In re Henry B. — 2017 ME 72

MAINE SUPREME JUDICIAL COURT 	Reporter of Decisions
Decision: 	2017 ME 72
Docket: 	Kno-16-308
Argued: 	March 2, 2017
Decided: 	April 20, 2017
Panel: 	SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, and HUMPHREY, JJ.
IN RE HENRY B.
JABAR, J.
[¶1] 	Henry 	B. 	appeals 	from 	an 	order 	of 	the 	Superior 	Court
(Knox County, Billings, J.), acting as an intermediate appellate court, affirming
the District Court’s (Rockland, Sparaco, J.) order of involuntary commitment.
Henry 	raises 	a 	novel 	question 	of 	law: 	whether 	individuals 	subject 	to
involuntary commitment proceedings in Maine have the right to effective
representation of counsel. Henry contends that they do. We agree, and adopt
the Strickland standard for courts reviewing claims of ineffective assistance of
counsel in involuntary commitment proceedings. 	See generally Strickland v.
Washington, 	466 U.S. 	668 	(1984). 	However, 	we 	disagree 	with 	Henry’s
contention that his counsel was ineffective, and therefore affirm the District
Court’s judgment ordering Henry’s involuntary commitment, as well as the
Superior Court’s judgment affirming that judgment.

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I. BACKGROUND
[¶2] 	On March 15, 2016, Henry B. was admitted to Pen Bay Medical
Center (PBMC) pursuant to the “blue paper” procedures of 34-B M.R.S.
§ 3863(1)-(2) (2016). On March 18, 2016, PBMC staff applied to involuntarily
commit Henry pursuant to the “white paper” procedures of 	34-B M.R.S.
§ 3863(5-A) (2016). 	A commitment hearing was held in the District Court
(Rockland, Sparaco, J.) on March 28, 2016, at which Henry was represented by
appointed counsel.
[¶3] 	Based 	on 	the 	testimony 	of 	the 	medical 	director 	of 	PBMC’s
Psychiatric and Addiction Recovery Center (PARC), an independent medical
examiner, and two of Henry’s sisters, the District Court concluded that the
State had proved by clear and convincing evidence that Henry was mentally ill
and that he had suffered an “acute psychotic episode, possibly related to a
schizophrenic break.” 	Further, the court concluded that Henry posed a
“serious risk” of harming himself or others, that there was not “an adequate
community of resources for his care or treatment, that it would not be wise or
safe to return him to his family’s care,” and that constant observation at PBMC
would be “more structured and reliable than [treatment] he would be getting

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at home.” 	The court therefore ordered that Henry be subject to involuntary
hospitalization for up to 120 days.
[¶4] 	Henry appealed to the Superior Court (Knox County, Billings, J.),
and after a hearing on June 29, 2016, the Superior Court affirmed the District
Court’s judgment of involuntary commitment. 	See 34-B M.R.S. § 3864(11)
(2016); M.R. Civ. P. 76(D). Henry timely appealed. See M.R. App. P. 2(B)(3).
II. DISCUSSION
[¶5] Henry contends that he was not provided with effective assistance
of counsel at the March 28 District Court hearing. 	He asserts that we should
adopt the Strickland standard, see Strickland, 466 U.S. 668 (1984), when
analyzing 	claims 	of 	ineffective 	assistance 	of 	counsel 	in 	involuntary
commitment cases, and that by any standard, hearing counsel’s assistance was
prejudicially ineffective.
A. 	Effective Assistance Standard
[¶6] Maine law requires that an individual be represented by counsel at
all 	stages 	of 	involuntary 	commitment 	proceedings. 	See 	34-B 	M.R.S.
§ 3864(5)(D) (2016); In re Penelope W., 2011 ME 58, ¶ 8, 19 A.3d 813.
Because “where a state statute affords an individual subject to involuntary
commitment with the right to counsel, the legislature could not have intended

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that counsel could be prejudicially ineffective,” see In re Mental Health of
K.G.F., 29 P.3d 485, 491 (Mont. 2001), we now hold that, at all stages of
involuntary 	commitment 	proceedings, 	individuals 	subject 	to 	those
proceedings are entitled to the effective assistance of counsel.
[¶7] 	Having announced the right to effective counsel, we must also
ensure that, when there is a claim of ineffective assistance, parties, counsel,
and courts understand what processes to use and the standard to apply. 	A
majority of jurisdictions holding 	that 	the effective assistance of counsel
applies to involuntary commitment proceedings have also held that the
Strickland standard applies. 	See, e.g., Pope v. Alston, 537 So. 2d 953, 956-57
(Ala. Civ. App. 1988); In re Carmody, 653 N.E.2d 977, 984 (Ill. App. Ct. 1995);
In re Crane, 704 N.W.2d 437, 439 (Iowa 2005); In re Alleged Mental Illness of
Cordie, 372 N.W.2d 24, 	28-29 (Minn. Ct. App. 1985); 	State ex rel. 	H.W.,
85 S.W.3d 	348, 	356 	(Tex. 	App. 2002); 	Jenkins 	v. 	Dir. 	of 	the 	Va. 	Ctr. 	for
Behavioral Rehab., 624 S.E.2d 453, 460 (Va. 2006); In re Det. of T.A.H.-L.,
97 P.3d 767, 768 (Wash. Ct. App. 2004). 	In Maine, we recently applied a
modified 	Strickland 	standard to 	hearings resulting in the 	termination of
parental rights, stating that “the deprivation of parental rights is in many ways
similar to the deprivation of liberty interests at stake in criminal cases.” In re

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M.P., 2015 ME 138, ¶¶ 1, 26, 126 A.3d 718. 	There, we further noted that the
“Strickland standard is known to the bar and the bench, and . . . carries with it
a developing body of case law, which will aid courts in the efficient and timely
resolution of . . . claims.” Id. ¶ 26.
[¶8] 	A similar rationale supports 	the 	application of 	Strickland 	to
involuntary commitment cases: Maine law requires representation at all
stages of the involuntary commitment proceedings, the liberty interests at
stake are on par with those at stake in criminal cases, 	Strickland 	is a
well-known and developing standard, and a “more intrusive post-trial inquiry
could encourage the proliferation of ineffectiveness challenges, and possibly
delay the permanency necessary to stabilize” a 	mentally ill individual’s
treatment in a safe environment. 	Id. (citation omitted) (quotation marks
omitted).
[¶9] 	For these reasons, we declare that the Strickland standard applies
to 	resolve 	claims 	of 	ineffective 	assistance 	of 	counsel 	in 	involuntary
commitment cases in Maine, using the process we enunciated in In re M.P.,
2015 ME 138, ¶¶ 18-21, 126 A.3d 718. 	A direct appeal from an order of
involuntary commitment may include a claim that the individual’s attorney
provided ineffective assistance of counsel “when the record is sufficiently well

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developed to permit a fair evaluation” of the claim. 	Id. ¶ 19. 	If the record is
insufficient to “illuminate the basis for the challenged acts or omissions
of . . . counsel,” the individual must promptly make a motion pursuant to M.R.
Civ. P. 60(b)(6). Id. ¶ 20. If the motion is denied, “the trial court’s findings will
amplify the record and provide the necessary context should [the individual]
decide to pursue an appeal of that decision along with the appeal of the
underlying judgment” ordering his or her involuntary commitment. Id.
[¶10] 	To bring a claim of ineffective assistance of counsel following an
involuntary 	commitment 	proceeding, 	whether 	by 	direct 	appeal 	or 	by
Rule 60(b)(6) motion, the individual asserting the claim “must submit a
signed and sworn affidavit stating, with specificity, the basis for the claim.” Id.
¶ 21. 	That affidavit must be accompanied by affidavits from any individuals
the 	claimant 	asserts 	should 	have 	been 	called 	as 	witnesses 	during 	the
involuntary commitment hearing, as well as from any others whose evidence
would buttress the claimant’s assertions that counsel “was deficient and that
the deficiency affected the fairness of the proceeding.” Id.
B. 	Application of Strickland
[¶11] Although at the time Henry appealed the District Court’s decision
we had not yet enunciated any process to evaluate ineffective assistance of

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counsel claims following involuntary commitment hearings, we conclude that
the Superior Court’s consideration of Henry B.’s claim of ineffective assistance
of counsel complied with the process we adopted in In re M.P. and now adopt
for involuntary commitment proceedings, and will therefore address his
assignments of error without remand.1
[¶12] 	Strickland provides that, in order to prove ineffective assistance
of counsel, an individual must show (1) “that counsel’s representation fell
below 	an objective standard of reasonableness,” and (2) that “errors of
counsel . . . actually had an adverse effect on the defense.” 	Theriault v. State,
2015 ME 137, ¶ 14, 125 A.3d 1163 (quotation marks omitted). 	The second
prong requires an individual to demonstrate “a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is
a probability sufficient to undermine confidence in the outcome.” Id. Henry B.
contends in this appeal that his counsel failed to provide effective assistance
of counsel pursuant to the Strickland standard in two respects: by failing to
1 	The Superior Court, in addressing Henry’s ineffective assistance argument, did not specify
whether it would apply Strickland or some other standard, but concluded that regardless of the
standard applied, hearing counsel’s conduct did not fall below that of a reasonably fallible attorney
and that hearing counsel’s performance did not affect the fundamental fairness of the proceeding.
Despite our agreement with these conclusions, because the Superior Court acted in its appellate
capacity, we review directly the District Court record and decision. See Boyer v. Boyer, 1999 ME
128, ¶ 6, 736 A.2d 273.

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object to certain hearsay statements, and by failing to investigate Henry’s
previous medical treatments.
1. 	Hearsay
[¶13] 	Generally, out-of-court statements are not admissible to prove
the truth of the matter asserted. 	See M.R. Evid. 801, 802. 	Expert opinions,
however, may rely upon out-of-court statements and are not inadmissible for
such reliance. 	M.R. Evid. 703. 	Psychological reports containing out-of-court
statements are therefore admissible if the reports are considered by the court
only “as expressions of the testifying experts’ opinions.” 	In re Soriah B.,
2010 ME 130, ¶ 22, 8 A.3d 1256.
[¶14] Here, during the District Court hearing, a PARC psychiatrist who
worked personally with Henry following his admission to PBMC testified that
Henry was brought to the hospital because “[a]pparently, [he] was found
wandering on Route 1, running in traffic, and screaming that he wanted to
die.” That psychiatrist then testified that Henry “had been brought in, also, on
March 4th when he was found wandering outside without shoes and socks in
20-degree weather knocking on people’s doors.” 	Finally, the psychiatrist
stated that Henry “started to try and ingest Magic Markers, ingest checkers,

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suck on hand sanitizer, and stick himself in the neck with a fork, and bashed
his head through the wall.”
[¶15] 	Hearing counsel’s failure to object to these alleged hearsay
statements 	did 	not 	constitute 	ineffective 	assistance 	of 	counsel. 	The
statements provide the foundation of the psychiatrist’s expert opinion and are
admissible for that purpose. 	See id; M.R. Evid. 703, 705. 	Although the court
reiterated 	in 	its 	findings 	some 	of 	these 	statements 	describing 	Henry’s
behaviors—namely that Henry ingested objects and professed that he wanted
to die—the court relied upon the opinions of Henry’s doctors as medical
experts in reaching its legal conclusions. 	Henry did not present his own
expert testimony in rebuttal, nor did he present any evidence indicating that
the facts contained in the hearsay statements were false. 	Also, he has not
demonstrated that the court would have reached different conclusions had
hearing counsel in fact objected to the alleged hearsay. 	Hearing counsel’s
failure to object to the testimony therefore does not “[fall] below an objective
standard of reasonableness” or create a reasonable probability that, had
counsel raised hearsay objections, the outcome would have been different.
See Strickland, 466 U.S. at 694.

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2. 	Previous Medical Treatments
[¶16] 	Although Henry’s counsel did not conduct an independent
investigation into the incidents that occurred before Henry was admitted to
PBMC, counsel did inquire on cross examination into the hospital’s care of
Henry and the intended treatment plan. Counsel also probed whether Henry’s
medication regimen would be effective in alleviating his symptoms, to which
the psychiatrist replied affirmatively. 	Further, counsel inquired whether
medications that the family alleged Henry had received several weeks prior to
his 	admission 	to 	PBMC 	could 	have 	caused 	his 	symptoms, 	which 	the
psychiatrist denied. 	The psychiatrist concluded that Henry would benefit
from commitment, as did a court-appointed independent medical examiner,
citing similar reasons.
[¶17] 	Because the District Court explicitly weighed the evidence and
determined 	that 	the 	physician’s 	opinions 	were 	more 	credible 	than 	the
testimony of Henry’s sisters, there is no reasonable probability that the
outcome 	would 	have 	been 	different 	had 	Henry’s 	counsel 	independently
investigated his medical history. 	See Levesque v. State, 664 A.2d 849, 852
(Me. 1995) 	(holding 	that 	where 	a 	defendant 	was 	not 	“deprived 	of 	an

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otherwise available substantial ground of defense,” counsel was effective
pursuant to the Strickland standard).
C. 	Sufficiency of the Evidence
[¶18] 	In addition to raising ineffective assistance arguments, Henry
contends that the evidence presented at the District Court hearing was
insufficient to support the court’s findings that Henry met the criteria for
involuntary commitment.2 	We review the court’s findings of fact for clear
error, In re Marcial O., 1999 ME 64, ¶ 21, 728 A.2d 158, and “we will reverse a
finding only if there is no competent evidence in the record to support it, if the
factfinder clearly misapprehends the meaning of the evidence, or if the finding
is so contrary to the credible evidence that it does not represent the truth and
right of the case,” Guardianship of Hailey M., 2016 ME 80, ¶ 15, 140 A.3d 478
(citations 	omitted) 	(quotation 	marks 	omitted). 	We 	note 	that 	it 	is 	the
factfinder’s prerogative to accept or reject portions or the entirety of any
witness’s 	testimony. 	Efstathiou 	v. 	Efstathiou, 	2009 	ME 	107, 	¶ 12,
982 A.2d 339.
2 Henry also claims on appeal that the court order involuntarily committing him was insufficient
as a matter of law because it failed to recite a factual finding that the court was satisfied with the
individual treatment plan established by Henry’s medical team. The record shows that the court
did make this finding. We therefore find this argument unpersuasive, and do not address it further.

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[¶19] 	A court must find the following facts by clear and convincing
evidence to commit a person involuntarily to a psychiatric hospital: (1) that
the person is mentally ill and poses a likelihood of serious harm, (2) that
adequate community resources for the person’s care are not available, (3) that
inpatient hospitalization is the best available means of treatment, and (4) that
it is satisfied with the individual treatment plan offered by the committing
hospital. 34-B M.R.S. §§ 3864(6)(A), (7) (2016).
[¶20] At the March 28 hearing, the psychiatrist testified that Henry was
brought to the PBMC emergency room on March 4 after having been found
“wandering outside without shoes and socks in 20-degree weather knocking
on people’s doors,” and that Henry’s family took him home, but Henry was
again brought to PBMC by police on March 15 after he was found running in
traffic on Route 1, screaming that he wanted to die. 	The psychiatrist also
testified that, after admission to PBMC, Henry tried to ingest magic markers,
checkers, and hand sanitizer; stuck himself in the neck with a fork; bashed his
head into the wall; told hospital workers that if he looked at people they
would die; thought another patient was using mind control on him; and tried
to electrocute himself.

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[¶21] 	The psychiatrist further testified that Henry was suffering acute
psychotic episodes that could have been caused by a schizophrenic break or a
psychotic disorder due to the ingestion of drugs prior to admission, but that
Henry had screened negative for drug use. 	Regardless of the differential
diagnosis, the psychiatrist concluded that a treatment regimen at the hospital
including Ativan and Risperidone would help Henry and 	noted 	that 	his
demeanor 	had 	improved 	since 	admission. 	The 	independent 	medical
examiner, a clinical psychologist, expressed concerns that Henry would harm
himself if released, and was supportive of the treatment plan proposed by the
psychiatrist, including involuntary commitment.
[¶22] 	Although Henry’s sisters also testified, expressing their beliefs
that Henry’s symptoms were caused by the medications he had been provided
by 	medical 	staff 	on 	March 	4 	and 	following 	an 	earlier 	incident 	in
Massachusetts, and that the family did not want him taking any medications at
all, the court noted that the sisters’ opinions were “not founded in any sort of
expert 	testimony.” 	However, 	the 	court 	explicitly 	weighed 	the 	doctors’
testimony with that of the sisters, and made its findings based “on the most
persuasive evidence, which is the medical testimony.” 	There is therefore
competent evidence in the record supporting the court’s conclusions that

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Henry was mentally ill, that he posed a likelihood of serious harm, that
adequate community resources for the care and treatment of his mental
illness were not available, that inpatient hospitalization was the best available
means for treating him, and that PBMC’s treatment plan was satisfactory. 	See
34-B M.R.S. § 3864(6)(A).
The entry is:
Judgment affirmed.
Scott F. Hess, Esq. (orally), The Law Office of Scott F. Hess, LLC, Augusta, for
appellant Henry B.
Janet T. Mills, Attorney General, and N. Paul Gauvreau, Asst. Atty. Gen. (orally),
Office of the Attorney General, Augusta, for appellee Department of Health and
Human Services
Knox Superior Court docket number AP-2016-10
FOR CLERK REFERENCE ONLY