         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


In Re: Russel Jennings a/k/a        :
“Joey” Jennings, an incapacitated   :
person                              :
                                    :
Appeal of: Department of Human      : No. 1136 C.D. 2015
Services                            :

In Re: Russel Jennings a/k/a       :
“Joey” Jennings, an incapacitated  :
person                             :
                                   :
Appeal of: Pennsylvania Department : No. 1254 C.D. 2015
of Human Services                  :

In Re: Russel Jennings a/k/a       :
“Joey” Jennings, an incapacitated  :
person                             :
                                   :
Appeal of: Pennsylvania Department : No. 1255 C.D. 2015
of Human Services                  : Submitted: February 12, 2016


BEFORE:     HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                     FILED: March 8, 2016


            The Pennsylvania Department of Human Services (Department)
appeals from orders of the Orphans’ Court Division of the Tioga County Court of
Common Pleas (trial court) denying, inter alia, the Department’s petition to
intervene filed after the trial court issued an order committing Russel “Joey”
Jennings (Jennings) on the basis that the petition was unduly delayed.1 For the
reasons that follow, we affirm.


                                                 I.
                 Jennings is a 23-year old adult with intellectual disabilities which
manifested before his 18th birthday and may continue for an indefinite period of
time. Over the years, he has received inpatient and pharmacological psychiatric
treatment for his disabilities and has been housed in various community group
home facilities.2 Since entering the community group home setting, Jennings has
been admitted to five different psychiatric hospitals for crisis management and has
been put on at least 17 different psychotropic medications and combinations
thereof.


                 From about February 2014, Jennings has resided at Bancroft Walker
Community Group Home (Bancroft), a one-person group home with two staff
members supporting him 24 hours per day.                   At Bancroft, Jennings’ living
arrangements have been individualized to meet his behavioral needs. He has not
taken any psychotropic medication since May 2014, has not been admitted into


       1
           Appellees were precluded from filing a brief.

       2
         Jennings lived in a campus residential environment before “aging out” of the system.
He subsequently entered the community group home setting. Over the course of a two-year
period, Jennings was discharged from three community group homes because the group homes
could not safely manage his behavior.




                                                 2
inpatient psychiatric care since July 2014, and has not been physically restrained
since August 2014.


              Jennings’ parents, Richard and Susan Jennings (collectively,
Jennings’ parents), who are also his legal guardians, have been dissatisfied with his
care at Bancroft. As a result, in February 2015, Jennings’ parents filed a petition
for court commitment pursuant to Section 406 of the Mental Health and Mental
Retardation Act of 1966, 50 P.S. §4406,3 to commit Jennings to either Woods

       3
          Mental Health and Mental Retardation Act of 1966, Act of October 20, 1966, Special
Sess., P.L. 96, as amended, 50 P.S. §4406. 50 P.S. §4406 provides:

              (a) Whenever a person is believed to be mentally disabled, and in
              need of care or treatment by reason of such mental disability, and
              examination of such person has been made by a physician or
              physicians, or for any reason the examination of such person
              cannot be made, a petition may be presented to the court of
              common pleas of the county in which a person resides or is, for his
              immediate examination or commitment to an appropriate facility
              for examination, observation and diagnosis.

                      (1) The petition may be made by a relative, guardian,
              friend, individual standing in loco parentis or by the executive
              officer or an authorized agent of a governmental or recognized
              nonprofit health and welfare organization or agency or any
              responsible person.

                      (2) The petition shall set forth the facts upon which the
              petitioner bases his belief of mental disability and the efforts made
              to secure examination of the person by a physician.

                      (3) Said court upon consideration of such petition shall: (i)
              issue a warrant requiring that such person be brought before said
              court; (ii) fix a date for a hearing which shall be as soon as the
              warrant is executed, and (iii) notify the parties in interest.
(Footnote continued on next page…)


                                               3
Services (Woods), a campus-based setting, or White Haven ICF/ID (White Haven),
a congregate setting, alleging that these programs offer the least-restrictive
environment conducive to Jennings’ health and welfare.


            In their petition, Jennings’ parents allege that because Jennings lives
in a single-person group home, he has no social interactions except with the on-
duty staff and that he is not allowed many outings in public. They allege that he is
“very unhappy” at Bancroft, and that he told them “that the place is horrible and
that the staff is very mean to him” and that he “repeatedly begs [them] to go to a
new place.” (Reproduced Record (R.R.) at 13a.) They also allege that the police
have been called multiple times. They claim that the Bancroft staff sexually


(continued…)


                    (4) After hearing, said court may: (i) order an immediate
            examination by two physicians appointed by said court, or (ii)
            order the commitment of the person believed to be mentally
            disabled, to a facility for a period not exceeding ten days for the
            purpose of examination. If the examination can be accomplished
            by partial hospitalization said court may so direct.

            (b) If, upon examination, it is determined that such person is in
            need of care at a facility, the examining physicians or director, as
            the case may be, shall immediately report to said court which may
            order the commitment of such person for care and treatment.

            In its order of commitment, said court may permit partial
            hospitalization or outpatient care, or if at any time thereafter the
            director shall determine such partial hospitalization or outpatient
            care to be beneficial to the person so committed, the same may be
            permitted by said court upon application by the director.




                                             4
harassed Jennings’ behaviorist when she went to meet with Jennings and that
because she rejected their advances, “they retaliated by declining to cooperate with
her behavior protocol for [Jennings]. Her manager decided to pull her out of the
home due to the harassment, which has resulted in [Jennings] not receiving his
[Individual Support Plan (ISP)] service for over six months now [sic].” (Id. at 13a-
14a.) Finally, Jennings’ parents allege that Jennings qualifies for the Intermediate
Care Facilities for Individuals with Mental Retardation (ICF/MR)4 level of care,
and that “an enclosed, predictable campus environment” such as Woods, or an
Intermediate Care Facility for Individuals with Intellectual Disabilities (ICF/ID)5

       4
        Jennings’s mother, Mrs. Jennings, later testified as to how she was aware of the fact that
Jennings qualifies for Intermediate Care Facilities for Individuals with Mental Retardation
(ICF/MR), also known as Intermediate Care Facility for Individuals with Intellectual Disabilities
(ICF/ID):

               Because under Federal and State Medicaid Law he is able to
               choose whether he wants to go -- or we as guardians, on his behalf,
               are able to choose whether he can go into a Waiver or whether he
               can go into an ICF/ID.

               Now, [the Department] put him on a waiting list for a private
               ICF/ID in the state. Private ICF/ID’s [sic] are few and far between
               and they are mostly full, and a lot of them only treat the medically
               fragile people. The only ICF/ID that is available to him is the
               public ICF/ID. And they have never shown me a statute or
               regulation that designates that only a private ICF/ID may be
               chosen. He has a right to choose.

(R.R. at 27a-28a.)

       5
         ICF/MRs, now called ICF/IDs, were created by the federal government under Medicaid
to provide long-term institutional care for individuals with intellectual disabilities. Only certain
types of facilities are designated as ICF/IDs, and states that choose to provide ICF/ID care have
to meet strict certification and licensing standards that are developed by the federal government.
There are both public and private ICF/IDs; the public ones are run by the state. (R.R. at 44a.)



                                                 5
such as White Haven, would be the best fit for him as it would keep him safe but
also provide a good quality of life.


                                                  II.
                                                  A.
                 A hearing on the matter was held before the trial court on May 29,
2015. The Department was notified of the hearing approximately four months
before the hearing but failed to attend.6 Jennings was represented at the hearing by
court-appointed counsel and a guardian ad litem.7 Jennings’ counsel explained that
he was not able to communicate with Jennings to understand what he wants and
felt that he could not advocate for Jennings.8

       6
         Before the trial court judge, Tiffany Cummings, Jennings’ parents’ counsel, explained
that Jennings’ parents attempted to switch him to an Intermediate Care Facility per a
behaviorist’s recommendation; however, the Department denied the move, determining that his
current housing is adequate and that he cannot be moved if he has adequate housing. Attorney
Cummings stated that although the Department was not served with a copy of the petition
because it is not considered a party to the action, she spoke with a Department attorney, who
informed her that the Department did not intend to participate in the matter.

       7
         A guardian ad litem is a court-appointed licensed attorney or licensed mental health
professional who represents the best interests of the dependent child in court proceedings. See
42 Pa. C.S. §6311.

       8
           Daniel A. Stefanides, Jennings’ counsel, stated in pertinent part:

                 …I’ve had no shortage of people try to tell me what my [role]
                 would be in this hearing… not surprisingly their thoughts on what
                 I should – I’m supposed to do align perfectly with what they want,
                 but after thinking long and hard on the issue I was appointed to
                 represent Joey’s legal interests. He -- I’m not really able to
                 communicate with him to know what he wants in this situation, so
                 that – I’m kind of limited in, I think, what I’m allowed to do, or
(Footnote continued on next page…)


                                                   6
                 Jennings’ mother (Mrs. Jennings) testified that Jennings went from
community group home to community group home, with inpatient stays at
psychiatric hospitals. Mrs. Jennings testified to several incidents that arose from
Jennings’ violent behavior during his time at the community group homes. She
stated that his violent behavior continued at Bancroft, including multiple incidents
of property destruction. She recalled that Jennings had been neglected at Bancroft,
that she had found him unclean and after she bathed him, she could not find a
single clean towel in his house. She testified that his lack of hygiene led to a rash
on his body that was later diagnosed as contact dermatitis. She testified that he
was taken to see a pornographic movie. She stated that he was fed unhealthy
foods, such as chicken nuggets, fish sticks and pizza, which caused him to gain a
lot of weight. She concluded that before Jennings was placed at Bancroft, he was
happy, healthy and used to have friends but is now isolated and has very minimal
to no social interaction.


                 With regard to the appropriateness of White Haven, Mrs. Jennings
testified that:


                 White Haven is an ICF/ID an Intermediate Care Facility.
                 It is an enclosed campus. There’s a workshop on

(continued…)

                 supposed to do in this case. So, I don’t really have any position
                 because I can’t -- I don’t know Joey’s position, so I can’t
                 advocate[] for him, Your Honor.

(R.R. at 19a.)




                                                7
              campus. There’s a swimming pool on campus. There’s,
              there are professional people on campus, doctors and
              nurses. We’ve been there three times. They had a family
              picnic there. They had it catered. They had a band.
              Staff members got on the stage with the band and sang
              and danced. Everyone was having a wonderful time. We
              were deeply impressed.

              We talked to other parents and they were exceedingly
              happy with the care their children were getting. One of
              the residents bicycled by us, stopped, sat at our table and
              talked, and conversed with us for quite a long time. They
              showed us the facility. They had Plexiglas on the
              windows, strong thick walls. It just looked, it just looked
              ideal. And it’s only two and a half hours away from us.9


(Id. at 27a.) She explained that Jennings was shown both Woods and White
Haven, and that he loved Woods. She described Woods as a safe, closed campus
residence, where the residents live in cottages. It contains a workshop and a pool,
arranges social activities, and provides an interdisciplinary team of professionals
who map out behavioral therapeutic interventions for residents. She testified that
the one downside to Woods is that it is farther away than White Haven.


              Joseph Kendorski (Kendorski), a certified behavior analyst who has
worked primarily with adults with developmental disabilities, testified that he
visited Jennings three days in August 2014 and performed a behavioral assessment
on him in order to increase his positive behaviors and decrease his challenging

       9
         Mrs. Jennings later explained that Jennings’ family would be able to visit him more
often given White Haven’s close proximity.




                                             8
behaviors. He stated that based on his assessment, he recommended that Jennings
be treated by a Board Certified Behavior Analyst who is highly trained in the
principles of applied behavior analysis pursuant to the best practices for individuals
with developmental disabilities, but that Bancroft did not employ such an analyst.
He also noted that the Bancroft staff hardly interacted with Jennings, and that he
did not see any opportunity for Jennings to actively participate in conversation or
any activity with a staff member or peer. He explained that that type of proactive
engagement would be helpful in mitigating some of his bad behaviors. He further
opined that if Jennings “had an opportunity to be in a living environment, which
has access to… maybe like a club or a certain social activity where he was with
peers, who share his similar interests, that it would certainly provide a high quality
of life for [him]….” (Id. at 37a.) Lastly, Kendorski testified that Jennings’ current
environment at Bancroft was not ideal with regard to safety, and that he thought a
more congregate setting, with more clinical support and a more structured
schedule, would be better.


               Dr. Zinoviy Gutkovich (Dr. Gutkovich), a physician who is board
certified in general psychiatry and child and adolescent psychiatry, testified that in
July 2013, he conducted a psychiatric evaluation of Jennings over Skype,10 during




       10
           Dr. Gutkovich explained that the evaluation took place over Skype because Horsham
Clinic, the facility that Jennings was in at the time, did not allow him to leave the premises due
to safety concerns over his behavioral outbursts.




                                                9
which he interviewed Jennings directly.11 Dr. Gutkovich opined that Jennings is an
“agreeable person, he likes to interact with people” and that his outbursts occur
when he feels frustrated, trapped, or threatened. (Id. at 41a.) Dr. Gutkovich
opined that the best environment for Jennings would be a campus-based
environment that is a:

                …[H]ighly        structured    supportive      therapeutic
                environment with highly trained staff.         That such
                environment should provide a possibility of use of
                restraints, not as in chemical restraints, in other words
                other than medicating him during an episode of agitation
                and such environment should provide, provide [sic]
                safety crisis interventions. And what I mean by that is
                there should be sufficient amount of highly trained staff
                who can restrain, in the worst case scenario, he goes into
                severe agitation, could restrain him safely without
                injuring him [sic].

                                            ***

                …[S]o this environment that would be most appropriate
                for [Jennings] should be promoting his personal growth.
                It should promote his socialization, should promote his
                independence, should provide him with training of, of
                [sic] living skills and/or job skills.


(Id. at 41a.)




       11
           Dr. Gutkovich stated that his testimony is based on his evaluation and documents,
including inpatient discharge summaries and a functional behavioral assessment, that occurred
after his evaluation.




                                             10
               Renee Fraiser, the Director of Mental Health, Early Intervention and
Intellectual Disability Services for Service Access Management on behalf of Tioga
County, testified that she was Jennings’ first Supports Coordinator and used to visit
him once per year until he turned 21. She testified to Jennings’ various moves and
stated that he has had fewer incidents during his time at Bancroft than at any other
group home.        She testified that Bancroft has taken a lot of steps in making
Jennings’ placement work. She stated that based on her experience with ICF/IDs,
if Jennings were to be transferred to one, he would be limited in his interactions
with other individuals because the majority of individuals at those facilities are
elderly and medically fragile.           She testified that ICF/IDs and campus-based
facilities are more restrictive and regimented, which may not be the right setting
for Jennings as he would have fewer choices.


               Following the hearing,12 the trial court ordered that Jennings be
committed to White Haven, thereby mandating that the Department relocate him to
that facility.13




       12
          On June 22, 2015, the trial court also issued Findings of Fact accepting the testimony
of Jennings’ parents’ witnesses. We note that those findings were issued after the trial court
denied the Department’s petition to intervene.

       13
          The Department is obligated to operate its facilities in accordance with applicable court
orders. See Goldy v. Beal, 429 F. Supp. 640 (M.D. Pa. 1976). As such, the Department is bound
to admit persons who have been involuntarily committed. See In re Bishop, 717 A.2d 1114 (Pa.
Cmwlth. 1998).




                                               11
                                          B.
              On June 3, 2015, the Department filed a petition for intervention, a
motion for reconsideration, or, in the alternative, for post-trial relief, and a motion
for stay or supersedeas. The trial court held a hearing and allowed the Department
to present evidence.


              Holly Lynott (Lynott), the Facility Director at White Haven, testified
that, inter alia, a court order is required for an individual to be admitted to White
Haven because state centers have been closed for admission for a long time. She
explained that pursuant to the Americans with Disabilities Act, 42 U.S.C. §12132,
and Olmstead v. L.C., 527 U.S. 581 (1999), the Department has the responsibility
to ensure that individuals are being served in the least restrictive setting as
possible, and that White Haven is the most restrictive setting because it is not
integrated as everyone residing at the facility is a person with an intellectual
disability.   She testified that at White Haven, residents can work in various
settings, participate in arts and crafts, go swimming, and partake in other
recreational activities depending on the individual’s interests and skills. She also
stated that residents can participate in off-campus activities. Lynott explained that
at White Haven, diets are set by physicians but that the individual’s preferences are
respected. Lynott testified that White Haven has an aging population, with the
average age of residents being 60.


              Samuel Freedman (Freedman), Bancroft’s Senior Program Associate,
testified that he is Jennings’ program supervisor and that he provides his care and
services. He testified that he spends up to 16 hours a day with Jennings, almost


                                          12
seven days a week. He testified that at Bancroft, Jennings had “good interaction”
with his peers; that he would go visit other homes and have meals with his peers.
(R.R. at 70a.) He testified that Jennings leaves his group home to go out and
partake in activities almost daily, and that he is asked what he would like to do for
his activities. Freedman testified that Jennings’ behavior has improved during his
time at Bancroft and attributed it to his relationship with the staff.


                The trial court denied the Department’s petition to intervene, finding
that the Department had unduly delayed in filing it.14 In making its determination,
the trial court acknowledged the appropriateness of the Department’s participation
in the matter though a petition to intervene was not at issue. Rather, the trial court
reasoned that the Department had been notified about the commitment petition and
the date of the hearing more than three months prior to the hearing and yet, despite
its awareness of the commitment petition, sought intervention after the trial court
had already adjudicated the matter. The trial court also denied the Department’s
motions for reconsideration or, in the alternative, for post-trial relief and for stay or
supersedeas.15




       14
          In its order denying the Department’s petition to intervene, the trial court noted that its
intention was to have denied the petition on June 18, 2015, the same date as its orders denying
the Department’s other motions.

       15
            The Department has appealed from each of these determinations.




                                                13
                                               III.
               On appeal,16 the Department argues that the trial court abused its
discretion because the Department was not unduly delayed in filing its petition to
intervene. Specifically, the Department relies on Ackerman v. North Huntingdon
Township, 228 A.2d 667 (Pa. 1967), and argues that it reasonably relied on
Jennings’ counsel to protect the parties’ common interests, and when it learned that
its interests had not been represented, it acted quickly to intervene, filing its
petition within one week after entry of the involuntary commitment order.


               Whether intervention is permissible in an action is within the trial
court’s discretion.      Vartan v. Reed, 677 A.2d 357, 360 (Pa. Cmwlth. 1996).
Pursuant to Pennsylvania Rule of Civil Procedure No. 2327(4), a party that is not
already a party to an action shall be permitted to intervene if the determination of
the action affects a legally enforceable interest of the proposed intervenor. Rule
No. 2329(3) further provides that a petition for intervention may be denied if “the
petitioner has unduly delayed in making application for intervention….”                         Pa.
R.C.P. No. 2329(3). Whether an application for intervention is timely is a question
“singularly within the periphery of the trial judge’s discretionary domain.”
Jackson v. Hendrick, 446 A.2d 226, 228-29 (Pa. 1982). “[U]nless there is a
manifest abuse of such discretion, [the court’s] exercise will not be interfered with
on review.” Id. (quoting Darlington v. Reilly, 69 A.2d 84, 86 (Pa. 1949).)

       16
          Our scope of review of a trial court order disposing of a petition to intervene is whether
the trial court abused its discretion or committed an error of law. Acorn Development
Corporation v. Zoning Hearing Board of Upper Merion Township, 523 A.2d 436 (Pa. Cmwlth.
1987).




                                                14
              In determining whether a person should be allowed to intervene after
a case has been decided, our Supreme Court, again, in Jackson, stated that:

              [i]f petitioner knew or should have known of the possible
              remedies at a time sufficiently prior to the entry of the
              decree to have provided petitioner an opportunity to
              intervene, then petitioner must provide a valid
              explanation for his having taken no action…[until] after
              entry of the decree. Where…there is no explanation for
              such delay, the application for intervention is properly
              denied.


Id. at 229.


              The Department argues that it thought that court-appointed counsel
and a guardian ad litem would protect its interests and that its explanation is
sufficient under Ackerman to require its intervention. In that case, our Supreme
Court allowed intervention after the trial court had entered its order, holding that
the intervenors “had a right to assume that their interest would be protected by the
township in the litigation.” Ackerman, 228 A.2d at 668. However, in Jackson, our
Supreme Court differentiated between when intervention is proper due to reliance
on a litigant and when it is not:


              [In Ackerman], this Court rejected a claim that
              intervenors had been dilatory in seeking leave to
              intervene after the entry of a court decree, within the time
              allowed for the filing of exceptions. However, critical to
              the result in Ackerman was the fact that the intervenors’
              interests had been adequately represented by a party-
              defendant throughout the litigation leading to the entry of
              the decree. It was only upon the failure of the party-


                                          15
               defendant to take exceptions to the decree that the
               adequacy of representation by the party-defendant
               deteriorated. Then “it behooved the [intervenors] to act
               and they acted without delay.” … 228 A.2d at 668.
               Here, by contrast, petitioner seeks leave to intervene on
               the ground that his interest in the enforcement of the
               criminal laws was not adequately represented by the
               parties-defendant. Indeed, petitioner’s argument in
               support of his claimed right to intervene pursuant to
               Pa.R.Civ.Proc. 2327 is predicated upon his assertion that
               he is the “sole” public official in a position to vindicate
               that interest. Thus, unlike in Ackerman, where the
               intervenors acted promptly upon the deterioration of
               what had been adequate representation, petitioner took
               no action during the period when, according to his own
               argument, he was not represented at all.


446 A.2d at 229-30 (emphasis added).


               Here, the Department was notified of the hearing to commit Jennings
but chose not to appear despite claiming it has enforceable interests in the matter.17
It also knew that a possible outcome was a change in Jennings’ commitment to
another type of facility. Notwithstanding all of that, it waited until the case was
decided to file a petition to intervene, using the excuse of misplaced reliance upon

       17
           The Department lists its interests in this matter in both its petition to intervene and its
brief. Its interests include its authority to designate the types of individuals to be received at
state centers pursuant to Section 303(2) of the Public Welfare Code, Act of June 13, 1967, P.L.
31, as amended, 62 P.S. §303(2); its authority to enforce 55 Pa. Code §6250.11, which pertains
to specific conditions upon which an individual may be committed; its ability to comply with the
Americans with Disabilities Act, 42 U.S.C. §12132, as interpreted by the United States Supreme
Court in Olmstead v. L.C., 527 U.S. 581 (1999); and its obligation to admit Jennings because it is
mandated to admit involuntarily committed persons.




                                                 16
court-appointed counsel and a guardian ad litem to protect its interests. What that
excuse ignores is that Jennings’ counsel or guardian ad litem was not participating
to protect the Department’s interests but rather, Jennings’ interest, making the
Department’s reliance on those parties to protect whatever interests it may have
had unjustifiable. If the Department wanted its position to be considered, it should
have presented testimony during the first hearing rather than making excuses after
a decision was made.


              Accordingly, because the trial court did not manifestly abuse its
discretion in determining that the Department inexcusably and unduly delayed the
filing of its petition for intervention, we affirm the trial court’s decision denying
intervention in an already decided case.18



                                           ________________________________
                                           DAN PELLEGRINI, Senior Judge




       18
         Based on the disposition of the case, we decline to address the other issues raised by
the Department.



                                              17
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


In Re: Russel Jennings a/k/a         :
“Joey” Jennings, an incapacitated    :
person                               :
                                     :
Appeal of: Department of Human       : No. 1136 C.D. 2015
Services                             :

In Re: Russel Jennings a/k/a       :
“Joey” Jennings, an incapacitated  :
person                             :
                                   :
Appeal of: Pennsylvania Department : No. 1254 C.D. 2015
of Human Services                  :

In Re: Russel Jennings a/k/a       :
“Joey” Jennings, an incapacitated  :
person                             :
                                   :
Appeal of: Pennsylvania Department : No. 1255 C.D. 2015
of Human Services                  :




                                    ORDER


            AND NOW, this 8th day of March, 2016, the orders of the Orphans’
Court Division of the Tioga County Court of Common Pleas in the above-
referenced matter are affirmed.



                                     ________________________________
                                     DAN PELLEGRINI, Senior Judge
