In re Joseph M. ( 2010 )

Rule 23 order filed NO. 5-08-0620
November 3, 2010;
Motion to publish granted IN THE
December 9, 2010.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________________
In re JOSEPH M., Alleged to Be a Person) Appeal from the Circuit Court of
Subject to Involuntary Admission to a ) Randolph County.
Facility )
) No. 08-MH-225
(The People of the State of Illinois, )
Petitioner-Appellee, v. Joseph M., ) Honorable
Respondent-Appellant). ) William A. Schuwerk, Jr.,
) Judge, presiding.
________________________________________________________________________
PRESIDING JUSTICE CHAPM AN delivered the judgment of the court, with opinion.
Justices Goldenhersh1 and Welch concurred in the judgment and opinion.
The respondent, Joseph M., appeals an order finding him subject to an involuntary
admission. He argues that (1) the State did not establish by clear and convincing evidence
that he was subject to an involuntary admission, (2) the State did not establish that
hospitalization was the least restrictive alternative for treatment, (3) the petition failed to
comply with the statutory requirement that it include the name and address of a close relative
or friend, and (4) the record does not contain a statement of the court's findings of fact. The
State argues that this court lacks jurisdiction to decide this case because (1) the notice of
appeal filed by Joseph M. did not comply with the requirements of Supreme Court Rule 303
(210 Ill. 2d R. 303) and was, therefore, not effective to confer jurisdiction and (2) the case
is moot and no exception to the mootness doctrine applies. We find that we have jurisdiction
and we reverse the order of the trial court.
Joseph M. was first admitted to a facility for mental health care in 1984. He was
1
At the time this decision was originally filed, as an order under Supreme Court Rule
23 (166 Ill. 2d R. 23), Justice Goldenhersh was the presiding justice.
1
subsequently admitted on five occasions between 1997 and 1999. In 1999, Joseph was
admitted to Chester Mental Health Center (Chester) after he was found unfit to stand trial on
charges of aggravated criminal sexual assault in Cook County. He was subsequently
transferred back to the Cook County jail and later transferred once again to Chester.
The petition that forms the basis of this appeal alleges that Joseph M. is subject to
continued involuntary admission because he suffers from a mental illness, as a result of
which he is (1) reasonably expected to engage in dangerous or threatening behavior toward
others and (2) unable to provide for his own needs or protect himself from serious harm.
Attached to the petition are two certificates. One was signed by social worker Kristy-jon
Ekes. Ekes stated that Joseph suffered from delusions of a grandiose and religious nature
and believed that the government was using satellites to monitor his movements. Ekes noted
that Joseph had a history of physical violence and experienced "significant mood symptoms,"
including occasional hostility. Finally, Ekes stated that Joseph has refused medication in the
past and that he would stop taking medication if he were released.
The second certificate was signed by psychiatrist S.K. Suneja. Dr. Suneja's
observations were consistent with Ekes' statement. Dr. Suneja additionally stated that
although Joseph M. had not engaged in any acts of physical aggression since an incident in
May 2007, he became agitated when anyone challenged his assertion that he was the
"ambassador of ambassadors" of Jesus Christ. Dr. Suneja noted that Joseph denied having
received any mental health treatment in the past. Joseph was diagnosed with schizoaffective
disorder (bipolar type) and paranoid schizophrenia.
The only witness to testify at the hearing on the petition was Jamia Klausing, a
licensed clinical social worker who was not a member of Joseph M.'s treatment team.
Klausing testified that she interviewed Joseph in his living unit, although she did not specify
when this interview took place. She further testified that she reviewed Joseph's records and
2
discussed his case with members of his treatment team.
Klausing described Joseph's delusions, explaining that he believed that he was the
"ambassador of ambassadors" of Jesus Christ, something which gave him special privileges.
Additionally, she stated that Joseph believed that the government was monitoring his
movements with satellites and that Jesus would return in one year and five months to pass
judgment on the courts and judges for all they had done to him. When asked if Joseph had
any behavioral problems, Klausing admitted that he had not had any since May 2007 (18
months before the hearing). She attributed this to his medication, however, and emphasized
that Joseph would not take medication if it was not "court-enforced." Counsel for the State
then asked, "So the answer, of course, to my question, then, you wouldn't expect him to
continue to take this medication were he released today ***, would you?" Klausing
responded, "No, and he has stated that he would not." She opined that without his
medication, Joseph would become aggressive and would pose a risk to people in the
community.
On cross-examination, Klausing admitted that Joseph's treatment team had, indeed,
been considering moving him to a less restrictive setting for treatment. When asked if this
was still being considered, she replied: "That is being–is being discussed. They're trying to
talk to Mr. M[.] about taking his medication voluntarily, without the enforced order." She
also acknowledged that Joseph's condition had improved with treatment.
At the end of the hearing, the court found as follows:
"Mr. M[.] is a person subject to involuntary admission. Although he has not exhibited
any physical aggression since May of '07, there is some evidence of some severe
delusions and that he is a risk to the community and himself if he is not involuntarily
medicated. As such, the Court finds that he shall be hospitalized *** which is the
least restrictive environment currently appropriate and available ***." (Emphasis
3
added.)
The court entered an order finding Joseph subject to continued involuntary admission for a
period of 180 days. The order was entered on November 19, 2008, the same day the hearing
was held.
Shortly thereafter, Joseph M. mailed to the court a notice that stated, in its entirety,
"Joe Henry M[.] will like to appeal my case November 19, 2008, State Illinois Circuit Court
for the 20th Judicial Circuit Randolph County Courthouse." The Guardianship and
Advocacy Commission was appointed to represent Joseph M. in this appeal. No amended
notice of appeal was filed.
Before considering the merits of Joseph M.'s appeal, we must address the State's
jurisdictional arguments. The State first argues that the notice of appeal we have just
described was insufficient to confer jurisdiction on this court because it failed to comply with
various requirements of Rule 303. For example, the State contends, it is not titled "Notice
of Appeal" (see 210 Ill. 2d R. 303(b)(1)(iii)), does not state that it is an appeal to the Fifth
District Appellate Court (see 210 Ill. 2d R. 303(b)(1)(i)), does not include the case name with
a designation of parties (see 210 Ill. 2d R. 303(b)(1)(ii)), and is not signed by Joseph or an
attorney representing him (see 210 Ill. 2d R. 303(b)(4)). In addition, the State contends that
he did not serve a copy of his notice of appeal as required by Rule 303(c) (210 Ill. 2d R.
303(c)). We do not find any of these flaws fatal to our jurisdiction.
As the State correctly points out, the filing of a notice of appeal is necessary to invoke
the jurisdiction of the appellate court. Burtell v. First Charter Service Corp., 76 Ill. 2d 427,
433-34, 394 N.E.2d 380, 382-83 (1979); Nussbaum v. Kennedy, 267 Ill. App. 3d 325, 329,
642 N.E.2d 151, 155 (1994). This does not mean that strict compliance with every
requirement of Rule 303 is needed to confer jurisdiction. The purpose of a notice of appeal
is to apprise the prevailing party that his opponent seeks appellate review. Burtell, 76 Ill. 2d
4
at 433, 394 N.E.2d at 382; Nussbaum, 267 Ill. App. 3d at 328, 642 N.E.2d at 154. As long
as a notice of appeal is sufficient to serve this purpose, it is sufficient to invoke our
jurisdiction. If the notice of appeal fairly and accurately sets out the order appealed and relief
sought, it is sufficient to confer jurisdiction unless the appellee is prejudiced by any
omissions or deficiencies. Burtell, 76 Ill. 2d at 433-34, 394 N.E.2d at 383; Nussbaum, 267
Ill. App. 3d at 328, 642 N.E.2d at 154.
Here, the notice filed by Joseph M. clearly stated that he was seeking appellate review
of an order entered in his case in the circuit court of Randolph County on November 19,
2008. There was only one such order, and as Joseph points out, the fact that the State
responded to his notice of appeal by filing a brief addressing that order demonstrates that the
State was not prejudiced by his failure to comply with the requirements of form set out in
Rule 303. Because the notice of appeal was adequate to serve its purpose and the State was
not prejudiced, we find that it was sufficient to trigger appellate jurisdiction. We note that
counsel was appointed to represent Joseph five days after he filed his notice of appeal. It
would have been better practice for his appointed attorney to file an amended notice of
appeal on his behalf. However, this does not alter our conclusion that the notice was
sufficient for jurisdictional purposes.
The State next urges us to reject the respondent's contention that we may review this
case under an exception to the mootness doctrine. The order Joseph M. has appealed in this
case expired by its own terms before the appeal reached this court. Because the order is no
longer in effect, we cannot grant effective relief. Thus, the issues raised in this appeal are
moot. In re Barbara H., 183 Ill. 2d 482, 490, 702 N.E.2d 555, 559 (1998). Ordinarily,
appellate courts do not have jurisdiction to consider moot issues. We may only consider
Joseph's claims if they fall within a recognized exception to the mootness doctrine. In re
Alfred H.H., 233 Ill. 2d 345, 351, 910 N.E.2d 74, 78 (2009). Although there is no general
5
exception for mental health cases, these cases usually fall within a recognized exception. In
re Alfred H.H., 233 Ill. 2d at 355, 910 N.E.2d at 80.
Joseph argues that we may consider this appeal under either the public-interest
exception or the capable-of-repetition-yet-evading-review exception. Under the public-
interest exception, we may consider his claims if (1) they present issues of public concern,
(2) an authoritative determination is needed to guide public officials and courts, and (3) the
question is likely to recur. In re Alfred H.H., 233 Ill. 2d at 355, 910 N.E.2d at 80. Under the
capable-of-repetition-yet-evading-review exception, we may hear this appeal if (1) the action
challenged is of such short duration that it cannot be fully litigated before becoming moot
and (2) there is a reasonable likelihood that the same party will be subjected to the same
action again. In re Alfred H.H., 233 Ill. 2d at 358, 910 N.E.2d at 82.
The State, however, points to our supreme court's recent decision in In re Alfred H.H.
There, the court found that the case before it did not fall within either of these two
exceptions. Central to the court's conclusion was the fact that the case involved a claim that
there was insufficient evidence to prove that the respondent was subject to an involuntary
admission by clear and convincing evidence. Two of the four arguments Joseph raises in this
case likewise involve challenges to the sufficiency of the evidence. We note that after In re
Alfred H.H., Illinois courts addressing appellate jurisdiction in mental health cases–including
this court–have specifically noted that the issues they were being called upon to decide had
broader implications than most sufficiency-of-the-evidence claims. See, e.g., In re Eric H.,
399 Ill. App. 3d 831, 833, 927 N.E.2d 867, 869-70 (2010); In re Robert F., 396 Ill. App. 3d
304, 311, 917 N.E.2d 1201, 1206 (2009). However, the supreme court did not hold that a
sufficiency-of-the-evidence claim can never fit within an exception to the mootness doctrine.
Indeed, the court emphasized as follows: "[T]he evaluation of the established mootness
exceptions must be conducted on a case-by-case basis. This evaluation must consider all the
6
applicable exceptions in light of the relevant facts and legal claims raised in the appeal." In
re Alfred H.H., 233 Ill. 2d at 364, 910 N.E.2d at 85. We find that the relevant facts in this
case lead to a different conclusion with respect to jurisdiction.
In re Alfred H.H. involved an order for initial involuntary admission. The State's
witness at the hearing was a psychiatrist who had previously treated the respondent on six
occasions and had also examined him for the purpose of providing a certificate in support of
the petition. The psychiatrist testified about his personal observations of the respondent's
erratic and agitated behavior during that examination. In re Alfred H.H., 233 Ill. 2d at 349,
910 N.E.2d at 76-77. In addition, the respondent testified at the hearing. In re Alfred H.H.,
233 Ill. 2d at 349, 910 N.E.2d at 77.
On appeal, the respondent argued that this evidence was insufficient to support a
finding that he was subject to an involuntary admission by clear and convincing evidence.
In re Alfred H.H., 233 Ill. 2d at 350, 910 N.E.2d at 77. In finding that this argument did not
merit invoking an exception to the mootness doctrine, the court explained that sufficiency-of-
the-evidence claims require "inherently case-specific" review. In re Alfred H.H., 233 Ill. 2d
at 356, 910 N.E.2d at 81. Thus, the court found, the case did not involve the type of "broad
public[-]interest issues" found in most mental health cases. In re Alfred H.H., 233 Ill. 2d at
356-57, 910 N.E.2d at 81. In addition, the court found that any decision it could render
would be unlikely to provide guidance to courts and public officials in other cases. In re
Alfred H.H., 233 Ill. 2d at 358, 910 N.E.2d at 82. This made the public-interest exception
inapplicable. The court also found the capable-of-repetition-yet-evading-review exception
inapplicable because any future petitions involving the same respondent would, presumably,
be supported by different evidence. In re Alfred H.H., 233 Ill. 2d at 360, 910 N.E.2d at 83.
Although the instant case involves claims of error which, like that involved in the In
re Alfred H.H. case, fall under the general description "sufficiency of the evidence," we
7
believe that Joseph's arguments are far less unique and fact-specific than those involved in
In re Alfred H.H. As noted, the trial court in that case heard testimony related to the
testifying psychiatrist's recent direct observations of the respondent. The court also observed
the respondent when he testified. Thus, the resolution of his sufficiency-of-the-evidence
argument would have required a very fact-specific analysis of the evidence presented to
determine whether it supported the trial court's conclusion. In re Alfred H.H., 233 Ill. 2d at
360, 910 N.E.2d at 83.
By contrast, as we will explain in more detail later, it appears that very little of the
evidence before the court in this case related to Joseph's current condition; instead, the State
and the court appeared to rely on his history of mental illness and unwillingness to take
medication. This sort of cursory review is alarmingly frequent. See In re Andrew B., 237
Ill. 2d 340, 355, 930 N.E.2d 934, 943 (2010) (pointing to the increasing number of cases in
which appellate courts have "expressed serious concerns with the State's failure to adhere to
the [Mental Health and Developmental Disabilities] Code's procedural safeguards"); see also,
e.g., In re Phillip E., 385 Ill. App. 3d 278, 895 N.E.2d 33 (2008) (addressing issues strikingly
similar to those before us). Moreover, Joseph argues that because the right to refuse to take
psychotropic medication is fundamental, the State cannot be permitted to involuntarily
commit him based solely on the presumed need to continue to medicate him against his will.
Our resolution of this question will require us to consider the interplay between the two types
of mental health orders.
With this in mind, we find that we may consider Joseph's arguments under the
capable-of-repetition-yet-evading-review exception. As noted, this exception allows us to
consider an otherwise moot appeal if (1) the action challenged is of such short duration that
the issues raised will become moot before they can be fully litigated and (2) there is a
reasonable likelihood that the same party will be subjected to the same action again. In re
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Alfred H.H., 233 Ill. 2d at 358, 910 N.E.2d at 82. Orders for continued involuntary
admission may not last longer than 180 days. 405 ILCS 5/3-813(b) (West 2008). This is not
enough time for an appeal to be fully litigated before the challenged order expires. In
addition, Joseph has a long history of mental illness and has been subject to multiple petitions
for continued involuntary admission. As we have mentioned, the issues raised in this appeal
not only can recur but often do recur. It is thus reasonably likely that the same problems will
arise again for Joseph M. on future petitions for continued admission. We find that both
criteria are met, and we will therefore consider Joseph's claims.
We turn now to the merits. Joseph first argues that the State did not show that he was
subject to continued involuntary admission by clear and convincing evidence. He also argues
that the State failed to present any evidence to show that continued admission was the least
restrictive form of treatment available. These issues are interrelated, and we will discuss
them together.
The type of evidence presented by the State in this case is nearly identical to that
presented in In re Phillip E. There, as here, the only witness to testify was a social worker
at Chester who met with the respondent one time, reviewed his records, and discussed his
situation with members of his treatment team. In re Phillip E., 385 Ill. App. 3d at 280, 895
N.E.2d at 38. There, as here, the social worker offered no testimony about her own
observations of the respondent even though she had met with him. In re Phillip E., 385 Ill.
App. 3d at 285, 895 N.E.2d at 41. None of the documentation submitted in support of the
petition for continued commitment or any other records were entered into evidence, which
is also true in this case. In re Phillip E., 385 Ill. App. 3d at 284, 895 N.E.2d at 40.
As in this case, the social worker there testified that Phillip had shown improvement
in the months leading up to the hearing and that his treatment team had recommended
transferring him to a less restrictive setting. In re Phillip E., 385 Ill. App. 3d at 280-81, 895
9
N.E.2d at 38. She nevertheless opined that he remained mentally ill, could be reasonably
expected to harm himself or others if not medicated, and had a history of refusing
medication. In re Phillip E., 385 Ill. App. 3d at 281, 895 N.E.2d at 38. Like the testifying
witness in this case, she provided no basis or explanation for that conclusion.
In finding that this testimony fell far short of what was needed to support a finding
that Phillip was subject to continued involuntary admission by clear and convincing evidence,
we explained that clear and convincing evidence requires "explicit medical testimony" from
a witness whose opinion is based on a "history of direct observation of the respondent on
several occasions." In re Phillip E., 385 Ill. App. 3d at 284, 895 N.E.2d at 41; see also 405
ILCS 5/3-807 (West 2008) (providing that a respondent may be found subject to involuntary
admission only if "at least one psychiatrist, clinical social worker, or clinical psychologist
who has examined him testifies in person at the hearing" (emphasis added)).
We note that, as the State has argued in this case, the witness may properly base his
or her opinion or diagnosis in part on the respondent's treatment records. See In re Lisa
G.C., 373 Ill. App. 3d 586, 594-95, 871 N.E.2d 794, 802 (2007) (explaining that an expert
who examines a patient "may properly consider a respondent's complete medical history" and
finding the court's conclusion supported by the witness's testimony about both the
respondent's medical history and his own direct observations of the respondent). However,
as we explained in In re Phillip E., there must be factual support for the witness's opinions.
In re Phillip E., 385 Ill. App. 3d at 285, 895 N.E.2d at 41. Moreover, where the State
chooses not to provide the testimony of a witness who is a part of the respondent's treatment
team, the court has an obligation to carefully examine the facts to determine whether that
testimony, standing alone, provides clear and convincing proof. In re Phillip E., 385 Ill.
App. 3d at 285, 895 N.E.2d at 41.
Here, the State's only witness, Jamia Klausing, testified that she met Joseph M .,
10
reviewed his records, and spoke with members of his treatment team. She described some
of the delusions he suffered, but she did not specifically testify about any of her own
observations of his behavior or offer any factual basis to connect these delusions with her
conclusion that he would be likely to harm himself or others if not medicated. It is certainly
reasonable to believe that the nexus likely exists. The certificates filed in support of the
petition state that Joseph hit another patient in May 2007 and that even though he has not
engaged in any violent behavior since that time, he becomes agitated when his delusions of
grandeur are challenged. However, the certificates were not offered into evidence, and
neither of the experts who provided them were called to testify. See In re Phillip E., 385 Ill.
App. 3d at 284, 895 N.E.2d at 40. As we concluded in In re Phillip E., this simply does not
provide an adequate factual basis for the court to accept Klausing's conclusion that Joseph
will be a danger to the community if released.
Moreover, Klausing's testimony focused largely on her opinion that Joseph needed to
be medicated in order not to pose a risk of harm to the community. For the reasons we have
just discussed, we do not believe that her testimony included sufficient facts to support this
conclusion. However, even if the need for continued medication had been proven by clear
and convincing evidence, it would not automatically lead to the conclusion that continued
hospitalization is required. This is not to say a court can never find that a patient is subject
to an involuntary admission based primarily on a need for involuntary medication which
cannot realistically be effectuated any other way. Indeed, the ability to enforce a court-
ordered medication regime may well be relevant to the need for continued admission.
However, we do not believe that the Mental Health and Developmental Disabilities Code
(Mental Health Code) (405 ILCS 5/1-100 et seq. (West 2008)) contemplates the kind of
bootstrapping that occurred in this case.
The Mental Health Code requires separate proceedings to authorize an involuntary
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admission and the involuntary administration of psychotropic medication, and orders
authorizing these types of treatment must be supported by different sets of findings. See 405
ILCS 5/2-107.1(a-5)(4) (West 2008) (setting out the criteria for authorizing the involuntary
administration of psychotropic medication); 405 ILCS 5/1-119 (West 2006) (setting forth the
criteria for an involuntary admission). Even a patient who has already been found to be
subject to an involuntary admission may not be medicated against his will unless the statutory
criteria for the involuntary administration of psychotropic medication are met. In re Evelyn
S., 337 Ill. App. 3d 1096, 1106, 788 N.E.2d 310, 318 (2003) (citing 405 ILCS 5/2-107.1(a-
5)(2)(i) (West 2000)). Conversely, a patient who has been found subject to involuntary
medication may not be found to be subject to an involuntary admission based solely on that
finding. As this court has recognized, orders for involuntary admission are "inherently more
restrictive than other types of mental health orders." In re Michael H., 392 Ill. App. 3d 965,
972, 912 N.E.2d 703, 709 (2009).
Here, the State alleged that Joseph is subject to an involuntary admission because he
will be dangerous if he is not medicated and that an involuntary admission is the only
realistic way to make sure he takes his prescribed medication. Joseph argues that because
the right to refuse medication is fundamental, such bootstrapping is not permissible. While
we do not find a per se rule to that effect necessary to protect the rights of patients such as
Joseph M., we believe that the principles we have just discussed demand, at the very least,
clear and convincing proof that the respondent (1) meets the criteria for the involuntary
administration of psychotropic medication, (2) will meet the criteria for an involuntary
admission if not medicated, and (3) cannot be effectively medicated if released. In this case,
none of these three propositions were supported by clear and convincing evidence.
As previously discussed, Klausing's testimony focused largely on her concern that
Joseph would not take his medication unless he was subject to an order for the involuntary
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administration of psychotropic medication. It was only in response to a leading question that
she predicted he would stop taking his medication if he were released from Chester. She
offered no testimony related to whether Joseph currently met–or would likely continue to
meet–the criteria for authorizing involuntary medication.
In addition, Klausing was not asked about the availability of any alternative ways to
ensure that Joseph took his medication. She was not asked, for example, if he had any family
members or friends into whose care he might be released. See 405 ILCS 5/3-815 (West
2008) (authorizing courts to enter orders for the care and custody of the respondent). She
was not asked if an agreed order for alternative treatment had been considered (see 405 ILCS
5/3-801.5 (West 2008)) or whether some other form of alternative treatment could be ordered
(see 405 ILCS 5/3-812(a) (West 2008); see also In re Nancy A., 344 Ill. App. 3d 540, 555,
801 N.E.2d 565, 580 (2003) (pointing out that a court ordering treatment "has several options
at its disposal")). Thus, the State failed to provide any factual basis to connect the need for
continued medication with the need for continued admission and also failed to give the court
any basis to conclude that no less restrictive alternatives were appropriate or available.
This omission is particularly troubling because the M ental Health Code expressly
provides a preference for care other than by an involuntary admission. 405 ILCS 5/3-811
(West 2008); In re Nancy A., 344 Ill. App. 3d at 556, 801 N.E.2d at 580. For this reason, a
person may not be ordered admitted to a facility involuntarily unless the court also finds that
this is the least restrictive treatment available. See 405 ILCS 5/3-811 (West 2008); In re
Nancy A., 344 Ill. App. 3d at 555, 801 N.E.2d at 580. This requirement "is not met merely
because the State's expert opines [that] commitment is the least restrictive means." In re
Nancy A., 344 Ill. App. 3d at 556, 801 N.E.2d at 580. Here, Klausing testified only that
Joseph had refused medication in the past and indicated he would continue to do so, and
Klausing concluded that hospitalization was the only way to prevent that from occurring.
13
She offered no testimony about which less restrictive alternatives had been considered and
why each had been rejected. The unsupported conclusion of an expert witness who is not
even a part of the respondent's treatment team does not provide clear and convincing proof.
Furthermore, Klausing testified that Joseph's condition had improved in recent months
and that his treatment team was considering a less restrictive placement for him. No
evidence was presented to explain why her opinion was a more accurate gauge of Joseph's
readiness to leave the facility than the opinions of those who actually treated him. In light
of the foregoing, we simply cannot endorse the State's failure to even attempt to meet the
burden imposed on it by the Mental Health Code.
The State argues that our decision in In re Kevin S., 381 Ill. App. 3d 260, 886 N.E.2d
508 (2008), is "directly on point against the respondent." We disagree. There, as here, there
was testimony that the respondent would likely stop taking his medication if released and that
his condition would likely deteriorate as a result. In re Kevin S., 381 Ill. App. 3d at 266, 886
N.E.2d at 515. That is where the similarities end. The social worker there testified that
Kevin S. was not improving in response to medication and other treatment. In re Kevin S.,
381 Ill. App. 3d at 262, 886 N.E.2d at 512. He testified that Kevin was not functioning
particularly well even in the secure environment of the mental health facility and that he
needed "to be put in restraints as recently as two weeks before the hearing." In re Kevin S.,
381 Ill. App. 3d at 266, 886 N.E.2d at 515. In addition, the social worker's opinion that
continued hospitalization was the least restrictive alternative for Kevin was in line with the
opinions of his treating psychiatrist and psychologist. In re Kevin S., 381 Ill. App. 3d at 267,
886 N.E.2d at 515. We rejected the respondent's contention that there was insufficient
evidence to support the court's finding that an involuntary admission was the least restrictive
treatment available. We found that the evidence that Kevin was unable to function well even
in the secure environment of the hospital provided ample support for the conclusion that
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hospitalization was the least restrictive alternative. Thus, In re Kevin S. does not support the
State's position here. We conclude that the State failed to provide sufficient evidence to carry
its burden.
Joseph M. next contends that the State failed to comply with the requirement that the
petition include the name of a close relative or friend. The statute provides, in relevant part,
as follows:
"(b) The petition shall include ***:
***
2. The name and address of the spouse, parent, guardian, substitute
decision maker, if any, and close relative[] or[,] if none, the name and address
of any known friend of the respondent ***. If the petitioner is unable to
supply any such names and addresses, the petitioner shall state that diligent
inquiry was made to learn this information and specify the steps taken." 405
ILCS 5/3-601(b)(2) (West 2008).
Joseph points out that he has a brother and a sister who could have–and, he contends, should
have–been named in the petition. He also points out that the staff at Chester was aware of
this fact. Thus, he contends, there is no excuse for failing to comply with the requirement
that they be named. See In re Ellis, 284 Ill. App. 3d 691, 694, 672 N.E.2d 893, 895 (1996).
He further argues that he was prejudiced by the State's failure to name his brother or sister
in the petition because, had they been contacted, one of them might have been willing and
available to care for him.
The State, by contrast, argues that Joseph has forfeited this "hypertechnical" argument
by failing to raise it at the hearing because, according to the State, "this alleged defect in the
petition could have been corrected in a few seconds" had he done so. The State further
contends that Joseph cannot demonstrate that he suffered any prejudice because of the defect
15
for two reasons: first, the treatment plan filed in support of the petition mentioned that Joseph
was in contact with his brother and sister, thereby providing the necessary "information about
the respondent's family," and second, the statutory requirement to provide family-or-friend
information is really designed for initial petitions for involuntary commitment. The State
points out that in those cases, a respondent's family likely will not know that the respondent
is facing a petition for an involuntary admission and that it is important that the petitioner
attempt to contact the family so they can provide crucial information to aid in the diagnosis
and treatment of the respondent or perhaps help the respondent obtain legal representation.
As the State appears to acknowledge, the purpose of the statutory requirement is to
ensure that the petitioner makes every effort to contact a responsible family member or
friend. Because a respondent might be prejudiced by the petitioner's failure to follow this
mandate, a reversal is generally warranted even absent an objection. In re Denise C., 348
Ill. App. 3d 889, 892, 810 N.E.2d 654, 657 (2004). We therefore reject the State's forfeiture
argument. However, the failure to include family-or-friend information on the petition itself
is not fatal where the required information is found elsewhere in the petition. In re Denise
C., 348 Ill. App. 3d at 892, 810 N.E.2d at 657. Thus, in In re Denise C., the State's failure
to list any close relative or friend of the respondent in the petition did not require a reversal
where the record established that the only friend or family member she was willing to reveal
was "an 'abusive ex-boyfriend,' clearly not the responsible contact person contemplated by
the [Mental Health] Code." In re Denise C., 348 Ill. App. 3d at 892, 810 N.E.2d at 657. A
reversal was not required because it was clear from the petition as a whole that the person
who filled it out had made a diligent effort to find any family members or friends who should
have been contacted. In re Denise C., 348 Ill. App. 3d at 892-93, 810 N.E.2d at 657.
Similarly, in In re Robin C., the respondent argued that a reversal was warranted
where the petition failed to include the names and addresses of her mother and aunt. In re
16
Robin C., 385 Ill. App. 3d 523, 527-28, 898 N.E.2d 689, 693 (2008). There, a psychiatrist
testified that he had contacted Robin's mother and tried unsuccessfully to contact her aunt.
In re Robin C., 385 Ill. App. 3d at 528, 898 N.E.2d at 693. He even testified about the
information he had gleaned from speaking with Robin's mother. In re Robin C., 385 Ill. App.
3d at 527, 898 N.E.2d at 693. It is for this reason that the court found that Robin suffered
no prejudice from the failure to name either relative in the petition. In re Robin C., 385 Ill.
App. 3d at 528, 898 N.E.2d at 693.
In In re Tommy B., 372 Ill. App. 3d 677, 867 N.E.2d 1212 (2007), the court found that
the respondent could not demonstrate that he was prejudiced by the State's failure to name
any relatives or friends, because he did not identify on appeal any person who should have
been named. In re Tommy B., 372 Ill. App. 3d at 685, 867 N.E.2d at 1220. Presumably, the
rationale behind this holding is that if there is no concerned family member or friend who
might provide useful information or help the respondent in some other way, then the
respondent is not hurt by the State's failure to make diligent efforts to find such a family
member or friend.
Despite finding no prejudice to the respondent, the court took the time to express its
concerns over the failure of everyone involved in the process to notice and correct the error
before–or, at the very latest, during–the hearing. In re Tommy B., 372 Ill. App. 3d at 685,
867 N.E.2d at 1220. The court admonished, "Compliance with the requirements of the
[Mental Health] Code would save countless resources" by limiting the need for appeals. In
re Tommy B., 372 Ill. App. 3d at 685, 867 N.E.2d at 1220. The same court reiterated this
concern in In re Robin C., emphasizing "the need for greater attention to detail in [mental
health] cases." In re Robin C., 385 Ill. App. 3d at 528, 898 N.E.2d at 693.
Here, Joseph has identified his brother and his sister as individuals who should have
been named in the petition. The record indicates that he is in regular contact with them, but
17
there is no indication that they were ever contacted regarding the current petition or hearing.
This is particularly prejudicial in light of the facts of this case. As we previously discussed,
the evidence showed that Joseph's condition had improved with treatment, and the primary
reason offered for his continued involuntary admission to Chester was the need to make sure
he continued to take medication. One less restrictive alternative that could have been
considered was releasing him into the care of one of his siblings. In addition, as the State
acknowledges, family members can often provide valuable assistance to respondents in
Joseph's position by hiring legal counsel for them. The State offers no principled reason why
this is any less important on a petition for continued admission than it is on a petition for an
initial admission. The record before us provides us with no basis to conclude that Joseph's
siblings were ever contacted about the petition. Thus, the petition is fatally defective.
Joseph's last contention is that the court erred in failing to provide any findings of fact.
In response, the State contends that (1) Joseph forfeited this argument by failing to request
more detailed findings at the trial court level and (2) the findings of the trial court were
sufficient because the applicable statute does not specify how detailed those findings must
be. We first note that forfeiture is a limitation on the parties, not courts. We also note that
there is no requirement that a litigant file a posttrial motion before filing an appeal, which
is the most realistic avenue to request more detailed findings. This court recently rejected
a similar argument. In re Michael H., 392 Ill. App. 3d at 970, 912 N.E.2d at 707. We will
therefore address the merits of Joseph's argument.
The Mental Health Code provides that courts ordering involuntary treatment shall
state on the record their findings of fact and conclusions of law. 405 ILCS 5/3-816(a) (West
2008). In support of his argument that the court's findings in this case were inadequate,
Joseph cites In re James S., 388 Ill. App. 3d 1102, 904 N.E.2d 1072 (2009). That case
involved an order authorizing the involuntary administration of psychotropic medication.
18
The court stated only that after hearing the testimony and observing the witnesses, it found
by clear and convincing evidence that the respondent was subject to involuntary medication.
In re James S., 388 Ill. App. 3d at 1105, 904 N.E.2d at 1075. We found this statement
insufficient to satisfy the statutory requirement because, in essence, it contained no facts. In
re James S., 388 Ill. App. 3d at 1107, 904 N.E.2d at 1077. Here, the court's findings, though
somewhat conclusory, are obviously more specific than those involved in the In re James S.
case. Thus, we do not find that case controlling.
As the State points out, the few courts to consider this question have approved of
statements similar to the trial court's finding here that hospitalization is the least restrictive
treatment available. See In re Long, 203 Ill. App. 3d 357, 363, 561 N.E.2d 290, 294 (1990);
In re Grimes, 193 Ill. App. 3d 119, 123, 549 N.E.2d 616, 618 (1990); In re Evans, 86 Ill.
App. 3d 263, 265-66, 408 N.E.2d 33, 35 (1980). However, even assuming that this finding
was adequate, the court here never expressly made any factual findings related to whether
Joseph met the statutory criteria for an involuntary admission. The court merely noted that
there was "some evidence" that Joseph would be "a risk to the community" if not medicated.
Stating that there is some evidence in the record to support a proposition is not the same as
finding it for a fact to be true. Moreover, as we have previously held, the court needed to
find that Joseph would pose a danger to himself or others if not involuntarily admitted to a
facility. Even if we were to construe this comment as a finding, it fails to make the crucial
link between medication and admission the same way the hearing testimony failed to make
that link. Thus, we find that the statement of facts was inadequate to satisfy the statutory
requirement.
For the reasons stated, we reverse the order of the trial court finding Joseph M. to be
subject to an involuntary admission.
Reversed.
19
NO. 5-08-0620
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________________
In re JOSEPH M., Alleged to Be a Person
) Appeal from the Circuit Court of
Subject to Involuntary Admission to a ) Randolph County.
Facility )
) No. 08-MH-225
(The People of the State of Illinois, )
Petitioner-Appellee, v. Joseph M., ) Honorable
Respondent-Appellant). ) William A. Schuwerk, Jr.,
) Judge, presiding.
___________________________________________________________________________________
Rule 23 Order Filed: November 3, 2010
Motion to Publish Granted: December 9, 2010
Opinion Filed: December 9, 2010
___________________________________________________________________________________
Justices: Honorable Melissa A. Chapman, P.J.
Honorable Richard P. Goldenhersh, J., and
Honorable Thomas M. Welch, J.,
Concur
___________________________________________________________________________________
Attorneys Veronique Baker, Director, Penelope S. Smith, Laurel W. Spahn, Barbara A. Goeben,
for Staff Attorneys, Legal Advocacy Service, Illinois Guardianship and Advocacy
Appellant Commission, #7 Cottage Drive, Anna, IL 62906
___________________________________________________________________________________
Attorneys Hon. Randall Rodewald, State's Attorney, Randolph County Courthouse, Chester,
for IL 62233; Patrick Delfino, Director, Stephen E. Norris, Deputy Director, Kevin D.
Appellee Sweeney, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, 730
E. Illinois Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864
___________________________________________________________________________________