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Page 781
594 N.Y.S.2d 781
187 A.D.2d 230
In the Matter of Charlotte SELTZER, etc.,
Appellant,
v.
Larry HOGUE, Respondent. (Proceeding No. 1)
In the Matter of Larry HOGUE, Respondent;
Charlotte Seltzer, Appellant. (Proceeding No. 2).
Supreme Court, Appellate Division,
Second Department.
March 1, 1993.
[187 A.D.2d 231]
Robert Abrams, Atty. Gen., New York City (Arnold D. Fleischer and
Yolanda M. Pizarro, of counsel), for appellant.
Gerald W.
Kaplan, Mental Hygiene Legal Service, Mineola (Dennis B. Feld, of
counsel; Kim L. Darrow and Thomas Behrendt on the brief), for
respondent.
Before MANGANO,
P.J., and THOMPSON, SULLIVAN and O'BRIEN, JJ.
PER CURIAM.
The main
question to be resolved on these appeals is whether the appellant,
the Chief Executive Officer of Creedmoor Psychiatric Center, met
her burden of demonstrating, by clear and convincing evidence, that
the respondent Larry Hogue is mentally ill and in need of continued
care and treatment, and that he poses a substantial threat of
physical harm to himself or others,
Page 782
thereby justifying his retention at Creedmoor Psychiatric
Center.
I
The respondent,
Larry Hogue, was admitted to Creedmoor Psychiatric Center
(hereinafter Creedmoor), on December 14, 1992, pursuant to Mental
Hygiene Law § 9.27, upon the application of the Commissioner of the
New York City Department of Mental Health, Mental Retardation and
Alcoholism Services, which was supported by the certificates of two
examining[187 A.D.2d 232] physicians from Bellevue Hospital
Forensic Psychiatry Services. Hogue had been at Bellevue Hospital
pursuant to court order for an evaluation of his competency to
stand trial on a misdemeanor charge arising out of an incident in
Manhattan in which Hogue allegedly had scraped paint from a
car.
In their
examining certificates, doctors Robert H. Berger and Henry C.
Weinstein from Bellevue concurred that Hogue was suffering from an
organic brain disorder which was the result of a head injury he had
sustained in the military. Dr. Berger noted that significant
frontal lobe damage was present. Both doctors concurred that Hogue
suffered from schizophrenia, residual type, and chronic substance
abuse. The doctors noted that Hogue denied any mental illness or
substance abuse, lacked insight into his illness or the impact of
substance abuse on his behavior, thinking, and impulse control, and
did not feel the need for any treatment. Dr. Berger further noted
that Hogue had a history of prior psychiatric hospitalizations as
well as a history of several criminal arrests involving threatening
and destructive behavior. Dr. Weinstein observed that Hogue's past
history indicated that he immediately stopped compliance with any
treatment recommendations and began substance abuse upon his
release from psychiatric hospitals. Finally, both doctors were of
the opinion that Hogue would immediately deteriorate after his
discharge and that, if discharged, he would be a danger to
others.
On January 21,
1993, Hogue, through his counsel, Mental Hygiene Legal Service,
requested a court hearing, pursuant to Mental Hygiene Law § 9.31,
to contest his need for involuntary care and treatment. On the same
date, the appellant made an application, pursuant to Mental Hygiene
Law § 9.33, for an order authorizing retention of Hogue at
Creedmoor for a period not to exceed six months.
II
The two
proceedings were thereafter heard together before the Supreme
Court, Queens County, at which time, the appellant presented two
witnesses, Lisa Lehr, a resident of West 96th Street in Manhattan,
and Dr. Kusum Kathpalia, a staff psychiatrist at Creedmoor.
Lehr testified
that she came in contact with Hogue for the first time in February
1985. At that time, Hogue appeared to be merely a harmless homeless
man to whom she used to [187 A.D.2d 233] bring food and clothing.
However, over the years Hogue's behavior turned violent and
erratic. Specifically, Lehr observed Hogue on numerous occasions
jumping into moving traffic from crouched positions between cars.
She also observed Hogue siphoning gasoline out of parked cars at
2:00 or 3:00 A.M., igniting newspapers with the gasoline, and then
stuffing the newspapers into other cars, and assaulting and
injuring an old woman. Lehr further testified that on one occasion
Hogue carried a marble bench weighing approximately 150 pounds from
a building adjacent to her own, and crashed it with "great fury"
through the window of her car, bending the frame and breaking the
steering wheel. Hogue also frequently exposed himself in the middle
of the street and masturbated. Finally, Lehr testified that at
another, earlier hearing involving Hogue, he had threatened her by
saying: "You're dead, bitch". On cross-examination, Lehr conceded
that she knew nothing about Hogue's present behavior at
Creedmoor.
Dr. Kusum
Kathpalia testified that she was Hogue's treating physician at
Creedmoor and first examined him on December 15, 1992. At that
time, she diagnosed Hogue as suffering from (1)
psycho-polysubstance abuse, involving the use of crack
Page 783
cocaine, heroin, LSD, PCP, marihuana and alcohol, (2) organic
affective syndrome, and (3) bipolar affective disorder
syndrome--manic, which was in partial remission. In addition to her
examination, Dr. Kathpalia relied on Hogue's available history
contained in medical records from Manhattan Psychiatric Center and
Rockland Psychiatric Center, as well as information from Hogue
himself. Medical records from Manhattan and Rockland Psychiatric
Centers, as well as records from Creedmoor, were introduced into
evidence, and were referred to by Dr. Kathpalia throughout her
testimony.
Dr. Kathpalia
testified that Hogue was first admitted to a hospital for
psychiatric treatment in 1963 and had multiple admissions at both
Manhattan and Rockland Psychiatric Centers stemming from numerous
misdemeanor charges and incidents of disorderly and dangerous
conduct in the community. Hogue's erratic behavior over the years
included urinating and exposing himself in the street, walking and
jumping on subway tracks, and verbally threatening passersby in the
street. Hogue had smashed cars, thrown garbage, ripped mirrors off
of cars, broken store fronts, and attempted to strangle people on
the street. Once he also had been arrested for setting a fire at
Metropolitan Hospital. Each time that Hogue was admitted to a
psychiatric hospital, he was agitated and [187 A.D.2d 234]
sometimes experienced paranoid delusions and auditory
hallucinations. Dr. Kathpalia testified that after each admission
to a psychiatric hospital Hogue's condition would improve within a
month, after which he would be discharged with the understanding
that he would seek follow-up care as an outpatient. However,
Hogue's records revealed that he never followed up with treatment,
and within periods ranging from 72 hours to 3 weeks after
discharge, he would be readmitted to a psychiatric hospital.
Dr. Kathpalia
testified that when she examined Hogue upon his admission to
Creedmoor, he was irritable and argumentative. He was "very
difficult" and "challenging". It was Dr. Kathpalia's opinion that
Hogue's drug abuse and involvement with the criminal justice system
were the result of his underlying mental disorder and his
historical pattern of noncompliance with any treatment regimen once
he was released.
Dr. Kathpalia
testified that in the past, medications such as Lithium or
Thorazine had been administered to Hogue to treat his mental
illness, and that these medications, when taken, improved his
condition. However, she also testified that when Hogue stopped
taking these medications, his mental condition deteriorated and he
became dangerous. Although Hogue had been essentially cooperative
on his ward and had not exhibited any dangerous behavior since his
admission to Creedmoor, Dr. Kathpalia added that he maintained a
grandiose attitude and talked with an inflated sense of
self-esteem. Hogue seemed to have a fixed delusion that he was a
Vietnam veteran, and continued to deny his mental illness or his
need for treatment. Indeed, he lacked any insight into the fact
that his behavior outside the hospital was improper.
With respect to
his drug use, Hogue had begun to acknowledge his abuse of drugs and
to attend group therapy sessions for drug counseling. However,
Hogue still did not appreciate that his abuse of drugs was
connected with his behavior in the community and his mental
illness. Accordingly, Hogue had been unwilling to participate in a
program at Creedmoor that was designed to treat mentally ill
patients who are chemical abusers.
Dr. Kathpalia
explained that Hogue's bipolar affective disorder was in partial
remission because he was presently in the structured setting of a
hospital, where his access to drugs and alcohol had been
eliminated. However, she again emphasized that he had a substantial
history of deterioration once released[187 A.D.2d 235] from a
structured environment and that he continued to deny his mental
illness.
Dr. Kathpalia
testified that Hogue's improvement while in Creedmoor only related
to his external behavior, since Tegretol was being administered to
him to treat his seizure disorder and this medication had the
Page 784
secondary effect of stabilizing his moods. However, Hogue had
refused to take any of the other medications that had been
prescribed to treat his mental illness. It was Dr. Kathpalia's
opinion that Hogue's underlying mental condition had not improved
since his admission to Creedmoor.
Dr. Kathpalia
opined, based on a reasonable degree of psychiatric certainty, that
(1) Hogue was afflicted with mental illness to such a degree that
he required involuntary care and treatment, (2) he was not suitable
for any type of outpatient care or treatment, and (3) if he were
released, he would not comply with any treatment regimen, his
mental condition would deteriorate, and he would be a danger to
himself and others.
In support of
his application for release, Hogue's counsel presented five
witnesses. Shawn Sells, Hogue's son, and Geraldine Sells, Hogue's
ex-wife, testified that they lived in Bridgeport, Connecticut, in a
two-family house, and were willing to take Hogue home with them to
live. Both indicated that if Hogue did live with them they would
insure that he would receive appropriate treatment for his mental
illness and would take any necessary medications. Mr. Sells also
testified that he had an excellent relationship with his father and
that his father had actually lived with him in 1991 for a period of
about "eight months [to] a year". During this period, Hogue had
not, to the witnesses's knowledge, been violent towards others, did
not try to hurt himself, and did not act in a bizarre or unusual
fashion.
Ernest Crane,
Hogue's Intensive Care Manager from Visiting Nurse Services of New
York, testified that he had visited Hogue at Creedmoor at least
once a week. During that period, Hogue never became violent or
assaultive. Crane also testified that he had visited the Sells'
home and found that it would be a suitable place for Hogue to live
since the Sells could provide care, proper treatment, and
supervision. Crane said that he investigated psychiatric centers
and programs in the Bridgeport area and found an outpatient program
convenient to the Sells house which would be appropriate for
Hogue's care and [187 A.D.2d 236] treatment. However, Crane
conceded that those in charge of the outpatient program had not yet
agreed to treat Hogue, but claimed that he was currently trying to
arrange an interview between them and Hogue so that treatment could
begin.
Thelma Green,
Hogue's social worker, testified that she also visited the Sells'
home and found that it was adequate for Hogue's needs, since Hogue
would have his own bedroom. In her interviews with both Shawn and
Geraldine Sells, she found them to be warm, caring, and supportive
of Hogue. In addition, Green confirmed Crane's testimony that there
was an outpatient treatment program appropriate for Hogue in the
Bridgeport area.
Finally, Hogue
testified in his own behalf and indicated that if he were
discharged, he would live with his son for a couple of years, after
which he would go to Georgia where he would buy a house. Hogue also
said that he would listen to his son, take all necessary
medication, and obey any recommended treatment regimen.
On
cross-examination, Hogue admitted that he had been in mental
institutions before and that he had mental illness in the past.
This illness manifested itself in flashbacks relating to Agent
Orange and napalm gas to which he was allegedly exposed in military
service. However, when questioned in detail about his military
service, Hogue repeatedly stated: "I forgot".
With respect to
Lehr's testimony, Hogue characterized it as "propaganda" and
"bull", but did admit that he smashed her car with a bench and had
been in jail before. On several occasions during his testimony at
the hearing, Hogue denied that he was currently mentally ill or
dangerous to society. Hogue complained during his hearing testimony
that (1) the petitioner's attorney was using people to lie about
him, (2) the Judge had already made up his mind about the matter,
and (3) he was being held at Creedmoor as a political prisoner
because he was a member of the Black Panther Party. Hogue admitted
that he had suffered a head injury, and stated: "When
Page 785
I get out of here give me some marijuana and a bottle of
liquor".
At the
conclusion of the hearing, the Supreme Court found that Hogue was
not mentally ill and was not a danger to himself or society. The
Supreme Court was of the view that Hogue merely had a "defensive"
attitude, and that Hogue's family was willing to take him to
Connecticut and care for [187 A.D.2d 237] him. In two separate
orders, both dated February 2, 1993, the Supreme Court denied the
appellant's retention application, and granted Hogue's application
for release.
III
It is well
settled that civil commitment constitutes a significant deprivation
of liberty which requires due process protection (see, Addington v.
Texas, 441 U.S. 418, 425, 99 S.Ct. 1804 1808, 60 L.Ed.2d 323;
Humphrey v. Cady, 405 U.S. 504, 509, 92 S.Ct. 1048 1052, 31 L.Ed.2d
394). Accordingly, the United States Supreme Court has held that
"clear and convincing evidence" is required by the Due Process
Clause of the 14th Amendment in order to involuntarily commit an
individual to a mental hospital in a proceeding brought under state
law (see, Addington v. Texas, supra, 441 U.S. at 425, 99 S.Ct. at
1808). The courts of this State have required that in order for a
hospital to retain a patient for involuntary psychiatric care, it
must establish, by clear and convincing evidence, that the patient
is mentally ill and in need of continued care and treatment, and
that he poses a substantial threat of physical harm to himself or
others (see, Matter of Jeannette S., 157 A.D.2d 783, 550 N.Y.S.2d
383; Matter of Edward L., 137 A.D.2d 818, 525 N.Y.S.2d 281; Matter
of Carl C., 126 A.D.2d 640, 511 N.Y.S.2d 144; Matter of Harry M.,
96 A.D.2d 201, 468 N.Y.S.2d 359).
It is true that
the findings of fact of a hearing or trial court are generally not
to be disturbed on appeal unless such findings could not have been
reached under any fair interpretation of the evidence ( see, Matter
of Boggs v. New York City Health & Hosps. Corp., 132 A.D.2d
340, 523 N.Y.S.2d 71). However, the Court of Appeals has
unanimously held that the authority of the Appellate Division, "is
as broad as that of [a] trial court * * * and * * * it may render
the judgment it finds warranted by the facts" ( see, Northern
Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d
492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809). In the instant case,
we are compelled to make our own findings of fact because there is
simply no fair interpretation of the evidence that can support the
Supreme Court's determination that Hogue is not mentally ill and
does not present a danger to himself or others.
The unrebutted
evidence adduced from Dr. Kathpalia's expert psychiatric testimony,
Hogue's medical records, and the personal observations of Lisa
Lehr, depicts an individual who is presently suffering from mental
illness and who has had a long history of mental illness and
dangerous behavior dating back almost 30 years. This evidence also
indicates that although[187 A.D.2d 238] Hogue's external behavior
has improved somewhat in Creedmoor (a structured setting in which
he takes certain seizure medication), he has a history of
noncompliance with any treatment program upon his release from
psychiatric hospitals. Indeed, once he is released from these
institutions, his mental illness invariably deteriorates to the
point that he engages in substance abuse and activities which are
dangerous to himself and others. Hogue did not offer any probative
evidence at the hearing to impeach these findings and observations.
Thus, we find that Hogue is in need of involuntary care and
treatment and should be retained by Creedmoor (see, Matter of
Jeannette S., supra; Matter of Boggs v. New York City Health &
Hosps. Corp., supra ).
IV
Finally, Hogue
argues that even if the criteria for his continued retention in a
psychiatric hospital have been met, he nevertheless should be
transferred to the care and custody of his son and ex-wife in
Connecticut, pursuant to Mental Hygiene Law § 9.31(c). We
disagree.
Page 786
Mental Hygiene
Law § 9.31(c) provides as follows:
"If it appears, however, that the relatives of the patient or a
committee of his person are willing and able properly to care for
him at some place other than a hospital, then, upon their written
consent, the court may order the transfer of the patient to the
care and custody of such relatives or such committee" (emphasis
added).
Although there
was evidence adduced at the hearing that Hogue's son and ex-wife
were willing to care for him in Connecticut, and would execute a
writing to that effect, the record does not support a finding that
they would be able to properly care for him, as the statute
requires. Hogue's hospital records reveal that he was admitted to
Manhattan Psychiatric Center numerous times during roughly the same
period in 1991 that Mr. Sells claimed Hogue had lived with him. In
view of this crucial fact, and Hogue's historic refusal of
treatment outside of a hospital setting, there is simply no
assurance that if Hogue were to live with his son and ex-wife, they
would be able to prevent a deterioration of his condition or
restrain his conduct.
Accordingly, the
appellant's application for retention is granted, and the
respondent's application for release denied.
[187 A.D.2d 239]
ORDERED that the orders dated February 2, 1993, are reversed, on
the facts, without costs or disbursements, the appellant's
application to involuntarily retain the respondent is granted, and
the respondent's application for release is denied.
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