In re Carolyn J.S. , 2024 IL App (3d) 220249-U ( 2024 )

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
2024 IL App (3d) 220249-UOrder filed March 13, 2024
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2024
In re CAROLYN J.S., a Person Found ) Appeal from the Circuit Court
Subject to Involuntary Medication, ) of the 18th Judicial Circuit,
) Du Page County, Illinois,
(The People of the State of Illinois, )
) Appeal No. 3-22-0249
Petitioner-Appellee, ) Circuit No. 22-MH-157
)
v. ) Honorable
) Craig R. Belford,
Carolyn J.S., ) Judge, Presiding.
)
Respondent-Appellant). )
____________________________________________________________________________
JUSTICE DAVENPORT delivered the judgment of the court.
Presiding Justice McDade and Justice Holdridge concurred in the judgment.
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ORDER
¶1 Held: We reverse the trial court’s involuntary medication order, accepting the State’s
concession that its medication petition was facially deficient and respondent’s
counsel was ineffective in failing to seek its dismissal.
¶2 Respondent, Carolyn J.S., challenges the trial court’s order finding her subject to the
involuntary administration of psychotropic medication under the Mental Health and
Developmental Disabilities Code (Mental Health Code) (405 ILCS 5/1-100 et seq. (West 2022)).
For the following reasons, we reverse the trial court’s judgment.
¶3 I. BACKGROUND
¶4 At the time of these proceedings, respondent was 58 years old and a resident of Chicago.
In 2019, she was admitted to Illinois Masonic Medical Center in Chicago for mental health
treatment.
¶5 On March 22, 2022, the State petitioned for an order subjecting respondent to involuntary
administration of psychotropic medication. At the time, respondent was being held at Linden Oaks
Behavioral Health Center, where Dr. Walter Whang was primarily responsible for her care,
pending a hearing on the State’s earlier-filed petition for an order finding respondent subject to
involuntary admission. Dr. Whang prepared the medication petition on a form made available by
the Department of Human Services (Department). See Illinois Department of Human Services,
Petition for Administration of Psychotropic Medications/Electroconvulsive Therapy,
https://www.dhs.state.il.us/onenetlibrary/12/documents/Forms/IL462-2025.pdf (last visited
February 14, 2024). The petition set forth the reasons for Dr. Whang’s conclusion that respondent
was subject to involuntary medication:
“Patient with severe delusions and poor judgement, poor insight, poor impulse control.
Patient with severe psychosis cannot care for basic needs. Patient with severe suffering
believing she is being drugged, sexually assaulted, followed by a white man planning to
harvest her organs.”
¶6 The petition otherwise tracked the statutory language setting forth the seven requirements
for involuntary medication. See 405 ILCS 5/2-107.1(a-5)(4) (West 2022). The petition sought an
order permitting the facility to administer certain medications, listing Haldol as the “first choice”
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and Risperdal, Ativan, and Cogentin as “alternatives.” The petition also asked that the facility be
allowed to perform a comprehensive metabolic profile, complete blood count, and an
electrocardiogram (EKG).
¶7 On the morning of March 23, the court entered an order, on the State’s motion, appointing
counsel for respondent in the medication proceedings and directing that respondent, her attorney,
and “all required persons” be given “[a]t least three *** days advance Notice of the time and place
of [the] hearing” on the petition. Contrary to the three-days’ notice provision, however, the
medication petition was set for hearing the next day, March 24. The next morning, respondent’s
attorney entered her appearance.
¶8 On March 23, the State also filed, without first asking for leave, an amended medication
petition. The amended petition added to Whang’s reasons for his conclusion, stating respondent
was a “potential danger to others secondary to her psychosis.” It also modified the proposed
medications, this time listing both Haldol and Risperdal Consta as “first choice[s].”
¶9 The trial court heard the medication petition on March 24. Before evidence was presented,
the court and the parties addressed preliminary matters. No one acknowledged the hearing was
taking place only two days after the petition was filed and only one day after the amended petition
was filed. See id. § 2-107.1(a-5)(1) (“The petitioner shall deliver a copy of [a medication] petition,
and notice of the time and place of the hearing, to the respondent *** no later than 3 days prior to
the date of the hearing” on the petition. (Emphasis added.)). Nor did anyone acknowledge the
amended petition failed to allege specific facts to support the statutory conclusions stated in the
petition.
¶ 10 During the hearing, Whang explained the proposed medication regimen. Whang identified
Risperdal Consta as the primary medication and Haldol, Ativan, and Cogentin as alternatives.
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Whang explained that Risperdal Consta is a long-acting drug used to control psychosis. Risperdal
Consta sometimes does not provide an immediate benefit and thus an additional dose may be
needed one to two weeks later. Haldol is a fast-acting drug with effects similar to Risperdal Consta.
Haldol would be administered every four to eight hours and, if the facility observed “some decrease
in psychosis and lack of side effects, then [it] would switch to Risperdal Consta for the long-acting
drug.” This suggested Haldol and Risperdal would not be given concurrently. Ativan would be
given every four to six hours as needed to treat anxiety, aggression, and restlessness. Cogentin is
a “rapid response medication” for certain side effects associated with Risperdal Consta and Haldol,
and the facility would administer that medication every six hours as needed. With regard to the
requested testing—the metabolic profile, blood count, and EKG—Whang testified the tests were
“not necessary” to use the requested medications but he included them on the petition “for
completeness.”
¶ 11 At the conclusion of the hearing, the court found respondent subject to involuntary
medication and authorized the administration of the medication identified in the amended petition.
The written order did not conform exactly with Whang’s explanation of the proposed medication
regimen. It identified Risperdal Consta, Haldol, and Ativan as primary medications and did not
indicate that Haldol and Risperdal Consta would not be given concurrently. In addition, the order
authorized the requested testing as “essential tests and procedures.” Both the assistant state’s
attorney and respondent’s counsel signed the order, approving it “as to form.” The order was
limited to a 90-day duration.
¶ 12 The trial court denied respondent’s motion to reconsider, and this appeal followed.
¶ 13 II. ANALYSIS
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¶ 14 Respondent contends the medication order should be reversed because (1) the admission
order must also be reversed as it is predicated on an improperly entered admission order, and
(2) alternatively, the State’s petition and amended petition were facially deficient, the hearing was
held without proper notice, and the order does not conform with Whang’s testimony. According
to respondent, the State disregarded its statutory duty to ensure all petitions and orders were
properly prepared (405 ILCS 5/3-101(a) (West 2022)) and respondent’s trial counsel was
ineffective in failing to hold the State to its duty. We begin with respondent’s contention regarding
the facial sufficiency of the State’s petition.
¶ 15 The State concedes its petition was facially deficient and that respondent’s counsel’s failure
to seek dismissal of the complaint was ineffective assistance. We accept the State’s concession.
¶ 16 Respondents in mental health proceedings have a statutory right to counsel. In re Marcus
S., 2022 IL App (3d) 160710, ¶ 34; 405 ILCS 5/3-805 (West 2022). “This right to counsel includes
the right to effective assistance of counsel; anything less would render the statutory guarantee of
counsel a mere hollow gesture serving only superficially to satisfy due process requirements.”
(Internal quotation marks omitted.) Marcus S., 2022 IL App (3d) 160710, ¶ 34. We apply the
familiar standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), to claims of
ineffective assistance arising under the Mental Health Code: the respondent must show both that
(1) his counsel’s performance was deficient, and (2) counsel’s deficient performance prejudiced
him. Marcus S., 2022 IL App (3d) 160710, ¶ 34.
¶ 17 Section 2-107.1(a-5)(4) of the Mental Health Code sets forth seven requirements that must
be established before a court can order involuntary medication. 405 ILCS 5/2-107.1(a-5)(4) (West
2022). The State must establish
“(A) That the recipient has a serious mental illness or developmental disability.
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(B) That because of said mental illness or developmental disability, the recipient
currently exhibits any one of the following: (i) deterioration of his or her ability to function,
as compared to the recipient’s ability to function prior to the current onset of symptoms of
the mental illness or disability for which treatment is presently sought, (ii) suffering, or
(iii) threatening behavior.
(C) That the illness or disability has existed for a period marked by the continuing
presence of the symptoms set forth in item (B) of this subdivision (4) or the repeated
episodic occurrence of these symptoms.
(D) That the benefits of the treatment outweigh the harm.
(E) That the recipient lacks the capacity to make a reasoned decision about the
treatment.
(F) That other less restrictive services have been explored and found inappropriate.
(G) If the petition seeks authorization for testing and other procedures, that such
testing and procedures are essential for the safe and effective administration of the
treatment.” Id.¶ 18 In Marcus S., we considered whether the respondent’s counsel was ineffective in failing to
seek dismissal of a medication petition. Marcus S., 2022 IL App (3d) 160710, ¶ 37. The petition
in Marcus S., like the petition in this case, merely tracked the language of section 2-107.1(a-5)(4).
Id. We found the petition facially deficient, because Illinois is a fact-pleading jurisdiction and the
petition alleged mere conclusions and contained no supporting facts. Id. We further found the
respondent’s attorney’s failure to seek the petition’s dismissal constituted ineffective assistance
under Strickland. Id.6
¶ 19 Here, the petition was facially deficient. Just as in Marcus S., it alleged no facts to support
the statutory conclusions that respondent was subject to involuntary admission. Notably, these
proceedings were initiated only two months after this court issued a rather strong admonition in
Marcus S. that trial courts, state’s attorneys, and respondents’ attorneys must all do better in mental
health proceedings. Id. ¶ 51. In this case, the State violated its statutory duty to properly prepare
petitions (405 ILCS 5/3-101(a) (West 2022)) and respondent’s trial counsel was ineffective in
failing to seek the petition’s dismissal (Marcus S., 2022 IL App (3d) 160710, ¶ 37). Accordingly,
we reverse the trial court’s medication order. And because this issue is dispositive, we need not
address respondent’s other claims of error.
¶ 20 Finally, we note this appeal is moot because the medication order has expired. In re
Barbara H., 183 Ill. 2d 482, 490 (1998). Generally, we do not decide moot questions, render
advisory opinions, or consider issues where the result will not be affected regardless of how those
issues are decided. Id. at 491. Illinois recognizes exceptions to the mootness doctrine. One such
exception is the capable of repetition exception, which applies when (1) “the challenged action [is]
of a duration too short to be fully litigated prior to its cessation, and (2) “there [is] a reasonable
expectation that the same complaining party would be subjected to the same action again.”
(Internal quotation marks omitted.) In re Alfred H.H., 233 Ill. 2d 345, 358 (2009).
¶ 21 It is beyond question the first criterion of the capable of repetition exception is satisfied.
This issue could not have been fully litigated in this court before the 90-day medication order
expired. Id.¶ 22 The second criterion is also satisfied. Given respondent’s mental health history, she is
reasonably likely to again be subjected to involuntary medication proceedings. A petition is filed
in each and every case seeking involuntary medication under the Mental Health Code. 405 ILCS
7
5/2-107.1(a-5)(1) (West 2022). Thus, the facial sufficiency of a petition is at issue in every such
case. And here, Dr. Whang prepared the amended petition on a form which remains available on
the Department’s website, making it more likely that any future medication petition will suffer the
same deficiencies as the petition at issue in this case.
¶ 23 We note the State asserts it has implemented procedures since the Marcus S. case was
decided to ensure its petitions meet the requirements of Marcus S. We reject any suggestion,
however, that this renders the capable of repetition exception inapplicable in this case. First, the
State has not identified the procedures it has implemented to ensure form petitions prepared by
mental health professionals comply with the requirements of Marcus S. Moreover, we decided
Marcus S. on January 18, 2022, nearly two months before the medication petition was filed in this
case, and yet, respondent contends it suffers from the same defects as the petition in Marcus S.
Accordingly, we conclude the capable of repetition exception applies to respondent’s contention
regarding the sufficiency of the petition.
¶ 24 III. CONCLUSION
¶ 25 For the reasons stated, we reverse the judgment of the circuit court of Du Page County.
¶ 26 Reversed.
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