On Appeal from Superior Court, Rutland Unit, Family Division Cortland Corsones, J.
John J. McCullough III, Vermont Legal Aid, Inc., Montpelier, for Petitioner-Appellant.
William H. Sorrell, Attorney General, and Philip Back, Assistant Attorney General, Montpelier, For Respondent-Appellee.
PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
¶ 1. Respondent T.S.S. appeals from a decision of the Superior Court, Family Division, granting the commissioner of the Department of Mental Health’s application for a continued order of non-hospitalization (ONH) compelling T.S.S. to continue undergoing mental-health treatment. T.S.S. argues that the superior court erred in interpreting 18 V.S.A. § 7101(16) and applying it to the evidence. We agree and vacate the ONH.
¶ 2. The following facts, taken in the light most favorable to the State as the prevailing party, are drawn from the superior court’s findings and the evidence presented at the April 2014 hearing on the commissioner’s petition for continued treatment. T.S.S. is a thirty-four-year-old man who lives in Rutland. Since 2000, he has received treatment at Rutland Mental Health Services (RMHS). The commissioner presented two witnesses at the hearing: Caitlyn Frazier of the Vermont Department of Mental Health, and Evelyn Susan Gerretson, M.D., a psychiatrist and medical director at RMHS. Ms. Frazier is T.S.S.’s case manager, and since 2011 has met with him about every other week. Dr. Gerretson has known T.S.S. for more than a decade and has been his treating psychiatrist since around 2006. She sees T.S.S. about once a month.
¶ 3. Dr. Gerretson testified that T.S.S. suffers from paranoid schizophrenia, a thought disorder characterized by hallucinations, delusions, and deterioration in functioning. When his condition is left untreated, T.S.S. experiences these symptoms. Dr. Gerretson testified that T.S.S. “has demonstrated a clear pattern that for a short period of time, despite denying that he has a mental illness, he, on orders of non-hospitalization, will take medications and improve significantly. But when he is off the order of non-hospitalization, he quickly goes off medications and deteriorates.” T.S.S. is being appropriately treated under his current regimen. He has taken various antipsychotic drugs, initially orally and now by injection. The medication makes T.S.S. less irritable and more organized, although Dr. Gerretson testified to some concerns about his judgment.
¶ 4. Dr. Gerretson testified that if T.S.S. ended his course of treatment, his prognosis would be “poor”; it would be “very probable that he would revert back to the prior condition of being disorganized, paranoid, and very labial, and revert to past behavior”; and his mental condition would deteriorate within a year. Dr. Gerretson did not testify about whether or when T.S.S’s condition would deteriorate to a point where he would become a person in need of treatment-that is, a person whose “capacity to exercise self-control, judgment, or discretion in the conduct of his or her affairs and social relations is so lessened that he or she poses a danger of harm to himself, to herself, or to others.” 18 V.S.A. § 7101(17). Dr. Gerretson testified: “I cannot predict the timing because there was a four-year... [or] three-year period that he was off orders.”
¶ 5. Over the fifteen-year history testified to at the hearing, there was no evidence that T.S.S. exhibited assaultive behavior or posed a danger to others. There was evidence, however, that at times T.S.S. posed a danger to himself. In 1999, T.S.S.’s symptoms first appeared; he became “very paranoid, sometimes agitated, breaking glass” and at one point harmed himself while suffering a delusion that there was a transmitter in his arm. T.S.S. was treated at Vermont State Hospital and was released on an ONH in 2000. In 2002, the commissioner filed an application for continued treatment, which the superior court denied in August of that year. After being released from the ONH, T.S.S.-whom Dr. Gerretson described as a “talented musician”-traveled to California and worked as a drummer in a band. T.S.S. later returned to his parents’ home in Vermont.
¶ 6. After returning to Vermont, T.S.S. suffered various delusions, including that his father was the head of a large drug cartel and exerted control over the government and that his food was poisoned. He held conversations with a picture of his deceased grandfather whom he claimed was “the ruler of the world, ” suffered from fits of rage, and appeared emaciated. T.S.S.’s parents filed for an emergency evaluation, see 18 V.S.A. § 7504, and T.S.S. was hospitalized at Rutland Regional Medical Center. In November 2003, T.S.S. was released from the hospital on a stipulated ONH. It was around this time that T.S.S. first met Dr. Gerretson. In September 2004, the superior court granted the commissioner’s application for continued treatment.
¶ 7. Evidence of T.S.S.’s condition over the eight-year period from 2004 to 2012 is sparse. In 2008, RMHS decided not to seek renewal of the ONH. From late 2008 until 2012, T.S.S. was not under any compulsory treatment, and was not receiving any services. The record does not indicate why RMHS did not seek renewal of the ONH; nor does it address T.S.S.’s condition in 2008 or over the next four years. In August 2011, T.S.S. was charged with unlawful mischief greater than $250, a misdemeanor. 13 V.S.A. § 3701(b). At the hearing, Dr. Gerretson testified that she had only “limited information” on the circumstances surrounding the charge.  Following an outpatient evaluation and competency hearing, the court found on March 2012 that T.S.S. was not competent to stand trial. In August 2012, T.S.S. and the State stipulated to the issuance of an ONH in return for dismissal of the charge.
¶ 8. In June 2013, the commissioner filed an application for continued treatment. T.S.S. did not contest the application and stipulated to entry of the order. Ms. Frazier testified that at some point staff saw T.S.S. in distress, “yelling and kind of gesticulating” in the parking lot before entering the RMHS office, but that these behaviors diminished after adopting a new medication in September 2013. In February 2014, the commissioner filed an application for continued treatment for an additional year. T.S.S. opposed that application, leading to this appeal.
¶ 9. Evidence concerning T.S.S.’s current (rather than past) mental state and conduct was limited.  In 2014, at the time the hearing took place, there was no evidence that T.S.S. had any food-related issues, and Dr. Gerretson testified that he did not appear emaciated. Both witnesses testified that T.S.S. “does not appreciate being on orders, ” and that “[h]e does not believe that he has a mental illness and that he needs treatment.” T.S.S. also dislikes the side effects of some of his medications. Ms. Frazier testified that T.S.S.’s hopes to visit France once his ONH lapses do not seem realistic given his limited resources. Dr. Gerretson also testified that she and her staff saw T.S.S. bicycling in the middle of the street, although not during high-traffic periods.
¶ 10. On May 27, 2014, the superior court granted the commissioner’s application. The court concluded:
[I]t is clear to the court that if [T.S.S.’s] current treatment is terminated, eventually, [he] will become a person in need of treatment. This has been his pattern over the last ~15 years. There is a substantial probability that this will happen. It is unknown when it will happen. According to Dr. Gerretson, whom the court finds credible, [T.S.S.’s] condition will decline in 6 months to 1 year. It is unknown when it will deteriorate to the point wherein [T.S.S.] will be “a person in need of treatment.” It is the nature of his particular mental illness that such predictions are very difficult. However, he will reach that point.
... The court concurs with the State’s parsing of the phrase in 18 V.S.A. § 7101(16) “that in the near future his or her condition will deteriorate and he or she will become a person in need of treatment.”... [T]he phrase “near future” references when the condition will deteriorate and not necessarily when the patient will become a person in need of treatment. The intent of the phraseology is met if [T.S.S.’s] condition will deteriorate in the near future and this will inexorably result in him becoming a “person in need of treatment.” It is not necessary that the State prove that [T.S.S.] will become a “person in need of ...