J-S69032-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: VALERIE F. SWARTZ                              IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA




APPEAL OF: VALERIE F. SWARTZ

                                                          No. 1091 MDA 2015


                  Appeal from the Order Entered May 26, 2015
               in the Court of Common Pleas of Columbia County
                  Orphans’ Court at No.: 2012-OC-0000131-OA


BEFORE: STABILE, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                             FILED SEPTEMBER 28, 2016

        Appellant, Valerie F. Swartz, appeals from the trial court order

committing her to involuntary outpatient treatment for an additional ninety-

day period pursuant to Section 305 of the Mental Health Procedures Act

(MHPA), 50 P.S. § 7305 (“Additional periods of court-ordered involuntary

treatment”). We affirm.

        We   take   the   following    facts   and   procedural   history   from   the

supplemental report of the mental health review officer (MHRO) and our

independent review of the certified record. Prior to the order at issue in this

case, four involuntary commitment orders had been filed against Appellant,

resulting in two years of involuntary inpatient treatment at Warren State
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*
    Retired Senior Judge assigned to the Superior Court.
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Hospital (WSH).1 On May 5, 2015, WSH filed a fifth petition for involuntary

commitment pursuant to Section 305 of the MHPA.

               At the [May 19, 2015] hearing on the [WSH’s] § 305
        [p]etition, [Appellant’s] treating psychiatrist for the past year,
        Promila Sood, M.D., testified that [Appellant] did not do well
        after admission (in May 2013), however, since January of this
        year she had made significant improvement to the point where
        [she] was identified as ready for discharge. (See N.T. Mental
        Health Hearing, 5/19/15, at 2-3).        Dr. Sood indicated that
        [Appellant] initially was planning return to her own home county,
        but changed her plan and was looking for a placement in Warren
        County.     (See id. at 3).      Dr. Sood further testified that
        [Appellant] was suffering from a mental illness with a diagnosis
        of major depression, recurrent, in remission, and was prescribed
        certain psychotropic medications for treatment of her psychiatric
        condition.    (See id. at 3-4).      In her testimony, Dr. Sood
        recommended a further period of involuntary inpatient treatment
        of up to ninety days, but stated that as soon as [Appellant] had
        arrangements set up for her housing, medications and outpatient
        treatment providers, she would be discharged from [WSH].
        (See id. at 3). Dr. Sood felt that if [Appellant] were to be
        discharged from [WSH] without a place to live and medications,
        harm would come to her within thirty days as a result of her
        mental condition. (See id. at 11-12). Dr. Sood also testified

____________________________________________


1
    The MHRO also observed that:

        [T]he behaviors of [Appellant] over the past twelve years, which
        resulted in her numerous involuntary commitments, consisted of
        multiple suicide attempts by means of hanging, overdosing[,]
        and swallowing foreign objects; self[-]abuse; and refusing to eat
        or drink. The record[] . . . indicate[s] diagnoses consisting of
        major depression, recurrent; major depression, recurrent, with
        psychotic features; schizoaffective disorder, depressed; post[-
        ]traumatic stress disorder; and anorexia nervosa. [Appellant]
        also has a diagnosis of borderline personality disorder.

(MHRO Supplemental Report, 8/21/15, at 4-6) (footnotes and record citation
omitted).



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     that WSH was the least restrictive treatment setting appropriate
     for [Appellant]. (See id. at 4).

            [Appellant] testified that[,] while she was agreeable to
     staying in the hospital until such time as she found a place to
     live after her discharge from the hospital, she requested that it
     be a “voluntary commitment” rather than an involuntary
     commitment. (Id. at 10). [She] contended that she did not
     meet the criteria under the MHPA for an involuntary
     commitment, and accordingly, [she] argued that she should be
     permitted to remain in the hospital on a “voluntary
     commitment.” (Id). However, there is no provision in the MHPA
     for a “voluntary commitment.[a]” [See 50 P.S. §§ 7301-7306.]
             [a]
                The MHPA has no provision authorizing a court to
             make a “voluntary commitment.” However, § 201 of
             the MHPA (50 P.S. § 7201) does provide for what is
             typically called a “voluntary admission.” In an effort
             to try to accommodate [Appellant] in her request for
             a “voluntary commitment,” this MHRO in various
             exchanges during the hearing with [Appellant] and
             Dr. Sood incorrectly referred to a “voluntary
             commitment” when it should have been described as
             a “voluntary admission.”

            An involuntary commitment may be converted to a
     voluntary admission at any time during a period of involuntary
     hospitalization; provided, however, that the treating hospital is
     willing to accept the patient as a voluntary admission. [See 50
     P.S. § 7201.] In fact, in the instant case, [Appellant] testified
     that she requested WSH to accept her as a voluntary admission,
     however, Dr. Sood refused because of [Appellant’s] history and
     knowing [her]. . . . (See N.T. Mental Health Hearing, at 10-11).

(Supplemental Report, at 2-3) (most footnotes omitted) (record citations

provided).

     At the conclusion of the hearing, the MHRO recommended that

Appellant receive further inpatient treatment.      (See N.T. Mental Health

Hearing, at 13-14).     On May 20, 2015, Appellant appealed the MHRO’s


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recommendation to the trial court.             On May 26, 2015, after reviewing the

audio tapes of the hearing, the trial court determined that Appellant required

further inpatient treatment at WSH for a period not to exceed ninety days.

On June 23, 2015, the day Appellant was discharged, 2 (see Supplemental

Report, at 9), she filed a timely notice of appeal.3 On August 21, 2015, the

MHRO filed a supplemental report.

        Appellant presents one question for our review:          “Whether the trial

court lacked clear and convincing evidence from which it could conclude that

[Appellant] suffered from a mental illness and presented a danger to herself

or others so as to compel her involuntary treatment under the [MHPA]?”

(Appellant’s Brief, at 4) (unnecessary capitalization omitted).4 Specifically,

she maintains, “[o]nly persons who are proved by clear and convincing

evidence to be a danger to themselves and or others such that there is a

reasonable probability of imminent death or serious bodily injury may be
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2
   “[A]lthough the commitment period[] authorized by the section 305
hearing[] in question ha[s] . . . expired, a live controversy still exists since
involuntary commitment orders involve important liberty interests over
which it behooves us to maintain appellate vigilance.” In re S.O., 492 A.2d
727, 733 (Pa. Super. 1985) (citations and footnote omitted).
3
 On July 7, 2015, Appellant filed a timely statement of errors complained of
on appeal pursuant to the trial court’s order. See Pa.R.A.P. 1925(b). On
August 21, 2015, the trial court filed a Rule 1925(a) opinion in which it relied
on the reasons stated in its May 19, 2015 order for involuntary treatment,
and the August 21, 2015 supplemental report of the MHRO. See Pa.R.A.P.
1925(a).
4
    Appellee, WSH, did not file a brief in this matter.



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subject to involuntary psychiatric treatment.” (Id. at 7). Hence, Appellant

argues that the court abused its discretion in affirming the recommendation

of the MHRO and ordering involuntary treatment. (See id.). We disagree.

      “In reviewing a trial court order for involuntary commitment, we must

determine whether there is evidence in the record to justify the court’s

findings.”   In re T.T., 875 A.2d 1123, 1126 (Pa. Super. 2005), appeal

denied, 882 A.2d 1006 (Pa. 2005) (citation omitted).     “Although we must

accept the trial court’s findings of fact that have support in the record, we

are not bound by its legal conclusions from those facts.”       Id. (citation

omitted).

      Appellant was committed pursuant to 50 P.S. § 7305, which provides

that following the expiration of a period of involuntary treatment, an

additional period of treatment not exceeding 180 days may be ordered on

findings as required by sections 304(a) and (b).    See 50 P.S. § 7305(a).

Pursuant to 50 P.S. § 7304, “in order for an individual to be involuntarily

recommitted the petitioner must show by clear and convincing evidence that

the individual continues to pose a ‘clear and present danger’ of harm to

[her]self or to others.” Commonwealth v. Helms, 506 A.2d 1384, 1387

(Pa. Super. 1986) (citing 50 P.S. § 7304(a), (f)).     A clear and present

danger to oneself may be shown by establishing, among other things, that

“the person has acted in such manner as to evidence that [she] would be

unable, without care, supervision and the continued assistance of others, to


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satisfy [her] need for nourishment, personal or medical care, shelter, or self-

protection and safety[.] . . .” 50 P.S. § 7301(b)(2)(i); see also In re S.B.,

777 A.2d 454, 457-58 (Pa. Super. 2000).

      [W]here . . . there is clear and convincing evidence that an
      individual presents a clear and present danger to [herself], in
      that within the past thirty days the individual has acted in a
      manner which suggests that [she] would be unable to satisfy
      [her] need for nourishment, personal or medical care, self-
      protection and safety without the assistance of others, such that
      there is a reasonable probability that death, serious bodily
      injury, or serious physical debilitation would occur, no
      demonstration of an overt act is necessary to involuntarily
      commit the individual under Section 303 of the Act. This holding
      is the only logical result in that where an individual previously
      has been committed and under the supervision of mental health
      care providers, . . . the goal of the providers is to prevent
      additional overt acts which present a clear and present danger to
      the individual. Their success in doing so does not mandate a
      finding that the individual is in no further need of treatment.

In re S.B., supra at 459.

      Here,   the   MHRO    observed       that   Dr.   Sood,   in   making   her

recommendation for continued inpatient treatment until post-discharge

housing arrangements were made for Appellant,

      was also taking into account, just as this MHRO did, [Appellant’s]
      extensive prior history[,] consisting of multiple suicide attempts,
      self[-]abuse and [an] eating disorder[,] which resulted in
      numerous involuntary hospitalizations of [Appellant] over the
      past twelve years beginning in 2003.

            This MHRO is familiar with [Appellant,] having conducted a
      total of fourteen mental health commitment hearings for [her]
      over the past twelve (12) years, the first of which took place on
      January 10, 2003.

                                  *    *      *


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             There was sufficient testimony presented at the May 19,
      2015, § 305 hearing to establish by clear and convincing
      evidence that [Appellant] met the criteria for further involuntary
      inpatient treatment and that she would be a danger to herself if
      discharged at that time.        Dr. Sood, [Appellant’s] treating
      psychiatrist at WSH, testified that [Appellant] was suffering from
      a mental illness (major depression, recurrent, in remission); that
      WSH was the least restrictive treatment setting appropriate for
      [her], especially when she had no place to live if she were to be
      discharged; and that harm would come to her if she was
      discharged with no living arrangements in place. Furthermore,
      there was no assurance from WSH that if this MHRO discharged
      [Appellant] from the hospital, then WSH would be willing to
      accept her as an inpatient on a voluntary admission pursuant to
      § 201 of the MHPA and continue to provide inpatient treatment
      until [Appellant] completed preparation of her discharge plans
      (i.e., a place to live, medications and outpatient treatment
      providers). . . .

                                   *    *     *

      . . . This MHRO chose not to take . . . a risk with [Appellant] by
      releasing her from the hospital with no discharge plan, and
      particularly, no place to live, and accordingly, recommended the
      up to ninety[-]day period of further involuntary inpatient
      treatment at WSH to allow [Appellant] the time and opportunity
      to develop and implement a proper discharge plan. . . .

(Supplemental Report, at 4, 7-9) (footnote omitted).

      Based on the foregoing, and our independent review of the record, we

conclude that they support the court’s order that Appellant undergo

continued involuntary treatment for a period not to exceed ninety days. See

In re T.T., supra at 1126. The evidence established that, without a proper

place to live after her discharge, Appellant would be a clear and present

danger to herself, and that, therefore, involuntary treatment for a period of

up   to   ninety   days   to   allow   for   the   provision   of   post-discharge



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accommodations was required. See In re S.B., supra at 459. Appellant’s

issue does not merit relief.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/28/2016




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