## Illinois Official Reports

Appellate Court

In re James W. , 2014 IL App (5th) 110495

Appellate Court Caption In re JAMES W. (The People of The State of Illinois, Pet itionerAppellee, v. James W., Respondent-Appellant).

District & No. Fifth District

Docket No. 5-11-0495

Filed May 30, 2014

Held

( Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of

the reader. ) Respondent was properly ordered to remain subject t o involuntary admission and hospitalized in a mental health or de velopmental center of the Department of Human Services, which is the l east restrictive environment currently appropriate and available, si nce the trial court’s error in giving unconstitutional and outdated crite ria for involuntary commitment at the hearing on the State’s petition t o continue respondent’s involuntary admission was harmless whe re the jury returned a general verdict and there was clear and convincing evidence that respondent was unable to care for his basic needs if not subject to involuntary commitment, respondent was n ot denied effective assistance of counsel, his counsel subjec ted the State’s case to meaningful adversarial testing, and the testimon y of a psychiatrist based on respondent’s condition at the time of the hearing satisfied the requirements of section 3-807 of the Mental Health and Developmental Disabilities Code.

Decision Under

Review Appeal from the Circuit Court of Randolph County, N o. 11-MH-126; the Hon. Richard A. Brown, Judge, presiding.

Judgment Affirmed.- 2 -

Counsel on
Appeal Veronique Baker and Barbara A. Goeben, both of Guar dianship & Advocacy Commission, of Alton, for appellant.

Jeremy R. Walker, State’s Attorney, of Chester (Pat rick Delfino, Stephen E. Norris, and Kelly M. Stacey, all of Stat e’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE STEWART delivered the judgment of the court , with opinion. Justices Goldenhersh and Spomer concurred in the ju dgment and opinion.

OPINION

¶ 1 The respondent, James W., appeals from the trial co urt’s October 13, 2011, order

concluding that he should remain subject to involun tary admission and be “hospitalized in a Department of Human Services mental health or devel opmental center, which is the least restrictive environment currently appropriate and a vailable.” We affirm.

¶ 2 BACKGROUND
¶ 3 On September 15, 2011, a petition was filed in the circuit court of Randolph County

seeking to continue the involuntary admission of th e respondent in a Department of Human Services mental health center pursuant to section 3 -813 of the Mental Health and Developmental Disabilities Code (the Code) (405 ILC S 5/3-813 (West 2010)). Ellen Steibel, a Chester Mental Health Center employee, alleged that the respondent was “a person with mental illness, who because of his or her illness i s reasonably expected, unless treated on an inpatient basis, to engage in conduct placing such person or another in physical harm or in reasonable expectation of being physically harmed” and is “a person with mental illness, who because of his or her illness is unable to provide for his or her basic physical need so as to guard

himself or herself from serious harm without the as sistance of family or others, unless treated on an inpatient basis.” The respondent was admitted , on an involuntary basis, to the Chester Mental Health Center on December 13, 2003, from the Dixon Correctional Center. Ms. Steibel alleged that the respondent believed he did not hav e a mental illness, was not always medication-compliant, exhibited aggression toward s taff and peers, and was paranoid with fixed delusions and poor insight and judgment.
¶ 4 Inpatient certificates by Chester Mental Health Ce nter staff psychiatrist Dr. T. Casey and

licensed social worker Tracy Mott were filed with t he petition. Both opined that the respondent was in immediate need of hospitalization because he was “a person with mental illness who, because of his or her illness is unable to provide for his or her basic physical need so as to guard- 3 -

himself or herself from serious harm, without the a ssistance of family or others, unless treated on an inpatient basis.”
¶ 5 Dr. Casey outlined the respondent’s history. At th e time of the report, the respondent was a

57-year-old single black man who had never married. He had an eighth-grade education. Since 1986 he had multiple Department of Human Services a dmissions. He had been convicted and incarcerated in the Department of Corrections for r obbery, attempted murder, aggravated battery, aggravated sexual assault, possession of a n illicit substance, and parole violation. He

was readmitted to the Chester Mental Health Center in December 2003 as an involuntary

admission from the Dixon Correction Center after re aching his mandatory parole date. The respondent had been diagnosed with chronic paranoid schizophrenia and had been treated with various antipsychotic medications.
¶ 6 Dr. Casey wrote that he examined the respondent on September 7, 2011. Dr. Casey

reported that the respondent was psychotic, paranoi d, and periodically aggressive, engaged in sexually inappropriate behavior, and possessed poor insight and judgment. He noted that the respondent was preoccupied and delusional about hav ing syphilis. He complained about painful urination and blood in his urine, and he de manded penicillin shots despite negative tests. Dr. Casey wrote that the respondent did not believe he has a mental illness and had problems with medication compliance, resulting in a n increase in positive symptoms of psychosis. Dr. Casey noted that while the responden t’s last restraint was in January 2011, he continued to be verbally abusive and periodically p hysically aggressive. Dr. Casey opined that the respondent continued to need the structure and supervision provided in a secure setting because without it he was unlikely to comply with h is medications and treatment, causing him to further decompensate and inflict physical harm u pon others.
¶ 7 Ms. Mott examined the respondent on September 6, 2 011. In her inpatient certificate, she

noted that the respondent’s psychiatric history dat ed back to age 13. She wrote that he suffered from both paranoid and grandiose delusions. He beli eved that he was “Jesus Christ Superstar” and other important religious figures. He also had a fixed delusional belief that he had a constant urinary tract infection and needed daily d oses of antibiotics, despite repeated negative laboratory tests. Ms. Mott reported that since May 2011, the respondent had refused to take his medication on 19 occasions and, on May 31, 2011, to ld his therapist that he will not take his psychiatric medications when he is released. She no ted that he consistently presented with antisocial behaviors such as stealing from his peer s, harassing his peers, and having no regard for the welfare of others. Ms. Mott opined that the respondent was in need of involuntary hospitalization because he lacked insight into his mental illness, he demonstrated an impaired capacity for reality testing, and he was unable to understand his need for treatment. She believed that because of the length of time that th e respondent had been hospitalized and incarcerated, he would be unable to provide for his basic needs without extensive support in the community.
¶ 8 A treatment plan that was formulated on August 16, 2011, was attached to the petition. It

was signed by Dr. Casey and Wayne Womac, the respon dent’s coordinating psychologist. Three problems were identified: psychiatric symptom s, verbal and physical aggression, and inappropriate sexual behavior. The respondent was d iagnosed with chronic paranoid-type- 4 -

schizophrenia and an antisocial disorder. In the tr eatment plan it was noted that the respondent continued to be delusional. In particular, the resp ondent believed he had an undetected infection, that he was a central figure in the Old Testament, that he had “visions of light in the sky” that communicate with him, and that he was bei ng singled out for persecution. His delusions and paranoid ideations caused him to beco me violent or to defend himself with aggression and/or illegal behaviors. It was noted t hat while the respondent had not been as aggressive as in the past, he continued to harass h is peers. According to his treatment team, the respondent was not compliant with medications and t herapeutic interventions.
¶ 9 The respondent filed a motion for an independent e valuation. On September 26, 2011, the

trial court granted his motion and appointed Dr. Na geswara Vallabhaneni to conduct the independent evaluation.
¶ 10 On October 12, 2011, a jury trial was held. The in patient certificates and the treatment plan

were not admitted into evidence. Dr. Vallabhaneni t estified that he is a psychiatrist who works at Chester Mental Health Center as an independent c ontractor. He stated that he had been a board-certified psychiatrist for 31 years. He met w ith the respondent on September 29, 2011, and October 4, 2011. The respondent did not coopera te with the full evaluation and their contacts were very brief. Dr. Vallabhaneni explaine d the purpose of the evaluation to the respondent. Each time the respondent said, “Oh, I w ant to go home. I want discharged.” and walked away.
¶ 11 Dr. Vallabhaneni testified that he had performed e valuations on the respondent on May 18,

2010, February 8, 2011, and March 31, 2011. In form ing his opinion Dr. Vallabhaneni testified that he based it on a review of the respondent’s cl inical file, his own observations of the respondent, his past contact with the respondent, t he treatment plan, Dr. Casey’s records, and the most recent psychiatric evaluation done at Ches ter Mental Health Center. Dr. Vallabhaneni diagnosed the respondent with paranoid-type schizop hrenia and antisocial personality disorder. He stated that the respondent is delusion al and believes he suffers from syphilis despite medical evidence to the contrary. The respo ndent persists in the belief, claims to have symptoms, and is so disturbed by the delusion that he cannot stop asking for treatment for the

ailment.
¶ 12 Dr. Vallabhaneni testified that he believed that t he respondent is a person who, because of

his mental illness, can act out in a dangerous mann er hurting himself or others. He stated that the respondent has a long history of assaulting oth er patients as evidenced by his behavior, aggression, and placement in restraints. Dr. Vallab haneni stated that in the respondent’s last treatment plan it was reported that the respondent was involved in an aggressive act with another patient on September 4, 2011. The responden t had been harassing the peer, and when the peer became aggressive, the respondent fought w ith him.
¶ 13 Dr. Vallabhaneni opined that because the responden t is schizophrenic he is not likely to

take his medication if released from Chester Mental Health Center. He stated that often schizophrenics do not take their medications becaus e they believe that there is nothing wrong

with them and fear that medicine will harm them. Dr . Vallabhaneni testified that if the respondent failed to take his medication he would h ave an immediate acute relapse. His symptoms would return very quickly, he would become psychotic, and he would be unlikely to- 5 -

take care of his own basic physical needs. Patients with serious mental illness who go off medication believe they do not need to bathe, eat p roperly, or sleep properly. Dr. Vallabhaneni anticipated that if released from Chester Mental He alth Center, the respondent would neglect his basic needs in every way, possibly to the point where someone would realize he had a problem and take him back to a mental health facili ty. Dr. Vallabhaneni testified that the respondent’s failure to take his medication would c ause the respondent’s symptoms to return, his condition would be worse, and the mental deteri oration would cause him to be more likely to engage in dangerous conduct.
¶ 14 Dr. Vallabhaneni opined that the respondent had no t reached the mental/behavior stability

required to be transferred or discharged. Dr. Valla bhaneni felt that, due to the respondent’s serious mental disorder, the current placement in C hester Mental Health Center was clinically justifiable and that he was an appropriate candidat e for involuntary commitment to a mental health facility within the Department of Human Serv ices.
¶ 15 The respondent testified on his own behalf. When a sked why he felt he should be released

from the Department of Human Services he replied: “ Because I served my time. I got a better life than being incarcerated.” He testified that if released he planned to go to Chicago, where he felt he would be able to find employment in the con struction field. He planned to live in a group home until he could find his own apartment. H e stated that his family lives in Detroit, California, and Iowa, but he would not consider liv ing with any of them. The respondent

testified that if released he would take his medica tion as prescribed. When asked if he believed that he suffered from a mental illness he replied, “Slightly.” He testified that he would not be a danger to himself or others.
¶ 16 The following instruction was given to the jury:

“A person is subject to involuntary admission when he is
A person with mental illness and who because of hi s illness is reasonably expected to engage in dangerous conduct which may include th reatening behavior or conduct that places that person or another individual in re asonable expectation of being harmed;
A person with mental illness and who because of hi s illness is unable to provide for his basic physical needs so as to guard himself fro m serious harm without assistance of family or outside help; or
A person with mental illness who, because of the n ature of his illness, is unable to understand his need for treatment and who, if not t reated, is reasonably expected to

suffer or continue to suffer mental deterioration o r emotional deterioration, or both, to the point that the person is reasonably expected to engage in dangerous conduct.
If you find from your consideration of all the evi dence that any one of these propositions has been proven by clear and convincin g evidence, you should find the respondent subject to involuntary admission.
If you find from your consideration of all the evi dence that none of these propositions has been proven by clear and convincin g evidence, you should find the respondent not subject to involuntary admission.”- 6 - ¶ 17 The jury found that the respondent was subject to involuntary admission. The verdict form

was a general verdict form that stated simply, “We the jury, find the Respondent, James W ***, subject to involuntary admission.” On October 13, 2011, the trial court ordered the respondent to be hospitalized in a Department of Hu man Services mental health or development center, which is the least restrictive environment currently appropriate or available. The respondent filed a timely notice of appeal.

¶ 18 ANALYSIS
¶ 19 At the trial, the jury was instructed regarding th ree alternative criteria necessary to find the

respondent subject to involuntary commitment. Two o f these criteria were based on outdated statutory language from section 1-119 of the Code ( 405 ILCS 5/1-119 (West 2008)). The first and third criteria involved “dangerous conduct,” a statutory standard found unconstitutional in

In re Torski C. , 395 Ill. App. 3d 1010, 1027, 918 N.E.2d 1218, 123 2-33 (2009). Subsequent to

In re Torski C.

, the legislature amended section 1-119 (Pub. Act 96- 1399, § 5 (eff. July 29, 2010) (amending 405 ILCS 5/1-119 (West 2008))) to r emove any references to “dangerous conduct” and changed the commitment criteria under section 1-119. The second criterion presented to the jury is still valid under the amen ded statute, which provides that a person is subject to involuntary admission on an inpatient ba sis if he or she is “[a] person with mental

illness who because of his or her illness is unable to provide for his or her basic physical needs so as to guard himself or herself from serious harm without the assistance of family or others, unless treated on an inpatient basis.” 405 ILCS 5/1 -119(2) (West 2010). The respondent argues that because the trial court instructed the jury on unconstitutional and outdated criteria for involuntary commitment, he was denied his right to a fair trial.
¶ 20 The respondent brings this appeal from an involunt ary admission order that was to remain

in effect for 180 days from the date of the order. Because that time has expired, the order is no longer in effect and no actual relief can be grante d. Before we can address the merits of the respondent’s appeal, we must first determine whethe r any exception to the mootness doctrine applies. Whether an appeal is moot presents a quest ion of law and is reviewed de novo

. In re Karen E. , 407 Ill. App. 3d 800, 804, 952 N.E.2d 45, 50 (201 1). There are three exceptions to the mootness doctrine in cases of involuntary ad mission: (1) the collateral-consequences exception, (2) the public-interest exception, and ( 3) the capable-of-repetition-yet-avoidingreview exception. In re Charles K. , 405 Ill. App. 3d 1152, 1161, 943 N.E.2d 1, 8 (201 0). Whether a case falls within one of the exceptions m ust be examined on a case-by-case basis.

Id

. ¶ 21 The issue in the instant case involves whether giv ing the jury instructions based on a statute

that has been ruled unconstitutional and has been a mended to remove the unconstitutional language deprives the respondent of a fair trial. T he public-interest exception to the mootness doctrine applies. “The public interest exception al lows a court to consider an otherwise moot case when (1) the question presented is of a public nature; (2) there is a need for an authoritative determination for the future guidance of public officers; and (3) there is a likelihood of future recurrence of the question.” In re Alfred H.H. , 233 Ill. 2d 345, 355, 910 N.E.2d 74, 80 (2009). The procedures and statutory guidelines that must be followed to order- 7 -

the involuntary commitment of an individual to a me ntal health facility are matters of considerable public concern. In re Lance H. , 402 Ill. App. 3d 382, 385-86, 931 N.E.2d 734, 738 (2010). Thus, the issue in this case is of a pu blic nature.
¶ 22 Next we must examine whether there is a need for a n authoritative determination and if

there is a likelihood of future recurrence of the q uestion. The State tendered the jury instructions, and defense counsel stated he had no objection to the instructions. The trial court accepted the instructions without question. In ente ring the order for the involuntary treatment of the respondent, the trial court used a preprinte d form. The form had a box to check if the person was subject to involuntary admission and thr ee boxes to check for the criteria for finding the respondent subject to involuntary commi tment. The trial court did not check any of the criteria. The three criteria on the preprinted form included two containing the language “dangerous conduct.” This language was found to be unconstitutional in In re Torski C. , 395 Ill. App. 3d at 1027, 918 N.E.2d at 1232-33. In 201 0 the legislature amended the statute to eliminate the “dangerous conduct” language. This be came effective July 29, 2010. The order in this case was entered on October 13, 2011, two y ears after the decision in In re Torski C.

, and more than one year after the legislature amende d the statute. We believe there is a need for an authoritative determination for future guidance, and we feel there is a likelihood of future recurrence of the issue. Thus, we find that the iss ues in this case related to the use of a jury instruction containing unconstitutional language sa tisfy the public-interest exception to the mootness doctrine, and we will consider the respond ent’s argument.
¶ 23 In the instant case, the respondent did not raise an issue in the trial court concerning the

propriety of the jury instructions. A respondent fo rfeits review of a jury-instruction error if he did not object to the instruction or offer an alter native instruction. In re Charles K. , 405 Ill. App. 3d at 1163, 943 N.E.2d at 10. At issue is whet her the respondent received a fair trial. The imposition of involuntary mental health services im plicates an individual’s substantial liberty

interests. In re Charles H. , 409 Ill. App. 3d 1047, 1054, 950 N.E.2d 710, 716 (2011). Forfeiture is a limitation on the parties, but not the court. Id . at 1055, 950 N.E.2d at 716. A finding that respondent has forfeited his constitutional argumen t could result in this court affirming his involuntary commitment even though the commitment m ight have been based on an unconstitutional statutory standard. Because a subs tantial liberty interest is involved and forfeiture is not a limitation on the court, we cho ose to address the issue raised in this appeal.
¶ 24 The respondent argues that because the trial court instructed the jury on unconstitutional and outdated criteria for involuntary commitment, h e was denied his right to a fair trial. The respondent raises no issue with the jury instructio n concerning his ability to provide for his

basic needs.
¶ 25 “Instructions convey the legal rules applicable to the evidence presented at trial and thus

guide the jury’s deliberations toward a proper verd ict.” People v. Mohr , 228 Ill. 2d 53, 65, 885 N.E.2d 1019, 1025 (2008). Jury instructions that ar e not supported by the law should not be given. Id. at 65, 885 N.E.2d at 1026. The reviewing court mus t determine whether the instructions, considered together, fully and fairly announce the law applicable to the theories of both parties. Id . “Although the giving of jury instructions is gene rally reviewed for an abuse of discretion, when the question is whether the jury i nstructions accurately conveyed to the jury- 8 -

the law applicable to the case, our review is de novo .” People v. Pierce , 226 Ill. 2d 470, 475, 877 N.E.2d 408, 410 (2007).
¶ 26 In In re Charles K. , a jury found the respondent to be a person subjec t to involuntary

admission. In re Charles K. , 405 Ill. App. 3d at 1154, 943 N.E.2d at 3. On app eal, the respondent argued that the order of commitment shou ld be reversed because the jury was not instructed that the State was required to prove by clear and convincing evidence that he was mentally ill. Id . at 1154-55, 943 N.E.2d at 3. The respondent admit ted he did not object to the

instruction at trial or offer an alternative instru ction. Id . at 1163, 943 N.E.2d at 10. The court found that the issue presented was of sufficient im portance to justify its review despite the respondent’s forfeiture of the issue. Id . The respondent urged the court to review the issu e under a doctrine analogous to the plain-error doctr ine. Id . The court noted that while the plain-error doctrine applies to criminal and not ci vil cases, a similar analysis should be applied.

Id . The court found that in reviewing the matter it m ust first determine whether any error occurred, and if so, whether the respondent suffere d prejudice from the error. Id . at 1164, 943

N.E.2d at 10.
¶ 27 The court found that the instructions given to the jury did not explicitly convey that the

State had the burden of proving by clear and convin cing evidence that the respondent suffered

from a mental illness. Id . at 1165-66, 943 N.E.2d at 12. It held that becaus e the instructions did not make clear a necessary element of the State’s b urden of proof, it was error not to include an instruction explicitly conveying each and every fac tor that the State was required to prove in order to support a finding that the respondent was a person subject to involuntary admission.

Id . at 1166, 943 N.E.2d at 12. The court then examine d whether the respondent was prejudiced by the error. It held that a jury instruction is ha rmless if it is demonstrated that the result of the trial would not have been different had the jury be en properly instructed. Id . The court found that, given the weight of the evidence presented at trial that respondent suffered from a mental illness, the fact that the jury was not specificall y instructed about the State’s burden of proof

was harmless error. Id . at 1167, 943 N.E.2d at 13. It found that the resu lt of the trial would not have been any different had the jury been properly instructed. Id

. ¶ 28 In the instant case, the trial court erred in givi ng instructions based on statutory provisions

that had been found unconstitutional and had been a mended to remove any reference to “dangerous conduct.” We must examine whether the re spondent was prejudiced by the error. Section 6-100 of the Code provides that “[j]udicial proceedings conducted pursuant to this Act

shall be conducted in accordance with the Civil Pra ctice Law, except to the extent the provisions of this Act indicate to the contrary or are inconsistent, in which case this Act governs.” 405 ILCS 5/6-100 (West 2010). Section 2-1 201 of the Code of Civil Procedure provides, in pertinent part, that “[i]f several gro unds of recovery are pleaded in support of the same claim, whether in the same or different counts , an entire verdict rendered for that claim

shall not be set aside or reversed for the reason t hat any ground is defective, if one or more of the grounds is sufficient to sustain the verdict.” 735 ILCS 5/2-1201(d) (West 2010).
¶ 29 In the instant case, Ms. Steibel filed a petition for involuntary admission on the grounds

that the respondent was a person with a mental illn ess who because of his illness was reasonably expected, unless treated on an inpatient basis, to engage in conduct placing him or- 9 -

another in physical harm or in a reasonable expecta tion of being physically harmed and is unable to provide for his basic physical needs so a s to guard himself from serious harm without the assistance of family or others, unless treated on an inpatient basis. The grounds for involuntary admission pled in the petition were in accordance with section 1-119 of the Code (405 ILCS 5/1-119 (West 2010)). The jury instructio ns included three grounds for the involuntary admission of the respondent. Two of tho se grounds were based on parts of section

1-119 that were declared unconstitutional and viola tive of the substantive guarantees of due process. The jury returned a general verdict that t he respondent was subject to involuntary admission. While two of the grounds presented in th e jury instructions were based on a statute ruled unconstitutional, the second ground presented in the jury instruction was a valid ground. Because the jury returned a general verdict and one of the theories presented was a valid ground for involuntary admission, the verdict will be upheld if there was sufficient evidence to sustain the theory.
¶ 30 The respondent argues that the State failed to pro ve by clear and convincing evidence that

he met the one valid criteria presented to the jury for involuntary commitment. At a commitment hearing, the State’s burden is to prove by clear and convincing evidence that the respondent is a person subject to involuntary admis sion. In re Nau , 153 Ill. 2d 406, 427, 607 N.E.2d 134, 144 (1992). “The clear and convincing s tandard requires proof greater than a preponderance, but not quite approaching the crimin al standard of beyond a reasonable doubt.”

In re D.T. , 212 Ill. 2d 347, 362, 818 N.E.2d 1214, 1226 (2004 ). A reviewing court may not disturb a jury’s decision unless it is against the manifest weight of the evidence. Burgess v. Abex Corp. , 311 Ill. App. 3d 900, 903, 725 N.E.2d 792, 795 (2 000). A jury’s decision is given respect and deference, and a reviewing court will n ot invade the function of the jury and substitute its judgment for the jury’s. Hawkes v. Casino Queen, Inc. , 336 Ill. App. 3d 994, 1011, 785 N.E.2d 507, 520 (2003). A judgment is aga inst the manifest weight of the evidence only when an opposite conclusion is clearly apparen t or where the jury findings are unreasonable, arbitrary, or not based on evidence. Id . at 1010, 785 N.E.2d at 520.
¶ 31 In the instant case, the jury was instructed that if it found, from consideration of all the

evidence, that the State proved by clear and convin cing evidence that the respondent was a person with mental illness who because of his illne ss was unable to provide for his basic physical needs so as to guard himself from serious harm without assistance of family or outside help, it should find the respondent subject to invo luntary admission. This instruction accurately reflected the law. Section 1-119 provide s, in pertinent part, that a person is subject to involuntary commitment if the State shows he or she is:
“(2) A person with mental illness who because of h is or her illness is unable to provide for his or her basic physical needs so as t o guard himself or herself from serious harm without the assistance of family or others, un less treated on an inpatient basis[.]” 405 ILCS 5/1-119(2) (West 2010).
¶ 32 The respondent argues that there was no evidence o f any recent observation of him to

support Dr. Vallabhaneni’s opinion that he was unab le to take care of his basic needs. The respondent asserts that Dr. Vallabhaneni was not hi s treating physician or a member of his treatment team, and had only two brief contacts wit h him. The respondent argues that based on- 10 -

the doctor’s lack of direct, current interaction wi th him and the lack of direct evidence regarding his ability to meet his basic needs, the evidence was not sufficient for the jury to find him subject to involuntary commitment.
¶ 33 Section 3-807 of the Code provides, in pertinent p art, that “[n]o respondent may be found

subject to involuntary admission on an inpatient or outpatient basis unless at least one psychiatrist, clinical social worker, clinical psyc hologist, or qualified examiner who has examined the respondent testifies in person at the hearing.” 405 ILCS 5/3-807 (West 2012). This court has held that section 3-807 “requires th e examiner to attempt a personal interview but that if the respondent refuses or is intentiona lly uncooperative, then the statutory examination may be based on discussions with treati ng staff and a review of medical records.”

In re David B. , 367 Ill. App. 3d 1058, 1069, 857 N.E.2d 755, 764 (2006).
¶ 34 The respondent requested an independent medical ev aluation, and the court granted his

motion. Dr. Vallabhaneni was appointed to evaluate the respondent. Dr. Vallabhaneni had not treated the respondent since 2004, but was familiar with him. He attempted to interview the respondent on September 29, 2011, and October 4, 20 11. The respondent refused to cooperate, stated that he wanted to be discharged, and then wa lked away. Because the respondent was intentionally uncooperative with the physician perf orming the independent medical evaluation that he requested, Dr. Vallabhaneni could base his examination on a review of the medical records and discussions with treating staff.
¶ 35 Dr. Vallabhaneni testified that in addition to his meeting with the respondent on September

29, 2011, and October 4, 2011, he had performed eva luations of the respondent on May 18, 2010, February 8, 2011, and March 31, 2011. He stat ed that he formed his medical diagnosis of the respondent based on his extensive history, his clinical record, and his brief meetings with the respondent. Dr. Vallabhaneni particularly relie d on the information from Dr. Casey, the respondent’s treating psychiatrist, plus his treatm ent plan review conducted on September 13, 2011. Because the respondent was uncooperative with Dr. Vallabhaneni, and Dr. Vallabhaneni based his testimony on his meetings with the respon dent and a review of the respondent’s medical records, his testimony met the requirements of section 3-807 of the Code.
¶ 36 The respondent argues that the State failed to sho w by clear and convincing evidence that

he was unable to care for himself if released. “Gen erally, the inability to care for oneself so as to guard against physical harm is found where one’s illness substantially impairs [his] thought processes, perceptions, emotional stability, behavi or, or ability to cope with life’s ordinary

demands.” In re Tuman , 268 Ill. App. 3d 106, 112, 644 N.E.2d 56, 60 (199 4). “In making such a determination, a court should consider whether a person (1) can obtain [his] own food, shelter, or necessary medical care; (2) has a place to live or a family to assist him; (3) is able to function in society; and (4) has an understanding o f money or a concern for it as a means of

sustenance.” Id

. ¶ 37 Dr. Vallabhaneni testified that the respondent suf fered from schizophrenia, paranoid type, and from antisocial personality disorder. He testif ied that the respondent’s schizophrenia caused him to have thought disturbances and that he often believed people were against him. Dr. Vallabhaneni testified that the respondent was delusional and had a strong belief that he suffered from syphilis. The respondent believed he had symptoms and demanded treatment- 11 -

with penicillin. Despite evidence to the contrary, the respondent could not be convinced he did not have syphilis. Dr. Vallabhaneni testified that the respondent’s delusion was so strong that he could not stop asking for treatment for the cond ition.
¶ 38 Dr. Vallabhaneni testified that the respondent had no insight into his mental illness. When

asked if he believed he was suffering from a mental illness, the respondent replied, “Slightly.” When asked on direct examination why he felt he sho uld be released from the Department of Human Services, the respondent replied: “Because I served my time. I got a better life than being incarcerated. You know, I had skills. I do co nstruction work. I have–I have been working since I was 13.” From this response, the jury could find that the respondent did not understand

that he was in Chester Mental Health Center for tre atment of mental illness and that this bolstered Dr. Vallabhaneni’s testimony that the res pondent had little insight into his mental

illness.
¶ 39 Dr. Vallabhaneni testified that he and the respond ent’s treating physician and treating

psychologist all felt that the respondent was menta lly ill and met the criteria for involuntary commitment. Dr. Vallabhaneni stated that the respon dent was delusional and aggressive. Dr. Vallabhaneni testified that based on the respondent ’s lack of insight into his mental illness, his history of noncompliance in taking medication, and his diagnosis, there was a very good possibility that he would not take his medication i f released from Chester Mental Health Center. He stated that if the respondent failed to take his medication it would result in an immediate acute relapse. The respondent’s symptoms would return and his condition would be worse. Dr. Vallabhaneni stated that if the responde nt relapsed, he would be unlikely to take care of his own basic physical needs.
¶ 40 “The jury as trier of fact is in a superior positi on to a reviewing court to determine the

witness’ credibility and weigh the evidence.” Ryan v. Mobil Oil Corp. , 157 Ill. App. 3d 1069, 1076, 510 N.E.2d 1162, 1166 (1987). The respondent responded to questions in an odd and inappropriate manner. The respondent testified that he had resided at Chester Mental Health Center for eight years. He stated that a facility u p north transferred him to Chester Mental Health Center because: “The facility up north, they evaluated me. They said I don’t have a place to stay, you know, and so they put me in a ho spital, but I came with $10,000 in my pocket.” When the respondent was asked if he had be en committed to a different institution he replied:
“No, just the county. I was–I would be arrested for things that wasn’t true, you know. First of all, in 1975, I was arrested for armed rob bery, and in front of Judge James M. Bailey, he denied me a fair trial, and I got found guilty and he give me six to 20. I did the six years, I get out, police drive up on me, an d they put me in the car. They accused me of being such and such and so I committed murder out of Michigan or I’m on parole. And each time they picked me up I’m doing s ix years, eight years, four years, three years, over 37 years–”
The respondent was asked if he had ever been transf erred from Chester before and he responded:
“I was going–coming back and forth to Chester from being picked up in Chicago by officers, and they would give me an evaluation, and I would come back and forth from- 12 - Chester to the county so many times. And like Valla bhaneni said, you know, we go back a ways, all the way to ’78 sometime when I fir st met him.”
From these responses the jury could determine that the respondent had been in the mental health system for a number of years.
¶ 41 The respondent testified that although his family lives in Detroit, California, and Iowa, he

would not consider living with a family member and instead planned to move to Chicago if

released. He stated that he had construction skills and planned to work in that field in Chicago. He also stated that he planned to live in a group h ome until he could find his own apartment. He did not offer any detail about his potential employ ment or housing. He did not indicate that he had researched any of these choices. Based on the r espondent’s demeanor, his numerous years in the mental health system, his lack of insight in to his mental illness as evidenced by his and Dr. Vallabhaneni’s testimony, Dr. Vallabhaneni’s di agnosis of the respondent, and Dr. Vallabhaneni’s opinion that the respondent would no t take his medication if released, it was not against the manifest weight of the evidence for the jury to determine that the respondent was mentally ill and because of his mental illness he was unable to provide for his basic physical needs. Because there was sufficient eviden ce to sustain the jury’s verdict based on the second ground presented to it, we cannot say that t he result of the trial would have been different had the jury been properly instructed. Th us, the improper jury instructions given at the respondent’s involuntary admission trial consti tuted harmless error.
¶ 42 Finally, the respondent argues that he was denied effective assistance of counsel. He argues

that his counsel failed to object at trial that the jury instructions misstated the law and he failed to contradict the lack of evidence on his ability t o take care of his basic needs. Section 3-805 provides that “[e]very respondent alleged to be sub ject to involuntary admission on an inpatient or outpatient basis shall be represented by counsel.” 405 ILCS 5/3-805 (West 2010). “[T]he State’s statutorily providing a respondent i n an involuntary commitment proceeding with the right to counsel implicitly includes the r ight to the effective assistance of that

counsel.” In re Carmody , 274 Ill. App. 3d 46, 54, 653 N.E.2d 977, 983 (199 5). The Strickland standard ( Strickland v. Washington , 466 U.S. 668 (1984)) has been adopted in mental h ealth cases involving involuntary commitment proceedings. In re Mark P. , 402 Ill. App. 3d 173, 179, 932 N.E.2d 481, 486 (2010). “Under Strickland , the respondent must establish that (1) counsel’s performance was deficient, such that the errors were so serious that counsel was not functioning as the ‘counsel’ contemplated by the Co de; and (2) counsel’s errors were so prejudicial as to deprive [him] of a fair proceedin g.” In re Carmody , 274 Ill. App. 3d at 57, 653 N.E.2d at 985. To show prejudice, the respondent mu st show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different. Strickland , 466 U.S. at 694.
¶ 43 As discussed, counsel’s failure to object at trial to the jury instruction that misstated the law

did not prejudice the respondent. We have establish ed that counsel’s failure to object to the

misstatement of the law did not affect the outcome of the case because there was still one valid ground for the jury to find the respondent subject to involuntary commitment. Therefore, he suffered no prejudice because of the misstatement a nd has failed to establish the second prong

of the Strickland test with respect to the jury instruction.- 13 - ¶ 44 The respondent alleges that his counsel ignored th e State’s failure to provide any direct

evidence on how his behavior satisfied the failure- to-meet-basic-needs criterion for

commitment. He asserts that Dr. Vallabhaneni was th e State’s sole witness and that Dr. Vallabhaneni had not treated him for over six years ; therefore, the State’s case rested on

historical facts and not his current behavior. The respondent argues that his counsel’s lack of questioning on this matter prejudiced him. Because the respondent was intentionally uncooperative when Dr. Vallabhaneni tried to interv iew him, Dr. Vallabhaneni properly based his testimony on his meetings with the respondent, the respondent’s clinical record, information from the respondent’s treating psychiat rist, and the respondent’s treatment plan

review. This included both historical and current i nformation on the respondent. The State did not fail to provide direct evidence of how the resp ondent would be unable to meet his basic

needs if released from Chester Mental Health Center . Counsel’s performance with respect to direct evidence presented by the State was not defi cient and did not prejudice the respondent.
¶ 45 The respondent argues that he need not prove the Strickland element of prejudice because his counsel failed to subject the State’s case to m eaningful adversarial testing. Where counsel entirely fails to subject the State’s case to meani ngful adversarial testing, prejudice will be presumed. People v. Hattery , 109 Ill. 2d 449, 461-62, 488 N.E.2d 513, 517 (198 5). Respondent’s counsel did not fail to subject the St ate’s case to meaningful adversarial testing. Counsel did not concede that the respondent was sub ject to involuntary commitment. Trial counsel moved for an independent evaluation of the respondent. He questioned prospective jurors to find out any potential biases and to ensu re that the respondent would receive a fair trial. He exercised peremptory challenges to potent ial jurors. He gave an opening and closing

statement. He conducted cross-examination of the St ate’s witness, Dr. Vallabhaneni. Trial

counsel conducted the direct examination of the res pondent in which he tried to elicit testimony from the respondent to show that he was a ble to provide for his basic physical needs. After the respondent referred to some of his crimes , the State attempted to ask him questions about his criminal history. Counsel objected, and t he objections were sustained. Because the respondent’s trial counsel did subject the State’s case to meaningful adversarial testing, the respondent needed to show prejudice to show his cou nsel was ineffective.
¶ 46 The trial court erred in giving the jury instructi ons that included unconstitutional and

outdated criteria for involuntary commitment. Howev er, one of the grounds presented to the jury for involuntary admission was valid. The respo ndent was not prejudiced by the erroneous jury instructions because the jury returned a gener al verdict and there was clear and convincing evidence presented to show that the respondent was unable to care for his basic needs if not subject to involuntary commitment. The respondent w as not denied effective assistance of counsel. His counsel’s failure to object to the err oneous jury instruction did not prejudice him. Because Dr. Vallabhaneni explained the basis of his testimony and it was based on the respondent’s condition at the time of the hearing, counsel’s failure to question him about

whether it rested on historical facts and not his c urrent state did not prejudice the respondent. Counsel did not fail to subject the State’s case to meaningful adversarial testing.- 14 - ¶ 47 CONCLUSION
¶ 48 For the foregoing reasons, the judgment of the cir cuit court of Randolph County is

affirmed.

¶ 49 Affirmed.