In Re: S.M., Appeal of: S.M.

J-A24002-17
2017 PA Super 396IN RE: S.M. IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: S.M.
No. 906 WDA 2016
Appeal from the Order May 25, 2016
In the Court of Common Pleas of Allegheny County
Orphans' Court at No(s): 206 of 2014
BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.
OPINION BY MOULTON, J.: FILED DECEMBER 15, 2017
S.M. appeals from the May 25, 2016 order entered in the Allegheny
County Court of Common Pleas concluding that S.M. is severely mentally
disabled and directing S.M. to remain involuntarily committed to an inpatient
facility for 30 days, to be followed by 150 days of outpatient psychiatric
treatment. After a careful review of the record, we reverse. While appellee
Allegheny County (“County”) cites to a history of conduct that might support
the involuntary commitment at issue, little of that history is part of the
record before this Court. Because the record before us contains insufficient
evidence to support the commitment, we reverse.
On May 25, 2016, S.M. was involuntarily recommitted to the care of
the Western Psychiatric Institute and Clinic (“WPIC”) and Pathways Long-
Term Structured Residence (“Pathways”). This commitment was the latest
J-A24002-17
in a series of commitments that our review of the record suggests began on
September 26, 2014, when S.M. was involuntarily committed to the care of
the WPIC for 20 days under section 303 of the Mental Health Procedures Act
(“MHPA”), 50 P.S. § 7303.1 On May 19, 2016, after S.M. had been
involuntarily committed for almost 180 days under section 305 of the MHPA,
a hearing was held at Pathways to determine whether S.M.’s involuntary
commitment2 should be extended under section 305. At the end of that
hearing, the presiding Mental Health Review Officer (“MHRO”) recommended
that S.M. be committed for another 180 days. That same day, S.M. filed a
petition for review of the MHRO’s recommendation with the Court of
Common Pleas of Allegheny County.
On May 25, 2016, the trial court held a de novo hearing, after which it
ordered S.M. to receive another 180 days of involuntary treatment, with
____________________________________________
1
Both S.M. and the County state that S.M. was involuntarily
committed under section 302 of the MHPA on January 23, 2014. However,
as we later address, this section 302 commitment does not appear of record.
In fact, the only pre-September 2014 commitment order in the certified
record is a February 14, 2014 order in which the trial court ordered S.M.
involuntary committed for 90 days under section 304(b) of the MHPA. We
note our concern with the lack of information in the certified record,
especially given the substantial deprivation of liberty associated with civil
commitment orders.
2
Because the petition is not contained in the certified record, we
cannot determine who moved for S.M.’s continued involuntary commitment.
-2-
J-A24002-17
inpatient treatment not to exceed 30 days. On June 23, 2016, S.M. timely
filed a notice of appeal.
The trial court explained the basis for its decision in an opinion filed
pursuant to Pa.R.A.P. 1925(a), which provides in full:
On May 19, 2016, a hearing was held before a . . . MHRO .
. . who committed S.M. . . . pursuant to the provisions of
50 P.S. § 7305 for a period not to exceed 180 days. On
May 19, 2016, [S.M.] petitioned the Court for a review of
the MHRO’s recommendation. On May 25, 2016, a hearing
was held and the Court affirmed the MHRO’s
recommendation of the 180[-]day commitment. The Court
further ordered in-patient treatment not to exceed 30 days
effective May 25, 2016, to be follow by out-patient
treatment. On June 23, 2016, a [n]otice of [a]ppeal was
filed.
At the hearing before the Court held on May 25, 2016,
evidence was received that [S.M.] has a 20 year history of
violent and aggressive behavior. In December of 2015,
while living at a step-down mental health facility, [S.M.]
stopped taking the majority of her medications resulting in
her not sleeping for several nights in a row, not eating,
and not taking care of herself. [S.M.] was also using racial
slurs towards other residents of the facility creating an
atmosphere of hostility and concern regarding retaliation
from other residents.
[S.M.] was then readmitted into [WPIC]’s acute care
unit. On or about February 10-12, 2016, [S.M.] was
discharged with the understanding that she would need to
continue on her medications. [S.M.] did not continue with
her medication and that resulted in the instant
commitment.
The Superior 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 T.T.,
875 A.2d 1123, 1126 (Pa.Super. 2005), citing
Commonwealth ex rel. Gibson v. DiGiacinto, 439 A.2d
105, 107 (Pa. 1981).
-3-
J-A24002-17
The Court in this matter conducted a hearing, reviewed
the documents provided, listened to the recording of the
hearing before the MHRO several times, considered the
statements of [S.M.] at the review hearing, and weighed
all the arguments made. Based on the aforementioned,
the Court believes there was clear and convincing evidence
presented in this case to affirm the MHRO order. [S.M.]
has a 20 year history of violent and aggressive behavior,
and was not taking her prescribed medication. Thus, she
was, at a minimum, a danger to herself. Therefore, the
Order entered by this Court should be AFFIRMED.
Opinion, 9/12/16, at 1-2 (“1925(a) Op.”) (emphasis in original).
S.M. raises only one issue on appeal: “Was there insufficient evidence
presented at the civil commitment hearing to support the Orphan[s’] Court’s
order of commitment?”3 S.M.’s Br. at 4.
I. The Structure of 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
____________________________________________
3
Although S.M.’s 180-day involuntary commitment calculated from
May 25, 2016 presumably has ended, “the issues raised by this appeal are
not moot since they are capable of repetition and may evade review.” In re
Involuntary Commitment of Barbour, 733 A.2d 1286, 1287 n.3
(Pa.Super. 1999); see In re Woodside, 699 A.2d 1293, 1296 (Pa.Super.
1997) (noting that expired commitment order presented a “live controversy
despite the fact that appellant’s commitment has long since expired. . . .
‘because involuntary commitment affects an important liberty interest, and
because by their nature most involuntary commitment orders expire before
appellate review is possible’”) (quoting Commonwealth v. Blaker, 446
A.2d 976, 977 n.1 (Pa.Super. 1981)).
-4-
J-A24002-17
process protections in recognition of the significant deprivations of liberty at
stake. See In re A.J.N., 144 A.3d 130, 137 (Pa.Super. 2016) (highlighting
MHPA’s purpose as “an enlightened legislative endeavor to strike a balance
between the state’s valid interest in imposing and providing mental health
treatment and the individual patient’s rights”) (quoting In re Hutchinson,
454 A.2d 1008, 1010 (Pa. 1982)); In re Ryan, 784 A.2d 803, 807
(Pa.Super. 2001) (“The legislative policy reflected in the [MHPA] is to require
that strict conditions be satisfied before a court order for commitment shall
be issued. Such a policy is in accord with the recognition that commitment
entails a massive deprivation of liberty.”) (quoting Commonwealth v.
Hubert, 430 A.2d 1160, 1162 (Pa. 1981)). Accordingly, “[i]n 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.” In re S.L.W., 698 A.2d 90, 94 (Pa.Super. 1997).
Under section 301(a):
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.
-5-
J-A24002-17
50 P.S. § 7301(a). Section 301(b)(2) defines “clear and present danger” to
oneself4 as follows:
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 physical debilitation would ensue within 30
days unless adequate treatment were afforded under
this act; or
(ii) the person has attempted suicide and that there is the
reasonable probability of suicide unless adequate
treatment is afforded under this act. For the purposes
of this subsection, a clear and present danger may be
demonstrated by the proof that the person has made
threats to commit suicide and has committed acts
which are in furtherance of the threat to commit
suicide; or
(iii) the person has substantially mutilated himself or
attempted to mutilate himself substantially and that
there is the reasonable probability of mutilation unless
adequate treatment is afforded under this act. For the
purposes of this subsection, a clear and present
____________________________________________
4
Throughout the petition and review of S.M.’s May 19, 2016
commitment, the County has argued that S.M. is incapable of caring for
herself, creating a danger of death or serious harm to herself under section
301(b)(2)(i) of the MHPA. In a footnote in its brief to this Court, the County
does contend that her illness and inability to take care of herself “led her to
exhibit paranoid and delusional behaviors that have severely impacted her
quality of life and her ability to safely and civilly interact with others.” See
County’s Br. at 22 n.4. Nevertheless, the County has not argued that S.M.
is a clear and present danger to others under section 301(b)(1).
-6-
J-A24002-17
danger shall be established by proof that the person
has made threats to commit mutilation and has
committed acts which are in furtherance of the threat
to commit mutilation.
Id. § 7301(b)(2).
Section 302 provides for emergency examination of persons, which
may be undertaken at a treatment facility upon the
certification of a physician stating the need for such
examination; or upon a warrant issued by the county
administrator authorizing such examination; or without a
warrant upon application by a physician or other
authorized person who has personally observed conduct
showing the need for such examination.
Id. § 7302(a). Under section 302(b), a physician must examine the person
“within two hours of arrival . . . to determine if the person is severely
mentally disabled within the meaning of section 301 and in need of
immediate treatment.” Id. § 7302(b) (internal footnote omitted). If the
physician so finds, then “treatment shall be begun immediately.” Id. If
not, then “the person shall be discharged and returned to such place as he
may reasonably direct.” Id. Section 302 allows a person to be committed
up to 120 hours. Id. § 7302(d).
When a treatment “facility determines that the need for emergency
treatment is likely to extend beyond 120 hours,” section 303 provides that
the facility may apply to have that involuntary commitment extended up to
20 days. Id. § 7303(a), (h). The facility files an application for such
commitment with the court of common pleas, which then appoints an
attorney for the person unless it appears “that the person can afford, and
-7-
J-A24002-17
desires to have, private representation.” Id. § 7303(b). “Within 24 hours
after the application is filed, an informal hearing shall be conducted by a
judge or . . . [MHRO.]” Id. The court or MHRO must keep the record
generated by these proceedings for at least one year. Id. § 7303(c)(2).
Where the judge or MHRO “determines that extended involuntary emergency
treatment is necessary,” a “certification shall be filed with the director of the
facility and a copy served on the person, such other parties as the person
requested to be notified pursuant to section 302(c), and on counsel.” Id. §
7303(d)(1), (e).
Should an MHRO certify that an extended section 303 commitment is
appropriate, the committed person may “petition to the court of common
pleas for review of the certification.” Id. § 7303(g). The court must hold a
hearing “within 72 hours after the petition is filed unless a continuance is
requested by the person’s counsel.” Id. “The hearing shall include a review
of the certification and such evidence as the court may receive or require.”
Id. “If the court determines that further involuntary treatment is necessary
and that the procedures prescribed by the [MHPA] have been followed, it
shall deny the petition. Otherwise, the person shall be discharged.” Id.
-8-
J-A24002-17
Section 304 of the MHPA allows for court-ordered involuntary
treatment up to 90 days.5 Id. § 7304(g). Petitions for involuntary
commitment under section 304 may be made for persons already committed
under section 302 or 303, see id. § 7304(b), as well as for persons not
currently committed, see id. § 7304(c). Subsection (a) describes who may
be committed under section 304:
(1) A person who is severely mentally disabled and in
need of treatment, as defined in section 301(a),
may be made subject to court-ordered
involuntary treatment upon a determination of
clear and present danger under section 301(b)(1)
(serious bodily harm to others), or section
301(b)(2)(i) (inability to care for himself, creating
a danger of death or serious harm to himself), or
301(b)(2)(ii) (attempted suicide), or
301(b)(2)(iii) (self-mutilation).
(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 301 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.
Id. § 7304(a)(1),(2) (internal footnote omitted). For persons already
subject to treatment under sections 303, 304, or 305, the county
____________________________________________
5
Some exceptions in section 304, not germane to this appeal, allow
for involuntary treatment for a period not to exceed one year. See 50 P.S. §
7304(g)(2).
-9-
J-A24002-17
administrator or the director of the facility may petition for court-ordered
involuntary treatment. Id. § 7304(b)(1). For persons not already in
involuntary treatment, “[a]ny responsible party may file a petition in the
court of common pleas requesting court-ordered involuntary treatment for
any person . . . for whom application could be made under [section
304](a).” Id. § 7304(c)(1).
As with section 303, the subject of the petition is entitled to assistance
of counsel and a hearing on the petition. Id. § 7304(b), (c). If the person
is currently committed, the hearing shall be held within five days. Id. §
7304(b)(4). If the person is not currently committed, then the person shall
be served a copy of the petition “at least three days before the hearing.”
Id. § 7304(c)(4). Persons subject to such a hearing have the right “to the
assistance of an expert in mental health,” the right to silence, “the right to
confront and cross-examine all witnesses and to present evidence in his own
behalf,” and the right to a private hearing upon request. Id. § 7304(e)(1)-
(4). “A stenographic or other sufficient record [of the hearing] shall be
made[.]” Id. § 7304(e)(5). The court must impound the record, which may
be “obtained or examined only upon the request of the person or his counsel
or by order of the court on good cause shown.” Id. As with section 303,
“[t]he hearing shall be conducted by a judge or by a [MHRO] and may be
held at a location other than a courthouse when doing so appears to be in
the best interest of the person.” Id. § 7304(e)(6). If the judge or MHRO
finds by
- 10 -
J-A24002-17
clear and convincing evidence that the person is severely
mentally disabled and in need of treatment and subject to
subsection (a), an order shall be entered directing
treatment of the person in an approved facility as an
inpatient or an outpatient, or a combination of such
treatment as the director of the facility shall from time to
time determine.
Id. § 7304(f). Inpatient treatment may be ordered “only after full
consideration has been given to less restrictive alternatives.” Id.
As with section 303, if the determination is made by an MHRO, the
person has a right to appeal the certification to the court of common pleas.
Id. § 7109(b). This review process is identical to the section 303
certification review process. Id.
Under section 305, the trial court may extend a period of involuntary
treatment under section 304(g) or 305 for up to 180 days. Id. § 7305(a).
To commit a person under section 305, the trial court must make the
requisite findings in section 304(a) and (b), and must further find “a need
for continuing involuntary treatment as shown by conduct during the
person’s most recent period of court-ordered treatment.” Id. Persons found
dangerous to themselves under section 301(b)(2) are “subject to an
additional period of involuntary full-time inpatient treatment only if [they]
ha[ve] first been released to a less restrictive alternative.” Id. However,
that requirement does not apply where the judge or MHRO determines “that
such release would not be in the person’s best interest.” Id. As with
sections 303 and 304, if the determination is made by MHRO certification,
the person may seek review in the court of common pleas. Id. § 7109.
- 11 -
J-A24002-17
II. Civil Commitment History
The trial court in this case urges affirmance based on what it
describes, twice in a two-page opinion, as S.M.’s “20 year history of violent
and aggressive behavior.” See 1925(a) Op. at 1; id. at 2. While the court
states that “evidence was received” of that history, the record does not
support that claim. While some references to S.M.’s history were made at
both the May 19, 2016 MHRO hearing and the May 25, 2016 de novo
hearing, almost no actual evidence to that effect was introduced. Indeed,
the basis for the trial court’s assertion appears to be a statement made by
counsel for the County during oral argument at the latter hearing. See N.T.,
5/25/16, at 14 (“When she’s on medication, she’s not dangerous particularly
to herself or others. But when she goes off the medication, Your Honor, she
becomes violent. That’s the history – for about a 20-year history of
violent and aggressive behavior.”) (emphasis added).
Perhaps recognizing the problem with both the record below and the
certified record in this Court, the County attached an appendix to its brief,
which it describes as an “extensive history of [S.M.’s] involuntary
commitments.” County’s Br. at 21, Appx. A. According to the County, this
history of commitments was referenced at the MHRO hearing and before the
trial court. The County also asserts that the trial court “properly took
judicial notice of [this] history . . . , which it had access to via a secure
electronic record system maintained by Allegheny County, and it expressly
relied on said history in reaching it[s] determination.” County’s Br. at 21.
- 12 -
J-A24002-17
It is well settled that “an appellate court is limited to considering only
the materials in the certified record.” Commonwealth v. Preston, 904
A.2d 1, 6 (Pa.Super. 2006). “Additionally, ‘[i]t is black letter law in this
jurisdiction that an appellate court cannot consider anything which is not
part of the record in the case.’” Commonwealth v. McBride, 957 A.2d
752, 757 (Pa.Super. 2008) (quoting Commonwealth v. Martz, 926 A.2d
514, 524-25 (Pa.Super. 2007)). “Materials that have only been included in
briefs, but are not part of the record cannot be considered. . . . [because
they] ‘are not evidence and cannot be considered part of the record . . . on
appeal.’” Id. at 757-58 (quoting Commonwealth v. Stanton, 440 A.2d
585, 588 (Pa.Super. 1992)).
At the MHRO hearing, S.M. did make some reference to her history of
involuntary commitments. See MHRO Hr’g, 5/19/16, at 12:00-12:20.6
Further, at the de novo hearing, the County Solicitor referred to a series of
commitments, but none of those preceded 2014. See N.T., 5/25/16, at 14.
Despite these representations, the County did not enter into evidence the
history of S.M.’s involuntary commitments, either by testimony or
documentary evidence. Indeed, neither the transcript of the de novo
hearing nor the audio recording of the MHRO hearing make any reference
____________________________________________
6
The only record of this hearing is an audio recording. We therefore
cite to the testimony by timecode.
- 13 -
J-A24002-17
either to the so-called “case summary” attached to the County’s brief or to
the information contained therein.
Further, while the County argues that the trial court took judicial
notice of this evidence, the record does not support this claim. The trial
court never stated that it was taking judicial notice of S.M.’s involuntary
commitment history, but rather merely stated that “evidence was received
that [S.M.] has a 20-year history of violent and aggressive behavior.”
1925(a) Op. at 1.7 We find no testimonial or documentary evidence in the
record to support this statement. Accordingly, we will not consider either
the “case summary” attached to the County’s brief as Appendix A, as it is
extra-record “evidence,” or the assertion that S.M. has a 20-year history of
violent and aggressive behavior.
III. Sufficiency of the Evidence
____________________________________________
7
We note that S.M. disputes the County’s claim that S.M. has a 20-
year history of violent and aggressive behavior, which, by itself, raises a
concern as to whether this “history” was appropriate for judicial notice.
“[D]isputed questions of fact are not within the domain of judicial notice.”
Haber v. Monroe Cnty. Vocational-Technical School, 442 A.2d 292, 296
(Pa.Super. 1982). Additionally, where a trial court takes judicial notice sua
sponte, the court must put the parties on notice and give those parties an
opportunity to object. See Pa.R.Evid. 201(e); M.P. v. M.P., 54 A.3d 950,
955 (Pa.Super. 2012) (noting that where a trial court takes judicial notice of
a fact sua sponte, under Rule 201(e) the parties are entitled “to be heard as
to the propriety of taking judicial notice and the tenor of the matter
noticed”). However, because there is no indication in the record that the
trial court took judicial notice of S.M.’s commitment history, we need not
address whether a trial court may take judicial notice of such a history.
- 14 -
J-A24002-17
We next address S.M.’s claim that the evidence presented to the trial
court was insufficient to support her involuntary commitment. According to
S.M., the County failed to present clear and convincing evidence that S.M.
continued to pose a clear and present danger to herself, as the County did
not present evidence that S.M. “had ever attempted suicide, mutilated
herself, . . . attempted to mutilate herself,” or that she was unable to care
for herself such that she “would be at risk of death, serious bodily injury, or
physical debilitation if released.” S.M.’s Br. at 21-22 (referencing 50 P.S. §
7301(b)(2)(i)-(iii)). S.M. argues the County merely showed that her
treating physician’s major concern was her “resistance to taking her
psychiatric medications at the prescribed level,” and claims that no one
testified “that a decrease in the dosage of [S.M.]’s medication, or even the
complete cessation of it, would cause withdrawal symptoms of such
magnitude as to threaten serious bodily injury.” Id. at 22. Additionally,
S.M. asserts that the County’s evidence – that in December 2015, S.M. went
several days without eating, went several nights without sleep, and made
racial slurs to other residents – similarly fails to show by clear and
convincing evidence that S.M. posed a clear and present danger to herself.
As the trial court correctly noted, “[i]n reviewing a trial court order for
involuntary commitment, we must determine whether there is evidence in
the record to justify the court’s findings.” T.T., 875 A.2d at 1126.
“Although we must accept the trial court’s findings of fact that have support
- 15 -
J-A24002-17
in the record, we are not bound by its legal conclusions from those facts.”
Id.A. Record Evidence of S.M.’s Mental Health History
For a person to be involuntarily committed under section 305 of the
MHPA, the trial court must first make the required findings under
subsections 304(a) and (b).8 See supra, at 6-8. Under subsection
____________________________________________
8
Subsection (b), entitled “Procedures for Initiating Court-ordered
Involuntary Treatment for Persons Already Subject to Involuntary
Treatment,” provides as follows:
(1) Petition for court-ordered involuntary treatment
for persons already subject to treatment under
sections 303, 304 and 305 may be made by the
county administrator or the director of the facility
to the court of common pleas.
(2) The petition shall be in writing upon a form
adopted by the department and shall include a
statement of the facts constituting reasonable
grounds to believe that the person is severely
mentally disabled and in need of treatment. The
petition shall state the name of any examining
physician and the substance of his opinion
regarding the mental condition of the person. It
shall also state that the person has been given
the information required by subsection (b)(3).
(3) Upon the filing of the petition the county
administrator shall serve a copy on the person,
his attorney, and those designated to be kept
informed, as provided in section 302(c), including
an explanation of the nature of the proceedings,
the person’s right to an attorney and the services
of an expert in the field of mental health, as
provided by subsection (d).
(Footnote Continued Next Page)
- 16 -
J-A24002-17
304(a)(2), “it shall be sufficient to represent, and upon hearing to
reestablish, that the conduct originally required by section 301 in fact
occurred, and the [the person’s] condition continues to evidence a clear and
present danger to himself or others.” 50 P.S. § 7304(a)(2). This Court has
held that the petitioner need not relitigate the initial commitment and that
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.”
Commonwealth v. Romett, 538 A.2d 1339, 1342, 1343 (Pa.Super. 1988).
If the patient challenges that original commitment, “the burden is on the
patient to show that the original commitment was improper.” Id. at 1342.
At the commitment hearing, any evidence presented by the County
must be received in “strict compl[iance] with the rules of evidence generally
applicable to other proceedings which may result in an extended deprivation
of an individual’s liberty.”9 In re Involuntary Commitment of Barbour,
_______________________
(Footnote Continued)
(4) A hearing on the petition shall be held in all cases,
not more than five days after the filing of the
petition.
(5) Treatment shall be permitted to be maintained
pending the determination of the petition.
50 P.S. § 7304(b) (internal footnotes omitted).
9
The United States Supreme Court has emphasized that “civil
commitment for any purpose constitutes a significant deprivation of liberty
that requires due process protection.” Addington v. Texas, 441 U.S. 418,
425 (1979).
- 17 -
J-A24002-17
733 A.2d 1286, 1288 (Pa.Super. 1999). Here, the record suggests that the
County did not introduce any evidence of S.M.’s initial section 302 or 303
commitment. In fact, the County admitted that it did not have a copy of the
section 302 or 303 petition that started the current series of commitments:
[COUNTY SOLICITOR]: And I do not see in here a copy
– there was a petition. I know there was a petition, but I
don’t see a copy of it in here, the 303. I don’t see a copy
of the petition in here of the 303 which I believe was in
September of 2014.
THE COURT: Can you explain to me how [S.M.] is a
danger to herself or others?
[COUNTY SOLICITOR]: When she’s on medication, she’s
not particularly dangerous to herself or others. But when
she goes off the medication, Your Honor, she becomes
violent. That’s the history -- for about a 20-year history of
violent and aggressive behavior.
THE COURT: Okay, you didn’t say if that was in there.
That’s what I’m saying. I don’t know.
I would just like to see something that said she was
violent to herself or others.
He looked at it. It’s not in there I guess. Can you tell
me that?
[COUNTY SOLICITOR]: Your Honor, I believe it’s on the
electronic docket, the petition, the 302 or 303 petition. I
don’t have a copy of it with me now. The one that led to
this. Because the testimony here was even at the
Pathways she had to go back because she was not taking -
- she went through a period since the last hearing of not
taking medication on her own. She discontinued it on her
own. When she stopped taking the medicine, she was
lacking the ability to care for herself by not –
THE COURT: By not taking the medication.
N.T., 5/25/16, at 13-15.
- 18 -
J-A24002-17
The only reference that the trial court made to documentary evidence
was a “file” before it. Id. at 12. Assuming that the “file” referenced by the
Court is in the certified record in this matter, we have not found the section
302 or 303 petition therein.10 Rather, the record includes a series of section
304 and 305 petitions, which offer no insight into S.M.’s prior history of
commitments. Accordingly, we conclude that the trial court could not base
its decision on S.M’s alleged 20-year commitment history or the
circumstances of the initial commitment under section 302 or 303.
B. Whether the County Presented Sufficient Evidence to
Support the Section 305 Commitment
We now must determine whether the evidence in the certified record
was sufficient to support S.M.’s commitment. The burden is on the
petitioner to “prove the requisite statutory grounds by clear and convincing
evidence.” Romett, 538 A.2d at 1342. “Our Supreme Court has defined
clear and convincing evidence as ‘testimony that is so clear, direct, weighty,
and convincing as to enable the trier of fact to come to a clear conviction,
without hesitation, of the truth of the precise facts in issue.’” In re S.T.S.,
Jr., 76 A.3d 24, 38 (Pa.Super. 2013) (quoting In re R.I.S., 36 A.3d 567,
____________________________________________
10
As noted in above, the County stated at the May 25th hearing that
this information might have been in the “electronic docket,” to which the
trial court may well have had access. N.T., 5/25/16, at 14. However, there
is no indication in the certified record or in the trial court’s opinion that it
reviewed whatever section 302 or 303 petition that might have started this
series of commitments.
- 19 -
J-A24002-17
572 (Pa. 2011)). “[T]he clear and convincing evidence test ‘has been
described as an “intermediate” test, which is more exacting than a
preponderance of the evidence test, but less exacting than proof beyond a
reasonable doubt.’” Id. (quoting Commonwealth v. Meals, 912 A.2d 213,
219 (Pa. 2006)). Where a mental health review officer has made a
recommendation, the trial court is to conduct a de novo review of that
determination. Barbour, 733 A.2d at 1288.
This Court’s decision in Romett guides our review of a section 305
involuntary commitment. There, we reviewed a section 305 recommitment
that had been based on the appellant’s violent tendencies towards others.
Romett, 538 A.2d at 1340. Specifically, the appellant originally had been
committed “as a result of assaultive behavior towards family members,” and
this commitment was “extended three times before the [section 305]
hearing.” Id. At that hearing, the “appellant violently slapped a nurse
across the face.” Id. at 1341. Appellant’s treating psychiatrist testified that
“appellant had also recently shown assaultive behavior toward him.” Id.The treating psychiatrist testified that appellant had a mental illness
“manifested in delusions, poor impulse control, and beliefs that others are
‘out to get her.’” Id. Therefore, the treating psychiatrist testified that
“cessation of appellant’s treatment would reasonably result in future
assaultive behavior. . . . [and] appellant posed a danger to others rather
than to herself.” Id. Based on this evidence, the trial court ordered
- 20 -
J-A24002-17
appellant involuntarily committed for 30 days of inpatient treatment,
followed by 150 days of outpatient treatment.
We affirmed the trial court’s decision. Id. at 1343. In coming to that
conclusion, we held that:
[F]or a person to be recommitted for an additional period
of treatment, it need not be established that the person
has inflicted or attempted to inflict serious bodily harm
upon another within the past thirty days, as required for
the original commitment. The Act specifically states that
on recommitment it is not necessary to show that the
patient committed an overt act within 30 days of the
hearing. It is necessary however for the court to find that
within the patient’s most recent period of
institutionalization, the patient’s conduct demonstrated the
need for continuing involuntary treatment, . . . i.e. his
condition continues to evidence a clear and present danger
to himself or others . . . .
Id. at 1341-42 (internal citations omitted). Based on this interpretation, we
concluded that there was clear and convincing evidence that supported the
trial court’s finding that Romett posed a clear and present danger to others,
as Romett exhibited violent conduct which resulted in the initial
commitment, continued to do so during the commitment period, and had a
“diagnosis as a paranoid schizophrenic with delusions that others are
threatening her, together with [a] prognosis that her assaultive behavior
would continue without further treatment.” Id.Here, in its Pennsylvania Rule of Appellate Procedure 1925(a) opinion,
the trial court explained that involuntary commitment and treatment was
appropriate because: (1) S.M. had a “20 year history of violent and
- 21 -
J-A24002-17
aggressive behavior; (2) in December 2015, S.M. discontinued her
medications, after which S.M. did not eat for several days nor sleep for
several nights; and (3) S.M. used racial slurs towards other facility residents.
1925(a) Op. at 1-2. We have already determined that the trial court
received no proper evidence regarding either S.M.’s alleged history of
aggressive and violent behavior or the circumstances that led to her initial
commitment under section 303. Therefore, it could not use such information
to support the commitment.
Further, the evidence actually received at the de novo hearing,
including the audio recording of the MHRO hearing, failed to meet the clear
and convincing standard. At the MHRO hearing, the treating psychiatrist’s
primary complaint was that S.M. was not taking her medication in
therapeutic doses. See MHRO Hr’g, 5/19/16, at 3:00-3:15. While the
psychiatrist did testify that S.M. has a severe mental illness, specifically a
schizoaffective bipolar disorder, the only symptoms he described were that
S.M. believed (1) that her disease was better treated through homeopathic
remedies rather than allopathic medicine, and (2) various hospital and state
officials were conspiring and colluding with her mother to keep her
involuntarily committed. Id. at 5:54-7:50. While the treating psychiatrist
did testify that her illness and unwillingness to take her medication in
therapeutic doses affected her judgment, id. at 7:54-8:10, he did not testify
that S.M. posed a danger to herself or that there was “a reasonable
probability that death, serious bodily injury or serious physical debilitation
- 22 -
J-A24002-17
would ensue within 30 days unless adequate treatment were afforded.” 50
P.S. § 7301(b)(2)(i). Instead, the essence of his testimony was that S.M.
would be better off taking her medications in therapeutic doses, and that the
best way to ensure that she did so was through continued involuntary
commitment.
The live testimony presented at the de novo hearing likewise did not
meet the standard necessary for S.M.’s involuntary commitment. The
County’s only witness at the hearing was Kelly Mullen, the program director
at Pathways. While Mullen testified that when Pathways transferred S.M.
back to WPIC in December 2015, S.M. discontinued her medication and “was
not sleeping for nights . . . in a row” nor “eating for several days in a row,”
the only other physical manifestation to which Mullen testified was S.M.’s
use of “racial slurs to other residents [in] the facility which was starting to
create an atmosphere of hostility.” N.T., 5/25/16, at 4-5. Mullen also
testified that S.M. was not taking therapeutic doses of her medication
prescribed by Dr. Chengappa. Id. at 7-8. This information was insufficient
to support the trial court’s conclusion that S.M. should be involuntarily
committed under section 305 of the MHPA.
In sum, we conclude that the County did not show by clear and
convincing evidence that S.M. posed a clear and present danger to herself
within the meaning of section 304(a), 50 P.S. § 7304(a). While we
appreciate the challenges posed to the effective treatment of persons with
long histories of serious mental illness, the serious deprivations of liberty
- 23 -
J-A24002-17
authorized by the MHPA demand that such deprivations be justified through
strict compliance with statute’s substantive and procedural requirements.11
Order reversed.12
Judgment Entered.
____________________________________________
11
The County dedicates a substantial portion of its brief to arguing it
need not show that the patient engaged in “new, patently dangerous
conduct to justify an extension of the patient’s involuntary commitment.”
County’s Br. at 11. According to the County, section 305’s conduct
requirement is virtually synonymous with the requirement that the patient’s
“condition continues to evidence a clear and present danger to himself or
others” under section 304(a). Id. at 12 (quoting Romett, 538 A.2d at
1341). While we agree with the County that our courts have not fully
explicated section 305’s conduct requirement, because we conclude that the
County failed to meet its burden of proof under section 304(a), we need not
address the meaning of “conduct” under section 305.
12
We do not make this determination lightly, particular due to Dr.
Chengappa’s concerns about S.M.’s medication regimen and Mullen’s
concerns regarding S.M.’s unusual behavior. Our ruling, however, does not
preclude the County from filing a new petition for involuntary commitment,
at which time the County may present appropriate evidence supporting
involuntary commitment under the MHPA.
- 24 -
J-A24002-17
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/15/2017
- 25 -