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Simms v. Maryland Department of Health

Court of Special Appeals of Maryland

February 27, 2019


          Circuit Court for Howard County Case No. 13-C-17-112909

          Wright, Nazarian, Wilner, Alan M. (Senior Judge, Specially Assigned), JJ.


          Wright, J.


         In February 2016 in the Circuit Court for Charles County, Romechia Simms, appellant, was found not criminally responsible ("NCR") for the death of her three-year-old son. She was conditionally released from commitment to the Maryland Department of Health ("the Department"), appellees, subject to conditions. Alleging that Ms. Simms violated her Order of Conditional Release, the State petitioned the circuit court to issue a hospital warrant pursuant to Md. Code (2001, 2008 Repl. Vol.), § 3-121(c) of the Criminal Procedure Article ("CP"). The circuit court granted the relief requested and issued a hospital warrant directing that Simms be transported to the hospital for an administrative review hearing.

         In September 2017, an Administrative Law Judge ("ALJ") recommended that Ms. Simms be released from confinement subject to several conditions, including a voluntary stay at the Clifton T. Perkins Hospital Center ("Perkins Hospital") until she could be placed at an appropriate residential treatment center. In October 2017, the circuit court accepted the ALJ's recommendations.

         Before being conditionally released, Ms. Simms filed a Petition for Writ of Habeas Corpus with the Circuit Court for Howard County, the county where the hospital was located, alleging that she was being unconstitutionally confined. The circuit court found that Ms. Simms was not entitled to relief because the hospital warrant issued by the Circuit Court for Charles County was lawful. Ms. Simms timely appealed and presents the following questions for our review, which we have expanded for ease of discussion:[1]

1. Is this appeal permitted by law?
2. Is this appeal moot?
3. Whether a finding of dangerousness must be made to support a circuit court's finding that a hospital warrant should be issued for a person on conditional release, and whether a lack of such a finding be violative of due process?

         As to the first question presented, we answer in the affirmative, and answer the second third questions in the negative. As to the third question, Ms. Simms makes two arguments but they are really two faces of the same coin. Her first argument is that dangerousness must be established anew during the hospital warrant phase, and second that it is a failure of due process not to do so. We must necessarily address the first argument before we address the second, as the negative answer to the first, necessarily requires an answer of no merit to the second.


         Ms. Simms has battled serious mental health issues since late 2014, when she first began experiencing visions and beliefs that people were knocking on her door with guns. In February 2015, her symptoms worsened, and she began to believe that people were trying to kill her. Around this time, Ms. Simms was evaluated at Southern Maryland Hospital Center ("SMHC"), where she would later be readmitted.

         At SMHC, Ms. Simms espoused beliefs that she and her family members had been raped under hypnosis, and that both she and her son had been shot. Around that same time, she jumped out of a moving taxi with her son and threatened the taxi driver. She was diagnosed with a psychotic disorder and was discharged in March 2015.

         In April 2015, Ms. Simms participated in an intake assessment at Regenerations Counseling Services where she complained of "stress" but was unable to identify the cause behind her stress. She was described as "guarded, paranoid, depressed, and irritable." Later that month, Ms. Simms met with a psychiatrist and stated a belief that people, including her boyfriend, were trying to kill her.

         Ms. Simms' degrading mental health condition ended in tragedy. In May 2015, police found Ms. Simms pushing a swing holding the body of her deceased three-year-old son. Ms. Simms had reportedly pushed the child on the swing for forty straight hours. She was charged with Child Abuse Resulting in Death, Involuntary Manslaughter and Child Neglect on September 11, 2015.

         In December 2015, Ms. Simms participated in a pretrial evaluation where she was considered competent to stand trial. Ultimately, she was found NCR based on evidence of experiencing auditory hallucinations, visual hallucinations, and paranoid delusions that made her feel unsafe. She also claimed that her sleep was impaired and voices told her to take her son to the park. Once there, the voices told her that there was a battle in the park between heaven and hell, and that her son would remain safe in the swing.

         Ms. Simms was readmitted at SMHC after her son's death. The reason for admission was listed as "psychosis." Ms. Simms was described as tearful and confused. She was diagnosed with schizophrenia, prescribed Haloperidol, Benztropine, and Mirtazapine, and was discharged at the end of the month. In August 2015, Ms. Simms met with a psychiatrist and endorsed "passive death wishes, stating, 'Sometimes I wish I was dead.'"

         In February 2016, Ms. Simms entered an Alford plea[2] to the charge of involuntary manslaughter. After reviewing reports from experts for both the State and the defense, the Circuit Court for Charles County found that, at the time of the criminal act, Ms. Simms had a mental disorder that caused her to lack the capacity to appreciate the criminality of her act and to conform her actions in accordance with the law. Subsequently, the circuit court found Ms. Simms NCR for the involuntary manslaughter of her son and determined that she would not be a danger to herself or the person or property of others, if released with conditions.

         In March 2016, the circuit court issued an Order of Conditional Release for Ms. Simms, pursuant to CP §§ 3-111 and CP 3-112. Ms. Simms was conditionally released from commitment to the Department subject to the following conditions:

1. The Community Forensic Aftercare Program ("CFAP") of the [Department] shall be responsible for coordinating and monitoring the conditions of the defendant's release, including notification to all of the necessary parties that will be expected to provide services to [Ms. Simms]. [Ms. Simms] shall comply with all lawful instructions, directions and recommendations given to her by CFAP.
2. [Ms. Simms] shall reside at [her address]. Any change in residence must be reported by [Ms. Simms] to and approved by CFAP prior to relocation.
3. [Ms. Simms] shall be seen for psychiatric follow-up with QCI Behavioral Health . . . . She will participate in individual therapy twice per week with a therapist identified by the agency. The patient will initially be seen monthly by the psychiatrist and twice per week by a therapist. Thereafter, any change in therapist, psychiatrist, clinic or frequency of appointments must be approved in writing by CFAP prior to any changes going into effect.
4. [Ms. Simms] shall attend and participate in any other program or activity as recommended and arranged by the therapist, psychiatrist or [the Department]. Ms. Simms shall follow all of their rules and requirements. This may include a day treatment or partial hospitalization program.
5. [Ms.] Simms will take medication as prescribed, and shall submit to periodic blood tests to confirm the presence or levels of medication if requested. Ms. Simms shall pay for said tests.
6. [Ms.] Simms shall not take illicit drugs including marijuana, or use alcohol. She will also not take the substance commonly referred to as "K2" or "Synthetic Marijuana." She shall submit to toxicology testing, urine, blood and breathalyzer testing upon request of her treatment team or CFAP monitor. She shall participate and complete an outpatient substance abuse program and provide documentation of completion of the program. In addition, Ms. Simms may be required to attend NA/AA if requested by her treatment team or CFAP monitor.
7. [Ms.] Simms shall not own, possess or use, or attempt to own, possess or use a firearm or weapon.
8. [Ms.] Simms shall not be in the company of any minor unless there is another adult present. [Ms.] Simms will not undertake to be the care giver of any minor.
9. [Ms.] Simms shall immediately discuss with her therapist or case manager and abide by any resulting reasonable recommendations made regarding the following:
a. Change in residence, employment, or activities
b. Change in marital status or family composition
c. Change in physical or mental health
d. Legal involvements
e. Trips outside the state of Maryland
f. Failure to meet clinic or program requirements.
10. [Ms.] Simms shall obey all laws and in the event she is charged, arrested or convicted of any crime she will notify the CFAP immediately.
11. [Ms.] Simms will appear in Court when instructed to do so. For the first year of [Ms.] Simms' Conditional Release, the Court will hold a hearing every 90 days to determine the Defendant's progress and compliance with her treatment and release. The Defendant will appear at each hearing. After the first year of Conditional Release, the Court shall have the discretion to hold a hearing at any time to determine the Defendant's progress and compliance with her treatment and release. Additionally, the State and/or Defendant may request a hearing at any time to determine the Defendant's progress and compliance with her treatment and release.
12. [Ms.] Simms agrees that [the Department] will have the right to order an independent psychiatric evaluation at any time, and she further agrees she will participate in and fully cooperate with such an evaluation.
13. If [Ms.] Simms' mental illness becomes active, she may seek voluntary admission to a mental hospital for the purpose of treatment. Any such hospitalization shall not be construed to be a violation of conditional release.
14. If [Ms.] Simms' mental illness becomes active such that her treating mental health personnel recommend inpatient treatment and she is unwilling to be voluntarily admitted to a mental hospital, this shall be deemed a violation of conditional release.
15. The CFAP shall be permitted to frequently communicate with any person, including the therapist, having knowledge of [Ms.] Simms' clinical condition, and shall be furnished with all documentation concerning her status that may be necessary to monitor her ongoing clinical condition.
16. During the period of conditional release, [Ms.] Simms shall remain subject to the jurisdiction of this court, to the general supervision of [the Department], and to the reasonable requirements of [the Department] pertaining to her conditions of the release.
17. If at any time within the five years of this Conditional Release Order, [Ms.] Simms does not comply with the conditions of her release, the CFAP shall immediately notify the Court and the State's Attorney. Pursuant to [CP § 3-121], a hospital warrant may be issued and [Ms.] Simms may be committed to a facility designated by [the Department] pending a revocation hearing. If, after a revocation hearing, Ms. Simms is found to have violated any condition of her release, the Court may revoke her Conditional Release and she could be committed to [the Department] for placement in an inpatient facility designated by [the Department].

         The circuit court further ordered that CFAP would promptly notify the State's Attorney for Charles County and the court if Ms. Simms failed to comply with the conditions.

         In March 2017, the circuit court issued an Amended Order of Conditional Release. The amended order stated that the Department recommended that Ms. Simms be discharged from the Assertive Community Treatment Team to regular outpatient clinical services with QCI Behavioral Health. This modified condition #4.

         On September 12, 2017, Kierrah Flipping, Ms. Simms' therapist and the clinical director of QCI Behavioral Health, wrote to Lori Mannino, LCSW-C, expressing concerns about Ms. Simms because she was exhibiting a "decrease in psychological functioning." She noted that Ms. Simms missed appointments on August 7, August 21, September 7, and September 11, 2017. Ms. Flipping observed that Ms. Simms had shown symptoms of "depression, anxiety, irritable mood, easily distracted, unable to concentrate/focus, short term memory loss, and grieving the death of her son," which she believed might have been attributable to the anniversary of Ms. Simms' son's death. Ms. Flipping recommended that Ms. Simms "obtain a psychological evaluation and be reconsidered for a higher level of treatment than what is currently being given."

         A Conditional Release Reporting Form dated September 12, 2017, noted that for the reporting period of August 2017, Ms. Simms had five appointments scheduled and had missed two of them because she forgot the appointments, although her treatment team had put several interventions in place, including telephone reminders. An Emergency Reporting Form also indicated that Ms. Flipping believed that Ms. Simms' mental status was in decline.

         Ms. Simms' 90-day status hearing was held on September 13, 2017, and the State's Attorney filed a Petition for Revocation of Conditional Release with the circuit court alleging that Ms. Simms violated condition #4 of her Conditional Release Order.

         According to the State, a therapist at QCI Behavioral Health informed the State that Ms. Simms was not complying with all of her clinical appointments, and that she missed appointments on June 20, August 7, August 21, September 7, and September 11, 2017. Thus, the State petitioned the circuit court to (1) issue a hospital warrant for Ms. Simms, (2) direct that upon execution of the warrant Ms. Simms be transferred to Perkins Hospital for examination and evaluation, (3) set an administrative hearing within ten days after the attachment of Ms. Simms, and (4) revoke Ms. Simms' conditional release. On September 13, 2017, the circuit court heard the State's Petition for Revocation of Conditional Release. Counsel for Ms. Simms argued that Ms. Simms had attended some of her therapy appointments. The State informed the court that it had "added the condition of [Ms. Simms] not appearing [for this court date], to the violations of conditional release," which it later waived.[3] The court recessed to give Ms. Simms time to arrive.

         The circuit court reconvened from its recess and heard testimony from Lori Mannino, Ms. Simms' monitor. Ms. Mannino testified that she had reached out to Ms. Simms' mental health providers on September 8, 2017, to inform them that a court date was scheduled for September 13, 2017, and that she had not received documentation from them. Ms. Flipping notified Ms. Mannino of concerns she had regarding Ms. Simms' behavior. Ms. Mannino reviewed the appointment log and learned that, excluding some missed appointments that were excused by the court, Ms. Simms was a no-call and no-show on August 7, August 21, September 7, and September 11, just two days before her September 13, 2017 status hearing.[4] Ms. Mannino testified that Ms. Simms was given appointment cards and reminders by phone.

         Ms. Mannino inquired with the therapist about Ms. Simms' mental health status. She testified that the documentation indicated that Ms. Simms needed a higher level of care.[5] Ms. Mannino further testified that Ms. Simms would need to be evaluated to determine whether she needed a higher level of care.

         The circuit court resumed hearings on September 14, 2017. Ms. Simms' counsel argued that there was no probable cause of Ms. Simms' dangerousness because Ms. Simms had gone to the hospital that morning and was deemed "not appropriate for hospitalization." Therefore, Ms. Simms' counsel argued that the State's position raised due process concerns.[6] Further, Ms. Simms' counsel argued that the court only had a "recommendation for more intensive care," which was not enough under the probable cause standard.

         The State argued that Ms. Simms needed appropriate mental care, which was bolstered by her inconsistent attendance at therapy appointments. The State noted that it did not seek a Revocation of Conditional Release when Ms. Simms missed appointments due to her car accident. Of note, the State said:

[W]hen there is a pattern of missing appointments, no call, no show, no explanation for it, and there is in combination with that concern about some observations they're making of her mental health, absolutely I think that it's [the State's] job to bring that then to the Court's attention. That's probable cause right there.

         The circuit court noted that it was just looking at whether there was "probable cause that a conditional release has been violated," and that an ALJ would determine dangerousness. Ms. Simms informed the court that she did not believe "the missed appointments [are] valid based on the flow of things at QCI at the time." The court granted the State's request and issued a hospital warrant, pursuant to CP § 3-121, on September 14, 2017, noting that "probable cause exists that [Ms. Simms] violated a conditional release[, ] and ordering that Ms. Simms be transferred to the [Perkins Hospital] for evaluation and examination." The order set the matter for an administrative hearing at Perkins Hospital within ten days after the execution of the warrant.

         Upon admission at Perkins Hospital, Ms. Simms was evaluated by Dr. Monica Chawla who reported that Ms. Simms was "guarded, minimized the significance of her symptoms, and lacked insight into her mental illness." However, Dr. Chawla determined that Ms. Simms would not pose a danger to self or ...

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