In re C.G. , 2023 Ohio 4239 ( 2023 )

[Cite as In re C.G., 2023-Ohio-4239.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
In re C.G. Court of Appeals No. L-23-1007
Trial Court No. 2022 MHC 000250
2022 MHC 000253
DECISION AND JUDGMENT
Decided: November 22, 2023
*****
Carla B. Davis, for appellee.
Alex M. Savickas, for appellant.
*****
ZMUDA, J.
I. Introduction
{¶ 1} This matter is before the court upon appeal of the judgments of the Lucas
County Court of Common Pleas, Probate Division, ordering involuntary commitment for
a period of 60 days as the least restrictive alternative consistent with mental health
treatment goals, and ordering administration of medications for a period not to exceed 60
days. For the reasons that follow, we affirm the judgments.
II. Facts and Procedural History
{¶ 2} Appellant lives with her two daughters, aged 2 years and aged 6 months. On
December 5, 2022, appellant called 911, seeking help for herself and her children because
she believed a repairman sent by her landlord had contaminated her home with a pool of
chemicals that contained LSD. Throughout that day, police officers, rescue personnel,
and staff from the Zepf Center, a behavioral health center, came to appellant’s home,
investigated her claims, and eventually transported appellant to the emergency room,
where she was “pink slipped” and referred to St. Charles Hospital for a mental health
evaluation. Police took custody of appellant’s loaded handgun, and at the hospital,
security took possession of a bag of bullets appellant carried with her to the hospital.
{¶ 3} Dr. Rusheeth Thummalapally prepared the affidavit pursuant to R.C.
5122.11 to begin involuntary commitment proceedings, stating appellant was a
substantial risk of physical harm to herself and others, including the following narrative:
Patient is a 28-year-old female with no significant psychiatric history
but with history of cannabis use admitted for possible furthering psychosis.
Per report EMS was called into her home, by herself, after she was worried
that people were spraying her home with chemicals to harm her. Extremely
paranoid. When EMS approached her she was making bizarre statements
and was asking them to remove poisonous cats from the porch. Per EMS
reports patient was living in deplorable conditions with her 2 children in the
house. Patient reports that she has been smoking excess cannabis lately.
2.
Patient continues to be extremely paranoid that people are poisoning her
food. She was describing at length on how some of the people are sneaking
into her room and stealing her socks and placing random things in her
room. She continues to make statements that people are trying to poison her
environment. Continues to be extremely delusional and paranoid that
people are trying to harm her and poison her. Offered her Risperdal
however she is very hesitant to try any antipsychotic medications. Patient
will need dual commitment to NOPH. NOPH for stabilization and safety
due to long term care of needs that may arise.
{¶ 4} Appellant requested drug testing at the hospital, for herself and her children,
alleging they were all drugged with LSD by an intruder. Testing revealed appellant was
positive for marijuana, and the record does not indicate whether the children were also
tested. Appellant admitted to using marijuana, and Dr. Thummalapally, appellant’s first
treating physician, diagnosed her with acute psychosis with cannabis use a possible
exacerbating factor. Dr. Maloney consulted on the case, providing a second opinion
regarding medication. Prior to the hearing, Dr. Maloney assumed primary care of
appellant after Dr. Thummalapally became unavailable.
{¶ 5} On December 8, 2022, the matter proceeded to hearing. The hearing was
bifurcated into the involuntary commitment hearing and the court-ordered medication
hearing.
3.
{¶ 6} In the involuntary commitment hearing, the Lucas County Mental Health
and Recovery Services Board called Dr. Maloney as its sole witness. The parties
stipulated to Dr. Maloney’s qualifications prior to his testimony.
{¶ 7} Dr. Maloney testified that appellant was initially under primary care of Dr.
Thummalapally, and he had the opportunity to evaluate appellant in order to provide a
second opinion. Dr. Maloney testified he met with appellant the morning before the
hearing and reviewed the records, which he testified were kept in the ordinary course of
hospital business. Based on his review of records and his evaluation of appellant, Dr.
Maloney testified that EMS transported appellant “secondary to bizarre behavior” that
included “delusional thoughts, thought process, rapid/pressured and tangential speech”
Police also confiscated a loaded handgun from appellant, prior to transport, which
appellant had in the home she shared with her two young children who were 2 years old
and 5 months old. Police reported appellant was “living in dilapidated conditions” and
her children were naked, with appellant “very concerned that both she and her children
were being drugged by somebody that was coming into the house.”
{¶ 8} Dr. Maloney testified that the children were safe “at present time,” in the
care of Children Protection Services, but the dilapidated condition of the home, combined
with appellant having a loaded weapon to defend against “perceived threats” raised
concerns. Dr. Maloney could not confirm any threats, but testified:
I have no investigation that’s complete. What I do know is that when
I spoke to [appellant] about them, and my understanding from family is that
4.
[appellant] has called police out to the house on numerous occasions,
there’s no one ever there. She spoke with me on a second opinion
evaluation stating that this person, at one point that other people couldn’t
see the person and that the person was throwing like that liquid drug all
over their skin and that it was absorbing into their system through the skin.
So I don’t know that – I couldn’t speak to whether or not there’s been an
individual in the house. I do believe when I spoke with her this morning
that there’s some reality based potential that somebody from the apartment
complex may have been in the house dealing with a mold issue at one
point. * * * [T]here may have been some individual in the apartment
building dealing with a mold issue. That’s difficult to know whether that
was a reality based statement or not but the idea of somebody, that other
people couldn’t see throwing liquid drugs on her and her children is fairly
farfetched.
As to a diagnosis, Dr. Maloney stated:
I think she remains delusional and paranoid. I think she has some
thought processes that at times are tangential or disconnected. She can be
redirected to linear completion of thought with some effort but it’s very
easy to go off on tangents. She is of the mindset that she has no mental
health problem.
5.
She is – when we were discussing the risk benefits and alternatives
to treatment including medications, she was very concerned that
medications were chemicals. We kind of talked about how many things are
chemicals, that doesn’t make them bad, water is a chemical, then it kind of
shifted to man-made chemicals and just kind of being adamantly opposed
to taking any medication whatsoever.
But at the heart of that was the belief that she does not have a mental
health problem and that there’s nothing wrong. There does in my opinion
appear to be almost a fear of taking medications so it was not able to be
demonstrated that there was a rationality behind that other than it being
man-made there does seem to be a willingness to experiment with
substances in nature such as mushrooms and psychedelics that are natural –
naturally occurring, marijuana, as long as they’re from a plant occurring
naturally in nature. At present time I do not believe that she is still
operating in a reality based mindset and I think many of the same risks that
were demonstrated on her admission process still exists as she’s been
untreated and she’s not willing to take any medications right now.
{¶ 9} Dr. Maloney added that treatment is critically important for the safety of the
children “in terms of neglect of care” as a result of appellant’s condition. He also
testified that treatment is necessary because appellant poses a risk to others, based on
appellant’s perception that someone is poisoning her and breaking into her home,
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combined with appellant’s possession of a loaded gun as a defense to these types of
perceived threats.
{¶ 10} Appellant’s counsel questioned Dr. Maloney on cross-examination, and Dr.
Maloney acknowledged that bizarre behaviors could potentially result from poisoning or
drugs. However, he referred to the medical chart, which indicated appellant was positive
only for marijuana. Furthermore, Dr. Maloney indicated poisoning or drugs did not
“explain the persistence of [appellant’s] beliefs” or the rotating, inconsistent story told by
appellant over time. Dr. Maloney testified that drugging or intoxication could cause
immediate bizarre behavior, “but that would resolve quickly over time” if the issue was
merely a substance or poisoning, and that did not happen in appellant’s case. Dr.
Maloney also acknowledged that appellant was managing in a controlled environment
and was not violent or threatening with any staff or other patients, but this did not
alleviate his concerns for her ability to care for herself and her children in an uncontrolled
environment without proper treatment. Dr. Maloney also stated treatment is necessary to
ensure appellant does not lose custody of her children, a possibility if appellant’s
conditions continue untreated.
{¶ 11} Appellant then testified, after being advised of her right to not testify and
waiving that right.
{¶ 12} Appellant testified she posed no risk to herself or others, explaining she
asked police to take the loaded gun out of her house, which she kept “in case somebody
tries to come in here and rob my home.” Appellant argued “it is usually loaded but I
7.
never have it in the top chamber and I always have it either inside my bra or in a lock box
or – and I gave [police] the lock box.” As to the bullets, appellant explained “I only took
the bullets because I didn’t want people going in my house and robbing them and having
my fingerprints and I asked security to take them at the hospital[.]”
{¶ 13} Regarding events prior to commitment, appellant testified at length, stating
in part:
So what happened when I called EMS was, originally there has been
some old problems in my house. Repeatedly I’ve had to ask maintenance
to come in and to solve the problem. So this man comes in my home. He’s
a tall six foot male, black. He has like kind of a high pitched voice at times.
He was wearing a LMHA outfit. I’m not sure he was speaking to someone
outside the window, communicating back and forth with the man saying
this kind of mold or that.
I’ve put in several work orders through LMHA which is
government, low income where I live and that’s how I raise my children by
myself with my dog who is a support dog for my heart condition. He’s now
in canine control waiting for me. I do have two heart conditions. So this
man comes in the house, and I asked him to take care of the mold problem
upstairs. I said – I remember jokingly saying she’s watching you, talking
about my child and he laughed a little bit.
8.
I literally ran down the steps, grabbed, I don’t know what it was I
grabbed at the time, I had to go down the steps for two seconds. I ran right
back up the steps. By the time I got upstairs, the guy was already coming
around the corner. I looked on the floor, there was a huge puddle and
literally my daughter’s outfit was soaked. She was wearing – that’s why she
didn’t have clothes on because I took them off and gave them baths. They
had diapers on when the police were there.
{¶ 14} After calling paramedics, appellant testified she told police about prior
incidents with the man sent to work in her home, including her suspicion the man had
been “in my food earlier in the week doing something really odd in my kitchen.”
Appellant testified she felt the need to watch him and stayed “home for a few days
wondering if he was being odd, if he was going to come back.” When the repairman
returned, appellant suspected he used her toothbrush in his work and then put the
toothbrush in her daughter’s mouth, stating, “I don’t know, but when I came upstairs, my
daughter’s eyes were the size of golf balls. She couldn’t talk.”
{¶ 15} Appellant testified that she called for help, believing her children
had been drugged, stating:
My children are very intelligent and I take time and I live in poverty
to take care of them by myself. I lived on so much to care for my children
and this is heartbreaking because the call I made to the EMS and to the
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police under cameras and everything, everyone, the entire ecosystem, the
workers in every department is off balance.
I make a call, I said hey, my children and I have been drugged, we
need help getting to the hospital. They come in and say they look okay,
they leave. Did that solve the problem? Did that help us get to the hospital
while we were all messed up? They said you look like you’re messed up,
how about we refer you to the Zepf Center. So the Zepf Center comes by
and talks and I go this is not getting better. I make another call and say can
you please give us a ride to the hospital, I don’t want to drive. I can’t get a
DUI. I had a DUI when I was 19.
I haven’t had one since and I don’t want another one and I didn’t
want to drive or hurt my children in the car so I called back and said please
help us get to the hospital. I said we have been drugged and we need tested
for LSD. They took us to the hospital. The hospital at St. V.’s didn’t test me
and my children for LSD. They said oh you’re fine, it’s just marijuana
coming up.
{¶ 16} Appellant then provided detailed testimony regarding her purchase of
marijuana in Michigan. She also testified that marijuana was not the problem, but
instead, the problem concerned the “LSD that was not tested for,” which appellant
believed was part of larger issues at the hospital. Appellant testified, “The problem is,
10.
there’s a serious lawsuit on [the hospital] across all this because they didn’t run the
proper tests.”
{¶ 17} Appellant’s testimony regarding events then returned to her gun, and she
addressed her reasons for owning a firearm. Appellant stressed that she willingly
surrendered her loaded gun to police. She indicated she “worked hard for” her firearm
and purchased it as a tool after “someone shot a gun off outside my house three days
before my first daughter was born.” Appellant also stated she kept a gun because she has
“a fear of water and not being able to get out of the car to shoot the window out, or, let’s
say someone gets in my car --.” Appellant argued she would do whatever was suggested
by the court, if only she could obtain immediate release from the hospital. Appellant
testified that hospitalization was “not good for my health” and stated, “The food is not
proper. I look like I’m dying. I literally was just drugged.” Appellant further argued she
was not allowed to take medication because of her heart condition, and could take only
vitamins, stating medications “break my body down” and “kill me faster.”
{¶ 18} The Board’s counsel then questioned appellant on cross-examination,
limiting questioning to a single question and response as follows:
Q: [D]o you agree with the doctor’s diagnosis that you suffer from a
mental illness?
A: No, not at all. No, I’m coming down off serious drugs. I was
drugged and that is the truth. I was drugged by a man who came in my
home and drugged my children, my children. That man is still out there.
11.
That is my point. This is more serious than trying to say some girl is mental
because she looks unhealthy.
{¶ 19} At the conclusion of testimony, the Board asked the probate court to adopt
the doctor’s recommendation for a period of treatment up to 60 days. Appellant’s counsel
waived closing argument regarding commitment, stating, “I think [appellant’s] testimony
was sufficient.”
{¶ 20} The probate court found by clear and convincing evidence, based on Dr.
Maloney’s testimony, that appellant was a mentally ill person subject to court order as
defined by R.C. 5122.01(B), and ordered a commitment period not to exceed 60 days as
the least restrictive alternative available.
{¶ 21} The probate court then convened hearing as to court-ordered medication.
{¶ 22} Again, Dr. Maloney testified as the Board’s sole witness. He testified he is
the treating psychiatrist for appellant, after taking over the care from Dr. Thummalapally.
Dr. Maloney testified he reviewed appellant’s lab work as documented in her medical
charts and records, kept in the ordinary course of business. He further testified appellant
suffers from acute psychosis and is not compliant with the treatment plan, which includes
medications. Finally, Dr. Maloney testified that appellant’s prognosis was poor without
prescribed medications, and with medications, he indicated rated appellant’s prognosis as
fair.
{¶ 23} The Board’s counsel then introduced the medication packet, filed in the
case, listing proposed medications. Dr. Maloney testified that the list was not meant to be
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administered all at once, but the treatment plan involved using “one medication and
titrat[ing] to affect” to determine the most effective medication. Dr. Maloney indicated
he discussed the medication with appellant but determined “[s]he lacks capacity based on
my assessment from the standpoint of number one, she does not believe that she has a
mental illness and therefore she is not able to adequately weigh the actual risks and
benefits of compliance with medication versus noncompliance with medication so she’s
lacking some key elements of capacity.” He testified that the benefits of forced
medication outweighed the risks to appellant, as stated in the opinion he offered as a
second opinion to Dr. Thummalapally’s original assessment. The medication packet was
admitted without objection.
{¶ 24} On cross-examination, Dr. Maloney testified that appellant had not taken
any of the proposed medications, and none of the medications would interfere with or
worsen her heart condition, although there were potential side effects that would need
monitoring as he administered the medications. He reiterated that he discussed
medication with appellant, describing appellant’s views as follows:
Her response was very much originally on the term of chemicals,
putting chemicals into her body and then we sort of narrowed that down to
manmade chemicals. I can tell you that the risk of many of the substances
that [appellant] has ingested of her own freewill, are substantially higher
risk than the medications that we’re talking about with her underlying
medical conditions but there seems to be a delusional belief that any
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manmade chemicals are higher risk than those that could be found in
nature.
So her response is one of simply an absolute avoidance of any
medication that we would have to offer. I try to engage in a discussion with
her even using Tylenol as an example as Tylenol is from tree bark as
originally discovered in tree bark and how that’s a medication now, though
it’s manmade now and led us down the path of pursuing any medications
that came from tree bark. I said I don’t have any other medications to offer
you for this particular illness that would come from tree bark so it was just
kind of very focused on manmade chemicals.
{¶ 25} At the conclusion of Dr. Maloney’s testimony, appellant testified, again
waiving her right to not testify.
{¶ 26} Appellant outlined her aversion to medications, explaining they were
detrimental to her health, stating,
Look at me. Okay. Please, look at me. Look at my face how it’s all
sunk in. This is what drugs and chemicals have done to me, Okay. This
what drugs do to people. Not just regular drugs, street drugs, I’m talking
pharmaceutical drugs.”
She also disputed Dr. Maloney’s view that Tylenol is natural, arguing Tylenol is no
longer just from bark, but contains chemicals. She then testified she would be willing to
take CBD pills, which are natural, but the hospital does not offer that option. Appellant
14.
also offered other options she would be willing to pursue, such as “offering up myself to
drug and counseling classes, offering up myself to drug testing as long as you would
like,” if only the court would release her so she could get her dog back and have
Christmas with her children.
{¶ 27} When asked if she had been taking any of the medications described by Dr.
Maloney, appellant testified, “No, I am not willing to take any of these medicines.”
However, her testimony also suggested the hospital had already forced her to take
medications. She testified that she was being held against her will “and held down and
my body internally shut down.” She also testified she has had difficulty going to the
bathroom “ever since they put that drug in my system” and the drug “slowed down,
internally shut down my insides.” Appellant then attributed drugging to the hospital,
stating:
This isn’t all from that man, it’s from [the hospital]. I was under
police cameras too and I said I do not want that and they forced me to take
it. He said hold my hand, he made me take it anyway but that still doesn’t
prove that – they were forcing me to take the medication. They were
forcing me – they held me down, they strapped me down, took my children
from me, my children were crying in the background, I said you haven’t
tested us for LSD. My children could leave here and withdraw and die, you
did not test us.
15.
{¶ 28} At the conclusion of appellant’s testimony, counsel for the Board declined
to ask any questions on cross-examination. The probate court then asked appellant about
her children and her views on medication for her children. Appellant testified that she
administered Tylenol in the past, but would no longer give them medication, believing
healthy food, rest, and exercise was sufficient treatment for any ailments, even if a
pediatrician advised administering medication.
{¶ 29} Upon consideration of the testimony and evidence, the probate court found
appellant lacked capacity to give consent by clear and convincing evidence, and ordered
medication for a period not to exceed 60 days. After the court’s decision from the bench,
appellant voiced her displeasure with that decision, leading to the following exchange
with the magistrate:
[Appellant]: I will give them Tylenol if I have to. If you want me to
give the children Tylenol, I’ll give them Tylenol.
***
I’m seriously worried that you guys want me to force people and
want people to be forced to take medication and call them mentally ill
because they were drugged or they look unhealthy.
The Court: Is there anything else?
[Board Counsel]: No, your honor.
[Appellant’s Counsel]: No, your Honor.
[Appellant]: I need another lawyer involved.
16.
The Court: [C.G.], I was going to tell you, if you get a lawyer that
comes in and files something I will take a look at it, okay, but you’re
responsible for finding your own lawyer. The court has appointed you one,
okay.
[Appellant]: Okay. So we have court next week again?
The Court: No, I need a lawyer of your choosing to file something
and if that happens then we may have court next week. It depends on if you
can get a lawyer.
The magistrate’s decision included the following language in bold type:
Pursuant to Sec. 5122.15(J) this order shall take immediate effect.
Within fourteen days of the making of an order by a magistrate a party
may file written objections to the order with the court.
{¶ 30} The judge immediately adopted the magistrate’s decision, effective
December 8, 2022, with the judgment entry including the following language:
Pursuant to Civ. Rule 53(D)(4)[e](i), this Judgment is being made as
a permanent order without waiting for timely objections by the parties and
shall take immediate effect. If timely objections are filed to the Magistrate’s
Decision, the objections shall operate as an automatic stay of execution of
judgment until further order of this Court.
Neither appellant nor her attorney filed any written objections within fourteen days.
17.
{¶ 31} On January 6, 2023, appellant filed a pro se notice of appeal of the
judgments, with a request for appointed counsel, and counsel was appointed for the
appeal.
{¶ 32} On February 23, 2023, after noting the failure of trial counsel or appellant
to file written objections to the magistrate’s decisions, appellate counsel attempted to
preserve the issue on appeal by filing a motion for leave to file objections in the probate
court. The probate court denied leave on March 2, 2023.
III. Assignments of Error
{¶ 33} Appellant now appeals the judgment of the probate court, assigning the
following as error:
1. The court erred in finding that the Board established that [appellant] was
mentally ill by clear and convincing evidence.
a. Documents [were] not authenticated, witness had no personal knowledge.
b. The statutory definition of mental illness was not met by the evidence
presented.
c. The court did not properly follow the statute in considering whether
[appellant’s] involuntary commitment was the least restrictive alternative.
d. A magistrate cannot issue a judgment entry.
2. The court erred in finding the Board established that [appellant] lacked capacity
such that she should be forced to take medication.
18.
{¶ 34} As an initial matter, we note appellant asks this court to consider her
attempt to file objections in the trial court, pursuant to Civ.R. 53(D), and address the
merits of her assignments of error as if she had preserved the issues for appellate review.
However, appellant filed her motion seeking leave to object after she had perfected her
appeal to this court. Therefore, the motion seeking leave in the probate court sought
relief after that court was divested of jurisdiction to proceed. The law is settled regarding
a trial court’s jurisdiction over a matter, once appealed. “[O]nce an appeal is perfected,
the trial court is divested of jurisdiction over matters that are inconsistent with the
reviewing court’s jurisdiction to reverse, modify, or affirm the judgment.” State ex rel.
Rock v. School Emp. Retirement Bd., 96 Ohio St.3d 206, 2002-Ohio-3957, 772 N.E.2d
1197, ¶ 8.
{¶ 35} Appellant acknowledges that her trial counsel failed to file objections to the
magistrate’s decision. Even so, she raises substantive challenges to the magistrate’s
findings as to both commitment and medication, and further argues a procedural error,
asserting the judgment was improper because a magistrate, rather than the judge of the
probate court, entered judgment.
{¶ 36} For ease of discussion, we address the assignments of error out of order.
A. Magistrates may preside over hearings and enter decisions pursuant to
R.C. 5122.15(J).
{¶ 37} In the fourth issue contained within appellant’s first assignment of error,
she argues a magistrate may not enter judgment. Although the magistrate’s decision was
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captioned as a “judgment entry,” appellant’s procedural challenge misstates the record in
this case, as the judge of the probate court entered judgment, adopting the magistrate’s
decision. To the extent that the magistrate presided over the matter, moreover, we find
appellant’s argument without merit as both Civ.R. 53 and R.C. 5122.15 permit a
magistrate to preside over hearing and prepare a written decision in the proceedings. See
State ex rel. Franks v. Ohio Adult Parole Auth., 159 Ohio St.3d 435, 2020-Ohio-711, 151
N.E.3d 606, ¶ 9, citing Civ.R. 53(A) and (C)(1); R.C. 5122.15(J) and (K). Both Civ.R.
53 and R.C. 5122.15, moreover, provide for written objections to challenge the
magistrate’s factual findings. See Civ.R. 53(D)(3)(a)(i) and (iii); R.C. 5122.15(J).
{¶ 38} In addition to the authority granted to a magistrate to preside over hearing,
the magistrate had authority and was required to put the decision in writing, with that
decision to have immediate effect. R.C. 5122.15(J) expressly provides:
A referee appointed by the court may make all orders that a judge
may make under this section and sections 5122.11 and 5122.141 of the
Revised Code, except an order of contempt of court. The orders of a referee
take effect immediately. Within fourteen days of the making of an order by
a referee, a party may file written objections to the order with the court. The
filed objections shall be considered a motion, shall be specific, and shall
state their grounds with particularity. Within ten days of the filing of the
objections, a judge of the court shall hold a hearing on the objections and
may hear and consider any testimony or other evidence relating to the
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respondent's mental condition. At the conclusion of the hearing, the judge
may ratify, rescind, or modify the referee's order.
R.C. 5122.15(J). Thus, the decision entered by the magistrate, and adopted by the judge
of the probate court, was not defective. Furthermore, the magistrate properly addressed
the requirement for written objections with appellant at the end of her hearing, in order to
merit further review and possible hearing on any objections, and included the same notice
within the written entry.
{¶ 39} Therefore, because R.C. 5122.15(J) permitted the magistrate to hear the
matter and enter a written decision, and the judge immediately adopted that decision in a
judgment entry, we find no merit in appellant’s argument regarding the fourth issue
raised within the first assignment of error.
B. Appellant waived all but plain error on appeal.
{¶ 40} As to appellant’s substantive challenges to the probate court judgments, she
waived all but plain error review on appeal by failing to file written objections within the
time permitted by Civ.R. 53(D) and R.C. 5122.15(J). (Citations omitted) Franks at ¶ 9;
see also In re Kister, 194 Ohio App.3d 270, 2011-Ohio-2678, 955 N.E.2d 1029 (4th
Dist.), ¶ 19. The parties do not address whether the criminal or civil plain error standard
applies, but the statute governing commitment provides for application of the Civil Rules
of Procedure “to the extent they are not inconsistent” with the statute. In re Kister, at ¶
19, fn 1, citing R.C. 5122.15(A)(15).
21.
Although in criminal cases “[p]lain errors or defects affecting
substantial rights may be noticed although they were not brought to the
attention of the court,” Crim.R. 52(B), no analogous provision exists in the
Rules of Civil Procedure. The plain error doctrine originated as a criminal
law concept. In applying the doctrine of plain error in a civil case,
reviewing courts must proceed with the utmost caution, limiting the
doctrine strictly to those extremely rare cases where exceptional
circumstances require its application to prevent a manifest miscarriage of
justice, and where the error complained of, if left uncorrected, would have a
material adverse effect on the character of, and public confidence in,
judicial proceedings.
(Citations omitted) Goldfuss v. Davidson, 79 Ohio St.3d 116, 121, 679 N.E.2d 1099(1997).
{¶ 41} The Board addressed the matter under the criminal plain error standard,
arguing that there was no obvious error that affected the outcome of the proceedings,
requiring reversal to correct a manifest miscarriage of justice. Appellant did not address
plain error at all in argument, but merely asserted plain error required reversal.
{¶ 42} In addressing plain error on appeal, we may only reverse in “exceptional
circumstances where error, to which no objection was made at the trial court, seriously
affects the basic fairness, integrity, or public reputation of the judicial process * * *.” In
re Alyssa C., 153 Ohio App.3d 10, 2003-Ohio-2673, 790 N.E.2d 803, ¶ 35 (6th Dist.),
22.
quoting Goldfuss at 122-123. Thus, even if “we see significant difficulties in the
evidence supporting many of the magistrate’s findings and conclusions,” such difficulties
do not automatically rise to the level of plain error. In re Alyssa C. at ¶ 36. To
demonstrate plain error, appellant must identify “(1) a deviation from a legal rule, (2) that
the error was obvious, and (3) that the error affected the basic fairness, integrity, or public
reputation of the judicial process and therefore challenged the legitimacy of the
underlying judicial process.” State v. Morgan, 153 Ohio St.3d 196, 2017-Ohio-7565, 103
N.E.3d 784, ¶ 41, citing Goldfuss at 121.
1. Dr. Maloney had personal knowledge as one of the treating
physicians, testifying to records he identified as kept in the ordinary
course of hospital business.
{¶ 43} In the first issue raised within her first assignment of error, appellant argues
that Dr. Maloney lacked personal knowledge, necessary for testifying, and that the
exhibits were not properly authenticated. As to Dr. Maloney’s personal knowledge,
appellant appears to argue that Dr. Maloney must create the entire medical record or
participate in treatment as the primary physician for the entirety of the care in order to
possess the requisite personal knowledge necessary to authenticate the records and
provide testimony, but cites to no authority in support of this proposition. As Dr.
Maloney either consulted or provided primary care during the period leading up to the
hearing, we find no error based on a lack of personal knowledge. We also find no error
regarding authentication of exhibits, admitted at the hearing.
23.
{¶ 44} Authentication of evidence is governed by Evid.R. 901, and requires the
proponent of the evidence to demonstrate “that the matter in question is what its
proponent claims.” Evid.R. 901(A). Appellant raised no objection to admission in the
probate court, limiting our review to a plain error analysis. As previously noted,
appellant must demonstrate obvious error, relative to authentication, and plain error
applies in only “exceptional circumstances where error, to which no objection was made
at the trial court, seriously affects the basic fairness, integrity, or public reputation of the
judicial process[.]” In re Alyssa C. at ¶ 35, quoting Goldfuss at 122-123.
{¶ 45} In challenging authentication, appellant does not argue her medical records
were not the same records kept by the hospital in the ordinary course of business. She
also does not address Dr. Maloney’s testimony, indicating his familiarity with the records
based on his initial consultation and later treatment of appellant. The requirement of
authentication under Evid.R. 901(A), furthermore, requires only a prima facie showing of
authenticity, and “is not on a par with more technical evidentiary rules, such as hearsay
exceptions, governing admissibility.” (Citation omitted) State v. Gibson, 6th Dist. Lucas
Nos. L-13-1223, L-13-1222, 2015-Ohio-1679, ¶ 45.
{¶ 46} The threshold for authentication is very low, and “reflects an orientation of
the rules toward favoring the admission of evidence.” State v. Giles, 6th Dist. Lucas No.
L-20-1075, 2021-Ohio-2865, ¶ 31, quoting State v. Jones, 6th Dist. Lucas No. L-05-
1232, 2007-Ohio-563, ¶ 54. The standard for admission, moreover, “does not require
24.
conclusive proof of authenticity.” Giles at ¶ 31, quoting State v. Jaros, 6th Dist. Lucas
No. L-10-1011, 2011-Ohio-5037, ¶ 15.
{¶ 47} Here, Dr. Maloney identified the records as those kept by the hospital in the
ordinary course of business. Dr. Maloney testified regarding his participation in
appellant’s care, first in offering a second opinion, and later, in assuming her primary
care. He also testified regarding his review of the record, which he referenced as part of
his testimony. The requirement for authenticity addresses identity, or that the document
is what the proponent claims. Evid.R. 901(A).
{¶ 48} Considering the record in this case, we find no obvious error in the
admission of documents based on authentication. Appellant, furthermore, fails to
demonstrate this is the exceptional case, requiring reversal for plain error based on
admission of documents. We therefore find no merit to appellant’s argument regarding
the first issue, raised within the first assignment of error.
2. The probate court did not err in finding appellant was a person with a
mental illness subject to court order, based on the statutory definition.
{¶ 49} In the second issue raised within her first assignment of error, appellant
argues the “factual basis for whether [she] met the definitions of mental illness did not
reach the clear and convincing standard, under any of the three (3) possible categories
alleged in the affidavit of mental illness[.]” In challenging the magistrate’s factual
findings on the issue, appellant argues the evidence did not satisfy the requirement of
clear and convincing evidence because the testimony could have been construed
25.
differently, in appellant’s favor. Thus, appellant primarily challenges the magistrate’s
findings of fact, as adopted by the judge, without first asserting objections to the findings
in the probate court.
{¶ 50} Appellant’s failure to object to the magistrate’s findings prevent review of
the findings on appeal. (Citations omitted) In re Estate of Stotz v. Stotz, 6th Dist.
Sandusky No. S-22-014, 2023-Ohio-663, ¶ 19. Therefore, appellant must demonstrate
that the probate court deviated from a legal rule or committed an obvious error, affecting
the integrity of the proceedings. In re Estate of Stotz at ¶ 20.
{¶ 51} “It is well recognized that an involuntary civil commitment constitutes a
significant deprivation of liberty requiring due-process protection.” In re Miller, 63 Ohio
St.3d 99, 101, 464 N.E.2d 530 (1992), citing Addington v. Texas, 441 U.S. 418, 425, 99
S.Ct. 1804, 60 L.Ed.2d 323 (1979); In re Burton, 11 Ohio St.3d 147, 151, 464 N.E.2d
530 (1984). Therefore, courts must follow the specific procedures set forth in R.C.
Chapter 5122 to ensure a “patient’s due-process rights receive adequate protection.” Id.{¶ 52} For purposes of hospitalization, the law first defines a mental illness as a
“substantial disorder of thought, mood, perception, orientation, or memory that grossly
impairs judgment, behavior, capacity to recognize reality, or ability to meet the ordinary
demands of life.” R.C. 5122.01(A). To determine a person is mentally ill and subject to
court order, the probate court must find at least one subsection under R.C. 5122.01(B)
applies, which lists “categories of adverse consequences that a person’s mental illness is
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likely to engender.” State v. Shepard, 13 Ohio App.3d 389, 392-393, 469 N.E.2d 1040(6th Dist.1984).
{¶ 53} Appellant challenges the evidence demonstrating the Board satisfied the
definition of a mentally ill person “subject to court order,” within the meaning of R.C.
5122.01(B). The statutory definition provides, in pertinent part:
(B) “Person with a mental illness subject to court order” means a
person with a mental illness who, because of the person's illness:
(1) Represents a substantial risk of physical harm to self as
manifested by evidence of threats of, or attempts at, suicide or serious self-
inflicted bodily harm;
***
(3) Represents a substantial and immediate risk of serious physical
impairment or injury to self as manifested by evidence that the person is
unable to provide for and is not providing for the person's basic physical
needs because of the person's mental illness and that appropriate provision
for those needs cannot be made immediately available in the community;
(4) Would benefit from treatment for the person's mental illness and
is in need of such treatment as manifested by evidence of behavior that
creates a grave and imminent risk to substantial rights of others or the
person;
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{¶ 54} In making a determination whether a person is a “mentally ill person”
under the statute, courts apply a “totality of the circumstances” test, balancing “the
individual’s right against involuntary confinement in deprivation of his [or her] liberty,
and the state’s interest in committing the emotionally disturbed.” In re Burton at 149.1
While the statute grants courts broad discretion to consider an individual’s history in
determining the present mental condition, some factors for consideration, set forth in
Burton, include the risk of physical harm to self or others, the medical testimony
regarding the present condition of the person, whether the person has insight into their
condition so that they will avail themselves of treatment, the grounds for commitment
stated in the affidavit, and any past history that indicates the person’s potential
compliance with treatment. Burton at 149-150.
{¶ 55} In his affidavit of illness, initiating the proceeding, Dr. Thummalapally
specified that appellant met the definition of a mentally ill person based on R.C.
5122.01(B)(1), (3), and (4). At hearing, Dr. Maloney testified regarding factors under
R.C. 5122.01(B)(3) and (4), demonstrating appellant was not providing for her basic
1
While Burton construed a former version of R.C. 5122.01, using the phrase “mentally ill
person subject to hospitalization,” and the new version uses the phrase “mentally ill
person subject to court order” and adds an additional provision under R.C. 5122.01(B)(5),
other jurisdictions continue to apply the totality of the circumstances test articulated in
Burton, finding the analysis instructive. See, e.g., State v. McNichols, 2020-Ohio-2705,
154 N.E.3d 125, ¶ 16 (4th Dist.), citing In re C.J., 12th Dist. Butler No. CA2019-01-013,
2019-Ohio-4403, ¶ 19; In re R.T., 10th Dist. Franklin No. 17AP-288, 2019-Ohio-618, ¶
13 (additional citation omitted). See also State v. Sims, 2022-Ohio-3365, 197 N.E.3d 14,
¶ 47 (3d Dist.); State v. Weaver, 9th Dist. Medina No. 17CA0092-M, 2018-Ohio-2998, ¶
44.
28.
physical needs and exhibited behavior that created a grave and imminent risk to
substantial rights of others or herself.
{¶ 56} Dr. Maloney testified that appellant suffered from acute psychosis, a
substantial disorder of thought, and without treatment, her prognosis was poor. Dr.
Maloney also noted that appellant was behaving bizarrely, and police found her living in
“dilapidated conditions” with a loaded handgun to defend against perceived threats. He
indicated treatment was critically important “not just for the safety of the children but
also so that [appellant] can remain in custody of the children and hopefully be a mother to
the children,” with loss of custody reasonably possible should appellant’s condition
remain untreated. Dr. Maloney further noted that, in addressing the risks and benefits of
the proposed treatment, appellant resisted medications in favor of “natural” substances
like marijuana and – more significantly – she maintained the belief that there was nothing
wrong and that she did not have a mental health problem.
{¶ 57} Upon consideration of the evidence, the probate court found appellant met
the definition of a mentally ill person subject to court order as defined by R.C.
5122.01(B), without specifying a subsection. Appellant challenges this conclusion, not
based on the probate court’s application of the law to the facts, but based on disagreement
with the factual findings. In doing so, appellant argues her own interpretation of the facts.
{¶ 58} Appellant suggests the probate court misidentified the issue, failing to see
she was just a parent seeking medical care for her children, with the hospital failing to
provide that care. Appellant explains her tangential speech and delusional behavior as
29.
arising, in part, from her distress over the poisoning of her children, arguing the hospital
failed to conduct any testing of her children. However, appellant cites to no evidence in
the record supporting this conclusion, with the record silent as to whether the hospital
administered any tests to her children. The only evidence of drug testing indicated
appellant’s own drug screen, which identified only marijuana use. Additionally, as to the
firearm, appellant argues she kept it locked away, ignoring her own testimony that she
also carried it on her person, and police confiscated the gun from her at a time she
exhibited signs of delusion and paranoia.2
{¶ 59} While the probate court did not specifically identify a subsection under
R.C. 5122.01(B), appellant does not dispute the underlying facts, merely offering a
different interpretation of those facts. Furthermore, the statutory definition is met by
demonstrating satisfaction with at least one of the categories in subsections (B)(1) – (4).
In re Boggs, 50 Ohio St.3d 217, 219, 553 N.E.2d 676 (1990). Considering the facts in
this case, we note that similar facts have been deemed sufficient as competent credible
evidence supporting involuntary commitment.
{¶ 60} For example, in In re K.W., the Tenth District Court of Appeals considered
commitment appropriate pursuant to R.C. 5122.01(B)(3), where the person exhibited
delusional behavior and, as a result of her delusions, refused to eat because she believed
2
As to the circumstances in which police took custody of the firearm and ammunition,
only appellant supplied the detail of voluntary surrender of a gun kept inside a locked
box. As the circumstances involved in securing the firearm are not dispositive of the
issues on appeal, and appellant did not object to the magistrate’s decision based on the
factual distinction of voluntary surrender, we need not address this as an issue on appeal.
30.
her food was being poisoned and caused rashes on her body. In re K.W., 10th Dist.
Franklin No. 06AP-731, 2006-Ohio-4908, ¶ 18. Likewise, in Matter of A.C., the Tenth
District affirmed the probate court’s finding under R.C. 5122.01(B)(4), where the person
subject to hospitalization exhibited signs of paranoia and delusion, and lacked insight into
her condition, denying she suffered from mental illness. In Matter of A.C., 10th Dist.
Franklin No. 20AP-82, 2021-Ohio-2116, ¶ 33. This Court has also affirmed
hospitalization, pursuant to R.C. 5122.01(B)(4), based on evidence that a person is
susceptible to using illicit drugs instead of prescribed medications, deemed evidence of a
lack of insight and resistance to complying with a treatment plan. State v. Dail, 6th Dist.
Lucas No. L-87-060, 1987 WL 20433 (Nov. 27, 1987), *2-3, citing In re Burton, 11 Ohio
St.3d at 149-150, 464 N.E.2d 530.
{¶ 61} Considering this record, and based on application of the law to similar
facts, appellant fails to demonstrate that the probate court deviated from the statute in
finding appellant was a mentally ill person subject to court order. Instead, appellant’s
argument raises different conclusions that might be drawn from the evidence adduced at
hearing. Although the record is limited to the affidavit, the medical records, the
testimony by Dr. Maloney, and the testimony of appellant herself, appellant does not
address any specific deficiency in the evidence, demonstrating plain error in the probate
court’s application of the statute in determining appellant was a “mentally ill person
subject to court order.” Thus, based on the record, we find no deviation from the law or
obvious error, and appellant failed to demonstrate plain error in the proceedings
31.
regarding the probate court’s determination that she met the definition of a “mentally ill
person subject to court order.”
3. The probate court made a specific finding that involuntary commitment
was the least restrictive alternative.
{¶ 62} Appellant next argues, relative to the third issue raised within her first
assignment of error, that the probate court did not properly follow the statute in
considering whether her involuntary commitment was the least restrictive alternative. In
support, appellant acknowledges Dr. Maloney’s testimony, that he believed a 60-day
inpatient stay was the least restrictive alternative. However, appellant argues that,
because Dr. Maloney did not identify or “fully explain” other alternatives to commitment,
the probate court failed to consider and weigh “at least two options.” Appellant cites no
authority supporting an “at least two options” requirement.
{¶ 63} Pursuant to R.C. 5122.15(E), the probate court shall only impose “the least
restrictive alternative available and consistent with treatment goals” after considering the
following factors, prior to ordering commitment:
(1) The respondent's diagnosis and prognosis made by a psychiatrist,
licensed clinical psychologist, clinical nurse specialist who is certified as a
psychiatric-mental health clinical nurse specialist by the American nurses
credentialing center, or certified nurse practitioner who is certified as a
psychiatric-mental health nurse practitioner by the American nurses
credentialing center;
32.
(2) The respondent's preferences;
(3) The respondent's projected treatment plan. R.C. 5122.15(E)
(emphasis added.).
Thus, the statute required the probate court to weigh appellant’s diagnosis and prognosis,
appellant’s preferences, and the treatment plan in selecting the least restrictive alternative
that was available and consistent with treatment. There is no provision within the statute
requiring a court to select from at least two possible alternatives without reference to
whether those alternatives are available and consistent with treatment, as argued by
appellant. The only specific requirement, mandated by the statute, is as follows:
If the court determines that the least restrictive alternative available
that is consistent with treatment goals is inpatient hospitalization, the
court’s order shall so state. R.C. 5122.15(E).
{¶ 64} In this case, the probate court heard the argument of appellant, advocating
for counseling and drug testing instead of in-patient treatment. The court also heard
appellant’s testimony, expressing an aversion to all medications listed in her treatment
plan in favor of “natural” medicines like CBD and rejecting Dr. Maloney’s diagnosis of
mental illness. The probate court considered appellant’s preferences but found
hospitalization appropriate. The court, furthermore, stated in its entry that hospitalization
was the least restrictive alternative available that is consistent with treatment goals, as
required by R.C. 5122.15(E). The statute required nothing more. Additionally, appellant
33.
waived any challenge to the court’s findings, based on her failure to assert a timely
objection in the trial court.
{¶ 65} We therefore find that the probate court complied with the statute in
determining the least restrictive alternative and, therefore, we find the third issue raised
within appellant’s first assignment without merit. Having addressed each of the issues
raised within appellant’s first assignment of error, and finding each without merit, we
find appellant’s first assignment of error not well-taken.
4. The record demonstrated appellant lacked capacity, such that the probate
court properly ordered medication.
{¶ 66} In her second assignment of error, appellant argues that the probate court’s
determination for court-ordered medication rested on a “tenuous proposition” that she
“lacked capacity to consent because she denied having a mental illness.” Specifically,
appellant argues that medications were addressed by Dr. Maloney prior to her testimony
in the involuntary commitment portion of the hearings, or before any adjudication of
mental illness. Additionally, appellant argues her refusal to take medications concerned
only those medications prescribed by Dr. Maloney, which she knew would not work well
with her heart condition, and she offered less intrusive alternatives, such as surrendering
her firearm, attending counseling, and submitting to testing for illicit drugs. As with
appellant’s first assignment of error, appellant again seeks to challenge the factual
findings and conclusions of the probate court, despite having waived all but plain error.
34.
{¶ 67} “The right to refuse medical treatment is a fundamental right in our
country, where personal security, bodily integrity, and autonomy are cherished liberties.”
Steele v. Hamilton Cty. Community Mental Health Bd., 90 Ohio St.3d 176, 180, 736
N.E.2d 10 (2000). However, that right is not absolute and must yield “when outweighed
by a compelling government interest.” Id. at 181, citing Cruzan v. Dir., Mo. Dept. of
Health, 497 U.S. 261, 278-279, 110 S.Ct. 2841, 111 L.Ed.2d 223 (1990); State v.
Williams, 88 Ohio St.3d 513, 523, 728 N.E.2d 342 (2000).
{¶ 68} With this liberty interest in mind, courts recognize a compelling
government interest to permit physicians to administer antipsychotic medication to an
involuntarily committed mentally ill patient who poses an imminent threat of harm to self
or others. Id. at 183-184. An additional state interest recognized by courts permits forced
medication when the patient lacks capacity to make an informed decision regarding their
treatment. Id. at 185. This case involves the lack of capacity to make an informed
decision, and not an imminent threat of self-harm or harm to others.
{¶ 69} The determination regarding court-ordered medication is separate from the
determination for involuntary commitment, as “a court's determination that a person is
mentally ill and subject to involuntary commitment in a hospital is not equivalent to a
finding that the person is incompetent.” (citations omitted) Steele, 90 Ohio St.3d at 186,
736 N.E.2d 10. Moreover, the fact that the probate court found hospitalization was the
least restrictive alternative and ordered commitment “does not even raise a presumption”
of incompetence for purposes of court-ordered medication. Id. at 187, citing In re Milton,
35.
29 Ohio St.3d 20, 22-23, 505 N.E.2d 255 (1987). Before ordering medication, a probate
court must find, by clear and convincing evidence, that a patient “lacks the capacity to
give or withhold informed consent regarding treatment.” Id. at 187.
{¶ 70} Appellant challenges the probate court’s factual determination regarding
court-ordered medication, arguing an alternative interpretation of the evidence adduced at
hearing. Significantly, she does not dispute her own testimony that corroborated Dr.
Maloney’s medical opinion, supporting her inability to give informed consent. Appellant
refused to acknowledge she had any mental illness, and rejected any pharmaceutical
prescribed by Dr. Maloney in favor of “natural” alternatives, which Dr. Maloney testified
would present greater risk to appellant than prescribed medications. Appellant’s position
was also inconsistent, advocating for marijuana as medication while also expressing a
willingness to submit to drug screens.
{¶ 71} Contrary to appellant’s characterization of the evidence, Dr. Maloney
provided separate testimony in the second hearing addressing court-ordered medication.
In that hearing, Dr. Maloney provided testimony demonstrating (1) that appellant lacked
capacity to give or withhold informed consent regarding her treatment based on her lack
of appreciation of her serious condition and ability to weigh the risks and benefits of
treatment versus non-treatment, (2) that taking medication was in appellant’s best interest
considering her diagnosis, (3) and that there was no less intrusive treatment as effective
in treating appellant’s mental illness. See Steele at paragraph six of the syllabus. Based
on this record, Dr. Maloney’s testimony presented clear and convincing evidence,
36.
supporting the probate court’s decision to order medication for a period not to exceed 60
days.
{¶ 72} Therefore, upon consideration of the record, we find no obvious error by
the probate court, relative to the decision for court-ordered medication. Appellant’s
second assignment of error, therefore, is not well-taken.
IV. Conclusion
{¶ 73} For the reasons set forth above, we affirm the judgment of the Lucas
County Court of Common Pleas, Probate Division. Appellant is ordered to pay the costs
of the appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Christine E. Mayle, J. ____________________________
JUDGE
Gene A. Zmuda, J.
____________________________
Charles E. Sulek, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
37.