                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS

                                                                                     FILED
In re: Involuntary Hospitalization of C.M.                                        April 10, 2017
                                                                                   RORY L. PERRY II, CLERK
No. 15-0997 (Kanawha County 15-MH-1089)                                          SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA



                               MEMORANDUM DECISION
        Petitioner C.M., by counsel C. Joan Parker, appeals the September 12, 2015, order of the
Mental Hygiene Commissioner of Kanawha County (“Commissioner”) committing her to a
psychiatric hospital upon a finding of probable cause that petitioner was likely to harm herself or
others.1 The State of West Virginia, by counsel Allison Carroll Anderson, filed its response in
support of the Commissioner’s order. West Virginia Advocates, Inc., as amicus curiae, by
counsel Regenia L. Mayne, filed a brief in support of petitioner’s appeal. Petitioner filed a reply.
On appeal, petitioner argues that the Commissioner failed to consider all relevant and reliable
evidence, failed to make specific findings of fact before ruling that petitioner was drug addicted
and mentally ill, and failed to conclude that West Virginia Code §§ 27-5-1 to -11 is
unconstitutionally vague.

         This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, we find that the circuit court erred with respect to its denial of petitioner’s motion to
alter or amend judgment. For these reasons, a memorandum decision reversing the circuit court’s
order is appropriate under Rule 21 of the Rules of Appellate Procedure.

        In September of 2015, petitioner was transported, by ambulance, to Charleston Area
Medical Center (“CAMC”) after attempting suicide. Upon admission to the CAMC emergency
room, petitioner reportedly told hospital staff that she attempted suicide because she was in
“chronic long term pain.” Specifically, petitioner stated that she intentionally overdosed on her
prescribed insulin for the management of her diabetes earlier in the day and that, if she was sent
home, she would attempt suicide again, stating “I will do a better job and not be back.”

      A hospital crisis worker filed an application for involuntary custody for mental health
examination pursuant to West Virginia Code § 27-5-2. Subsequently, a licensed independent
       1
        Consistent with our long-standing practice in cases with sensitive facts, we use initials where
necessary to protect the identities of those involved in this case. See In re K.H., 235 W.Va. 254, 773
S.E.2d 20 (2015); Melinda H. v. William R. II, 230 W.Va. 731, 742 S.E.2d 419 (2013); State v.
Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005); State v. Edward Charles L., 183 W.Va. 641, 398
S.E.2d 123 (1990).
                                                  1

clinical social worker examined petitioner and determined that it was probable that petitioner
would engage in additional self-harmful behavior and the probability of harmful behavior
required her immediate hospitalization. Following the social worker’s determination, the
Commissioner held a probable cause hearing and petitioner was appointed counsel. At the
hearing, the hospital crisis worker and the social worker both testified that petitioner told them
that she attempted suicide, wanted to die, and would attempt suicide again. Petitioner admitted
that she was clinically depressed and addicted to prescription Valium. She also testified that she
“would welcome death anytime.” At the close of the evidence, the Commissioner found probable
cause that petitioner was addicted to drugs, a danger to herself, suicidal, mentally ill, and in need
of in-patient psychiatric treatment. Upon the Commissioner’s probable cause finding, petitioner
was involuntarily hospitalized, pursuant to West Virginia Code § 27-5-2, by order entered on
September 12, 2015. Following the probable cause hearing and her involuntarily hospitalization,
petitioner was treated and released. It is not clear from the record how long petitioner was
involuntarily hospitalized or when she was discharged. In January of 2016, petitioner filed the
instant direct appeal of her involuntarily hospitalization to this Court pursuant to West Virginia
Code § 27-5-5.

        “Where the issue on an appeal from the circuit court is clearly a question of law or
involving an interpretation of a statute, we apply a de novo standard of review.” Syl. Pt. 1,
Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). Similarly, “questions of
constitutionality are also subject to de novo review.” Syl. Pt. 1, State v. Rutherford, 223 W.Va. 1,
672 S.E.2d 137 (2008). Finally, “[f]indings of fact, whether based on oral or documentary
evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge the credibility of the witnesses.” W.Va. R. Civ. P. 52(a)
(1998).

        On appeal, petitioner argues that the Commissioner failed to safeguard her rights and
interests when he failed to consider her “lucid and cogent” testimony disputing the claims
regarding her mental health, drug addiction, and alleged suicide attempt. West Virginia Code §
27-5-1(b)(1), provides, in part, that “[t]he Commissioner shall safeguard, at all times, the rights
and interests of the individual as well as the interests of the state . . . .” Petitioner denies that she
told the hospital crisis worker or the social worker that she attempted suicide or was suicidal.
Petitioner further claims that, at the time of the probable cause hearing, she was not suicidal.

        West Virginia Code § 27-5-2(f) requires that

        [a]t the conclusion of the [probable cause] hearing, the . . . , commissioner . . .
        shall find and enter an order stating whether or not there is probable cause to
        believe that the individual, as a result of mental illness or addiction, is likely to
        cause serious harm to himself or herself or to others.

        According to the record on appeal, the Commissioner heard testimony, as recounted
above, and found that petitioner was addicted to medication, was suicidal, and was a danger to
herself. As such, the Commissioner made the findings required by West Virginia Code § 27-5­
2(f) and his findings were supported by the evidence. Importantly, the Commissioner was
entitled to determine the weight and credibility of the testimony before him. State v. Guthrie, 194

                                                   2

W.Va. 657, 669, 461 S.E.2d 163, 175 (1995) (stating that “[a]n appellate court may not decide
the credibility of witnesses or weigh evidence as that is the exclusive function and task of the
trier of fact.”). His determination that the testimony of the hospital crisis worker and the social
worker were more credible than petitioner’s was within his discretion and supported by the
record on appeal. Thus, we find no error in the Commissioner’s probable cause finding.

       Petitioner also argues that she was not drug addicted or mentally ill at the time of the
probable cause hearing. She contends that the Commissioner’s nonspecific findings regarding
her mental health and drug addiction failed to reference the factual evidence, as required by West
Virginia Code § 27-5-1(b)(1), which provides that the Commissioner “shall make a written
report of his or her findings to the circuit court.” Essentially, petitioner argues that the
Commissioner failed to set forth the “specific facts upon which these findings of probable cause
are based.” Petitioner also contends that the Commissioner did not listen to or consider her
testimony contesting the allegations or her “uncontroverted” testimony that she did not overdose
on insulin.

        We find no error in the Commissioner’s probable cause order directing petitioner’s
commitment, as he found that petitioner was suffering from a mental illness and was likely to
harm herself. The Commissioner based his finding of mental illness on the following specific
facts: petitioner told hospital crisis staff that she attempted suicide; intentionally overdosed on
her prescribed insulin; attempted suicide earlier in the day; and would attempt suicide again if
she was sent home. Further, a licensed independent clinical social worker examined petitioner
and determined that it was probable that she would engage in additional self-harmful behavior.
The Commissioner made all of the requisite findings required by West Virginia Code § 27-5-2,
which provides that the Commissioner “shall find and enter an order stating whether or not there
is probable cause to believe that the individual, as a result of mental illness or addiction, is likely
to cause serious harm to himself or herself or to others.” The Commissioner found that petitioner
was mentally ill and a danger to herself; his findings were based on the testimony of the hospital
crisis worker and the social worker regarding their interactions with petitioner. As such, we find
no error in the Commissioner’s probable cause findings.

         Petitioner also contends that the Commissioner’s probable cause finding of addiction
departed from the statutory definition of addiction, pursuant to West Virginia Code § 27-1-11,
and that there was no evidence to support the finding that she was drug addicted or a danger to
herself as a result of addiction. According to West Virginia Code § 27-1-11, addiction is “a
maladaptive pattern of substance use leading to clinically significant impairment or distress . . .
.” The Commissioner found that petitioner, a former nurse, was addicted based upon on her own
admission that she was addicted to prescription Valium and “welcomed death.” She further
testified that she would go through “Valium withdrawal” if the drug was taken away from her.
Based on petitioner’s own testimony, the Commissioner did not err in finding that petitioner was
drug addicted.

       Next, petitioner argues that the involuntary commitment statutes are unconstitutionally
vague because of the collateral consequences petitioner suffered as a result of the finding that she
was drug addicted and mentally ill. Petitioner argues that West Virginia Code §§ 27-5-1 to -11 is
unconstitutional, notwithstanding the process set forth in West Virginia Code § 61-7A-5. West

                                                  3

Virginia Code § 61-7A-5(a) provides that

       [a]ny person who is prohibited from possessing a firearm pursuant to the
       provisions of section seven, article seven of this chapter or by provisions of
       federal law by virtue solely of having previously been adjudicated to be mentally
       defective or to having a prior involuntary commitment to a mental institution
       pursuant to chapter twenty-seven of this code may petition the circuit court of the
       county of his or her residence to regain the ability to lawfully possess a firearm.

Accordingly, West Virginia Code § 61-7A-5(b) provides that

       [p]etitioners prohibited from possession of firearms due to a mental health
       disability, must include in the petition for relief from disability: a listing of
       facilities and location addresses of all prior mental health treatment received by
       petitioner; an authorization, signed by the petitioner, for release of mental health
       records to the prosecuting attorney of the county; and a verified certificate of
       mental health examination by a licensed psychologist or psychiatrist occurring
       within thirty days prior to filing of the petition which supports that the petitioner
       is competent and not likely to act in a manner dangerous to public safety.

        Petitioner contends that, as an indigent person, she is unable to “afford to go through the
process” of removing the existing collateral consequences of her involuntary commitment.
Petitioner also contends that she “must engage in an expensive and complicated legal process to
have her name removed from the central state mental health registry and have her gun possession
privileges restored.” Therefore, petitioner claims that she has no meaningful way to exercise her
right to have her gun privileges restored simply because she cannot afford the legal process and
procedure required by statute. We note, however, that petitioner presented no evidence that she
ever attempted to follow the statutory procedure for seeking the removal of her name from the
state mental health registry and the restoration of her gun possession rights. The record is also
devoid of any evidence concerning petitioner’s financial status or the actual costs associated with
such a proceeding. West Virginia Code § 61-7A-5 allows an individual, like petitioner, to
petition the circuit court for their removal from the central state mental health registry and have
their gun possession privileges restored. Notwithstanding petitioner’s argument to the contrary,

       we again find that because West Virginia Code § 61-7A-5 sets forth a procedure
       through which a person may petition the circuit court for the removal of . . . her
       name from the mental health registry and for the restoration of . . . her right to
       possess a firearm, such are not collateral consequences that warrant our review. . .
       .

In re: Involuntary Hospitalization of T.O., No. 16-0095, 2017 WL 562828, at * (W.Va. Feb. 8,
2017).

Because a remedy exists for petitioner’s claimed injury, we find no error.

       Petitioner also argues that the civil commitment process outlined in West Virginia Code

                                                4

§§ 27-5-1 to -11 is unconstitutionally vague because it does not provide guidance to fact-finders
on how to determine whether an individual is a danger to themselves or others. Petitioner
contends that the statutory scheme does not require a Commissioner to consider the individual’s
condition at the time of the probable cause hearing and permits licensed social workers to
perform examinations and issue recommendations regarding an individual’s alleged mental
illness or drug addiction. West Virginia Code § 27-1-12(a) provides that

       “[l]ikely to cause serious harm” means an individual is exhibiting behaviors
       consistent with a medically recognized mental disorder or addiction, excluding,
       however, disorders that are manifested only through antisocial or illegal behavior
       and as a result of the mental disorder or addiction: (1) The individual has inflicted
       or attempted to inflict bodily harm on another; (2) The individual, by threat or
       action, has placed others in reasonable fear of physical harm to themselves; (3)
       The individual, by action or inaction, presents a danger to himself, herself or
       others in his or her care; (4) The individual has threatened or attempted suicide or
       serious bodily harm to himself or herself; or (5) The individual is behaving in a
       manner as to indicate that he or she is unable, without supervision and the
       assistance of others, to satisfy his or her need for nourishment, medical care,
       shelter or self-protection and safety so that there is a substantial likelihood that
       death, serious bodily injury, serious physical debilitation, serious mental
       debilitation or life-threatening disease will ensue unless adequate treatment is
       afforded.

According to petitioner, the statutory language “likely to cause serious harm” requires a person
to guess at its meaning, is subjective, and leads to unlawful commitments of individuals who
pose no real danger to themselves or others. Referencing the Commissioner’s reliance on the
licensed social worker’s diagnosis of petitioner as “suicidal,” petitioner contends that the
subjective language and the unreliability of the “danger to self” evaluations lead to arbitrary
outcomes because no person can satisfy such a vague statute.

       As we explained in State v. Flinn, “[a] statute which either forbids or requires the doing
of an act in terms so vague that men of common intelligence must necessarily guess at its
meaning and differ as to its application violates the first essential of due process of law.” 158
W.Va. 111, 117, 208 S.E. 2d 538, 545 (2003). To satisfy substantive due process, “legislative
acts must bear a reasonable relationship to proper legislative purpose and be neither arbitrary or
discriminatory.” State ex rel. White v. Todt, 197 W.Va. 334 n. 347, 475 S.E. 2d 426 n.
439(1996).

        Here, petitioner does not argue that West Virginia Code §§ 27-5-1 to -11 are ambiguous.
Rather, she contends that the statute is unfair regardless of the procedure. While petitioner
contends that she posed no danger to herself, her argument is not supported by the evidence on
the record. Petitioner told hospital staff that she attempted suicide because she was in chronic
pain, intentionally overdosed on her prescribed insulin, and that she would attempt suicide again.
Petitioner’s argument fails to demonstrate that the process found in West Virginia Code §§ 27-5­
1 to -11 is unreasonable, arbitrary, or discriminatory. Thus, her claim that West Virginia Code §
§ 27-5-1 to -11 is unconstitutionally vague must fail.

                                                5

       Petitioner further contends that the involuntary commitment statutes should require that
the Commissioner consider an individual’s condition at the time of the probable cause hearing.
However, this requirement is already found within the statutory language. West Virginia Code §
27-5-2 requires that when an individual is taken into custody for the purpose of a probable cause
hearing, the hearing must be held forthwith following the initial examination. Furthermore, West
Virginia Code § 27-1-12(b) requires that

       [i]n making the “likely to cause serious harm” determination, judicial, medical,
       psychological and other evaluators and decisionmakers should utilize all available
       information, including psychosocial, medical, hospitalization and psychiatric
       information and including the circumstances of any previous commitments or
       convalescent or conditional releases that are relevant to a current situation, in
       addition to the individual’s current overt behavior. The rules of evidence shall be
       followed in making the “likely to cause serious harm” determination . . . .

(Emphasis added). Therefore, the statutory scheme expressly requires that the Commissioner
consider an individual’s condition at the time of the probable cause hearing. Further, at the
probable cause hearing, petitioner admitted that she was clinically depressed and addicted to
prescription Valium. As such, we find that West Virginia Code §§ 27-5-1 to -11 are not
unconstitutionally vague.

        Finally, petitioner contends that the civil commitment process is unconstitutionally vague
because it permits licensed social workers to perform examinations and issue recommendations
regarding an individual’s alleged mental illness or drug addiction. According to petitioner, the
statutory language “likely to cause serious harm” requires a person to guess at its meaning, is
subjective, and leads to unlawful commitments of individuals who pose no real danger to
themselves or others. We disagree.

       West Virginia Code § 27-5-2(e) sets forth a specific list of mental health professionals
that may serve as licensed examiners under the statute, including licensed independent clinical
social workers.2 Additionally, West Virginia Code § 27-5-2(e) provides that the licensed
independent clinical social worker

       may only perform the examination if he or she has previously been authorized by
       an order of the circuit court to do so, the order having found that the licensed
       independent clinical social worker . . . has particularized expertise in the areas of

       2
           West Virginia Code § 27-5-2(e) provides that

       [t]he circuit court, mental hygiene Commissioner or designated magistrate may
       enter an order for the individual named in the application to be detained and taken
       into custody for the purpose of holding a probable cause hearing . . . for the
       purpose of an examination of the individual by a physician, psychologist, a
       licensed independent clinical social worker practicing in compliance with article
       thirty, chapter thirty of this code.
                                                 6

       mental health and mental hygiene or addiction sufficient to make the
       determinations as are required by the provisions of this section.

Therefore, West Virginia Code § 27-5-2 provides that licensed independent clinical social
workers are fully qualified to assess and diagnose mental hygiene patients, like petitioner, in
order to identify mental illness or addiction issues and render their opinion as to the likelihood of
harm to one’s self. Further, it is entirely within the purview of our legislature to determine who is
qualified to make such mental health and mental hygiene determinations. See Kansas v.
Hendricks, 521 U.S. 346, 347 (1997) (affirming that state legislatures were never required to
“adopt any particular nomenclature in drafting civil commitment statutes. Rather, we have
traditionally left to legislators the task of defining terms of a medical nature that have legal
significance.”). In petitioner’s case, and as previously stated, the licensed independent clinical
social worker based her determination that petitioner was likely to cause serious harm to herself
because petitioner attempted suicide and stated that she would attempt suicide again. As such, we
find that West Virginia Code §§ 27-5-1 to -11 are not unconstitutionally vague.

       Upon our review, and based on the facts and circumstances of this case, we affirm the
order of the Commissioner entered on September 12, 2015.


                                                                                          Affirmed.

ISSUED: April 10, 2017


CONCURRED IN BY:

Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker




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