In Re Ss

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 SS.

CAMERON WOLBRINK, UNPUBLISHED
August 10, 2023
Petitioner-Appellee,

v No. 364488
Allegan Probate Court
SS, LC No. 22-064014-MI

Respondent-Appellant.

Before: YATES, P.J., and BORRELLO and PATEL, JJ.

PER CURIAM.

Respondent, SS, appeals as of right the probate court’s order requiring respondent to
involuntarily undergo mental-health treatment. Respondent challenges the probate court’s order,
arguing that the court failed to comply with MCL 330.1438, which requires two clinical certificates
within 24 hours of involuntary hospitalization for mental-health treatment. Respondent further
argues that she did not meet the statutory requirements for involuntary hospitalization and that the
court should have considered alternative treatment options. We affirm.

I. BACKGROUND

Respondent’s husband brought her to urgent care due to concerns for her mental health.
Petitioner, a social work clinician, signed a petition seeking involuntary treatment of respondent's
mental illness. The petition alleged that respondent was an individual with mental illness, that her
judgment was so impaired by mental illness that she was unable to attend to her basic physical
needs or understand her need for treatment, and that her impaired judgement presented a
substantial risk of significant harm to herself or others. The petition was provided to respondent,
along with an explanation of rights, on Thursday, November 24, 2022 at 6:30 p.m.1 Respondent
was hospitalized based on the recommendation of the petition on Friday, November 25, 2022 at

1
November 24, 2022 was Thanksgiving, which is a legal holiday.

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12:15 a.m. The petition was filed with the probate court on Monday, November 28, 2022. The
petition was accompanied by two clinical certifications. The first one was signed by Dr. Bibhas
Singla, a psychiatrist, on November 25, 2022, at 10:40 a.m. The second certification was signed
by Dr. Swapnil Rath, also a psychiatrist, on November 26, 2022 at 9:10 a.m.

On November 28, 2022, the court ordered OnPoint Allegan to prepare an assessment of the
appropriateness of hospitalization or treatment options for respondent. The court held a hearing
on the petition on December 6, 2022. Dr. Folabo Dare, a psychiatrist, was recognized as an expert.
Dr. Dare testified that she diagnosed respondent with “[b]ipolar one disorder, current episode
manic severe with psychotic features[,]” which is defined as a mental illness under the mental
health code. Dr. Dare testified she observed that respondent had difficulty sleeping, and was
tangential and disorganized. Dr. Dare stated that respondent did not believe that she had a mental
illness, that she needed medication, or that she needed to be hospitalized for mental health
treatment. Although respondent was taking a low dosage of medication so that she could be
released from hospital, she refused to increase her medication dosage. Dr. Dare opined that
respondent was taking a medically unsafe amount of thyroid medication because respondent did
not understand her diagnosis and believed that her bipolar I disorder was related to her thyroid
function. The psychiatrist opined that respondent was at risk of self-harm because “she [wa]s
unsafely taking . . . her thyroid medication.” Dr. Dare recommend that respondent remain
hospitalized and that her medication continue to be titrated to remit her symptoms. Dr. Dare opined
that this was the least restrictive form of treatment available.

Respondent testified on her own behalf, after which the court found by clear and
convincing evidence that respondent was a person who required treatment under MCL
330.1401(1)(a) and MCL 330.1401(1)(c). The court ordered up to 60 days of hospitalization and
up to 180 days of assisted outpatient treatment. This appeal followed.

I. STANDARDS OF REVIEW

We review questions of law, including whether a party complied with a statute, de novo.
Natural Resources Defense Council v Dep’t of Env’t Quality, 300 Mich App 79, 90; 832 NW2d
288 (2013). “This Court reviews for an abuse of discretion a probate court’s dispositional rulings
and reviews for clear error the factual findings underlying a probate court's decision.” In re Portus,
325 Mich App 374, 381; 926 NW2d 33 (2018). A probate court’s factual finding is clearly
erroneous if the “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. (cleaned up). A probate court abuses
its discretion when it “chooses an outcome outside the range of reasonable and principled
outcomes.” Id. (cleaned up).

“Whether a defendant has been denied the effective assistance of counsel is a mixed
question of fact and constitutional law,” People v Solloway, 316 Mich App 174, 187; 891 NW2d
255 (2016), because “[t]he trial court must first find the facts and then decide whether those facts
constitute a violation of the defendant’s constitutional right to effective assistance of counsel,”
People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004). This Court reviews the court’s
factual findings for clear error. Id. A finding is clearly erroneous if “the reviewing court is left
with a definite and firm conviction that a mistake has been made.” People v Johnson, 466 Mich
491, 497-498; 647 NW2d 480 (2002). This Court reviews the court’s constitutional

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determinations, such as whether a defendant’s right to counsel was violated, de novo. Matuszak,
263 Mich App at 48.

Generally, an appellant must raise an issue in the lower court for it to be preserved for
appellate review. Glasker-Davis v Auvenshine, 333 Mich App 222, 227; 964 NW2d 809 (2020).
We review an unpreserved claim of error, whether constitutional or nonconstitutional, for plain
error affecting substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130
(1999).2 “To establish plain error, [a respondent] must establish that (1) an error occurred, (2) the
error was ‘plain’—i.e., clear or obvious, and (3) the error affected substantial rights—i.e., the
outcome of the lower court proceedings was affected.” People v Burger, 331 Mich App 504, 516;
953 NW2d 424 (2020) (cleaned up).

II. COMPLIANCE WITH MCL 330.1438

Respondent argues that the petition should have been immediately dismissed because,
contrary to MCL 330.1438, petitioner failed to file two clinical certificates within 24 hours of
respondent’s hospitalization. We disagree. Because respondent did not raise this issue in the
probate court, our review is for plain error. Carines, 460 Mich at 763-764.

An action “seeking an order of involuntary mental-health treatment under the Mental
Health Code,” MCL 330.1400 et seq., “for an individual on the basis of mental illness” results in
what is generally referred to as “ ‘civil commitment’ proceedings.” In re Portus, 325 Mich App
at 382. This Court has “repeatedly held that in proceedings to commit persons as mentally ill the
statute under which they are committed must be strictly complied with.” In re Wojtasiak, 375
Mich 540, 544; 134 NW2d 741 (1965). If the plain and ordinary meaning of the language is clear,
then judicial construction is neither necessary nor permitted. Pace v Edel-Harrelson, 499 Mich 1,
7; 878 NW2d 784 (2016).

An adult may initiate civil-commitment proceedings by either medical certification, MCL
330.1423 (admission by certification), or petition, MCL 330.1434(1) (admission by petition).
Under MCL 330.1423, a petition may be presented to a hospital to hospitalize an individual for
mental health treatment pending receipt of medical certification:

A hospital designated by the department or by a community mental health services
program shall hospitalize an individual presented to the hospital, pending receipt of
a clinical certificate by a psychiatrist stating that the individual is a person requiring
treatment, if a petition, a physician’s or a licensed psychologist’s clinical certificate,
and an authorization by a preadmission screening unit have been executed. For an
individual hospitalized under this section, a petition shall have been executed not

2
Although “the plain-error rule of Carines does not apply to civil cases,” Tolas Oil & Gas
Exploration Co v Bach Servs & Mfg, LLC, ___ Mich App ___, ___; ___ NW2d ____ (2023)
(Docket No. 359090); slip op at 5, the foregoing holding does not apply to civil commitment cases
because, similar to termination of parental right cases, civil commitment cases present different
constitutional considerations than traditional civil cases. See id. at ___; slip op at 5 n 3.

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 more than 10 days before the presentation of the individual to the hospital, and the
petition must meet the conditions set forth in [MCL 330.1434(1) and (2)].

A respondent hospitalized under MCL 330.1423 may only be detained for 24 hours. MCL
330.1429(1). “During that time the individual must be examined by a physician or a licensed
psychologist unless a clinical certificate has already been presented to the hospital.” Id. “If the
examining physician or psychologist executes a clinical certificate, the individual may be
hospitalized under [MCL 330.1423].” Id. Thereafter, the individual must “be examined by a
psychiatrist” no “later than 24 hours, excluding legal holidays, after hospitalization.” MCL
330.1430. But “[t]he examining psychiatrist shall not be the same physician upon whose clinical
certificate the patient was hospitalized.” Id. “If the psychiatrist does certify that the patient is a
person requiring treatment, the patient’s hospitalization may continue pending hearings convened
pursuant to [MCL 330.1451 to 330.1465].” Id.

In this case, petitioner signed the petition on November 24, 2022 and, pursuant to MCL
330.1423, respondent was hospitalized on November 25, 2022 at 12:15 a.m. The first clinical
certification was signed by Dr. Singla, a psychiatrist, on November 25, 2022 at 10:40 a.m., which
was within 24 hours after respondent was hospitalized and thus the requirements of MCL
330.1429(1) were met. The second clinical certification was signed by Dr. Rath, also a
psychiatrist, on November 26, 2022 at 9:10 a.m., which was 33 hours after respondent was
hospitalized and greater than the 24-hour maximum allotted by MCL 330.1430. Although the time
discrepancy was only a short period, the 24-hour requirement is clear, and the failure of the trial
court to enforce the statutory requirement was plain error. See Carines, 460 Mich. at 763; In re
Wojtasiak, 375 Mich. at 544.3

Nonetheless, we conclude that the plain error did not affect respondent’s substantial rights.
A 9-hour discrepancy did not alter the clinical findings, petitioner’s expert’s testimony, or the
timing of the petition hearing. Before the petition hearing, respondent was found to be mentally
ill by two independent physiatrists. At the petition hearing, a third psychiatrist testified that
respondent was mentally ill and capable of self-harm. Respondent also testified. Moreover, the
probate court scheduled the petition hearing on the same day that it received the petition.
Accordingly, the plain error was not outcome-determinative. See Carines, 460 Mich at 763.

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Respondent’s reliance on MCL 330.1438 is misplaced. This case entailed an admission by
medical certification under MCL 330.1423, not an admission by petition under MCL 330.1434,
and a court order was not required to take respondent into protective custody and hold her until
timely seen by a psychiatrist and released. Indeed, when an individual is admitted to a hospital
under MCL 330.1423, the petition must comply with MCL 330.1434(1) and (2). But the remaining
subsections of MCL 330.1434 and MCL 330.1438 are only applicable to an admission by petition.

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 III. PERSON REQUIRING TREATMENT

Respondent argues that the probate court incorrectly determined that respondent was a
“person requiring treatment” under MCL 330.1401(1)(a). We disagree.

Before a probate court may order an individual to undergo involuntary mental-health
treatment, the probate court must make two determinations. See MCL 330.1468 and
MCL330.1469(a). First, a probate court must find that an individual is a “person requiring
treatment.” In re Portus, 325 Mich App at 385. A “person requiring treatment” is defined as either
of the following:

(a) An individual who has mental illness, and who as a result of that mental
illness can reasonably be expected within the near future to intentionally or
unintentionally seriously physically injure himself, herself, or another individual,
and who has engaged in an act or acts or made significant threats that are
substantially supportive of the expectation.

(b) An individual who has mental illness, and who as a result of that mental
illness is unable to attend to those of his or her basic physical needs such as food,
clothing, or shelter that must be attended to in order for the individual to avoid
serious harm in the near future, and who has demonstrated that inability by failing
to attend to those basic physical needs.

(c) An individual who has mental illness, whose judgment is so impaired
by that mental illness, and whose lack of understanding of the need for treatment
has caused him or her to demonstrate an unwillingness to voluntarily participate in
or adhere to treatment that is necessary, on the basis of competent clinical opinion,
to prevent a relapse or harmful deterioration of his or her condition, and presents a
substantial risk of significant physical or mental harm to the individual or others.
[MCL 330.1401(1).]

A “ ‘mental illness’ means a substantial disorder of thought or mood that significantly
impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary
demands of life.” MCL 330.1400(g). A probate court’s determination whether somebody is a
person requiring treatment requires an assessment of (1) whether that person suffers from a mental
illness and (2) the impacts that the mental illness has on the person’s life or behavior. See MCL
330.1401. The court or a jury must find that a person requires treatment by clear and convincing
evidence. MCL 330.1465. “Evidence is clear and convincing if it produces in the mind of the trier
of fact a firm belief or conviction as to the truth of the allegations sought to be established[.]” In
re Pederson, 331 Mich App 445, 472; 951 NW2d 704 (2020) (cleaned up).

Respondent argues that there was minimal evidence supporting the probate court’s finding
that she had a mental illness. She maintains that her testimony established that she had a religious
experience. As reflected in the clinical certificates that accompanied the petition, two independent
psychiatrists personally examined respondent and diagnosed her with bipolar I disorder. A third
psychiatrist, who also personally examined respondent, testified at the hearing that respondent’s
diagnosis was bipolar I disorder, which was a mental-health illness under the Mental Health Code.

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We give broad deference to the probate court’s credibility determinations “because of its unique
vantage point regarding witnesses, their testimony, and other influencing factors not readily
available to the reviewing court.” In re Portus, 325 Mich App at 397 (cleaned up). The probate
court did not clearly err by finding that clear and convincing evidence established that respondent
had a mental illness.

Respondent further argues that, even if she had a mental illness, there was no evidence
supporting the probate court’s finding that she was at risk of self-harm. Dr. Dare testified she
observed that respondent had difficulty sleeping, and was tangential and disorganized. She stated
that respondent refused to increase her medication dosage and was only taking medication to get
out of the hospital. Dr. Dare opined that respondent did not understand her diagnosis and believed
that her bipolar I disorder was related to her thyroid function. Consequently, respondent was
taking a medically unsafe amount of thyroid medication, which Dr. Dare opined placed respondent
at risk of self-harm. The evidence showed that respondent could not attend to her basic needs, did
not understand her diagnosis, and required intervention to avoid serious harm in the future. We
conclude that the trial court had sufficient evidence to find that respondent was a “person requiring
treatment” under MCL 330.1401(1)(a). Because we have no basis to reject the trial court’s
findings, we must uphold its conclusion that respondent is a “person requiring treatment” pursuant
to the Mental Health Code.

IV. INEFFECTIVE ASSISTANCE OF COUNSEL

Respondent further argues that trial counsel was ineffective by failing to (1) assist
respondent in deciding whether to pursue an independent evaluation and (2) obtain an expert to
counter the testimony of petitioner’s expert that respondent suffered from bipolar disorder. We
disagree. Because this issue is not preserved, our review is for plain error. Carines, 460 Mich at
763-764.4

An individual “who is the subject of a petition for involuntary mental health treatment has
a statutory right to be represented by counsel.” In re Londowski, 340 Mich App 495, 504; 986
NW2d 659 (2022). The right to counsel guaranteed by the United States Constitution, US Const,
Am VI, and the Michigan Constitution, Const 1963, art 1, § 20, includes the right to effective
assistance of counsel. In re Londowski, 340 Mich App at 504-506. Our Supreme Court has
adopted the standard for evaluating the effectiveness of counsel set out by the United States
Supreme Court in Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984).
People v Pickens, 446 Mich 298, 318; 521 NW2d 797 (1994). “Accordingly, the benchmark for
judging any claim of ineffectiveness is 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 (cleaned up). “First, the respondent must show that counsel’s
performance was deficient under an objective standard of reasonableness,” which “requires
showing that counsel made errors so serious that counsel was not functioning as the counsel

4
A respondent must file a motion in the probate court for a new trial or an evidentiary hearing,
People v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012), or file a timely motion to remand in
this Court, People v Ginther, 390 Mich 436, 444-445; 212 NW2d 922 (1973), to preserve an issue
of ineffective assistance of counsel.

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guaranteed by due process.” Id. (cleaned up). Additionally, a counsel’s performance must be
measured without the benefit of hindsight. People v LaVearn, 448 Mich 207, 216; 528 NW2d 721
(1995). “Second, the respondent must show prejudice by demonstrating that counsel’s errors were
so serious as to deprive the [respondent] of a fair [hearing] . . . whose result is reliable.” In re
Londowski, 340 Mich App at 515 (cleaned up; alterations in original). However, “[e]ffective
assistance of counsel is presumed, and a [respondent] bears a heavy burden of proving otherwise.”
People v Putman, 309 Mich App 240, 248; 870 NW2d 593 (2015).

The Mental Health Code requires that a hospitalized individual be informed of certain
rights, including the right to an independent clinical evaluation. MCL 330.1453(2). Contrary to
respondent’s argument, she received notice of a right to an independent clinical evaluation.

Respondent further argues that trial counsel was ineffective by failing to assist respondent
in deciding whether to pursue an independent clinical evaluation. The record is silent as to any
indication that trial counsel refused to assist respondent in discussing the advantages and
disadvantages about an independent clinical evaluation. And respondent fails to provide an offer
of proof for such evidence on appeal. Consequently, it is unknown what conversations trial
counsel and respondent had or did not have about pursuing an independent clinical evaluation.
Nonetheless, respondent also fails to offer proofs that show how an independent clinical evaluation
would have been beneficial at the petition hearing. Instead, respondent merely speculates as to
what a potential independent clinical evaluation might have established. Accordingly, we find that
respondent has failed to establish prejudice stemming from trial counsel’s alleged failure to assist
respondent in deciding whether to pursue an independent clinical evaluation.

Respondent also argues that trial counsel failed to obtain an expert to counter petitioner’s
expert’s testimony that respondent suffered from bipolar disorder. A “decision[] regarding what
evidence to present, whether to call witnesses, and how to question witnesses are presumed to be
matters of trial strategy.” People v Horn, 279 Mich App 31, 39; 755 NW2d 212 (2008). A review
of the record does not reveal anything that suggests that trial counsel’s decision not to obtain an
expert was not a reasonable strategic choice. A retained expert might have agreed with petitioner’s
expert witness, so trial counsel could have reasonably decided that obtaining an expert was not
worth the risk, especially if trial counsel considered that two independent physiatrists also
diagnosed respondent with bipolar disorder. Accordingly, we find that respondent has not
established that trial counsel was deficient by not obtaining an expert to counter petitioner’s
expert’s testimony that respondent suffered from bipolar disorder.

V. ALTERNATIVES TO HOSPITALIZATION

Finally, respondent argues that the probate court failed to consider alternatives to
hospitalization. We disagree.

There is ample evidence that the probate court complied with MCL 330.1469a(1) and
considered alternatives to hospitalization. The court explicitly stated that alternatives to
hospitalization were considered. A report on alternative mental-health treatment was furnished to
the trial court before disposition, and the court expressed that it considered the report. Based on
that report and all other evidence presented, the court ordered respondent to spend no more than
60 days hospitalized and subsequent outpatient treatment for the remaining period after

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hospitalization up to 180 days, which was consistent with the guidelines set forth in MCL
330.1472a(1)(a) to (1)(c). We conclude that the trial court had the required report and other
evidence needed to consider treatment alternatives and did not err by failing to consider
alternatives to hospitalization before issuing its dispositional ruling.

Affirmed.

/s/ Christopher P. Yates
/s/ Stephen L. Borrello
/s/ Sima G. Patel

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