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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: J.J.                      IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA




APPEAL OF: J.J.

                                                   No. 327 MDA 2016


              Appeal from the Order Entered February 12, 2016
               In the Court of Common Pleas of Centre County
                      Civil Division at No(s): 2016-0566


BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                       FILED AUGUST 30, 2016

     Appellant J.J. appeals from the order of the Centre County Court of

Common Pleas ordering that he be committed to outpatient treatment

through SunPointe Health, or other designated program approved by the

treatment team and Centre County MH/ID, for a period not to exceed 90

days. We affirm.

     On February 10, 2016, a petition for involuntary mental health

treatment under Section 304 of the Mental Health Procedures Act of 1976

seeking the involuntary commitment of J.J. was filed.     On February 11,

2016, a mental health review officer conducted a commitment hearing. That

same day, the officer recommended that the court commit J.J. to involuntary

outpatient treatment for a period not to exceed 90 days. On February 12,

2016, the trial court ordered that J.J. be committed to outpatient treatment
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for a period not to exceed 90 days.              On February 16, 2016, J.J. filed a

petition for review of certification to involuntary mental health treatment.

On February 17, 2016, the trial court denied the petition. On February 24,

2016, J.J. filed a timely notice of appeal.1 Both Appellant and the trial court

complied with Pennsylvania Rule of Appellate Procedure 1925.

       Appellant raises the following issue on appeal:

          Whether the state lacked sufficient evidence to justify a
          commitment under the Mental Health Procedures Act as it
          presented no evidence of overt acts which would support a
          reasonable conclusion that death or serious physical
          debilitation or serious bodily injury were likely imminent if
          Appellant were not forced to undergo psychiatric
          treatment?

Appellant’s Brief at 4.

       “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) (quoting

Commonwealth ex rel. Gibson v. DiGiacinto, 439 A.2d 105, 107

(Pa.1981)). “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.

       The Mental Health Procedures Act provides:
____________________________________________


1
  Although Appellant’s 90-day period of involuntary commitment has ended,
Appellant’s issue is not moot because it is capable of repetition and may
evade review.        See In re Woodside, 699 A.2d 1293, 1296
(Pa.Super.1997).



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        § 7304. Court-ordered involuntary treatment not to
        exceed ninety days

        (a) Persons for Whom Application May be Made.--(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).

50 P.S. § 7304. Pursuant to the Act:

        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.

50 P.S. § 7301(a).    Pursuant to section 7301(b)(2)(i), clear and present

danger to himself can 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.

50 P.S. 7301(b)(2).

     “It is well-settled that involuntary civil commitment of mentally ill

persons constitutes deprivation of liberty and may be accomplished only in

accordance with due process protections.” In re R.D., 739 A.2d 548, 554

(Pa.Super.1999) (quoting In re Hutchinson, 454 A.2d 1008, 1010

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(Pa.1982)). “The appropriate standard of proof for certification of extended

involuntary treatment is clear and convincing evidence.”     In re Hancock,

719 A.2d 1053, 1056-57 (Pa.Super.1998). “Requiring clear and convincing

evidence that an individual represents a clear and present danger to himself

or others places the burden squarely on the facility or individual attempting

to commit the individual involuntarily.” Id.

      The trial court found the following:

         Here, the [c]ourt is satisfied that Petitioner had sufficient
         evidence to justify a commitment under the Mental Health
         Procedures Act. At the hearing, Dr. Timothy Derstine,
         Appellant’s treating psychiatrist, testified that Appellant
         suffers from schizoaffective disorder bipolar type.

         Dr. Derstine testified that Appellant currently poses a
         danger to himself because of nonadherence to his
         treatment. Without his medication, Appellant is not safe,
         and is unable to meet his basic needs without the care and
         assistance of others. Dr. Derstine explained that without
         the requested treatment, there is a reasonable probability
         that Appellant’s deterioration will lead to disability and
         debilitation within thirty days as a result of his mental
         illness.

         The Court accepts Dr. Derstine’s testimony as credible and
         persuasive.      He has been treating Appellant for
         approximately four years, and recognizes that Appellant is
         currently below his experienced psychiatric baseline. Dr.
         Derstine also recognizes a pattern of deterioration that
         involves missed appointments and medication, recurrent
         phone calls to the office, followed by hospitalization.

         Appellant’s condition has worsened in the past 30 days.
         Appellant was hospitalized, where he received an injection
         of his medication. Dr. Derstine explained that Appellant is
         in a period of vulnerability of relapse because his
         medication requires an oral and injectable component.




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         Appellant’s candid testimony supports his need for
         treatment.     Appellant was unable to answer direct
         questions, and his testimony indicates that he would not
         continue the necessary treatment. Dr. Derstine testified
         that each time there is a decomposition it is more difficult
         to return to the previous baseline, and it can take up to
         nine months to return to that baseline, if at all. Such facts
         support a reasonable conclusion that physical debilitation
         or disability were likely imminent if Appellant was not
         ordered to undergo treatment.

         For the forgoing reasons, the [c]ourt maintains that its
         Order of March 7, 2016 was properly entered and
         respectfully requests that its decision not be disturbed.

1925(a) Opinion, 3/21/2016, at 2-3.

      Further, contrary to Appellant’s argument, the petitioner did not need

to establish an overt act that occurred. Rather, when involuntary treatment

is based on section 7301(b)(2), there need not be an overt act. See In re

S.C., 421 A.2d 853, 857 (Pa.Super.1980) (“If no overt act is shown,

commitment may only be justified if:       ‘... 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 the act.’ 50 P.S. § 7301(b)(2)”); In Re S.B., 777 A.2d

454, 457-59 (Pa.Super.2000).

      The record supports the trial court’s finding that clear and convincing

evidence established that physical debilitation or disability were likely if

Appellant did not undergo treatment.

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     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/30/2016




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