Parental Rights Terminated for Failure to Remedy Mental Health, Substance Abuse, and Domestic Violence Issues That Adversely Affected Ability to Properly Parent Children

Carr v. James City County Div. of Soc. Servs., Nos. 0339-04-1, 0499-04-1, 2004 WL 1822374 (Va. Ct. App. 2004 )

It is not unusual for mental illness and substance abuse to figure prominently in a decision to remove a child from the custody of a parent, as well as in a decision to ultimately terminate parental rights.  In a recent case, the Virginia Court of Appeals ruled that a mother's failure to remedy issues associated with mental health, substance abuse, and domestic violence that adversely affected her ability to properly parent her children provided a sufficient basis for terminating the mother's parental rights.  The court indicated that its focus is not whether steps have been taken to remedy these issues, but what has been achieved as the results of these steps...

Found in DMHL Volume 24 Issue 1

Termination of Parental Rights of Woman Who Suffered from Situational Anxiety Disorder Rejected

Richmond Dep't of Soc. Servs. v. Enriquez, No. 1650-03-2 (Va. Ct. App. July 13, 2004)

The Virginia Court of Appeals refused to terminate a woman's parental rights after concluding that there was sufficient evidence to establish that the woman had made substantial efforts to remedy the conditions that led to the placement of her son in foster care.  The court cited the woman's attendance at recommended programs and services, her independently obtaining one-on-one sessions with the director of community violence services, and her participation in individual counseling, even after an initial ruling terminated her parental rights....

Found in DMHL Volume 24 Issue 1

Mental Illness Can Serve as a Basis for Discharging Student Loans

Reynolds v. Pa. Higher Educ. Assistance Agency, 425 F.3d 526 (8th Cir. 2005)

Under federal bankruptcy law, an individual can be excused from repaying student loans if the debt "will impose an undue hardship on the debtor."  Ordinarily, the focus is on whether repaying the debt will not prevent a minimal standard of living after factoring in the individual's current and future financial resources and expenses.  The Eighth Circuit of the U.S. Court of Appeals ruled that the impact of the individual's mental health should also be taken into account when (1) the individual's mental health affects her past, current, and future earnings and (2) when the stress of the debt is likely to affect the individual's mental health adversely, causing an even greater decline in her earnings...

Found in DMHL Volume 25 Issue 2

Misrepresentations by Insurance Plan of Availability of Mental Health Benefits Can Not Serve as Basis for Consumer's Claim of Common-Law Fraud

Va. Acad. of Clinical Psychologists v. Group Hospitalization & Med. Servs., Inc., 878 A.2d 1226 (D.C. 2005)

Individuals contemplating enrollment in a behavioral managed care plan are typically provided a description of available mental health services.  When these services are not forthcoming following enrollment, they may file a legal claim against the administrators of the plans that asserts that the advertisements  and materials they were provided were misleading and thus fraudulent...

Found in DMHL Volume 25 Issue 1

Capital Defendant Not Entitled To New Trial When His Attorney Failed to Investigate a Psychological Report Suggesting a Possible Organic Brain Disorder

Walker v. True, 401 F.3d 574 (4th Cir. 2005), petition for reh'g en bane denied, 411 F.3d 467 (4th Cir. 2005)

A defendant charged with murder and facing a possible death sentence has a right to present mitigating evidence that weighs against the issuance of the death penalty.  This can include evidence of a mental illness or mental retardation that demonstrates the defendant's diminished capacity and reduced responsibility for the crime.  The U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), established that a defendant has a Sixth Amendment constitutional right to "effective assistance" of counsel in discovering and presenting this evidence during the sentencing phase, and the Court indicated in Wiggins v. Smith, 539 U.S. 510 (2003), that this right required the defendant's attorney to diligently explore potentially relevant mental health evidence...

Found in DMHL Volume 25 Issue 1

Parental Rights of Woman with Schizophrenia Terminated for Failing to Take Needed Medication

Fields v. Dinwiddie County Dep't of Social Servs., 614 S.E.2d 656 (Va. Ct. App. 2005)

The Virginia Court of Appeals ruled that a woman's failure to consistently take the medication needed to control her mental illness could serve as the basis for terminating her parental rights.  Diagnosed with schizophrenia, the woman lost custody of her son immediately after his birth.  At the hospital she had initially said that she did not know she was pregnant and then stated that she had become pregnant from a tomato seed she had eaten in a can of spaghetti.  She lived alone at the time in a condemned house with no running water and only one working electrical outlet...

Found in DMHL Volume 25 Issue 1

US Supreme Court Upholds Death Penalty Where Defendant’s Attorney Made Strategic Decision not to Present Evidence of Bipolar Mood Disorder

Cullen, Acting Warden v. Pinholster, ( Docket No. 09-1088), slip opinion found at: http://www.supremecourt.gov/opinions/10pdf/09-1088.pdf

On April 4, 2011, the United States Supreme Court reversed the en banc decision of the Ninth Circuit Court of Appeals that granted habeas corpus relief to a petitioner convicted on two counts of first degree murder, and reinstated the death penalty recommended by the jury and imposed by the California trial court.

The petitioner alleged that his trial counsel was ineffectual for failing to adequately investigate and present mitigating evidence during the penalty phase of the trial to support his mental health claim that school, medical and legal records, and declarations from family members and another psychiatrist had diagnosed him with a bipolar mood disorder and a seizure disorder. The prosecution presented eight witnesses testifying to the defendant’s threatening and violent behavior. The petitioner’s trial counsel unsuccessfully sought to exclude the aggravating evidence on the grounds that the prosecution had not given the petitioner proper notice under California law. The petitioner therefore only called his mother as a witness in mitigation. The petitioner’s counsel had consulted a psychiatrist who had diagnosed him with antisocial personality disorder, but did not call him as a witness.

The California Supreme Court twice reviewed the defendant’s claim, unanimously denying and dismissing the allegations each time. The United States District Court, however, heard evidence on the petitioner’s claim and granted habeas relief. The Ninth Circuit reviewing the federal district court’s decision en banc, considered the new evidence from the federal district court hearing and upheld the decision on the grounds that the State court had violated clearly established federal law.

Justice Thomas writing for the Court, held that review of habeas cases under 28 U.S.C. § 2254 is limited to the record that was before the state court that adjudicated the claim on the merits. Under the Antiterrorism and Effective Death Penalty Act of 1996, a claim adjudicated on the merits in state court cannot be granted unless 1) the decision was contrary to or involved an unreasonable application of clearly established federal law, or 2) was based on an unreasonable determination of facts in light of the evidence presented in state court. The Supreme Court held that the record under review is therefore limited to the record in existence at that time. The Court determined that the state court record supported the idea that the petitioner’s counsel acted strategically to get the prosecution’s aggravation witnesses excluded for lack of notice. The Court noted that the petitioner was also an unsympathetic client who boasted about his criminal history during the guilt phase, leaving trial counsel with limited mitigation strategies. The Court held that there was no reasonable probability that the additional evidence would have changed the verdict. Justices Sotomayor, Ginsburg and Kagan dissented. The other justices joined in the decision of the Court, but wrote multiple concurring opinions.

Found in DMHL Volume 30 Issue 4

US Supreme Court Orders California to Reduce Prison Population for Failure to Provide Constitutionally Adequate Treatment for Inmates with Serious Mental Illness

 

Brown, Governor of California, et al. v. Plata, et al., No. 09-1233, decided May 23, 2011
Slip opinion found at: http://www.supremecourt.gov/opinions/10pdf/09-1233.pdf

In a 5-4 decision written by Justice Kennedy, the United States Supreme Court upheld the decision of a three-judge panel entered under the Prison Litigation Reform Act of 1995 (“PLRA”) ordering California to reduce its prison population by 137.5% of its original design capacity, or by 46,000 prisoners, within two years in order to address severe and unconstitutional conditions related to the delivery of mental health and medical care to California’s 156,000 inmates.

This decision is the result of two consolidated federal class action suits challenging the mental health and medical conditions in California’s prisons. The first, Coleman v. Wilson, 912 F. Supp. 1282 (E.D. Calf. 1995), was filed in 1990 alleging that deplorable mental health care constituted cruel and unusual punishment under the Eighth Amendment. After a 39-day trial, the court found the prisons severely and chronically understaffed with no method for ensuring competence of staff. The prisons failed to implement necessary suicide precautions due to severe understaffing and mentally ill inmates languished for months and years without access to care, suffering severe hallucinations and decompensating to catatonic states. After 12 years, a Special Master appointed to oversee remedial efforts reported that after slow improvement, the status of mental health care was again deteriorating. A rise in the prison population had led to greater demand for care, and existing program space and staffing levels were inadequate to keep pace. In 2006, at the time of trial before the three-judge panel, the suicide rate was approaching one per week with the suicide rate nearly 80% higher than the national average for prison populations. Suicidal inmates were held for prolonged periods in telephone booth-size cages without toilets. Slip Opn. at 11. According to the Special Master, 72.1% of suicides involved “some measure of inadequate assessment, treatment, or intervention, and were therefore most probably foreseeable and/or preventable.” Slip Opn. at 12. In 2007, the rate had risen to 82% and by 2010 there had been no improvement.

A second class action, Plata v. Brown, was filed in 2001, in which California conceded that deficiencies in prison medical care violated the Eighth Amendment. When the State had not complied with the remedial injunction issued, the Court appointed a Receiver to oversee the remedial efforts. Three years later, the Receiver described equally deplorable continuing deficiencies in medical care. In one prison, up to 50 sick inmates were held together in one 12 foot x 20 foot cage up to five hours awaiting treatment. The Coleman and Plata plaintiffs thereupon requested their respective district courts to convene a three-judge panel to order reductions in the prison population.

The Supreme Court held that if a prison deprives inmates of their basic needs for sustenance, including adequate mental health and medical care, courts have a responsibility to remedy the Eighth Amendment violations. Under the PLRA, only a three-judge panel may enter an order imposing a population limit and only after a district court has entered an order for less intrusive relief that has failed after the state has been given reasonable time for compliance. Before doing so, that court must also first consider a range of options, and then find by clear and convincing evidence that crowding is the primary cause of the violations, no other relief will remedy the situation and the relief is narrowly drawn and the least intrusive means to correct the violations. The court must also consider any adverse impact such a population limit will have on public safety and the operation of the criminal justice system. The Supreme Court thus held that the three judge-panel had properly heard evidence of then-current conditions and that no other relief short of imposing a population limit would remedy the situation. California indicates that it is proceeding to implement measures to reduce its prison population, but with the State’s severe budget crisis, it remains to be seen how effective its efforts will be.

Justice Scalia filed a dissenting opinion in which Justice Thomas joined. Justice Alito also filed a dissenting opinion in which Chief Justice Roberts joined.

Found in DMHL Volume 30 Issue 5

US Court of Military Justice Had Jurisdiction to Court Martial Servicemember with Autism

United States v. Fry, 70 M.J. 465, 2012 CAAP Lexis 201 (February 12, 2012)

The Armed Forces Court of Appeals has held that the United States Military Court had jurisdiction to court martial a servicemember with autism who had been adjudicated incapacitated by the State of California and had had a conservator appointed. Joshua D. Fry, a private in the U.S. Marine Corps, was subjected to court martial for two counts of being absent without leave and four specifications of possessing child pornography, and was sentenced to a bad conduct discharge, confinement for four years and forfeiture of all pay and allowances. The sentence in excess of twelve months was suspended for twelve months. The U.S. Navy-Marine Corps Court of Criminal Appeals affirmed.

As a 16-year old, Fry initially met a Marine Corps recruiter while living in California, but was leaving at that time for Colorado to attend a school for adolescents with psychiatric, emotional or behavioral problems. Prior to his departure, his grandmother petitioned a California court for a limited conservatorship because of his autism and arrest for stealing and carrying a “dirk or dagger,” alleging that her grandson was unable to provide for his needs for health, clothing and shelter, and that he could not control his impulsivity. At the uncontested hearing, the court entered an order restricting Fry’s ability to choose a residence, access confidential papers and records, contract and give or withhold consent to medical treatment and make all decisions concerning his education. When he was 20 years old, Fry returned to California still subject to the conservatorship, met the same recruiter, and enlisted in the Marine Corps. He passed the Armed Services Vocational Aptitude Battery, certified that he understood the terms of his enlistment and obtained his birth certificate and Social Security card from his grandmother. He thereupon undertook the obligations, duties and training of a Marine and received pay and allowances.

Fry first began to have issues in basic training. He stole peanut butter and hid it in his sock, urinated in his canteen, refused to eat, and failed to shave and lied about it. He informed medical staff that he was autistic and asthmatic, and medical staff recommended that he be sent home. He nonetheless remained, convincing Marine Corps staff that he was motivated and wanted to return to training. He was found mentally fit to do so, completed his basic training and his grandmother attended graduation, never objecting to his service. He committed his offenses two or three months after being assigned to routine duty.

On appeal, Fry argued that the military court had no jurisdiction to try him because a California court had previously found him mentally incapable of contracting, and that the military court owed the California judgment full faith and credit. In upholding the military court, the appellate court found that the scope, nature and legal incidents of the relationship between a servicemember and the Government are fundamentally governed by federal authority and not state law. The Court held that court martials need not concern themselves with the legal effect of other provisions in contracts or law. Article 2(c) of the Uniform Code of Military Justice relating to court martial specifically states that it applies “notwithstanding” any other provision of law. The Court stated that the only issue therefore is whether the person was serving in the armed forces and 1) voluntarily submitted to military authority; 2) met mental and age requirements; 3) received military pay or allowances, and 4) performed military duties, and finally whether he was mentally competent within the meaning of the statute.

The Military Court found that everyone had acted as though Fry was validly enlisted, including his grandmother conservator. His actions in enlisting were not compelled by outside influence, nor was there any evidence that he was under duress or coercion or that he could not understand the nature or significance of his actions. Two experts testified at trial. One testified for the prosecution that Fry was able to appreciate the nature and quality of his wrongful conduct. Another psychologist testified that he did not remotely have the ability to consider the long-term consequences of his actions. The military judge found that the evidence did not support a claim of impulsivity and Fry was mentally competent to enlist. His findings were supported by the record and therefore the Appellate Court would not overturn them as “clearly erroneous.” The Court of Appeals therefore found that the Military Court had jurisdiction to court martial the servicemember.

Found in DMHL Volume 31 Issue 4

Involuntary outpatient commitment (Vermont)

For continuation of an outpatient treatment order, the statutory and constitutional burden on the state is to prove by clear and convincing evidence that failure to renew the order will result in the person posing a threat of harm to self or others in the near future; evidence of the individual’s repeated mental deterioration when off of medications is not sufficient alone In re

T.S.S., 2015 VT 55 (Vt. Apr. 10, 2015)

Respondent T.S.S., a person diagnosed with paranoid schizophrenia, had been involuntarily committed in 2003 due to severe delusions and extreme lack of self-care. He was released from the hospital in November 2003, but placed under an order of nonhospitalization (ONH) for continued outpatient treatment. That order was renewed annually for a period of years, but was not renewed in 2008. In 2012, T.S.S. was arrested for “unlawful mischief,” a misdemeanor, but was found incompetent to stand trial. That charge was dropped when T.S.S. agreed to an ONH that required his continuing outpatient treatment, including medication. T.S.S. did not contest renewal of that ONH in 2013, but he did object in 2014, and an evidentiary hearing was held.

At the evidentiary hearing, a doctor testified that T.S.S. had “demonstrated a clear pattern that…he, on orders of non-hospitalization, [would] take medications and improve significantly. But when he [was] off the order of non-hospitalization, he quickly [went] off medications and deteriorate[d].” Although the doctor testified that the deterioration was unavoidable—estimating that T.S.S. would deteriorate mentally within one year—he could not predict when T.S.S. would deteriorate to the point of posing a danger of harm to himself or others. The superior court granted the application for a continued ONH.

Vermont law allows continued ONHs for a person whose “capacity to exercise selfcontrol, judgment, or discretion in the conduct of his or her affairs and social relations is so lessened that he or she poses a danger of harm to himself, to herself, or to others” when it is shown “that in the near future his or her condition will deteriorate and he or she will become a person in need of treatment.” See 18 Vt. Stat. Ann. §§ 7101(16), (17). The Vermont superior court held that the phrase “near future” referenced “when the condition will deteriorate and not necessarily when the patient will become a person in need of treatment.” Thus, the State need only prove that a defendant’s “condition will deteriorate in the near future and this will inevitably lead to him” needing treatment.

On appeal, T.S.S. argued that the superior court had erred in its interpretation of the statute. The Supreme Court of Vermont agreed, holding that the proper determination was “whether T.S.S. [was] likely to pose a danger to himself [or others] in the near future.” Although it was “undisputed that T.S.S.'s care-providers sought a continued ONH because they…want to protect him from making a choice that would lead him, eventually, to become a danger to himself,” the Court emphasized that “the fact is, people who do not pose an imminent danger to themselves or others have a right to autonomy that includes the right to make decisions about the most personal of matters, even if those decisions are deemed by others to be profoundly ill-advised.” The Court also noted that basing a continued ONH on “a finding that the person is likely to become a person in need of treatment at some point in the future (however distant)” would “present serious constitutional concerns…That a person could or will ‘eventually’ become a person in need of treatment is, standing alone, a thin reed upon which to predicate a continued intrusion upon fundamental liberty.”

Because the “last specific evidence of T.S.S. actually posing a danger to himself” dated back “more than 10 years,” the Court found that the record was not sufficient to conclude that T.S.S. was likely to become a danger to himself or others in the near future.

Found in DMHL Volume 34 Issue 2

ADA workplace accommodation

Claim by fired deputy clerk of court that her social anxiety disorder constituted a disability and that her employer failed to make reasonable accommodation survives summary judgment motion, as the Court emphasizes the remedial goals of the ADA

Jacobs v. NC Admin. Office of the Courts, 780 F.3d 562 (4th Cir. 2015)

Christina Jacobs was hired as a deputy clerk in the New Hanover County Superior Court. The job description for deputy clerk included many activities, and only a few of the deputies regularly provided customer service at the courthouse front counter. Jacobs, who was diagnosed with social anxiety disorder, was assigned to provide customer service on a daily basis. She experienced extreme anxiety and distress from interacting with the public at the counter. She requested to be assigned to a role with less direct interpersonal interaction. Her employer did not respond to her accommodation request, and three weeks later fired her. She made a timely complaint to the EEOC, which conducted an investigation and made a finding in her favor. The Department of Justice later issued a “Right to Sue” letter. Jacobs filed suit, claiming, among other things, disability discrimination, failure to accommodate, and retaliation, all in violation of the Americans with Disabilities Act (ADA). After discovery, defendant employer moved for summary judgment, which the district court granted on all counts.

The Fourth Circuit reversed and remanded on all counts except the claim of retaliation. It noted that the district court’s most fundamental error was deciding disputed factual issues in favor of the moving party, rather than determining whether, if the facts were as Jacobs alleged, no reasonable juror could find that the defendant had committed violations of the ADA. 

The Fourth Circuit then examined the claims and facts. Some notable observations include:

1. The Court first reviewed the ADA definition of “disability” and nonexhaustive list of “major life activities” including the EEOC’s acceptance of “interacting with others” as a major life activity. Moreover, the 2008 ADA amendments broadened the definition of disability in order to expand the scope of protection available under the Act “as broadly as the text permits.” The Fourth Circuit “therefore defer[red] to the EEOC's determination…that interacting with others is a major life activity.”

2. The Court rejected the employer’s claim that Jacobs had failed to show that her alleged social anxiety disorder substantially limited her ability to interact with others. The Court noted that the 2008 amendments define a disability as one that “substantially limits…as compared to most people in the general population…An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.”

3. The Court noted that a person “need not live as a hermit in order to be” substantially limited. The fact that Jacobs endured the social interactions for a time did “not per se preclude a finding that she had social anxiety disorder,” and “a reasonable jury could conclude that Jacobs was substantially limited in her ability to interact with others and thus disabled within the meaning of the ADA.”

4. The Court ruled that at this stage of the litigation the absence of any documentation of poor performance, and the shifting reasons of the employer regarding unsatisfactory performance, were sufficient to establish that the employer’s claims were a pretext and not the actual reason for the decision to fire her.

5. The Court also analyzed whether the employer made a reasonable effort at accommodation. The Court wrote that employers have a good-faith duty “to engage [with their employees] in an interactive process to identify a reasonable accommodation” under the ADA (Wilson v. Dollar Gen. Corp., 717 F.3d at 346, 4 th Cir. 2013). 9 The Fourth Circuit found that, given the undisputed facts regarding the meeting at which Jacobs was fired, “a reasonable jury could easily conclude” that Jacobs’s employer acted in bad faith by failing to engage in the interactive process with Jacobs at that meeting.

Found in DMHL Volume 34 Issue 2

Cruel and unusual punishment

Young v. Martin, No. 13-4057, 2015 WL 5202968 (3d Cir. Sept. 8, 2015)

Claim by prisoner with history of mental illness and behavioral disorder that being restrained naked in a chair for 14 hours violated the 8 th amendment survives summary judgment

Background: State prisoner Young brought a § 1983 action alleging violations of the 8 th Amendment. Young had a long history of serious mental illness and extensive disciplinary problems in different Pennsylvania prisons, and had been in solitary confinement for several years, during which time his symptoms of mental illness had intensified. The incident resulting in his being placed naked in four-point mechanical restraint in a restraint chair occurred when a guard inadvertently left Young’s cell door open. Young went out to an internal ledge above the prison’s law library, where he voiced his objections to the conditions of his confinement. Young never acted aggressively, never threatened others, and when taken into physical custody by guards he initially cooperated, and then engaged in passive resistance, forcing guards to carry him but offering no active resistance to being stripped naked, subjected to a body cavity search and secured to the restraint chair. Prison policies provide for use of the restraint chair when an inmate acts or threatens to act in a manner that places the inmate or others at risk of harm, and provides for a maximum time period of 8 hours (with extension requiring a written request and approval that was never obtained here).

The district court granted defendants' motion for summary judgment, finding that the guards “acted professionally and within constitutional parameters” in “subduing” Young and placing him in the restraint chair. The district court also denied Young’s request for a stay of the proceedings to allow for the release of the U.S. Department of Justice’s report on its investigation of the Pennsylvania prison system’s treatment of inmates with serious mental illness.

Holdings: A 3-judge panel of the Court of Appeals found that the conduct of the guards alleged by Young fell under the “use of excessive force” test to determine whether Young had been subjected to cruel and unusual punishment in violation of the 8 th Amendment. Reviewing the record under the criteria identified in Hope v. Pelzer, 536 U.S. 730 (2002)11 , and “drawing all inferences in favor of Young as the nonmoving party,” the Court ruled that “we cannot say that ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’”12 The Court thereupon remanded the case back to the district court. The panel directed that the district court on remand consider whether the DOJ report was admissible, and whether such admission would be “unduly prejudicial” to the defendants.

Notable Points:

Eighth amendment analysis of use of mechanical restraints—“excessive force” vs. “conditions of confinement”: The panel rejected the defendants’ claim that their treatment of Young should be analyzed under the “conditions of confinement” framework. The panel noted that the U.S. Supreme Court in Hope ruled that the use of mechanical restraints in a prison setting could constitute cruel and unusual punishment. Applying the Hope criteria, the panel found the following: (1) Young was already subdued, and further was not violent, combative or self-destructive at any point during the incident leading up to his being placed in the restraint chair, (2) the events involved in the incident leading to Young’s placement in the restraint chair did not amount to an “emergency situation,” and (3) there was an issue of fact as to whether the guards’ use of the restraint chair subjected Young to “substantial risk of physical harm” and “unnecessary pain.”

Qualified immunity of the guards: The panel noted that the defendants made a onesentence claim in their appeal that they were entitled to summary judgment on the grounds of qualified immunity—that the state of the law at that time did not give them fair warning that their treatment of Young was unconstitutional. Noting that this claim was not addressed by the district court or briefed on appeal, the panel remanded the issue to the district court for consideration.

Found in DMHL Volume 34 Issue 3

Reasonable accommodations under ADA and 14th Amendment

Dean v. University at Buffalo School of Medicine and Biomedical Sciences, 804 F.3d 178 (2nd Cir. 2015)

Medical school failed to meet “reasonable accommodations” standards of ADA regarding exams for student with mental illness, but due process afforded to the same student in regard to dismissal from school for inadequate performance met constitutional standards

Background: Maxiam Dean began to experience increased symptoms of depression after failing Step 1 of the United States Medical Licensing Examination. He met with an internist who recommended pharmacological treatment and provided him with an “excuse slip” recommending a leave of absence due to his situational depression. Dean presented the slip to his medical school, and was informed that it did not provide sufficient information to support an extended leave. The defendants offered a 10 week leave in response to Dean’s request for 3 months and informed him that he would not be extended any additional accommodations, and that he must sit for his Step 1 by May 21, 2007. After failing to pass (or sit for) his third attempt at Step 1, Maxiam Dean was dismissed from the program. Dean brought suit under Title II of the Americans with Disabilities Act (“ADA”), Section 504 of the Rehabilitation Act of 1973, and 42 U.S.C. § 1983. The United States District Court for the Western District of New York granted summary judgment to the defendants and dismissed Dean’s complaint. Dean then appealed.

Holdings: The Fifth Circuit held that the district court had erred in granting summary judgment to the defendants on the ADA and Rehabilitation Act claims because the defendants failed to show that the requested accommodation was unreasonable and to provide a “plainly reasonable” alternative. The Fifth Circuit found the record “devoid of evidence” regarding defendants’ consideration of whether Dean’s proposed accommodation would impose undue financial or administrative hardship on the M.D. program. Thus the lack of evidence regarding “the basis for denying Dean’s requested modification to the exam schedule preclude[d] any conclusion on summary judgment as to the unreasonableness of that accommodation.” Defendants would be entitled to summary judgment only if “the undisputed record reveals that the plaintiff was accorded a plainly reasonable accommodation”, but a reasonable juror could have found that the “abbreviated study period encompassed within Dean’s leave” would not have been sufficient to prepare him to sit the exam.

The Court held that Dean’s procedural due process rights had not been violated, though, because he “received notice of potential termination…and a careful and deliberate decision.”

Found in Found in DMHL Volume 34, Issue 4

Firearms Regulation

Kolbe v. Hogan, 813 F.3d 160 (4th Cir. 2016) reh'g en banc granted, No. 14-1945, 2016 WL 851670 (4th Cir. Mar. 4, 2016) 

Claims that a state regulation of the possession and use of firearms violates the Second Amendment must pass a “strict scrutiny” review. [Editor Note: This case does not discuss mental illness, but it appears that the standard would apply to firearms restrictions on persons with mental illness.]

Background: The Firearm Safety Act ([FSA] passed by Maryland in 2013) banned even law-abiding citizens, except for retired law enforcement officers, from buying or possessing most kinds of semi-automatic rifles. Plaintiffs challenged several provisions of the FSA on the theory that its restrictions on “assault weapons” and larger-capacity detachable magazines (LCMs) entrenched upon core Second Amendment rights. Further, plaintiffs alleged that the exception for retired law enforcement officers violated the Equal Protection Clause. The district court upheld the constitutionality of the FSA under the intermediate scrutiny standard and denied the plaintiffs’ Equal Protection claims.

Holding: On appeal, the Fourth Circuit held that Maryland’s FSA implicated “the core protection of the Second Amendment” as articulated in District of Columbia v. Heller, 554 U.S. 570 (2010). Because the Fourth Circuit found that the FSA placed a substantial burden on a core constitutional right, it vacated the lower court opinion and announced strict scrutiny as the applicable standard for review of the plaintiffs’ Second Amendment Claims. The Fourth Circuit affirmed the denial of the plaintiffs’ Equal Protection challenge, as well as the lower court’s finding that the FSA was not unconstitutionally vague.

Notable Points:

Strict scrutiny is the proper standard for challenging firearm restrictions under the Second Amendment: The lower court erred in applying intermediate scrutiny to the challenged firearm restriction. Strict scrutiny is the proper standard because the FSA ban on semi-automatic rifles and larger-capacity magazines restricts the availability of a class of arms used for “self-defense in the home.” That restriction implicates the “core” of the Second Amendment. Because the challenged provisions of the FSA substantially, rather than incidentally, burden that core right, strict scrutiny, rather than intermediate scrutiny, is the proper standard.

The FSA’s exception for retired law enforcement officers did not violate the Equal Protection Clause: Because retired police officers were not similarly situated with the public at large under the FSA, the grant of certain rights to those retired officers did not violate the Equal Protection Clause. Specifically, the court found that retired police officers (1) possess unique training and experience related to firearms and (2) are granted a “special degree of trust” that instills them with “an unusual ethos of public service.” These two factors make them not similarly situated with the public at large for Equal Protection purposes, and justify the exceptions and special provisions available to them under the FSA.

Found in DMHL Volume 35, Issue 1

Involuntary Commitment; Constitutional Due Process

In re the Det. of M.W. & W.D. v. Dep’t Soc. & Health Serv., Washington, W. State Hosp., No. 90570-3, 2016 WL 3249495 (Wash. June 9, 2016) (en banc)

Washington Supreme Court upholds constitutionality of state statutory provisions authorizing commitment and re-commitment of individuals with mental illness on the grounds that they were charged with violent felonies and continued to present substantial likelihood of repeating similar acts, even after original charges dismissed on the grounds that the individuals were unrestorably incompetent to stand trial.

Background: The respondents' cases were unrelated but they were consolidated because they both challenged the constitutionality of involuntary recommitment. M.W. and W.D. were both charged with violent felonies and had their charges dismissed without prejudice after a judge determined that they were incompetent to stand trial and their competency could not be restored. In each case, the court ordered mental health evaluations to determine if they should be involuntarily committed, and each man was committed for 180 days of involuntary treatment. Prior to the expiration of the men’s commitments, the State utilized a new procedure for recommitting a person based on a judge’s finding that the person committed a violent felony. The new procedure allowed for recommitment in some circumstances based on a preliminary hearing, rather than a full evidentiary hearing, to determine whether “the person continues to suffer from a mental disorder or developmental disability that results in a substantial likelihood of committing acts similar to the charged criminal behavior.” The individual would then have the opportunity to rebut any findings through admissible expert testimony. The superior court commissioner declared the former statute unconstitutional and ordered the recommitment process to proceed without the unconstitutional provision. M.W. and W.D then received full evidentiary hearings assessing their eligibility for further involuntary treatment and were each recommitted to an additional 180-day period on other grounds.

Holding: On appeal, the Washington Supreme Court ruled that the procedure for involuntary commitment did not violate substantive or procedural due process, vagueness or equal protection. The court also ruled that the statute did not violate an individual’s right to a jury trial because the periods of commitment are short and the state has a high burden of proof for recommitment. The Washington Supreme Court reversed the judgment of the superior court and upheld the statute at issue as constitutional.

Found in DMHL Volume 35, Issue 2

Firearms Possession by Persons with Mental Illness; Negligent Entrustment

Delana v. CED Sales, Inc., No. SC95013, 486 S.W.3d 316 (Mo. 2016) (en banc)

Missouri Supreme Court rules that a claim of negligent entrustment can be brought against a seller who sold a firearm to an individual after the seller had been specifically informed that the purchaser was mentally ill and had attempted suicide recently and was likely to do harm to self or others if given possession of a firearm, where the purchaser did subsequently use the firearm to kill another person.

Background: On June 25, 2012, Colby Weathers’ mother called the store manager of Odessa Gun & Pawn and asked him to refrain from selling a gun to her daughter who was severely mentally ill, informing him that Ms. Weathers had purchased a gun at the pawnshop the previous month and attempted to commit suicide. Two days later, the store manager sold a gun to Weathers and within two hours, Weathers had shot and killed her father. The State charged Weathers with murder but accepted her plea of not guilty by reason of mental disease or defect and ordered her committed to the Missouri Department of Mental Health. Weathers’ mother filed a wrongful death action alleging that the pawnshop was liable under theories of negligence.

The circuit court entered summary judgment in favor of Respondents, finding that Weathers’ mother’s negligence claims were preempted by the Protection of Lawful Commerce in Arms Act (PLCAA), which protects the sellers of firearms against negligence claims. The court also determined that although the PLCAA provides an exception to this protection in cases of negligent entrustment, Missouri law does not recognize a cause of action for negligent entrustment against sellers.

Holding: On appeal, the Supreme Court of Missouri held that the district court erred in determining that Weathers’ mother was precluded from proceeding with her negligent entrustment claim. The court found that, because Congress had expressly and unambiguously exercised its constitutionally delegated authority to preempt state law negligence actions against sellers of firearms, the PLCAA clearly preempted state law on point; thus, the PLCAA’s exception for negligent entrustment actions applied. What is more, the Court found that Missouri law does recognize a cause of action for negligent entrustment. The court concluded that negligent entrustment occurs when the defendant "supplies" a chattel (i.e., item of personal property) to another with actual or constructive knowledge that, "because of youth, inexperience or otherwise," the recipient will likely use the chattel in a manner that will result in an unreasonable risk of physical harm. Because Weathers’ mother presented sufficient evidence, the circuit court erred in entering summary judgment in favor of the pawnshop.

Found in DMHL Volume 35, Issue 2

Provider Liability; Claims by Third Parties

Mitchell v. State, 369 P.3d 299 (Idaho 2016)

Idaho Supreme Court rules that the victim of a shooting by a person with mental illness who had been discharged from treatment services by the state’s mental health services program may pursue a claim against the state that his injury was the result of a negligent termination of services.

Background: Gerald Simpson had been receiving mental health services from the Idaho Department of Health and Welfare’s (IDHW) Adult Mental Health program until he was released on June 23, 2010. On September 27, 2010, Simpson shot Ryan Mitchell in the back outside of a coffee shop. Approximately ten days after the shooting, psychologist Daniel Traughber, Ph.D., prepared a memorandum on behalf of the IDHW explaining the processes and procedures that were used to terminate mental health services, subsequent to budget cuts, in a way that “reduced the risk of harm to patients and/or the community.” In August 2012, the district court dismissed the criminal charges against Simpson due to Simpson’s lack of competency to stand trial. Shortly thereafter, Mitchell filed this suit alleging that the State violated Mitchell’s constitutional and victims’ rights and was negligent when it discontinued Simpson’s mental health services. The district court issued an order granting summary judgment to the State on all claims.

Holding: On appeal, the Supreme Court of Idaho held that Mitchell’s victims’ rights claim was properly dismissed, but that the claim for negligence had been dismissed in error. The court determined that there was insufficient admissible evidence for the district court to make a determination as to whether the decision to cut Simpson from IDHW's mental health services was operational or discretionary. Thus, the district court erred in holding that the State’s decision to close Simpson’s file was discretionary and therefore erred in granting summary judgment to the State on Mitchell’s negligence claim.

Notable Points:

Mitchell’s negligence claim turns on whether IDHW's decision to release Simpson from its Adult Mental Health program was a discretionary function or an operational function: If the State’s decision to discontinue Simpson’s mental health services was a discretionary function then it would entitle the State to immunity. Here, there were insufficient facts for the trial court to determine whether IDHW's decision to cut Simpson from its health services was operational or discretionary. The evidence did not indicate who made the decision to close Simpson's file or how that decision was made.

Found in DMHL Volume 35, Issue 2

Treatment over Objection to Restore Defendant to Competency to Stand Trial

U.S. v. Onuoha, 820 F.3d 1049 (9th Cir. 2016)

Ninth Circuit vacates and remands district court order authorizing treatment, finding government failed to show proposed treatment is in the defendant’s best medical interests.

Background: From 2004 to 2012, Onuoha served in the National Guard. From 2006 to September 2013, when he resigned, Onuoha worked as a Transportation Security Administration (TSA) screener at LAX Airport. A few hours after resigning, Onuoha returned to TSA headquarters at LAX and left a note for a former supervisor who had been involved in a suspension of Onuoha earlier that summer. The government alleged that Onuoha then made calls to a TSA checkpoint and to the LAX police department alluding to sending a message to America and the world and telling them to evacuate LAX. TSA headquarters was evacuated. Law enforcement officials went to Onuoha’s apartment and discovered that all of his belongings had been removed and all that remained was a large note reading “09/11/2013 THERE WILL BE FIRE! FEAR! FEAR! FEAR!” Later that day, Onuoha called LAX police and told them that he was at a church in Riverside, CA. He told police that he did not intend to make a bomb threat or injure anyone and that he only wanted to deliver a message. Onuoha waited at the church until he was apprehended.

Onuoha’s defense counsel submitted a report that Onuoha suffered from paranoid schizophrenia and planned to raise a diminished-capacity defense. The government requested a competency evaluation, and Onuoha was found not competent to stand trial. The government then filed a motion for an order to involuntarily medicate Onuoha with the goal of restoring him to competency, which the district court granted.

Holding: On appeal, the Ninth Circuit vacated and remanded, holding that the district court erred in finding that the proposed treatment was in Onuoha’s best medical interest under the Sell test. The court of appeals held that the district court was correct in finding that there is an important government interest at stake in prosecuting Onuoha, but the district court clearly erred in finding that the proposed course of treatment was in Onuoha’s best medical interests.

Notable Points:

The seriousness of the offense outweighed the “special circumstance” of time detained: The first Sell factor requires the government to prove that important governmental interests are at stake in prosecuting Onuoha. In Sell, the court recognized that there may be some special circumstances that diminish the government’s interest in prosecution, including the amount of time the defendant had already been confined. In this case, the court considered that Onuoha had already spent time in custody since September 2013, amounting to confinement beyond the minimum possible sentence. Nevertheless, the court found it important that a conviction and resulting sentence for the serious crime at issue is significant in terms of general deterrence, not just incapacitation of a specific individual. Here, the court concluded that the government’s valid interest in prosecuting Onuoha outweighed any special circumstances of Onuoha’s detention.

The government did not meet its burden for proving the fourth Sell factor by clear and convincing evidence: The fourth Sell factor requires the government to prove that administration of the drugs is medically appropriate and therefore in Onuoha’s best medical interest in light of his medical condition. The Ninth Circuit held that after hearing the testimony of a medical expert experienced in administering involuntary medication, the district court could not credit the expert’s testimony without exploring contradictory evidence in the record. In this case, contradictory evidence included that the recommended treatment increased the risk of side effects, the dosage proposed was higher than is generally recommended, and the use of the proposed drug does not conform to the community standard of care. Because involuntary medication orders are disfavored in light of the significant liberty interests at stake, and because the record demonstrated that the proposed treatment included dosages higher than generally recommended, the medication was not in Onuoha’s best medical interest.

Found in DMHL Volume 35, Issue 2

Competency Evaluations

Trueblood v. Washington State Dept. of Soc. and Health Services, 822 F.3d 1037 (9th Cir. 2016)

The Ninth Circuit finds that 7-day deadline for competence to stand trial evaluations is not constitutionally required and, therefore, the lower court’s permanent injunction required modification.

Background: In Washington, if a judge, defense attorney, or prosecutor raises a doubt about a criminal defendant’s competency, the court must order an evaluation. If the defendant is found incompetent, the court may order restorative services, dismiss the case, or refer the defendant for civil commitment. Washington law, as of July 2015, set a target deadline of 7 days or less for the state to complete a competency evaluation, with the option to extend the deadline to 14 days for clinical reasons and several defenses for failing to meet the deadline. Cassie Trueblood brought a Section 1983 claim on behalf of a plaintiff who was found legally incompetent to stand trial and detained in solitary confinement awaiting transfer to a hospital and the class of past and future detainees. Trueblood claimed that the current waiting times in jail for competency evaluations were so long that they were “beyond any constitutional boundary.” The district court granted Trueblood’s motion for summary judgment, stating that any waiting period beyond 7 days is suspect of infringing the detainee’s liberty interest in freedom from incarceration. The court also ordered a permanent injunction because it found that the state “‘had a long history of failing to adequately protect the constitutional rights’ of the class and had ‘demonstrated a consistent pattern of intentionally disregarding court orders.’” The state appealed only the part of the injunction that required a competency evaluation within 7 days, or longer upon a court-ordered extension for “clinical good cause.”

Holding: According to previous Supreme Court decisions, the length of the commitment must have a reasonable relation to the purpose of the commitment and the interests of the detainee and state must be weighed in light of constitutionally acceptable timeframes. The due process clause of the Fourteenth Amendment applies to the circumstances of pretrial detainees and their confinement. When the constitutionality of competency evaluation deadlines is challenged, a court must weigh the interests of the detainees and the state and benchmark those interests against what is constitutionally reasonable, not simply decide whether the deadlines are reasonable and achievable. The Ninth Circuit found that the lower court made no such analysis and erroneously based its findings on what was reasonable and achievable. The Ninth Circuit held that, for this reason, the lower court erred in upholding the 7 day deadline and, thus, that part of the permanent injunction was vacated and the case was remanded to the lower court. The Ninth Circuit charged the lower court with modifying the permanent injunction while “taking into account the balancing of interests related specifically to initial competency evaluations.”

Found in DMHL Volume 35, Issue 2

ADA Non-discrimination Requirement for “Public Accommodations”

Levorsen v. Octapharma Plasma, Inc., 828 F.3d 1227 (10th Cir. 2016)

Tenth Circuit adopts a definition of “public accommodations” under the ADA that results in a commercial plasma donation center being prohibited from refusing to do business with a person with schizophrenia who seeks to donate plasma.

Background: Brent Levorsen had various psychiatric disorders including borderline schizophrenia. For years, Levorsen donated plasma in exchange for money in an effort to supplement his limited income. In May 2013, he attempted to do so at a Salt Lake City branch of Octapharma Plasma, Inc., but an employee at that location became aware that Levorsen had borderline schizophrenia. The employee informed Levorsen that he was ineligible to donate plasma out of a fear of him lashing out during the donation process, possibly injuring himself or others. Levorsen then obtained a note from his psychiatrists clearing him to donate, but Octapharma maintained its refusal to allow Levorsen to donate. Levorsen then brought suit claiming discrimination under the ADA. The district court granted Octapharma’s motion to dismiss for failure to state a claim based on a determination that plasma donation centers do not fit the definition of a service establishment under the ADA.

Holding: The Tenth Circuit reversed the district court’s finding and held that plasma donation centers fit the definition of service establishments under the ADA. The court reasoned that the “ordinary meaning” of service establishment was not tied to the purchase of services from the establishment; rather, an establishment that provides a service, which could include accepting and paying for donations of plasma, is the essence of the term and what the ADA sought to cover. The court remanded the case for further proceedings consistent with that determination.

Found in DMHL Volume 35, Issue 3