## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S Appellate Court

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

Appellate Court Caption In re AVERY S., Alleg ed to Be a Person Subject t o I nvoluntary Admission (The People of the State of I llinois
, Petitioner-Appellee
, v. Avery S., Respondent-Appellant).

District & N o. Fifth District Docke t No. 5-10-0565

Filed J une 28, 2012

Held ( Note : T

his syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Rep o rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) A stipulation that was sufficie nt to establish b y cl ea r and convincing evidenc e that responde nt was subject to involuntary admission on the
g round that he had a mental illness that rende red him unable to provide for his basic phy sical needs so as to g uard himself from serious harm supported h is a d mi s s ion, espec ially when the proce dures followed did not violate his rig hts or the statutory scheme of the Mental Hea lth and Deve lopmental Disabi lities Code reg arding ag ree d order s and he had a history of disorder s and prior a dmissions

.

Dec ision Under Review Appea l from the Circuit Court of Randolph County
, No. 10-MH-131; the Hon. Richard A . Br own, J udg e, pre siding.

J udg ment Affirmed.Counsel on

Appea l Ba rb ar a A. Goebe n and Ver onique Ba ker, both of Guar dianship and Advoca cy Commi ssion, of Alton, for appe llant.

Ra n d all Rodewald, State’s Attorney
, of Chester (Patrick Delf in o , St e p h e n E. Norris, and Rebec ca E. McCormick, all of State’s Attorney s Appellate Prosecutor’ s Offic e, of c ounsel), for the People.

Panel J USTI CE WEL CH delivere d the judg ment of the c ourt, with opinion.



### Ju stices G o ld en h ersh an d Wex stten co n cu rred in th e j u d g m en t an d

o p in io n

.

OP INION

¶ 1 Avery S. (the appellant) appeals from an order enter ed by the circ uit court of Randolph C o u n t y o n October 20, 2010, which found him subject to involuntary admission to a Depa rtment of Human Service s mental hea lth or developmenta l center . The c ircuit court’ s order found that the appellant was subject to involuntary admission beca use he was a person with a mental illness who, beca use of that illness, was (1) rea sonably expected to eng ag e in dang erous c onduct which may include threatening behavior or conduc t that places himself

or another in rea sonable exp ectation of being harme d, (2) unable to provide for his basic phy sical needs so as t o g uard himself from serious harm, an d (3 ) u n able to understand his need for treatment and who, if not treated, is rea sonably expected to suff er o r continue to suffe r m ental deterioration or emotional deterioration, or bot h, to the poi nt that the person is reasona bly expected to eng ag e in dang erous c onduct. ¶ 2 Preliminarily
, we addre ss a point on which the parties ag ree

. The circ uit court’s finding s derive from section 1-119 of the M ental Health and Developmental Disabili ties Code (the Code), which define d the term “ ‘[p] erson subject to involuntary admission on an inpatient basis.’ ” 405 IL C S 5 / 1 -119 (West 2010). Prior to the entry of the court’s order
, the term “dang erous c onduct” a s used in section 1-119 was decla red to be unconstit utionally vag ue and violative of the substantive g uarantees of due proce ss. In re Torski C.
, 395 I ll. App. 3d 1010, 1027 (2009). Acc ording ly
, the first and third of the circ uit court’s finding s with respe ct to the appellant being a person subject to involuntary admission are void, and only the second of those finding s remains valid. Thus, we addre ss ourselves only to the circ uit court’s finding that the appellant was a person subject to involuntary admission beca use he was a p er s on with a m en t al i l l n ess who, beca use of that illness, was unable to provide for his basic phy sical nee ds so as to g uard himself f rom serious harm. ¶ 3 The appellant bring s this a p p e al f r o m the order of involuntary admission. The involuntary admission was to remain in eff ect for 180 day s from the date of the order
, and, that time limit

-2-having expired, the order is no longe r in eff ect and no actua l rel i ef ca n be g rante d. Neve rtheless, we will revie w this otherwise moot order under the public-intere st exception
to the mootness doctrine beca use we believe that the issues prese nted are of a public nature

an d are likely to rec ur and that an authoritative determination would provide g u i d an ce t o public officia ls 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 circ uit court of Randolph County seeking
to continue the involuntary admission of the appellant pursuant to section 3-813 of the Code (405 IL CS 5/3-813 (West 2010) ). The petition a lleg ed that the appellant was a person with

a mental illness who, beca use of that illness, is unable to provide for his basic phy sical needs

so as t o g uard himself from serious harm unless treated on an inpatient basis. The petiti on further alleg es that t he appellant had been t ransf err ed to the Chester Me ntal Hea lth Center from Coles County

afte r criminal charg es of f elony ag g ravated batter

y had bee n dismiss ed in return for civil commitment. The petition alleg es that the appellant has no insight into his mental illness and is unable to functi o n on his own in the community and that outside the
structure d environment, he would quickly become a dang er to himself and others. ¶ 5 The petition is a c c o mp a n ied by the cer

tificates of Kathry

n Holt, Ph.D., a psy cholog ist and quali fi ed examiner, and T. Casey
, M.D., a staff psy chiatrist. The certificates of both examiners indicate that they had persona lly examined the appellant and wer e of the opinion that he was a person with a mental illness who, beca use of that illness, was unable to provide for his basic phy sical needs so as to g uard 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 hospitaliz ation. ¶ 6 The certificate of Dr. Casey indicated that she based her opinion and her conclusion on the following fac ts. The appellant was a 22-y ear -old male who was admitted to the Chester Mental Hea lth Center from the Coles County jail afte r he had been found unfit to stand trial for aggr avated battery

. Whil e living in a g roup home, the appellant had stabbed another resident in the arm with a kitchen knife beca use he was ang ry that the other resident had been touching his property

. ¶ 7 The appellant had a history of past self-injury
, fire- setting, extreme phy sical ag g ression, elopement, and past and curr ent command hallucinations. He had been diag nosed with schizoaffe ctive disorder, intermittent explos ive disorder, impulse control disorder, and mild
to moderate mental reta

rdation. The appellant had had numerous prior admissions to mental health cen ters and had exhibi ted ag g ressive behavior toward himself and toward staff and
peer s. He had previously stabbed himself with a pencil and attempted to elec trocute himself. He had been violent with staff, nece ssitating re s t ra i n ts and medication for himself and causing injuries to staff members. He h ad b ee n d enied acc ess to sever al g roups due to inappropriate threatening statements. He had tried to set fires in the g roup home, had injured himself and others, and had attempted to e lope multipl e times. He suffe red from command hallucinations telling him to kill himself and others, and delusions. The appellant also suffe rs from hy perte nsion and type II

diabetes. ¶ 8 The appellant had been remove d from his pare nts’ home due to alleg ations of abuse and
neg lect. He was place d in f oster car e when he was eig ht y ear s of ag e. During his childhood

-3-he rec eived psy chiatric hospitaliz ations beca use of ag g ressive behavior s. He was eventua lly moved to a g roup home. He was in specia l education throug hout his educational history

. He has neve r bee n marrie d, has no childre n, and has no history of employment. ¶ 9 Dr. Case y

stated: “[The appellant’ s] psy chiatric condition is so sever e it was clea r rig ht from the beg inning that the patient was probably not g oing to obtain fitness ever

. His mental reta rdation,
psy chosis and mood instabilit y are quite intense. Despite alter [ sic ] in medication, he was require d to be place d on full leather restraints on 07/01/10 for unpredic table ag g ressive episodes. His adaptive skills are extremely poor. His cog nitive defic its are quite intense. He has not demonstrated any ability to learn info rm at i o n , reg ister, and retrie ve when

nece ssary

. *** His behavior remai n s unpredic table/ag g ressive and his thought content is delusional/psy chotic.” ¶ 10 Wit h respe ct to involuntary admission, Dr. Casey

continued: “[The appellant] would be unable to car e for himself. He has nowher e to reside. He has

a leng thy h i s tory of psy chiatric treatment and violent episodes. He curr ently needs the
structure that Chester Mental Hea lth Center is able to offe r. He would be a dang er to h i m self and others. It is my opinion that [t he appellant] needs continued i n p at i en t treatment.” ¶ 11 Kathryn Holt’s certificate indicated that she based her opinion and conclusion on many of the same fac ts as did Dr. Casey

. I n addition, she noted that the appellant had tried to hang himself with a rope. The a

p p ellant exhibi ts the following signs and sy mptoms consistent with schizoaffe ctive disorder: he admits to having auditory hallucinations, that is, he hear s voices telling him to do things; he has behavior indicative of attending to internal stimul i (prolong ed periods of unfocuse d staring with limit ed motor activity an d n o re s p onse to external environment); he makes bizarre statements; and his mood fre quently swing s from euthy mic (s m i l ing, cordia l, polite) to nonresponsive withdrawa l. The appellant had become viole n t while hospitaliz ed, re quiring restraint, and was thre atening . Holt concluded: “[The appellant] lacks insight into his mental illness and demonstrates poor judgme nt

re gar d i n g self-reg ulation of hi s behavior

. Although he i s able to complete activities o f daily living (ADL s) with prompting and supervision, his adaptive behavior al composite

score indicates that he functions at the ag e equivalenc y level of 6 y ear s, 11 months old. Consequently
, he is not able to provide fo r h i s b asic phy sical needs without extensive assistance from others. Additionally
, [t he appellant] has a history of ag g ressive behavior and non-compli an ce with medication. I f medication and/or supervision wer e to be discontinued, [t he appellant] would be rea sonably expected to decompe nsate rapidly and
p l ac e h i mself and/or others in jeopar dy of phy sical/serious harm. I n light of the d at a

curr ently available to me, it is my opinion that [t he appellant] curr ently meets the criteria for involuntary

psy chiatric hospitaliz ation.” ¶ 12 The petition came on for hearing on October 20, 2010, and the following occur red. The appellant’ s appointed counsel indicated that he had revie wed with the appellant the petition and the reports of the two examiners and that the appellant was “pre pare d t o enter into a stipulation of those reports.” The appellant’s counsel stated that he would have no further

-4-evidenc e to prese nt. The State’s Attorney indicated that he too would “stipulate to the rec ords

g oing in.” The court addre ssed 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 “conside r the reports of Dr. Holt and Dr. Casey

as ev i d en ce the same as if they had taken the witness stand and testified.” The court t h en found, based on the writt en re p o rt s o f Drs. Holt and Casey
, that the appellant is a person subject to involuntary admission and order ed that the appellant be h o s p i t alized in the Depa rtment of Human Services. ¶ 13 The appellant arg ues that the entry of a civil comm i t m en t o rd er throug h a stipulated bench trial violated his due proce ss rig hts as well as the Code and is contra ry to case law. We do not ag ree

. Be cause this case prese nts only a question of law, our revie w is de novo

. In re George O. , 314 I ll. App. 3d 1044, 1046 (2000). ¶ 14 We beg in by pointing out that this case does not involve the waiver of the entire hearing,

or an ag ree d order for involuntary commitment, as was the case in In re Michae l H.
, 392 I ll. App. 3d 965 (2009). I n Michae l H

. , the responde nt to a petition f or involuntary admission, throug h his counsel, waived his rig ht to any h ea ri n g on the petition and all the proce dural safegu ards attendant there to, and essentially ag ree d to be involuntarily admitted. The responde nt’s counsel told the court that his client had “ ‘indicate d he would g ive up his rig ht
to the hearing schedule d for this morning .’ ” 392 I ll. App. 3d at 968. Apparently
, no evidenc e

was prese nted or considere d, not even the written reports of the responde nt’s treatment team

or examiners. On appeal, this court held that a responde nt cannot eff ectively waive the entire hearing on a petition for involuntary admission; if the responde nt ag ree s to be admitted, he must be admitted on a voluntary basis. 392 I ll. App. 3d at 979. ¶ 15 The case at bar is more like People v. Johnson
, 2 0 1 2 IL App (5th) 070573, wher e the responde nt stipulated to the admission i n t o ev i d ence of a psy chiatrist’s report and did not make any arg ument in defe nse, but did not ag reeto be invol untarily admitted or waive his rig ht to a hearing. On appeal, the respond ent raised arg uments simil ar, if not identical, to those raised in the case at bar: that beca use he stipulated to all o f t h e ev i d en ce neede d 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 rec ord does not demonstrate that the waiver was knowing and voluntary

. 2012 IL App (5th) 070573, ¶

6. ¶ 16 This court held that the responde nt had not waived the heari n g i n i t s en t i rety , but had

mere ly waived the statutory require ment that the psy chiatrist who had actua lly examined him testify in person at the hearin g, a wa i v er whi ch is expressly allowed by the C ode. 2012 IL App (5th) 070573, ¶

11. Section 3-807 of the Code provides as f ollows:
“N o responde nt may be found subject to involuntary admission on an inpatient or outpatient basis unless at least one psy chiatrist, clinical social worke r, or clinical
psy cholog ist who has examined him testifies in p er s o n at the hearing. The respondent
may waive the requireme nt of the testimony subject to the approval of the court .” (Emphasis adde d.) 405 IL CS 5/ 3-807 (West 2010). The court noted that the responde nt had not waived other require ments of the Code, such as

-5-the require ment that the State prove its case by clea r and convincing evidenc e. Johnson
, 2012 IL App (5th) 070573, ¶ 21. S ection 3-808 of the Code provides that no respondent may be found subject to involuntary admission unless that finding has been established by clea r and convincing evidenc e. 405 IL CS 5/3-808 (West 2010)

. The court he ld that neither the Code nor due pr ocess wa s violated by this procedur e. Johnson , 2012 IL App (5th) 070573, ¶ 17. ¶ 17 I n the case at bar, as in Johnson
, the appellant mere ly stipulated to the admission into evidenc e of the reports of the two examiners. The court considere d these reports as evidenc e the same as if the examiners had been prese nt and testified in open court. Either the reports established by clea

r and convincing evid en ce that the appellant was a person subject to involuntary admission or they did not. The bu rd en remained on the State. Granted, the examiners wer e not subjected to cross-e x amination, and the appellant prese nted no evidenc e

or ar g ument on his own behalf, but these are decisions properly left to counsel and are not rig hts belong ing to the appellant. Johnson
, 2012 IL App (5th) 070573, ¶ 15. I n Johnson
, 2012 IL App (5th) 070573, ¶ 14, the court pointed out that even in the criminal setting, the decision to st i p u l at e t o evidenc e is g ener ally a tactica l decision that can be made by a defe ndant’s attorney without any indication in the rec ord that the defe ndant persona lly chose
to waive his constitutional rig ht to confr ont particula r witnesses and without any indication that this waiver wa s knowing and voluntary

. ¶ 18 The proce dure followed in the case at bar did not violate the appellant’ s rig hts to due
proce ss and did not violate any provision of the Code. The appellant did not waive the entire commitment hear

ing or ag ree to be involuntarily admitted, but ag ree d only to waive the live testimony of the examiners and to submit the case to the court on the b as i s o f t h e written
reports. ¶ 19 The appellant arg ues that even if a stipulated bench trial is permitted by law, the circ uit
court still has an obligation to confirm that the appellant voluntarily and knowing ly waived his constituti onal rig ht to cross-examine witnesses, an obligation which it did not fulfill in the case at bar. I n Johnson
, 2012 IL App (5th) 070573, ¶ 14, we pointed out that even in the criminal setting, the decision to stipulate to evidenc e is g ener ally a tactical decision that can be made by a defe ndant’s attorney without any indication in the rec ord that the defe ndant
persona lly chose to waive his constitutional rig ht to c o n f r o n t p a r ti c u lar witnesses and without
any indication that this waiver was knowing and voluntary

. The responde nt to an involuntary commitment pr ocee ding is not entitled to the same rig hts a s is a criminal defe ndant, and in Johnson
, 2012 IL App (5th) 070573, ¶ 17, we held that a responde nt’s rig hts are adequately protec ted by the proce dures established in the Code. Section 3-807 of the Code require s court approva l befor e a responde nt may waive his rig ht to have an ex aminer t es t i fy i n p erson in
open court, but it does not require any specific admonitions to, or inquiries of, the responde nt. 405 IL CS 5/3-807 (West 2010). The app ell ant’s rig hts are protec ted by the statute’s require ment that the rig ht only be waived with approva l of the court. The proce dures of the Code are sufficie nt to protec t the appellant’s d u e p ro ce s s rig hts in a mental health
proce eding

. ¶ 20 The a

ppellant next arg ues that a stipulated bench trial such as the one in the case at bar
contra dicts the C o d e’ s statutory scheme as ref lected in section 3-801.5 of the Code (405 IL CS 5/3-801.5 (West 2010)) reg arding ag ree d order s for admission on an outpatient basis.

-6-That section provides that a responde nt to a petition for involuntary admission may enter into

an ag ree ment with the State for an order for admission on an outpatient basis provided, inter alia
, that the court advises th e re s p o n dent of the conditions of the proposed order and is satisfied that the responde nt unders t an d s and ag ree s to those conditions. 405 IL CS 5/3- 801.5(a) (West 2010). The appellant arg ues that he is entitled to the same protec tions in the
context of a stipulated bench trial and that no such protec tions wer e aff orded him. Ag ain, we do not ag ree

. ¶ 21 I n the contex t of a stipulated bench trial, the on l y rig ht being waived is the appe llant’s statutory rig ht to have an ex aminer testify in person in open court. I n all other re spects the appellant’ s rig hts are unaff ecte d by the stipulated bench trial. The Code expressly provides for the waiver of this statutory rig ht to have an examiner testify in person in open court. 405 IL CS 5/3-807 (West 2010). The responde nt does not there by ag ree to be admitted; the burden

remains with the St ate to esta blish byclea

r and c onvincing evidenc e that the re spondent is

a person subject to involuntary admission. We do not find the proce eding s in the case at bar to be inconsistent with the statutory scheme of the Code r eg arding ag ree d order s. ¶ 22 The appellant also arg ues that the proce eding s in the case at bar are inconsistent with the statutory scheme of encour ag ing the adoption of v o l u ntary admission as opposed to involuntary admission beca use a stipulat ed b en ch trial is the functional equivalent of a voluntary admission but without its acc ompanying statutory and thera peutic benef

its. We do
not a g ree that a stipulated bench trial is the functional equivalent of a voluntary admission. Ag ain, in this stipulated bench trial the only rig ht be ing w aived is the responde nt’s rig ht to have an examiner testify in person in open court. The Code expressly prov i d es for such a proced ure. 405 IL CS 5/3-807 (West 2010). A responde nt to a petition for involuntary admission can stipulate to the introduction of evidenc e without ag ree ing to be involuntarily admitted. This is not the functional equivalent of a voluntary admission. The evidenc e may

or may not be su ff

i ci en t t o prove that the responde nt is a person subject to involuntary admission. ¶ 23 The appellant next arg ues that allowing a stipulated bench trial will encour ag e pro forma h earings which would result in erosion of a patient’s liberty interests. I n rec ent y ear s the
courts have g one to some leng ths to impress upon the circ uit c ourts that proce eding s under the Code are not to be conducte d pro forma

. The courts have require d strict compliance with the Code in every respe ct (see In re George O
., 314 I ll. App. 3d 1044, 1046 (2000))
, and we do so here

. The proce dure followed in the case at bar is e x pressly provided for

in the Code and does not violate any specific provi s i o n o r t h e statutory scheme
, nor does it violate t he appellant’ s due proc ess rig hts. ¶ 24 Finally
, relying on In re Mark W

. , 348 I ll. App. 3d 1065 (2004), the appellant arg ues that the stipulation in the case at bar was in s u ff i ci en t to establish by clea r and convincing evidenc e that he is a pe rson subject to involuntary admission. I n Mark W

. , a procee ding to involuntarily administer medication under the Code, the responde nt’s counsel stipulated as follows:
“ ‘[W ]e’ll have no evide nce to dispute the [S ]t ate’ s witnesses, so we’ re willing to stipulate that the State would offe r evidenc e that Mark has a serious mental illness, that

-7-bec au se of his illness he suffe rs by suffe ring from perva sive delusions, [t hat] his
sy mptoms have persisted for a marke d period of time, that they believe that the benef its of the treatment would outweig h the harm, that he lacks the capa city to make a rea soned decision about his treatment, and that less re strictive servic es are inappr opriate. We don’t nece ssarily

ag reewith all of that evidenc e, but w e stipulate that it will be
prese nted, and wehave nothing to controvert it.’ ” 348 I ll. App. 3d at 1075.
On appeal, this court found this stipulation to be insufficient beca use it failed to include any fac ts underlying its conclusions and did not addre ss the require d fac tors on which to base a decision whe ther to involuntarily administer medication. 348 I ll. App. 3d at 1076. ¶ 25 I n the ca se at ba r, the stipulation entere d into by the parties wa s simplythat the re ports of the two examiners be admitted into evidenc e. The court acc epted the stipulation and stated that it would “conside r the repor ts of Dr. Holt and Dr. Casey as evidenc e the same as if they had taken the witness stand and testified.” The stipulation was sufficie nt for i t s p urpose. Either the evidenc e as admitted pursuant to the s tipulation was suffici en t t o prove that the appellant was a person subject to involuntary admission or it was not. The circ uit court found that it was. ¶ 26 The appel l an t d o es n o t arg ue in his opening brief that the circ uit court’s finding is
contra ry to the manifest weig ht of the evidenc e, and the arg ument is, the ref ore, waived. I ll. S. Ct. R. 341(h)( 7) (ef

f. J uly 1, 2 0 0 8 ). T h e appellant does make the arg ument in his reply brief, and despite its ha ving been waived, we reje ct it on its merits. The certificates of Drs. Holt and Casey establish by clea r and convincing evidenc e that the appellant suffe red from the mental illness of schiz o af fe ctive disorder. This mental illness rende red the appellant unable to provide for his basic phy sical needs so as to g uard himself from serious harm. He suffe red from hallucinations telling him to kill himself, he had repe atedly tried to hurt or kill himself, and his thought content was delusional/psy chotic. The appellant experience s prolong ed periods of unfocuse d staring with limit ed motor activity and no response to external environment. He lacks insight into his mental i l lness and demonstrates poor judgme nt reg arding self-r eg ulation of his behavior

. He can complete activities of daily living only with prompting and supervision. Finally
, he suffe rs from hyperte nsion and diabetes and has nowher e to live. Dr. Casey stated that the appellant would be unable to car e for himself outside the hospital setting. ¶ 27 The certificates of the doctor s als o support a finding that hospitaliz ation was the least restric tive treatment alternative. The appellant h ad b ee n remove d from the g roup home beca use he had become violent and attacke d another resident with a knife. He had a history of elopement from less restric tive environments and neede d the structure of hospitaliz ation. The evidenc e was sufficie ntly clear an d co n vincing to establish that the appellant was a person subjec t to involunt ary admission. ¶ 28 For the fore g oing rea sons, the judgme nt of the circ uit court of Randolph County is hereby aff irmed.

¶ 29 Affirmed.

-8-