In Re Mt

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

In re MT.

JOHN ROSS, UNPUBLISHED
June 22, 2023
Petitioner-Appellee,

v No. 363415
Washtenaw Probate Court
MT, LC No. 22-000679-MI

Respondent-Appellant.

Before: CAMERON, P.J., and MURRAY and GADOLA, JJ.

PER CURIAM.

Respondent appeals as of right the order for mental health treatment. We affirm.

I. BACKGROUND FACTS AND PROCEDURAL HISTORY

This case arises from an altercation resulting from respondent’s serious mental health
issues. Respondent was hospitalized and a petition was filed requesting the probate court
determine respondent was an individual requiring mental health treatment and order
hospitalization for ongoing treatment. After a mental health hearing, the probate court found by
clear and convincing evidence respondent required mental health treatment. The probate court
entered a written order requiring respondent to receive combined hospitalization and out-patient
treatment for no longer than 180 days, with an initial hospitalization period up to 60 days. This
appeal followed.

II. DEFERRAL

Respondent argues the probate court erred because it failed to address his desire to defer
the hearing and allowed the hospital to make the deferral determination. We disagree.

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 A. STANDARD OF REVIEW

We review for an abuse of discretion the probate court’s dispositional orders and for clear
error its factual findings. In re Portus, 325 Mich App 374, 381; 926 NW2d 33 (2018). “An abuse
of discretion occurs when the probate court chooses an outcome outside the range of reasonable
and principled outcomes.” Id. (quotation marks and citation omitted). A finding is clearly
erroneous “when a reviewing court is left with a definite and firm conviction that a mistake has
been made, even if there is evidence to support the finding.” Id. (quotation marks and citation
omitted).

This issue also concerns issues of statutory interpretation, which we review de novo. In re
Guardianship of Redd, 321 Mich App 398, 404; 909 NW2d 289 (2017). “When interpreting
statutes, our primary goal is to ascertain and give effect to the intent of the Legislature.” In re
Portus, 325 Mich App at 381 (quotation marks and citation omitted). When interpreting the
statute, we look to “the specific language of the statute, considering the fair and natural import of
the terms employed, in view of the subject matter of the law. We must examine the statute as a
whole, reading individual words and phrases in the context of the entire legislative scheme.” Id.
at 381-382.

Respondent did not object to the probate court’s alleged failure to address respondent’s
desire to defer the hearing, nor did he object to the hospital’s alleged statement that it would not
accept a deferral. Therefore, respondent’s arguments are not preserved for appeal. See In re
Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008). We review respondent’s unpreserved
arguments for plain error affecting a party’s substantial rights. Id. at 8-9. “Generally, an error
affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings.”
Id. at 9.

B. ANALYSIS

“Proceedings seeking an order of involuntary mental health treatment under the Mental
Health Code for an individual on the basis of mental illness . . . generally are referred to as ‘civil
commitment’ proceedings.” In re Portus, 325 Mich App at 382 (citations omitted). “The specific
procedures for obtaining continuing orders of hospitalization or other forms of treatment based on
a person’s mental illness are contained in various provisions of Chapter 4 of the Mental Health
Code, MCL 330.1400 et seq.” Id. Under MCL 330.1455(3):

The subject of a petition under section 434 who is hospitalized pending the
court hearing, within 72 hours after the petition and clinical certificates have been
filed with the court, shall meet with legal counsel, a treatment team member
assigned by the hospital director, a person assigned by the executive director of the
responsible community mental health services program or other program as
designated by the department, and, if possible, a person designated by the subject
of the petition, in order to be informed of all of the following:

(a) The proposed plan of treatment in the hospital.

(b) The nature and possible consequences of commitment procedures.

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 (c) The proposed plan of treatment in the community consisting of either an
alternative to hospitalization or a combination of hospitalization and assisted
outpatient treatment with hospitalization not to exceed 60 days.

(d) The right to request that the hearing be temporarily deferred, with a
continuing right to demand a hearing during the deferral period. The deferral period
shall be 60 days if the individual chooses to remain hospitalized, or 180 days if the
individual chooses outpatient treatment or a combination of hospitalization and
outpatient treatment. [MCL 330.1455(3).]

MCL 330.1455(6) outlines the procedure for requesting a deferral, stating:

The subject of a petition under section 434 may file with the court a request
to temporarily defer the hearing for not longer than 60 days if the individual chooses
to remain hospitalized, or 180 days if the individual chooses outpatient treatment
or a combination of hospitalization and outpatient treatment. The request shall
include a stipulation that the individual agrees to remain hospitalized and to accept
treatment as may be prescribed for the deferral period, to accept and follow the
proposed plan of treatment as described in subsection (3)(c) for the deferral period,
or to accept and follow the proposed plan for outpatient treatment, and further
agrees that at any time the individual may refuse treatment and demand a hearing
under section 452. The request to temporarily defer the hearing shall be on a form
provided by the department and signed by the individual in the presence of his or
her legal counsel and shall be filed with the court by legal counsel. [MCL
330.1455(6).]

Thus, under the plain, unambiguous language of the statutes, respondent must be informed about
his right to defer his hearing, and only respondent is permitted to request a deferral of the hearing.
However, if respondent chooses to defer, he must agree to remain hospitalized and accept treatment
during the deferral period. The request for deferral is also required to be reduced to writing by
way of a form provided by the department. Further, it must contain respondent’s signature and be
filed with the court. MCL 330.1455(6).

Respondent argues the probate court erred because it failed to address his desire to defer
the hearing. But respondent never requested a deferral of his hearing, or indicated that he was
even interested in deferring his hearing. There also was no evidence to suggest that respondent
was prevented from exercising his right to defer. To the contrary, respondent’s counsel expressly
noted respondent was not seeking deferral, stating: “Your Honor, I’m not sure that he wishes to
defer. I just wanted the hospital to explore whether that was an option based on his compliance
with medication prior to the hearing.” Respondent later expressed his willingness to cooperate
with the proposed treatment and merely sought clarification regarding the length of his
hospitalization. There is also no indication that respondent requested a deferral in conformity with
the procedure outlined in MCL 330. 1455(6). Because there is no evidence to suggest respondent
sought a deferral of the hearing, there is no basis to conclude the probate court erred by failing to
grant a deferral.

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 Respondent also asserts the probate court erred because it allowed the hospital to determine
whether the hearing was deferred. While we agree that the decision to defer the hearing was not
for the hospital to decide, there is no indication the hospital made any determination regarding
deferral. MCL 330.1455(6) requires a respondent seeking to defer the hearing to agree to remain
hospitalized and accept treatment during the deferral period. Thus, it is necessary for the parties
to determine before the hearing whether respondent would agree to follow the treatment plan,
otherwise, deferral is inappropriate.

At the beginning of the hearing, the parties attempted to ascertain whether respondent
sought to defer the hearing. Respondent’s treating psychiatrist stated that she believed a hearing
was necessary. Later during the hearing, the psychiatrist expressed concern about whether
respondent understood the need for treatment:

He has wavered about whether or not he has been willing to accept treatment at
times, saying he is okay with it. And then at other times he appears to be making
decisions based on things that he is not able to articulate but appear to be not based
in reality about not, not being willing to take medications.

The record reflects that the psychiatrist was not making a determinative decision on whether to
defer the hearing. Rather, she was expressing her opinion that deferral was not appropriate because
respondent had wavered on whether to accept treatment, and MCL 330.1455(6) required
respondent to do so. Because the psychiatrist’s testimony provided context for why deferral was
not a viable option for respondent, and respondent neither sought nor indicated he was interested
in a deferral, we conclude that the probate court did not err in finding that respondent was an
individual requiring treatment.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

Respondent argues he was denied the effective assistance of counsel because his counsel
gave the hospital discretion and control over respondent’s deferral decision and failed to file the
certificate of consultation.1 We disagree.

A. STANDARD OF REVIEW

To preserve an ineffective assistance of counsel claim for appellate review, an evidentiary
hearing must have been requested and held before the probate court “to create a factual record

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We note respondent does not expressly characterize his arguments as a claim of ineffective
assistance of counsel. However, “[i]t is well settled that the gravamen of an action is determined
by reading the complaint as a whole, and by looking beyond mere procedural labels to determine
the exact nature of the claim.” In re Gerald L Pollack Trust, 309 Mich App 125, 158; 867 NW2d
884 (2015). The “gravamen” of respondent’s argument is his claim for ineffective assistance of
counsel because respondent contemplates “whether counsel’s conduct so undermined the proper
functioning of the process that it cannot be relied on to have produced a just result.” In re
Londowski, 340 Mich App at 515 (citation omitted). Therefore, we analyze respondent’s argument
as a claim for ineffective assistance of counsel.

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related to the alleged ineffective-assistance-of-counsel claims. . . .” In re Londowski, 340 Mich
App 495, 516; 986 NW2d 659 (2022) (citation omitted). The record indicates there was no request
for an evidentiary hearing, so one was not held to address respondent’s claims. Accordingly,
“appellate review is for errors apparent on the record, though we retain the authority to remand for
an evidentiary hearing if one is needed.” Id. (quotation marks and citation omitted). “The question
whether defense counsel performed ineffectively is a mixed question of law and fact; this Court
reviews for clear error the trial court’s findings of fact and reviews de novo questions of
constitutional law.” Id. (citation and quotation marks omitted). Our review in this case is for
“errors apparent on the record, though we retain the authority to remand for an evidentiary hearing
if one is needed.” Id. (citations and quotation marks omitted).

B. ANALYSIS

“[D]ue process requires that an individual subject to a petition in a civil commitment
proceeding has a right to the effective assistance of counsel.” In re Londowski, 340 Mich App at
515 (citation omitted). “[R]espondent must demonstrate that counsel’s performance was deficient
under an objective standard of reasonableness and that counsel’s errors were so serious as to
deprive the [respondent] of a fair [hearing] . . . whose result is reliable.” Id. (citations and
quotations marks omitted). With respect to civil commitment proceedings, “[t]he attorney must
serve as an advocate for the individual’s preferred position. If the individual does not express a
preference, the attorney must advocate for the position that the attorney believes is in the
individual’s best interest.” MCR 5.732(B).

Respondent first argues he was denied the effective assistance of counsel because his
counsel gave the hospital discretion and control over respondent’s deferral decision. However, as
previously discussed, the hospital did not make the decision whether to defer the hearing; that
decision remained solely with respondent, who chose not to exercise his right to defer. Again,
counsel stated, in relevant part: “Your Honor, I’m not sure that he wishes to defer. I just wanted
the hospital to explore whether that was an option based on his compliance with medication prior
to the hearing.” Counsel’s statement did not grant the psychiatrist or the hospital discretion over
respondent’s deferral decision. Rather, it highlights counsel’s attempt to ascertain whether
respondent would have the option to defer under MCL 330.1455(6). Arguably, because
respondent did not express a preference regarding deferral, counsel was simply advocating for the
position he believed was in respondent’s best interests, as required by MCR 5.732. Respondent’s
claim fails because the record does not support a finding respondent’s counsel’s performance fell
below an objective standard of reasonableness or that any alleged errors deprived respondent of a
fair hearing.

Respondent next argues he was denied the effective assistance of counsel because counsel
failed to file the certificate of consultation. MCL 330.1454 states, in relevant part:

(8) Legal counsel for the subject of a petition under section 452(1)(A) who
is hospitalized pending the court hearing shall consult in person with the individual
for the first time not more than 72 hours after the petition and 2 clinical certificates
have been filed with the court.

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 (9) After the consultation required in subsection (7) or (8), counsel promptly
shall file with the court a certificate stating that he or she personally has seen and
has consulted with the subject of a petition as required by this section. [MCL
330.1454(8), (9).]

Thus, counsel had a duty to consult with respondent before the hearing and to promptly file a
consultation certificate affirming he consulted with respondent.

At the beginning of the hearing, the probate court asked respondent’s counsel whether he
was able to consult with respondent before the hearing. Respondent’s counsel confirmed,
stating: “I have your Honor, and I believe I had filed the requisite certificate. If I haven’t, I will.”
According to the register of actions, however, no certificate was filed. Thus, respondent is correct
counsel failed to uphold his statutory duty under MCL 330.1454(9). However, it cannot be said
that counsel’s failure to file the certificate of consultation was an error “so serious as to deprive
the [respondent] of a fair [hearing] . . . .” In re Londowski, 340 Mich App at 515 (quotation marks
and citation omitted). Rather, this appears to be an administrative error. Because the record shows
counsel consulted with respondent before the hearing and seems to have, at the very least, drafted
a consultation certificate, respondent’s due-process rights have not been violated, and his claim
fails.

Affirmed.

/s/ Thomas C. Cameron
/s/ Christopher M. Murray
/s/ Michael F. Gadola

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