| Matter of Gail R. (Barron) |
| 2009 NY Slip Op 08234 [67 AD3d 808] |
| November 10, 2009 |
| Appellate Division, Second Department |
| In the Matter of Gail R., Appellant; Charles Barron,Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Leonard Koerner and PamelaSeider Dolgow of counsel), for respondent.
In a proceeding pursuant to Mental Hygiene Law § 9.60 to authorize assistedoutpatient treatment, Gail R. appeals from an order and judgment (one paper) of the SupremeCourt, Queens County (Flug, J.), dated January 22, 2009, which, after a hearing, granted thepetition.
Ordered that the order and judgment is reversed, on the law, without costs or disbursements,the petition is denied, and the proceeding is dismissed.
Mental Hygiene Law § 9.60, commonly known as Kendra's Law, was enacted toprovide "a system of assisted outpatient treatment (AOT) pursuant to which psychiatric patientsunlikely to survive safely in the community without supervision may avoid hospitalization bycomplying with court-ordered mental health treatment" (Matter of K.L., 1 NY3d 362, 366 [2004]). The statute sets forthwho may file a petition for an assisted outpatient treatment order, the requirements for thepetition, and the procedures for a hearing on the petition (see Mental Hygiene Law§ 9.60 [e] [1]-[3]; [h] [1]). The statute provides that the court "shall not order [AOT]unless an examining physician, who recommends [AOT] and has personally examined thesubject of the petition no more than ten days before the filing of [*2]the petition, testifies in person at the hearing. Such physician shallstate the facts and clinical determinations which support the allegation that the subject of thepetition meets each of the criteria for [AOT]." (Mental Hygiene Law § 9.60 [h] [2]).
It further provides that the testifying physician shall state: "(i) the facts which support theallegation that the subject meets each of the criteria for [AOT], (ii) that the treatment is the leastrestrictive alternative, (iii) the recommended [AOT], and (iv) the rationale for the recommended[AOT]. If the recommended [AOT] includes medication, such physician's testimony shalldescribe the types or classes of medication which should be authorized, shall describe thebeneficial and detrimental physical and mental effects of such medication, and shall recommendwhether such medication should be self-administered or administered by authorized personnel."(Mental Hygiene Law § 9.60 [h] [4]). Additionally, the statute requires the testifyingphysician to explain the written proposed treatment plan (see Mental Hygiene Law§ 9.60 [i] [3]).
The petitioner, Charles Barron, M.D., Director of the Department of Psychiatry at ElmhurstHospital Center, commenced this proceeding pursuant to Mental Hygiene Law § 9.60 toauthorize AOT for Gail R. The petition alleged that Gail R. was a person over 18 years of agesuffering from mental illness, was unlikely to survive safely in the community withoutsupervision, had a history of lack of compliance with treatment for mental illness, and had beenhospitalized at least twice within the preceding 36 months. The petition was supported, inter alia,by an affirmation of Daniel Garza, a psychiatrist who had evaluated Gail R. on January 16, 2009,as well as a prepared treatment plan worksheet pursuant to Mental Hygiene Law § 9.60and a medication worksheet, outlining his treatment and prescribed medications. Based upon hisclinical observations and determination, he maintained that Gail R. met all of the criteria forAOT.
On January 20, 2009, the Supreme Court conducted a hearing on the petition. At the hearing,Dr. Garza appeared as the petitioner's only witness. Prior to any questioning, the court asked Dr.Garza if there was anything in his affirmation that needed to be modified. In response, Dr. Garzaonly noted that a change had been made in Gail R.'s medications. Without asking any questionsof Dr. Garza on direct examination, the petitioner's counsel rested "on the record." Immediatelythereafter, Gail R.'s counsel moved for summary judgment, contending that the petitioner had notestablished by clear and convincing evidence that Gail R. met the criteria for AOT, as Dr. Garzahad provided almost no testimony. The court denied the motion on the basis that the petition andDr. Garza's affirmation were in evidence. Gail R.'s counsel declined to put on any witnesses, andthe Supreme Court granted the petition and Ordered Gail R. to receive and accept AOT for aperiod of six months from the date of the order and judgment.
Generally, an appeal "will be considered moot unless the rights of the parties will be directlyaffected by the determination of the appeal and the interest of the parties is an immediateconsequence of the judgment" (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714[1980]; see Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 810-811[2003], cert denied 540 US 1017 [2003]). However, an exception to the mootnessdoctrine permits courts to preserve for review important and recurring issues which, by virtue oftheir relatively brief existence, would be rendered otherwise nonreviewable (see Matter ofM.B., [*3]6 NY3d 437, 447 [2006]; Matter of Chenier vRichard W., 82 NY2d 830, 832 [1993]).
In the instant matter, the order and judgment dated January 22, 2009, expired by its ownterms on July 22, 2009. Although the appeal from the order and judgment generally would bemoot, the issues raised on appeal fit within the mootness exception. Due to the truncated natureof the hearing, there are issues as to whether Gail R.'s due process rights were sufficientlyprotected, whether the Supreme Court exceeded its authority by issuing the AOT order withoutthe type of testimony described in the statute, and whether the petition and supportingphysician's affirmation, in the absence of substantive testimony from that physician, constituteclear and convincing evidence to authorize AOT. These issues have a likelihood of repetition,either between Gail R. and the petitioner due to her chronic mental illness, or other patients whomay be the subject of AOT proceedings. In addition, these issues would typically evade appellatereview, as AOT orders have a maximum duration of six months unless extended by a subsequentcourt order (see Mental Hygiene Law § 9.60 [j] [2]; [k]). Moreover, the issuesraised on appeal have not been the subject of prior appellate review and are substantial and novel(see Mental Hygiene Legal Servs. v Ford, 92 NY2d 500, 505-506 [1998]; Matter ofHearst Corp. v Clyne, 50 NY2d at 714-715; Matter of William C., 64 AD3d 277 [2009]; Matter ofManhattan Psychiatric Ctr., 285 AD2d 189, 191 [2001]). Consequently, Gail R.'s appeal willnot be dismissed as moot.
Here, the Supreme Court relied exclusively upon the petition and Dr. Garza's supportingaffirmation as the evidentiary basis for the authorization of AOT. The petitioner conducted nodirect examination of Dr. Garza at the hearing. Consequently, there was no testimony by Dr.Garza regarding the facts and clinical determinations supporting the allegation in the petition thatGail met each of the criteria for AOT (see Mental Hygiene Law § 9.60 [h] [2]).There also was no testimony explaining the types or classes of medication recommended, thewritten proposed treatment plan, or whether the plan was the least restrictive and appropriate forGail R. (see Mental Hygiene Law § 9.60 [h] [4]; [i] [3]). Since the petitioner didnot elicit the statutorily required testimony from Dr. Garza, Gail R. was effectively deprived ofher right to a hearing, as provided for under the statute, at which Dr. Garza's reasoningunderlying his recommendation for AOT could be explored and his credibility assessed by thecourt.
Due to the petitioner's failure to elicit the required testimony from Dr. Garza, it further failedto establish by clear and convincing evidence that AOT was warranted (see MentalHygiene Law § 9.60 [j] [2]; Matter of James D., 185 Misc 2d 836, 839 [2000]).Clear and convincing evidence is evidence that satisfies the factfinder that it is highly probablethat what is claimed actually happened (see Ausch v St. Paul Fire & Mar. Ins. Co., 125AD2d 43, 45 [1987]). Clear and convincing evidence is "a higher, more demanding standard"than the preponderance standard (Rossi v Hartford Fire Ins. Co., 103 AD2d 771 [1984]),and it is evidence "that is neither equivocal nor open to opposing presumptions" (Solomon vState of New York, 146 AD2d 439, 440 [1989]; see George Backer Mgt. Corp. v AcmeQuilting Co., 46 NY2d 211, 220 [1978]). Contrary to the petitioner's contentions, theSupreme Court improperly relied upon the petition and Dr. Garza's affirmation as the evidentiarybasis for authorizing AOT. The petition and Dr. Garza's affirmation are the functional equivalentof a complaint in a civil action (see CPLR 402). Although the pleadings are before thecourt without being formally offered into evidence, they are not considered evidence. Rather, thepleadings point out the object to which evidence is to be directed (see Rice v Ninacs, 34AD2d 388, 392 [1970], citing Tisdale v Delaware & Hudson Canal Co., 116 NY 416,419 [1889]). Consequently, the petition and affirmation cannot serve as evidence to authorizeAOT. Therefore, in the absence of clear and convincing evidence, the court should not haveissued the AOT order and should have [*4]dismissed theproceeding (see Mental Hygiene Law § 9.60 [j] [1]).
Accordingly, we reverse the order and judgment, deny the petition, and dismiss theproceeding. Santucci, J.P., Balkin, Chambers and Hall, JJ., concur.