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 andYolanda M. Pizarro, of counsel), for appellant.         Gerald W.Kaplan, Mental Hygiene Legal Service, Mineola (Dennis B. Feld, ofcounsel; Kim L. Darrow and Thomas Behrendt on the brief), forrespondent.         Before MANGANO,P.J., and THOMPSON, SULLIVAN and O'BRIEN, JJ.         PER CURIAM.         The mainquestion to be resolved on these appeals is whether the appellant,the Chief Executive Officer of Creedmoor Psychiatric Center, mether burden of demonstrating, by clear and convincing evidence, thatthe respondent Larry Hogue is mentally ill and in need of continuedcare and treatment, and that he poses a substantial threat ofphysical harm to himself or others, Page 782 thereby justifying his retention at Creedmoor PsychiatricCenter. I         The respondent,Larry Hogue, was admitted to Creedmoor Psychiatric Center(hereinafter Creedmoor), on December 14, 1992, pursuant to MentalHygiene Law § 9.27, upon the application of the Commissioner of theNew York City Department of Mental Health, Mental Retardation andAlcoholism Services, which was supported by the certificates of twoexamining[187 A.D.2d 232] physicians from Bellevue HospitalForensic Psychiatry Services. Hogue had been at Bellevue Hospitalpursuant to court order for an evaluation of his competency tostand trial on a misdemeanor charge arising out of an incident inManhattan in which Hogue allegedly had scraped paint from acar.         In theirexamining certificates, doctors Robert H. Berger and Henry C.Weinstein from Bellevue concurred that Hogue was suffering from anorganic brain disorder which was the result of a head injury he hadsustained in the military. Dr. Berger noted that significantfrontal lobe damage was present. Both doctors concurred that Hoguesuffered from schizophrenia, residual type, and chronic substanceabuse. The doctors noted that Hogue denied any mental illness orsubstance abuse, lacked insight into his illness or the impact ofsubstance abuse on his behavior, thinking, and impulse control, anddid not feel the need for any treatment. Dr. Berger further notedthat Hogue had a history of prior psychiatric hospitalizations aswell as a history of several criminal arrests involving threateningand destructive behavior. Dr. Weinstein observed that Hogue's pasthistory indicated that he immediately stopped compliance with anytreatment recommendations and began substance abuse upon hisrelease from psychiatric hospitals. Finally, both doctors were ofthe opinion that Hogue would immediately deteriorate after hisdischarge and that, if discharged, he would be a danger toothers.         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 samedate, the appellant made an application, pursuant to Mental HygieneLaw § 9.33, for an order authorizing retention of Hogue atCreedmoor for a period not to exceed six months. II         The twoproceedings were thereafter heard together before the SupremeCourt, Queens County, at which time, the appellant presented twowitnesses, Lisa Lehr, a resident of West 96th Street in Manhattan,and Dr. Kusum Kathpalia, a staff psychiatrist at Creedmoor.         Lehr testifiedthat she came in contact with Hogue for the first time in February1985. At that time, Hogue appeared to be merely a harmless homelessman to whom she used to [187 A.D.2d 233] bring food and clothing.However, over the years Hogue's behavior turned violent anderratic. Specifically, Lehr observed Hogue on numerous occasionsjumping into moving traffic from crouched positions between cars.She also observed Hogue siphoning gasoline out of parked cars at2:00 or 3:00 A.M., igniting newspapers with the gasoline, and thenstuffing the newspapers into other cars, and assaulting andinjuring an old woman. Lehr further testified that on one occasionHogue carried a marble bench weighing approximately 150 pounds froma building adjacent to her own, and crashed it with \"great fury\"through the window of her car, bending the frame and breaking thesteering wheel. Hogue also frequently exposed himself in the middleof the street and masturbated. Finally, Lehr testified that atanother, earlier hearing involving Hogue, he had threatened her bysaying: \"You're dead, bitch\". On cross-examination, Lehr concededthat she knew nothing about Hogue's present behavior atCreedmoor.         Dr. KusumKathpalia testified that she was Hogue's treating physician atCreedmoor and first examined him on December 15, 1992. At thattime, 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) organicaffective syndrome, and (3) bipolar affective disordersyndrome--manic, which was in partial remission. In addition to herexamination, Dr. Kathpalia relied on Hogue's available historycontained in medical records from Manhattan Psychiatric Center andRockland Psychiatric Center, as well as information from Hoguehimself. Medical records from Manhattan and Rockland PsychiatricCenters, as well as records from Creedmoor, were introduced intoevidence, and were referred to by Dr. Kathpalia throughout hertestimony.         Dr. Kathpaliatestified that Hogue was first admitted to a hospital forpsychiatric treatment in 1963 and had multiple admissions at bothManhattan and Rockland Psychiatric Centers stemming from numerousmisdemeanor charges and incidents of disorderly and dangerousconduct in the community. Hogue's erratic behavior over the yearsincluded urinating and exposing himself in the street, walking andjumping on subway tracks, and verbally threatening passersby in thestreet. Hogue had smashed cars, thrown garbage, ripped mirrors offof cars, broken store fronts, and attempted to strangle people onthe street. Once he also had been arrested for setting a fire atMetropolitan Hospital. Each time that Hogue was admitted to apsychiatric hospital, he was agitated and [187 A.D.2d 234]sometimes experienced paranoid delusions and auditoryhallucinations. Dr. Kathpalia testified that after each admissionto a psychiatric hospital Hogue's condition would improve within amonth, after which he would be discharged with the understandingthat 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 afterdischarge, he would be readmitted to a psychiatric hospital.         Dr. Kathpaliatestified that when she examined Hogue upon his admission toCreedmoor, he was irritable and argumentative. He was \"verydifficult\" and \"challenging\". It was Dr. Kathpalia's opinion thatHogue's drug abuse and involvement with the criminal justice systemwere the result of his underlying mental disorder and hishistorical pattern of noncompliance with any treatment regimen oncehe was released.         Dr. Kathpaliatestified that in the past, medications such as Lithium orThorazine had been administered to Hogue to treat his mentalillness, and that these medications, when taken, improved hiscondition. However, she also testified that when Hogue stoppedtaking these medications, his mental condition deteriorated and hebecame dangerous. Although Hogue had been essentially cooperativeon his ward and had not exhibited any dangerous behavior since hisadmission to Creedmoor, Dr. Kathpalia added that he maintained agrandiose attitude and talked with an inflated sense ofself-esteem. Hogue seemed to have a fixed delusion that he was aVietnam veteran, and continued to deny his mental illness or hisneed for treatment. Indeed, he lacked any insight into the factthat his behavior outside the hospital was improper.         With respect tohis drug use, Hogue had begun to acknowledge his abuse of drugs andto attend group therapy sessions for drug counseling. However,Hogue still did not appreciate that his abuse of drugs wasconnected with his behavior in the community and his mentalillness. Accordingly, Hogue had been unwilling to participate in aprogram at Creedmoor that was designed to treat mentally illpatients who are chemical abusers.         Dr. Kathpaliaexplained that Hogue's bipolar affective disorder was in partialremission because he was presently in the structured setting of ahospital, where his access to drugs and alcohol had beeneliminated. However, she again emphasized that he had a substantialhistory of deterioration once released[187 A.D.2d 235] from astructured environment and that he continued to deny his mentalillness.         Dr. Kathpaliatestified that Hogue's improvement while in Creedmoor only relatedto his external behavior, since Tegretol was being administered tohim to treat his seizure disorder and this medication had the Page 784 secondary effect of stabilizing his moods. However, Hogue hadrefused to take any of the other medications that had beenprescribed to treat his mental illness. It was Dr. Kathpalia'sopinion that Hogue's underlying mental condition had not improvedsince his admission to Creedmoor.         Dr. Kathpaliaopined, based on a reasonable degree of psychiatric certainty, that(1) Hogue was afflicted with mental illness to such a degree thathe required involuntary care and treatment, (2) he was not suitablefor any type of outpatient care or treatment, and (3) if he werereleased, he would not comply with any treatment regimen, hismental condition would deteriorate, and he would be a danger tohimself and others.         In support ofhis application for release, Hogue's counsel presented fivewitnesses. Shawn Sells, Hogue's son, and Geraldine Sells, Hogue'sex-wife, testified that they lived in Bridgeport, Connecticut, in atwo-family house, and were willing to take Hogue home with them tolive. Both indicated that if Hogue did live with them they wouldinsure that he would receive appropriate treatment for his mentalillness and would take any necessary medications. Mr. Sells alsotestified that he had an excellent relationship with his father andthat his father had actually lived with him in 1991 for a period ofabout \"eight months [to] a year\". During this period, Hogue hadnot, to the witnesses's knowledge, been violent towards others, didnot try to hurt himself, and did not act in a bizarre or unusualfashion.         Ernest Crane,Hogue's Intensive Care Manager from Visiting Nurse Services of NewYork, testified that he had visited Hogue at Creedmoor at leastonce a week. During that period, Hogue never became violent orassaultive. Crane also testified that he had visited the Sells'home and found that it would be a suitable place for Hogue to livesince the Sells could provide care, proper treatment, andsupervision. Crane said that he investigated psychiatric centersand programs in the Bridgeport area and found an outpatient programconvenient to the Sells house which would be appropriate forHogue's care and [187 A.D.2d 236] treatment. However, Craneconceded that those in charge of the outpatient program had not yetagreed to treat Hogue, but claimed that he was currently trying toarrange an interview between them and Hogue so that treatment couldbegin.         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 Hoguewould have his own bedroom. In her interviews with both Shawn andGeraldine Sells, she found them to be warm, caring, and supportiveof Hogue. In addition, Green confirmed Crane's testimony that therewas an outpatient treatment program appropriate for Hogue in theBridgeport area.         Finally, Hoguetestified in his own behalf and indicated that if he weredischarged, he would live with his son for a couple of years, afterwhich he would go to Georgia where he would buy a house. Hogue alsosaid that he would listen to his son, take all necessarymedication, and obey any recommended treatment regimen.         Oncross-examination, Hogue admitted that he had been in mentalinstitutions before and that he had mental illness in the past.This illness manifested itself in flashbacks relating to AgentOrange and napalm gas to which he was allegedly exposed in militaryservice. However, when questioned in detail about his militaryservice, Hogue repeatedly stated: \"I forgot\".         With respect toLehr's testimony, Hogue characterized it as \"propaganda\" and\"bull\", but did admit that he smashed her car with a bench and hadbeen in jail before. On several occasions during his testimony atthe hearing, Hogue denied that he was currently mentally ill ordangerous to society. Hogue complained during his hearing testimonythat (1) the petitioner's attorney was using people to lie abouthim, (2) the Judge had already made up his mind about the matter,and (3) he was being held at Creedmoor as a political prisonerbecause he was a member of the Black Panther Party. Hogue admittedthat he had suffered a head injury, and stated: \"When Page 785 I get out of here give me some marijuana and a bottle ofliquor\".         At theconclusion of the hearing, the Supreme Court found that Hogue wasnot mentally ill and was not a danger to himself or society. TheSupreme Court was of the view that Hogue merely had a \"defensive\"attitude, and that Hogue's family was willing to take him toConnecticut and care for [187 A.D.2d 237] him. In two separateorders, both dated February 2, 1993, the Supreme Court denied theappellant's retention application, and granted Hogue's applicationfor release. III         It is wellsettled that civil commitment constitutes a significant deprivationof 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.2d394). Accordingly, the United States Supreme Court has held that\"clear and convincing evidence\" is required by the Due ProcessClause of the 14th Amendment in order to involuntarily commit anindividual to a mental hospital in a proceeding brought under statelaw (see, Addington v. Texas, supra, 441 U.S. at 425, 99 S.Ct. at1808). The courts of this State have required that in order for ahospital to retain a patient for involuntary psychiatric care, itmust establish, by clear and convincing evidence, that the patientis mentally ill and in need of continued care and treatment, andthat he poses a substantial threat of physical harm to himself orothers (see, Matter of Jeannette S., 157 A.D.2d 783, 550 N.Y.S.2d383; Matter of Edward L., 137 A.D.2d 818, 525 N.Y.S.2d 281; Matterof 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 thatthe findings of fact of a hearing or trial court are generally notto be disturbed on appeal unless such findings could not have beenreached under any fair interpretation of the evidence ( see, Matterof Boggs v. New York City Health & Hosps. Corp., 132 A.D.2d340, 523 N.Y.S.2d 71). However, the Court of Appeals hasunanimously held that the authority of the Appellate Division, \"isas broad as that of [a] trial court * * * and * * * it may renderthe judgment it finds warranted by the facts\" ( see, NorthernWestchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d492, 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 issimply no fair interpretation of the evidence that can support theSupreme Court's determination that Hogue is not mentally ill anddoes not present a danger to himself or others.         The unrebuttedevidence adduced from Dr. Kathpalia's expert psychiatric testimony,Hogue's medical records, and the personal observations of LisaLehr, depicts an individual who is presently suffering from mentalillness and who has had a long history of mental illness anddangerous behavior dating back almost 30 years. This evidence alsoindicates that although[187 A.D.2d 238] Hogue's external behaviorhas improved somewhat in Creedmoor (a structured setting in whichhe takes certain seizure medication), he has a history ofnoncompliance with any treatment program upon his release frompsychiatric hospitals. Indeed, once he is released from theseinstitutions, his mental illness invariably deteriorates to thepoint that he engages in substance abuse and activities which aredangerous to himself and others. Hogue did not offer any probativeevidence at the hearing to impeach these findings and observations.Thus, we find that Hogue is in need of involuntary care andtreatment and should be retained by Creedmoor (see, Matter ofJeannette S., supra; Matter of Boggs v. New York City Health &Hosps. Corp., supra ). IV         Finally, Hogueargues that even if the criteria for his continued retention in apsychiatric hospital have been met, he nevertheless should betransferred to the care and custody of his son and ex-wife inConnecticut, pursuant to Mental Hygiene Law § 9.31(c). Wedisagree. Page 786         Mental HygieneLaw § 9.31(c) provides as follows: \"If it appears, however, that the relatives of the patient or acommittee of his person are willing and able properly to care forhim at some place other than a hospital, then, upon their writtenconsent, the court may order the transfer of the patient to thecare and custody of such relatives or such committee\" (emphasisadded).         Although therewas evidence adduced at the hearing that Hogue's son and ex-wifewere willing to care for him in Connecticut, and would execute awriting to that effect, the record does not support a finding thatthey would be able to properly care for him, as the statuterequires. Hogue's hospital records reveal that he was admitted toManhattan Psychiatric Center numerous times during roughly the sameperiod in 1991 that Mr. Sells claimed Hogue had lived with him. Inview of this crucial fact, and Hogue's historic refusal oftreatment outside of a hospital setting, there is simply noassurance that if Hogue were to live with his son and ex-wife, theywould be able to prevent a deterioration of his condition orrestrain his conduct.         Accordingly, theappellant's application for retention is granted, and therespondent's application for release denied.         [187 A.D.2d 239]ORDERED that the orders dated February 2, 1993, are reversed, onthe facts, without costs or disbursements, the appellant'sapplication to involuntarily retain the respondent is granted, andthe respondent's application for release is denied. |
