In re Sharon K.

387 S.E.2d 804, 182 W. Va. 337, 1989 W. Va. LEXIS 246
CourtWest Virginia Supreme Court
DecidedDecember 7, 1989
DocketNo. 18992
StatusPublished
Cited by1 cases

This text of 387 S.E.2d 804 (In re Sharon K.) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Sharon K., 387 S.E.2d 804, 182 W. Va. 337, 1989 W. Va. LEXIS 246 (W. Va. 1989).

Opinion

NEELY, Justice.

Sharon K. is a severely retarded, multiply-handicapped twenty-four-year-old woman. She was admitted to Colin Anderson Center in August 1972, at the age of seven, because her mother could no longer care for her at home. She currently lives in a room on the North Living Area of Colin Anderson Center that houses eleven other residents and is usually staffed by two persons, neither of whom is a registered nurse or licensed practical nurse.

The North Living Area is an uncertified part of Colin Anderson Center, which means that it does not meet the federal minimum standards for staffing and physical facilities that would entitle it to receive Medicaid reimbursement. Under the terms of the consent decree entered in E.H. v. Matin, (on remand to the Circuit Court of Kanawha County, Civil Action No. Misc-81-585, consent order entered 15 November 1981), both the North and South Living Areas were required to be closed by 30 June 1989. This deadline, however, has been extended.

On 2 December 1987 a regular, periodic involuntary commitment proceeding was initiated against Sharon K. by staff persons at Colin Anderson Center. The commitment hearing was set for 29 December and the Mental Hygiene Commissioner sent Sharon K. notice that counsel had been appointed for her. Shortly thereafter, Sharon Hancock Burleson, Sharon K.’s advocate under the provisions of Medley v. Willis Miller [Civil Action No. 78-2099 CH (S.D.W.Va.), Consent Decree entered 8 October 1981], contacted Ms. C. Cooper Fulton of West Virginia Advocates, who was the Medley advocates project director. Ms. Burleson informed Ms. Fulton of the scheduled hearing and asked Ms. Fulton to represent Sharon K. at the commitment hearing pursuant to the provisions of the advocacy project contract for the West Virginia Department of Health. Ms. Burleson informed Ms. Fulton that appropriate community services were available for Sharon K. and that placement had been impossible [339]*339because her legal guardian was unwilling to consent to community placement.

On 24 December Ms. Fulton filed a Notice of Appearance and a Motion for Continuance. The motion was granted and the hearing rescheduled for 6 January 1988. Appointed counsel was released. On 6 January 1988 a hearing was held before the Mental Hygiene Commissioner of Pleasants County. Witnesses for the hospital testified that Sharon K. is mentally retarded and that they knew of no less restrictive alternative to commitment at Colin Anderson Center. No testimony was offered concerning any available less restrictive placement having been considered. Sharon K.’s parents testified that they were satisfied with the care their daughter receives at Colin Anderson Center and that they want her to remain there. The advocate’s witnesses testified that Eastern Panhandle Training Center had developed a community placement specifically for Sharon K. and other persons with similar needs. Those witnesses also testified that the proposed placement could meet Sharon K.’s needs and that it was a less restrictive alternative but, because her mother, who is her legal guardian, refused to consent to placement voluntarily, Sharon K. should be committed there involuntarily.

On 13 January 1988 the hearing was reconvened after briefs had been submitted to the commissioner. The prosecutor moved to reopen the hearing for the taking of further evidence that he claimed had become available after the previous hearing. The commissioner ruled that the hearing would be reopened — but only for the purpose of presenting the newly discovered evidence and for rebuttal of an affidavit submitted by Ms. Fulton.

The hearing reconvened on 21 January 1988. At the close of the evidence the commissioner stated that the evidence presented did not constitute clear and convincing evidence that there is no less restrictive alternative. Therefore, he announced that he intended to make a recommendation to commit Sharon K. to a less restrictive alternative. On 26 January the commissioner sent his draft findings of fact and recommendations to counsel, and both counsel submitted objections, proposed amendments, and proposed additional findings. On 1 February the commissioner submitted his Findings of Fact and Recommendation to the Circuit Court of Pleasants County. The commissioner recommended that Sharon K. be involuntarily committed “to Eastern Panhandle Training Center or such other facility deemed by the West Virginia Department of Health to be appropriate,” that she remain at Colin Anderson Center during the interim needed to make the necessary arrangements for placement, and that the court convene a review hearing ninety days after placement.

On 2 February the circuit court entered an Order adopting the commissioner’s findings of fact but rejecting his recommendation. The order stated:

The Court notes that both the natural mother and natural father of said respondent oppose her commitment to the Eastern Panhandle Training Center and believe that the best interest of their daughter would not be served by her transfer from Colin Anderson Center at this time. From facts so far found in this case, the Court is inclined to agree with the position taken by the respondent’s parents and permit said child to remain at Colin Anderson Center.

The court then reappointed Keith White, a lawyer, to represent Sharon K. “in addition to the representation to be furnished by Attorney C. Cooper Fulton” and remanded the case for the taking of further evidence on “the long-term and short-term medical and nonmedical needs” of Sharon K. and the ability of Eastern Panhandle Training Center to meet those needs.

The hearing resumed on 7 April 1988. The prosecutor called no witnesses; however, Ms. Fulton presented testimony by a physician who had done an independent medical evaluation of Sharon K. and testimony by Eastern Panhandle Training Center staff as to the ability of the Training Center to meet Sharon K.’s medical and nonmedical needs. Mr. White, the court-appointed attorney representing Sharon K., called Sharon K.’s mother, stepmother, and [340]*340father, who all testified that they had visited the proposed placement and still opposed placement there.

Sharon K.’s father and stepmother testified that they had visited the facility and taken photographs in accordance with Mr. White’s advice. Mr. White offered three photographs into evidence and made the rest available to other counsel. The prosecutor entered the remaining photographs into evidence. The hearing lasted all day and was initially concluded on 11 April 1988 when Mr. White called a Colin Anderson Center staff person to critique the proposed placement. At the conclusion of the hearing, the commissioner stated he did not intend to make any additional recommendation to the court, that counsel would be permitted to propose additional findings of fact or amendments to his draft, and that all proposed findings that were rejected would be noted in the record.

The prosecutor proposed substantial additional findings, all of which were adopted. Ms. Fulton also proposed modifications and additions, most of which were adopted. On 12 May 1988 the mental hygiene commissioner filed a forty-page document entitled “Additional Findings of Fact” with the circuit court. In it he stated that he rejected, as not supported by the evidence, two findings of fact proposed by Mr. White, one that the proposed placement was not medically or educationally appropriate for Sharon K. and one that there is no less restrictive placement to Colin Anderson Center that is available and appropriate.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
387 S.E.2d 804, 182 W. Va. 337, 1989 W. Va. LEXIS 246, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-sharon-k-wva-1989.