People ex rel. Vivekanathan

Opinion by

JUDGE FOX

1 Respondent, Gabriel Vivekanathan, appeals the district court's order upholding his certification, pursuant to section 27-65-107, C.R.$.2013, for involuntary commitment and treatment at the Colorado Mental Health Institute at Pueblo (CMHIP). We conclude that the appeal is moot.

I. Facts and Procedural History

T2 Respondent, a twenty-five-year-old man, has suffered from schizophrenia since he was approximately sixteen years old. After he was hospitalized in April 2018 because of his mental illness, he and his mother sought voluntary treatment at an inpatient mental health facility called Choice House. In the next two months, Vivekanathan left Choice House twice. The second time Vivek-anathan left, he was found by police and taken to Centennial Peaks Hospital for a seventy-two-hour involuntary commitment pursuant to section 27-65-105, C.R.S.2018.

T3 A Centennial Peaks psychiatrist then filed with the Larimer County District Court a "Notice of Certification and Certification for Short-Term Treatment," which certified respondent for involuntary commitment to CMHIP based on the psychiatrist's finding that Vivekanathan was "gravely disabled" as a result of his mental illness. The psychiatrist later explained that he sought to transfer Vivekanathan to CMHIP because Centennial Peaks is an acute stabilization unit with normal stays of only three to five days, whereas CMHIP is designed for longer-term inpatient treatment.

T4 Three days after the psychiatrist certified Vivekanathan for involuntary commitment at CMHIP, Vivekanathan submitted a letter to the district court, objecting to the certification and requesting a hearing. The court appointed counsel to represent Viveka-nathan, and counsel was notified of her appointment five days later. The following day, Vivekanathan's counsel again requested a hearing, and the court held a hearing twelve days after Vivekanathan's initial request.¹

T5 At the July 1, 2013 hearing, the Centennial Peaks psychiatrist testified by telephone and Vivekanathan and his mother testified in person. The district court upheld the certification, concluding that "[Vivekana-than] is mentally ill and as a result of that illness is gravely disabled [and al danger to self," ²

16 Vivekanathan appelals the order upholding his certification.

T7 On August 12, 2018, after this appeal was lodged and before the Larimer County Attorney's Office filed a response, Vivekana-than's civil commitment was terminated early by a different physician, thus raising the issue of whether a live controversy remains. After this court was notified of this development, we issued a September 18, 2018 order to show cause why this appeal is not moot as a result of the termination of Vivekanathan's civil commitment.

1] 8 Vivekanathan argues that the appeal is not moot because "next time [Vivekanathan] is deemed to have run away or wandered from an institutional setting, the same physi-clan will likely seek to re-certify him for short-term commitment on the exact same erroneous grounds." Accordingly, he asserts that this is an issue "capable of repetition yet evading review." The state concurs. We disagree and conclude that the appeal is moot.

II. Mootness Analysis

T9 In certain cases, an appeal of a short-term mental health treatment order does not become moot when the order expires if the issue on appeal is capable of repetition but evading review. See, eg., ford v. People, 2 P.3d 120, 124 (Colo.2000); People in Interest of Ofengand, 183 P.3d 688, 691 (Colo.

1 10 However, in the cited cases, the issue on appeal was a procedural issue relating to the particular circumstances in which the short-term treatment order was entered. See Gilford, 2 P.8d at 122 (whether failure to comply with the statutory requirement that petition seeking certification for long-term care and treatment be personally delivered divests the trial court of personal jurisdiction); Ofengand, 183 P.3d at 691 (whether respondent validly waived her right to counsel); People in Interest of Hoyiman, 865 P.2d 918, 921 (Colo.App.1993) (whether Colorado citizens have statutory right to jury hearing on factual issues supporting short-term treatment certification). These cases addressed procedural issues that were capa-bie of repetition yet evading review, and thus the exception to the mootness doctrine applied.

{11 In People in Interest of King, 795 P.2d 273, 274 (Colo.App.1990), the division addressed a patient's challenge to a short-term commitment order because the record reflected that he had been repeatedly subject to short-term treatment orders. Thus, the division concluded that the matter was capable of being, and even likely to be, repeated.

112 In this case, however, Vivekana-than is not seeking review of a procedural matter related to his treatment. Nor does the record disclose how many times he has been committed previously, or under what circumstances. While Vivekanathan's response to the show cause order represents that he has been "subject to compulsory in-stitutionalizations previously (with one occurring just six weeks prior to the one at issue [here]), and [that twol institutionalizations were requested on the exact same grounds by the exact same physician," the record is insufficient as to this representation.³ The Centennial Peaks psychiatrist vaguely alluded to a prior hospitalization, but neither counsel asked him about the cireumstances of that hospitalization, or about the cireum-stances of any prior civil commitment.

1 13 The issue Vivekanathan argues in this appeal is whether the commitment order was supported by evidence submitted at the July 1, 2018 hearing. Vivekanathan points to the court's finding that he is gravely disabled. He argues that his cireumstances do not satisfy the statutory requirement that he be gravely disabled, and that the evidence only supported a finding that he has mental illness.

T 14 Whether Vivekanathan is gravely disabled: is a fact-specific determination, and it depends on his condition at the time the finding is made. Thus, even if the district court erred in making the finding in the July 2018 order, this finding does not determine whether at some point in the future Viveka-nathan may be found to be gravely disabled. Therefore, the particular issue of whether the July 2018 finding of "gravely disabled" was erroneous has become moot. Vivekana-than's release leaves nothing for us to adjudicate, and our ruling on the district court's order would have no practical effect. See Trinidad Sch. Dist. No. 1 v. Lopes, 963 P.2d 1095, 1102 (Colo.1998) ("An issue becomes moot when the relief granted by the court would not have a practical effect upon an existing controversy."). Any decision on the merits would result in an advisory opinion, and we should not issue such opinions.

115 On this record, any suggestion that Vivekanathan would be subject to the same action again is mere speculation. Seq, e.g.. Wetherhorn v. Alaska Psychiatric Inst., 156 P.3d 371, 381 (Alaska 2007) (where the patient was committed based on a set of facts establishing a grave disability, the court concluded that the facts were specific to her condition at, and immediately before, the hearing and any subsequent commitment "would be based on a different set of facts specific to [a] different" cireumstance and thus not capable of repetition); In re Joseph P., 406 lll.App.3d 341, 348 IIl.Dec. 107, 948 N.E.2d 715, 719-20 (2010) (concluding that the patient did not meet his burden to show a substantial likelihood that the issue, and its resolution, would recur where the order appealed was based on his condition at a specific time and any determination as to the sufficiency of the evidence supporting that order would have no impact on future litigation); In Interest of W.O., 678 NW.2d 264, 267 (N.D.2004) (appeal was rendered moot where the trial court entered an order for less restrictive treatment); E.S. v. State, 178 Vt. 519, 872 A2d 356, 359 (2005) (where a mental health patient had been released, the court concluded that an appellate ruling would not affect the former patient's eustodial status and no exception to mootness existed).

{ 16 Vivekanathan's appeal presents issues that have become moot as a result of the termination of the civil commitment order.

{17 While we need not reach the merits, we disagree with the dissent's conclusion that there is insufficient evidence to support the district court's determination that Vivekanathan is gravely disabled.⁴

1 18 The appeal is dismissed.

JUDGE BOORAS concurs. JUDGE HAWTHORNE dissents.

1 . Section 27-65-107 requires a court to hold a hearing within ten days of the respondent's request. Although the court did not hold the hearing until twelve days after Vivekanathan's request, we do not address whether this is an independent basis for reversal because Vivekana-than did not argue it as such and because we conclude this appeal is now moot. See Gilford v. People, 2 P.3d 120, 124 (Colo.2000) ("Deviations from the statutory process governing civil commitment proceedings, however minor, are subject to exacting appellate review, for even the - slightest departure from these codified procedures can raise profound constitutional concerns."); People in Interest of Lloyd-Pellman, 844 P.2d 1309, 1311 (Colo.App.1992) ("Because of the curtailment of personal liberty which results from certification of mental illness, strict adherence to the procedural requirements of the civil commitment statutes is required."); cf.People in Interest of Lynch, 783 P.2d 848, 852 (Colo.1989) (no need to vacate certification when hearing was held fifteen days after request because respondent had waived ten-day hearing requirement).

2 . Although the trial court found that Vivekana-than was both gravely disabled and a danger to himself, only gravely disabled was alleged in the request for commitment. In any event, the mootness analysis is the same for each. |

3 . Dr. Rayburn testified that he had known Vivek-anathan "since his first admission to Centennial Peaks Hospital, which was ... on the 17th of April of 2013." The doctor testified that Viveka-nathan "was discharged on the Ist of May and then readmitted on the 13th of June." His readmission occurred after he "began decompensat-ing with increasing auditory hallucinations, increasing paranoid, increasing ... psychomotor agitation{, and] voices in his head telling him to flee[.]"

4 . Even if this appeal were not moot, we would affirm on the merits. We disagree with the merits analysis the dissent presents. Even while he was hospitalized, Vivekanathan expressed an ""intense fear" that he was sent to Pueblo's mental health facility "to be killed." He views the facility as an "unsafe place" and is anxious, paranoid and "persistently responding to internal stimuli, including voices. He believes there are invisible people surrounding him at all times." Vivekana-than believes he is part of a "hypnosis game" where he is in a trance[.] Dr. Rayburn opined that Vivekanathan has "very little insight" into his condition and that he needs to be in a high intensity setting in order for him to stabilize. If he does not stabilize, Dr. Rayburn opines that: "he will have a progressive downhill coursel,] as that is the nature of his illness." According to Dr. Rayburn, an intensely supervised setting is "vital" to giving Vivekanathan the "best opportunity for responsive medications," and stabilization.