J-A24002-17


                             2017 PA Super 396

IN 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 -
