People v. Sharon L.N. , 368 Ill. App. 3d 1177 ( 2006 )

NO. 4-06-0045 Filed: 11/20/06
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re: SHARON L.N., a Person Found ) Appeal from
Subject to Involuntary Admission, ) Circuit Court of
THE PEOPLE OF THE STATE OF ILLINOIS, ) Sangamon County
Petitioner-Appellee, ) No. 05MH653
v. )
SHARON L.N., ) Honorable
Respondent-Appellant. ) Leslie J. Graves,
) Judge Presiding.
_________________________________________________________________
JUSTICE COOK delivered the opinion of the court:
Following a December 23, 2005, hearing, the trial court
ordered respondent, Sharon L.N., to involuntary admission at
McFarland Mental Health Center (McFarland) for a period not to
exceed 90 days (405 ILCS 5/1-119 (West 2004)). Respondent
appeals, arguing that (1) no clear and convincing evidence
warranted involuntary admission, particularly the State's expert
testimony failed to satisfy section 3-807 (405 ILCS 5/3-807 (West
2004)), and (2) procedural deficiencies violated sections 3-601
and 3-701 of the Mental Health and Developmental Disabilities
Code (Code) (405 ILCS 5/3-601, 3-701 (West 2004)). We reverse
due to the State's failure to satisfy section 3-807. We note
this court recently reached a different result, on somewhat
different facts, in In re Shirley M., No. 4-06-0263 (November 20,
2006), ___ Ill. App. 3d ___, ___ N.E.2d ___.
I. BACKGROUND
On December 6, 2005, Litchfield police chief B.J.
Wilkinson filed a petition in Montgomery County (Montgomery
petition) for the involuntary commitment of respondent.
Wilkinson alleged in the Montgomery petition that neighbors had
seen respondent setting fire to trash in her apartment, respon-
dent's apartment was littered with trash and feces, and respon-
dent had been drinking her own urine. Apparently, Wilkinson
testified to those same facts. Following hearing on that same
day, the court entered an order for temporary detention and
examination.
Respondent was subsequently examined by two doctors at
McFarland Mental Health Center in Sangamon County, each of whom
certified that respondent was mentally ill and reasonably ex-
pected to inflict serious physical harm on herself or another in
the near future and was unable to safely provide for her basic
physical needs. The medical certificates reported that (1)
respondent had a long history of mental illness and numerous
psychiatric hospitalizations; (2) respondent was delusional and
psychotic; (3) neighbors had seen respondent setting fire to
trash in her apartment; (4) police observed respondent's apart-
ment littered with trash and feces, and respondent was drinking
her own urine; and (5) respondent displayed poor judgment in that
she believed she had "cured" herself of diabetes and had discon-
tinued her medication. A third doctor, Dr. Jamie Myers, at-
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tempted to examine respondent but respondent refused to speak
with him. Myers nevertheless certified that respondent was
mentally ill and was reasonably expected to cause harm to herself
or others.
On December 7, 2005, a second petition was filed in
Sangamon County (Sangamon petition). The Sangamon petition is at
issue in this case. The Sangamon petition was merely an uncerti-
fied copy of the first petition, absent Wilkinson's factual
allegations that had been attached to the Montgomery petition.
Also filed with the Sangamon petition were the Montgomery order
for temporary detention and examination and the medical certifi-
cates of the two doctors who were able to examine respondent as
described above. The remaining medical certificate, authored by
Dr. Myers, was filed on December 9, 2005. Doctors performed the
comprehensive physical, psychiatric, and social investigation
from December 6 through December 8, 2005. The accompanying forms
(hereinafter medical reports) were presented at hearing on
December 23, 2005.
At hearing, Dr. Myers testified that he was a member of
respondent's treatment team. Respondent refused to talk with Dr.
Myers during this particular period of hospitalization. However,
Dr. Myers based his testimony on his work with respondent during
a prior hospitalization in September and October 2005 and a
review of respondent's current medical records. Dr. Myers
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diagnosed respondent as having schizoaffective disorder, which he
categorized as a chronic condition. Dr. Myers testified that,
according to the reports, respondent exhibited some behavioral
problems while at McFarland in that she threw pencils at a peer
and, on another occasion, physically threatened a peer and tried
taking the peer's lunch tray. Respondent has also exhibited
angry, delusional, and paranoid verbalizations. While Dr. Myers
would not classify respondent as suicidal, she had stopped taking
her medication. Dr. Myers opined that respondent was a danger to
herself and would most likely revert to her preadmission state
were she to be released early. Dr. Myers thought that McFarland
was the least-restrictive environment for respondent's treatment
and recommended a treatment plan of 90 days. The recommended
treatment plan was entered into evidence along with the medical
reports. There was no cross-examination.
Respondent, under the representation of counsel, then
testified on her own behalf. Respondent denied speaking with Dr.
Myers during her current stay at McFarland, denied purposefully
setting a fire in her home, denied drinking her own urine, and
denied threatening anyone. Respondent believed herself to be
mentally ill and admitted that she sometimes "forgot" to take her
medication. Respondent stated that she feels better when she
takes her medication and that she has been taking her medication
every day at McFarland. Respondent stated that she would con-
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tinue her treatment were she to be released and that members of
her church would help keep her on track.
The trial court found that respondent was mentally ill
and was currently receiving the least-restrictive treatment
available. The court stated that respondent needed more time to
stabilize on her medication before she could handle outpatient
treatment and entered an order of involuntary admission at
McFarland for a period not to exceed 90 days. This appeal
followed.
II. ANALYSIS
A. Overview
Respondent makes two arguments on appeal: (1) that no
clear and convincing evidence warranted her involuntary admission
and (2) that the State failed to comply with sections 3-601 and
3-701 of the Code. We are bound by the Illinois Supreme Court's
decision in In re Michelle J., 209 Ill. 2d 428, 808 N.E.2d 987
(2004), to reverse the order for involuntary admission where the
State failed to satisfy the provisions of section 3-807. Section
3-807 states that "[n]o respondent may be found subject to
involuntary admission unless at least one psychiatrist, clinical
social worker, or clinical psychologist who has examined [the
respondent] testifies in person at the hearing." (Emphasis
added.) 405 ILCS 5/3-807 (West 2004).
B. Section 3-807
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A judgment ordering involuntary commitment cannot be
affirmed in the absence of testimony that complies with section
3-807. Michelle J., 209 Ill. 2d at 438, 808 N.E.2d at 992-93.
In Michelle J., the supreme court held that the involuntary
admission of Sam S. could not be sustained because the require-
ments of section 3-807 were not satisfied. The testifying
psychologist was not able to examine Sam S. personally because he
was restrained and not in a position to be interviewed when her
schedule allowed. "It was not because he was incapable of being
interviewed prior to the hearing." Michelle J., 209 Ill. 2d at
436, 808 N.E.2d at 991. In fact, three other workers were able
to examine Sam S. prior to the hearing. They were apparently not
called because of administrative convenience; the testifying
psychologist worked in the county where the hearing was held, the
others did not. "Under these circumstances, there is no legiti-
mate basis for deviating from section 3-807's explicit require-
ments." Michelle J., 209 Ill. 2d at 436, 808 N.E.2d at 991.
Michelle J.'s case involved different circumstances.
The testifying psychologist was unable to interview Michelle the
day before the hearing because Michelle did not appear capable of
making "'an informed decision on whether or not to waive her
rights.'" Michelle J., 209 Ill. 2d at 433, 808 N.E.2d at 989.
"Unlike the expert in Sam's case, however, [the testifying
psychologist] was directly involved in the respondent's care."
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Michelle J., 209 Ill. 2d at 439, 808 N.E.2d at 993. She served
as a consultant to Michelle's treatment team and was able to meet
with Michelle personally in a group session, apparently within 72
hours of the hearing. Accordingly, the supreme court could not
say the requirements of section 3-807 were not satisfied.
Michelle J., 209 Ill. 2d at 439, 808 N.E.2d at 993.
As to Sam S., the supreme court refused to read its
previous decision, in Barbara H., "to permit recognition of an
exception to the personal examination requirement based on the
expert's inability to conduct a personal interview." Michelle
J., 209 Ill. 2d at 436, 808 N.E.2d at 991. The court also noted
that in any event, such an exception would be inapplicable to Sam
S.'s situation. Sam S. was capable of being interviewed prior to
the hearing. Michelle J., 209 Ill. 2d at 436, 808 N.E.2d at 991.
Although not detailed in Barbara H., the reason the expert there
was unable to conduct a personal interview was that the respon-
dent refused to talk to the expert. Michelle J., 209 Ill. 2d at
435, 808 N.E.2d at 991. Justice Thomas, specially concurring,
questioned the holding in Barbara H.: "Is the majority holding
that a respondent can avoid involuntary commitment simply by
refusing to speak with the doctor assigned to examine him or
her?" Michelle J., 209 Ill. 2d at 441, 808 N.E.2d at 994
(Thomas, J., specially concurring). Justice Thomas also noted
that the testifying doctor in Barbara H. had personally treated
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the respondent for six months. Justice Thomas questioned the
majority's reliance on the fact that Michelle J.'s personal
interview occurred within 72 hours of the hearing: "[H]ow can we
write a 72-hour time limit into the statute?" Michelle J., 209
Ill. 2d at 442, 808 N.E.2d at 995 (Thomas, J., specially concur-
ring).
It is not clear what the rule would be if the respon-
dent simply refused to speak with the doctor assigned to examine
him or her. That situation was not presented in Michelle J.,
where Sam S. was not incapable of being interviewed prior to the
hearing, and workers who had personally interviewed Sam S. prior
to the hearing were not called purely because of "administrative
convenience." Nor was refusal to speak the focus of Barbara H.,
where that fact was not even mentioned in the opinion. It seems
likely that in a case where the respondent simply refused to
speak to the testifying worker, the court would follow Justice
Thomas's special concurrence.
The Fifth District recently addressed a situation
wherein the respondent simply refused to speak to the testifying
worker in In re David B., No. 5-05-0416 (September 6, 2006), ___
Ill. App. 3d ___, ___ N.E.2d ___,. There, the court held that
section 3-807 could not be used as a loophole for a sexually
dangerous and legally sophisticated party to exploit. David B.,
No. 5-05-0416, slip op. at 14, ___ Ill. App. 3d at ___, ___
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N.E.2d at ___. Review of the respondent's confinement had come
before the Fifth District on at least 28 prior occasions, allow-
ing the respondent to gain some degree of familiarity and sophis-
tication with the system. David B., No. 5-05-0416, slip op. at
3, ___ Ill. App. 3d at ___, ___ N.E.2d at ___. In fact, the
respondent in David B. told the testifying worker that the reason
he refused to speak with her was because "she would testify at
the next hearing." David B., No. 5-05-0416, slip op. at 7, ___
Ill. App. 3d at ___, ___ N.E.2d at ___. The Fifth District
concluded that "section 3-807 of the Code requires the examiner
to attempt a personal interview but that if the respondent
refuses or is intentionally uncooperative, then the statutory
examination may be based on discussions with treating staff and a
review of medical records." David B., No. 5-05-0416, slip op. at
14, ___ Ill. App. 3d at ___, ___ N.E.2d at ___. The holding in
David B. may be appropriate under the facts of that case.
However, the holding in David B. does not seem to apply to a
situation where the State could have called an expert who had
personally examined the respondent in strict compliance with the
statute but instead called a witness with whom the respondent had
refused to speak.
Here, Dr. Myers was a part of respondent's treatment
team and attempted to interview respondent on one occasion but
respondent refused. Dr. Myers worked with respondent in group
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therapy during her prior hospitalization. The expert here had
some familiarity with respondent and her condition, but he did
not personally examine respondent in connection with her current
episode. Dr. Myers was not aware of whether respondent was
currently participating in group therapy and seemed to rely
mainly on respondent's hospital records in his testimony regard-
ing respondent's current condition. Like the first respondent in
Michelle J., two other certified professionals were able to
personally examine respondent in connection with the current
episode and the State offered no explanation as to why it chose
to rely on Dr. Myers instead. See Michelle J., 209 Ill. 2d at
436, 808 N.E.2d at 991.
We reverse the order of involuntary admission. While
our decision concerning section 3-807 is dispositive of this
case, we address respondent's remaining claims.
C. Clear and Convincing Evidence
Had Dr. Myers' testimony satisfied section 3-807, the
State's evidence would have met the clear and convincing stan-
dard. The trial court's decision is entitled to great deference
and, provided it is not against the manifest weight of the
evidence, will not be set aside, even if the reviewing court,
after applying the clear and convincing standard, would have
ruled differently. In re Moore, 301 Ill. App. 3d 759, 764, 704
N.E.2d 442, 445 (1998).
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Respondent admits that she is mentally ill. The
question before this court is whether the State proved by clear
and convincing evidence that, due to the illness, respondent was
reasonably expected to inflict serious harm upon herself or
another in the near future or was unable to provide for her basic
physical needs. 405 ILCS 5/1-119 (West 2004).
Respondent cites numerous cases for the proposition
that mental illness alone is insufficient to warrant involuntary
admission and that evidence that a respondent is reasonably
likely to harm herself or another must be supported by explicit
medical evidence. See, for example, In re Schumaker, 260 Ill.
App. 3d 723, 727-28, 633 N.E.2d 169, 172-73 (1994); In re Win-
ters, 255 Ill. App. 3d 605, 608-10, 627 N.E.2d 410, 413-14
(1994). Likewise, evidence of a respondent's potential to cause
harm absent evidence of respondent's actual engagement or at-
tempted engagement in harmful activities is insufficient to
warrant involuntary admission. In re Rovelstad, 281 Ill. App. 3d
956, 667 N.E.2d 720 (1996) (evidence insufficient where voices
told patient to run around naked, stop eating and sleeping, and
to commit suicide, but where patient never actually engaged or
attempted to engage in such activities). However, that is not
the situation we are dealing with here. The State is required to
prove that respondent is a definite danger to herself or society
but is not required to wait until someone is actually harmed
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before hospitalization is warranted. In re Manis, 213 Ill. App.
3d 1075, 1077, 572 N.E.2d 1213, 1214 (1991).
In the case at bar, the State presented evidence
through Dr. Myers' testimony and through medical reports that
respondent had already engaged in dangerous conduct. Neighbors
reported that respondent set fire to trash in her apartment.
Respondent did not deny that she had started a fire but merely
denied purposefully starting the fire. Respondent stated that
"maybe" she had been careless with the cigarette and that had
caused a comforter to catch fire. The State presented evidence
that respondent had threatened other patients, that her home was
littered with trash and feces, and that she drank her own urine.
Though respondent offered a benign characterization of the first
two accusations and flat-out denied the third, the court was not
required to see matters in the same light.
Respondent also testified that she had stopped taking
her medication following her last release from McFarland just two
months prior to this current episode. Respondent exercised poor
judgment in that she believed that she "cured herself" of diabe-
tes and no longer took medication for that disease. Respondent
admitted that she had a habit of forgetting to take her medica-
tion related to her mental illness and that she often forgets
"the time, the days, and the time sometimes." Respondent stated
that she had been taking her medication while at McFarland and
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that this helps her "very much." Dr. Myers testified that
respondent would most likely revert back to her preadmission
state if she were to be released early. Despite respondent's
testimony that she would continue to take her medication upon
release and that members of her church had promised to provide
support, the court's order was not against the manifest weight of
the evidence where expert testimony indicated that respondent
required further inpatient treatment to stabilize her condition.
See In re Rogers, 133 Ill. App. 3d 524, 531, 478 N.E.2d 1198,
1203 (1985) (Fourth District).
D. Sections 3-601 and 3-701
Respondent argues that procedural deficiencies in the
Sangamon petition violated sections 3-601 and 3-701 of the Code.
Sections 3-701(a) and 3-601(b) provide:
"Any person 18 years of age or older may
execute a petition asserting that another
person is subject to involuntary admission.
The petition shall be prepared pursuant to
paragraph (b) of section 3-601 and shall be
filed with the court in the county where the
respondent resides or is present." 405 ILCS
5/3-701(a) (West 2004).
"The petition shall include all of the
following:
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1. A detailed statement of
the reason for the assertion that
the respondent is subject to invol-
untary admission, including *** a
description of any acts, [or sig-
nificant threats] supporting the
assertion and the time and place of
their occurrence[;]
* * *
4. The names, addresses[,]
and phone numbers of the witnesses
by which the facts asserted may be
proved." 405 ILCS 5/3-601(b) (West
2004).
Respondent argues that the Sangamon petition was not in
compliance with the Code because the Sangamon petition was merely
an uncertified copy of the Montgomery petition. No motion to
transfer venue had been filed. The Sangamon petition did not
attach the factual allegations required pursuant to section 3-
601(b)(1) that had been attached to the Montgomery petition.
Apparently, these "missing" factual allegations include (1) a
statement by Wilkinson that a neighbor had seen respondent
setting fire to trash in her apartment, respondent's apartment
was littered with trash and feces, and respondent was drinking
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her own urine; and (2) a report or evaluation by the Montgomery
County health department.
We recognize those cases that hold that the procedural
safeguards of the Code are not mere technicalities but are the
essential tools to protect the respondent's liberty interests and
should therefore be strictly construed in favor of the respon-
dent. In re George O., 314 Ill. App. 3d 1044, 1046, 734 N.E.2d
13, 15-16 (2000), citing Rolvestad, 281 Ill. App. 3d at 964-65,
667 N.E.2d at 725; see also In re Demir, 322 Ill. App. 3d 989,
751 N.E.2d 616 (2001); In re Elkow, 167 Ill. App. 3d 187, 521
N.E.2d 290 (1988). However, we note that the cases cited by
respondent seem to imply that strict adherence to the Code trumps
consideration of society's dual interest in protecting itself
from dangerous individuals and caring for those who are unable to
care for themselves. See Demir, 322 Ill. App. 3d at 992, 751
N.E.2d at 618 (general statement of society's interests). We
also note that these case are in some ways distinguishable. The
majority of respondent's cases involved either (1) "total disre-
gard" for procedural rules (In re O.C., 338 Ill. App. 3d 292, 788
N.E.2d 1163 (2003) (Fourth District)) or (2) violation of section
3-610, which explicitly calls for respondent's release upon
noncompliance (see 405 ILCS 5/3-610 (West 2004); George O., 314
Ill. App. 3d 1044, 734 N.E.2d 13; In re Ellis, 284 Ill. App. 3d
691, 672 N.E.2d 893 (1996); Rovelstad, 281 Ill. App. 3d 956, 667
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N.E.2d 720; People v. Valentine, 201 Ill. App. 3d 10, 558 N.E.2d
807 (1990)).
The State argues that respondent has waived this
argument by failing to object at the hearing and that respondent
suffered no prejudice from any alleged error. In re Nau, 153
Ill. 2d 406, 419, 607 N.E.2d 134, 140 (1992). For the reasons
that follow, we do not find respondent was prejudiced by any
alleged error.
Procedural deviations from the Code do not warrant the
reversal of an involuntary-commitment order if the defects could
and should have been objected to immediately, could have been
easily cured if immediately objected to, and made no difference
anyway. Nau, 153 Ill. 2d at 419, 607 N.E.2d at 140 (regarding
State's failure to strictly comply with notice requirement,
section 3-611).
In this vein, we note that the Sangamon petition did
provide the names and contact information of two witnesses
capable of attesting to the factual allegations (see 405 ILCS
5/3-603(b)(4) (West 2004)). The December 6, 2005, order for
temporary detention and examination, which was contained in the
Sangamon petition, stated that it relied on the facts alleged in
the petition and Wilkinson's testimony in Montgomery County. As
per Nau, respondent could have immediately objected to State's
failure to attach Wilkinson's statement of factual allegations,
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thereby correcting the situation. Nau, 153 Ill. 2d at 419, 607
N.E.2d at 140. Regardless, the information contained in the
factual allegations was substantively presented in the petition
through the medical certificates that were filed with the peti-
tion. See In re Bert W., 313 Ill. App. 3d 788, 796, 730 N.E.2d
591, 598 (2000), citing People v. Gerich, 22 Ill. App. 3d 575,
317 N.E.2d 724 (1974) (holding petition should be read in its
entirety and in conjunction with the medical certificates and
that reversal is not warranted due to minor deviations in form
that do not prejudice respondent). Additionally, the court heard
these same allegations through Dr. Myers' testimony and through
the medical reports. Respondent was familiar with the allega-
tions through the Montgomery hearing and had adequate notice to
testify on her own behalf in the presence of her attorney regard-
ing the alleged reasons for her commitment. The alleged proce-
dural errors were harmless here.
III. CONCLUSION
For the aforementioned reason, we reverse the trial
court's order.
Reversed.
TURNER, P.J., and STEIGMANN, J., concur.
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