In Re Freddy Delatorre ( 2021 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
In re FREDDY DE LA TORRE
DANNY DE LA TORRE, UNPUBLISHED
November 9, 2021
Petitioner-Appellee,
v No. 356496
Washtenaw Circuit Court
FREDDY DE LA TORRE, LC No. 21-000125-MI
Respondent-Appellant.
Before: SWARTZLE, P.J., and SAWYER and LETICA, JJ.
PER CURIAM.
Respondent appeals as of right the probate court’s initial order after hearing on the petition
for mental health treatment that required him to be hospitalized for up to 60 days. On appeal,
respondent argues that the trial court erred by failing to comply with the statute requiring two
independent medical examinations. We affirm.
Petitioner, respondent’s brother, filed a petition for mental health treatment with the trial
court because he believed that respondent posed a danger to himself and others. Attached to the
petition were two clinical certificates, one from Dr. Fatin Nahi and one from Dr. Anjum Mujahid.
Both Dr. Nahi and Dr. Mujahid were psychiatrists and had examined respondent together when he
was brought into the hospital. Both doctors found that respondent suffered from paranoid
delusions and noted it in their respective clinical certificates. Following a hearing on the petition,
the trial court found that respondent’s judgment was impaired and that he needed treatment. The
trial court ordered respondent to be hospitalized up to 60 days and assisted through outpatient
treatment for up to 180 days. This appeal followed.
Respondent argues that the Mental Health Code, MCL 330.1001 et seq., requires that two
separate, independent examinations be conducted before a hearing can be held on a petition for
involuntary treatment. Specifically, respondent asserts that MCL 330.1435(4) requires that an
individual subject to a petition receive two examinations because it states “after each
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examination.” Therefore, according to respondent, it is clear that the statute refers to multiple
examinations. We disagree.
Because respondent did not preserve this issue by raising it before the trial court, this claim
is unpreserved. See Gen Motors Corp v Dep’t of Treasury, 290 Mich App 355, 386; 803 NW2d
698 (2010). This Court reviews unpreserved claims for plain error affecting substantial rights.
Kern v Blethen-Coluni, 240 Mich App 333, 336; 612 NW2d 838 (2000). “ ‘To avoid forfeiture
under the plain error rule, three requirements must be met: 1) the error must have occurred, 2) the
error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights.’ ” Id.,quoting People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Reversal is appropriate
when an error is so serious that it results in the conviction of an innocent defendant or when it
“affect[ed] the fairness, integrity or public reputation of judicial proceedings, independent of the
defendant’s innocence.” In re Utrera, 281 Mich App 1, 9; 761 NW2d 253 (2008) (quotation marks
and citations omitted; alteration in original).
This issue involves the interpretation of a provision of the Mental Health Code.
The primary goal of statutory construction is to determine and give effect to the
intent of the Legislature. The specific language of the statute is the first source for
determining the Legislature’s intent, and when the language of the statute is
unambiguous, the Legislature is presumed to have intended the meaning expressed
and judicial construction is not required or permitted.
Unless otherwise defined in the statute, words or phrases should be
accorded their plain and ordinary meanings, and technical terms should be
construed according to their peculiar meanings. Also, the reviewing court should
presume that every word has some meaning and should avoid a construction that
would render any part of a statute surplusage or nugatory. [Decker v Flood, 248
Mich App 75, 82; 638 NW2d 163 (2001) (citations omitted).]
The provision respondent cites simply does not apply in this case. It applies to cases in
which less than two clinical certificates are filed with the petition. See MCL 330.1435.1 In those
1
MCL 330.1435 states:
(1) If the petition is accompanied by 1 clinical certificate, the court shall
order the individual to be examined by a psychiatrist.
(2) If the petition is not accompanied by a clinical certificate, and if the court
is satisfied a reasonable effort was made to secure an examination, the court shall
order the individual to be examined by a psychiatrist and either a physician or a
licensed psychologist.
(3) The individual may be received and detained at the place of examination
as long as necessary to complete the examination or examinations, but not more
than 24 hours.
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cases, the probate court must order additional examinations. Id. In this case, the probate court
followed MCL 330.1434, which states:
(1) Any individual 18 years of age or over may file with the court a petition
that asserts that an individual is a person requiring treatment.
(2) The petition shall contain the facts that are the basis for the assertion,
the names and addresses, if known, of any witnesses to the facts, and, if known, the
name and address of the nearest relative or guardian, or, if none, a friend, if known,
of the individual.
(3) Except as provided in subsection (7), the petition shall be accompanied
by the clinical certificate of a physician or a licensed psychologist, unless after
reasonable effort the petitioner could not secure an examination. If a clinical
certificate does not accompany the petition, the petitioner shall set forth the reasons
an examination could not be secured within the petition. The petition may also be
accompanied by a second clinical certificate. If 2 clinical certificates accompany
the petition, at least 1 clinical certificate must have been executed by a psychiatrist.
(4) Except as otherwise provided in subsection (7) and section 455, a
clinical certificate that accompanies a petition must have been executed within 72
hours before the filing of the petition, and after personal examination of the
individual.
(5) If the individual is found not to be a person requiring treatment under
this section, the petition and any clinical certificate shall be maintained by the court
(4) After an examination ordered under subsection (1), the examining
psychiatrist shall either transmit a clinical certificate to the court or report to the
court that execution of a clinical certificate is not warranted. After each
examination ordered under subsection (2), the examining psychiatrist, or the
examining physician or licensed psychologist, as applicable, shall either transmit a
clinical certificate to the court or report to the court that execution of a clinical
certificate is not warranted.
(5) If 1 examination was ordered and the examining psychiatrist reports that
execution of a clinical certificate is not warranted, or if 2 examinations were
ordered and 1 of the examining physicians or the licensed psychologist reports that
execution of a clinical certificate is not warranted, the court shall dismiss the
petition or order the individual to be examined by a psychiatrist, or if a psychiatrist
is not available, by a physician or licensed psychologist. If a third examination
report states that execution of a clinical certificate is not warranted, the court shall
dismiss the petition.
(6) This section does not apply to a petition filed under section 434(7).
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as a confidential record to prevent disclosure to any person who is not specifically
authorized under this chapter to receive notice of the petition or clinical certificate.
(6) The petition described in this section may assert that the subject of the
petition should receive assisted outpatient treatment in accordance with section
468(2)(d).
(7) A petition that does not seek hospitalization but only requests that the
subject of the petition receive assisted outpatient treatment is not subject to
subsection (3) or (4).
In this case, petitioner filed a petition, which was accompanied by two clinical
certificates—each prepared by a psychiatrist—“after personal examination of the individual,”
within 72 hours before the filing of the petition. MCL 330.1434(3), (4). The petition was filed on
February 19, 2021. Both clinical certificates reflect that the two psychiatrists examined respondent
at 11:00 a.m. on February 18, 2021, the day before the petition was filed. MCL 330.1434 contains
no language requiring multiple examinations, and it contains no language indicating that it was the
Legislature’s intent to impose such a requirement. See SBC Health Midwest, Inc v Kentwood, 500
Mich 65, 72; 894 NW2d 535 (2017) (quotation marks and citation omitted; alteration in original)
(“We do not read requirements into a statute where none appear in the plain language and the
statute is unambiguous. It is not within the province of this Court to read therein a mandate that
the [L]egislature has not seen fit to incorporate.”). Accordingly, respondent fails to establish any
error, let alone plain error, occurred.2
Affirmed.
/s/ Brock A. Swartzle
/s/ David H. Sawyer
/s/ Anica Letica
2
Even if respondent established that an error occurred, his substantial rights were not affected.
See Utrera, 218 Mich App at 9. The two examining psychiatrists appeared to have completed
their certificates separately, evidenced by the different time stamps and different diagnoses
reflected on each.
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