In Re: J.N., Appeal of: J.N.

J-A14041-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: J.N.                                :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                                               :
                                               :
                                               :
    APPEAL OF: J.N.                            :   No. 28 WDA 2020

                   Appeal from the Order Entered December 4, 2019
                  in the Court of Common Pleas of Allegheny County
                          Orphans' Court at No(s): 583-2019

BEFORE: SHOGAN, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                           FILED OCTOBER 15, 2020

        J.N. appeals from the Order stating that the Mental Health Review

Officer’s (“MHRO”) Order certifying J.N.’s extended involuntary commitment,

pursuant to section 7303 of the Mental Health Procedures Act (the “Act”),1

remained the controlling legal directive over J.N. In issuing its Order, the trial

court effectively denied J.N.’s Petition to review the MHRO’s certification. We

reverse.

        On November 7, 2019, University of Pittsburgh Police Officer Michael

Talvola (“Officer Talvola”) responded to a 911 call at a dormitory complex.

Upon arriving, he encountered J.N., sitting in a hallway, with multiple open

wounds on his neck, arms, and thighs. J.N. told Officer Talvola that he wanted

to kill himself; he had cut himself with a razor blade; and several days earlier,

he had taken all of his prescription medications with the intention of killing

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1   50 P.S. §§ 7101-7503.
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himself.   J.N. was transported to UPMC – Presbyterian Hospital (“UPMC –

Presbyterian”), where he received treatment for his injuries, which included

more than 120 sutures to close his wounds.          Officer Talvola prepared

paperwork for a temporary involuntary commitment pursuant to section 7302

of the Act (“section 302”).2 Garrett Sparks, M.D., who treated J.N. at UPMC

– Presbyterian, certified the section 302 commitment paperwork.

       In the early morning hours of November 7, 2019, J.N. finished receiving

treatment at UPMC – Presbyterian for his physical injuries, and was

transported to UPMC – Western Psychiatric Hospital (“WPIC”) for further

treatment. Later that morning, J.N. was evaluated by Patrick Buckley, M.D.

(“Dr. Buckley”). After his evaluation of J.N., Dr. Buckley filed an Application

for extended involuntary treatment pursuant to section 7303 of the Act

(“section 303”).

       On November 8, 2019, J.N. appeared before a MHRO for a hearing on

the section 303 commitment certification (the “MHRO Hearing”).          Officer

Talvola, Dr. Buckley, and J.N. testified at the hearing, after which the MHRO

signed the section 303 commitment certification, finding that there was clear

and convincing evidence that J.N. met the statutory requirements for




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2 Section 302 permits confinement of a patient for involuntary emergency
examination and treatment for up to 120 hours, upon the certification of a
physician stating the need for such examination. See 50 P.S. § 7302(a), (d).


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involuntary commitment. J.N. was discharged from WPIC on November 12,

2019.

        On November 13, 2019, J.N. filed a Petition for review of the section

303 commitment certification.     The trial court conducted a hearing on the

Petition for review on November 15, 2019 (the “November Conference”). Prior

to commencing the hearing, the trial court met with both parties’ counsel. At

that time, the trial court stated that it had listened to the tape recording of

the MHRO Hearing, and suggested that counsel for both parties listen to the

tape themselves, in order to fully understand the candor and nature of the

parties’ testimony at the MHRO Hearing. After some discussion, J.N. moved

for a continuance in order to better prepare for the hearing, which the trial

court granted. No testimony or other documentary evidence was entered into

the record at the November Conference.

        On December 2, 2019, the trial court held the continued proceedings on

J.N.’s Petition (the “December Hearing”). At the December Hearing, J.N. and

counsel for the Allegheny County Office of Behavioral Health expressed to the

trial court that both parties wished to strike the section 303 commitment,

based on the fact that J.N. had been discharged, and that he was at WPIC “for

a short period of time such that he could have received the same amount of

treatment under a 302 certification.” N.T., 12/2/19, at 2. In response, the

trial court stated that there was no matter before it that it could rule on,

incorporated its discussion with counsel from the November Conference, and


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stated, “I am not ruling. It is your decision, so do what you believe is prudent.

That would be my thought.”

Id. at 4.

      On December 4, 2019, the trial court issued an Order where, in part, it

stated the following:

      At the December [Hearing], both counsel’s positions were united.
      They agreed that the [P]etition for review was withdrawn. As
      such, there was nothing before th[e trial c]ourt to rule upon. The
      [c]ourt’s de novo review is triggered only upon the [P]etition being
      before the [C]ourt. Upon withdraw[al] of the [P]etition, the
      hearing officer’s [section 303] commitment [O]rder remains the
      controlling legal directive regarding [J.N.] The [c]ourt ends with
      [the] observation that neither party – knowing their goal was to
      somehow get the [section] 303 determination vacated –
      presented any evidence whatsoever at the December [Hearing].
      Given the [c]ourt’s de novo standard of review, the [c]ourt could
      have entertained additional evidence.

Trial Court Order, 12/4/19.

      On December 12, 2019, J.N. filed a Motion for reconsideration, wherein

he requested again that the section 303 certification be stricken and vacated

or, in the alternative, that the trial court conduct a new hearing to allow for

the presentation of evidence. On December 19, 2019, the trial court issued

an Order granting a new hearing on the Petition, which was scheduled for

January 24, 2020.




                                      -4-
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       However, J.N. filed a Notice of Appeal to this Court on January 3, 2020,

and the trial court cancelled the scheduled hearing.3 The trial court did not

order a Pa.R.A.P. 1925(b) Concise Statement, and instead relied on the

rationale stated in its December 4, 2019, Order.

       J.N. raises the following issue for our review:

       I. Did the [trial] court err in failing to strike the [s]ection 303
       Commitment Order[,] as requested by the attorney for Allegheny
       County at the review hearing, for two reasons: (1) the proper
       procedures were not followed under the Act, and (2) no evidence
       that J.N. was severely mentally disabled and in need of immediate
       treatment was presented at the hearing?

Brief for Appellant at 6.4

       J.N. argues that the trial court’s denial of his section 303 Petition for

review was improper because there was insufficient evidence produced at the

review hearing to support the commitment.

Id. at 25.

J.N. alleges that the



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3 The trial court’s December 19, 2019, Order only “grant[ed J.N.’s] request to
the extent that a hearing was the relief being sought.” Trial Court Order,
12/19/19. We note that J.N.’s appeal properly lies from the trial court’s
December 4, 2019, Order, wherein it stated that the section 303 commitment
Order would “remain the controlling legal directive” regarding J.N. Trial Court
Order, 12/4/19. J.N. filed his Notice of Appeal on January 3, 2020, within 30
days of the trial court’s Order.

4 We note that the record confirms that J.N.’s involuntary commitment has
ended. Even though J.N. is no longer involuntary committed, “his appeal is
not moot because the issues are ‘capable of repetition and may evade
review.’” In re Ryan, 

784 A.2d 803

, 805 n.4 (Pa. Super. 2001). “We may
review the issues, vacate the involuntary commitment order, and expunge the
records.”

Id. (citing In re

R.D., 

739 A.2d 548

(Pa. Super. 1999)); In re J.K.,

595 A.2d 1287

, 1289 (Pa. Super. 1991) (stating that an expired commitment
order is appealable because of the important liberty issues involved).

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trial court failed to properly develop a record at either the November

Conference or the December Hearing.

Id. at 27-29.

J.N. argues that the

evidence was insufficient to support a section 303 commitment order, and as

a result, the commitment order was unlawful.

Id. at 32.

Accordingly, J.N.

asserts that the section 303 commitment certification should be vacated, and

his record expunged.

Id. at 34.

      In reviewing a trial court’s order for an 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). “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. This issue implicates

J.N.’s due process rights under the Act. “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 Hutchinson, 

454 A.2d 1008

, 1010 (Pa. 1982);

In re Hancock, 

719 A.2d 1053

, 1056-57 (Pa. Super. 1998). “Recognizing

the substantial curtailment of liberty inherent to an involuntary confinement,

our Supreme Court has cautioned that the courts must strictly interpret and

adhere to the statutory requirements for commitment.” In re 

T.T., 875 A.2d at 1124

. “When balancing the needs of the state in protecting mentally ill

persons and others in society against the liberty interests of the individual

sought to be committed, we find that due process protections demand the


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application of the clear and convincing evidence standard of proof in cases

pursuant to [section 303].” In re 

Hancock, 719 A.2d at 1058

.

       When an appellant’s due process rights under the Act are violated, “we

may vacate the certification for involuntary treatment pursuant to section

[]303, and direct that all records pertaining to this matter be expunged.” In

re 

Ryan, 784 A.2d at 808

. While a trial court’s review of a 303 commitment

does not require a full, de novo hearing, it does require some hearing. In re

T.J., 

739 A.2d 478

(Pa. 1999). Because the MHRO cannot enter a final order,

the review hearing before the trial court is akin to a de novo hearing.

Id. at 480.

       The Act provides for involuntary emergency examination and treatment

of persons who are “severely mentally disabled and in need of immediate

treatment.” 50 P.S. § 7301(a). As the Act explains, in relevant part,

       [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, as
       defined in subsection (b) ….

Id. Regarding the requirement

that the individual pose a “clear and present

danger of harm,” the Act provides, in relevant part, as follows:

       (b) Determination of Clear and Present Danger.--

          (1) Clear and present danger to others shall be shown by
          establishing that within the past 30 days the person has
          inflicted or attempted to inflict serious bodily harm on another

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           and that there is a reasonable probability that such conduct will
           be repeated. … For the purpose of this section, a clear and
           present danger of harm to others may be demonstrated by
           proof that the person has made threats of harm and has
           committed acts in furtherance of the threat to commit harm.

           (2) 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 [A]ct[.]

Id. § 7301(b). Our

review discloses that J.N. was initially admitted to UPMC –

Presbyterian under section 302 of the Act. 5 Then, upon Application of WPIC,

J.N.’s involuntary commitment was extended for a period of up to 20 days

pursuant to section 303 of the Act, which provides, in relevant part, as follows:

        § 7303. Extended involuntary emergency treatment
        certified by a judge or mental health review officer—not to
        exceed twenty days

        (a) Persons Subject to Extended Involuntary Emergency
        Treatment.—Application for extended involuntary emergency
        treatment may be made for any person who is being treated
        pursuant to section 302 whenever the facility determines that the
        need for emergency treatment is likely to extend beyond 120
        hours. The application shall be filed forthwith in the court of
        common pleas, and shall state the grounds on which extended
        emergency treatment is believed to be necessary. The application
        shall state the name of any examining physician and the

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5   J.M. does not challenge his section 302 commitment on appeal.

                                           -8-
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     substance of his opinion regarding the mental condition of the
     person.

                                     ***

     (c) Informal Conference             on    Extended       Emergency
     Treatment Application.—

           (1) At the commencement of the informal conference,
           the judge or the mental health review officer shall
           inform the person of the nature of the proceedings.
           Information relevant to whether the person is severely
           mentally disabled and in need of treatment shall be
           reviewed, including the reasons that continued
           involuntary treatment is considered necessary. Such
           explanation shall be made by a physician who
           examined the person and shall be in terms
           understandable to a layman. The judge or mental
           health review officer may review any relevant
           information even if it would be normally excluded
           under rules of evidence if he believes that such
           information is reliable.           The person or his
           representative shall have the right to ask questions of
           the physician and of any other witnesses and to
           present any relevant information. At the conclusion
           of the review, if the judge or the review officer finds
           that the person is severely mentally disabled and in
           need of continued involuntary treatment, either as an
           inpatient or through less restrictive assisted
           outpatient treatment, he shall so certify. Otherwise,
           he shall direct that the facility director or his designee
           discharge the person.

                                     ***

     (g) Petition to Common Pleas Court.—In all cases in which the
     hearing was conducted by a mental health review officer, a person
     made subject to treatment pursuant to this section shall have the
     right to petition the court of common pleas for review of the
     certification. A hearing shall be held within 72 hours after the
     petition is filed unless a continuance is requested by the person's
     counsel. The hearing shall include a review of the certification and
     such evidence as the court may receive or require. If the court
     determines that further involuntary treatment is necessary and


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      that the procedures prescribed by this act have been followed, it
      shall deny the petition. Otherwise, the person shall be discharged.

50 P.S. § 7303(a), (c)(1), (g).

      Here, we cannot conclude that an adequate “hearing” on J.N.’s Petition

for review occurred, nor can we conclude that the trial court or the parties

followed the strict protocol detailed in section 303(g). Initially, the trial court

did not accept evidence into the record, in the form of the section 303

commitment certification, as is required in section 303(g). 50 P.S. § 7303(g)

(stating that “[t]he hearing shall include a review of the certification and such

evidence as the court may receive or require.”) (emphasis added). The trial

court did not hear testimony from witnesses, doctors, or from J.N., and did

not incorporate the audiotape or transcript from the MHRO Hearing into the

trial court record at either the November Conference or the December

Hearing. At the December Hearing, the trial court incorporated the discussion

he had with both counsel at the November Conference.              N.T. (Hearing),

12/2/19, at 4. However, the November Conference only included a discussion

between the trial court and counsel regarding the audiotaped recording of the

MHRO Hearing, the trial court’s belief that the parties should listen to the tape

themselves before moving forward, and a Motion for a continuance by J.N. in

order to listen to the tape and prepare for a full hearing on the matter. See




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N.T., 11/19/19, at 3-31.6         Further, at the December Hearing, the parties

stated that they had agreed that the section 303 commitment should be

stricken, and neither party presented any evidence or testimony to the trial

court. As a result, the trial court did not have any evidence admitted into the

record, much less the commitment certification as required by section 303(g),

when it issued its December 4, 2019 Order, effectively denying J.N.’s Petition.

       Based on the foregoing, we conclude that the County failed to prove to

the trial court that J.N.’s section 303 commitment certification was supported

by clear and convincing evidence. Accordingly, the trial court’s December 4,

2019, Order which, in effect, denied J.N.’s Petition for review, must be

reversed. We further direct that the trial court vacate the November 8, 2019,

Order of the MHRO certifying J.N.’s section 303 commitment, and expunge

the record of such commitment. See In re Estate of S.G.L., 

885 A.2d 73

,

76 (Pa. Super. 2005) (reversing and directing the trial court to vacate a




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6  Our review of the transcript of both the November Conference and the
December Hearing demonstrates that the trial court extensively studied the
audiotape of the MHRO Hearing, which it described as “chilling,” and that the
contents of the tape are in “a different stratosphere” from other MHRO hearing
tapes presented in past cases. N.T., 11/19/19, at 14, 23. However, in this
unusual procedural circumstance, we are constrained to determine that the
trial court could not find that the section 303 commitment was supported by
clear and convincing evidence when, plainly, the November Conference and
the December Hearing did not include any evidence at all.




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commitment order when the procedural dictates of section 303 were not

satisfied); see also In re 

Ryan, 784 A.2d at 808

.7

       Order reversed.         Case remanded with instructions.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/2020




____________________________________________


7 Based on this disposition, we need not address J.N.’s issue of whether
sufficient evidence existed for the MHRO to certify J.N.’s section 303
commitment.

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