Opinion
643 MDA 2023 J-S35030-23
01-09-2024
IN RE: V.D. APPEAL OF: V.D.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Order Entered March 30, 2023 In the Court of Common Pleas of Berks County Civil Division at No(s): 56-2017 MH
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and COLINS, J. [*]
MEMORANDUM
McLAUGHLIN, J.
V.D. appeals from the order finding he was severely mentally disabled and in need of continued inpatient treatment for a period not to exceed 180 days. His appellate counsel has filed a petition to withdraw as counsel and an Anders brief. We grant counsel's petition to withdraw and affirm the order.
Anders v. California, 386 U.S. 738 (1967).
V.D. is an adult who has resided in Wernersville State Hospital since June 2021. In March 2023, a mental health review officer issued a certification under 50 P.S. § 7305 finding V.D. severely mentally disabled and in need of continued treatment for a period not to exceed 180 days. That same day, V.D. petitioned for review of the certification pursuant to 50 P.S. § 7109. He requested that the petition be decided upon review of the March 29, 2023, hearing on the petition for involuntary treatment rather than formal testimony.
The trial court reviewed the audio recording of the hearing testimony. The court accurately summarized the testimony as follows:
Dr. [Arzoo] Habib testified that V.D. is diagnosed with schizoaffective disorder bipolar type and has been committed most recently since June 23, 2021. Dr. Habib's testimony further established that, in the past, V.D. has had numerous medication noncompliance issues and over the course of this most recent treatment commitment, frequently informs hospital staff that he will not take his medication if discharged. Though he has recently changed his position and agrees to remain medication compliant, Dr. Habib said he continues to show poor judgment and insight, denying his mental illness, casting doubt on the sincerity of his claim to have changed his position on taking medication. Moreover, although V.D. is receiving long-acting, injectable antipsychotics, he was receiving those at his last discharge and still became medication noncompliant by refusing further injections, ultimately resulting in his current period of commitment. Dr. Habib believes that Wernersville State Hospital or a similar facility is the least restrictive and most appropriate setting for V.D., and she and the attending psychologist are hopeful that another period of commitment will provide extended opportunity to continue working with V.D. to ensure that he will remain medication compliant following discharge to a less restrictive environment, while simultaneously working with county agencies to find a suitable placement and plan that discharge.
Dr. Habib is concerned with the lack of insight V.D. has into his mental illness and is concerned how long medication compliance will last because he has stated he will "take the medication because he has to," not because he genuinely believes he is ill and needs the medication to stay healthy. When he was discharged on long-acting injectable medications previously, V.D. refused to take the medication he was given at the facility, and subsequently was "found with rubbing alcohol and a lighter in his pants," he "started accusing staff of poisoning him," left the facility "three
times, once overnight," and generally "did poorly during his last discharge." (Recording, 04:00-4:40). Though V.D. has not had any specific incidents of assaultive or self-abusive behavior during the intervening six months since his last recommitment, Dr. Habib testified that [s]he believes that V.D.'s lack of insight into his illness mandates that any discharge environment must continue to provide structure and supervision to ensure medication compliance, as well as to continue to assist V.D. in managing his "low frustration tolerance" (Recording, 07:00-07:05). Without these safeguards, she believes it is likely he will become noncompliant with his medication and ultimately his life will be in danger within thirty days. Dr. Habib recommends a hybrid inpatient and outpatient environment as the least restrictive setting for V.D, moving forward.Trial Court Opinion, filed May 17, 2023, at 3-4.
The court granted the petition for review but affirmed the certification for extended involuntary commitment for up to 180 days. V.D. filed a notice of appeal.
Before reviewing the merits of this appeal, we must first determine whether counsel has satisfied the necessary requirements for withdrawing as counsel. See Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007) (en banc) ("When faced with a purported Anders brief, this Court may not review the merits of any possible underlying issues without first examining counsel's request to withdraw"). To withdraw pursuant to Anders, counsel must: 1) "petition the court for leave to withdraw stating that, after making a conscientious examination of the record, counsel has determined that the appeal would be frivolous;" 2) furnish a copy of the brief to the client; and 3) advise the client that he or she has the right to retain other counsel or proceed pro se. Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en banc).
Additionally, in the Anders brief, counsel seeking to withdraw must:
(1) provide a summary of the procedural history and facts, with citations to the record; (2) refer to anything in the record that counsel believes arguably supports the appeal; (3) set forth counsel's conclusion that the appeal is frivolous; and (4) state counsel's reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). If counsel meets all the above obligations, "it then becomes the responsibility of the reviewing court to make a full examination of the proceedings and make an independent judgment to decide whether the appeal is in fact wholly frivolous." Id. at 355 n.5 (citation omitted).
Here, in his Anders brief, counsel provided a summary of the procedural history and facts, with citations to the record and referred to anything in the record that could support the appeal. He also set forth his conclusion that the appeal was frivolous, stating his reasons for reaching the conclusion and citing facts and relevant law. Further, counsel filed a petition in this court for leave to withdraw, furnished a copy of the petition and brief to V.D., and advised V.D. of his right to retain other counsel or proceed pro se.
We now review the issue raised in the Anders brief:
Whether the evidence in the record is sufficient to justify the hearing court's finding that [V.D.] was a danger to himself or others, where the sole witness' conclusory testimony did
not include examples of assaultive or self-abusive behavior within the preceding six months.Anders Br. at 6.
This issue challenges the sufficiency of the evidence of the court's finding under Section 305 of the Mental Health Procedures Act ("MHPA"). The MHPA 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). It "authorizes increasingly long periods of commitment for" severely mentally disabled persons "balanced by increasing due process protections in recognition of the significant deprivations of liberty at stake." In re S.M., 176 A.3d 927, 930 (Pa.Super. 2017). 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).
Under Section 305, a court may, upon application, order an additional period of involuntary treatment of up to 180 days. To do so, the court must find, after a hearing, a need for continued involuntary treatment "as shown by conduct during the person's most recent period of court-ordered treatment":
(a) At the expiration of a period of court-ordered involuntary treatment under section 304(g) or this section, the court may order treatment for an additional period upon the application of the county administrator or the director of the facility in which the person is receiving treatment. Such
order shall be entered upon hearing on findings as required by sections 304(a) and (b), and the further finding of a need for continuing involuntary treatment as shown by conduct during the person's most recent period of court-ordered treatment. The additional period of involuntary treatment shall not exceed 180 days . . . .50 P.S. § 7305(a) (footnote omitted).
A petitioner seeking to extend treatment under the MHPA must reestablish that the original conduct constituting a clear and present danger to the person or others occurred, and that the person's condition continues to evidence a clear and present danger to the person or others:
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 the conduct originally required by section 301(b) in fact occurred, and that his condition continues to evidence a clear and present danger to himself or others, or that the conduct originally required by section 301(c) in fact occurred and that his condition continues to evidence a need for assisted outpatient treatment. In such event, it shall not be necessary to show the reoccurrence of dangerous conduct, either harmful or debilitating, within the past 30 days.Id. at § 7304(a)(2).
The court may find the person is a clear and present danger to him- or herself where the petitioner establishes that within the preceding 30 days "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 there is a "reasonable probability that death, serious bodily injury or serious physical debilitation" would ensue within 30 days without "adequate treatment[.]" Id. at § 7301(b)(2)(i). The court may extend treatment under this provision only if the person "has first been released to a less restrictive alternative," unless "such release would not be in the person's best interest." Id. at § 7305(a). The petitioner need not prove that the person committed an overt act requiring commitment within the preceding 30 days. Commonwealth v. Romett, 538 A.2d 1339, 1341-42 (Pa.Super. 1988). Rather, it is sufficient to show that "the patient's conduct demonstrated a need for continuing involuntary treatment." Id..
We review involuntary treatment orders under the MHPA to "determine whether there is evidence in the record to justify the [hearing] court's findings." S.M., 176 A.3d at 935 (citation omitted). The petitioner must establish the statutory grounds for commitment by clear and convincing evidence. Romett, 538 A.2d at 1342. Clear and convincing evidence is "testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitation, of the truth of the precise facts in issue." S.M., 176 A.3d at 937 (quoting In re S.T.S., Jr., 76 A.3d 24, 38 (Pa.Super. 2013)).
In In re S.M., this Court concluded there was insufficient evidence to support a finding that recommitment was necessary. There, the trial court based its finding that the commitment was proper in part on the patient's "20-year history of violent and aggressive behavior." Id. at 935. However, the petitioner failed to include in the record any evidence of this history. Id. We concluded that the evidence failed to meet the clear and convincing standard. Id. at 938. We noted that the physician testified about the patient's illness and stated that her unwillingness to take her medication in therapeutic doses affected her judgment. Id. at 938-39. We explained, however, that he did not testify she posed a danger to herself or others or that there was a "reasonable probability that death, serious bodily injury or serious physical debilitation would ensue within 30 days unless adequate treatment were afforded." Id. at 939 (quoting 50 P.S. § 7301(b)(2)(i)).
Here, the trial court found Dr. Habib credible, noting her testimony outlined above, and concluded it supported the need for further commitment:
The Court found the testimony of Dr. Habib credible and the evidence convincing, particularly the historical record of cessation of medication and relapse into self-injurious behavior, including V.D.'s inability, without the medication, to "satisfy his own need for nourishment, personal or medical care, shelter, self-protection and safety", in a less restrictive environment. The administration of medication by injection can add an extra layer of supervision to ensure continued compliance upon discharge to a less restrictive environment, but there is a historical record in this case of V.D.'s refusal to appear for scheduled injections that supports Dr. Habib's opinion that further treatment is necessary before attempting a step-down placement in a living environment with less supervision.Trial Ct. Op. at 4-5.
Here, unlike in S.M., the evidence of record addresses V.D.'s relevant history and that his condition continues to evidence a clear and present danger to himself or others. Dr. Habib testified that when V.D. had previously been discharged from inpatient treatment, he had ceased his medication and had been unable to safely provide for his needs and he had to be recommitted because, among other things, he had a lighter and rubbing alcohol in his pants.
The trial court found this testimony credible. In view of this finding, as well as the evidence that V.D. was resistant to continuing the medication and was delusional, the sufficiency challenge lacks a reasonable basis in fact or law. See In re R.B., No. 484 MDA 2022, 2022 WL 16754906, at *6 (Pa.Super. filed Nov. 8, 2022) (unpublished memorandum) (finding evidence sufficient to support continued commitment and distinguishing S.M. because there was testimony that without further treatment, including medication, the patient "would continue to pose a clear and present danger to himself through his lack of self-care, poor insight, and limited judgment, particularly where the stressors that caused the behavior continue to exist"). This issue is frivolous.
Further, after a full examination of the proceedings, we conclude there are no non-frivolous issues for appeal.
Order affirmed. Petition to withdraw granted.
Judgment Entered.
[*] Retired Senior Judge assigned to the Superior Court.