceive reality or to reason, when
the impairment is manifested by instances of extremely abnormal behavior or
extremely faulty perceptions.” RSA 135-C:2, X (2021). Importantly, mental
illness is not defined with reference to medical diagnostic criteria. Compare id.,
with RSA 171-B:2 (2022) (establishing involuntary admission standard for
persons found not competent to stand trial under RSA chapter 171-B with
reference to current edition of intellectual disability diagnostic manual). For
the purposes of an involuntary admission proceeding, “mental illness” is
ultimately a statutorily-defined legal concept. See RSA 135-C:2, X.
With this context in mind, we turn to the language of RSA 135-C:45.
RSA 135-C:45, I, entitled “Order of Court,” provides in relevant part:
In hearings held under this chapter, after hearing all the evidence,
the court may order the respondent to be released,
notwithstanding expert testimony, or it may order the person to
submit to some form of treatment other than inpatient treatment
on an involuntary basis, which may include treatment at a
community mental health program approved by the commissioner.
If the examining psychiatrist recommends involuntary admission
to a receiving facility as the most desirable form of treatment, the
court may so order. . . . If the court determines that involuntary
admission to a receiving facility is necessary, but the examining
psychiatrist finds otherwise in his report under RSA 135-C:40, the
court may overrule the recommendation of the psychiatrist only
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after the court finds that treatment other than involuntary
admission to a receiving facility would not be in the best interests
of the person and the community.
RSA 135-C:45, I (emphasis added). G.W. argues that this language does not
give the trial court the authority to “overrule the examining psychiatrist’s
diagnostic conclusions as to the existence or non-existence of a mental illness,”
but, rather, assuming the psychiatrist has already found a mental illness, this
language permits the trial court to overrule the psychiatrist’s recommendation
as to the appropriate treatment. We disagree.
As G.W. acknowledges, the statute provides that, should the court and
the examining psychiatrist disagree as to whether involuntary admission is the
most desirable form of treatment, the court’s determination controls. See id.;
see also In re Sandra H., 150 N.H. 634, 640-41 (2004) (concluding that,
although expert recommended involuntary admission for one year, court could
order admission for two years). Underlying both the court’s and the expert’s
determinations about whether involuntary admission is the proper treatment
are their respective threshold findings about whether the respondent meets the
involuntary admission standard. See Sanborn, 130 N.H. at 445-46 (explaining
that, because involuntary commitment involves a restriction of respondent’s
liberty, it is conditioned upon a finding that RSA 135-C:34 has been met by
clear and convincing evidence). Accordingly, in order to have the power to
overrule the expert’s treatment recommendation under some circumstances,
the court must have the concomitant authority to override the predicate
findings underlying the expert’s recommendation.
The language of the statute reflects this legislative intent. RSA 135-C:45,
I, provides that, if the court finds that involuntary admission to a receiving
facility is necessary but the expert determines otherwise, the “court may
overrule the recommendation of the psychiatrist.” RSA 135-C:45, I. In order to
effectuate the legislative intent that the court be able to order the involuntary
admission to and treatment in a receiving facility, despite an expert opinion
that the involuntary admission standard has not been met and admission is
unnecessary, the court must have the power to overrule the expert regarding
the necessary threshold finding and conclude that the standard has been met.
See id. Similarly, if an examining psychiatrist testifies that a respondent meets
the involuntary admission standard and should be admitted to a receiving
facility, the statute contemplates that the court may nevertheless conclude that
the standard has not been satisfied and the respondent may therefore “be
released.” Id.Moreover, neither RSA 135-C:45, I, nor any other provision of the
statutory scheme, requires the court to defer to the opinion of the court-
appointed psychiatrist on the issue of whether the involuntary treatment
standard has been met, or with respect to the predicate findings of mental
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illness and dangerousness. See RSA 135-C:40, :45. When the statute is read
as a whole, it authorizes the court to overrule the expert’s treatment
recommendation, as well as the expert’s threshold finding underlying the
treatment recommendation: that the involuntary treatment standard has or
has not been met. In short, RSA 135-C:45, I, recognizes the court’s power —
notwithstanding contrary expert testimony — to make the ultimate legal
determination about whether the respondent meets RSA 135-C:34 and to order
appropriate treatment in light of that determination.
This construction of the statute is consistent with our related case law.
We have previously suggested, when addressing a prior version of RSA 135-
C:45, I, with similar language, see RSA 135-B:37 (Supp. 1973) (repealed by
Laws 1986, 212:4), that it is the judge, and not the psychiatrist, who
determines whether the respondent has met the involuntary admission
standard, see State v. Hudson, 119 N.H. 963, 967 (1979) (stressing that “it is
the judge who makes the decision and not the psychiatrist” and observing that
the prior version of this statute “empower[ed] the court to overrule the
recommendation of [the] psychiatrist against involuntary commitment”);
Dolcino v. Clifford, 114 N.H. 420, 421 (1974) (“It is clear that it is the judge of
probate and not the medical experts who determines whether the
[respondent’s] liberty is to be curtailed.”) (decided under prior statute); see also
State v. Bertrand, 123 N.H. 719, 726 (1983) (“Competency to stand trial . . . is
a legal, and not a medical, concept.”). And we have held that the predicate
finding of “dangerousness” is “not a medical concept, but rather a legal one.”
In re Fasi, a/k/a Cass, 132 N.H. 478, 484 (1989).
Given the plain language of RSA 135-C:45, I, the definition of “mental
illness” in RSA 135-C:2, X, and our prior decisions, we hold that RSA 135-
C:45, I, authorizes the trial court to overrule the opinion of the court-appointed
psychiatrist regarding whether the standard for involuntary admission has
been met, and, consequently, whether the prerequisites of a mental illness and
dangerousness have been satisfied. Although the expert’s opinion about
whether the respondent has a mental illness is important in assisting the court
in making its legal determinations under RSA 135-C:34 and in crafting its
order under RSA 135-C:45, the expert’s opinion is not, as G.W. contends,
“dispositive.” Accordingly, we conclude that the trial court did not err when it
made the requisite additional finding under RSA 135-C:45, I, and overruled the
expert’s opinion that G.W. did not have a mental illness.
G.W. next argues that, even if the court could overrule the expert’s
opinion, there was insufficient evidence for the court to conclude that she had
a mental illness. We disagree. We consider the evidence in light of the
definition of mental illness set forth in RSA 135-C:2, X and focus our inquiry
on evidence of G.W.’s “present mental condition.” Fasi, 132 N.H. at 483.
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G.W.’s treating psychiatrist testified that G.W.’s medical records
demonstrate current diagnoses of post-traumatic stress disorder and
borderline personality disorder. Based upon the treating psychiatrist’s
interactions with G.W. — one of which occurred days before his testimony —
he testified that G.W.’s thought processes appeared “disorganized” and that
“her presenting symptoms are consistent with” the diagnosis of borderline
personality disorder. Additionally, during the two years of her detention, G.W.
repeatedly requested and received psychiatric care, including prescription
medication, for these and other mental health issues.
There is evidence upon which the court could have concluded that these
emotional impairments manifested in extremely abnormal behavior. See RSA
135-C:2, X. The court heard testimony about G.W.’s many disciplinary issues
at the jail requiring officers to use force, including two incidents when she
attempted to bite the groin area of officers who were trying to restrain her.
Further, there is evidence in the record that G.W.’s emotional
impairments rendered her unable to perceive reality, manifesting in “extremely
faulty perceptions.” Id. G.W. has a history of requesting psychiatric and
medical appointments, refusing to attend them, and then later claiming that
she has not received appropriate care. For example, at the hearing, G.W. filed
a motion accusing the jail of failing to provide her prescribed medications for
several days. In response, a nurse who is the medical coordinator at the jail
testified that G.W. had refused one of her medications for thirty consecutive
days in the month leading up to the hearing, and that, during that time frame,
medical staff made three appointments for G.W. to see a psychiatrist to discuss
her prescriptions, all of which G.W. refused to attend. Due to the extended
period that G.W. had been off the medication, medical staff discontinued it
until G.W. consulted with a psychiatrist. This evidence demonstrates that, at
the time of the hearing, G.W. was under the extremely faulty perception that
her lack of medication was due to mistreatment by jail staff, not her own
choices and behavior. Based on this record, we conclude that there is
sufficient evidence to support the court’s finding, by clear and convincing
evidence, that G.W. has a mental illness as defined in RSA 135-C:2, X.
ii. Sufficiency of Evidence of Dangerousness
G.W. contends that, even if the court could conclude that she had a
mental illness, there is insufficient evidence that her mental condition as a
result of mental illness “create[d] a potentially serious likelihood of danger to
[her]self or to others.” RSA 135-C:34. The phrase “danger to [her]self or to
others” means either “a threat of, a likelihood of, an attempt to inflict, or an
actual infliction of serious bodily injury to oneself or another or a lack of
capacity to care for one’s own welfare such that there is a likelihood of serious
debilitation if admission is not ordered.” K.C., 175 N.H. at 118 (quotation
omitted). Proof of mental illness alone is not sufficient, RSA 135-C:1, III (2021);
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the petitioner must provide “clear and convincing proof of specific acts
demonstrating actual or likely serious bodily injury.” K.C., 175 N.H. at 118
(quotation omitted). This proof must establish the respondent’s “current
dangerousness” in the sense of a recent dangerous act. Id. “Although, in
assessing present dangerousness, a court may, in its discretion, attach
substantial weight to the evidence of past acts manifesting dangerousness,
proof of past acts is not tantamount to proof of present dangerousness, and is
not, accordingly, the touchstone for commitment.” Id. (quotation omitted).
“Rather, past acts merely help to predict the possibility of future
dangerousness if they are sufficiently recent or sufficiently similar to the acts
giving rise to the petition.” Id. (quotation omitted).
Relying on In the Matter of B.T., 153 N.H. 255 (2006), G.W. argues that
we should impose — in this involuntary non-emergency admission case — the
40-day limitation for determining whether past acts are sufficiently recent to
support a finding of present dangerousness that applies in the emergency
admission context. See RSA 135-C:27 (2021). To the extent that G.W. argues
that we held in B.T. that the 40-day limitation in RSA 135-C:27 applies to non-
emergency admissions, we disagree. Although in B.T. we looked to the
definitions of “danger to himself” and “danger to others” in RSA 135-C:27 to
define similar language in RSA 135-C:34, we did not hold, as G.W. asserts,
“that the same criteria for dangerousness under RSA 135-C:27 appl[y] to both”
emergency and non-emergency admissions. See B.T., 153 N.H. at 260-61. We
concluded that some of the same criteria for dangerousness apply to both types
of admissions. See id. We did not, however, interpret the phrase “danger to
himself or to others” in RSA 135-C:34 as importing the 40-day limitation from
RSA 135-C:27. See id. Nor did we conclude, in determining that the specific
act underlying the petition in B.T. was too remote to support a finding of
dangerousness, that the act was insufficiently recent because it occurred
outside of a 40-day limitation period. See id. at 262. Accordingly, we are not
convinced that B.T. supports application of a “bright-line rule” for determining
whether specific acts are sufficiently recent to establish present dangerousness
under RSA 135-C:34.
Nor are we persuaded by G.W.’s argument that the text of RSA 135-C:34
requires that we impose the 40-day limitation in non-emergency admission
proceedings. Unlike RSA 135-C:27, RSA 135-C:34 does not set forth any time
limitation for consideration of specific acts demonstrating dangerousness.
Compare RSA 135-C:27, with RSA 135-C:34, and RSA 135-C:36, I(b) (2021)
(requiring petition to allege “[t]he specific acts or actions that the petitioner
alleges satisfy RSA 135-C:34” without specifying time frame for conduct). Had
the legislature intended to impose such a time limit for non-emergency
admissions, it would have done so. See RSA 135-C:27, I(a), II (40-day look
back period for emergency admissions); see also Appeal of Roland, 170 N.H.
467, 470 (2017) (“If the legislature wanted to establish a mandatory timeframe,
it knew how to do so.”).
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Additionally, this construction of the statute is consistent with the
structure and overall purpose of the statutory scheme. See RSA 135-C:1, I(c)
(2021) (purpose of RSA chapter 135-C is, in part, to “[p]revent mentally ill
persons from harming themselves or others”); Doe, 174 N.H. at 247-48 (“We
construe all parts of a statute together to effectuate its overall purpose and to
avoid an absurd or unjust result.”). Stricter time standards apply under RSA
135-C:27 than under RSA 135-C:34 because a proceeding under the former
immediately deprives a person of her liberty, see Doe, 174 N.H. at 249-50,
while the latter affords an evidentiary hearing before commitment, see RSA
135-C:43 (2021); RSA 135-C:45, I; see also In re Ronnie Prime, 120 N.H. 849,
851 (1980) (rejecting, under prior version of the statute, same argument G.W.
now raises).
G.W. next contends that, even in the absence of a 40-day limitation, the
evidence of her present dangerousness was inadequate because it was not
recent enough and failed to demonstrate a serious likelihood of danger. With
respect to the latter point, G.W. asserts that there is no proof that her conduct
resulted in any actual harm. Proof of past infliction of actual harm is not,
however, necessary. To show that a person is a danger to others requires proof
of “a threat of, a likelihood of, an attempt to inflict, or an actual infliction of
serious bodily injury” on another. K.C., 175 N.H. at 118 (quotation omitted).
There is ample evidence in the record of G.W.’s attempts to harm others to
prove that she is likely to inflict or attempt to inflict “serious bodily injury” on
others if released. Id.
The chief of police, who participated in the investigation of G.W.’s alleged
criminal conduct, testified that G.W. was arrested in May 2019 for placing two
improvised explosive devices in the complainants’ vehicles. Although neither
device detonated or caused harm, one of the devices was capable of creating
the chemical reaction necessary for an explosion. The chief of police testified
that, had that device been constructed more effectively, it “could have very
seriously hurt somebody” due to its potential to explode while someone was
driving the vehicle. We are not persuaded by G.W.’s contention that eyewitness
testimony was necessary to establish that she was the person who placed these
devices. The chief of police testified at length about how he and other officers
conducted the investigation and what evidence they collected, which led them
to conclude that G.W. was responsible. The trial court found him credible and
we owe deference to that factual finding. See R.M., 172 N.H. at 698.
Additionally, after her first arrest and release on bail, G.W. engaged in
dangerous behavior. Despite a bail condition that she have no contact with the
complainants, there was evidence that she placed an incendiary device in one
of the complainants’ vehicles. A week later, the police intercepted G.W. as she
approached the complainants’ house at night with several items that could be
used to inflict serious bodily harm, including hypodermic needles, OxyContin,
pliers, a box cutter, and a screwdriver. Notwithstanding the court-appointed
9
psychiatrist’s ultimate conclusions to the contrary, her report stated that
G.W.’s behavior towards the complainants “is concerning and presents a
danger to” them.
There is also evidence establishing a serious likelihood that, if released,
G.W. would continue this pattern of behavior. See Fasi, 132 N.H. at 485(involuntary admission is ordered “not for what one has done, but for what one
will do” (quotation omitted)). Despite her detention, G.W.’s fixation on the
complainants did not cease. In 2020, she sent approximately eleven or twelve
letters to individuals or entities connected to the complainants, or to the
criminal charges, often in an attempt to communicate a message to the
complainants. Further, there was substantial evidence that G.W.
inconsistently took her psychiatric medications while detained. The court-
appointed psychiatrist testified that G.W.’s inability to maintain consistent
treatment in the structured jail environment indicated that she would likely
inconsistently participate in treatment if released, which would be “dangerous.”
Based on this record, there is sufficient evidence to support the court’s
conclusion, by clear and convincing evidence, that G.W.’s mental condition as a
result of mental illness posed a serious likelihood of danger to others.
Finally, G.W. argues that this evidence is insufficient to support her
admission because the above specific acts of dangerousness did not occur
sufficiently close in time to the petition for involuntary admission. Whether
past conduct is sufficiently recent “depend[s] on the nature and circumstances
of the act, the history of the person in question and the probative force of the
other evidence adduced to prove dangerous propensity.” Fasi, 132 N.H. at 485.
The primary acts of dangerousness alleged in the petition were G.W.’s
alleged criminal conduct occurring in April, May, and June of 2019. Although
these acts occurred well before the petition was filed in September 2021, G.W.
continued to engage in similar conduct — despite her detention in jail. The
record contains evidence that she was still attempting to contact the
complainants while detained in 2020. Further, she attempted to inflict
physical harm on others even while in the restrictive environment of the jail.
For example, approximately six months prior to the filing of the petition, G.W.
resisted and attempted to harm officers who were attempting to move her to a
different unit. After officers had restrained G.W.’s feet and hands, she
attempted to trip an officer, and, even after officers began carrying G.W. by her
arms and legs, she attempted to bite an officer in the groin area. Whether or
not this specific conduct rises to the level of an attempt to inflict “serious bodily
injury,” it suggests, when considered in context with G.W.’s pre-detention
conduct, that if she were to be released to a less-restrictive environment, she
would be likely to attempt to inflict serious bodily injury on others. See K.C.,
175 N.H. at 118. Given these circumstances, we conclude that the evidence is
sufficient to support the trial court’s finding of current dangerousness.
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In sum, we conclude that a rational fact finder could determine by clear
and convincing evidence, as the trial court did, that G.W. has a mental illness
and that she is in such a mental condition as a result of her illness as to create
a potentially serious likelihood of danger to others. The trial court therefore
did not err when it ordered that G.W. be involuntarily admitted to a receiving
facility. See RSA 135-C:34.
B. Legality of Continued Detention at the Jail
G.W. also challenges the trial court’s ruling that she continue to be
detained at the jail until a bed became available at the SPU. She argues that
there is no statutory authority that permitted the court to detain her in jail
after it ordered her involuntary admission. She further contends that the
court’s order, which could have resulted in her indefinite confinement in jail,
violated her due process rights. The State counters that this issue is moot
because, within a month of the court’s ruling, G.W. was transferred from the
jail to the SPU. Nonetheless, G.W. urges us to decide the issue because it
“involves a pressing public interest” and “presents an issue capable of
repetition, yet evading review.”
“[T]he question of mootness is one of convenience and discretion and is
not subject to hard-and-fast rules.” Appeal of Hinsdale Fed. of Teachers, 133
N.H. 272, 276 (1990) (quotation omitted). “Generally, however, a matter is
moot when it no longer presents a justiciable controversy because issues
involved have become academic or dead.” Id. (quotation omitted). Because it is
undisputed that G.W. has already been transferred out of the jail and into the
SPU, we agree with the State that this issue is moot. We are not convinced
that this case presents a sufficiently pressing issue of public interest or that it
is capable of repetition yet evading review such that we should reach the
merits. See id. We are mindful that there are likely to be material changes to
New Hampshire’s mental health services system in the coming year. See Doe v.
Comm’r, N.H. Dep’t of Health & Human Servs., ___ F. Supp. 3d ___, ____, Civil
No. 18-cv-1039-LM, 2023 WL 2186458, at *5-8 (D.N.H. Feb. 23, 2023) (holding
that Commissioner violated intervenor hospitals’ Fourth Amendment rights by
failing to expeditiously accept the transfer into designated receiving facilities of
individuals involuntarily admitted on an emergency basis); Doe v. Comm’r,
N.H. Dep’t of Health & Human Servs., Civil No. 18-cv-1039-LM (D.N.H. May 17,
2023) (requiring that Commissioner comply within 12 months with permanent
injunction enjoining violation of hospitals’ rights).
III. Conclusion
We conclude that the trial court did not err when it ordered that G.W. be
involuntarily admitted to the SPU under RSA 135-C:34. We do not reach the
issue of whether the court erred when it ordered G.W. to remain at the jail
pending bed availability at the SPU because that issue is now moot. Any
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issues raised in the notice of appeal, but not briefed, are deemed waived. See
State v. Blackmer, 149 N.H. 47, 49 (2003).
Affirmed.
HICKS, HANTZ MARCONI, and DONOVAN, JJ., concurred.
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