                                District of Columbia
                                 Court of Appeals
No. 15-FM-180                                                             JAN 12 2017

IN RE KAREN PERRY,
                                   Appellant.
                                                                         MRE-21-03


                            On Appeal from the Superior Court
                                  of the District of Columbia

      BEFORE: WASHINGTON, Chief Judge; and EASTERLY, and MCLEESE, Associate
Judges.

                                       JUDGMENT

               This case came to be heard on the transcript of record and the briefs filed,
and was argued by counsel. On consideration whereof, and for the reasons set forth in
the opinion filed this date, it is now hereby

              ORDERED and ADJUDGED that the reviewing judge’s order affirming
the magistrate judge’s order is vacated, and the case is remanded for further proceedings.


                                          For the Court:




Dated: January 12, 2017.

Opinion by Associate Judge Roy W. McLeese.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.

             DISTRICT OF COLUMBIA COURT OF APPEALS
                                                                              1/12/17
                                  No. 15-FM-180

                         IN RE KAREN PERRY, APPELLANT.

            Appeal from the Superior Court of the District of Columbia
                                Family Division
                                 (MRE-21-03)

                    (Hon. Aida L. Melendez, Magistrate Judge)
                    (Hon. Carol Ann Dalton, Reviewing Judge)

(Argued October 11, 2016                                 Decided January 12, 2017)

      Pierre E. Bergeron for appellant.

      Stacy L. Anderson, Senior Assistant Attorney General, with whom Karl A.
Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor
General, and Loren L. AliKhan, Deputy Solicitor General, were on the brief, for
appellee District of Columbia.

      Charles H. Fitzpatrick, guardian ad litem for appellant, filed a statement
adopting appellee’s brief.

     Before WASHINGTON, Chief Judge, and EASTERLY and MCLEESE, Associate
Judges.

      MCLEESE, Associate Judge:           In 2004, appellant Karen Perry was

involuntarily committed to a residential facility under the Citizens with Intellectual

Disabilities Act, D.C. Code § 7-1301 et seq. (2012 Repl. & 2016 Supp.), on the

grounds that she had a moderate intellectual disability and needed assistance to
                                            2

develop necessary life skills. In 2012, the District of Columbia Department on

Disability Services moved to have Ms. Perry’s involuntary commitment lifted,

contending that Ms. Perry had only a mild intellectual disability and thus could no

longer properly be involuntarily committed. Through court-appointed counsel,

Ms. Perry opposed the lifting of her involuntary commitment, arguing that

commitment was necessary to ensure that Ms. Perry did not have the option to

leave her residential facility and thus lose access to necessary services.      The

magistrate judge denied Ms. Perry’s requests for an evidentiary hearing and for

funds to obtain an expert to assist Ms. Perry’s counsel. Taking into account both

recent and prior evaluations of Ms. Perry, the magistrate judge concluded that there

was a reasonable doubt as to whether Ms. Perry was moderately intellectually

disabled.   The magistrate judge therefore terminated Ms. Perry’s involuntary

commitment. In this court, Ms. Perry argues, among other things, that she should

have been granted an evidentiary hearing and the assistance of an expert in

connection with that hearing. We agree that Ms. Perry should have been afforded

an evidentiary hearing. We therefore vacate the judgment and remand the case for

further proceedings.
                                            3

                     I. Facts and Procedural Background



      Ms. Perry was involuntarily committed to a residential facility pursuant to

D.C. Code § 7-1303.04, which authorizes such commitment only if the individual

being committed has at least a moderate intellectual disability. To have a moderate

intellectual disability, a person must be at least moderately impaired both

cognitively and adaptively. D.C. Code § 7-1301.03 (2). The court reviewed Ms.

Perry’s commitment annually, as required under D.C. Code § 7-1304.11, and Ms.

Perry was evaluated in connection with those reviews. Although a number of

those evaluations indicated that Ms. Perry’s cognitive functioning was moderately

impaired, some evaluations indicated that Ms. Perry’s cognitive functioning was

instead mildly impaired. Through 2009, the trial court determined that Ms. Perry

was moderately intellectually disabled. In 2010, 2011, and 2012, the trial court

found that Ms. Perry was mildly cognitively impaired and moderately adaptively

impaired, but continued her commitment nonetheless.



      In 2012, the Department on Disability Services moved to have Ms. Perry’s

involuntary commitment terminated, arguing that Ms. Perry was only mildly

cognitively impaired. In response, the magistrate judge ordered the District to

arrange for a new psychological evaluation of Ms. Perry. That evaluation was
                                             4

conducted by Dr. William H. Byrd, who diagnosed Ms. Perry as being mildly

cognitively impaired and moderately adaptively impaired.



      Ms. Perry filed a motion for an independent psychological evaluation,

pursuant to D.C. Code § 7-1304.04, arguing that Dr. Byrd’s examination did not

provide an adequate assessment of Ms. Perry’s cognitive functioning.           The

magistrate judge granted that request and appointed a guardian ad litem (GAL) to

select a psychologist to perform an independent evaluation of Ms. Perry’s level of

intellectual disability. A dispute arose in the trial court about the extent of the

District’s involvement in the selection of the independent evaluator.



      In July 2014, the GAL submitted the report of the evaluator, Dr. Brenda

Fawcett, along with his own recommendations.1 Although Ms. Perry’s full-scale

IQ score placed her in the range of moderate cognitive impairment, Dr. Fawcett


      1
          The trial court initially appointed the GAL for the limited purpose of
selecting an independent evaluator. The GAL subsequently participated more
broadly, both in the trial court and in this court. The trial court appears to have
appointed the GAL as a neutral aid to the court, rather than as an advocate charged
with determining Ms. Perry’s wishes and seeking to advance those wishes. See
generally In re J.J.Z., 630 A.2d 186, 192 n.10 (D.C. 1993) (comparing differing
roles played by GALs appointed as advocates and GALs appointed as neutral
factfinders); S.S. v. D.M., 597 A.2d 870, 876-77 (D.C. 1991) (discussing differing
roles played by GALs in various settings). On remand, the magistrate judge may
wish to clarify both the scope and the nature of the GAL’s role in this case.
                                             5

viewed that score as “a statistical anomaly” and concluded that Ms. Perry’s test

scores as a whole placed Ms. Perry in the range of mild intellectual disability, both

cognitively and adaptively. The GAL recommended that Ms. Perry’s commitment

be terminated based on Dr. Fawcett’s diagnosis.



      Ms. Perry contested Dr. Fawcett’s findings. Ms. Perry also requested both

an evidentiary hearing and the appointment of a psychologist, chosen by Ms.

Perry’s counsel, to either conduct a further examination or provide a written report

based on existing data, and to assist counsel in connection with the evidentiary

hearing. After denying Ms. Perry’s requests for an expert and for an evidentiary

hearing, the magistrate judge terminated Ms. Perry’s involuntary commitment.

Ms. Perry filed a motion with the Superior Court seeking review of the magistrate

judge’s order. The reviewing judge affirmed.



                                  II. Discussion



      On appeal, “we review the magistrate judge’s factual findings . . . for abuse

of discretion or a clear lack of evidentiary support.” In re C.L.O., 41 A.3d 502,

510 (D.C. 2012) (internal quotation marks omitted). We review alleged errors of

law de novo. Id.
                                           6



              A. Ms. Perry’s Request for an Evidentiary Hearing



      We turn first to Ms. Perry’s argument that the magistrate judge erred by

failing to conduct an evidentiary hearing. We agree.



      Under the Citizens with Intellectual Disabilities Act, the court must conduct

annual hearings to review the involuntary commitment of an intellectually disabled

person. D.C. Code § 7-1304.11 (a). Although involuntary-commitment hearings

may be informal, respondents at such hearings have the right to be present, to

testify, to call witnesses and present evidence, and to cross-examine opposing

witnesses. D.C. Code § 7-1304.06. The District suggested at oral argument that

these procedural protections apply only to initial commitment hearings, not to

subsequent annual reviews. We conclude to the contrary. Section 7-1304.06 is not

explicitly limited to initial commitment hearings.     Rather, Section 7-1304.06

provides a right to present evidence and to cross-examine witnesses at “hearings”

generally. Moreover, the right to an evidentiary hearing extends to “respondents,”

a term that includes a “person whose . . . continued commitment is being sought in

any proceeding under [Chapter 13 of Title 7 of the D.C. Code].” D.C. Code § 7-

1301.03 (24). Section 7-1304.06 thus provides a right to an evidentiary hearing
                                              7

when continued involuntary commitment on the basis of intellectual disability is at

issue. Although this case is in an unusual posture because Ms. Perry seeks her own

continued commitment, Ms. Perry nevertheless is a respondent entitled to the

protections of Section 7-1304.06, because her “continued commitment is being

sought.”   We therefore conclude that Ms. Perry had a statutory right to an

evidentiary hearing, at least upon proper request. Cf. D.C. Code §§ 7-1303.09 (a),

.10 (b) (where District seeks to transfer committed person to less restrictive facility

or to discharge committed person from residential care, committed person has right

to evidentiary hearing upon request).



      The District argues that although Ms. Perry requested an evidentiary

hearing, she always tied that request to her request for the assistance of an expert.

Thus, the District argues, if the magistrate judge correctly denied Ms. Perry’s

request for the assistance of an expert, then Ms. Perry’s request for an evidentiary

hearing was also properly denied. It is true that Ms. Perry often linked her requests

for an evidentiary hearing and her requests for the assistance of an expert. Ms.

Perry indicated several times in the trial court, however, that she wanted an

evidentiary hearing at least in part in order to cross-examine the experts relied

upon by the District. Moreover, the magistrate judge did not deny Ms. Perry’s

request for an evidentiary hearing on the ground that that request was dependent on
                                             8

Ms. Perry’s request for expert assistance. Rather, the magistrate judge denied the

request on the ground that an evidentiary hearing was “not required where the most

recent psychological evaluation meets accepted professional standards, shows the

exercise of sound professional judgment, and is consistent with previous

findings.”2 In upholding the magistrate judge’s ruling, the reviewing judge stated

that there was not “any statutory authority for an evidentiary hearing in the instant

case.”       Because Ms. Perry adequately indicated that she was requesting an

evidentiary hearing in part in order to confront the experts relied upon by the

District, and because the trial court denied Ms. Perry’s request on the merits, we

conclude that Ms. Perry preserved an independent claim to an evidentiary hearing.



         Ms. Perry reasonably sought an evidentiary hearing in this case to cross-

examine the experts relied upon by the District and to dispute the proper weight to

be given to the most recent psychological evaluation. For the foregoing reasons,

we hold that Ms. Perry was entitled to such an evidentiary hearing. Although the

District suggests that the failure to afford Ms. Perry such a hearing was harmless,



         2
         In denying Ms. Perry’s request for an evidentiary hearing, the magistrate
judge appeared to rely on D.C. Code § 7-1304.04. Section 7-1304.04, however,
states the standard applicable to requests for an independent comprehensive
evaluation of a respondent. It does not address a respondent’s right to an
evidentiary hearing.
                                            9

we are not confident on the current record that affording Ms. Perry an evidentiary

hearing would not have affected the outcome of the review proceeding. See, e.g.,

In re Ty.B., 878 A.2d 1255, 1267 (D.C. 2005) (“We must determine whether the

error was sufficiently insignificant to give us fair assurance that the judgment was

not substantially swayed by it.”) (brackets and internal quotation marks omitted).

We therefore vacate the judgment and remand the case for the trial court to hold an

evidentiary hearing.3   Cf. White v. United States, 146 A.3d 101 (D.C. 2016)

(vacating judgment and remanding case on ground that trial court failed to conduct

necessary evidentiary hearing).




      3
          Ms. Perry also raises several challenges to the magistrate judge’s finding
that there was a reasonable doubt as to whether Ms. Perry was moderately
intellectually disabled. Most broadly, Ms. Perry argues that the evidence
compelled the magistrate judge to find beyond a reasonable doubt that Ms. Perry
was at least moderately intellectually impaired. Ms. Perry therefore requests that
we remand the case with instructions that Ms. Perry’s involuntary commitment be
continued. We agree with the reviewing judge, however, that the current record
permitted the magistrate judge to have a reasonable doubt as to whether Ms. Perry
was moderately intellectually disabled. Cf., e.g., Davis v. United States, 564 A.2d
31, 35 (D.C. 1989) (“[W]here the facts admit of more than one interpretation, the
appellate court must defer to the trial court’s judgment.”). Because the magistrate
judge will address the issue of the degree of Ms. Perry’s intellectual disability
again on a different record after the evidentiary hearing, we do not address Ms.
Perry’s other specific challenges at this point.
                                            10

                 B. Ms. Perry’s Request for Expert Assistance



      We also address Ms. Perry’s claim that the magistrate judge erred by failing

to provide Ms. Perry with expert assistance in connection with the review hearing.

We conclude that the magistrate judge should further address that issue on remand.



      Relying on the Criminal Justice Act, D.C. Code § 11-2601 et seq. (2012

Repl.) and the Citizens with Intellectual Disabilities Act, Ms. Perry asked the

magistrate judge to approve the expenditure of public funds so that Ms. Perry

could obtain an expert who would assist her in connection with the review

proceeding. The magistrate judge denied that request, concluding that the Criminal

Justice Act was inapplicable, because the Act is “a criminal statute pertaining to

representation of indigents in criminal cases” and because the Act specifies that

counsel may only obtain expert services at public expense “if necessary for an

adequate defense.”     D.C. Code § 11-2605 (a)-(b).      The reviewing judge also

concluded that the Criminal Justice Act was inapplicable.



      Interpreting the applicable provisions of law de novo, In re C.L.O., 41 A.3d

at 510, we hold that the trial court has discretionary authority to provide an expert,

at public expense, to assist counsel representing an indigent person who is
                                            11

intellectually disabled and whose continued involuntary commitment is at issue in

a review proceeding.



      Involuntary commitment proceedings are not criminal in character. See In

re Amey, 40 A.3d 902, 915 (D.C. 2012).            One therefore would not leap

immediately to the conclusion that a provision in the Criminal Justice Act would

apply to such proceedings. In a case involving involuntary civil commitment on

the ground of mental illness, however, this court long ago held that “[a] respondent

in a civil commitment case is certainly entitled to the services of a psychiatric

expert upon a showing of financial inability to obtain the expert and a

demonstration that the service is ‘necessary [for] an adequate defense.’” In re

Morrow, 463 A.2d 689, 692 (D.C. 1983) (quoting D.C. Code § 11-2605 (a) (1981)

(Criminal Justice Act provision that authorizes courts to approve payment of expert

for services necessary for adequate defense)). Perhaps for that reason, the Superior

Court Rules for Mental Retardation Proceedings contemplate that appointed

attorneys will submit vouchers for payment under the Criminal Justice Act. Super.

Ct. Ment. Ret. R. 2 (a).



      On the other hand, the Citizens with Intellectual Disabilities Act contains its

own provisions authorizing the appointment of counsel and the payment of
                                             12

expenses, including expenses associated with experts designated by the court.

D.C. Code §§ 7-1304.02, .12; see also Super. Ct. Ment. Ret. R. 11 (b) (indicating

that counsel in mental-disability proceedings shall be appointed “pursuant to D.C.

Code § 7-1304.02” and “paid in accordance with Criminal Justice Act criteria

established by the Court”).



      Both the Criminal Justice Act and the Citizens with Intellectual Disabilities

Act grant trial courts discretionary authority to provide expert assistance, at public

expense, to indigent litigants. Although the Criminal Justice Act uses the term

“necessary,” we have interpreted the Act to require the trial court to assess requests

for such assistance “on a standard of reasonableness.” Jackson v. United States,

768 A.2d 580, 587 (D.C. 2001) (internal quotation marks omitted). Because we

see no material difference between the scope of the trial court’s discretion to

provide expert assistance under the Criminal Justice Act and the scope of that

discretion under the Citizens with Intellectual Disabilities Act, we need not and do

not decide in this case the precise source of the trial court’s authority. Rather, we

hold only that the trial court has discretionary authority to provide expert

assistance, at public expense, to indigent respondents with intellectual disabilities

whose involuntary commitment is at issue.
                                            13

      The magistrate judge’s order arguably suggests that the magistrate judge in

any event would not have been inclined to provide Ms. Perry with an expert. The

magistrate judge’s exercise of discretion on remand might be affected, however, by

our holding that Ms. Perry is entitled to an evidentiary hearing. On remand, the

magistrate judge therefore should consider anew any request by Ms. Perry for the

assistance of an expert in connection with that evidentiary hearing.



      We note that the question whether the magistrate judge should provide Ms.

Perry with expert assistance is distinct from the question whether the magistrate

judge erred in its handling of the most recent independent comprehensive

evaluation conducted pursuant to D.C. Code § 7-1304.04. Cf. Williams v. United

States, 310 A.2d 244, 247 n.4 (D.C. 1973) (noting distinction between appointment

of expert to assist court and appointment of expert to assist litigant). Ms. Perry

claims that the evaluation was not independent, because the District in effect

selected the psychologist who performed the evaluation. The District disputes that

claim. Because the evidentiary hearing may shed light on this factual dispute, we

leave the matter to be further addressed on remand.
                                           14

      For the foregoing reasons, we vacate the reviewing judge’s order affirming

the magistrate judge’s order and remand the case for further proceedings.



                                                          So ordered.
