In re Joseph M.

Opinion

Rule 23 order filed NO. 5-08-0620 November 3, 2010; Motion to publish granted IN THE December 9, 2010. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________

In re JOSEPH M., Alleged to Be a Person) Appeal from the Circuit Court of Subject to Involuntary Admission to a ) Randolph County. Facility ) ) No. 08-MH-225 (The People of the State of Illinois, ) Petitioner-Appellee, v. Joseph M., ) Honorable Respondent-Appellant). ) William A. Schuwerk, Jr., ) Judge, presiding. ________________________________________________________________________

PRESIDING JUSTICE CHAPM AN delivered the judgment of the court, with opinion. Justices Goldenhersh1 and Welch concurred in the judgment and opinion.

The respondent, Joseph M., appeals an order finding him subject to an involuntary

admission. He argues that (1) the State did not establish by clear and convincing evidence

that he was subject to an involuntary admission, (2) the State did not establish that

hospitalization was the least restrictive alternative for treatment, (3) the petition failed to

comply with the statutory requirement that it include the name and address of a close relative

or friend, and (4) the record does not contain a statement of the court's findings of fact. The

State argues that this court lacks jurisdiction to decide this case because (1) the notice of

appeal filed by Joseph M. did not comply with the requirements of Supreme Court Rule 303

(210 Ill. 2d R. 303) and was, therefore, not effective to confer jurisdiction and (2) the case

is moot and no exception to the mootness doctrine applies. We find that we have jurisdiction

and we reverse the order of the trial court.

Joseph M. was first admitted to a facility for mental health care in 1984. He was

1 At the time this decision was originally filed, as an order under Supreme Court Rule

23 (166 Ill. 2d R. 23), Justice Goldenhersh was the presiding justice.

1 subsequently admitted on five occasions between 1997 and 1999. In 1999, Joseph was

admitted to Chester Mental Health Center (Chester) after he was found unfit to stand trial on

charges of aggravated criminal sexual assault in Cook County. He was subsequently

transferred back to the Cook County jail and later transferred once again to Chester.

The petition that forms the basis of this appeal alleges that Joseph M. is subject to

continued involuntary admission because he suffers from a mental illness, as a result of

which he is (1) reasonably expected to engage in dangerous or threatening behavior toward

others and (2) unable to provide for his own needs or protect himself from serious harm.

Attached to the petition are two certificates. One was signed by social worker Kristy-jon

Ekes. Ekes stated that Joseph suffered from delusions of a grandiose and religious nature

and believed that the government was using satellites to monitor his movements. Ekes noted

that Joseph had a history of physical violence and experienced "significant mood symptoms,"

including occasional hostility. Finally, Ekes stated that Joseph has refused medication in the

past and that he would stop taking medication if he were released.

The second certificate was signed by psychiatrist S.K. Suneja. Dr. Suneja's

observations were consistent with Ekes' statement. Dr. Suneja additionally stated that

although Joseph M. had not engaged in any acts of physical aggression since an incident in

May 2007, he became agitated when anyone challenged his assertion that he was the

"ambassador of ambassadors" of Jesus Christ. Dr. Suneja noted that Joseph denied having

received any mental health treatment in the past. Joseph was diagnosed with schizoaffective

disorder (bipolar type) and paranoid schizophrenia.

The only witness to testify at the hearing on the petition was Jamia Klausing, a

licensed clinical social worker who was not a member of Joseph M.'s treatment team.

Klausing testified that she interviewed Joseph in his living unit, although she did not specify

when this interview took place. She further testified that she reviewed Joseph's records and

2 discussed his case with members of his treatment team.

Klausing described Joseph's delusions, explaining that he believed that he was the

"ambassador of ambassadors" of Jesus Christ, something which gave him special privileges.

Additionally, she stated that Joseph believed that the government was monitoring his

movements with satellites and that Jesus would return in one year and five months to pass

judgment on the courts and judges for all they had done to him. When asked if Joseph had

any behavioral problems, Klausing admitted that he had not had any since May 2007 (18

months before the hearing). She attributed this to his medication, however, and emphasized

that Joseph would not take medication if it was not "court-enforced." Counsel for the State

then asked, "So the answer, of course, to my question, then, you wouldn't expect him to

continue to take this medication were he released today ***, would you?" Klausing

responded, "No, and he has stated that he would not." She opined that without his

medication, Joseph would become aggressive and would pose a risk to people in the

community.

On cross-examination, Klausing admitted that Joseph's treatment team had, indeed,

been considering moving him to a less restrictive setting for treatment. When asked if this

was still being considered, she replied: "That is being–is being discussed. They're trying to

talk to Mr. M[.] about taking his medication voluntarily, without the enforced order." She

also acknowledged that Joseph's condition had improved with treatment.

At the end of the hearing, the court found as follows:

"Mr. M[.] is a person subject to involuntary admission. Although he has not exhibited

any physical aggression since May of '07, there is some evidence of some severe

delusions and that he is a risk to the community and himself if he is not involuntarily

medicated. As such, the Court finds that he shall be hospitalized *** which is the

least restrictive environment currently appropriate and available ***." (Emphasis

3 added.)

The court entered an order finding Joseph subject to continued involuntary admission for a

period of 180 days. The order was entered on November 19, 2008, the same day the hearing

was held.

Shortly thereafter, Joseph M. mailed to the court a notice that stated, in its entirety,

"Joe Henry M[.] will like to appeal my case November 19, 2008, State Illinois Circuit Court

for the 20th Judicial Circuit Randolph County Courthouse." The Guardianship and

Advocacy Commission was appointed to represent Joseph M. in this appeal. No amended

notice of appeal was filed.

Before considering the merits of Joseph M.'s appeal, we must address the State's

jurisdictional arguments. The State first argues that the notice of appeal we have just

described was insufficient to confer jurisdiction on this court because it failed to comply with

various requirements of Rule 303. For example, the State contends, it is not titled "Notice

of Appeal" (see 210 Ill. 2d R. 303(b)(1)(iii)), does not state that it is an appeal to the Fifth

District Appellate Court (see 210 Ill. 2d R. 303(b)(1)(i)), does not include the case name with

a designation of parties (see 210 Ill. 2d R. 303(b)(1)(ii)), and is not signed by Joseph or an

attorney representing him (see 210 Ill. 2d R. 303(b)(4)). In addition, the State contends that

he did not serve a copy of his notice of appeal as required by Rule 303(c) (210 Ill. 2d R.

303(c)). We do not find any of these flaws fatal to our jurisdiction.

As the State correctly points out, the filing of a notice of appeal is necessary to invoke

the jurisdiction of the appellate court. Burtell v. First Charter Service Corp., 76 Ill. 2d 427,

433-34, 394 N.E.2d 380, 382-83 (1979); Nussbaum v. Kennedy, 267 Ill. App. 3d 325, 329,

642 N.E.2d 151, 155 (1994). This does not mean that strict compliance with every

requirement of Rule 303 is needed to confer jurisdiction. The purpose of a notice of appeal

is to apprise the prevailing party that his opponent seeks appellate review. Burtell, 76 Ill. 2d

4 at 433, 394 N.E.2d at 382; Nussbaum, 267 Ill. App. 3d at 328, 642 N.E.2d at 154. As long

as a notice of appeal is sufficient to serve this purpose, it is sufficient to invoke our

jurisdiction. If the notice of appeal fairly and accurately sets out the order appealed and relief

sought, it is sufficient to confer jurisdiction unless the appellee is prejudiced by any

omissions or deficiencies. Burtell, 76 Ill. 2d at 433-34, 394 N.E.2d at 383; Nussbaum, 267

Ill. App. 3d at 328, 642 N.E.2d at 154.

Here, the notice filed by Joseph M. clearly stated that he was seeking appellate review

of an order entered in his case in the circuit court of Randolph County on November 19,

2008. There was only one such order, and as Joseph points out, the fact that the State

responded to his notice of appeal by filing a brief addressing that order demonstrates that the

State was not prejudiced by his failure to comply with the requirements of form set out in

Rule 303. Because the notice of appeal was adequate to serve its purpose and the State was

not prejudiced, we find that it was sufficient to trigger appellate jurisdiction. We note that

counsel was appointed to represent Joseph five days after he filed his notice of appeal. It

would have been better practice for his appointed attorney to file an amended notice of

appeal on his behalf. However, this does not alter our conclusion that the notice was

sufficient for jurisdictional purposes.

The State next urges us to reject the respondent's contention that we may review this

case under an exception to the mootness doctrine. The order Joseph M. has appealed in this

case expired by its own terms before the appeal reached this court. Because the order is no

longer in effect, we cannot grant effective relief. Thus, the issues raised in this appeal are

moot. In re Barbara H., 183 Ill. 2d 482, 490, 702 N.E.2d 555, 559 (1998). Ordinarily,

appellate courts do not have jurisdiction to consider moot issues. We may only consider

Joseph's claims if they fall within a recognized exception to the mootness doctrine. In re

Alfred H.H., 233 Ill. 2d 345, 351, 910 N.E.2d 74, 78 (2009). Although there is no general

5 exception for mental health cases, these cases usually fall within a recognized exception. In

re Alfred H.H., 233 Ill. 2d at 355, 910 N.E.2d at 80.

Joseph argues that we may consider this appeal under either the public-interest

exception or the capable-of-repetition-yet-evading-review exception. Under the public-

interest exception, we may consider his claims if (1) they present issues of public concern,

(2) an authoritative determination is needed to guide public officials and courts, and (3) the

question is likely to recur. In re Alfred H.H., 233 Ill. 2d at 355, 910 N.E.2d at 80. Under the

capable-of-repetition-yet-evading-review exception, we may hear this appeal if (1) the action

challenged is of such short duration that it cannot be fully litigated before becoming moot

and (2) there is a reasonable likelihood that the same party will be subjected to the same

action again. In re Alfred H.H., 233 Ill. 2d at 358, 910 N.E.2d at 82.

The State, however, points to our supreme court's recent decision in In re Alfred H.H.

There, the court found that the case before it did not fall within either of these two

exceptions. Central to the court's conclusion was the fact that the case involved a claim that

there was insufficient evidence to prove that the respondent was subject to an involuntary

admission by clear and convincing evidence. Two of the four arguments Joseph raises in this

case likewise involve challenges to the sufficiency of the evidence. We note that after In re

Alfred H.H., Illinois courts addressing appellate jurisdiction in mental health cases–including

this court–have specifically noted that the issues they were being called upon to decide had

broader implications than most sufficiency-of-the-evidence claims. See, e.g., In re Eric H.,

399 Ill. App. 3d 831, 833, 927 N.E.2d 867, 869-70 (2010); In re Robert F., 396 Ill. App. 3d

304, 311, 917 N.E.2d 1201, 1206 (2009). However, the supreme court did not hold that a

sufficiency-of-the-evidence claim can never fit within an exception to the mootness doctrine.

Indeed, the court emphasized as follows: "[T]he evaluation of the established mootness

exceptions must be conducted on a case-by-case basis. This evaluation must consider all the

6 applicable exceptions in light of the relevant facts and legal claims raised in the appeal." In

re Alfred H.H., 233 Ill. 2d at 364, 910 N.E.2d at 85. We find that the relevant facts in this

case lead to a different conclusion with respect to jurisdiction.

In re Alfred H.H. involved an order for initial involuntary admission. The State's

witness at the hearing was a psychiatrist who had previously treated the respondent on six

occasions and had also examined him for the purpose of providing a certificate in support of

the petition. The psychiatrist testified about his personal observations of the respondent's

erratic and agitated behavior during that examination. In re Alfred H.H., 233 Ill. 2d at 349,

910 N.E.2d at 76-77. In addition, the respondent testified at the hearing. In re Alfred H.H.,

233 Ill. 2d at 349, 910 N.E.2d at 77.

On appeal, the respondent argued that this evidence was insufficient to support a

finding that he was subject to an involuntary admission by clear and convincing evidence.

In re Alfred H.H., 233 Ill. 2d at 350, 910 N.E.2d at 77. In finding that this argument did not

merit invoking an exception to the mootness doctrine, the court explained that sufficiency-of-

the-evidence claims require "inherently case-specific" review. In re Alfred H.H., 233 Ill. 2d

at 356, 910 N.E.2d at 81. Thus, the court found, the case did not involve the type of "broad

public[-]interest issues" found in most mental health cases. In re Alfred H.H., 233 Ill. 2d at

356-57, 910 N.E.2d at 81. In addition, the court found that any decision it could render

would be unlikely to provide guidance to courts and public officials in other cases. In re

Alfred H.H., 233 Ill. 2d at 358, 910 N.E.2d at 82. This made the public-interest exception

inapplicable. The court also found the capable-of-repetition-yet-evading-review exception

inapplicable because any future petitions involving the same respondent would, presumably,

be supported by different evidence. In re Alfred H.H., 233 Ill. 2d at 360, 910 N.E.2d at 83.

Although the instant case involves claims of error which, like that involved in the In

re Alfred H.H. case, fall under the general description "sufficiency of the evidence," we

7 believe that Joseph's arguments are far less unique and fact-specific than those involved in

In re Alfred H.H. As noted, the trial court in that case heard testimony related to the

testifying psychiatrist's recent direct observations of the respondent. The court also observed

the respondent when he testified. Thus, the resolution of his sufficiency-of-the-evidence

argument would have required a very fact-specific analysis of the evidence presented to

determine whether it supported the trial court's conclusion. In re Alfred H.H., 233 Ill. 2d at

360, 910 N.E.2d at 83.

By contrast, as we will explain in more detail later, it appears that very little of the

evidence before the court in this case related to Joseph's current condition; instead, the State

and the court appeared to rely on his history of mental illness and unwillingness to take

medication. This sort of cursory review is alarmingly frequent. See In re Andrew B., 237

Ill. 2d 340, 355, 930 N.E.2d 934, 943 (2010) (pointing to the increasing number of cases in

which appellate courts have "expressed serious concerns with the State's failure to adhere to

the [Mental Health and Developmental Disabilities] Code's procedural safeguards"); see also,

e.g., In re Phillip E., 385 Ill. App. 3d 278, 895 N.E.2d 33 (2008) (addressing issues strikingly

similar to those before us). Moreover, Joseph argues that because the right to refuse to take

psychotropic medication is fundamental, the State cannot be permitted to involuntarily

commit him based solely on the presumed need to continue to medicate him against his will.

Our resolution of this question will require us to consider the interplay between the two types

of mental health orders.

With this in mind, we find that we may consider Joseph's arguments under the

capable-of-repetition-yet-evading-review exception. As noted, this exception allows us to

consider an otherwise moot appeal if (1) the action challenged is of such short duration that

the issues raised will become moot before they can be fully litigated and (2) there is a

reasonable likelihood that the same party will be subjected to the same action again. In re

8 Alfred H.H., 233 Ill. 2d at 358, 910 N.E.2d at 82. Orders for continued involuntary

admission may not last longer than 180 days. 405 ILCS 5/3-813(b) (West 2008). This is not

enough time for an appeal to be fully litigated before the challenged order expires. In

addition, Joseph has a long history of mental illness and has been subject to multiple petitions

for continued involuntary admission. As we have mentioned, the issues raised in this appeal

not only can recur but often do recur. It is thus reasonably likely that the same problems will

arise again for Joseph M. on future petitions for continued admission. We find that both

criteria are met, and we will therefore consider Joseph's claims.

We turn now to the merits. Joseph first argues that the State did not show that he was

subject to continued involuntary admission by clear and convincing evidence. He also argues

that the State failed to present any evidence to show that continued admission was the least

restrictive form of treatment available. These issues are interrelated, and we will discuss

them together.

The type of evidence presented by the State in this case is nearly identical to that

presented in In re Phillip E. There, as here, the only witness to testify was a social worker

at Chester who met with the respondent one time, reviewed his records, and discussed his

situation with members of his treatment team. In re Phillip E., 385 Ill. App. 3d at 280, 895

N.E.2d at 38. There, as here, the social worker offered no testimony about her own

observations of the respondent even though she had met with him. In re Phillip E., 385 Ill.

App. 3d at 285, 895 N.E.2d at 41. None of the documentation submitted in support of the

petition for continued commitment or any other records were entered into evidence, which

is also true in this case. In re Phillip E., 385 Ill. App. 3d at 284, 895 N.E.2d at 40.

As in this case, the social worker there testified that Phillip had shown improvement

in the months leading up to the hearing and that his treatment team had recommended

transferring him to a less restrictive setting. In re Phillip E., 385 Ill. App. 3d at 280-81, 895

9 N.E.2d at 38. She nevertheless opined that he remained mentally ill, could be reasonably

expected to harm himself or others if not medicated, and had a history of refusing

medication. In re Phillip E., 385 Ill. App. 3d at 281, 895 N.E.2d at 38. Like the testifying

witness in this case, she provided no basis or explanation for that conclusion.

In finding that this testimony fell far short of what was needed to support a finding

that Phillip was subject to continued involuntary admission by clear and convincing evidence,

we explained that clear and convincing evidence requires "explicit medical testimony" from

a witness whose opinion is based on a "history of direct observation of the respondent on

several occasions." In re Phillip E., 385 Ill. App. 3d at 284, 895 N.E.2d at 41; see also 405

ILCS 5/3-807 (West 2008) (providing that a respondent may be found subject to involuntary

admission only if "at least one psychiatrist, clinical social worker, or clinical psychologist

who has examined him testifies in person at the hearing" (emphasis added)).

We note that, as the State has argued in this case, the witness may properly base his

or her opinion or diagnosis in part on the respondent's treatment records. See In re Lisa

G.C., 373 Ill. App. 3d 586, 594-95, 871 N.E.2d 794, 802 (2007) (explaining that an expert

who examines a patient "may properly consider a respondent's complete medical history" and

finding the court's conclusion supported by the witness's testimony about both the

respondent's medical history and his own direct observations of the respondent). However,

as we explained in In re Phillip E., there must be factual support for the witness's opinions.

In re Phillip E., 385 Ill. App. 3d at 285, 895 N.E.2d at 41. Moreover, where the State

chooses not to provide the testimony of a witness who is a part of the respondent's treatment

team, the court has an obligation to carefully examine the facts to determine whether that

testimony, standing alone, provides clear and convincing proof. In re Phillip E., 385 Ill.

App. 3d at 285, 895 N.E.2d at 41.

Here, the State's only witness, Jamia Klausing, testified that she met Joseph M .,

10 reviewed his records, and spoke with members of his treatment team. She described some

of the delusions he suffered, but she did not specifically testify about any of her own

observations of his behavior or offer any factual basis to connect these delusions with her

conclusion that he would be likely to harm himself or others if not medicated. It is certainly

reasonable to believe that the nexus likely exists. The certificates filed in support of the

petition state that Joseph hit another patient in May 2007 and that even though he has not

engaged in any violent behavior since that time, he becomes agitated when his delusions of

grandeur are challenged. However, the certificates were not offered into evidence, and

neither of the experts who provided them were called to testify. See In re Phillip E., 385 Ill.

App. 3d at 284, 895 N.E.2d at 40. As we concluded in In re Phillip E., this simply does not

provide an adequate factual basis for the court to accept Klausing's conclusion that Joseph

will be a danger to the community if released.

Moreover, Klausing's testimony focused largely on her opinion that Joseph needed to

be medicated in order not to pose a risk of harm to the community. For the reasons we have

just discussed, we do not believe that her testimony included sufficient facts to support this

conclusion. However, even if the need for continued medication had been proven by clear

and convincing evidence, it would not automatically lead to the conclusion that continued

hospitalization is required. This is not to say a court can never find that a patient is subject

to an involuntary admission based primarily on a need for involuntary medication which

cannot realistically be effectuated any other way. Indeed, the ability to enforce a court-

ordered medication regime may well be relevant to the need for continued admission.

However, we do not believe that the Mental Health and Developmental Disabilities Code

(Mental Health Code) (405 ILCS 5/1-100 et seq. (West 2008)) contemplates the kind of

bootstrapping that occurred in this case.

The Mental Health Code requires separate proceedings to authorize an involuntary

11 admission and the involuntary administration of psychotropic medication, and orders

authorizing these types of treatment must be supported by different sets of findings. See 405

ILCS 5/2-107.1(a-5)(4) (West 2008) (setting out the criteria for authorizing the involuntary

administration of psychotropic medication); 405 ILCS 5/1-119 (West 2006) (setting forth the

criteria for an involuntary admission). Even a patient who has already been found to be

subject to an involuntary admission may not be medicated against his will unless the statutory

criteria for the involuntary administration of psychotropic medication are met. In re Evelyn

S., 337 Ill. App. 3d 1096, 1106, 788 N.E.2d 310, 318 (2003) (citing 405 ILCS 5/2-107.1(a-

5)(2)(i) (West 2000)). Conversely, a patient who has been found subject to involuntary

medication may not be found to be subject to an involuntary admission based solely on that

finding. As this court has recognized, orders for involuntary admission are "inherently more

restrictive than other types of mental health orders." In re Michael H., 392 Ill. App. 3d 965,

972, 912 N.E.2d 703, 709 (2009).

Here, the State alleged that Joseph is subject to an involuntary admission because he

will be dangerous if he is not medicated and that an involuntary admission is the only

realistic way to make sure he takes his prescribed medication. Joseph argues that because

the right to refuse medication is fundamental, such bootstrapping is not permissible. While

we do not find a per se rule to that effect necessary to protect the rights of patients such as

Joseph M., we believe that the principles we have just discussed demand, at the very least,

clear and convincing proof that the respondent (1) meets the criteria for the involuntary

administration of psychotropic medication, (2) will meet the criteria for an involuntary

admission if not medicated, and (3) cannot be effectively medicated if released. In this case,

none of these three propositions were supported by clear and convincing evidence.

As previously discussed, Klausing's testimony focused largely on her concern that

Joseph would not take his medication unless he was subject to an order for the involuntary

12 administration of psychotropic medication. It was only in response to a leading question that

she predicted he would stop taking his medication if he were released from Chester. She

offered no testimony related to whether Joseph currently met–or would likely continue to

meet–the criteria for authorizing involuntary medication.

In addition, Klausing was not asked about the availability of any alternative ways to

ensure that Joseph took his medication. She was not asked, for example, if he had any family

members or friends into whose care he might be released. See 405 ILCS 5/3-815 (West

2008) (authorizing courts to enter orders for the care and custody of the respondent). She

was not asked if an agreed order for alternative treatment had been considered (see 405 ILCS

5/3-801.5 (West 2008)) or whether some other form of alternative treatment could be ordered

(see 405 ILCS 5/3-812(a) (West 2008); see also In re Nancy A., 344 Ill. App. 3d 540, 555,

801 N.E.2d 565, 580 (2003) (pointing out that a court ordering treatment "has several options

at its disposal")). Thus, the State failed to provide any factual basis to connect the need for

continued medication with the need for continued admission and also failed to give the court

any basis to conclude that no less restrictive alternatives were appropriate or available.

This omission is particularly troubling because the M ental Health Code expressly

provides a preference for care other than by an involuntary admission. 405 ILCS 5/3-811

(West 2008); In re Nancy A., 344 Ill. App. 3d at 556, 801 N.E.2d at 580. For this reason, a

person may not be ordered admitted to a facility involuntarily unless the court also finds that

this is the least restrictive treatment available. See 405 ILCS 5/3-811 (West 2008); In re

Nancy A., 344 Ill. App. 3d at 555, 801 N.E.2d at 580. This requirement "is not met merely

because the State's expert opines [that] commitment is the least restrictive means." In re

Nancy A., 344 Ill. App. 3d at 556, 801 N.E.2d at 580. Here, Klausing testified only that

Joseph had refused medication in the past and indicated he would continue to do so, and

Klausing concluded that hospitalization was the only way to prevent that from occurring.

13 She offered no testimony about which less restrictive alternatives had been considered and

why each had been rejected. The unsupported conclusion of an expert witness who is not

even a part of the respondent's treatment team does not provide clear and convincing proof.

Furthermore, Klausing testified that Joseph's condition had improved in recent months

and that his treatment team was considering a less restrictive placement for him. No

evidence was presented to explain why her opinion was a more accurate gauge of Joseph's

readiness to leave the facility than the opinions of those who actually treated him. In light

of the foregoing, we simply cannot endorse the State's failure to even attempt to meet the

burden imposed on it by the Mental Health Code.

The State argues that our decision in In re Kevin S., 381 Ill. App. 3d 260, 886 N.E.2d

508 (2008), is "directly on point against the respondent." We disagree. There, as here, there

was testimony that the respondent would likely stop taking his medication if released and that

his condition would likely deteriorate as a result. In re Kevin S., 381 Ill. App. 3d at 266, 886

N.E.2d at 515. That is where the similarities end. The social worker there testified that

Kevin S. was not improving in response to medication and other treatment. In re Kevin S.,

381 Ill. App. 3d at 262, 886 N.E.2d at 512. He testified that Kevin was not functioning

particularly well even in the secure environment of the mental health facility and that he

needed "to be put in restraints as recently as two weeks before the hearing." In re Kevin S.,

381 Ill. App. 3d at 266, 886 N.E.2d at 515. In addition, the social worker's opinion that

continued hospitalization was the least restrictive alternative for Kevin was in line with the

opinions of his treating psychiatrist and psychologist. In re Kevin S., 381 Ill. App. 3d at 267,

886 N.E.2d at 515. We rejected the respondent's contention that there was insufficient

evidence to support the court's finding that an involuntary admission was the least restrictive

treatment available. We found that the evidence that Kevin was unable to function well even

in the secure environment of the hospital provided ample support for the conclusion that

14 hospitalization was the least restrictive alternative. Thus, In re Kevin S. does not support the

State's position here. We conclude that the State failed to provide sufficient evidence to carry

its burden.

Joseph M. next contends that the State failed to comply with the requirement that the

petition include the name of a close relative or friend. The statute provides, in relevant part,

as follows:

"(b) The petition shall include ***:

***

2. The name and address of the spouse, parent, guardian, substitute

decision maker, if any, and close relative[] or[,] if none, the name and address

of any known friend of the respondent ***. If the petitioner is unable to

supply any such names and addresses, the petitioner shall state that diligent

inquiry was made to learn this information and specify the steps taken." 405

ILCS 5/3-601(b)(2) (West 2008).

Joseph points out that he has a brother and a sister who could have–and, he contends, should

have–been named in the petition. He also points out that the staff at Chester was aware of

this fact. Thus, he contends, there is no excuse for failing to comply with the requirement

that they be named. See In re Ellis, 284 Ill. App. 3d 691, 694, 672 N.E.2d 893, 895 (1996).

He further argues that he was prejudiced by the State's failure to name his brother or sister

in the petition because, had they been contacted, one of them might have been willing and

available to care for him.

The State, by contrast, argues that Joseph has forfeited this "hypertechnical" argument

by failing to raise it at the hearing because, according to the State, "this alleged defect in the

petition could have been corrected in a few seconds" had he done so. The State further

contends that Joseph cannot demonstrate that he suffered any prejudice because of the defect

15 for two reasons: first, the treatment plan filed in support of the petition mentioned that Joseph

was in contact with his brother and sister, thereby providing the necessary "information about

the respondent's family," and second, the statutory requirement to provide family-or-friend

information is really designed for initial petitions for involuntary commitment. The State

points out that in those cases, a respondent's family likely will not know that the respondent

is facing a petition for an involuntary admission and that it is important that the petitioner

attempt to contact the family so they can provide crucial information to aid in the diagnosis

and treatment of the respondent or perhaps help the respondent obtain legal representation.

As the State appears to acknowledge, the purpose of the statutory requirement is to

ensure that the petitioner makes every effort to contact a responsible family member or

friend. Because a respondent might be prejudiced by the petitioner's failure to follow this

mandate, a reversal is generally warranted even absent an objection. In re Denise C., 348

Ill. App. 3d 889, 892, 810 N.E.2d 654, 657 (2004). We therefore reject the State's forfeiture

argument. However, the failure to include family-or-friend information on the petition itself

is not fatal where the required information is found elsewhere in the petition. In re Denise

C., 348 Ill. App. 3d at 892, 810 N.E.2d at 657. Thus, in In re Denise C., the State's failure

to list any close relative or friend of the respondent in the petition did not require a reversal

where the record established that the only friend or family member she was willing to reveal

was "an 'abusive ex-boyfriend,' clearly not the responsible contact person contemplated by

the [Mental Health] Code." In re Denise C., 348 Ill. App. 3d at 892, 810 N.E.2d at 657. A

reversal was not required because it was clear from the petition as a whole that the person

who filled it out had made a diligent effort to find any family members or friends who should

have been contacted. In re Denise C., 348 Ill. App. 3d at 892-93, 810 N.E.2d at 657.

Similarly, in In re Robin C., the respondent argued that a reversal was warranted

where the petition failed to include the names and addresses of her mother and aunt. In re

16 Robin C., 385 Ill. App. 3d 523, 527-28, 898 N.E.2d 689, 693 (2008). There, a psychiatrist

testified that he had contacted Robin's mother and tried unsuccessfully to contact her aunt.

In re Robin C., 385 Ill. App. 3d at 528, 898 N.E.2d at 693. He even testified about the

information he had gleaned from speaking with Robin's mother. In re Robin C., 385 Ill. App.

3d at 527, 898 N.E.2d at 693. It is for this reason that the court found that Robin suffered

no prejudice from the failure to name either relative in the petition. In re Robin C., 385 Ill.

App. 3d at 528, 898 N.E.2d at 693.

In In re Tommy B., 372 Ill. App. 3d 677, 867 N.E.2d 1212 (2007), the court found that

the respondent could not demonstrate that he was prejudiced by the State's failure to name

any relatives or friends, because he did not identify on appeal any person who should have

been named. In re Tommy B., 372 Ill. App. 3d at 685, 867 N.E.2d at 1220. Presumably, the

rationale behind this holding is that if there is no concerned family member or friend who

might provide useful information or help the respondent in some other way, then the

respondent is not hurt by the State's failure to make diligent efforts to find such a family

member or friend.

Despite finding no prejudice to the respondent, the court took the time to express its

concerns over the failure of everyone involved in the process to notice and correct the error

before–or, at the very latest, during–the hearing. In re Tommy B., 372 Ill. App. 3d at 685,

867 N.E.2d at 1220. The court admonished, "Compliance with the requirements of the

[Mental Health] Code would save countless resources" by limiting the need for appeals. In

re Tommy B., 372 Ill. App. 3d at 685, 867 N.E.2d at 1220. The same court reiterated this

concern in In re Robin C., emphasizing "the need for greater attention to detail in [mental

health] cases." In re Robin C., 385 Ill. App. 3d at 528, 898 N.E.2d at 693.

Here, Joseph has identified his brother and his sister as individuals who should have

been named in the petition. The record indicates that he is in regular contact with them, but

17 there is no indication that they were ever contacted regarding the current petition or hearing.

This is particularly prejudicial in light of the facts of this case. As we previously discussed,

the evidence showed that Joseph's condition had improved with treatment, and the primary

reason offered for his continued involuntary admission to Chester was the need to make sure

he continued to take medication. One less restrictive alternative that could have been

considered was releasing him into the care of one of his siblings. In addition, as the State

acknowledges, family members can often provide valuable assistance to respondents in

Joseph's position by hiring legal counsel for them. The State offers no principled reason why

this is any less important on a petition for continued admission than it is on a petition for an

initial admission. The record before us provides us with no basis to conclude that Joseph's

siblings were ever contacted about the petition. Thus, the petition is fatally defective.

Joseph's last contention is that the court erred in failing to provide any findings of fact.

In response, the State contends that (1) Joseph forfeited this argument by failing to request

more detailed findings at the trial court level and (2) the findings of the trial court were

sufficient because the applicable statute does not specify how detailed those findings must

be. We first note that forfeiture is a limitation on the parties, not courts. We also note that

there is no requirement that a litigant file a posttrial motion before filing an appeal, which

is the most realistic avenue to request more detailed findings. This court recently rejected

a similar argument. In re Michael H., 392 Ill. App. 3d at 970, 912 N.E.2d at 707. We will

therefore address the merits of Joseph's argument.

The Mental Health Code provides that courts ordering involuntary treatment shall

state on the record their findings of fact and conclusions of law. 405 ILCS 5/3-816(a) (West

2008). In support of his argument that the court's findings in this case were inadequate,

Joseph cites In re James S., 388 Ill. App. 3d 1102, 904 N.E.2d 1072 (2009). That case

involved an order authorizing the involuntary administration of psychotropic medication.

18 The court stated only that after hearing the testimony and observing the witnesses, it found

by clear and convincing evidence that the respondent was subject to involuntary medication.

In re James S., 388 Ill. App. 3d at 1105, 904 N.E.2d at 1075. We found this statement

insufficient to satisfy the statutory requirement because, in essence, it contained no facts. In

re James S., 388 Ill. App. 3d at 1107, 904 N.E.2d at 1077. Here, the court's findings, though

somewhat conclusory, are obviously more specific than those involved in the In re James S.

case. Thus, we do not find that case controlling.

As the State points out, the few courts to consider this question have approved of

statements similar to the trial court's finding here that hospitalization is the least restrictive

treatment available. See In re Long, 203 Ill. App. 3d 357, 363, 561 N.E.2d 290, 294 (1990);

In re Grimes, 193 Ill. App. 3d 119, 123, 549 N.E.2d 616, 618 (1990); In re Evans, 86 Ill.

App. 3d 263, 265-66, 408 N.E.2d 33, 35 (1980). However, even assuming that this finding

was adequate, the court here never expressly made any factual findings related to whether

Joseph met the statutory criteria for an involuntary admission. The court merely noted that

there was "some evidence" that Joseph would be "a risk to the community" if not medicated.

Stating that there is some evidence in the record to support a proposition is not the same as

finding it for a fact to be true. Moreover, as we have previously held, the court needed to

find that Joseph would pose a danger to himself or others if not involuntarily admitted to a

facility. Even if we were to construe this comment as a finding, it fails to make the crucial

link between medication and admission the same way the hearing testimony failed to make

that link. Thus, we find that the statement of facts was inadequate to satisfy the statutory

requirement.

For the reasons stated, we reverse the order of the trial court finding Joseph M. to be

subject to an involuntary admission.

Reversed.

19 NO. 5-08-0620

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ___________________________________________________________________________________

In re JOSEPH M., Alleged to Be a Person ) Appeal from the Circuit Court of Subject to Involuntary Admission to a ) Randolph County. Facility ) ) No. 08-MH-225 (The People of the State of Illinois, ) Petitioner-Appellee, v. Joseph M., ) Honorable Respondent-Appellant). ) William A. Schuwerk, Jr., ) Judge, presiding. ___________________________________________________________________________________

Rule 23 Order Filed: November 3, 2010 Motion to Publish Granted: December 9, 2010 Opinion Filed: December 9, 2010 ___________________________________________________________________________________

Justices: Honorable Melissa A. Chapman, P.J.

Honorable Richard P. Goldenhersh, J., and Honorable Thomas M. Welch, J., Concur ___________________________________________________________________________________

Attorneys Veronique Baker, Director, Penelope S. Smith, Laurel W. Spahn, Barbara A. Goeben, for Staff Attorneys, Legal Advocacy Service, Illinois Guardianship and Advocacy Appellant Commission, #7 Cottage Drive, Anna, IL 62906 ___________________________________________________________________________________

Attorneys Hon. Randall Rodewald, State's Attorney, Randolph County Courthouse, Chester, for IL 62233; Patrick Delfino, Director, Stephen E. Norris, Deputy Director, Kevin D. Appellee Sweeney, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, 730 E. Illinois Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864 ___________________________________________________________________________________