In re Henry B.

2017 ME 72, 159 A.3d 824, 2017 WL 1407261, 2017 Me. LEXIS 74

• Court: Supreme Judicial Court of Maine
• Decided: April 20, 2017
• Status: Published

Opinion

MAINE SUPREME JUDICIAL COURT Reporter of Decisions Decision: 2017 ME 72 Docket: Kno-16-308 Argued: March 2, 2017 Decided: April 20, 2017

Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HUMPHREY, JJ.

IN RE HENRY B.

JABAR, J.

[¶1] Henry B. appeals from an order of the Superior Court

(Knox County, Billings, J.), acting as an intermediate appellate court, affirming

the District Court’s (Rockland, Sparaco, J.) order of involuntary commitment.

Henry raises a novel question of law: whether individuals subject to

involuntary commitment proceedings in Maine have the right to effective

representation of counsel. Henry contends that they do. We agree, and adopt

the Strickland standard for courts reviewing claims of ineffective assistance of

counsel in involuntary commitment proceedings. See generally Strickland v.

Washington, 466 U.S. 668 (1984). However, we disagree with Henry’s

contention that his counsel was ineffective, and therefore affirm the District

Court’s judgment ordering Henry’s involuntary commitment, as well as the

Superior Court’s judgment affirming that judgment. 2

I. BACKGROUND

[¶2] On March 15, 2016, Henry B. was admitted to Pen Bay Medical

Center (PBMC) pursuant to the “blue paper” procedures of 34-B M.R.S.

§ 3863(1)-(2) (2016). On March 18, 2016, PBMC staff applied to involuntarily

commit Henry pursuant to the “white paper” procedures of 34-B M.R.S.

§ 3863(5-A) (2016). A commitment hearing was held in the District Court

(Rockland, Sparaco, J.) on March 28, 2016, at which Henry was represented by

appointed counsel.

[¶3] Based on the testimony of the medical director of PBMC’s

Psychiatric and Addiction Recovery Center (PARC), an independent medical

examiner, and two of Henry’s sisters, the District Court concluded that the

State had proved by clear and convincing evidence that Henry was mentally ill

and that he had suffered an “acute psychotic episode, possibly related to a

schizophrenic break.” Further, the court concluded that Henry posed a

“serious risk” of harming himself or others, that there was not “an adequate

community of resources for his care or treatment, that it would not be wise or

safe to return him to his family’s care,” and that constant observation at PBMC

would be “more structured and reliable than [treatment] he would be getting 3

at home.” The court therefore ordered that Henry be subject to involuntary

hospitalization for up to 120 days.

[¶4] Henry appealed to the Superior Court (Knox County, Billings, J.),

and after a hearing on June 29, 2016, the Superior Court affirmed the District

Court’s judgment of involuntary commitment. See 34-B M.R.S. § 3864(11)

(2016); M.R. Civ. P. 76(D). Henry timely appealed. See M.R. App. P. 2(B)(3).

II. DISCUSSION

[¶5] Henry contends that he was not provided with effective assistance

of counsel at the March 28 District Court hearing. He asserts that we should

adopt the Strickland standard, see Strickland, 466 U.S. 668 (1984), when

analyzing claims of ineffective assistance of counsel in involuntary

commitment cases, and that by any standard, hearing counsel’s assistance was

prejudicially ineffective.

A. Effective Assistance Standard

[¶6] Maine law requires that an individual be represented by counsel at

all stages of involuntary commitment proceedings. See 34-B M.R.S.

§ 3864(5)(D) (2016); In re Penelope W., 2011 ME 58, ¶ 8, 19 A.3d 813.

Because “where a state statute affords an individual subject to involuntary

commitment with the right to counsel, the legislature could not have intended 4

that counsel could be prejudicially ineffective,” see In re Mental Health of

K.G.F., 29 P.3d 485, 491 (Mont. 2001), we now hold that, at all stages of

involuntary commitment proceedings, individuals subject to those

proceedings are entitled to the effective assistance of counsel.

[¶7] Having announced the right to effective counsel, we must also

ensure that, when there is a claim of ineffective assistance, parties, counsel,

and courts understand what processes to use and the standard to apply. A

majority of jurisdictions holding that the effective assistance of counsel

applies to involuntary commitment proceedings have also held that the

Strickland standard applies. See, e.g., Pope v. Alston, 537 So. 2d 953, 956-57

(Ala. Civ. App. 1988); In re Carmody, 653 N.E.2d 977, 984 (Ill. App. Ct. 1995);

In re Crane, 704 N.W.2d 437, 439 (Iowa 2005); In re Alleged Mental Illness of

Cordie, 372 N.W.2d 24, 28-29 (Minn. Ct. App. 1985); State ex rel. H.W.,

85 S.W.3d 348, 356 (Tex. App. 2002); Jenkins v. Dir. of the Va. Ctr. for

Behavioral Rehab., 624 S.E.2d 453, 460 (Va. 2006); In re Det. of T.A.H.-L.,

97 P.3d 767, 768 (Wash. Ct. App. 2004). In Maine, we recently applied a

modified Strickland standard to hearings resulting in the termination of

parental rights, stating that “the deprivation of parental rights is in many ways

similar to the deprivation of liberty interests at stake in criminal cases.” In re 5

M.P., 2015 ME 138, ¶¶ 1, 26, 126 A.3d 718. There, we further noted that the

“Strickland standard is known to the bar and the bench, and . . . carries with it

a developing body of case law, which will aid courts in the efficient and timely

resolution of . . . claims.” Id. ¶ 26.

[¶8] A similar rationale supports the application of Strickland to

involuntary commitment cases: Maine law requires representation at all

stages of the involuntary commitment proceedings, the liberty interests at

stake are on par with those at stake in criminal cases, Strickland is a

well-known and developing standard, and a “more intrusive post-trial inquiry

could encourage the proliferation of ineffectiveness challenges, and possibly

delay the permanency necessary to stabilize” a mentally ill individual’s

treatment in a safe environment. Id. (citation omitted) (quotation marks

omitted).

[¶9] For these reasons, we declare that the Strickland standard applies

to resolve claims of ineffective assistance of counsel in involuntary

commitment cases in Maine, using the process we enunciated in In re M.P.,

2015 ME 138, ¶¶ 18-21, 126 A.3d 718. A direct appeal from an order of

involuntary commitment may include a claim that the individual’s attorney

provided ineffective assistance of counsel “when the record is sufficiently well 6

developed to permit a fair evaluation” of the claim. Id. ¶ 19. If the record is

insufficient to “illuminate the basis for the challenged acts or omissions

of . . . counsel,” the individual must promptly make a motion pursuant to M.R.

Civ. P. 60(b)(6). Id. ¶ 20. If the motion is denied, “the trial court’s findings will

amplify the record and provide the necessary context should [the individual]

decide to pursue an appeal of that decision along with the appeal of the

underlying judgment” ordering his or her involuntary commitment. Id.

[¶10] To bring a claim of ineffective assistance of counsel following an

involuntary commitment proceeding, whether by direct appeal or by

Rule 60(b)(6) motion, the individual asserting the claim “must submit a

signed and sworn affidavit stating, with specificity, the basis for the claim.” Id.

¶ 21. That affidavit must be accompanied by affidavits from any individuals

the claimant asserts should have been called as witnesses during the

involuntary commitment hearing, as well as from any others whose evidence

would buttress the claimant’s assertions that counsel “was deficient and that

the deficiency affected the fairness of the proceeding.” Id.

B. Application of Strickland

[¶11] Although at the time Henry appealed the District Court’s decision

we had not yet enunciated any process to evaluate ineffective assistance of 7

counsel claims following involuntary commitment hearings, we conclude that

the Superior Court’s consideration of Henry B.’s claim of ineffective assistance

of counsel complied with the process we adopted in In re M.P. and now adopt

for involuntary commitment proceedings, and will therefore address his

assignments of error without remand.1

[¶12] Strickland provides that, in order to prove ineffective assistance

of counsel, an individual must show (1) “that counsel’s representation fell

below an objective standard of reasonableness,” and (2) that “errors of

counsel . . . actually had an adverse effect on the defense.” Theriault v. State,

2015 ME 137, ¶ 14, 125 A.3d 1163 (quotation marks omitted). The second

prong requires an individual to demonstrate “a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is

a probability sufficient to undermine confidence in the outcome.” Id. Henry B.

contends in this appeal that his counsel failed to provide effective assistance

of counsel pursuant to the Strickland standard in two respects: by failing to

1 The Superior Court, in addressing Henry’s ineffective assistance argument, did not specify

whether it would apply Strickland or some other standard, but concluded that regardless of the standard applied, hearing counsel’s conduct did not fall below that of a reasonably fallible attorney and that hearing counsel’s performance did not affect the fundamental fairness of the proceeding. Despite our agreement with these conclusions, because the Superior Court acted in its appellate capacity, we review directly the District Court record and decision. See Boyer v. Boyer, 1999 ME 128, ¶ 6, 736 A.2d 273. 8

object to certain hearsay statements, and by failing to investigate Henry’s

previous medical treatments.

1. Hearsay

[¶13] Generally, out-of-court statements are not admissible to prove

the truth of the matter asserted. See M.R. Evid. 801, 802. Expert opinions,

however, may rely upon out-of-court statements and are not inadmissible for

such reliance. M.R. Evid. 703. Psychological reports containing out-of-court

statements are therefore admissible if the reports are considered by the court

only “as expressions of the testifying experts’ opinions.” In re Soriah B.,

2010 ME 130, ¶ 22, 8 A.3d 1256.

[¶14] Here, during the District Court hearing, a PARC psychiatrist who

worked personally with Henry following his admission to PBMC testified that

Henry was brought to the hospital because “[a]pparently, [he] was found

wandering on Route 1, running in traffic, and screaming that he wanted to

die.” That psychiatrist then testified that Henry “had been brought in, also, on

March 4th when he was found wandering outside without shoes and socks in

20-degree weather knocking on people’s doors.” Finally, the psychiatrist

stated that Henry “started to try and ingest Magic Markers, ingest checkers, 9

suck on hand sanitizer, and stick himself in the neck with a fork, and bashed

his head through the wall.”

[¶15] Hearing counsel’s failure to object to these alleged hearsay

statements did not constitute ineffective assistance of counsel. The

statements provide the foundation of the psychiatrist’s expert opinion and are

admissible for that purpose. See id; M.R. Evid. 703, 705. Although the court

reiterated in its findings some of these statements describing Henry’s

behaviors—namely that Henry ingested objects and professed that he wanted

to die—the court relied upon the opinions of Henry’s doctors as medical

experts in reaching its legal conclusions. Henry did not present his own

expert testimony in rebuttal, nor did he present any evidence indicating that

the facts contained in the hearsay statements were false. Also, he has not

demonstrated that the court would have reached different conclusions had

hearing counsel in fact objected to the alleged hearsay. Hearing counsel’s

failure to object to the testimony therefore does not “[fall] below an objective

standard of reasonableness” or create a reasonable probability that, had

counsel raised hearsay objections, the outcome would have been different.

See Strickland, 466 U.S. at 694. 10

2. Previous Medical Treatments

[¶16] Although Henry’s counsel did not conduct an independent

investigation into the incidents that occurred before Henry was admitted to

PBMC, counsel did inquire on cross examination into the hospital’s care of

Henry and the intended treatment plan. Counsel also probed whether Henry’s

medication regimen would be effective in alleviating his symptoms, to which

the psychiatrist replied affirmatively. Further, counsel inquired whether

medications that the family alleged Henry had received several weeks prior to

his admission to PBMC could have caused his symptoms, which the

psychiatrist denied. The psychiatrist concluded that Henry would benefit

from commitment, as did a court-appointed independent medical examiner,

citing similar reasons.

[¶17] Because the District Court explicitly weighed the evidence and

determined that the physician’s opinions were more credible than the

testimony of Henry’s sisters, there is no reasonable probability that the

outcome would have been different had Henry’s counsel independently

investigated his medical history. See Levesque v. State, 664 A.2d 849, 852

(Me. 1995) (holding that where a defendant was not “deprived of an 11

otherwise available substantial ground of defense,” counsel was effective

pursuant to the Strickland standard).

C. Sufficiency of the Evidence

[¶18] In addition to raising ineffective assistance arguments, Henry

contends that the evidence presented at the District Court hearing was

insufficient to support the court’s findings that Henry met the criteria for

involuntary commitment.2 We review the court’s findings of fact for clear

error, In re Marcial O., 1999 ME 64, ¶ 21, 728 A.2d 158, and “we will reverse a

finding only if there is no competent evidence in the record to support it, if the

factfinder clearly misapprehends the meaning of the evidence, or if the finding

is so contrary to the credible evidence that it does not represent the truth and

right of the case,” Guardianship of Hailey M., 2016 ME 80, ¶ 15, 140 A.3d 478

(citations omitted) (quotation marks omitted). We note that it is the

factfinder’s prerogative to accept or reject portions or the entirety of any

witness’s testimony. Efstathiou v. Efstathiou, 2009 ME 107, ¶ 12,

982 A.2d 339.

2 Henry also claims on appeal that the court order involuntarily committing him was insufficient

as a matter of law because it failed to recite a factual finding that the court was satisfied with the individual treatment plan established by Henry’s medical team. The record shows that the court did make this finding. We therefore find this argument unpersuasive, and do not address it further. 12

[¶19] A court must find the following facts by clear and convincing

evidence to commit a person involuntarily to a psychiatric hospital: (1) that

the person is mentally ill and poses a likelihood of serious harm, (2) that

adequate community resources for the person’s care are not available, (3) that

inpatient hospitalization is the best available means of treatment, and (4) that

it is satisfied with the individual treatment plan offered by the committing

hospital. 34-B M.R.S. §§ 3864(6)(A), (7) (2016).

[¶20] At the March 28 hearing, the psychiatrist testified that Henry was

brought to the PBMC emergency room on March 4 after having been found

“wandering outside without shoes and socks in 20-degree weather knocking

on people’s doors,” and that Henry’s family took him home, but Henry was

again brought to PBMC by police on March 15 after he was found running in

traffic on Route 1, screaming that he wanted to die. The psychiatrist also

testified that, after admission to PBMC, Henry tried to ingest magic markers,

checkers, and hand sanitizer; stuck himself in the neck with a fork; bashed his

head into the wall; told hospital workers that if he looked at people they

would die; thought another patient was using mind control on him; and tried

to electrocute himself. 13

[¶21] The psychiatrist further testified that Henry was suffering acute

psychotic episodes that could have been caused by a schizophrenic break or a

psychotic disorder due to the ingestion of drugs prior to admission, but that

Henry had screened negative for drug use. Regardless of the differential

diagnosis, the psychiatrist concluded that a treatment regimen at the hospital

including Ativan and Risperidone would help Henry and noted that his

demeanor had improved since admission. The independent medical

examiner, a clinical psychologist, expressed concerns that Henry would harm

himself if released, and was supportive of the treatment plan proposed by the

psychiatrist, including involuntary commitment.

[¶22] Although Henry’s sisters also testified, expressing their beliefs

that Henry’s symptoms were caused by the medications he had been provided

by medical staff on March 4 and following an earlier incident in

Massachusetts, and that the family did not want him taking any medications at

all, the court noted that the sisters’ opinions were “not founded in any sort of

expert testimony.” However, the court explicitly weighed the doctors’

testimony with that of the sisters, and made its findings based “on the most

persuasive evidence, which is the medical testimony.” There is therefore

competent evidence in the record supporting the court’s conclusions that 14

Henry was mentally ill, that he posed a likelihood of serious harm, that

adequate community resources for the care and treatment of his mental

illness were not available, that inpatient hospitalization was the best available

means for treating him, and that PBMC’s treatment plan was satisfactory. See

34-B M.R.S. § 3864(6)(A).

The entry is:

Judgment affirmed.

Scott F. Hess, Esq. (orally), The Law Office of Scott F. Hess, LLC, Augusta, for appellant Henry B.

Janet T. Mills, Attorney General, and N. Paul Gauvreau, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for appellee Department of Health and Human Services

Knox Superior Court docket number AP-2016-10 FOR CLERK REFERENCE ONLY