In re K.C.

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
6th Circuit Court-Concord Probate Division
No. 2021-0215
IN RE K.C.
Argued: February 23, 2022
Opinion Issued: April 21, 2022
John M. Formella, attorney general, and Anthony Galdieri, solicitor
general (Laura E. B. Lombardi, senior assistant attorney general, on the
memorandum of law and orally), for the petitioner.
Amy B. Davidson, of Contoocook, by brief and orally, for the respondent.
HANTZ MARCONI, J. The respondent, K.C., appeals a decision of the
Circuit Court (Maloney, J.) ordering her involuntary admission to New
Hampshire Hospital (NHH) for a period of two years with a conditional
discharge when and if clinically appropriate. On appeal, the respondent
contends that the petitioner, NHH, presented insufficient evidence at the
hearing to support the trial court’s order. We agree and reverse.
I. Background
The following facts either were found by the trial court or are otherwise
supported by the record. The respondent has been diagnosed with “Bipolar I
disorder, manic with Psychotic features.” On March 9, 2021, she took herself
to a hospital emergency room because she felt unsafe. Her speech was
pressured “with a flight of ideas.” The respondent reported to a medical
provider that she had once driven 75 miles per hour in a 55-mile-per-hour
zone, while she was on her phone, believing that somebody “was hacking her
phone and rerouting her to people in black ops.” The respondent further
reported that she had “gone to the [local police] multiple times” and that the
police had not helped her. It was later confirmed that she had contacted the
local police 300-400 times over the past year, that there were two protective
orders preventing her from contacting her ex-husband and another man, and
that there were criminal complaints pending against her for violating those
orders. According to the respondent, the protective orders were issued because
her ex-husband and the other man “stated that she has . . . followed them to
their home[s].”
The respondent was admitted to NHH on March 25. She had been
previously admitted to NHH in February 2020. The respondent has refused all
medication and has refused to sign releases to allow NHH to obtain information
from other treatment facilities.
The respondent was examined by a treating psychiatrist at NHH and a
court-appointed psychiatrist. The respondent’s treating psychiatrist testified
that she interacts with the respondent “[e]very day Monday through Friday”
and has found the respondent to have “[v]ery paranoid” delusions. She
described the respondent’s thoughts as “very disorganized” and “not reality-
based.” The treating psychiatrist described the respondent as “very irritable,
agitated,” and unpredictable.
The treating psychiatrist opined that the respondent is in such a
condition, as a result of her mental illness, as to create a potentially serious
likelihood of danger to herself or others because of her paranoid delusions.
The treating psychiatrist explained: “Because of her delusions, she would not
be safe in the community and she will make accusations against others. . . . [I]f
she was to go out in the community, she can meet someone who’s not as savvy,
. . . who may hurt her, put her life at risk because they are not aware that she
has a mental health illness.” The treating psychiatrist also testified that,
during her 2020 admission to NHH, the respondent believed that a hospital
social worker was “out to get her,” and, after her discharge, the respondent
returned to NHH to confront the social worker. (Quotation omitted.)
The court-appointed psychiatrist likewise opined that the respondent is
in such mental condition, as a result of mental illness, as to create a
potentially serious likelihood of danger to herself and others because of her
“active paranoid delusions, impaired judgment and lack of insight.” The court-
appointed psychiatrist opined that, as a result of the respondent’s delusional
“[f]ears of covert danger . . . , impaired judgment and lack of insight,” she has
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“placed herself and others at risk in her efforts to protect herself,” such as by
“driving while psychotic,” and has “possibly [placed] herself at risk by avoiding
indicated medical care.”
Following an April 22, 2021 hearing, the trial court found that NHH had
met its burden of proof by clear and convincing evidence and ordered the
respondent to be admitted to NHH for two years with a conditional discharge
when and if clinically appropriate. The respondent unsuccessfully moved for
reconsideration, and this appeal followed.
II. Analysis
Our standard of review is set forth by statute: The trial court’s factual
findings are “final unless they are so plainly erroneous that [they] could not be
reasonably made.” RSA 567-A:4 (2019); see In the Matter of B.T., 153 N.H.
255, 259 (2006). Thus, we do not reweigh the evidence to determine whether
we would have ruled differently. In re R.M., 172 N.H. 694, 698 (2019).
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. Id.; see B.T., 153 N.H. at 260.
“The standard to be used by a court . . . in determining whether a person
should be admitted . . . for treatment on an involuntary basis shall be whether
the person 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.” RSA 135-
C:34 (2021). The phrase “danger to [herself] 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.” B.T., 153 N.H. at 260-61 (quotation omitted). The petitioner must
prove dangerousness by clear and convincing evidence. See id.As we observed in B.T., the legislature has declared that “‘[i]t is the policy
of this state that mental illness in and of itself is insufficient to involuntarily
admit any person into the mental health system.’” Id. at 261 (quoting RSA
135-C:1, III). Consistent with this policy, involuntary admission may not be
ordered “based solely on the existence of a mental illness.” Id. Rather,
involuntary admission requires “clear and convincing proof of specific acts
demonstrating actual or likely serious bodily injury.” Id.Further, the petitioner in an involuntary admission proceeding “must
prove ‘current dangerousness’ in the sense of a recent dangerous act.” R.M.,
172 N.H. at 698. Although, in assessing “present dangerousness, a court may,
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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.” In re Fasi, a/k/a Cass, 132 N.H. 478, 484 (1989). 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.
B.T., 153 N.H at 262.
On appeal, the respondent argues that “none of [her] alleged acts or
statements, whether taken together or in isolation, rose to the level of
dangerousness sufficient to satisfy the statutory requirements.” We agree.
The evidence in this case is similar to the evidence we held insufficient in
B.T. See id. at 261-63. In B.T., the evidence of dangerousness included
evidence that B.T. “had poor insight into her illness and a history of choosing
to discontinue her medications.” Id. at 261. Without medication, B.T.
experienced “severe agitation, emotional lability, delusional thinking, and
paranoid ideation.” Id. (quotation omitted). There was also evidence that B.T.
was found wandering on a street in a confused state, complaining of chest
pains, id. at 256, and that, approximately five years before the involuntary
commitment hearing, she had overdosed on pain medication, id. at 262. The
trial court heard additional evidence in the form of an expert opinion and
report of the court-appointed psychiatrist that B.T. posed a potentially serious
likelihood of danger to herself or others due to her mental illness. Id.
We held that evidence of B.T.’s agitation, emotional lability, delusion, and
paranoia and that she walked on the street in a confused state and
complaining of chest pains was insufficient, as a matter of law, to prove
present or future dangerousness. Id. at 256, 261-62. None of this evidence
established a specific act demonstrating a potentially serious likelihood of
dangerousness. See id. at 261-62.
The only evidence of a specific act that had the potential to cause B.T.
serious bodily injury was her overdose. Id. at 262. However, we held that her
overdose had “insufficient probative value for determining her future
dangerousness” because it was “neither recent nor similar to the events that
gave rise to the petition.” Id. Because there was no clear and convincing
evidence of specific acts or actions demonstrating a potentially serious
likelihood of dangerousness, we concluded that the court-appointed
psychiatrist’s expert opinion, alone, was insufficient to justify B.T.’s
involuntary commitment. Id.
We apply similar reasoning in this case. In this case, the evidence was
that the respondent lacks insight into her illness, denies the need for
medication, and that, without medication, she experiences agitation, emotional
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lability, and paranoid delusions. See id. at 261. However, as we explained in
B.T., such evidence “may support a finding that [the respondent] suffers from a
mental illness,” but does “not make her ‘dangerous’ under RSA 135-C:34 to
herself or to anyone else.” Id. “These symptoms do not satisfy the specific acts
or actions required to demonstrate a threat, a likelihood, an attempt, or an
actual infliction of ‘serious bodily injury’ on herself or another.” Id. (quotation
omitted). Accordingly, we conclude that the respondent’s symptoms are
insufficient, as a matter of law, to prove by clear and convincing evidence that
she poses a potentially serious likelihood of danger to herself or others. Id. at
261-62.
Similarly insufficient is evidence that the respondent repeatedly called
the police, accused others because of her delusions, on one occasion attempted
to confront a social worker, and, according to what she told a medical provider,
was the subject of two protective orders because she followed her ex-husband
and another man to their homes. As in B.T., the record in this case “reveals no
likelihood of serious bodily injury caused” by these acts. Id. at 262. Therefore,
evidence of these acts is also insufficient, as a matter of law, to prove by clear
and convincing evidence that the respondent poses a potentially serious
likelihood of danger to herself or others. Evidence that the respondent, at
some point, violated the protective orders is likewise insufficient to establish
her present or future dangerousness because there was no evidence as to when
the protective orders were issued, when they were violated, and how they were
violated.
Here, the only evidence of a specific act with the potential to cause
serious bodily injury to either the respondent or others is that she once drove
20 miles over a 55-mile-per-hour speed limit while she was “on her smart
phone” and was “driving past a big, brown truck” and experiencing delusions.
However, there was no evidence as to when this incident occurred. Thus, it
had “insufficient probative value for determining her future dangerousness.”
Id.
As in B.T., the opinions of the respondent’s treating psychiatrist and the
court-appointed psychiatrist that she poses a potentially serious likelihood of
danger to herself or others due to her mental illness are insufficient, standing
alone, to support her involuntary commitment. See id. As we explained in
B.T., “a psychiatrist’s finding of a dangerous mental condition does not
automatically operate to trigger commitment; without evidence of dangerous
conduct, even the most persuasive psychiatrist’s report is insufficient to justify
commitment.” Id. (quotation omitted).
We reiterate that the respondent “cannot be deprived of her personal
liberty by an involuntary commitment without clear and convincing proof of her
dangerousness.” Id. at 262-63. Thus, as we held in B.T., “[w]e hold that the
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evidence submitted to the trial court was insufficient as a matter of law to
support the finding of dangerousness” by clear and convincing evidence, and
on that basis, we reverse the trial court’s decision. Id. at 263.
Reversed.
MACDONALD, C.J., and HICKS, BASSETT, and DONOVAN, JJ.,
concurred.
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