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JERRY GREEN (01/04/80)

SUPERIOR COURT OF PENNSYLVANIA


filed: January 4, 1980.

IN THE INTEREST OF JERRY GREEN, A JUVENILE. APPEAL OF COUNTY OF ALLEGHENY

No. 697 April Term, 1977, Appeal from the Order of the Court of Common Pleas of Allegheny County, Family Division, Juvenile Section, Entered April 6, 1977, at No. 2799 of 1976.

COUNSEL

Loraine Tabakin, Assistant County Solicitor, Pittsburgh, for appellant.

Sarah C. McIntyre, Neighborhood Legal Services, Pittsburgh, for appellee.

Cercone, President Judge, and Wieand and Hoffman, JJ.

Author: Hoffman

[ 273 Pa. Super. Page 400]

Appellant, County of Allegheny (County), contends, inter alia,*fn1 that the lower court erred in (1) denying the petition for involuntary commitment of Jerry Green; and (2) purporting to commit Jerry pursuant to its authority under the Juvenile Act. We disagree and, accordingly, affirm the order of the court below.

Jerry Green's parents placed him with his maternal grandmother shortly after his birth in 1971. The child was, however, severely mentally ill, and in 1976 his grandmother placed him with Child Welfare Services of Allegheny County (CWS) because she could no longer care for him. CWS filed a petition to have the child declared deprived as defined in section 50-102(4)(i) of the Juvenile Act.*fn2 The lower court approved the petition on January 12, 1977 and granted supervision of the deprived child to CWS. The court also ordered that, pending the filing of an involuntary commitment petition, Jerry was to remain in the psychiatric unit of a private hospital where CWS had placed him on the previous day. Mental Health/Mental Retardation (MH/MR), another county agency, filed a petition for Jerry's involuntary commitment under section 304 of the Mental Health Procedures

[ 273 Pa. Super. Page 401]

Act (MHPA),*fn3 alleging that long-term inpatient treatment of the child was necessary. The lower court dismissed the petition but, pursuant to its prior "deprived" determination, ordered that Jerry remain in the psychiatric unit until there was room for him at a state mental institution. Additionally, the court ordered CWS to pay for the continued interim placement at the hospital with the right to seek reimbursement from the state. The County appealed from this order of the lower court.

A court may order involuntary commitment under the MHPA only upon clear and convincing evidence that the person is severely mentally disabled and in need of treatment. 50 P.S. § 7304(f). Severe mental disability exists where, "as a result of mental illness," the person's "capacity to exercise self-control, judgment and discretion in the conduct of his affairs . . . is so lessened that he poses a clear and present danger of harm to others or to himself." Id. § 7301(a). One manner in which clear and present danger may be established is by showing that within the past 30 days

     the person has acted in such a 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 . . . .

Id. § 7301(b)(2)(i). Finally, the Act provides that "[t]reatment on a voluntary basis shall be preferred to involuntary treatment and in every case, the least restrictions consistent with adequate treatment shall be employed." Id. § 7102.

Conflicting evidence of the extent of Jerry's mental disability was presented to the lower court. Dr. John Hitchcock, the treating psychiatrist at the hospital where Jerry had been placed when he was initially adjudged deprived, testified that Jerry probably suffered from child psychosis

[ 273 Pa. Super. Page 402]

    schizophrenic type. He described incidents in which Jerry would bang his head against a wall and would fling himself down a hall, oblivious to fixed objects in his path. The doctor also stated, however, that such violent incidents had diminished during Jerry's 90 day stay in the psychiatric ward. Finally, although Dr. Hitchcock testified that Jerry could benefit from extended inpatient treatment in a mental institution and needed a great deal of supervision, he conceded: "I don't think he is in immediate danger to himself; but he gets almost to that point in my experience." Dr. Axelson, director of the children's center at Mayview State Hospital, testified that Jerry should be placed in the state mental institution not for safety purposes, but for specialized treatment to benefit the child. The lower court concluded that the evidence adduced did not rise to the level of showing clear and present danger of death or serious injury should Jerry not be involuntarily committed. We agree.

The terms of the clear and present danger standard applicable to this case are relevant only to mentally ill adults. Of course no five-year-old child could provide the necessities of life for himself. Therefore, we must ascertain whether, without care above and beyond that normally given a child of his age, this child would be subject to the reasonable probability of death, serious bodily injury, or serious debilitation within 30 days. The County in this case did not present clear and convincing proof that without excessive care and supervision, Jerry would have been subject to the probability of death or serious injury. Even Dr. Hitchcock did not believe that Jerry was an immediate danger to himself. Moreover, many of the incidents to which Dr. Hitchcock testified occurred more than 30 days prior to the hearing and, therefore could not be considered. 50 P.S. § 7301(b)(2)(i). On this record we cannot disagree with the conclusion of the hearing judge that there was an insufficient showing of clear and present danger. In addition, the policy which favors voluntary over involuntary commitment militates against a finding of clear and present

[ 273 Pa. Super. Page 403]

    danger on such a record. The involuntary commitment petition was, therefore, properly denied.

The Juvenile Act empowers the hearing judge to provide for disposition of a deprived child "best-suited to the protection and physical, mental and moral welfare of the child." 11 P.S. § 50-321. The possible dispositions of the child enumerated in the Act include: permitting the child to remain with his parents subject to certain conditions; transferring custody to an individual; transferring custody to a private or public agency empowered by law to provide care for the child; and transferring custody to the juvenile court of another state. Id. The Act specifically provides, however, that where a deprived child is mentally ill, the court shall proceed under the provisions of the MHPA or the Mental Health and Mental Retardation Act of 1966 (MH/MR Act).*fn4 Id. § 50-326.

Section 7201 of the MHPA,*fn5 entitled "Persons who may authorize voluntary treatment," provides, in pertinent part:

A parent, guardian, or person standing in loco parentis to a child less than 14 years of age may subject such child to examination and treatment under this act, and in so doing shall be deemed to be acting for the child.

The hearing judge determined that the quoted language empowered the court to subject a deprived child to examination and treatment under the MHPA when all parties agree that such treatment is in the child's best interest. We agree. "The state, as parens patriae, had the duty to care

[ 273 Pa. Super. Page 404]

    for its more dependent citizens, especially young people who are without the requisite parental supervision." Janet D. v. Carros, 240 Pa. Super. 291, 316, 362 A.2d 1060, 1072 (1976) (citations omitted). The parens patriae doctrine had traditionally been interpreted broadly in order to give juvenile courts the needed flexibility in disposing of cases involving deprived or delinquent children. In re William L., 477 Pa. 322, 338, 383 A.2d 1228, 1236 (1978); Holmes Appeal, 379 Pa. 599, 603, 109 A.2d 523 (1954); Janet D. v. Carros, supra, 240 Pa. Super. at 316, 362 A.2d at 1072.*fn6 We conclude that, pursuant to the doctrine of parens patriae, the juvenile court in this case stood in loco parentis to the mentally ill deprived child, Jerry G. Particularly in view of the fact that all parties to the action agreed that commitment to Mayview State Hospital was the appropriate disposition for the child, we hold that the hearing judge properly subjected Jerry to observation and treatment under section 7201 of the MHPA.*fn7

Order affirmed.


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