In Re: J.H. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: J.H. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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: No. 1105 MDA 2021
Appeal from the Decree Entered July 21, 2021
In the Court of Common Pleas of Berks County Civil Division at No(s):
129-2021 MH
BEFORE: BOWES, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY NICHOLS, J.: FILED MAY 10, 2022
Appellant J.H. appeals from the order extending his involuntary
commitment for psychiatric treatment with Appellee the Wernersville State
Hospital (WESH). Appellant challenges the sufficiency of the evidence for his
commitment pursuant to 50 P.S. § 7305. We affirm.
On September 18, 2020, Appellant was admitted to WESH. Trial Ct.
Op., 10/25/21, at 1. On June 24, 2021, WESH filed a petition to extend
Appellant’s involuntary commitment for an additional 180 days pursuant to 50
P.S. § 7305 of the Mental Health Procedures Act (MHPA), 50 P.S. §§ 7101-
7503. See id. On July 16, 2021, a mental health review officer held an audio-
recorded phone hearing to determine whether the commitment should be
extended. See id. Following the hearing, the officer recommended a
certification of involuntary inpatient treatment for up to ninety days. See id.
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Appellant filed a petition for review of the certification pursuant to 50
P.S. § 7109 in the Court of Common Pleas. However, because the audio
recording was indecipherable, the trial court scheduled a de novo hearing. On
July 21, 2021, the trial court conducted an in-person hearing. At the hearing,
the trial court heard testimony from Appellant’s physician, Dr. Aziz Gopalani,
Appellant’s social worker, Cheyenne Port, and Appellant.
Dr. Gopalani testified that he is Appellant’s treating psychiatrist, and
that Appellant has a long history of mental illness and a diagnosis of
schizoaffective disorder. See N.T. H’rg, 7/21/21 at 6. When he does not take
his medication, Appellant hears voices. Id. at 9. Dr. Gopalani also stated
that Appellant has been hospitalized several times since 2015, does not
believe he is mentally ill, and does not want to take his medication. Id. at 6.
Appellant was initially treated at Coatesville Hospital and a veterans’ hospital.
Id. at 9-10. In March 2020, Appellant was sent to Norristown State Hospital
after criminal charges were filed against him in Chester County. Id. at 6.
After being declared incompetent to stand trial, Appellant was transferred to
WESH. Id. at 7.
At WESH, Appellant was compliant with treatment and taking his
medication. WESH policy requires that if Appellant refused his medication, the
doctors would administer it intravenously. Id. at 7. However, it appears that
when Appellant is released from hospitalization, he refuses his medication and
outpatient treatment. Id. at 8-9. Dr. Gopalani testified that Appellant does
not want to share any information regarding his housing circumstances with
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the treatment team. Id. at 21-22. At the time of the hearing, Dr. Gopalani
was aware that Appellant had seventeen open criminal charges, including
burglary, terroristic threats, theft by unlawful taking, possession of an
instrument of crime, two counts of simple assault, and recklessly endangering
another person.1 Id. at 18-20. Dr. Gopalani testified that if discharged,
Appellant would be a danger to himself and others because he does not take
his medication and when he does not, he “becomes very wilder.” Id. at 20.
Cheyenne Port testified that she is a licensed social worker at WESH.
Id. at 24. She is Appellant’s admitting social worker and has cared for him
since September 2020. Id. at 24-25. She testified about Appellant’s criminal
history, including two prior convictions in July 2016 for terroristic threats, two
counts of harassment.2 Id. at 27. Appellant was convicted in June 2017 of
terroristic threats and several counts of harassment. Id.
At the time of the hearing, Appellant had seventeen open charges that
were pending at three separate dockets in the Chester County Court of
Common Pleas. Id. at 27-28. Some of the charges stemmed from a single
incident in November 2018, and included burglary, two counts each of
terroristic threats, theft by unlawful taking, simple assault, and recklessly
endangering another person. Id. at 28.
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1 See 18 Pa.C.S. §§ 3503, 2706, 3921, 907, 2701, and 2705, respectively.
2 See 18 Pa.C.S. § 2709.
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Further, Appellant has two pending November 2019 cases which include
charges of terroristic threats and several counts of harassment. Additionally,
Appellant has January 2019 charges for retaliation against a witness or victim
and intimidation of a victim,3 terroristic threats, stalking, 4 and harassment
that are currently pending before the trial court. Id. at 29-30. Id. at 28-29.
Ms. Port testified that, for Appellant’s discharge, the WESH treatment
team recommended a structured and supportive setting such as a community
residential rehabilitation program (CRR), which is a twenty-four hour, seven-
day-a-week, staffed group home. Id. at 31. The hospital is currently
Appellant’s representative payee and Appellant has expressed suspicion and
paranoia about going to that facility. Id. at 31-32.
Appellant testified that he is compliant with treatment and takes his
medication. Id. at 35. However, he does not trust the hospital with his
money. Id. Appellant averred that he was not a threat to himself or anyone
else at the hospital and had not gotten into any fights there. Id. at 36.
Appellant did not believe it was necessary for him to take eleven pills a day.
Id. at 40.
At the conclusion of the hearing, the trial court entered an order
affirming the certification of involuntary inpatient treatment for up to ninety
days. Trial Ct. Op. at 1. Appellant timely appealed and filed a court-ordered
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3 See 18 Pa.C.S. § 4952.
4 See 18 Pa.C.S. § 2709.1.
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Pa.R.A.P. 1925(b) statement, which he subsequently amended on November
10, 2021. The trial court filed a Rule 1925(a) opinion addressing Appellant’s
claims.
On appeal, Appellant raises the following issue for our review:
1. Whether sufficient evidence was presented to support the
involuntary commitment of [Appellant] where [Appellant’s]
treating psychiatrist[’s] primary concern was [Appellant’s]
compliance with medication and the clear and present danger
noncompliance would pose to [Appellant’s] self or others was
not sufficiently established and no nexus was established
between [Appellant’s] mental illness diagnosis and his pending
criminal charges?
Appellant’s Brief at 4 (formatting altered).5
This Court reviews determinations pursuant to the MHPA to “determine
whether there is evidence in the record to justify the [hearing] court’s
findings.” In re S.M., 176 A.3d 927, 935 (Pa. Super. 2017) (citation omitted).
This Court is “not bound by the hearing court’s legal conclusions and must
reverse if the evidence does not justify the hearing court’s decision.” Com.
ex rel. Gibson v. DiGiacinto, 439 A.2d 105, 107 (Pa. 1981).
We briefly summarize the MHPA:
The MHPA provides for involuntary emergency examination and
treatment of persons who are “severally mentally disabled and in
need of immediate treatment.” 50 P.S. § 7301(a). It then
authorizes increasingly long periods of commitment for such
persons, balanced by increasing due process protections in
recognition of the significant deprivations of liberty at stake.
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5 In Appellant’s Rule 1925(b) statement of errors complained of on appeal, he
raised three issues. On appeal, Appellant has chosen to argue only the single
issue presented. See Appellant’s Brief at 4.
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Accordingly, in applying the MHPA, we must take a balanced
approach and remain mindful of the patient’s due process and
liberty interests, while at the same time permitting the mental
health system to provide proper treatment to those involuntarily
committed to its care.
S.M., 176 A.3d at 930-31 (some citations omitted and formatting altered).
Section 7301(a) describes the circumstances under which a mentally
disabled person may be subject to involuntary treatment:
Whenever a person is severely mentally disabled and in need of
immediate treatment, he may be made subject to involuntary
emergency examination and treatment. A person is severely
mentally disabled when, as a result of mental illness, his capacity
to exercise self-control, judgment and discretion in the conduct of
his affairs and social relations or to care for his own personal needs
is so lessened that he poses a clear and present danger of harm
to others or to himself, as defined in [50 P.S. § 7301(b)].
50 P.S. § 7301(a).
Section 7301(b)(1) defines clear and present danger of harm to others,
and Section 7301(b)(2) defines clear and present danger of harm to himself,
in relevant part, as follows:
(1) . . . . For the purpose of this section, a clear and present
danger of harm to others may be demonstrated by proof that the
person has made threats of harm and has committed acts in
furtherance of the threat to commit harm.
(2) Clear and present danger to himself shall be shown by
establishing that within the past 30 days:
(i) the person has acted in such manner as to evidence that
he would be unable, without care, supervision and the
continued assistance of others, to satisfy his need for
nourishment, personal or medical care, shelter, or self-
protection and safety, and that there is a reasonable
probability that death, serious bodily injury or serious
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physical debilitation would ensue within 30 days unless
adequate treatment were afforded under this act; . . . .
50 P.S. § 7301(b)(1), (2)(i).
Section 7304 permits court-ordered involuntary treatment for up to
ninety days. 50 P.S. § 7304(g). Section 7304(a)(2) states the criteria for
involuntary treatment of a person that is already subject to involuntary
treatment:
(2) Where a petition is filed for a person already subject to
involuntary treatment, it shall be sufficient to represent, and upon
hearing to reestablish, that the conduct originally required by
section [7301(b)] in fact occurred, and that his condition
continues to evidence a clear and present danger to himself or
others . . . . In such event, it shall not be necessary to show the
reoccurrence of dangerous conduct, either harmful or debilitating,
within the past 30 days.
50 P.S. § 7304(a)(2). The S.M. Court clarified Section 7304(a)(2) as follows:
[T]he petitioner need not relitigate the initial commitment and . .
. . the trial court may consider a patient’s original commitment as
contained in that patient’s commitment history as long as the
patient’s commitment history shows that the requisite behavior
occurred in the past. If the patient challenges that original
commitment, the burden is on the patient to show that the original
commitment was improper.
S.M., 176 A.3d at 936 (citations omitted and formatting altered).
In sum, a Section 7304(a)(2) petitioner must prove two factors. First,
the petitioner, at a hearing, must “reestablish” the patient’s prior conduct,
which qualified as a clear and present danger to himself, to others, or both,
“in fact occurred.” See 50 P.S. §§ 7301(b)(1)-(2), 7304(a)(2). Second, the
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petitioner must establish the patient’s condition continues to evidence a clear
and present danger to himself or others. 50 P.S. § 7304(a)(2).
Appellant argues that noncompliance with his medication, without more,
is insufficient to prove that he is a clear and present danger to himself or
others. See Appellant’s Brief at 11. Appellant notes that although there were
references to his criminal charges at the hearing, the record contains no
factual basis for the charges or the manner in which they relate to his
medication. Id. at 15. He contends that if the “clear and present danger”
standard was to be applied this broadly, any person charged with a crime
could find themselves deprived of their liberty when they express reluctance
to take prescribed psychiatric medication. Id. at 18.
In support of his argument, Appellant cites Gibson, a case in which the
appellant was institutionalized following his behavior in a group home, which
included being caught extinguishing a burning newspaper in his room,
possessing a piece of twisted coat hanger, and missing doses of Thorazine.
See Gibson, 439 A.2d at 105-06. On appeal, our Supreme Court reversed
the appellant’s conviction because the newspaper and coat hanger incidents
were not proof of an attempt to harm himself or others, and because there
was no evidence “to show that [the appellant’s] behavior changed as a result
of missed doses of [Thorazine].” Id. at 107.
Additionally, Appellant cites S.M., a case in which this Court reversed
the 30-day involuntary commitment of an appellant who had been diagnosed
with schizoaffective bipolar disorder but did not wish to take her medication.
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S.M., 176 A.3d at 929, 938. At the commitment hearing, the appellant’s
psychiatrist testified that the appellant was not sleeping or eating properly
and had used racial slurs around other residents of the facility. Id. at 939.
The psychiatrist did not testify as to the reasonable probability of death or
serious bodily injury or serious physical debilitation that could occur as a result
of the appellant’s noncompliance. Id. at 938-39.
Neither of these cases are applicable to the instant matter. Unlike the
appellant in Gibson, Appellant has an established history of violent behavior
resulting in criminal charges and direct testimony was presented that this is a
result of Appellant’s failure to take his medication. Cf. Gibson, 439 A.2d at
107; see also N.T. at 18-20, 27-30. Unlike the appellant in S.M., Appellant’s
criminal convictions and open charges included a litany of offenses such as
terroristic threats, harassment subjecting another to physical contact,
burglary, theft, simple assault, recklessly endangering another person,
harassment, stalking, and retaliation against a witness which establish that,
without his medication, Appellant is a clear and present danger to himself or
others. Cf. S.M., 176 A.3d at 939; see also N.T. at 27-30.
With respect to the nexus between Appellant’s criminal charges and his
refusal to take his medication, the trial court explained:
Contrary to counsel’s assertion, this [c]ourt made substantial
inquiry during the hearing relevant to this precise issue. Dr.
Gopalani as well as the social worker, Cheyenne Port, detailed the
nature of the seventeen open charges pending against Appellant
ranging from assault to possessing an instrument of crime with
intent. It is this [c]ourt’s understanding from the testimony of Dr.
Gopalani that Appellant presents a very real risk of harm to
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himself and to others based on his prior history and perhaps even
more importantly, his multiple indications and expressions that he
will not take his medications currently or in the future without
some level of enforcement or supervision.
Appellant’s history of refusing medication as well as his present
indications to refuse medication in the future coupled with his
record of pending charges concerns this [c]ourt. The credible
testimony and evidence presented at the hearing leads this [c]ourt
to the conclusion that there is a nexus between Appellant’s
noncompliance with his medication and a clear and present danger
to his own health, safety and welfare, as well as that of others. It
was additionally established that the hospital is using diligent
efforts to develop a release plan that would initially provide some
supervision to ensure that Appellant takes his prescribed
medications.
Trial Ct. Op. at 5-6 (some formatting altered).
Based on our review of the record, we agree with the trial court’s
conclusions. As noted by the trial court, Dr. Gopalani and Appellant testified
that Appellant does not wish to continue taking his medication and does not
feel that his medication is necessary. See N.T. at 8-9, 20, 40. Dr. Gopalani
testified that while Appellant is not violent or aggressive when medicated at
the hospital, when Appellant does not take his medication, he becomes
unpredictable and wild. Id. at 7-9, 20. Ms. Port testified extensively
regarding Appellant’s criminal history, including his convictions and open
charges. Id. at 27-28. Therefore, we agree with the trial court that there is
a factual nexus between Appellant’s failure to take his medication and his
criminal charges. Trial Ct. Op. at 5-6.
On this record, we agree with the trial court that there is sufficient
evidence in the record to justify its findings that Appellant presents a clear
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and present danger to himself or others. See S.M., 176 A.3d at 935; 50 P.S.
§§ 7301(b)(1)-(2), 7304(a)(2). Therefore, we affirm the order extending
Appellant’s commitment.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/10/2022
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