In the Matter of HOWARD U. WILLIAM DICKSON, as Director of the Capital District Psychiatric Center, Respondent; HOWARD U., Appellant.
Calendar Date: February 14, 2017
E. Shea, Mental Hygiene Legal Service, Albany (Brent Stack of
counsel), for appellant.
T. Schneiderman, Attorney General, Albany (Joseph M. Spadola
of counsel), for respondent.
Before: Garry, J.P., Egan Jr., Rose, Devine and Aarons, JJ.
MEMORANDUM AND ORDER
from an order of the Supreme Court (Weinstein, J.), entered
September 23, 2015 in Albany County, which granted
petitioner's application, in a proceeding pursuant to
Mental Hygiene Law article 9, for the involuntary retention
was admitted to a psychiatric facility in the wake of a
suicide attempt while imprisoned in 1997. He eventually found
himself at the Capital District Psychiatric Center
(hereinafter CDPC) and, since 1998, has received
"involuntary care and treatment" there (Mental
Hygiene Law § 9.27 [a]). The term of respondent's
involuntary treatment has been periodically extended by court
order (see Mental Hygiene Law § 9.33; People ex rel.
DeLia v Munsey, 26 N.Y.3d 124, 127 ) and, in
September 2015, petitioner filed this application to
involuntarily retain respondent for an additional 18 months.
Respondent demanded a hearing on the application pursuant to
Mental Hygiene Law § 9.33. Following that hearing, at
which respondent's clinical record was stipulated into
evidence, Supreme Court granted petitioner's application
and authorized the continued retention of respondent
"for a period not to exceed  months from September
1, 2015." Respondent now appeals.
affirm. "For a hospital to retain a patient for
involuntary psychiatric care, it must [*2]establish, by clear
and convincing evidence, that the patient is mentally ill and
in need of continued care and treatment, and that the patient
poses a substantial threat of physical harm to himself or
herself or to others" (Matter of Francine T.,
302 A.D.2d 533, 533  [citations omitted]; see
Matter of Tarrence A. [Mid-Hudson Forensic Psychiatric
Ctr.], 132 A.D.3d 985, 985 , lv dismissed 26
N.Y.3d 1120 ). There is little debate that respondent,
who has been diagnosed with pedophilia and antisocial
personality disorder, is mentally ill and requires
psychiatric treatment. The question before us, rather, is
whether petitioner established that respondent poses a
substantial threat of harm to himself or others so as to
require inpatient psychiatric care.
presented psychiatrist Gregory Stepanets as its sole witness
at the retention hearing and buttressed that testimony with
respondent's medical records. Stepanets was not the
regular attending psychiatrist on respondent's unit, but
was familiar with respondent's case through review of his
clinical record and discussions with individuals involved in
his treatment as well as respondent himself. Stepanets noted
respondent's history of inappropriate sexual interest in
young males and instances where, despite his age and medical
limitations, respondent had recently acted upon that
interest. The instances cited included one in which a patient
had obtained an order of protection against respondent after
respondent subjected him to unwanted physical contact and
harassed him, as well as occasions where respondent had tried
to evade staff supervision and engage in "grooming-like
behavior" with patients whom he found attractive.
Stepanets accordingly opined that respondent still posed a
substantial risk of harm to individuals in the community,
"especially to the most vulnerable people, to . . .
young children" (see e.g. Matter of Robert OO.,
57 A.D.3d 1304, 1305-1306 ).
true that respondent has engaged in therapy and taken
medication to address his problematic behavior, the aim of
which was his eventual reentry into the community. Stepanets
testified that respondent's "enrollment in his
treatment [was] extremely superficial, " however, with
respondent refusing to attend individual or group therapy
sessions unless he "get[s] something in return" and
attempting to avoid taking his prescribed medication so that
he could give it to another patient whom he was grooming.
Respondent has further refused to discuss these issues with
staff members, "continues to struggle with anger,
agitation and aggression, " and has been unable to move
up to "higher level" programs that he needs.
Stepanets made clear, in other words, that respondent is not
now and has never been "involved in his treatment"
to any significant degree. Accordingly, regardless of the
effectiveness of the treatment at CDPC, there is no reason to
expect that respondent would do any better were he released
from CDPC into a less restrictive milieu (see Matter of
Mental Hygiene Legal Servs. v Wack, 75 N.Y.2d 751, 753
; Matter of Mental Hygiene Legal Servs. ex rel.
James U. v Rhodes, 195 A.D.2d 160, 162 ).
Stepanets opined, in fact, that the only treatment option
available that could serve the interests of respondent and
the community was retention for involuntary treatment. In
light of the foregoing, we agree with Supreme Court that
petitioner provided clear and convincing evidence to justify
respondent's continued involuntary retention at CDPC (see
e.g. Matter of Robert OO., 57 A.D.3d at 1305-1306;
Matter of Daniel XX., 53 A.D.3d 819, 821-822
J.P., Egan Jr., Rose and ...