Opinion
1019 WDA 2022 J-S41005-23
01-11-2024
IN RE: G.O. APPEAL OF: G.O.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Order Dated August 9, 2022 In the Court of Common Pleas of Allegheny County Orphans' Court at No(s): 322 of 2022
BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.[*]
MEMORANDUM
PANELLA, P.J.
G.O. appeals from the order denying his petition for review filed under 50 P.S. § 7109(b) of the Mental Health Procedures Act ("MHPA"), 50 P.S. § 7101, et seq., after he was involuntarily committed for extended treatment pursuant to 50 P.S. § 7304 ("Section 304"). G.O. argues that his commitment was based on insufficient evidence. We affirm.
On July 8, 2022, a civil commitment hearing was held pursuant to Section 303 of the MHPA. Blawnox Borough Police Officer Nicholas Hawk testified that two days earlier, he had encountered G.O. while working at the police station. See N.T., Civil Commitment Hearing, 7/8/22, at 4. Officer Hawk observed G.O. ringing the doorbell and beating on the station door repeatedly. See id.
After G.O. ran around the side of the building, Officer Hawk made contact with him. See id. at 5. Officer Hawk observed G.O. to be very rundown and tired, with "a stench coming off of him, as if he wasn't showering." Id. G.O. was nervous and scared, stating to Officer Hawk that he was in a war and had just survived an assassination attempt. See id. Officer Hawk testified that the encounter led him to believe a Section 302 petition was necessary because G.O. kept repeating that he had survived an assassination, was in a war, and "was lying on the ground playing possum." See id.
Officer Hawk brought G.O. into the station, where G.O. stated he was just at the FBI headquarters and had been driving around for the last six hours trying to find a federal building. See id. at 5-6. G.O. stated he had not eaten or slept in four days. See id. at 6. G.O. was then transported to the hospital. After asking for the time, G.O. "started laughing and crying at the same time" and stated he was in a time warp. See id.
Dr. Patricia White, M.D. testified next, as part of the team that treated G.O. at the hospital. Dr. White testified that G.O. was diagnosed with schizoaffective disorder, bipolar-type, which she classified as a severe mental illness. See id. at 7.
While speaking with G.O., Dr. White found him to be emotionally labile, hyper-verbal, and disorganized, but noted they were able to get some history from him. See id. at 8. G.O. confirmed he had not eaten in four days. G.O. could not explain why other than his claims of assassination attempts, which "didn't really make sense." See id. Dr. White noted that while G.O. believed he was in danger of assassination, it did seem that he had been in some type of physical altercation evidenced by visible bruises. See id.
G.O. indicated he was attacked by police at another hospital where he was checked after an altercation. See id. G.O. requested 2500 milligrams of Tylenol for the pain caused by the previous altercation. See id. Dr. White clarified this is almost seven times the potentially lethal dose of Tylenol, and that G.O. did not believe it would be dangerous to take that amount. See id. While he started to eat a little, G.O. had not been sleeping at the hospital, and was not compliant in taking his medications. See id. at 8-9. Dr. White was concerned that if G.O. were to be discharged, he was likely to get into additional altercations with people due to being very disorganized and labile. See id. at 9. Further, Dr. White was concerned G.O. would take the dangerous dose of Tylenol. See id. Dr. White did not believe G.O. could take care of his daily needs in the community if discharged. See id.
Following the hearing, the mental health commitment officer committed G.O. to in-patient care for up to twenty days pursuant to Section 303.
On July 26, 2022, a commitment hearing was held pursuant to Section 304, which permits involuntary treatment for persons already subject to involuntary treatment. See 50 P.S. § 7304(a)(2). Dr. White again testified to her treatment of G.O. Her diagnosis remained the same. See N.T., Commitment Hearing, 7/26/22, at 4.
Dr. White described G.O. as having a lot of agitation, and manic-type behavior which led to him getting into fights with people. See id. G.O. was on a forced medication protocol as he did not believe he had a mental illness and did not want to accept treatment. See id. G.O. was aggressive when forced to take his medication. See id. G.O. continued to discuss "grandiose" beliefs, such as believing he was going to meet with the President of the United States as soon as he left the hospital. See id. at 5.
Dr. White indicated G.O. was a little less labile than when he first came in, but that he continued to have delusions and poor insight. See id. Dr. White recommended a combination inpatient/outpatient treatment going forward, so that they could continue to titrate his medication, which had been slowed by his non-compliance, but then continue onto an outpatient commitment after he was ready for discharge. See id. at 6. Dr. White concluded that if G.O. were to be discharged, the same behaviors that led to him being admitted in the first place would continue or repeat themselves. See id. at 6-7.
G.O. testified it would be better for him to leave in-patient care because he would have his computer, telephone and TV - "all of the amenities of life that I have been used to." See id. at 11. He stated he would only seek outpatient treatment from his own psychiatrist.
At the end of the hearing, G.O.'s counsel made an oral motion for outpatient treatment, which was quickly opposed, and then denied. Following the hearing, the mental health commitment officer committed G.O. to inpatient and outpatient treatment, per Dr. White's recommendation, for up to ninety days pursuant to Section 304(b).
On August 5, 2022, G.O. filed a petition for review of the Section 304(b) certification. After a hearing, the trial court denied the petition. This timely appeal followed.
Preliminarily, we must note a discrepancy between the issues raised in G.O.'s 1925(b) concise statement and those he raises in his appellate brief. It is well-established that any issue not raised in a Rule 1925(b) concise statement will be deemed waived for appellate review. See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998).
In his 1925(b) concise statement, G.O. stated that he intended to argue only the following claim of error:
namely, the claim that the Court erred when it failed to vacate, on insufficient evidence grounds, the 90-day involuntary commitment of [G.O.] that was ordered on or about July 26, 2022 … pursuant to [Section 304]. [G.O] will assert on appeal that the testimony presented at the July 26, 2022 hearing was insufficient to establish that, within 30 days of that proceeding, [G.O.] presented a clear and present danger to others or to himself.1925(b) Concise Statement, 1/9/23, at 1.
However, in his appellate brief, G.O. attempts to raise two issues for our review, as follows:
1. Was [] G.O. erroneously ordered to remain committed for mental health treatment for the 90-day period permitted by [Section 304(b)] inasmuch as the evidence of one of two circumstances that had to be proven to permit involuntary commitment - that [G.O.] either (a) was a danger to others due to his having inflicted or attempted to inflict serious bodily harm on another, or (b) was a danger to himself given that he was unable to satisfy his needs for nourishment, personal or medical care, shelter, or safety, with their existing a reasonable probability that death, serious bodily injury, or serious physical debilitation would ensue within 30 days if he was not committed - was insufficient as a matter of law?
2. Is [G.O.] entitled to on-the-merits review of his insufficient evidence claim (notwithstanding his attorney's failure to demand, at the [Section 304] recommitment hearing in his case, that the proponents of continued commitment reestablish the basis for his initial commitment) because his attorney's failure to assert the insufficient claim constituted ineffective assistance?Appellant's Brief, at 3.
We are constrained to find the second issue is waived as it was not included in the concise statement. See Lord, 719 A.2d at 309. As G.O. had different counsel when he filed the petition for review, he could have raised this issue as early as the August 9, 2022 hearing.
In the remaining issue, G.O. claims he was improperly recommitted pursuant to Section 304 due to the insufficiency of the evidence presented. Specifically, G.O. argues the evidence was insufficient to establish that prior to his initial commitment, he had engaged in conduct establishing that he posed a danger to others or himself.
The hearing and order at issue in this appeal concerns G.O.'s additional period of treatment pursuant to Section 304. Section 304 provides for court- ordered involuntary treatment of up to ninety days. The applicable paragraph of Section 304 provides as follows:
(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 [(1)] the conduct originally required by section 301(b) in fact occurred, and that [(2)] 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.50 Pa.S. § 7304(a)(2).
In as much as G.O. is asserting the testimony presented at the July 26, 2022 hearing was insufficient to establish he had presented a clear and present danger to others or himself within thirty days of the initial commitment pursuant to Section 301 of the WHPA, G.O.'s reliance on Section 301 would be misplaced. That section applies only to the original emergency examination and commitment of a mentally disabled person. G.O. fully concedes he has waived any issue challenging the initial commitment by failing to challenge the sufficiency of the evidence either at the July 8, 2022 hearing, or in an appeal from that initial commitment. See Appellant's Brief, at 13, 26.
As the evidence from the initial hearing remained unchallenged, the original commitment order was sufficient to represent that the conduct originally required by section 301(b) in fact occurred. No similar showing of a clear and present danger within 30 days of the July 26, 2022 hearing is required under Section 304. G.O. does not challenge the second requirement of Section 304. As such we will not address it.
As G.O.'s claims are either waived or without merit, we affirm the order denying G.O.'s petition for review.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
[*] Former Justice specially assigned to the Superior Court.