District of Columbia

Court of Appeals

No. 15-FM-180

IN RE KAREN PERRY, 

Appellant.

 MRE-21-03

 

 

On Appeal from the Superior Court

of the District of Columbia 

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

Judges.

J U D G M E N T

This case came to be heard on the transcript of record and the briefs filed, 

and was argued by counsel. On consideration whereof, and for the reasons set forth in 

the opinion filed this date, it is now hereby

ORDERED and ADJUDGED that the reviewing judge’s order affirming 

the magistrate judge’s order is vacated, and the case is remanded for further proceedings.

For the Court:

 

Dated: January 12, 2017.

Opinion by Associate Judge Roy W. McLeese.

JAN 12 2017
Notice: This opinion is subject to formal revision before publication in the 

Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the 

Court of any formal errors so that corrections may be made before the bound 

volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 15-FM-180

IN RE KAREN PERRY, APPELLANT.

Appeal from the Superior Court of the District of Columbia

Family Division

(MRE-21-03)

(Hon. Aida L. Melendez, Magistrate Judge)

(Hon. Carol Ann Dalton, Reviewing Judge)

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

Pierre E. Bergeron for appellant.

Stacy L. Anderson, Senior Assistant Attorney General, with whom Karl A. 

Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor 

General, and Loren L. AliKhan, Deputy Solicitor General, were on the brief, for 

appellee District of Columbia.

Charles H. Fitzpatrick, guardian ad litem for appellant, filed a statement 

adopting appellee’s brief.

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

Judges.

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

involuntarily committed to a residential facility under the Citizens with Intellectual 

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

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

1/12/17
2

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

further proceedings.
3

I. Facts and Procedural Background

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

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

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

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

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

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

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

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

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

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

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

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

impaired, but continued her commitment nonetheless.

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

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

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

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

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

cognitively impaired and moderately adaptively impaired.

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

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

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

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

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

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

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

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

Fawcett, along with his own recommendations.

1

 Although Ms. Perry’s full-scale 

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

 

1

The trial court initially appointed the GAL for the limited purpose of 

selecting an independent evaluator. The GAL subsequently participated more 

broadly, both in the trial court and in this court. The trial court appears to have 

appointed the GAL as a neutral aid to the court, rather than as an advocate charged 

with determining Ms. Perry’s wishes and seeking to advance those wishes. See 

generally In re J.J.Z., 630 A.2d 186, 192 n.10 (D.C. 1993) (comparing differing

roles played by GALs appointed as advocates and GALs appointed as neutral 

factfinders); S.S. v. D.M., 597 A.2d 870, 876-77 (D.C. 1991) (discussing differing 

roles played by GALs in various settings). On remand, the magistrate judge may 

wish to clarify both the scope and the nature of the GAL’s role in this case. 
5

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

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

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

be terminated based on Dr. Fawcett’s diagnosis.

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

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

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

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

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

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

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

judge’s order. The reviewing judge affirmed.

II. Discussion

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

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

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

law de novo. Id. 
6

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

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

failing to conduct an evidentiary hearing. We agree.

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

annual hearings to review the involuntary commitment of an intellectually disabled

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

to evidentiary hearing upon request). 

The District argues that although Ms. Perry requested an evidentiary 

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

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

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

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

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

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

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

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

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

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

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

recent psychological evaluation meets accepted professional standards, shows the

exercise of sound professional judgment, and is consistent with previous 

findings.”

2

In upholding the magistrate judge’s ruling, the reviewing judge stated 

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

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

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

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

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

Ms. Perry reasonably sought an evidentiary hearing in this case to crossexamine the experts relied upon by the District and to dispute the proper weight to 

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

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

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

 

2

 In denying Ms. Perry’s request for an evidentiary hearing, the magistrate 

judge appeared to rely on D.C. Code § 7-1304.04. Section 7-1304.04, however, 

states the standard applicable to requests for an independent comprehensive 

evaluation of a respondent. It does not address a respondent’s right to an 

evidentiary hearing.
9

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

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

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

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

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

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

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

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

necessary evidentiary hearing).

 

3

 Ms. Perry also raises several challenges to the magistrate judge’s finding 

that there was a reasonable doubt as to whether Ms. Perry was moderately 

intellectually disabled. Most broadly, Ms. Perry argues that the evidence 

compelled the magistrate judge to find beyond a reasonable doubt that Ms. Perry 

was at least moderately intellectually impaired. Ms. Perry therefore requests that 

we remand the case with instructions that Ms. Perry’s involuntary commitment be

continued. We agree with the reviewing judge, however, that the current record 

permitted the magistrate judge to have a reasonable doubt as to whether Ms. Perry 

was moderately intellectually disabled. Cf., e.g., Davis v. United States, 564 A.2d 

31, 35 (D.C. 1989) (“[W]here the facts admit of more than one interpretation, the 

appellate court must defer to the trial court’s judgment.”). Because the magistrate 

judge will address the issue of the degree of Ms. Perry’s intellectual disability 

again on a different record after the evidentiary hearing, we do not address Ms. 

Perry’s other specific challenges at this point. 
10

B. Ms. Perry’s Request for Expert Assistance

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

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

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

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

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

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

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

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

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

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

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

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

concluded that the Criminal Justice Act was inapplicable.

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

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

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

intellectually disabled and whose continued involuntary commitment is at issue in 

a review proceeding.

Involuntary commitment proceedings are not criminal in character. See In 

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

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

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

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

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

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

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

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

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

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

Court Rules for Mental Retardation Proceedings contemplate that appointed 

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

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

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

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

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

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

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

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

established by the Court”). 

Both the Criminal Justice Act and the Citizens with Intellectual Disabilities 

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

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

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

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

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

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

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

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

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

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

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

whose involuntary commitment is at issue. 
13

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

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

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

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

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

assistance of an expert in connection with that evidentiary hearing.

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

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

judge erred in its handling of the most recent independent comprehensive 

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

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

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

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

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

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

leave the matter to be further addressed on remand. 
14

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

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

So ordered.