People v. Sharon L.N.

NO. 4-06-0045 Filed: 11/20/06

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re: SHARON L.N., a Person Found ) Appeal from
Subject to Involuntary Admission, ) Circuit Court of
THE PEOPLE OF THE STATE OF ILLINOIS, ) Sangamon County
Petitioner-Appellee, ) No. 05MH653
v. )
SHARON L.N., ) Honorable
Respondent-Appellant. ) Leslie J. Graves,
) Judge Presiding.
_________________________________________________________________

JUSTICE COOK delivered the opinion of the court:

Following a December 23, 2005, hearing, the trial court

ordered respondent, Sharon L.N., to involuntary admission at

McFarland Mental Health Center (McFarland) for a period not to

exceed 90 days (405 ILCS 5/1-119 (West 2004)). Respondent

appeals, arguing that (1) no clear and convincing evidence

warranted involuntary admission, particularly the State's expert

testimony failed to satisfy section 3-807 (405 ILCS 5/3-807 (West

2004)), and (2) procedural deficiencies violated sections 3-601

and 3-701 of the Mental Health and Developmental Disabilities

Code (Code) (405 ILCS 5/3-601, 3-701 (West 2004)). We reverse

due to the State's failure to satisfy section 3-807. We note

this court recently reached a different result, on somewhat

different facts, in In re Shirley M., No. 4-06-0263 (November 20,

2006), ___ Ill. App. 3d ___, ___ N.E.2d ___.

I. BACKGROUND
 On December 6, 2005, Litchfield police chief B.J.

Wilkinson filed a petition in Montgomery County (Montgomery

petition) for the involuntary commitment of respondent.

Wilkinson alleged in the Montgomery petition that neighbors had

seen respondent setting fire to trash in her apartment, respon-

dent's apartment was littered with trash and feces, and respon-

dent had been drinking her own urine. Apparently, Wilkinson

testified to those same facts. Following hearing on that same

day, the court entered an order for temporary detention and

examination.

Respondent was subsequently examined by two doctors at

McFarland Mental Health Center in Sangamon County, each of whom

certified that respondent was mentally ill and reasonably ex-

pected to inflict serious physical harm on herself or another in

the near future and was unable to safely provide for her basic

physical needs. The medical certificates reported that (1)

respondent had a long history of mental illness and numerous

psychiatric hospitalizations; (2) respondent was delusional and

psychotic; (3) neighbors had seen respondent setting fire to

trash in her apartment; (4) police observed respondent's apart-

ment littered with trash and feces, and respondent was drinking

her own urine; and (5) respondent displayed poor judgment in that

she believed she had "cured" herself of diabetes and had discon-

tinued her medication. A third doctor, Dr. Jamie Myers, at-

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tempted to examine respondent but respondent refused to speak

with him. Myers nevertheless certified that respondent was

mentally ill and was reasonably expected to cause harm to herself

or others.

On December 7, 2005, a second petition was filed in

Sangamon County (Sangamon petition). The Sangamon petition is at

issue in this case. The Sangamon petition was merely an uncerti-

fied copy of the first petition, absent Wilkinson's factual

allegations that had been attached to the Montgomery petition.

Also filed with the Sangamon petition were the Montgomery order

for temporary detention and examination and the medical certifi-

cates of the two doctors who were able to examine respondent as

described above. The remaining medical certificate, authored by

Dr. Myers, was filed on December 9, 2005. Doctors performed the

comprehensive physical, psychiatric, and social investigation

from December 6 through December 8, 2005. The accompanying forms

(hereinafter medical reports) were presented at hearing on

December 23, 2005.

At hearing, Dr. Myers testified that he was a member of

respondent's treatment team. Respondent refused to talk with Dr.

Myers during this particular period of hospitalization. However,

Dr. Myers based his testimony on his work with respondent during

a prior hospitalization in September and October 2005 and a

review of respondent's current medical records. Dr. Myers

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diagnosed respondent as having schizoaffective disorder, which he

categorized as a chronic condition. Dr. Myers testified that,

according to the reports, respondent exhibited some behavioral

problems while at McFarland in that she threw pencils at a peer

and, on another occasion, physically threatened a peer and tried

taking the peer's lunch tray. Respondent has also exhibited

angry, delusional, and paranoid verbalizations. While Dr. Myers

would not classify respondent as suicidal, she had stopped taking

her medication. Dr. Myers opined that respondent was a danger to

herself and would most likely revert to her preadmission state

were she to be released early. Dr. Myers thought that McFarland

was the least-restrictive environment for respondent's treatment

and recommended a treatment plan of 90 days. The recommended

treatment plan was entered into evidence along with the medical

reports. There was no cross-examination.

Respondent, under the representation of counsel, then

testified on her own behalf. Respondent denied speaking with Dr.

Myers during her current stay at McFarland, denied purposefully

setting a fire in her home, denied drinking her own urine, and

denied threatening anyone. Respondent believed herself to be

mentally ill and admitted that she sometimes "forgot" to take her

medication. Respondent stated that she feels better when she

takes her medication and that she has been taking her medication

every day at McFarland. Respondent stated that she would con-

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tinue her treatment were she to be released and that members of

her church would help keep her on track.

The trial court found that respondent was mentally ill

and was currently receiving the least-restrictive treatment

available. The court stated that respondent needed more time to

stabilize on her medication before she could handle outpatient

treatment and entered an order of involuntary admission at

McFarland for a period not to exceed 90 days. This appeal

followed.

II. ANALYSIS

A. Overview

Respondent makes two arguments on appeal: (1) that no

clear and convincing evidence warranted her involuntary admission

and (2) that the State failed to comply with sections 3-601 and

3-701 of the Code. We are bound by the Illinois Supreme Court's

decision in In re Michelle J., 209 Ill. 2d 428, 808 N.E.2d 987

(2004), to reverse the order for involuntary admission where the

State failed to satisfy the provisions of section 3-807. Section

3-807 states that "[n]o respondent may be found subject to

involuntary admission unless at least one psychiatrist, clinical

social worker, or clinical psychologist who has examined [the

respondent] testifies in person at the hearing." (Emphasis

added.) 405 ILCS 5/3-807 (West 2004).

B. Section 3-807

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 A judgment ordering involuntary commitment cannot be

affirmed in the absence of testimony that complies with section

3-807. Michelle J., 209 Ill. 2d at 438, 808 N.E.2d at 992-93.

In Michelle J., the supreme court held that the involuntary

admission of Sam S. could not be sustained because the require-

ments of section 3-807 were not satisfied. The testifying

psychologist was not able to examine Sam S. personally because he

was restrained and not in a position to be interviewed when her

schedule allowed. "It was not because he was incapable of being

interviewed prior to the hearing." Michelle J., 209 Ill. 2d at

436, 808 N.E.2d at 991. In fact, three other workers were able

to examine Sam S. prior to the hearing. They were apparently not

called because of administrative convenience; the testifying

psychologist worked in the county where the hearing was held, the

others did not. "Under these circumstances, there is no legiti-

mate basis for deviating from section 3-807's explicit require-

ments." Michelle J., 209 Ill. 2d at 436, 808 N.E.2d at 991.

Michelle J.'s case involved different circumstances.

The testifying psychologist was unable to interview Michelle the

day before the hearing because Michelle did not appear capable of

making "'an informed decision on whether or not to waive her

rights.'" Michelle J., 209 Ill. 2d at 433, 808 N.E.2d at 989.

"Unlike the expert in Sam's case, however, [the testifying

psychologist] was directly involved in the respondent's care."

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Michelle J., 209 Ill. 2d at 439, 808 N.E.2d at 993. She served

as a consultant to Michelle's treatment team and was able to meet

with Michelle personally in a group session, apparently within 72

hours of the hearing. Accordingly, the supreme court could not

say the requirements of section 3-807 were not satisfied.

Michelle J., 209 Ill. 2d at 439, 808 N.E.2d at 993.

As to Sam S., the supreme court refused to read its

previous decision, in Barbara H., "to permit recognition of an

exception to the personal examination requirement based on the

expert's inability to conduct a personal interview." Michelle

J., 209 Ill. 2d at 436, 808 N.E.2d at 991. The court also noted

that in any event, such an exception would be inapplicable to Sam

S.'s situation. Sam S. was capable of being interviewed prior to

the hearing. Michelle J., 209 Ill. 2d at 436, 808 N.E.2d at 991.

Although not detailed in Barbara H., the reason the expert there

was unable to conduct a personal interview was that the respon-

dent refused to talk to the expert. Michelle J., 209 Ill. 2d at

435, 808 N.E.2d at 991. Justice Thomas, specially concurring,

questioned the holding in Barbara H.: "Is the majority holding

that a respondent can avoid involuntary commitment simply by

refusing to speak with the doctor assigned to examine him or

her?" Michelle J., 209 Ill. 2d at 441, 808 N.E.2d at 994

(Thomas, J., specially concurring). Justice Thomas also noted

that the testifying doctor in Barbara H. had personally treated

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the respondent for six months. Justice Thomas questioned the

majority's reliance on the fact that Michelle J.'s personal

interview occurred within 72 hours of the hearing: "[H]ow can we

write a 72-hour time limit into the statute?" Michelle J., 209

Ill. 2d at 442, 808 N.E.2d at 995 (Thomas, J., specially concur-

ring).

It is not clear what the rule would be if the respon-

dent simply refused to speak with the doctor assigned to examine

him or her. That situation was not presented in Michelle J.,

where Sam S. was not incapable of being interviewed prior to the

hearing, and workers who had personally interviewed Sam S. prior

to the hearing were not called purely because of "administrative

convenience." Nor was refusal to speak the focus of Barbara H.,

where that fact was not even mentioned in the opinion. It seems

likely that in a case where the respondent simply refused to

speak to the testifying worker, the court would follow Justice

Thomas's special concurrence.

The Fifth District recently addressed a situation

wherein the respondent simply refused to speak to the testifying

worker in In re David B., No. 5-05-0416 (September 6, 2006), ___

Ill. App. 3d ___, ___ N.E.2d ___,. There, the court held that

section 3-807 could not be used as a loophole for a sexually

dangerous and legally sophisticated party to exploit. David B.,

No. 5-05-0416, slip op. at 14, ___ Ill. App. 3d at ___, ___

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N.E.2d at ___. Review of the respondent's confinement had come

before the Fifth District on at least 28 prior occasions, allow-

ing the respondent to gain some degree of familiarity and sophis-

tication with the system. David B., No. 5-05-0416, slip op. at

3, ___ Ill. App. 3d at ___, ___ N.E.2d at ___. In fact, the

respondent in David B. told the testifying worker that the reason

he refused to speak with her was because "she would testify at

the next hearing." David B., No. 5-05-0416, slip op. at 7, ___

Ill. App. 3d at ___, ___ N.E.2d at ___. The Fifth District

concluded that "section 3-807 of the Code requires the examiner

to attempt a personal interview but that if the respondent

refuses or is intentionally uncooperative, then the statutory

examination may be based on discussions with treating staff and a

review of medical records." David B., No. 5-05-0416, slip op. at

14, ___ Ill. App. 3d at ___, ___ N.E.2d at ___. The holding in

David B. may be appropriate under the facts of that case.

However, the holding in David B. does not seem to apply to a

situation where the State could have called an expert who had

personally examined the respondent in strict compliance with the

statute but instead called a witness with whom the respondent had

refused to speak.

Here, Dr. Myers was a part of respondent's treatment

team and attempted to interview respondent on one occasion but

respondent refused. Dr. Myers worked with respondent in group

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therapy during her prior hospitalization. The expert here had

some familiarity with respondent and her condition, but he did

not personally examine respondent in connection with her current

episode. Dr. Myers was not aware of whether respondent was

currently participating in group therapy and seemed to rely

mainly on respondent's hospital records in his testimony regard-

ing respondent's current condition. Like the first respondent in

Michelle J., two other certified professionals were able to

personally examine respondent in connection with the current

episode and the State offered no explanation as to why it chose

to rely on Dr. Myers instead. See Michelle J., 209 Ill. 2d at

436, 808 N.E.2d at 991.

We reverse the order of involuntary admission. While

our decision concerning section 3-807 is dispositive of this

case, we address respondent's remaining claims.

C. Clear and Convincing Evidence

Had Dr. Myers' testimony satisfied section 3-807, the

State's evidence would have met the clear and convincing stan-

dard. The trial court's decision is entitled to great deference

and, provided it is not against the manifest weight of the

evidence, will not be set aside, even if the reviewing court,

after applying the clear and convincing standard, would have

ruled differently. In re Moore, 301 Ill. App. 3d 759, 764, 704

N.E.2d 442, 445 (1998).

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 Respondent admits that she is mentally ill. The

question before this court is whether the State proved by clear

and convincing evidence that, due to the illness, respondent was

reasonably expected to inflict serious harm upon herself or

another in the near future or was unable to provide for her basic

physical needs. 405 ILCS 5/1-119 (West 2004).

Respondent cites numerous cases for the proposition

that mental illness alone is insufficient to warrant involuntary

admission and that evidence that a respondent is reasonably

likely to harm herself or another must be supported by explicit

medical evidence. See, for example, In re Schumaker, 260 Ill.

App. 3d 723, 727-28, 633 N.E.2d 169, 172-73 (1994); In re Win-

ters, 255 Ill. App. 3d 605, 608-10, 627 N.E.2d 410, 413-14

(1994). Likewise, evidence of a respondent's potential to cause

harm absent evidence of respondent's actual engagement or at-

tempted engagement in harmful activities is insufficient to

warrant involuntary admission. In re Rovelstad, 281 Ill. App. 3d

956, 667 N.E.2d 720 (1996) (evidence insufficient where voices

told patient to run around naked, stop eating and sleeping, and

to commit suicide, but where patient never actually engaged or

attempted to engage in such activities). However, that is not

the situation we are dealing with here. The State is required to

prove that respondent is a definite danger to herself or society

but is not required to wait until someone is actually harmed

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before hospitalization is warranted. In re Manis, 213 Ill. App.

3d 1075, 1077, 572 N.E.2d 1213, 1214 (1991).

In the case at bar, the State presented evidence

through Dr. Myers' testimony and through medical reports that

respondent had already engaged in dangerous conduct. Neighbors

reported that respondent set fire to trash in her apartment.

Respondent did not deny that she had started a fire but merely

denied purposefully starting the fire. Respondent stated that

"maybe" she had been careless with the cigarette and that had

caused a comforter to catch fire. The State presented evidence

that respondent had threatened other patients, that her home was

littered with trash and feces, and that she drank her own urine.

Though respondent offered a benign characterization of the first

two accusations and flat-out denied the third, the court was not

required to see matters in the same light.

Respondent also testified that she had stopped taking

her medication following her last release from McFarland just two

months prior to this current episode. Respondent exercised poor

judgment in that she believed that she "cured herself" of diabe-

tes and no longer took medication for that disease. Respondent

admitted that she had a habit of forgetting to take her medica-

tion related to her mental illness and that she often forgets

"the time, the days, and the time sometimes." Respondent stated

that she had been taking her medication while at McFarland and

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that this helps her "very much." Dr. Myers testified that

respondent would most likely revert back to her preadmission

state if she were to be released early. Despite respondent's

testimony that she would continue to take her medication upon

release and that members of her church had promised to provide

support, the court's order was not against the manifest weight of

the evidence where expert testimony indicated that respondent

required further inpatient treatment to stabilize her condition.

See In re Rogers, 133 Ill. App. 3d 524, 531, 478 N.E.2d 1198,

1203 (1985) (Fourth District).

D. Sections 3-601 and 3-701

Respondent argues that procedural deficiencies in the

Sangamon petition violated sections 3-601 and 3-701 of the Code.

Sections 3-701(a) and 3-601(b) provide:

"Any person 18 years of age or older may

execute a petition asserting that another

person is subject to involuntary admission.

The petition shall be prepared pursuant to

paragraph (b) of section 3-601 and shall be

filed with the court in the county where the

respondent resides or is present." 405 ILCS

5/3-701(a) (West 2004).

"The petition shall include all of the

following:

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 1. A detailed statement of

the reason for the assertion that

the respondent is subject to invol-

untary admission, including *** a

description of any acts, [or sig-

nificant threats] supporting the

assertion and the time and place of

their occurrence[;]

* * *

4. The names, addresses[,]

and phone numbers of the witnesses

by which the facts asserted may be

proved." 405 ILCS 5/3-601(b) (West

2004).

Respondent argues that the Sangamon petition was not in

compliance with the Code because the Sangamon petition was merely

an uncertified copy of the Montgomery petition. No motion to

transfer venue had been filed. The Sangamon petition did not

attach the factual allegations required pursuant to section 3-

601(b)(1) that had been attached to the Montgomery petition.

Apparently, these "missing" factual allegations include (1) a

statement by Wilkinson that a neighbor had seen respondent

setting fire to trash in her apartment, respondent's apartment

was littered with trash and feces, and respondent was drinking

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her own urine; and (2) a report or evaluation by the Montgomery

County health department.

We recognize those cases that hold that the procedural

safeguards of the Code are not mere technicalities but are the

essential tools to protect the respondent's liberty interests and

should therefore be strictly construed in favor of the respon-

dent. In re George O., 314 Ill. App. 3d 1044, 1046, 734 N.E.2d

13, 15-16 (2000), citing Rolvestad, 281 Ill. App. 3d at 964-65,

667 N.E.2d at 725; see also In re Demir, 322 Ill. App. 3d 989,

751 N.E.2d 616 (2001); In re Elkow, 167 Ill. App. 3d 187, 521

N.E.2d 290 (1988). However, we note that the cases cited by

respondent seem to imply that strict adherence to the Code trumps

consideration of society's dual interest in protecting itself

from dangerous individuals and caring for those who are unable to

care for themselves. See Demir, 322 Ill. App. 3d at 992, 751

N.E.2d at 618 (general statement of society's interests). We

also note that these case are in some ways distinguishable. The

majority of respondent's cases involved either (1) "total disre-

gard" for procedural rules (In re O.C., 338 Ill. App. 3d 292, 788

N.E.2d 1163 (2003) (Fourth District)) or (2) violation of section

3-610, which explicitly calls for respondent's release upon

noncompliance (see 405 ILCS 5/3-610 (West 2004); George O., 314

Ill. App. 3d 1044, 734 N.E.2d 13; In re Ellis, 284 Ill. App. 3d

691, 672 N.E.2d 893 (1996); Rovelstad, 281 Ill. App. 3d 956, 667

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N.E.2d 720; People v. Valentine, 201 Ill. App. 3d 10, 558 N.E.2d

807 (1990)).

The State argues that respondent has waived this

argument by failing to object at the hearing and that respondent

suffered no prejudice from any alleged error. In re Nau, 153

Ill. 2d 406, 419, 607 N.E.2d 134, 140 (1992). For the reasons

that follow, we do not find respondent was prejudiced by any

alleged error.

Procedural deviations from the Code do not warrant the

reversal of an involuntary-commitment order if the defects could

and should have been objected to immediately, could have been

easily cured if immediately objected to, and made no difference

anyway. Nau, 153 Ill. 2d at 419, 607 N.E.2d at 140 (regarding

State's failure to strictly comply with notice requirement,

section 3-611).

In this vein, we note that the Sangamon petition did

provide the names and contact information of two witnesses

capable of attesting to the factual allegations (see 405 ILCS

5/3-603(b)(4) (West 2004)). The December 6, 2005, order for

temporary detention and examination, which was contained in the

Sangamon petition, stated that it relied on the facts alleged in

the petition and Wilkinson's testimony in Montgomery County. As

per Nau, respondent could have immediately objected to State's

failure to attach Wilkinson's statement of factual allegations,

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thereby correcting the situation. Nau, 153 Ill. 2d at 419, 607

N.E.2d at 140. Regardless, the information contained in the

factual allegations was substantively presented in the petition

through the medical certificates that were filed with the peti-

tion. See In re Bert W., 313 Ill. App. 3d 788, 796, 730 N.E.2d

591, 598 (2000), citing People v. Gerich, 22 Ill. App. 3d 575,

317 N.E.2d 724 (1974) (holding petition should be read in its

entirety and in conjunction with the medical certificates and

that reversal is not warranted due to minor deviations in form

that do not prejudice respondent). Additionally, the court heard

these same allegations through Dr. Myers' testimony and through

the medical reports. Respondent was familiar with the allega-

tions through the Montgomery hearing and had adequate notice to

testify on her own behalf in the presence of her attorney regard-

ing the alleged reasons for her commitment. The alleged proce-

dural errors were harmless here.

III. CONCLUSION

For the aforementioned reason, we reverse the trial

court's order.

Reversed.

TURNER, P.J., and STEIGMANN, J., concur.

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