MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions Decision: 201 7 ME 5 Docket: Pen

- 16

- 245 Submitted

On	B riefs : November	29,	2016 Decided: January	12,	2017
Panel: SAUFLEY,	C.J.,	and ALEXANDER , MEAD, JABAR , and HUMPHREY , JJ.

IN	RE	STEVEN	L.

PER	CURIAM [¶1] Steven	 L .	 appeals	 from	 a	 judgment o f	 the	 Superior	 Court (Penobscot County, Anderson ,	 J .) affirming	 an	 order	 of	 the	 District	 Court (Bangor, Jordan, J. )	 extending	 his involuntary	 commitment to	 a	 progressive treatment	program for	a	period of	twelve	months

. Although	the	order	at	issue on	 appeal	 has	 expired,	 the	 issue	 of	 sufficiency	 of	 the	 evidence	 to	 support	 a commitment	order	regarding	Steven	L.	has	already	been	pr esen ted	to	us	once , In	 re	 Steven	 L .,	 2014	 ME	 1,	 86	 A.3d	 5 ( Steven	 L

. I ) , but	 to	 date	 h as	 evaded
review	 because	 of	 the determinate	 duration of	 the	 order. Given that circumstance,	w e	conclude	 that	 the	matter	 falls	within	one	of	 the	exceptions
to	the	mootness doctrine,	reach	the	merits	of	the	appeal,	and	affi rm the	order
of	the	District	Court

. 1

1 We	 review	 directly	 a	 decision	 of	 the	 District	 Court	 that	is	 on	 appeal	 from	 a	 decision	 of	 the Superior	Court,	acting	in	its	appellate	capacity. S ee	Lyle	v.	Mangar ,	2011	ME	129,	¶	11,	36	A.3d	867.2
I. CASE	HISTORY [¶2 ] T he	case	history,	stated	below ,	is	based	on	 the documents	in	 the record, here	including	the	transcript , cf. Guardianship	of	Luneau ,	2016	ME	127, ¶	1,	147 A.3d	349 ,	a nd	our	prior	opinion , Steven	L. I

. [¶3] Steven L. is	an	individual	who,	at	the	time	of	the	trial	court	hearing,

was fifty

- five year s	old.		He suffers	from severe	and	persistent	mental	illness.
He was	 involuntarily	 ad mitted	 to	 a progressive	 treatment	 program o n September	7,	2012,	 for	a	period	of	one	year,	and	on July	11,	2014, was	again involuntarily	admitted	to	a	progressive	treatment	program for	a	period	of	one

year. In	June 2015,	the	Dorothea	Dix	Psychiatric	Center ,	a psychiat ric	hospital operated	 by the	 Department	 of	 Health	 and	 Human	 Services, applied to the
District	 Court	 for	 a	 t welve

- month	 extension	 of	 the progressive	 treatment
program order pursuant	 to 34

- B	M.R.S.	§	3873

- A(9)	(2016 )

. The	application alleged	 that Steve n L. has	 a	 history	 of	 multiple	 psychiatric	 admissions	 and incidents	 of	 dangerous	 behavior	 and	 wishes	 to	 discontinue	 his	 medication. After	 a	 hearing	 on	 June	 26,	 2015,	 the	District	 Court granted	 the	motion	 and
ordered the	extension

. [¶4 ] T he	 District	 Court fou nd ,	 by	 clear	 and	 convincing	 evidence , that
Steven L. s uffers from	severe	and	persistent	mental	illness	and	schizoaffective3 disorder that	 has	 persisted since	 childhood

. Because	 of	 his	 mental	 illness,
S teven L. poses a	 risk	 of	 harm	 to	 himself and	 others based	 on	 his	 history	 of suicidality

— both	on	and off	medication

— and	his	aggress ive	behavior	toward
others

. Steven L. has abided	by the individualized treatment	plan outside of	a hospital environment for	 a	 year , but he i s	 unlikely	 to	 take	 his	 medication
wit hout	 the	 plan. Further, c ontinued	 participation	 in	 the progressive treatment	 program and	 access	 to	 community	 resources will help	 protect
Steven L. from	interruptions	 of	 treatment,	 relapses,	 and	 deterioration	 of	 his
mental	health ,	as	well	as enable	him to	survive	more	safely	in	the	community , without posing	a	likelihood	of serious	harm. [¶5 ] The	court	was	not	persuaded	by	Steven L. ’s	argument	that the	side effects	of	 the	medication	decrease	his	quality	of	life so	much	 that he	is	more likely	to	commit s uicide	if	he	is	required	to	participate	in	the program
. Thus,
the court found	each	statutorily	required	element	and	ordered the	extension
of Steven L. ’s	admission	to	the progressive	treatment	program

. No	motion	for further	findings	of	fact	or	conclusions	of	law	was	filed. See M.R.	Civ.	P.	52. [¶6 ] Appeals	of	progressive	treatment	orders	are	presented	first	to	the Superior	Court	pursuant to 34

- B	M.R.S.	§§	3864(11) , 3873

- A(5)(I) (2016) and
M.R.	 Civ.	 P. 76D. On	 July	 17,	 2015,	Steven	 filed	a	 notice	 of	appeal	 from	 the4 District	Court’s	orde r	to	the	Superior	Court. Following	some delay	in	briefing requested	 by	 Steven	 L.’s	 counsel,	 t he	 Superior	 Court	 affirmed	 the	 District Court’s	order	on	April	20,	2016

. T his	appeal	followed

. II.		LEGAL	ANALYSIS
A. Mootness [¶7 ] More	 than	 twelve months	 have	 passed	 since the June	 26,	 2015 , commitment	 order. By	 statute,	 and	 by	 the	 terms	 of	 the	 court’s	 order,
Steven L. ’s	commitment could	not	exceed	twelve	months; thus,	the 2015 order has	expired. See In	re	Walter	R. ,	2004 ME	77,	¶	8,	850	A.2d	346 ; 34

- B M.R.S. § 3873

- A(9)

. Because the	order has expired ,	we	must determine	whether this appeal	is	moot	and	should	be	dismissed

. See In re Christopher	H. , 2011	ME	13, ¶	10, 12 A.3d 64

. Although the	parties	have	not	raised	the	issue	of	mootness,

we do	so	sua	sponte

. 2 Id. [¶8 ] Generally, w e	decline	to hear	an	appeal	when	the issues are	moot , that	is, when they have	lost	their	controversial	vitality ,	and our	decision would

2 Two	days	after	his	brief	was	due, counsel	for Steven L. filed	a	letter	with us requesting	that	we dismiss	the	appeal	because	he	“noticed	the	matter	would	now	be	moot	under	this	Court’s	decision in In	 re	Steven	L. ,	2014	ME	1,	¶ 9,	86	A.3d	5 .” We	accepted	 the	letter	as	a	motion	 to dismiss	and denied	the	request , noting	that	we	were unable	to	determine	whether	the	appeal	would	qualify	for an	exception	 to	 the	mootness	doctrine ,	 “especially	given	Steven’s	 re

- hospitalizatio n	or	continuing hospitalization, ” and	 we	 invited	 the	 parties	 to	 brief	 the	 mootness	 issue	 with the	 merits	 of	 the appeal. S ee M.R.	App.	P.	4(a)(2). Counsel	 for	Steven	L.	did	not	address	 the	mootness	issue	in	his brief.		The	Department	took	no	position	on	the	issue	in	its	brief	but	noted	that	an	exception	to	the mootness	do ctrine	may	be	applicable	h ere.5 not	provide	an	appellant	any	real	or	effective	relief. In re Nicholas	S. ,	2016 ME 82,	¶	7,	140	A.3d	1226

. “ Even	when	an	appeal	is	moot,	however,	we	will still
address	 the	merits	in	some	circumstances. ” Id. ; see Maine	Appellate	Practice § 205	at 212	(4th ed.	2013)	(describing	exceptions	to	the	mootness	doctrine). One	such	exception	applies	when “ the	issue	may	be	 repeatedly	presented	 to the	trial	court,	yet	escape	review	at	the	appellate	level	because	of	its fleeting
or	determinate	nature.” In re Christopher	H. ,	2011	ME	13,	¶	13,	12 A.3d 64. [¶9 ] We	previously addressed	the	issue	of	mootness	in	the context	of	an appeal	 from	 an	 order	 committing	 a	 person	 to	 a progressive	 treatment
program. Steven	 L. I , 2014	 ME	 1,	 ¶ 5,	 86 A.3d	 5

. In circumstances	 nearly
identical	to those	in this	case,	including	the	involvement	of	the	same	patient, we	 declined	 to	 apply	 any	 of	 the	 exceptions	 to	 the	 mootness	 doctrine. Id. ¶¶ 5

- 9.	 	 In	 declining	 to	 apply	 an	 exception,	 we instru cted	 that	 in
circumstances when there is	 a “clearly	looming	issue	 of	mootness,”	 the	 best practice	is	to	move for	expeditious appellate	review

. Id. ¶ 9. [¶	10] Not	only	was	 the appeal now	at	issue not expedi ted,	but	it	was delayed	several times	by	late	filings	and	requests	for enlargements	of	time	by
Steven L. ’s	counsel. However ,	we conclude	that	an	exception	to	the	mootness
doctrine is	appropriately	applied	here	because	of	the	statutorily	limited length6 of the commitment and	 because	 the specific	 issue	 in	 the	 present	 cas e , invo lving	 the	 same	 patient , is	 before	 us	 for	 a	 second	 time. See In	 re Christopher	H. , 2011	ME	13,	¶	13 ,	12 A.3d 64

. Thus,	we	reach	the	merits	of	the appeal.
B. Sufficiency	of	the	Evidence [¶1 1 ] Steven L. argues	 that	 the record	 does	 not	 contain sufficient evidence	 to	 support	 the	 court’s	 findings. Findings	 supporting	 an	 order for involuntary admission to	 a progressive	 treatment	 program must	 be
established by	clear	and	convincing	eviden ce
. See Pitts	v.	Moore , 2014	ME	59, ¶	27,	90 A.3d 1169 (establishing	a	clear	and	convincing evidence standard	in the	 absence	 of	 legislation when	 interference	 with	 fundamental	 rights	 is	 at
issue ); cf. In re Marcia	 E .	 2012	 ME	 139,	 ¶	 4,	 58	 A.3d 1115. W e	 review	 the court’s	 findings	 for	clear error	and	will	affirm	the	decision	unless there	is	no competent	 evidence in	 the	 record	 to	 support	 it

. See 34

- B	 M.R.S. § 3864(11)(B) ; In	re Marcial	O .	1999	ME	64,	¶	21,	728	A.2d	158

. [¶1 2 ] To	 involuntarily	 admit	 a	 person	 to	 a progressive	 treatment
program , 34

- B	 M.R.S.	 §	 3873

- A(1) (2016) requires	 the	 presence	 of	 the following	conditions:7
A. The	patient	suffers	from	a	severe	and	persistent	mental	illness;
B. The	patient	poses	a	likelihood	of	serious	harm;
C. The	 patient	 has	 the	 benefit	 of	 a	 suitabl e	 individualized treatment	plan;
D. Licensed	 and	 qualified	 community	 providers	 are	 available	 to support	the	treatment	plan;
E. The	patient	is	unlikely	to	follow	the	treatment	plan	voluntarily;
F. Court

- ordered	compliance	will	help	to	protect	the patient	from interruptions	 in	 treatment,	 relapses	 or	 deterioration	 of	 mental health;	and
G. Compliance	will	enable	 the	patient	 to	survive	more	safely	in	a community	setting	without	posing	a	likelihood	of	serious	harm. [¶1 3 ] Here,	 the	 District	 Court did not	 clearly	 err in	 its	 findings regarding each	 statutorily	 required condition .	 	 The	 court’s	 findings	 were supported	by	the	testimony	of	a court

- appointed psychologist	who	examined
Steven L. ,	 a	 nurse	 practitioner who	 was	 Steven L. ’s outpatient	 provider,	 a psychiatrist	 who	 formerly	 treated	 Steven L

. ,	 Steven L. ’s	 own testimony ,	 and the	psychologist’s written	report. [¶14 ] This	 record established	 that	Steven L. has	 suffered from	 severe and	 persistent	 mental	 illness	 and	 schizoaffective disorder for	 decades; he poses	a	likelihood	 of	 harm	 to	 himself and	 others as evidenced	 by	 his	 recent
attempt to	 overdose and aggressive	 behavior	 exhibited	 at	 a	group	 home ; he8 has	 the	 benefit	 of	 a	 suitable	 individualized	 treatme nt	 plan , which	 he	 has complied with	 for	 a	 year; he	 is	 supported	 by	 community	 resources and counseling that will be	 made	 available to	 him at	 his	 request ; he is highly unlikely	 to	 follow	 the	plan	voluntarily based	on his repeated	statements	 that without	 the	 plan he w ill	 cease	 taking	 the	 medication; court

- ordered compliance	 will	 protect	 him	 from “ decompensat [ ing ] significantly ” in	 the opinion	 of	 his	 outpatient	 provider ;	 and compliance	 will	 enable	 Steven L. to survive	more	safely	in	 the	community	without	posing	a	likel ihood	of	serious harm	as	proven	by	object ive	evidence	 throughout	 the period	covered	by	 the
District	C ourt’s	order

. [¶1 5 ] Therefore,	b ecause	the	trial	record	supports	the	court’s	findings, by	 clear	 and	 convincing	 evidence, we	 affirm	 the District	 C ourt’s	 order extending	 Steven L. ’s	 admission	 to	 a progressive	 treatment	 program for	 a period	of	twelve	months. The	entry	is: Judgment affirmed

.9 Zachary	Brandmeir,	Esq.,	Bangor,	for	appellant	Steven	L. Janet	T. Mills,	Attorney	General,	and Christopher	C.	Leighton,	Asst.	Atty.	Gen., Office	of	the	Attorney	General,	Augusta,	for	appellee	State	of	Maine

Penobscot	County	Superior	Court	docket	number	AP

- 2015

- 6 F OR C LERK R EFERENCE O NLY