ILLINOIS OFFICIAL REPORTS

Appellate Court

In re Avery S., 2012 IL App (5th) 100565

Appellate Court

Caption

In re AVERY S., Alleged to Be a Person Subject to Involuntary

Admission (The People of the State of Illinois, Petitioner-Appellee, v.

Avery S., Respondent-Appellant).

 District & No. Fifth District

Docket No. 5-10-0565

Filed June 28, 2012

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.)

A stipulation that was sufficient to establish by clear and convincing

evidence that respondent was subject to involuntary admission on the

ground that he had a mental illness that rendered him unable to provide

for his basic physical needs so as to guard himself from serious harm

supported his admission, especiallywhen the procedures followed did not

violate his rights or the statutory scheme of the Mental Health and

Developmental Disabilities Code regarding agreed orders and he had a

history of disorders and prior admissions. 

Decision Under 

Review

Appeal from the Circuit Court of Randolph County, No. 10-MH-131; the

Hon. Richard A. Brown, Judge, presiding.

Judgment Affirmed.
Counsel on

Appeal

Barbara A. Goeben and Veronique Baker, both of Guardianship and

Advocacy Commission, of Alton, for appellant.

Randall Rodewald, State’s Attorney, of Chester (Patrick Delfino, Stephen

E. Norris, and Rebecca E. McCormick, all of State’s Attorneys Appellate

Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE WELCH delivered the judgment of the court, with opinion.

Justices Goldenhersh and Wexstten concurred in the judgment and

opinion.

OPINION

¶ 1 Avery S. (the appellant) appeals from an order entered by the circuit court of Randolph

County on October 20, 2010, which found him subject to involuntary admission to a

Department of Human Services mental health or developmental center. The circuit court’s

order found that the appellant was subject to involuntary admission because he was a person

with a mental illness who, because of that illness, was (1) reasonably expected to engage in

dangerous conduct which may include threatening behavior or conduct that places himself

or another in reasonable expectation of being harmed, (2) unable to provide for his basic

physical needs so as to guard himself from serious harm, and (3) unable to understand his

need for treatment and who, if not treated, is reasonably expected to suffer or continue to

suffer mental deterioration or emotional deterioration, or both, to the point that the person

is reasonably expected to engage in dangerous conduct.

¶ 2 Preliminarily, we address a point on which the parties agree. The circuit court’s findings

derive from section 1-119 of the Mental Health and Developmental Disabilities Code (the

Code), which defined the term “ ‘[p]erson subject to involuntary admission on an inpatient

basis.’ ” 405 ILCS 5/1-119 (West 2010). Prior to the entry of the court’s order, the term

“dangerous conduct” as used in section 1-119 was declared to be unconstitutionally vague

and violative of the substantive guarantees of due process. In re Torski C., 395 Ill. App. 3d

1010, 1027 (2009). Accordingly, the first and third of the circuit court’s findings with respect

to the appellant being a person subject to involuntaryadmission are void, and only the second

of those findings remains valid. Thus, we address ourselves only to the circuit court’s finding

that the appellant was a person subject to involuntary admission because he was a person

with a mental illness who, because of that illness, was unable to provide for his basic

physical needs so as to guard himself from serious harm.

¶ 3 The appellant bringsthis appeal from the order of involuntaryadmission. The involuntary

admission was to remain in effect for 180 days from the date of the order, and, that time limit

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having expired, the order is no longer in effect and no actual relief can be granted.

Nevertheless, we will review this otherwise moot order under the public-interest exception

to the mootness doctrine because we believe that the issues presented are of a public nature

and are likely to recur and that an authoritative determination would provide guidance to

public officials in the future. In re Michael H., 392 Ill. App. 3d 965, 969 (2009).

¶ 4 On October 14, 2010, a petition was filed in the circuit court of Randolph County seeking

to continue the involuntary admission of the appellant pursuant to section 3-813 of the Code

(405 ILCS 5/3-813 (West 2010)). The petition alleged that the appellant was a person with

a mental illness who, because of that illness, is unable to provide for his basic physical needs

so as to guard himself from serious harm unless treated on an inpatient basis. The petition

further alleges that the appellant had been transferred to the Chester Mental Health Center

from Coles County after criminal charges of felony aggravated battery had been dismissed

in return for civil commitment. The petition alleges that the appellant has no insight into his

mental illness and is unable to function on his own in the community and that outside the

structured environment, he would quickly become a danger to himself and others.

¶ 5 The petition is accompanied bythe certificates of Kathryn Holt, Ph.D., a psychologist and

qualified examiner, and T. Casey, M.D., a staff psychiatrist. The certificates of both

examiners indicate that they had personally examined the appellant and were of the opinion

that he was a person with a mental illness who, because of that illness, was unable to provide

for his basic physical needs so as to guard himself from serious harm unless treated on an

inpatient basis. Both certificates further indicate that both examiners believed the appellant

was an individual subject to involuntary admission and in need of immediate hospitalization.

¶ 6 The certificate of Dr. Casey indicated that she based her opinion and her conclusion on

the following facts. The appellant was a 22-year-old male who was admitted to the Chester

Mental Health Center from the Coles County jail after he had been found unfit to stand trial

for aggravated battery. While living in a group home, the appellant had stabbed another

resident in the arm with a kitchen knife because he was angry that the other resident had been

touching his property.

¶ 7 The appellant had a history of past self-injury, fire-setting, extreme physical aggression,

elopement, and past and current command hallucinations. He had been diagnosed with

schizoaffective disorder, intermittent explosive disorder, impulse control disorder, and mild

to moderate mental retardation. The appellant had had numerous prior admissions to mental

health centers and had exhibited aggressive behavior toward himself and toward staff and

peers. He had previously stabbed himself with a pencil and attempted to electrocute himself.

He had been violent with staff, necessitating restraints and medication for himself and

causing injuries to staff members. He had been denied access to several groups due to

inappropriate threatening statements. He had tried to set fires in the group home, had injured

himself and others, and had attempted to elope multiple times. He suffered from command

hallucinations telling him to kill himself and others, and delusions. The appellant also suffers

from hypertension and type II diabetes.

¶ 8 The appellant had been removed from his parents’ home due to allegations of abuse and

neglect. He was placed in foster care when he was eight years of age. During his childhood

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he received psychiatric hospitalizations because of aggressive behaviors. He was eventually

moved to a group home. He was in special education throughout his educational history. He

has never been married, has no children, and has no history of employment.

¶ 9 Dr. Casey stated:

“[The appellant’s] psychiatric condition is so severe it was clear right from the beginning

that the patient was probably not going to obtain fitness ever. His mental retardation,

psychosis and mood instability are quite intense. Despite alter [sic] in medication, he was

required to be placed on full leather restraints on 07/01/10 for unpredictable aggressive

episodes. His adaptive skills are extremely poor. His cognitive deficits are quite intense.

He has not demonstrated any ability to learn information, register, and retrieve when

necessary. *** His behavior remains unpredictable/aggressive and his thought content

is delusional/psychotic.”

¶ 10 With respect to involuntary admission, Dr. Casey continued:

“[The appellant] would be unable to care for himself. He has nowhere to reside. He has

a lengthy history of psychiatric treatment and violent episodes. He currently needs the

structure that Chester Mental Health Center is able to offer. He would be a danger to

himself and others. It is my opinion that [the appellant] needs continued inpatient

treatment.”

¶ 11 Kathryn Holt’s certificate indicated that she based her opinion and conclusion on many

of the same facts as did Dr. Casey. In addition, she noted that the appellant had tried to hang

himself with a rope. The appellant exhibits the following signs and symptoms consistent with

schizoaffective disorder: he admits to having auditory hallucinations, that is, he hears voices

telling him to do things; he has behaviorindicative of attending to internal stimuli (prolonged

periods of unfocused staring with limited motor activity and no response to external

environment); he makes bizarre statements; and his mood frequently swings from euthymic

(smiling, cordial, polite) to nonresponsive withdrawal. The appellant had become violent

while hospitalized, requiring restraint, and was threatening. Holt concluded:

“[The appellant] lacks insight into his mental illness and demonstrates poor judgment

regarding self-regulation of his behavior. Although he is able to complete activities of

daily living (ADLs) with prompting and supervision, his adaptive behavioral composite

score indicates that he functions at the age equivalency level of 6 years, 11 months old.

Consequently, he is not able to provide for his basic physical needs without extensive

assistance from others. Additionally, [the appellant] has a history of aggressive behavior

and non-compliance with medication. If medication and/or supervision were to be

discontinued, [the appellant] would be reasonably expected to decompensate rapidly and

place himself and/or others in jeopardy of physical/serious harm. In light of the data

currently available to me, it is my opinion that [the appellant] currentlymeets the criteria

for involuntary psychiatric hospitalization.”

¶ 12 The petition came on for hearing on October 20, 2010, and the following occurred. The

appellant’s appointed counsel indicated that he had reviewed with the appellant the petition

and the reports of the two examiners and that the appellant was “prepared to enter into a

stipulation of those reports.” The appellant’s counsel stated that he would have no further

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evidence to present. The State’s Attorneyindicated that he too would “stipulate to the records

going in.” The court addressed the appellant and asked him if he understood what his counsel

had said and if he had any objection. The appellant indicated that he understood and did not

object. The court then indicated that it would “consider the reports of Dr. Holt and Dr. Casey

as evidence the same as if they had taken the witness stand and testified.” The court then

found, based on the written reports of Drs. Holt and Casey, that the appellant is a person

subject to involuntary admission and ordered that the appellant be hospitalized in the

Department of Human Services.

¶ 13 The appellant argues that the entry of a civil commitment order through a stipulated

bench trial violated his due process rights as well as the Code and is contrary to case law. We

do not agree. Because this case presents only a question of law, our review is de novo. In re

George O., 314 Ill. App. 3d 1044, 1046 (2000).

¶ 14 We begin by pointing out that this case does not involve the waiver of the entire hearing,

or an agreed order for involuntary commitment, as was the case in In re Michael H., 392 Ill.

App. 3d 965 (2009). In Michael H., the respondent to a petition for involuntary admission,

through his counsel, waived his right to any hearing on the petition and all the procedural

safeguards attendant thereto, and essentially agreed to be involuntarily admitted. The

respondent’s counsel told the court that his client had “ ‘indicated he would give up his right

to the hearing scheduled for this morning.’ ” 392 Ill. App. 3d at 968. Apparently, no evidence

was presented or considered, not even the written reports of the respondent’s treatment team

or examiners. On appeal, this court held that a respondent cannot effectivelywaive the entire

hearing on a petition for involuntary admission; if the respondent agrees to be admitted, he

must be admitted on a voluntary basis. 392 Ill. App. 3d at 979.

¶ 15 The case at bar is more like People v. Johnson, 2012 IL App (5th) 070573, where the

respondent stipulated to the admission into evidence of a psychiatrist’s report and did not

make any argument in defense, but did not agree to be involuntarily admitted or waive his

right to a hearing. On appeal, the respondent raised arguments similar, if not identical, to

those raised in the case at bar: that because he stipulated to all of the evidence needed to

support the determination that he was subject to commitment, the stipulation was tantamount

to a waiver of the hearing, which the Code does not permit, and that even assuming waiver

is permissible, the record does not demonstrate that the waiver was knowing and voluntary.

2012 IL App (5th) 070573, ¶ 6.

¶ 16 This court held that the respondent had not waived the hearing in its entirety, but had

merelywaived the statutoryrequirement that the psychiatrist who had actuallyexamined him

testify in person at the hearing, a waiver which is expressly allowed by the Code. 2012 IL

App (5th) 070573, ¶ 11. Section 3-807 of the Code provides as follows:

“No respondent may be found subject to involuntary admission on an inpatient or

outpatient basis unless at least one psychiatrist, clinical social worker, or clinical

psychologist who has examined him testifies in person at the hearing. The respondent

may waive the requirement of the testimony subject to the approval of the court.”

(Emphasis added.) 405 ILCS 5/3-807 (West 2010).

The court noted that the respondent had not waived other requirements of the Code, such as

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the requirement that the State prove its case by clear and convincing evidence. Johnson, 2012

IL App (5th) 070573, ¶ 21. Section 3-808 of the Code provides that no respondent may be

found subject to involuntary admission unless that finding has been established by clear and

convincing evidence. 405 ILCS 5/3-808 (West 2010). The court held that neither the Code

nor due process was violated by this procedure. Johnson, 2012 IL App (5th) 070573, ¶ 17.

¶ 17 In the case at bar, as in Johnson, the appellant merely stipulated to the admission into

evidence of the reports of the two examiners. The court considered these reports as evidence

the same as if the examiners had been present and testified in open court. Either the reports

established by clear and convincing evidence that the appellant was a person subject to

involuntary admission or they did not. The burden remained on the State. Granted, the

examiners were not subjected to cross-examination, and the appellant presented no evidence

or argument on his own behalf, but these are decisions properly left to counsel and are not

rights belonging to the appellant. Johnson, 2012 ILApp (5th) 070573, ¶ 15. In Johnson, 2012

IL App (5th) 070573, ¶ 14, the court pointed out that even in the criminal setting, the

decision to stipulate to evidence is generally a tactical decision that can be made by a

defendant’s attorneywithout any indication in the record that the defendant personally chose

to waive his constitutional right to confront particular witnesses and without any indication

that this waiver was knowing and voluntary.

¶ 18 The procedure followed in the case at bar did not violate the appellant’s rights to due

process and did not violate any provision of the Code. The appellant did not waive the entire

commitment hearing or agree to be involuntarily admitted, but agreed only to waive the live

testimony of the examiners and to submit the case to the court on the basis of the written

reports.

¶ 19 The appellant argues that even if a stipulated bench trial is permitted by law, the circuit

court still has an obligation to confirm that the appellant voluntarily and knowingly waived

his constitutional right to cross-examine witnesses, an obligation which it did not fulfill in

the case at bar. In Johnson, 2012 IL App (5th) 070573, ¶ 14, we pointed out that even in the

criminal setting, the decision to stipulate to evidence is generally a tactical decision that can

be made by a defendant’s attorney without any indication in the record that the defendant

personallychose to waive his constitutional right to confront particular witnesses and without

any indication that this waiver was knowing and voluntary. The respondent to an involuntary

commitment proceeding is not entitled to the same rights as is a criminal defendant, and in

Johnson, 2012 IL App (5th) 070573, ¶ 17, we held that a respondent’s rights are adequately

protected bythe procedures established in the Code. Section 3-807 of the Code requires court

approval before a respondent may waive his right to have an examiner testify in person in

open court, but it does not require any specific admonitions to, or inquiries of, the

respondent. 405 ILCS 5/3-807 (West 2010). The appellant’s rights are protected by the

statute’s requirement that the right onlybe waived with approval of the court. The procedures

of the Code are sufficient to protect the appellant’s due process rights in a mental health

proceeding.

¶ 20 The appellant next argues that a stipulated bench trial such as the one in the case at bar

contradicts the Code’s statutory scheme as reflected in section 3-801.5 of the Code (405

ILCS 5/3-801.5 (West 2010)) regarding agreed orders for admission on an outpatient basis.

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That section provides that a respondent to a petition for involuntary admission may enterinto

an agreement with the State for an order for admission on an outpatient basis provided, inter

alia, that the court advises the respondent of the conditions of the proposed order and is

satisfied that the respondent understands and agrees to those conditions. 405 ILCS 5/3-

801.5(a) (West 2010). The appellant argues that he is entitled to the same protections in the

context of a stipulated bench trial and that no such protections were afforded him. Again, we

do not agree.

¶ 21 In the context of a stipulated bench trial, the only right being waived is the appellant’s

statutory right to have an examiner testify in person in open court. In all other respects the

appellant’s rights are unaffected by the stipulated bench trial. The Code expressly provides

for the waiver of this statutory right to have an examiner testify in person in open court. 405

ILCS 5/3-807 (West 2010). The respondent does not therebyagree to be admitted; the burden

remains with the State to establish by clear and convincing evidence that the respondent is

a person subject to involuntary admission. We do not find the proceedings in the case at bar

to be inconsistent with the statutory scheme of the Code regarding agreed orders.

¶ 22 The appellant also argues that the proceedings in the case at bar are inconsistent with the

statutory scheme of encouraging the adoption of voluntary admission as opposed to

involuntary admission because a stipulated bench trial is the functional equivalent of a

voluntary admission but without its accompanying statutory and therapeutic benefits. We do

not agree that a stipulated bench trial is the functional equivalent of a voluntary admission.

Again, in this stipulated bench trial the only right being waived is the respondent’s right to

have an examiner testify in person in open court. The Code expressly provides for such a

procedure. 405 ILCS 5/3-807 (West 2010). A respondent to a petition for involuntary

admission can stipulate to the introduction of evidence without agreeing to be involuntarily

admitted. This is not the functional equivalent of a voluntary admission. The evidence may

or may not be sufficient to prove that the respondent is a person subject to involuntary

admission.

¶ 23 The appellant next argues that allowing a stipulated bench trial will encourage pro forma

hearings which would result in erosion of a patient’s liberty interests. In recent years the

courts have gone to some lengths to impress upon the circuit courts that proceedings under

the Code are not to be conducted pro forma. The courts have required strict compliance with

the Code in every respect (see In re George O., 314 Ill. App. 3d 1044, 1046 (2000)), and we

do so here. The procedure followed in the case at bar is expressly provided for in the Code

and does not violate any specific provision or the statutory scheme, nor does it violate the

appellant’s due process rights.

¶ 24 Finally, relying on In re Mark W., 348 Ill. App. 3d 1065 (2004), the appellant argues that

the stipulation in the case at bar was insufficient to establish by clear and convincing

evidence that he is a person subject to involuntary admission. In Mark W., a proceeding to

involuntarily administer medication under the Code, the respondent’s counsel stipulated as

follows:

“ ‘[W]e’ll have no evidence to dispute the [S]tate’s witnesses, so we’re willing to

stipulate that the State would offer evidence that Mark has a serious mental illness, that

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because of his illness he suffers by suffering from pervasive delusions, [that] his

symptoms have persisted for a marked period of time, that they believe that the benefits

of the treatment would outweigh the harm, that he lacks the capacity to make a reasoned

decision about his treatment, and that less restrictive services are inappropriate.

We don’t necessarily agree with all of that evidence, but we stipulate that it will be

presented, and we have nothing to controvert it.’ ” 348 Ill. App. 3d at 1075.

On appeal, this court found this stipulation to be insufficient because it failed to include any

facts underlying its conclusions and did not address the required factors on which to base a

decision whether to involuntarily administer medication. 348 Ill. App. 3d at 1076.

¶ 25 In the case at bar, the stipulation entered into by the parties was simply that the reports

of the two examiners be admitted into evidence. The court accepted the stipulation and stated

that it would “consider the reports of Dr. Holt and Dr. Casey as evidence the same as if they

had taken the witness stand and testified.” The stipulation was sufficient for its purpose.

Either the evidence as admitted pursuant to the stipulation was sufficient to prove that the

appellant was a person subject to involuntary admission or it was not. The circuit court found

that it was.

¶ 26 The appellant does not argue in his opening brief that the circuit court’s finding is

contrary to the manifest weight of the evidence, and the argument is, therefore, waived. Ill.

S. Ct. R. 341(h)(7) (eff. July 1, 2008). The appellant does make the argument in his reply

brief, and despite its having been waived, we reject it on its merits. The certificates of Drs.

Holt and Casey establish by clear and convincing evidence that the appellant suffered from

the mental illness of schizoaffective disorder. This mental illness rendered the appellant

unable to provide for his basic physical needs so as to guard himself from serious harm. He

suffered from hallucinations telling him to kill himself, he had repeatedly tried to hurt or kill

himself, and his thought content was delusional/psychotic. The appellant experiences

prolonged periods of unfocused staring with limited motor activity and no response to

external environment. He lacks insight into his mental illness and demonstrates poor

judgment regarding self-regulation of his behavior. He can complete activities of daily living

onlywith prompting and supervision. Finally, he suffers from hypertension and diabetes and

has nowhere to live. Dr. Casey stated that the appellant would be unable to care for himself

outside the hospital setting.

¶ 27 The certificates of the doctors also support a finding that hospitalization was the least

restrictive treatment alternative. The appellant had been removed from the group home

because he had become violent and attacked another resident with a knife. He had a history

of elopement from less restrictive environments and needed the structure of hospitalization.

The evidence was sufficiently clear and convincing to establish that the appellant was a

person subject to involuntary admission.

¶ 28 Forthe foregoing reasons, the judgment of the circuit court of Randolph County is hereby

affirmed.

¶ 29 Affirmed.

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