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JOSEPH SCHMIDT (02/04/81)

decided: February 4, 1981.

IN RE JOSEPH SCHMIDT, RESPONDENT. APPEAL OF COUNTY OF ALLEGHENY


No. 23 March Term, 1979, Appeal from the Decree of the Court of Common Pleas of Allegheny County, Orphans' Court Division, Court En Banc, entered February 13, 1979 at CC660 of 1977.

COUNSEL

James H. McLean, County Sol., James A. Esler and Dennis Biondo, Asst. County Sols., Pittsburgh, for appellant.

Marlene W. Jackson, Asst. Atty. Gen., for Dept. of Public Welfare.

Thomas E. Coval, Willow Grove, Timothy E. Finnerty, Pittsburgh, for Joseph Schmidt.

O'Brien, C. J., Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Larsen and Flaherty, JJ., filed concurring opinions. Roberts, J., concurred in the result.

Author: Nix

[ 494 Pa. Page 89]

OPINION

Appellant, County of Allegheny, petitioned the Court of Common Pleas for the involuntary commitment of respondent, Joseph Schmidt, to an appropriate facility. Appellee, Commonwealth of Pennsylvania, intervened as a party-respondent and presented testimony to establish that the state-operated facility known as Western Center would not be an appropriate facility as required by the Mental Health and Mental Retardation Act of 1966 (hereinafter referred to as the Act). Act of October 20, 1966, Special Sess. No. 3, P.L. 96, § 406, 50 P.S. § 4406. The trial court concluded that respondent was a mentally retarded individual requiring a closely supervised structured residential program.

[ 494 Pa. Page 90]

The county was ordered to "develop a practical life management plan" setting forth "in detail the type of residential placement appropriate for [respondent] with a placement appropriate for his needs." The county was given a six-month period in which to complete the placement of respondent in an appropriate facility meeting his needs. The trial court further ordered that during the six-month period, but no longer, respondent was to be temporarily committed to the state-operated institution known as Western Center, even though that institution was not an appropriate facility for respondent. The court en banc expressed the hope that, "If Joseph receives an appropriate placement that meets his needs, . . . the time might come when placement at Western Center will in fact be appropriate." This appeal by the county followed.

Respondent is an adult male who at the age of eight was placed by the Court of Common Pleas, upon the petition of respondent's family, in a privately operated residential school for mentally retarded children. Respondent resided and received treatment for the following fourteen years at this school which was under contract with the county to provide such care. He is able to walk, although he frequently moves around on his hands and knees. He can use a scoop dish to feed himself but still requires much assistance. He is unable to discriminate between edible and inedible objects and, although not toilet trained, he is toilet regulated. The school found that as respondent grew into a husky, muscular young man, it was unable to channel his physical energy and curiosity and was unable to provide the constant supervision respondent required. The county attempted unsuccessfully to find other suitable placement for respondent. It was at this point, after fourteen years of assuming the responsibility, that appellant county petitioned for respondent's commitment to an appropriate state facility.

Evidence established that Western Center was not an appropriate facility for respondent since its staff-patient ratio was 1:14. Respondent's previous school found that it could not adequately treat respondent in a 1:7 staff-patient

[ 494 Pa. Page 91]

    ratio. Testimony at the hearing established that in order for respondent to receive the training he needs to reduce dependency, respondent must be in a setting with a 1:3 staff-patient ratio. Respondent was, however, temporarily committed to Western Center, since there was no alternative placement available to the trial court.

Neither is there any real dispute between the county and the state that (1) the county does not presently have a program that will meet respondent's needs; and (2) Western Center does not presently have a program to meet respondent's needs. The actual controversy between the county and the state is which of them is legally obligated to assume the responsibility for providing the proper care for respondent. The county argues that the trial court should have placed upon the state the responsibility of providing appropriate care. The state, on the other hand, argues that the trial court's order should be affirmed because it is the county's responsibility to provide the proper care for respondent.

We start the inquiry with the realization that the mentally retarded are in no way responsible for their dependency, and that society's concern for their welfare should not be grudgingly or reluctantly given. We also recognize that this is not a question of which governmental unit will ultimately bear the financial cost of the services required.*fn1 The basic issue is which governmental unit has the responsibility to assume the initiative in locating and developing the appropriate placement. The court below determined that it was the county's responsibility; for the reasons that follow, we cannot agree.

We are not here concerned with the legitimacy of the deprivation of the liberty of an individual that may be occasioned by residential placement. See, e. g., Haldeman v. Pennhurst State School & Hospital, 446 F.Supp. 1295 (E.D.Pa. 1977); Goldy v. Beal, 429 F.Supp. 640 (M.D.Pa. 1976); New York Association for Retarded Children v. Rockefeller,

[ 494 Pa. Page 92357]

F.Supp. 752 (E.D.N.Y. 1973); Lessard v. Schmidt, 349 F.Supp. 1078 (E.D.Wis. 1972). This Commonwealth has committed itself to a rejection of the former view that indiscriminate institutionalization was the panacea for the resolution of the problems presented by citizens who were not self-sufficient because of mental retardation. Act of July 9, 1976, P.L. 817, No. 143, § 102, 50 P.S. § 7102 (Supp. 1980-81).*fn2 We also embrace the view that a mentally retarded person shall not be determined to require involuntary residential placement unless the degree of retardation shows an inability to provide for the most basic personal needs and provision for such needs is not available and cannot be developed or provided for in the existing home or in the community in which the individual resides.

Our question here is somewhat different. Here there is no question that residential care will be required for the long-term care of Joseph Schmidt, even under the most favorable prognosis. This is not an instance where there is a possibility of a less structured placement than those made available by existing state facilities. To the contrary, the available state facility is inadequately structured for respondent's present needs and the anticipated objective of the court below is to provide him with the skills to cope with life in a setting such as Western Center. The question to be

[ 494 Pa. Page 93]

    decided here is under existing statutory law which governmental unit, i. e., the state or county, has the responsibility to locate or develop the long-term residential program required by respondent.

The responsibilities and duties of the state are set forth in Art. II of the Act. Specifically, § 201(1) of the Act, 50 P.S. § 4201(1), states that it shall be the duty of the state "to assure within the State the availability and equitable provision of adequate . . . mental retardation services for all persons who need them, . . . ." Subsection (4) further requires the state to "adopt State-wide plans for the operation of all State operated facilities . . . and to assign to each facility or portion thereof, such duties for the care of the mentally disabled, as the secretary shall prescribe."*fn3 Section 202(b) of the Act, 50 P.S. § 4202(b), authorizes the state through the Department of Public Welfare (department) "to establish, extend, operate and maintain additional facilities and provide . . . mental retardation services therein."

In counter distinction to the obligation and responsibilities of the state the Act describes in Art. III the obligations and responsibilities of the counties. Specifically, § 301(d) of the Act, 50 P.S. § 4301(d), provides that:

(1) Short term inpatient services other than those provided by the State.

(2) Outpatient services.

(3) Partial hospitalization ...


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