In re Karen E.

FOURTH DIVISION
March 10, 2011

Nos. 1-09-2638 & 1-09-2991 (Cons.)

In re KAREN E. ) Appeal from the
(The People of the State of Illinois, ) Circuit Court of
) Cook County.
Petitioner-Appellee, )
)
v. ) No. 09 CoMH 3022
)
Karen E., ) Honorable
) Alfred J. Paul,
Respondent-Appellant). ) Judge Presiding.
__________________________________________)
)
In re KAREN E. )
(The People of the State of Illinois, )
)
Petitioner-Appellee, )
)
v. ) No. 09 CoMH 3099
)
Karen E., ) Honorables
) Alfred J. Paul,
Respondent-Appellant). ) Edward P. O’Brien
) Judges Presiding.

JUSTICE LAVIN delivered the judgment of the court, with opinion.
Presiding Justice Gallagher and Justice Pucinski concurred in the judgment and opinion.

OPINION

Following a trial in October 2009, the trial court ordered respondent Karen E. to be

involuntarily committed to a mental health facility. Three days before trial, a hearing ensued at

which the trial court ordered respondent to report to a mental health facility for examination. On

appeal, respondent asserts the trial court erred by limiting her appointed counsel’s participation at

that hearing and by conducting the hearing off the record. We affirm.
1-09-2638 & 1-09-2991

The facts concerning respondent’s mental illness are not at issue on appeal. The record

generally indicates that respondent was diagnosed with schizoaffective disorder in 1991. As a

result of her condition, respondent had been hospitalized on several occasions. In August 2009,

respondent was released from a mental facility. When respondent initially returned home, she

took her required medication but apparently stopped doing so shortly thereafter. Respondent also

stopped taking care of the house, began spending more time by herself and stopped eating dinner

with her husband John and their daughter. Respondent would not talk to her family.

On September 17, 2009, their daughter called John at work to report that respondent was

“acting weird again.” When John arrived home, respondent would not talk to him. He told her

that she was “getting bad again,” needed to talk to someone and needed to take her medicine. He

also told her that she was reverting to the depression she had previously suffered from and that if

she refused to do any of the required follow-up care, including taking her medicine and seeing a

therapist, they would have to see a lawyer to obtain a separation. Respondent put on her jacket

and shoes and left the house without identification or money. John’s attempt to stop respondent

and find out where she was going was unsuccessful. As a result, he reported her missing to the

police. At 4 a.m. the next morning, the police called John after finding respondent and brought

her home, but she refused to get out of the police car. She would not talk to John or look at him.

The officers took respondent to the hospital, where she declined to cooperate with her

psychiatrist’s attempts to evaluate her. Respondent was also withdrawn, had no energy, refused

the doctors’ treatment plan, and would not talk with the staff or other patients. In addition, her

treating psychiatrist believed that outside a structured environment, respondent did not know how

2
1-09-2638 & 1-09-2991

to use the resources available to her and could not provide for her basic needs, including

obtaining food and shelter for herself.

On September 21, 2009, a social worker filed an emergency petition for respondent’s

involuntary admission pursuant to section 3-600 of the Mental Health and Developmental

Disabilities Code (the Code) (405 ILCS 5/3-600 (West 2008)), asserting that respondent was in

need of immediate hospitalization (case No. 09 CoMH 3022). Attorney Laurel Spahn from Legal

Advocacy Service of the Illinois Guardianship and Advocacy Commission was appointed as

respondent’s counsel. On September 28, 2009, John filed a petition for involuntary admission by

court order pursuant to section 3-700 of the Code (405 ILCS 5/3-700 (West 2008)), rather than

emergency admission, and asserted that respondent was in immediate need of hospitalization

(case No. 09 CoMH 3099).

At a hearing before Judge Alfred J. Paul on September 28, 2009, the assistant State’s

Attorney (ASA) who had been pursuing the petition represented that the State had tried to find

the officers who brought respondent to the hospital but were unsuccessful. As a result, the ASA

moved to voluntarily dismiss the first petition and sought to “rewrit.” Following argument,

Judge Paul granted the motion to dismiss case No. 09 CoMH 3022 without prejudice over

respondent’s objection. The State then said it was “seeking to rewrit at this time” and had two

witnesses. Spahn also asked to participate in the “writ.” Apparently referring to the First

District’s decision in In re Nancy A., 344 Ill. App. 3d 540 (2003), Judge Paul indicated that no

one was more familiar than him with the issue of whether Spahn could participate at this juncture

because the appellate court had already considered a previous case in which Judge Paul had been

3
1-09-2638 & 1-09-2991

confronted with this issue. In response to Spahn’s request, Judge Paul stated as follows:

“THE COURT: The Court will allow you to participate. If [you] run the

question by me, I will let you know whether or not, I will let you in, to ask any

questions. Okay?

***

THE COURT REPORTER: Is this on the record or not?

THE COURT: No, it’s not on the record.”

A discussion was then held off the record and the case was passed. When the case was recalled,

the following colloquy ensued:

“MS. SPAHN: Your Honor, I would like to state, for the record, that I had

no idea, this was not being transcribed, because there was a court reporter sitting

here.

THE COURT: Well, that question was asked to me by the court reporter.

And I said no. It’s my discretion that this writ does not have to be recorded and

taken down.

There is Appellate Court authority that gives me that decision. As a matter

of fact, it was you and I [who] were involved in that.

MS. SPAHN: I did ask on the record at the end of the writ after [sic].

What happened on the writ, the State presented one witness. It was the

respondent’s husband. I asked to cross examine the witness, and you said you will

ask me the questions, and I will see if they’re appropriate to ask the witness. I

4
1-09-2638 & 1-09-2991

presented you with some questions. You said they were not appropriate and did

not ask them.

I asked to call as witnesses for the respondent Dr. Laba (phonetic spelling)

who was present in court. I asked to call the respondent who was present in court.

And those requests were denied.

THE COURT: Denied, right.”

Spahn further stated that she had asked the court to certify certain questions for interlocutory

appeal. Judge Paul responded that there was no question of law for which a difference of opinion

needed to be resolved and that the court had the discretion to decide the manner in which the

examination would go forward, including how many witnesses would testify, whether the hearing

would be transcribed and whether respondent’s attorney would be permitted to participate. The

court added that traditionally, a respondent’s attorney was not permitted to participate.

On the same day, Judge Paul entered a written “order of detention, examination,

evaluation” in case No. 09 CoMH 3099. The form order stated that “[t]his matter coming to be

heard on the Petition of John,” the court finds that the “[s]ubject person is in need of detention

and examination.” Judge Paul checked the box requiring respondent to report to a mental health

facility for examination within 72 hours but allowing respondent to remain in her place of

residence until such time. Judge Paul did not check the box that would require a peace officer to

immediately take respondent into custody.

The parties later signed a stipulated statement of facts regarding the proceedings in case

No. 09 CoMH 3099 which ensued on September 28, 2009. According to the stipulation, the

5
1-09-2638 & 1-09-2991

State requested an order of detention for psychiatric evaluation and John was the only witness to

testify. In addition, Spahn requested permission to ask John two questions regarding

respondent’s ability to care for herself but Judge Paul did not think the questions were

appropriate and denied the request. Judge Paul also denied Spahn’s request to call respondent

and Dr. Leyba as witnesses for respondent, both of whom were present in court. The parties

further stipulated that the “order for detention for evaluation was granted over objection, and

continued for trial.”

At a hearing before Judge Edward P. O’Brien on October 1, 2009, John and Dr. Leyba

testified in support of the petition for involuntary admission. Following their testimony and the

parties’ arguments, Judge O’Brien entered a written order involuntarily admitting respondent for

90 days. Judge O’Brien found that because of respondent’s mental illness, specifically

schizoaffective disorder, she was unable to care for her basic needs independent of the controlled

environment of the hospital facility. In addition, Judge O’Brien essentially found that respondent

was incapable of providing for her basic physical needs so as to protect herself from serious harm

without outside help, that she was unable to understand her need for treatment due to her illness

and was reasonably expected to suffer from mental or emotional deterioration so as to endanger

herself or others without outside help. Respondent timely appealed from the court’s order (No.

1-09-2991), and we ordered that her two appeals be consolidated. We note, however, that

respondent presents no claim arising from proceedings under the previously filed appeal (No. 1-

09-2638).

As a threshold matter, the parties agree that respondent’s appeal is moot because the order

6
1-09-2638 & 1-09-2991

of detention and examination as well as the 90-day order for involuntary admission have expired.

The parties dispute whether respondent’s claims fall under an exception to the mootness doctrine.

Whether an appeal is moot presents a question of law, which we review de novo. In re Alfred

H.H., 233 Ill. 2d 345, 350 (2009). Generally, Illinois courts do not decide moot issues, render

advisory opinions or consider issues where the outcome will not be affected by how the issues

are decided. In re Alfred H.H., 233 Ill. 2d at 351. The public interest exception to the mootness

doctrine allows a court to consider an otherwise moot appeal when (1) the case presents a

question of a public nature; (2) an authoritative determination is necessary for future guidance;

and (3) there is a likelihood of future recurrence of the issue. In re Andrew B., 237 Ill. 2d 340,

347 (2010).

The State concedes that the procedures to be followed in involuntary admission

proceedings are a matter of public concern, satisfying the first prong, and there is a likelihood

that the issues presented will recur, satisfying the third prong. The State argues that the second

prong has not been satisfied because the facts and issues in this case are identical to those

presented and resolved by this court in In re Nancy A. As we will explain later in further detail,

we find the procedural facts in that case differ from those before us. In addition, although the

issues presented therein are similar, we question the manner in which they were resolved.

Accordingly, we find that an authoritative determination is necessary for future guidance and that

the public interest exception to the mootness doctrine has been satisfied.

On appeal, respondent contends the trial court violated the Code by limiting her

appointed counsel’s participation at the hearing on September 28, 2008, and similarly erred by

7
1-09-2638 & 1-09-2991

proceeding with a portion of that hearing off the record. Before addressing respondent’s

statutory claims, we must determine the precise section of the Code pursuant to which the

challenged hearing ensued and the order for detention and examination was entered, as different

sections of the Code may implicate different procedural requirements. The State represents that

when it requested to “rewrit” at that hearing, it was seeking and obtained respondent’s

“involuntary admission” pursuant to section 3-607 (405 ILCS 5/3-607 (West 2008)). The State

also refers to the order entered on September 28, 2009, as an “emergency order of detention.”

Although respondent does not directly address these representations, we find the record does not

support the State’s position.

The aforementioned section appears in article VI of the Code, which governs “Emergency

Admission By Certification.” See 405 ILCS 5/3-600 et seq. (West 2008). Section 3-607, which

is titled “Court ordered temporary detention and examination,” states as follows:

“When, as a result of personal observation and testimony in open court, any court

has reasonable grounds to believe that a person appearing before it is subject to

involuntary admission and in need of immediate hospitalization to protect such

person or others from physical harm, the court may enter an order for the

temporary detention and examination of such person. The order shall set forth in

detail the facts which are the basis for its conclusion. The court may order a peace

officer to take the person into custody and transport him to a mental health

facility. The person may be detained for examination for no more than 24 hours.

If a petition and certificate, as provided in this Article, are executed within the 24

8
1-09-2638 & 1-09-2991

hours, the person may be admitted and the provisions of this Article shall apply.

If no petition or certificate is executed, the person shall be released.” 405 ILCS

5/3-607 (West 2008).

We note that the plain language of this statute does not require a trial court to conduct an

additional hearing for the sole purpose of determining whether a section 3-607 order would be

appropriate, but observe that some courts have nonetheless held such a hearing. In re Helen S.,

342 Ill. App. 3d 330, 332 (2003) (on the State’s request for temporary detention and examination

pursuant to section 3-607, a hearing was held at which testimony was presented), overruled on

other grounds, In re Andrew B., 237 Ill. 2d at 355-56; In re Clark, 220 Ill. App. 3d 1024, 1027

(1991) (testimony was presented at a section 3-607 hearing).

Neither the written order of detention and examination, the transcript from the hearing on

September 28, 2009, nor the stipulated statement of facts specifically refers to section 3-607 or

an emergency. In addition, the written order of detention and examination and the stipulated

statement of facts do not state that temporary detention is necessary to protect respondent or

others from physical harm or set forth details in support of such a conclusion, as required by

section 3-607. We further note that the order of detention and examination did not require a

peace officer to immediately take respondent to the hospital, as permitted under section 3-607.

Although the original petition did seek emergency admission pursuant to section 3-600, that

petition was dismissed.

In contrast, article VII, titled “Admission By Court Order,” generally governs

nonemergency involuntary commitment procedures and provides a respondent with certain

9
1-09-2638 & 1-09-2991

protections that are unavailable under article VI. See 405 ILCS 5/3-700 et seq. (2008); In re

Elkow, 167 Ill. App. 3d 187, 191 (1988). Under section 3-701(a), “[a]ny person 18 years of age

or older may execute a petition asserting that another person is subject to involuntary admission.”

405 ILCS 5/3-701(a) (West 2008). Subsection (b) provides as follows:

“The court may inquire of the petitioner whether there are reasonable grounds to

believe that the facts stated in the petition are true and whether the respondent is

subject to involuntary admission. The inquiry may proceed without notice to the

respondent only if the petitioner alleges facts showing that an emergency exists

such that immediate hospitalization is necessary and the petitioner testifies before

the court as to the factual basis for the allegations.” 405 ILCS 5/3-701(b) (West

2008).

See also 405 ILCS 5/3-806(a) (West 2008) (“[t]he respondent shall be present at any hearing held

under this Act unless his attorney waives his right to be present and the court is satisfied by a

clear showing that the respondent's attendance would subject him to substantial risk of serious

physical or emotional harm”). In addition, subsection (a) of section 3-704, which is titled

“Examination; detention,” provides that if the court orders further examination, the court can

permit the respondent to remain in her residence pending examination. 405 ILCS 5/-704(a)

(West 2008).

John filed a petition for respondent’s involuntary admission prior to the hearing on

September 28, 2008. On this form petition, he checked the box seeking admission pursuant to

section 3-700 and left the box for emergency admission pursuant to section 3-600 unchecked.

10
1-09-2638 & 1-09-2991

See In re Elkow, 167 Ill. App. 3d at 192 (no petition may be filed or hearing held unless the

section on which the proceeding is based is clearly stated and failure to do so results in dismissal

of the petition with reasonable leave to amend). Consistent with section 3-701(b), Judge Paul

essentially inquired of John, who was the petitioner under the statute, whether there were

reasonable grounds to believe that the facts in the petition were true so that respondent was

subject to involuntary admission. That the ASA, rather than Judge Paul, questioned John does

not alter our finding that this was consistent with section 3-701(b). See 405 ILCS 5/3-101 (West

2008) (the State’s Attorney “shall attend such proceedings *** and shall ensure that petitions,

reports and orders are properly prepared”). Further suggesting that Judge Paul proceeded under

section 3-701(b), his order of detention and examination specified that it was entered following a

hearing on John’s petition. It appears from the record that respondent immediately went to the

mental facility following the hearing, but it bears repeating that the order itself required only that

respondent appear at the mental facility for examination within 72 hours and allowed her to

remain in her residence until her examination, as permitted under section 3-704. We also

observe that another written order entered by Judge Paul, which denied respondent’s motion to

certify questions for review, referred to “the State’s request for an order of detention for

psychiatric evaluation pursuant to Article VII of the Mental Health Code, 405 ILCS 5/3-700 et

seq.” Accordingly, the record as a whole indicates that the order of detention and examination

was entered pursuant to section 3-704 following a section 3-701(b) inquiry, rather than a request

to proceed under section 3-607.

We now determine to what extent the Code permitted respondent’s counsel to participate

11
1-09-2638 & 1-09-2991

in the inquiry pursuant to section 3-701(b). Respondent asserts that her right to counsel

permitted Spahn to cross-examine John and present additional witnesses, while the State

contends respondent had no right to counsel. Statutory construction presents a question of law,

which we review de novo. In re Andrew B., 237 Ill. 2d at 348. When interpreting a statute, we

must determine and effectuate the legislature’s intent, which is best indicated by the plain and

ordinary meaning of the language. Id. Because involuntary commitment affects important

liberty interests, those seeking another individual’s confinement must strictly comply with the

Code’s procedural safeguards. In re Lance H., 402 Ill. App. 3d 382, 386 (2010). The procedural

requirements of the Code are not mere technicalities and such safeguards are intended to prevent

the mental health system from becoming an oppressive tool, rather than a means to serve society.

Id.

Section 3-805 provides, in pertinent part, as follows:

“Every respondent alleged to be subject to involuntary admission shall be

represented by counsel. If the respondent is indigent or an appearance has not

been entered on his behalf at the time the matter is set for hearing, the court shall

appoint counsel for him. A hearing shall not proceed when a respondent is not

represented by counsel unless, after conferring with counsel, the respondent

requests to represent himself and the court is satisfied that the respondent has the

capacity to make an informed waiver of his right to counsel.” 405 ILCS 5/3-805

(West 2008).

See also 405 ILCS 5/3-800 (West 2008) (unless otherwise indicated, court hearings under chapter

12
1-09-2638 & 1-09-2991

III, which includes both articles VI and VII, “shall” be held pursuant to article VIII).

Based on John’s petition, respondent was a person subject to involuntary admission. See

405 ILCS 5/1-119 (West 2008) (defining “person subject to involuntary admission”). It is not

clear from the record whether a hearing on John’s petition was set in advance or whether

respondent was otherwise notified that the hearing on September 28, 2009, would extend to

John’s petition. Nonetheless, that hearing did in fact extend to John’s petition and respondent

was entitled to counsel as a result. We acknowledge section 3-701(b) provides that an inquiry

pursuant to that section may proceed without notice to the respondent in certain emergency

circumstances. Accordingly, this section shows that this inquiry may, by necessity, occasionally

proceed ex parte in the absence of respondent and his counsel. See 405 ILCS 5/3-701(b) (West

2008). It does not follow that if a respondent and her counsel are present in court, section 3-

701(b) authorizes the court to exclude respondent’s counsel from participating. More

importantly, while John’s petition sought immediate hospitalization of respondent, it did not

otherwise articulate the matter specifically as an emergency, which in this case is not a trifling

distinction. There is no basis for the State’s assertion that respondent did not have the right to

counsel.

The State also contends that, as a factual matter, Spahn ceased to be respondent’s attorney

upon the dismissal of the first petition on September 28, 2009, and was not reappointed to

represent her regarding the second petition. Thus, the State contends that respondent did not

have counsel for the remainder of that hearing. Following the voluntary dismissal of the first

petition, Spahn continued to act on respondent’s behalf throughout the remainder of all

13
1-09-2638 & 1-09-2991

proceedings in this case without either the court or the State questioning her authority to do so.

Throughout proceedings, the court repeatedly denied respondent’s request to waive counsel.

Because the record shows that everyone involved understood Spahn to be respondent’s attorney,

we are unpersuaded by the State’s contention. We note that even if the State had been correct, its

position that proceedings occurred in the absence of counsel would assist respondent on appeal,

not the State.

In support of its assertion that respondent had no right to counsel, the State relies on In re

Nancy A. There, the respondent’s daughter filed a petition to have the respondent involuntarily

admitted. Shortly thereafter, the State moved to voluntarily dismiss the petition due to the

insufficiency of the allegations. After the trial court granted the motion and entered an order

discharging respondent, the State immediately requested an order to detain respondent for further

psychiatric evaluation and a new admission to Madden Health Center. An ex parte hearing

regarding that request was then held off the record. The respondent’s counsel requested to

participate in that hearing but the court denied the request. The court stated that it did not find

any provision of the Code would permit counsel to participate in an ex parte hearing because no

lawsuit was pending. The trial court also told counsel that because no lawsuit was pending, she

had no client to represent. As a result of the hearing, the trial court entered an order for further

psychiatric evaluation and respondent’s detention. It appears that a new petition for involuntary

commitment was filed immediately after the ex parte hearing on the same day. Following a trial

on the new petition, the trial court ordered the respondent to be involuntarily confined for up to

90 days. In re Nancy A., 344 Ill. App. 3d at 544-45, 552.

14
1-09-2638 & 1-09-2991

On appeal, the respondent asserted that the trial court abused its discretion by prohibiting

her attorney from participating in the hearing for an order of detention and evaluation. In

considering her claim, the reviewing court apparently found from section 3-701(b)’s exception to

the notice requirement and the emergency nature of the hearing, that hearings seeking emergency

detention and examination were generally conducted ex parte. In re Nancy A., 344 Ill. App. 3d at

553-54. The reviewing court also relied on the trial court’s representation that no provision in

the Code allowed counsel to participate in an ex parte hearing and that counsel had no client to

represent because there was no lawsuit pending. In re Nancy A., 344 Ill. App. 3d at 554. In

addition, the reviewing court acknowledged the requirement of section 3-805 that every

respondent who is alleged to be subject to involuntary admission shall be represented by an

attorney but did not explain why this statute did not permit the respondent to have counsel

appointed to participate on her behalf under those circumstances. In re Nancy A., 344 Ill. App.

3d at 554 (citing 405 ILCS 5/3-805 (West 2000)). Having determined that no lawsuit was

pending, that the proceeding was ex parte, and that counsel did not have a client to represent, this

court found that “[w]hether or not respondent’s counsel could have participated in that hearing

since she was present was within the discretion of the trial court.” In re Nancy A., 344 Ill. App.

3d at 554. The reviewing court concluded that the trial court did not abuse its discretion in

prohibiting respondent’s attorney from participating in the hearing but did not comment on the

trial court’s apparent belief that it had no discretion or otherwise explain how the trial court

exercised its discretion in a sound fashion. In re Nancy A., 344 Ill. App. 3d at 554.

The facts recited in the opinion do not specify the statutory source for the State’s request

15
1-09-2638 & 1-09-2991

for an order to detain the respondent for further psychiatric evaluation or the ex parte hearing

held pursuant to that request. In addition, the facts do not state whether the second petition was

filed pursuant to article VI or article VII of the Code, but it is clear that as of the time of the

detention and examination hearing, no petition was pending and that the hearing proceeded on an

emergency basis.

In contrast to the facts of that case, here, a nonemergency petition had been filed when the

hearing in question ensued pursuant to that petition. Based on that petition, respondent was

alleged to be subject to involuntary admission and, thus, was entitled to counsel. We further note

that assuming In re Nancy A. correctly stated the standard for reviewing the trial court’s decision

whether to permit counsel to participate on behalf of a respondent at an emergency detention

hearing, we question whether any sound reason exists for prohibiting the participation of counsel

who is ready and willing to participate. See In re Helen S., 342 Ill. App. 3d at 332 (the

respondent’s attorney directly participated in a section 3-607 hearing).

Having determined that Spahn was entitled to represent respondent at the hearing on

September 28, 2009, the question remains whether the court improperly limited Spahn’s

participation. Section 3-701(b) does not specify what type of inquiry is necessary, i.e., an

informal inquiry conducted by the trial judge or a more formal inquiry at which any witness is

examined by the parties. As a result, it appears that a trial court has discretion regarding how the

inquiry shall proceed. Nonetheless, we find that whereas here, the court permitted the State to

present and directly examine the petitioner as a witness, the court abused its discretion by

denying the respondent’s counsel the opportunity to cross-examine the petitioner. We find no

16
1-09-2638 & 1-09-2991

reason for the disparate treatment of respondent that resulted from requiring her counsel to filter

all questions through the trial judge. Assuming the court was attempting to expeditiously resolve

this matter, the benefit to be gained from the procedure here was minimal when compared with

the benefit of permitting respondent’s attorney to expose any doubts regarding the reasonableness

of John’s belief that respondent needed to be involuntarily admitted.

With that said, this error does not require reversal because the record does not show

respondent suffered prejudice. In re Lisa G.C., 373 Ill. App. 3d 586, 590 (2007) (reversal for

failure to comply with the Code is required only where the respondent is prejudiced by such

failure). The stipulated statement of facts from the hearing on September 28, 2009, generically

states that the trial court denied Spahn’s request to ask John two questions related to respondent’s

ability to care for herself and that the court did not think the questions were appropriate. We can

only speculate as to what those specific questions were. To determine what follow-up questions

may have been asked had Spahn been permitted to freely submit questions directly to John would

require even further speculation. We cannot find prejudice based entirely on speculation.

We also find the court properly exercised its discretion by denying Spahn’s request to

have respondent and Dr. Leyba testify. Section 3-701(b) specifically grants the court discretion

to “inquire of the petitioner” but makes no mention of any other parties. In addition, permitting

the testimony of other parties presents the risk that a mere “inquiry” will transform into a mini

trial. Here, the stipulated facts from the hearing indicate that John’s testimony was sufficient for

the trial court to determine whether there were reasonable grounds to believe the facts in the

petition were true and that respondent was subject to involuntary admission. We find the trial

17
1-09-2638 & 1-09-2991

court did not abuse its discretion by deciding that further testimony was not needed at this

preliminary stage.

Next, respondent asserts that a hearing for an order of detention and examination pursuant

to article VII must be recorded verbatim. Section 3-817 states that “[a] verbatim record shall be

made of all judicial hearings held pursuant to this Chapter.” 405 ILCS 5/3-817 (West 2008). The

chapter referred to is chapter III of the Code, which encompasses both articles VI and VII.

Because the judicial hearing on September 28, 2009, was held pursuant to chapter III, the trial

court was required to make a verbatim record and erred by conducting a portion of the

proceeding off of the record.

The State does not acknowledge section 3-817, but again relies on this court’s prior

decision in In re Nancy A. There, the respondent argued on appeal that she was entitled to a

transcript of the hearing leading to the entry of the emergency order for detention and

examination, rather than arguing that the hearing should have been recorded. In re Nancy A.,

344 Ill. App. 3d at 554. In rejecting the respondent’s claim, the reviewing court held that

because the hearing was conducted off the record, no transcript existed. The reviewing court

further stated “there is no requirement in the Code that detention hearings be conducted on the

record, and respondent has not stated how the lack of transcript has prejudiced her.” In re Nancy

A., 344 Ill. App. 3d at 554. It appears from this analysis that the parties in In re Nancy A. did not

bring section 3-817 to the court’s attention, as it is clearly impossible to obtain a “verbatim”

record of a proceeding which is held off the record. Accordingly, we are unpersuaded by the

State’s reliance on that case.

18
1-09-2638 & 1-09-2991

Nonetheless, our supreme court has held that failure to comply with even mandatory

provisions of the Code can be harmless error and cause no prejudice to a respondent. See In re

Nau, 153 Ill. 2d 406, 416, 419, 420-23 (1992). We also note that aside from In re Nancy A., on

one occasion this court has found that the failure to strictly comply with section 3-817 was not

reversible error. In re Timothy H., 301 Ill. App. 3d 1008, 1013 (1998). We acknowledge that

following Nau, this court has stated that although it is appropriate to consider any resulting

prejudice under an abuse of discretion standard, prejudice is irrelevant to violations of mandatory

provisions of the Code. In re Michael D., 306 Ill. App. 3d 25, 28 (1999). Because the court in

that case failed to consider Nau, we find it appropriate to determine whether any prejudice

resulted from this error.

We find no prejudice under these circumstances, since respondent’s counsel and the State

agreed to a stipulated statement of facts from that proceeding. To the extent we have observed

certain omissions in that statement of facts, it appears to have been the product of the parties’

oversight, rather than an inability to reconstruct the record. Any error or prejudice to be

attributed to respondent’s counsel’s failure to include more detail in the statement of facts is a

separate issue from the court’s failure to conduct the hearing on the record. The record does not

show respondent was prejudiced by the court’s error, and accordingly, we find reversal is not

warranted.

For the foregoing reasons, we affirm the judgments on appeal.

Affirmed.

19
1-09-2638 & 1-09-2991

REPORTER OF DECISIONS – ILLINOIS APPELLATE COURT
(Front Sheet to be Attached to Each Case)
Please Use In re KAREN E. ) Appeal from the
Following
Form: (The People of the State of Illinois, ) Circuit Court of
) Cook County.
Complete Petitioner-Appellee, )
TITLE
of Case )
v. ) No. 09 CoMH 3022
)
Karen E., ) Honorable
) Alfred J. Paul,
Respondent-Appellant). ) Judge Presiding.
__________________________________________)
)
In re KAREN E. )
(The People of the State of Illinois, )
)
Petitioner-Appellee, )
)
v. ) No. 09 CoMH 3099
)
Karen E., ) Honorables
) Alfred J. Paul,
Respondent-Appellant). ) Edward P. O’Brien
) Judges Presiding.

Docket No. Nos. 1-09-2638 & 1-09-2991 (Cons.)
Appellate Court of Illinois
COURT
First District, FOURTH Division

Opinion March 10, 2011
Filed (Give month, day and year)

JUSTICES JUSTICE LAVIN delivered the judgment of the court, with opinion.
Gallagher, P.J., and Pucinski, J., concurred.

APPEAL Lower Court and Trial Judge(s) in form indicated in the margin:
from the The Honorables Alfred J. Paul and Edward P. O’Brien, Judges Presiding.
Circuit Ct. of
Cook County.

20
1-09-2638 & 1-09-2991

For Indicate if attorney represents APPELLANTS or APPELLEES and include
APPELLAN attorneys of counsel. Indicate the word NONE if not represented.
TS,
John Doe, of
Attorneys for
Chicago.
Respondent/Appellant:
For Veronique Baker
APPELLEES Laurel Spahn, Staff Attorney
, Legal Advocacy Service
Smith and Illinois Guardianship & Advocacy Commission, W est Suburban Office
Smith of P.O. Box 7009
Chicago, Hines, IL 60141-7009
Joseph 708.338.7500
Brown, (of
Counsel)
Attorneys for Petitioner/Appellee:
Also add
attorneys for Anita Alvarez
third-party Alan J. Spellberg, Marie Quinlivan Czech, Mary Beth Kinnerk, Of Counsel
appellants or State’s Attorney, County of Cook
appellees. Room 309, Daley Center
Chicago, IL 60602

21