                                                                                        03/31/2017




               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                March 22, 2017 Session

STATE OF TENNESSEE DEPARTMENT OF CORRECTION v. GEORGE
                        TODD

                Appeal from the Probate Court for Davidson County
                  No. 16P-1162       Randy M. Kennedy, Judge
                     ___________________________________

                           No. M2016-02038-COA-R3-CV
                       ___________________________________

A prison inmate appeals the trial court’s decision to appoint a limited conservator for
healthcare decisions over the inmate and give the conservator the authority to consent to
the forcible treatment on behalf of the inmate. Discerning no error, we affirm.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate Court Affirmed

J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the court, in which BRANDON O.
GIBSON and KENNY ARMSTRONG, JJ., joined.

Danny Ross Dickerson, Nashville, Tennessee, for the appellant, George Todd.

Herbert H. Slatery, III, Attorney General and Reporter; Andreé S. Blumstein, Solicitor
General; Eric A. Fuller, Assistant Attorney General, for the appellee, Tennessee
Department of Correction.

                                       OPINION

                                      Background
       Respondent/Appellant George Todd is an inmate in the custody of the
Petitioner/Appellee Tennessee Department of Correction (“TDOC”). In 1995, Mr. Todd
entered into a negotiated plea agreement in which he agreed to plead guilty to second
degree murder for a sentence of forty-five years. Mr. George’s sentence is currently set to
expire in January 2022.
      This is not the first conservatorship case involving Mr. Todd and TDOC. Mr.
Todd was previously adjudicated mentally incompetent and placed under a limited
conservatorship. This limited conservatorship terminated upon Mr. Todd’s parole from
prison in 2012, but he soon returned to TDOC custody in November 2013, after violating
his parole. Accordingly, TDOC filed a petition in January 2016 to again have Mr. Todd
placed under a limited conservatorship in order to make health care decisions. Mr. Todd
opposed the petition. Prior to an evidentiary hearing on the petition, Mr. Todd’s mental
health improved to the point that his treating physician no longer believed that a limited
conservatorship was appropriate. The petition was therefore voluntarily dismissed with
prejudice.
       Unfortunately, in the opinion of Mr. Todd’s physician, his mental health began to
seriously deteriorate. Consequently, on July 7, 2016, TDOC filed another petition for a
limited conservatorship over Mr. Todd. TDOC specifically requested that the conservator
appointed be given authority “to provide consent for medical and psychiatric treatment
that [Mr. Todd] may require while he is incarcerated; including the forcible
administration of medications if the conservator finds that such is necessary.” On the
same day the petition was filed, TDOC filed a motion to submit a report from two
evaluations performed on Mr. Todd: one by Mr. Todd’s treating physician, prison
physician Dr. Molly O’Toole, and one by the independent Treatment Review Committee.
Dr. O’Toole noted in her evaluation that Mr. Todd currently suffers from schizoaffective
disorder, bipolar type. Dr. O’Toole opined that Mr. Todd’s condition had deteriorated
since he stopped taking psychotropic medication, making him unable to be an informed
participant in decisions about his healthcare. Dr. O’Toole further noted that Mr. Todd
admitted to having split personalities and once informed Dr. O’Toole that he “could kill
[Dr. O’Toole] because [she is] a witch.” Similarly, the psychiatrist who performed the
independent evaluation noted that Mr. Todd “exhibit[ed] active signs of mental illness,”
despite his refusal to acknowledge his disorder, and recommended involuntary
administration of medication.
       The trial court appointed Mr. Todd both a guardian ad litem and an attorney ad
litem. The guardian ad litem filed a detailed report after meeting with Mr. Todd, his
family members, and his former co-worker, who reported conflicting views of Mr.
Todd’s mental health.1 According to Mr. Todd’s mother and sister, Mr. Todd often
experiences periods of stability followed by mental breakdowns, especially while
incarcerated. Mr. Todd’s sister insisted that Mr. Todd could not be trusted, that he does
not have a firm grasp on reality, and that he has claimed to be God, Jesus, or other
religious figures. According to Mr. Todd’s sister, he had “gone off the deep end” after his
parole was revoked and his father passed away. Mr. Todd’s sister also indicated that Mr.
Todd suffers from paranoia and believes that “everyone is out to get him.” In November
       1
          The guardian ad litem’s report was apparently originally filed in connection with the January
2016 conservatorship action that was later voluntarily dismissed. Therefore, it was not included in the
record on appeal. Mr. Todd filed a motion on March 29, 2017 to supplement the appellate record to
include the report of the guardian ad litem. In the motion, Mr. Todd asserted that the report had been
considered by the trial court in the underlying matter. TDOC did not oppose the supplementation and it
was granted by this Court. Accordingly, we will consider the guardian ad litem’s report as substantive
evidence in this case.
                                                 -2-
2015, Mr. Todd met with his sister in prison; Mr. Todd’s sister indicated that he “acted
very strangely and was alternating between extreme emotions, crying one moment and
laughing the next.” Mr. Todd’s mother likewise stated that Mr. Todd once claimed to be
the devil and that he suffers from delusions.
        In contrast, Mr. Todd’s co-worker while he was on parole testified to Mr. Todd’s
stability when not incarcerated. According to the co-worker, Mr. Todd helped her give
presentations at work, maintained his own clean apartment, paid all his bills, and
otherwise did “extremely well adjusting to life outside of prison.” According to the co-
worker, Mr. Todd was not taking medications while on parole because “he wanted his
mind to be clear.” Mr. Todd’s co-worker also believed that the revocation of Mr. Todd’s
parole was wrongful and that he was fully capable of managing his own affairs without a
conservator.
        The medical records detailed in the guardian ad litem’s report, however, told a
starkly different picture of Mr. Todd’s mental health after he was incarcerated in
November 2013. According to the record, Mr. Todd engaged in a planned hunger strike
from September 9th to September 12th, 2015 to protest the revocation of his parole. At
the time the strike began, the records indicated that Mr. Todd was exhibiting no
delusions. By September 12th, however, Mr. Todd was “displaying paranoid behavior
and . . . claimed that he had been kidnapped and the Governor was going to pick him up.”
On October 5, 2015, the records indicated that Mr. Todd was exhibiting odd behavior,
such as delusions, confusion as to why he was in custody, and “a decline in the activities
of daily living.” At this point, Mr. Todd was diagnosed with Schizophrenia Disorder, and
the appointment of a conservator was recommended by his physician. On October 15,
2015, Mr. Todd further declined, exhibiting mania, delusions, varying mood, lack of time
reality, lack of hygiene, and “refusal of clothes, bedding, and food.” The guardian ad
litem noted that Mr. Todd was noncompliant “off and on through October, November,
and December.” The records note, however, that Mr. Todd stabilized once he began
taking his medication regularly.
        The guardian ad litem also met in person with Mr. Todd in February 2016. At the
time, Mr. Todd was voluntarily taking an anti-psychotic medication to avoid forcible
injections. During this meeting, the guardian ad litem found Mr. Todd to be well-spoken,
articulate, and well-informed regarding his current incarceration, treatment, diagnosis,
and history. Mr. Todd denied that he currently or previously suffered from a mental
illness; instead, Mr. Todd claims that his Schizophrenia diagnosis was the result of “false
answers he had given on examinations as a way of protecting his incarceration.” Mr.
Todd explained that although he does not need the medication prescribed and does not
wish to take it, he had agreed to voluntarily take his medication rather than receive
forcible injections. The guardian ad litem noted that the only time that Mr. Todd
exhibited odd behavior was during the discussion of his religious beliefs, when he
claimed that “the prison wanted to medicate him specifically to ‘train out’ his religious
beliefs.”
                                            -3-
       The guardian ad litem’s report also discussed Mr. Todd’s educational efforts
during his period of parole. According to records from National College, Mr. Todd
consistently attended classes from Spring 2013 to Spring 2015. During this time, Mr.
Todd “seems to have done quite well.” In the May term of 2015, however, Mr. Todd
attempted only two classes, withdrawing from one, and thereafter withdrew from all
classes. The guardian ad litem could find no explanation for Mr. Todd’s decision to stop
attending classes when he was so close to receiving his Associate’s Degree.
        Finally, the guardian ad litem made its recommendation as to whether a
conservatorship was needed. The trial court first noted that the case was “extremely
difficult and . . . required more investigation and time than typically needed.” The
guardian ad litem noted that while Mr. Todd appeared to have functioned well outside of
prison, he had substantially deteriorated since his return to incarceration, such that he has
“serious difficulty managing his mental condition.” Because of Mr. Todd’s serious
mental breakdowns during times of stress,” his delusions, and “the serious decline in
activities of daily living,” the guardian ad litem recommended that a conservator be
appointed for Mr. Todd.
       On July 12, 2016, the trial court also granted TDOC’s motion to file certain
documents under seal. Mr. Todd, by and through his counsel, filed a response in
opposition to the appointment of a conservator on August 2, 2016. Therein, Mr. Todd
denied that he was incapable of making rational decisions regarding his treatment needs.
Additionally, Mr. Todd asserted that TDOC had no jurisdiction over him due to his
wrongful incarceration. Mr. Todd also objected to the forcible administration of
medication, asserting that the practice was not the least restrictive means available and
violates his First Amendment right to the free exercise of his religion. According to Mr.
Todd, certain drugs also have debilitating effects on him, the effects of which prevent Mr.
Todd from preparing for future legal proceedings related to his parole.
        A hearing occurred on August 25, 2016. No transcript or statement of the evidence
is included in the record. The trial court, however, entered a written order containing
detailed findings regarding the testimony presented on September 2, 2016. Our recitation
of the evidence presented is therefore derived solely from the trial court’s order.
According to the trial court, Mr. Todd testified that he has no illnesses, disorders, or
disabilities that prevent him from making his own medical decisions. In support, Mr.
Todd noted his “stable life while he was on parole.” Mr. Todd admitted, however, that he
had “pretended” to have an illness in the past but that he would not do so in the future.
Mr. Todd further indicated that subjecting him to forcible medication would “be an
unduly rigorous form of punishment within the meaning of the Tennessee Constitution”
and that it would violate his sincerely held religious beliefs to “accept the introduction of
an artificial substance into his body[.]”



                                            -4-
       Dr. O’Toole testified at trial by videoconference. The trial court also considered
her sworn affidavit. Dr. O’Toole testified that she is Mr. Todd’s treating physician and
that he is in need of psychiatric medication. According to Dr. O’Toole, Mr. Todd is
incapable of making his own healthcare decisions. As the trial court later stated:
      In his present state, Dr. O’Toole testified, [Mr. Todd] does not believe that
      he has such illness as she has diagnosed. She acknowledges that she did
      previously allow for him to have a trial of going without the medication she
      would otherwise prescribe. She notes, however, that his condition has since
      worsened substantially. It is Dr. O’Toole’s opinion that [Mr. Todd] is not
      presently capable of making rational decisions regarding his mental and
      medical treatment and will not reliably be able to make such decisions for
      himself, going forward, under present circumstances. Dr. O’Toole affirmed
      by her testimony that her goal with [Mr. Todd], as with any patient, is to
      provide treatment on the basis of the using the lowest effective dose of any
      medication, and the least intrusive means of providing such treatment.
        As previously noted, the trial court entered a final order in this cause on
September 2, 2016. As an initial matter, the trial court memorialized its oral rulings to
deny Mr. Todd’s oral motions to dismiss based upon the trial court’s purported lack of
subject matter jurisdiction over the case and TDOC’s lack of authority over Mr. Todd due
to Mr. Todd’s allegedly illegal sentence. The trial court next ruled that TDOC presented
sufficient evidence that Mr. Todd was a person with a disability within the meaning of
Tennessee Code Annotated section 34-1-101(13) and that he is presently incapable of
making his own healthcare decisions. The trial court noted that, despite Mr. Todd’s
contention that his prior mental health issues were contrived, “there is significant and
overwhelming medical evidence, which is clear and convincing, that he does have a
serious and disabling illness, for which he does require medical treatment.” The trial
court further stated that:
      [T]he nature and extent of [Mr. Todd’s] disability are such that [Mr. Todd]
      cannot give informed consent to medical and mental examinations and
      treatment at this time and requires a Limited Conservator to give such
      consent. The Court does not ignore the reality that medical treatments often
      do have unwanted side effects, but the Court notes Dr. O’Toole’s testimony
      that she intends to work with [Mr. Todd] in order to find the plan of
      treatment that is optimal for his needs while also being as accommodating
      as possible of [Mr. Todd’s] preferences.
Accordingly, the trial court granted TDOC’s petition for a limited conservatorship over
Mr. Todd for the purpose of making Mr. Todd’s healthcare decisions, including the
forcible administration of medical treatment “such as the Limited Conservator believes
serves [Mr. Todd’s] needs[.]” Mr. Todd thereafter timely appealed to this Court.

                                          -5-
                                    Issues Presented
       Mr. Todd presents several issues, which are taken, and slightly restated, from his
appellate brief:
          1. Whether the trial court’s finding that Mr. Todd is a disabled person
             in need of a conservator causes Mr. Todd’s original plea in his
             current sentence to become not knowing, and not voluntary if made
             during a period of incompetence, or continuing disability, thus
             becoming a violation of due process causing a lack of jurisdiction
             and/or an illegal sentence.
          2. Whether the means of applying the conservatorship proposed by
             TDOC is an unnecessarily rigorous application of Mr. Todd’s
             sentence, such as to violate Article I, Section 13 of the Tennessee
             Constitution.
          3. Whether the means of applying the conservatorship imposed by the
             trial court, as administered by TDOC, violated the Free Exercise of
             Religion clause of the First Amendment of the U.S. Constitution by
             administering mind altering pharmaceuticals which violate Mr.
             Todd’s sincerely held religious beliefs.
          4. Whether the conservatorship proposed by TDOC is the least
             restrictive means of achieving TDOC’s legitimate security related
             interests in the dangerous environment of prison.

                                        Analysis

       This case involves the trial court’s decision to place Mr. Todd under a limited
conservatorship for healthcare decisions. “The purpose of a conservatorship proceeding is
to protect the person and property of a [person with a disability].” In re Conservatorship
of Clayton, 914 S.W.2d 84, 90 (Tenn. Ct. App. 1995) (citations omitted). “‘Conservators
are court appointed fiduciaries who act as agents of the court and their rights and
responsibilities are set forth in the court’s orders.’” In re Lawton, 384 S.W.3d 754, 761
(Tenn. Ct. App. 2012) (quoting AmSouth Bank v. Cunningham, 253 S.W.3d 636, 641
(Tenn. Ct. App. 2006)). A conservator’s fiduciary position of trust is “of the highest and
most sacred character.” Grahl v. Davis, 971 S.W.2d 373, 377 (Tenn. 1998) (citation
omitted). “The court itself is ultimately responsible for [persons with a disability] who
come under its care and protection[.]”Clayton, 914 S.W.2d at 90 (citations omitted).


      In order to grant a conservatorship, “[t]he court must find by clear and convincing
evidence that the respondent is fully or partially disabled and that the respondent is in
need of assistance from the court before a fiduciary can be appointed.” Tenn. Code Ann.
§ 34-1-126. A “[p]erson with a disability” is defined as “any person eighteen (18) years
of age or older determined by the court to be in need of partial or full supervision,
                                           -6-
protection, and assistance by reason of mental illness, physical illness or injury,
developmental disability, or other mental or physical incapacity[.]” Id. § 34-1-101(13).
When the trial court finds that a conservatorship is needed, it “has an affirmative duty to
ascertain and impose the least restrictive alternatives upon the person with a disability
that are consistent with adequate protection of the person with a disability and the
property of the person with a disability.” Id. § 34-1-127. Mr. Todd does not argue that the
trial court erred in finding sufficient evidence that he was a person with a disability in
need of a limited conservatorship; rather, he makes several arguments addressing the trial
court’s jurisdiction, his constitutional rights, and whether the trial court imposed the least
restrictive alternative available to further TDOC’s compelling state interest. We will
address each argument in turn.
                                              I.
       Mr. Todd first argues that the 2016 finding that Mr. Todd is a person with a
disability in need of conservatorship served to invalidate his 1986 agreed plea that placed
him in prison. As such, Mr. Todd asks this Court to conclude that Mr. Todd’s current
mental health provides a “proper subject for habeas corpus relief.”
        This argument is misplaced. First, we note that this is a conservatorship case, not a
habeas corpus case. The claims in the trial court did not involve a petition for habeas
corpus. Although Mr. Todd made an oral motion to dismiss on the basis that his sentence
is illegal, no counter-complaint or other pleading was ever filed asking for habeas corpus
relief. In fact, in his pre-formatted notice of appeal, Mr. Todd specifically noted that his
case was civil, rather than a habeas corpus case, which was also provided as an option.
Mr. Todd cannot now characterize this action as a habeas corpus action.
        Moreover, even if a habeas corpus petition had been filed in conjunction with the
conservatorship proceeding, this Court has no jurisdiction to adjudicate such an appeal.
The Court of Criminal Appeals has previously held that “for the purposes of appeal,
habeas corpus cases involving incarcerated criminal defendants are ‘criminal actions.’”
Davis v. State, 261 S.W.3d 16, 20 (Tenn. Crim. App. 2008) (citing Tenn. R. App. P. 3(b))
(categorizing appeals from “a final judgment in a . . . habeas corpus” as a “criminal
action[]”). Indeed, the Tennessee Supreme Court specifically held that “habeas corpus
appeals [are] to be made to the Court of Criminal [A]ppeals.” Tragle v. Burdette, 222
Tenn. 531, 534, 438 S.W.2d 736, 737 (Tenn. 1969). Thus, even if we were to entertain
the notion that the trial court’s 2016 finding that Mr. Todd is subject to a disability
invalidated his 1986 plea agreement, we simply have no jurisdiction to consider whether
this fact entitled him to habeas corpus relief.
                                             II.
       Mr. Todd next argues that the limited conservatorship serves as an unnecessarily
rigorous application of his sentence, in violation of the Tennessee Constitution. Under
Article 1, section 13 of the Tennessee Constitution, “no person arrested and confined in
                                          -7-
jail shall be treated with unnecessary rigor.” Very few Tennessee cases have interpreted
the language in Article 1, section 13; no Tennessee cases have ever held that the
prohibition against treatment of prisoners with “unnecessary rigor” is implicated in the
context of a trial court’s finding, by clear and convincing evidence, that a prisoner is in
need of a limited conservatorship for healthcare decisions. In interpreting a similar
provision in its state constitution, the Supreme Court of Oregon described the standard as
follows:
       “Unnecessary rigor” is not to be equated only with beatings or other forms
       of brutality. . . . Since it is “unnecessary” rigor that is proscribed, the first
       question under this clause is whether a particular prison or police practice
       would be recognized as an abuse to the extent that it cannot be justified by
       necessity.
Sterling v. Cupp, 290 Or. 611, 620, 625 P.2d 123, 130 (Or. 1981).
       Assuming arguendo that the imposition of a limited conservatorship is the type of
practice that is governed by Article I, section 13, we cannot conclude that the practice
was unnecessary in this case. As previously discussed, the trial court noted that it had
before it “significant and overwhelming evidence” that a limited medical conservatorship
was necessary in order to treat Mr. Todd’s serious mental health issues. As such, it
appears to this Court that whatever “rigor” may be attributed to the limited
conservatorship, it was in no way unnecessary.
       Mr. Todd argues, however, that this Court should nevertheless conclude that the
forcible administration of medications in this case amounts to unnecessary rigor based
upon the dissent in the United States Supreme Court’s Opinion in Washington v. Harper,
494 U.S. 210, 110 S. Ct. 1028, 108 L. Ed. 2d 178 (1990) (Stevens, J., dissenting). In
Harper, the inmate filed a civil rights action challenging a policy allowing the prison to
administer psychotropic drugs without his consent and without a judicial hearing. Id. at
213–14. The inmate had previously consented to pharmaceutical treatment for his manic-
depressive disorder but later refused to consent to treatment. Id. at 214. Pursuant to the
prison’s written policy, the inmate’s treating physician sought to administer medications
to the inmate despite his objections. Under the prison policy, an inmate may be treated
without his or her consent where: (1) the inmate suffers from a mental disorder; (2) the
inmate is gravely disabled or poses a likelihood of serious harm to himself, others, or
property; (3) the inmate is given a hearing before a special committee, consisting of a
psychiatrist, a psychologist, and the Associate Superintendent of the prison, which
determines by a majority vote that the above two conditions have been met.2 Id. at 215.
The policy also outlined several procedural safeguards applicable to the hearing,

       2
          The policy also required that the hearing board members not be involved in the inmate’s
treatment or diagnosis and that treatment would only be authorized if the psychiatrist voted with the
majority. Harper, 494 U.S. at 215–16.
                                                -8-
including but not limited to appropriate notice of the proceedings and diagnosis be
received by the inmate and that the inmate may not be medicated at the time of the
hearing. Id. at 216.
        Despite the inmate’s argument that the forced administration of pharmaceuticals
violated his due process rights, the majority of the United States Supreme Court
disagreed. Although the Harper Court agreed that the inmate “possesse[d] a significant
liberty interest in avoiding the unwanted administration of antipsychotic drugs under the
Due Process Clause of the Fourteenth Amendment,” the Court ultimately held that the
prison policy did not violate this right. Id. at 221–22. In reaching this decision, the Court
noted that the prison had a strong interest in providing medical care to prison inmates and
ensuring the safety of prison staff and inmates. Id. at 225. The Court also noted the
policy’s requirements that the inmate have a mental disorder, that the treatment in
question only be ordered under the direction of a licensed psychiatrist, and that the
treatment be in the inmate’s medical interests. Id. at 226. Finally, the Harper majority
noted that the procedure adopted by the prison was appropriate even without the
requirement that the prison obtain court approval for the treatment, as the quasi-judicial
hearing provided under the policy was sufficient to satisfy due process. Id. at 226–35.

       In his partial dissent, Justice Stevens, joined by Justices Brennan and Marshall,
disagreed that the prison policy at issue comported with due process. While the dissent
did not disagree with the Court’s general holding that “the substantive protections of the
Due Process Clause limit the forced administration of psychotropic drugs to all but those
inmates whose medical interests would be advanced by such treatment,” the dissent
concluded that the prison policy did not meet the standard set by the majority. Id. at 243
(“Even on the Court’s terms, the Policy is constitutionally insufficient.”). Instead, the
dissent determined that the policy “does not require a determination that forced
medication would advance his medical interest” and does not require the determination of
whether forcible administration of medication be made “by an impartial person or
tribunal.” Id. at 250. The dissent therefore concluded that the above infirmities rendered
the prison policy unconstitutional. Id. at 258.

        Respectfully, Mr. Todd’s argument is subject to several issues, any of which
would be sufficient to defeat this argument. First, we note that the opinion in Harper did
not concern either an unnecessary vigor prohibition or even the United States
Constitution’s prohibition on cruel and unusual punishment. Rather, the inmate in Harper
argued that his liberty interest under the Due Process Clause was violated by the forced
administration of psychotropic medications. Here, as previously discussed, Mr. Todd did
not raise the alleged violation of his liberty interest as an issue on appeal but instead
framed this issue under Article I, section 13 of the Tennessee Constitution. It is well
settled that an issue is generally waived when it is argued in the body of the brief but not
designated as an issue on appeal. See, e.g., State v. Freeman, 402 S.W.3d 643, 653
(Tenn. Ct. App. Oct. 16, 2012) (quoting Childress v. Union Realty Co., 97 S .W.3d 573,
                                            -9-
578 (Tenn. Ct. App. 2002)) (“We consider an issue waived where it is argued in the brief
but not designated as an issue.”); Bunch v. Bunch, 281 S.W.3d 406, 410 (Tenn. Ct. App.
2008). Additionally, Mr. Todd’s argument rests on the holding of the dissenting Opinion
in Harper, which is not controlling on this Court. See In re Adoption of J.K.W., No.
E2006-00906-COA-R3-PT, 2007 WL 161048, at *6 (Tenn. Ct. App. Jan. 23, 2007)
(“While a dissenting opinion may, at some point in the future, become the law, a dissent
is not, in and of itself, controlling authority.”). Given that Mr. Todd’s argument rests
solely on a dissenting Opinion and neither the dissenting or majority Opinion in Harper
address the constitutional provision raised by Mr. Todd in his statement of the issues, we
cannot conclude that Mr. Todd has shown that the conservatorship granted in this case
violates the Tennessee Constitution’s prohibition against unnecessary rigor.

                                             III.

        Mr. Todd next argues that the appointment of a conservator who may consent to
the forcible administration of medications ordered by the trial court violates his freedom
of religion under the United States Constitution based upon the United States Supreme
Court case of Holt v. Hobbs, 135 S. Ct. 853, 190 L. Ed. 2d 747 (2015); see also U.S.
Const. amend. I (“Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; . . . .”). In Holt, a Muslim prison inmate brought suit
against the Arkansas Department of Correction (“the Department”) challenging the
Department’s refusal to allow him to grow a half-inch beard in accordance with his
religious beliefs. Holt, 135 S. Ct. at 859. The inmate argued that the decision violated the
“Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat. 803,
42 U.S.C. § 2000cc et seq., which prohibits a state or local government from taking any
action that substantially burdens the religious exercise of an institutionalized person
unless the government demonstrates that the action constitutes the least restrictive means
of furthering a compelling governmental interest.” Id. (citing 42 U.S.C § 2000cc–1(a))
(“No government shall impose a substantial burden on the religious exercise of a person
residing in or confined to an institution . . . even if the burden results from a rule of
general applicability, unless the government demonstrates that imposition of the burden
on that person—(1) is in furtherance of a compelling governmental interest; and (2) is the
least restrictive means of furthering that compelling governmental interest.”). The Holt
Court first concluded that the decision to deny the inmate the ability to grow a beard
substantially burdened his sincerely held religion beliefs. Id. at 863. The Court agreed
with the Department, however, that it had a compelling interest in stemming the flow of
contraband into the prison. Id. Nonetheless, the Holt Court determined that the
Department had not shown that forbidding short beards like the one sought by the inmate
was “the least restrictive means of preventing the concealment of contraband.” Id. at 864.
The United States Supreme Court therefore ruled that the Department’s grooming policy
violated RLUIPA.


                                            - 10 -
        Mr. Todd does not dispute that TDOC has a compelling interest in the safekeeping
of prison facilities or in providing healthcare to prison inmates. See Tenn. Code Ann. §§
41-1-104(b), -204 (giving TDOC the responsibility for the “welfare, conduct and
safekeeping of the inmates” in its custody, including the obligation to provide inmates
with medical services). Analogously to Holt, however, Mr. Todd argues that the trial
court’s decision to appoint a limited conservator to consent to the forcible administration
of pharmaceuticals violates the United States Constitution and RLUIPA. TDOC does not
assert that Mr. Todd’s opposition to medication does not constitute a sincerely held
religious belief or that the forcible administration of medication would not substantially
burden that belief. Accordingly, we need only consider whether the imposition of a
limited conservatorship allowing forcible administration of medications in this case is the
least restrictive means available for furthering TDOC’s interest in prison safety and the
provision of medical care to inmates.

       Here, the trial court specifically held that Mr. Todd “require[s] medical treatment”
because he refuses to accept “the reality of his health condition.” The trial court
characterized Mr. Todd’s mental illness as “disabling.” As such, the trial court ruled that
a limited conservator was necessary because Mr. Todd “cannot give informed consent”
for necessary “medical and mental examinations and treatment.” Mr. Todd argues,
however, that these findings are contrary to the evidence presented at trial that he was
able to cooperate with the prison’s treatment team during his incarceration and that he
was stable while on parole in 2012. Mr. Todd asserts that this cooperation and stability
show that removing his ability to consent to medical treatment is not the least restrictive
means available to TDOC to accomplish its goals, given the debilitating effect of the
psychotropic medication prescribed to Mr. Todd.

        It is important to note that the record on appeal contains no transcript or statement
of the evidence presented at the August 25, 2016 hearing. [omit] Generally, when the
appellant fails to file a transcript or statement of the evidence, the appellate court
presumes that the trial court’s decision is supported by sufficient evidence. Outdoor
Mgmt., LLC v. Thomas, 249 S.W.3d 368, 377 (Tenn. Ct. App. 2007). We concede that
the trial court’s order indeed reflects that Mr. Todd testified as to his purported stability
and cooperation in previous years. [omit] In addition, the guardian ad litem’s report
supports Mr. Todd’s testimony that he was stable during the period of time when he was
not incarcerated.

       The evidence in the record regarding Mr. Todd’s stability during his present
incarceration, however, paints a different picture of the state of Mr. Todd’s current
mental health. First, according to Dr. O’Toole’s testimony, Mr. Todd substantially
deteriorated prior to July 2016 and, at that time, refused to cooperate in his treatment.
After refusing treatment, Mr. Todd’s condition deteriorated in such a way that he
apparently believed that Dr. O’Toole was a witch and intimated that he could kill her.
Likewise, the guardian ad litem’s report indicates that in the fall of 2015, Mr. Todd
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experienced delusions, mania, lack of time reality, lack of hygiene, and “refusal of
clothes, bedding, and food.” Although Mr. Todd improved for a short period of time in
the early months of 2016 when he was apparently cooperating in treatment, he soon
began to refuse treatment and deteriorate. Clearly, this evidence shows that Mr. Todd is
currently suffering from a mental illness and that he experiences significant mental health
issues that are ameliorated by appropriate treatment.

       Notwithstanding this evidence that Mr. Todd’s mental health improved with
treatment, counsel asserted at oral argument that the treatment offered to Mr. Todd is not
the least restrictive means of treatment because it causes Mr. Todd to suffer from “muscle
tremors, being [un]able to think, unable to digest.” Due to the lack of a transcript,
however, the record on appeal contains no evidence of the actual side effects experienced
by Mr. Todd or that are likely to be experienced by Mr. Todd.

        Finally, Dr. O’Toole assured the trial court that any treatment would be provided
“using the lowest effective dose of any medication, and the least intrusive means of
providing such treatment.” In contrast, the trial court’s order contains no evidence of a
less intrusive method of serving TDOC’s compelling interests other than the appointment
of a limited conservator. Indeed, counsel for Mr. Todd conceded at oral argument that no
proof was presented at trial as to alternative options available to TDOC to maintain
safekeeping of its prison and Mr. Todd’s health without the administration of
psychotropic medication.

        We, like the guardian ad litem, recognize that the evidence regarding Mr. Todd’s
need to be forcibly medicated is somewhat conflicting. While it does appear that Mr.
Todd was able to manage his condition while not incarcerated, since his incarceration he
has markedly declined to a point where, unmedicated, he suffers from delusions, lack of
reality, lack of personal hygiene, and refuses food and other necessities. When medicated,
however, Mr. Todd is “articulate” and cogent. Where the testimonial evidence on an issue
is conflicting, the trial court’s determination “rests in some degree upon its assessment of
the relative credibility of the [witnesses], an assessment to which we must give
deference.” In re Annia J., No. M2010-02236-COA-R3-JV, 2012 WL 113077, at *7
(Tenn. Ct. App. Jan. 11, 2012); see also Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779,
783 (Tenn. 1999) (“Trial courts are in the most favorable position to resolve factual
disputes hinging on credibility determinations. . . . Accordingly, appellate courts will not
re-evaluate a trial judge’s assessment of witness credibility absent clear and convincing
evidence to the contrary.”). Given (1) Dr. O’Toole’s medical opinion that Mr. Todd is
suffering from a mental disorder that prevents him from making his own healthcare
decisions; (2) evidence in the guardian ad litem’s report that Mr. Todd suffers from
delusions and other mental health issues that are ameliorated when he is medicated; (3)
the lack of any evidence in the record concerning a less restrictive alternative by which
TDOC can further its compelling interest in the safekeeping of prisons and prisoners, and
(4) the lack of a transcript or statement of the evidence from which this court could
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independently review the evidence presented at trial, we cannot conclude that the trial
court erred in finding that a limited conservatorship allowing forcible treatment in the
event that the treatment serves Mr. Todd’s needs was the least restrictive means of
furthering TDOC’s compelling interests in this case. Given our conclusion that the trial
court’s order was the least restrictive means of furthering TDOC’s compelling interest,
Mr. Todd’s final issue is pretermitted.

                                      Conclusion

       The judgment of the Probate Court of Davidson County is affirmed, and this
matter is remanded to the trial court for all further proceedings as are necessary and are
consistent with this Opinion. Costs of this appeal are taxed to the Appellant, George
Todd, for which execution may issue if necessary.


                                                   _________________________________
                                                   J.STEVEN STAFFORD, JUDGE




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