{ "id": 1573184, "name": "In the Matter of Kathy DEAN, Alleged Mentally III Individual. STATE of New Mexico, Plaintiff-Appellee, v. Kathy DEAN, Defendant-Appellant", "name_abbreviation": "State v. Dean", "decision_date": "1980-01-15", "docket_number": "No. 4045", "first_page": "45", "last_page": "50", "citations": [ { "type": "official", "cite": "94 N.M. 45" }, { "type": "parallel", "cite": "607 P.2d 132" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "89 N.M. 239", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2865042 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/89/0239-01" ] }, { "cite": "50 Cal.Rptr. 876", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1966, "opinion_index": 1 }, { "cite": "241 Cal.App.2d 676", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2159206 ], "year": 1966, "opinion_index": 1, "case_paths": [ "/cal-app-2d/241/0676-01" ] }, { "cite": "48 S.E.2d 855", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1948, "opinion_index": 1 }, { "cite": "204 Ga. 26", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 244282 ], "year": 1948, "opinion_index": 1, "case_paths": [ "/ga/204/0026-01" ] }, { "cite": "76 N.E.2d 645", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1948, "opinion_index": 1 }, { "cite": "322 Mass. 408", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 502122 ], "year": 1948, "opinion_index": 1, "case_paths": [ "/mass/322/0408-01" ] }, { "cite": "268 S.W.2d 97", "category": "reporters:state_regional", "reporter": "S.W.2d", "year": 1954, "opinion_index": 1 }, { "cite": "196 Tenn. 364", "category": "reporters:state", "reporter": "Tenn.", "case_ids": [ 8530105 ], "year": 1954, "opinion_index": 1, "case_paths": [ "/tenn/196/0364-01" ] }, { "cite": "142 S.E.2d 792", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 1 }, { "cite": "221 Ga. 47", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 1099442 ], "year": 1965, "opinion_index": 1, "case_paths": [ "/ga/221/0047-01" ] }, { "cite": "320 S.W.2d 152", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10160449 ], "opinion_index": 1, "case_paths": [ "/sw2d/320/0152-01" ] }, { "cite": "502 S.W.2d 581", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10132740 ], "opinion_index": 1, "case_paths": [ "/sw2d/502/0581-01" ] }, { "cite": "144 A.2d 367", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1958, "opinion_index": 1 }, { "cite": "393 Pa. 224", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1279605 ], "year": 1958, "opinion_index": 1, "case_paths": [ "/pa/393/0224-01" ] }, { "cite": "111 R.I. 527", "category": "reporters:state", "reporter": "R.I.", "case_ids": [ 3141277 ], "weight": 2, "year": 1973, "opinion_index": 1, "case_paths": [ "/ri/111/0527-01" ] }, { "cite": "84 N.M. 10", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2769043 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "12" }, { "page": "1355" } ], "opinion_index": 1, "case_paths": [ "/nm/84/0010-01" ] }, { "cite": "540 P.2d 819", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1975, "opinion_index": 1 }, { "cite": "88 N.M. 338", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2839119 ], "year": 1975, "opinion_index": 1, "case_paths": [ "/nm/88/0338-01" ] }, { "cite": "92 N.M. 490", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557038 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/92/0490-01" ] } ], "analysis": { "cardinality": 831, "char_count": 17209, "ocr_confidence": 0.823, "pagerank": { "raw": 9.505882454708161e-08, "percentile": 0.5203807248994053 }, "sha256": "6ea05aca6b824798f4c7902115816fbcfe4c7a91a479357dc994295cc4e97b31", "simhash": "1:fe14e8529b0e9a38", "word_count": 2879 }, "last_updated": "2023-07-14T18:18:16.712923+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WALTERS, J., concurs.", "SUTIN, J., dissents." ], "parties": [ "In the Matter of Kathy DEAN, Alleged Mentally III Individual. STATE of New Mexico, Plaintiff-Appellee, v. Kathy DEAN, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nHERNANDEZ, Judge.\nThe defendant appeals her involuntary commitment by the district court to the New Mexico State Hospital (State Hospital) for a period not to exceed 30 days. We affirm.\nOn February 20, 1979, defendant was involuntarily committed to the State Hospital upon a physician\u2019s certificate for a 7-day evaluation period pursuant to the provisions of the Mental Health and Development Disabilities Code, Section 43-1-2 through 19 and 21 through 23, N.M.S.A. 1978. On February 27, 1979, the State filed a petition in the district court seeking to extend defendant\u2019s commitment for an additional 30 days. Attached to the petition as an exhibit was a psychiatric evaluation report signed by Alan Krichev, Ph.D. and Ted Scharff, M. D., both members of the State Hospital staff. A hearing on this petition was held on March 1, 1979, following which an order was entered committing defendant to the State Hospital for a period not to exceed 30 days, commencing March 1, 1979.\nDefendant\u2019s first point of error is that the trial court\u2019s consideration of the initial evaluation report of Drs. Krichev and Scharff constituted a violation of defendant\u2019s right of due process in that she did not have the opportunity to cross-examine either of these men.\nSection 43-1-11 of the Code provides in part as follows:\nA. Every adult client involuntarily admitted to an evaluation facility pursuant to Section 43-1-10 NMSA 1978 shall have the right to a hearing within seven days of admission unless waived after consultation with counsel. If the division, physician or evaluation facility decides to seek commitment of the client for evaluation and treatment, a petition shall be filed with the court within five days of admission requesting such commitment. The petition shall include a description of the specific behaviors or symptoms of the client which evidence a likelihood of serious harm to the client or others, and shall also include an initial screening report by the evaluating physician individually, or with the assistance of a mental health professional, or if a physician is not available, by a mental health professional acceptable to the court. The petition shall also list the prospective witnesses for commitment and a summary of the matters to which they will testify. Copies of the petition shall be served on the client and the client\u2019s attorney.\nB. At the hearing, the client shall be represented by counsel, and shall have the right to present evidence on his behalf, including testimony by an independent mental health professional of his own choosing, to cross-examine witnesses, and to be present at the hearing. The presence of the client may be waived upon a showing to the court that the client knowingly and voluntarily waives his right to be present. A complete record of all proceedings shall be made.\nC. Upon completion of the hearing, the court may order a commitment for evaluation and treatment not to exceed thirty days if the court finds by clear and convincing evidence that:\n(1) as a result of a mental disorder, the client presents a likelihood of serious harm to himself or others; [Emphasis added.]\nThe petition for commitment recited in part that:\n2. The Respondent has been examined by Al Kirchev, M. D., attending psychiatrist at the New Mexico State Hospital, upon her admittance to said hospital on the 20th day of February, 1979, and was found to be suffering from a mental disorder which presents a likelihood of serious harm to herself and others. According to telephone calls from mental health professionals at the hospital, the Respondent\u2019s condition has not improved significantly since her admittance on the 20th day of February, 1979. A copy of the initial evaluation will be filed herein immediately upon its receipt from the State Hospital.\n3. The prospective witnesses and a summary of the matters to which they are expected to testify follows:\nCarolyn Razenton, R.N.: Will testify as to the examination of the Respondent shortly before the hearing on this Petition and provide a current evaluation of her condition. Will also use the reports of the mental health professionals at the Las Vegas Medical Center as basis for her opinion and explain the medical diagnosis and recommendations contained therein, along with her personal knowledge of the patient\u2019s condition.\nMs. Rocky Wheeler: Will testify as to her behavior while in her custody. Also as to her behavior over the telephone and to her varied calls to the Ruidoso Police Department.\nMr. William Dean : Will testify as to her behavior at home and prior to her being taken to the New Mexico State Hospital.\nRon Harris: Will testify as to her calls to him regarding her suicidal tendencies and other actions.\nThe trial judge, at the termination of the hearing on the petition, announced his findings and conclusions from the bench, part of which was as follows:\nThat leaves the court\u2019s findings on whether as a result of the mental disorder the respondent presents a likelihood of serious harm to others or to herself, and I am going to make the decision not only upon the testimony of Ms. Razenton, who based her decision in part upon consultation with Dr. Hickey and the letter from the mental health professionals at the New Mexico State Hospital, but I am going to consider the letter from Dr. Kreschev [sic] and Dr. Scharf [sic]. I am going to find on that basis that there is a likelihood that respondent will cause serious harm to herself or others.\n. I believe I made it apparent on the record that I have considered the opinions of Dr. Kreschev [sic] and Dr. Scharf [sic] as taken into consideration by the mental health professional Carolyn Razenton. [Emphasis added.]\nAt the hearing Carolyn Razenton on direct examination was asked the following questions:\nQ. Ma\u2019am, I would like to show you a psychiatric evaluation report- dated February 23, 1979, entitled Kathy Dean, Quay County, and signed by Dr. Kreschev [sic] of the acute admissions unit and Dr. Ted Scharf [sic] of the acute admissions unit. This is from the State of New Mexico, State Hospital in Las Vegas, New Mexico. It is the same evaluation that is attached to the petition for the record, your Honor. Have you reviewed that evaluation report?\nA. Yes. I read through this last evening.\nQ. Is there anything in that evaluation done by Dr. Kreschev [sic] and Dr. Scharf [sic] that is inconsistent with your testimony?\nDefendant\u2019s counsel made the following objection:\nI am going to object to out of court .statements by these other doctors. They are hearsay.\nThe trial court ruled as follows:\nThe objection is sustained, however, you may rephrase your question and ask her if she took the content of that report into consideration in rendering her opinion in this matter.\nMs. Razenton was then asked and she answered:\nQ. Does your opinion take that evaluation into account?\nA. THE WITNESS: Yes, sir.\nRule 703, N.M.R. of Evid. provides:\nThe facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.\nRule 705, N.M.R. of Evid. provides:\nThe expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the judge requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.\nThe letter of evaluation was thus admissible evidence insofar as it formed part of the basis of Ms. Razenton\u2019s opinion and could properly be considered by the trial court. This is precisely what the trial court did. There was no error in this regard.\nThe defendant\u2019s second point of error is that there was no testimony by the mental health professional, whose opinion the initial screening report reflected, as to the likelihood of defendant causing serious harm to herself or others. Defendant contends that in order to commit an adult for a 30 day period pursuant to \u00a7 43-1-11, supra, \u201cthere must be testimony by the mental health professional whose opinion is reflected in the screening report as to the likelihood of defendant causing serious harm to herself or others.\u201d Defendant acknowledges that the provisions of \u00a7 43-1-11 do not make such a requirement, but argues that the \u201cinternal logic\u201d of the section requires the testimony of such mental health professional. Defendant goes on to argue that since such reports are not admissible in evidence, in and of themselves, the requirement that such a report be attached to a commitment petition would be a meaningless requirement unless the professional or professionals making the report were required to testify at the hearing.\nWe do not agree. It is our opinion that the legislature made the requirement that the report be attached to the petition to insure that there was sound professional justification for the commitment proceedings. There is no implicit requirement that the person or persons making such a report testify at the hearing. Had the legislature so intended, they would have explicitly stated so.\nWe affirm the order of the district court.\nIT IS SO ORDERED.\nWALTERS, J., concurs.\nSUTIN, J., dissents.", "type": "majority", "author": "HERNANDEZ, Judge." }, { "text": "SUTIN, Judge\n(dissenting).\nI dissent.\nThis appeal involves the involuntary commitment of Kathy Dean to the New Mexico State Hospital for evaluation and treatment, not to exceed thirty days. Dean appeals. I would reverse.\nThe State claims this appeal is moot because \u201cthe patient has been stabilized on her medication and was released at the end of the commitment period\u201d and \u201cthat no matter of public interest exists that would necessitate deciding it on the merits.\u201d I disagree. The record is silent on stabilization and release. Even if the facts stated are true, I have no knowledge of the number of other persons who may be affected by the trial court\u2019s error in arriving at its decision. This fact creates a matter of public importance that should be decided on the merits. Matter of Pernell, 92 N.M. 490, 590 P.2d 638 (Ct.App.1979). To commit a person to a mental institution summarily is a taint that demands care and circumspection on the part of the courts.\nThe State filed an unverified Petition for Involuntary Commitment for Mental Health Care. Pursuant to \u00a7 43-1-11, N.M. S.A. 1978, a copy of a Psychiatric Evaluation letter was attached to the petition signed by a physician and psychologist employed at the State Hospital. Neither of them testified, and the doctors\u2019 letter was not offered in evidence. At the close of the case, the trial court announced its decision in favor of commitment and declared:\n. I am going to make the decision not only upon the testimony of Ms. Razenton, (a registered psychiatrist nurse employed by the Lincoln and Otero County Mental Health Association) . but I am going to consider the letter from . (the two doctors). I am going to find on that bases that there is a likelihood that the respondent will cause serious harm to herself or others. [Emphasis added.]\nThe court\u2019s decision is reversible error as a matter of law.\nThe standard of proof in commitment proceedings is \u201cclear and convincing\u201d evidence. Matter of Valdez, 88 N.M. 338, 540 P.2d 819 (1975). \u201cFor evidence to be clear and convincing, it must instantly tilt the scales in the affirmative when weighed against the evidence in opposition and the fact finder\u2019s mind is left with an abiding conviction that the evidence is true.\u201d In re Sedillo, 84 N.M. 10, 12, 498 P.2d 1353, 1355 (1972). The trial court did not have an abiding conviction that the nurse\u2019s testimony, when weighed against that of Dean, tilted the scales in favor of the State. It relied on the letter sent to the district attorney that was not in evidence.\n\u201cEvidence\u201d constitutes the testimony and matters presented at trial for the purpose of proving a fact in issue. Taylor v. Howard, 111 R.I. 527, 304 A.2d 891 (1973); Commonwealth v. Myers, 393 Pa. 224, 144 A.2d 367 (1958). The letter was not evidence of the fact that Dean would cause serious harm to herself or to others. Schindler v. AG Aero Distributors, Inc., 502 S.W.2d 581 (Tex.Civ.App.1973).\nThe letter attached to the petition could not be considered unless the court could have taken judicial notice thereof. The limits of this rule are enumerated in Rule 44(d) of the Rules of Civil Procedure. The rule is not broad enough to include a medical report affecting the mental condition of a patient even though it is essential to establish the validity of a commitment petition.\nThe pleadings are not evidence. Pinson v. Dreymala, 320 S.W.2d 152 (Tex.Civ.App.1958); Sears v. Smith, 221 Ga. 47, 142 S.E.2d 792 (1965); Evers v. Hollman, 196 Tenn. 364, 268 S.W.2d 97 (1954); Stoney v. Soar, 322 Mass. 408, 76 N.E.2d 645 (1948). A party\u2019s pleadings merely present the issues. Morris v. City Council of Augusta, 204 Ga. 26, 48 S.E.2d 855 (1948). A verified complaint is but an affidavit and is not admissible over objection. Vaughn v. Coccimiglio, 241 Cal.App.2d 676, 50 Cal.Rptr. 876 (1966).\nThe State seeks to escape in various ways. It claims that Dean did not challenge the court\u2019s findings of fact; that the court\u2019s remarks are not appealable since they were not incorporated into the final order. The Mental Health and Developmental Disabilities Code, \u00a7\u00a7 43-1-2 to 43-1-23, N.M.S.A.1978 does not involve a trial governed by the Rules of Civil Procedure. Section 43-l-ll(C) reads:\nUpon completion of the hearing, the court may order a commitment for evaluation and treatment not to exceed seventeen days if the court finds by dear and convincing evidence that:\n(1) as a result of a mental disorder, the client presents a likelihood of danger to himself or others;\n(2) the client\u2019s condition is likely to improve with the proposed treatment; and\n(3) the proposed commitment is consistent with the least drastic means principle. [Emphasis added.]\nThe proceedings are not intended to be carried on in the formal manner in which ordinary civil actions are prosecuted between litigants. It is in the nature of a summary proceeding.\nAn order issued at the close of a hearing does not contemplate findings of fact and conclusions of law. The court did orally make its findings and order, one of which findings was quoted above. No provision is made in the statute that findings of fact and conclusions of law \u201cmust be given in writing and filed with the clerk in the cause\u201d as stated in Rule 52(B)(a) of the Rules of Civil Procedure. Rules 9(d) and (m)(2) of Rules of Appellate Procedure in Civil Cases are not applicable. It was unnecessary for Dean to challenge the court\u2019s findings.\nThe State relies on Peterson Prop., etc. v. Valencia Cty. Val. Protests Board, 89 N.M. 239, 549 P.2d 1074 (Ct.App.1976) which holds that statements of a judge as to reasons for a judgment, made before the judgment is entered cannot be considered part of a judgment. This case is far removed from the issue in the instant case. Here the triakcourt admitted that he took into consideration, in arriving at his Order of Commitment, evidence that was not of record. This was an admission that the evidence of record was not clear and convincing on the subject of Dean\u2019s likelihood of danger to herself or others.\nThe State also argues that no testimony is required by the mental health professional whose opinion is reflected in the initial screening report. The syllogistic argument is: (1) the admitting physician evaluates the person to determine if the person shall be detained; (2) the evaluation is made a part of the petition to commit the person; (3) therefore, the legislature intended that the letter of evaluation was prima facie evidence that the physician conducted the evaluation required and actually did determine reasonable grounds to detain the person. If this argument were acceptable, then, at the hearing, the State could rest upon its petition and await the person\u2019s presentation of a defense. The State admits that its argument is good \u201cIf speculation is in order as to the probable legislative intent in requiring that the initial screening report be filed with the petition . . . .\u201d In determining legislative intent, \u201cspeculation, guess or conjecture\u201d are not acceptable theories. They are blobs that courts must carefully avoid. If the legislature has enacted the State\u2019s position in the Mental Health Code, problems of due process would occur, a point raised by Dean in this appeal. The State\u2019s argument is not meritorious.\nI have carefully reviewed other matters raised by the State in this appeal. They merit no discussion.\nThe Order of the trial court should be . reversed.", "type": "dissent", "author": "SUTIN, Judge" } ], "attorneys": [ "Lee Huckstep, Mel B. O\u2019Reilly, P. C., Ruidoso, for appellant.", "Jeff Bingaman, Atty. Gen., Leslie D. Ringer, Chief Counsel, Beth W. Schaefer, Asst. Counsel Health and Environment Department, Santa Fe, for appellee." ], "corrections": "", "head_matter": "607 P.2d 132\nIn the Matter of Kathy DEAN, Alleged Mentally III Individual. STATE of New Mexico, Plaintiff-Appellee, v. Kathy DEAN, Defendant-Appellant.\nNo. 4045.\nCourt of Appeals of New Mexico.\nJan. 15, 1980.\nLee Huckstep, Mel B. O\u2019Reilly, P. C., Ruidoso, for appellant.\nJeff Bingaman, Atty. Gen., Leslie D. Ringer, Chief Counsel, Beth W. Schaefer, Asst. Counsel Health and Environment Department, Santa Fe, for appellee." }, "file_name": "0045-01", "first_page_order": 81, "last_page_order": 86 }