In re N.E.

2022 Ohio 1184

• Court: Ohio Court of Appeals
• Decided: April 8, 2022
• Docket: C-210181
• Status: Published

Opinion

[Cite as In re N.E., 2022-Ohio-1184.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

IN RE: N.E. : APPEAL NO. C-210181 TRIAL NO. MI-2020000613 :

: O P I N I O N.

Appeal From: Hamilton County Court of Common Pleas, Probate Division

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: April 8, 2022

Faulkner & Tepe, L.L.P., and A. Norman Aubin, for Applicant-Appellee, Hamilton County Mental Health and Recovery Services Board,

Michael J. Trapp, for Respondent-Appellant, N.E. OHIO FIRST DISTRICT COURT OF APPEALS

CROUSE, Judge.

{¶1} Respondent-appellant N.E. appeals the judgment of the Hamilton

County Probate Court finding that he is a mentally ill person subject to hospitalization

and treatment by court order. In one assignment of error, appellant argues that the

probate court lacked jurisdiction to enter that judgment. For the reasons that follow,

we overrule this assignment of error and affirm the judgment of the probate court.

Factual Background

{¶2} On August 18, 2020, North College Hill Police brought appellant to the

University of Cincinnati Medical Center Psychiatric Emergency Services for an

emergency hospitalization.

{¶3} The following day, the hospital filed an “Application for Emergency

Admission” in the probate court. The application included a written statement by the

responding police officer, which provided as follows:

Subject made incoherrent [sic], unintelligible statements throughout

the night over three separate police contacts. Statements made include,

“I have died six times,” among other similar statements. Subject was

yelling in the street, causing people to be alarmed and call 911.

{¶4} Included in the application was a statement of observation by Dr.

Christopher P. Marett, M.D. Dr. Marett wrote that appellant “has symptoms of mania.

He has had concerning behavior leading to several police calls. Also has apparently

destroyed mother’s house recently. Needs hospitalization for safety and stabilization.”

{¶5} Also filed with the probate court was an affidavit of mental illness,

signed by Dr. Marett, and a motion for forced medication, signed by Dr. Bryan J.

Griffin, D.O., appellant’s treating physician.

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{¶6} The court issued a temporary order of detention, and set a hearing

before a magistrate on both matters for August 21, 2020.

{¶7} At the hearing, Dr. Cyma Khalily, the court-appointed expert, testified

about the mental-status exam she performed on appellant. Two witnesses for

appellant also testified. Following this testimony, the magistrate found appellant to

be mentally ill subject to hospitalization, with the least restrictive setting determined

to be the University of Cincinnati Medical Center – Ridgeway (“UC Ridgeway”). The

court then proceeded to the forced-medication portion of the hearing. After hearing

testimony from Dr. Griffin, the magistrate granted the motion for forced medication.

{¶8} On August 25, 2020, appellant filed objections to the magistrate’s

decision. On September 8, 2020, before the hearing on the objections, appellant was

discharged from UC Ridgeway.1 The probate court overruled the objections and

adopted the magistrate’s decision. Appellant timely filed a notice of appeal. In a sole

assignment of error, appellant contends that the probate court lacked jurisdiction, and

that the proceedings were therefore never properly commenced, because the affidavit

failed to establish probable cause that he was a mentally ill person subject to court

order.

1 While appellant concedes his discharge from UC Ridgeway moots any claim for relief on the forced-medication issue, he argues—and we agree—that appellant’s discharge does not moot his claim to vacate the probate court’s judgment that he is a mentally ill person because “[t]he issue concerning continuing collateral disability must still be determined.” See In re K.W., 10th Dist. Franklin No. 06AP-943, 2007-Ohio-699 ¶ 9, quoting In re Klepper, 49 Ohio St.2d 211, 212, 361 N.E.2d 427 (1977). Ohio courts have found the stigma of being declared mentally ill severe enough to be considered a collateral disability. In re K.W. at ¶ 9, quoting In re Smith, 4th Dist. Athens Nos. 92CA1561 and 92CA1568, 1993 Ohio App. LEXIS 5057 (Sep. 29, 1993); see In re D.B., 10th Dist. Franklin No. 14AP-44, 2014-Ohio-1464, ¶ 7. 3 OHIO FIRST DISTRICT COURT OF APPEALS

The Mental-Illness Affidavit

{¶9} There are two involuntary commitment procedures contemplated in

R.C. Chapter 5122: emergency hospitalization, pursuant to R.C. 5122.10, and

nonemergency hospitalization, pursuant to R.C. 5122.11. In an emergency

hospitalization, pursuant to R.C. 5122.10(A)(1), a police officer or other individual

designated by the statute:

who has reason to believe that a person is a mentally ill person subject

to court order and represents a substantial risk of physical harm to self

or others if allowed to remain at liberty pending examination may take

the person into custody and may immediately transport the person to a

hospital[.]2

{¶10} The transporting individual must provide a written statement to the

hospital detailing “the circumstances under which such person was taken into custody

and the reasons for the belief” that the person needs to be hospitalized. R.C.

5122.10(B).

{¶11} Once at the hospital, the hospital staff must examine the individual

within 24 hours. R.C. 5122.10(E). After the exam, if the chief clinical officer “believes

2R.C. 5122.10(A)(1) also authorizes the following individuals to transport people believed to be mentally ill to a hospital for treatment: (a) A psychiatrist; (b) A licensed physician; (c) A licensed clinical psychologist; (d) A clinical nurse specialist who is certified as a psychiatric-mental health CNS by the American nurses credentialing center; (e) A certified nurse practitioner who is certified as a psychiatric-mental health NP by the American nurses credentialing center; (f) A health officer; (g) A parole officer; (h) A police officer; (i) A sheriff. 4 OHIO FIRST DISTRICT COURT OF APPEALS

that the person is not a mentally ill person subject to court order, the chief clinical

officer shall release or discharge the person immediately unless a court has issued a

temporary order of detention.” Id. Conversely, if the chief clinical officer believes the

person is a mentally ill person subject to court order, he or she “may detain the person

for not more than three court days following the day of the examination and during

such period admit the person as a voluntary patient * * * or file an affidavit under

[R.C.] 5122.11.” Id.

{¶12} R.C. 5122.11 sets forth two requirements for the affidavit:

The affidavit shall contain an allegation setting forth the specific

category or categories under division (B) of section 5122.01 of the

Revised Code upon which the jurisdiction of the court is based and a

statement of alleged facts sufficient to indicate probable cause to believe

that the person is a mentally ill person subject to court order.

R.C. 5122.11.

{¶13} When “an affidavit is properly filed in an emergency commitment

situation, so that the jurisdiction of the court is correctly invoked, the commitment

procedure becomes similar to a non-emergency procedure, except that the person is

already in custody at the hospital.” In re Miller, 63 Ohio St.3d 99, 105, 585 N.E.2d 396

(1992).

{¶14} In the affidavit, Dr. Marett alleged that appellant was mentally ill under

both R.C. 5122.01(B)(3) and (4), such that appellant was “a mentally ill person, who

because of the person’s illness:”

(3) Represents a substantial and immediate risk of serious physical

impairment or injury to self as manifested by evidence that the person

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is unable to provide for and is not providing for the person’s basic

physical needs because of the person’s mental illness and that

appropriate provision for those needs cannot be made immediately

available in the community;

(4) Would benefit from treatment for the person’s mental illness and is

in need of such treatment as manifested by evidence of behavior that

creates a grave and imminent risk to substantial rights of others or the

person[.]

R.C. 5122.01(B)(3) and (4). The statute defines “mental illness” as “a substantial

disorder of thought, mood, perception, orientation, or memory that grossly impairs

judgment, behavior, capacity to recognize reality, or ability to meet the ordinary

demands of life.” R.C. 5122.01(A).

{¶15} In support of these allegations, Dr. Marett included the following facts

in the affidavit:

[Appellant] * * * is a 38 year old male with a history of bipolar disorder

who was brought to the hospital by police. He has been off his

medication for several months. He was causing problems in the

community and the police were called to his home three times in one

day. He is grandiose, labile, pressured. He is grandiose, and voiced ideas

to police her [sic] “died six times.” He destroyed property at his moms

[sic] home. He has substantial disorders of thought, mood, and

perception. In prior admission we had to get court ordered medications

to treat him. He is very clear that he will not take any medications unless

they are court ordered.

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His creating a disturbance in the community and destroying property at

his moms [sic] home are a direct result of mental illness. The least

restrictive setting for his care is University of Cincinnati Medical Center.

Sole Assignment of Error

{¶16} In his sole assignment of error, appellant argues that the trial court

lacked jurisdiction to find him a mentally ill person subject to hospitalization and

treatment by court order because Dr. Marett’s affidavit fails to set forth facts

establishing probable cause to believe appellant is a mentally ill person subject to

hospitalization by court order. He contends that because the court did not have

jurisdiction, the involuntary commitment proceedings were never properly

commenced, and the court’s judgment should be reversed and this cause remanded

with instructions to vacate the order.

{¶17} The Ohio Supreme Court has held that without facts demonstrating

probable cause, an affidavit is facially invalid, and “the jurisdiction of a court may not

be invoked.” In re Mental Illness of Boggs, 50 Ohio St.3d 217, 221, 553 N.E.2d 676

(1990). In Boggs, the court found an affidavit filed by appellant’s former spouse failed

to establish probable cause where the affidavit alleged mental illness under R.C.

5122.01(B)(4) and included allegations that appellant sent letters with “delusional

content” in them, was hyper-religious, and had a history of refusing to take her

medication. Id. at 220. The court stated that the affidavit lacked evidence to

substantiate the claims, and that the:

allegations do not make it probable, or more likely than not, that

appellant suffers from a “mental illness”; that appellant would benefit

from hospitalization; that appellant is in need of treatment; or that

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appellant’s activities create a grave and imminent risk to the substantial

rights of herself or others * * * .

Id. at 220.

{¶18} The court confronted a similar issue in In re Miller, 63 Ohio St.3d 99,

105, 585 N.E.2d 396 (1992). In that case, the affidavit alleged mental illness under

R.C. 5122.11(B)(3) and (4), and stated:

Mr. Kenneth Miller is a 38 year old Caucasian, married male, admitted

on an emergency basis on November 18, 1989. The patient has been

progressively confused, delusional, and paranoid. His sense of reality is

altered, grandiouse [sic] and at times, out of touch with reality.

Id. at 106. The court found these statements to be conclusory and held the affidavit

was insufficient under R.C. 5122.11. Id. It stated that the affidavit “must set forth facts

which describe specific actions, incidents or events.” Id. The court held, “[b]ecause the

affidavit was deficient, no probable cause existed to invoke the jurisdiction of the

probate court.” Id., citing Boggs at 221.

{¶19} Appellant argues that the affidavit filed in his case is deficient for three

main reasons. First, appellant argues that there are no facts in the affidavit to provide

probable cause to believe that he was a mentally ill person within the meaning of R.C.

5122.01(B)(3). He contends that the allegations of property damage, repeated police

calls, and community disturbance do not establish that he was unable to care for his

basic physical needs. Second, appellant argues that the facts alleged in the affidavit do

not establish that his behavior created a “grave and imminent risk to the substantial

rights of others or the [appellant]” and therefore do not establish probable cause to

believe that appellant was a mentally ill person within the meaning of R.C.

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5122.01(B)(4). He contends that the allegations offered in support of this point are

vague, without context, and fail to show a risk to the substantial rights of others. Third,

appellant argues that Dr. Marett’s statements in the affidavit are conclusory, and that

Dr. Marett failed to connect the facts alleged to his opinion about appellant’s mental

state.

{¶20} Appellant claims that the affidavit in this case resembles the affidavit in

In re Mitterbach, 8th Dist. Cuyahoga No. 89200, 2007-Ohio-6489. In Mitterbach,

the appellant went to a hospital for a nonpsychiatric medical issue. Id. at ¶ 2. While in

the hospital’s care, the hospital staff became concerned with her mental health. Id.

The treating physician filed an affidavit pursuant to R.C. 5122.11 alleging appellant was

mentally ill under both R.C. 5122.11(B)(3) and (4). Id. at ¶ 3. The affidavit stated:

[Appellant] has extensive history of psychiatric illness. She is [illegible

word] delusional. Speech is rambling and speech is disorganized as well.

Pt has been [illegible word] non-compliant with meds. Needs [illegible

word] [illegible word] treatment as [illegible word].

Id. at ¶ 2. On appeal, the court held that the statement of facts was insufficient, and

reversed the judgment of the probate court with instructions to vacate its finding that

appellant was mentally ill subject to court order. Id. at ¶ 16-18. The court stated:

The affidavit does not substantiate the extensive history of psychiatric

illness. Nor does it indicate how or when Mitterbach was non-

compliant with her medications, or if and when she was prescribed

medications. The affidavit does not indicate how she was delusional or

what her delusions were about. The only clear fact alleged is that her

speech was rambling and disorganized. Nevertheless, this fact does not

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substantiate a claim that Mitterbach represents a substantial and

immediate risk of serious physical impairment or injury to herself [or]

that Mitterbach is unable to provide for and is not providing for her

basic physical needs. Finally, there is nothing to indicate her behavior

creates a grave and imminent risk to the substantial rights of others or

herself.

Id. at ¶ 15.

{¶21} While we agree that the affidavit in this case could be more detailed, we

find that it was sufficient to establish probable cause to believe that appellant is a

mentally ill person who because of his illness would benefit from treatment for his

mental illness and is in need of such treatment as manifested by evidence of behavior

that creates a grave and imminent risk to the substantial rights of others or himself.

{¶22} Dr. Marett’s affidavit stated that appellant destroyed property at his

mother’s home and caused problems in the community to the point where the police

were called to his home three times in one day. The affidavit described the delusions

that appellant voiced to the police that “he died six times.”

{¶23} The affidavit further stated that appellant has a history of bipolar

disorder and failed to take his medication for several months. It substantiated the

prescription-compliance allegations by discussing previous court-ordered treatment

and continued refusal to take medication absent a court order. Dr. Marett indicated

his belief that appellant’s behavior was a “direct result of mental illness.”

{¶24} An individual’s lack of insight into his mental illness and reality have

been held to be evidence of behavior that creates a grave and imminent risk to the

substantial rights of himself or others. See In re C.J., 12th Dist. Butler No. CA2019-01-

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013, 2019-Ohio-4403, ¶ 22 (affirming the probate court’s finding that appellant was a

mentally ill person under R.C. 5122.01(B)(4) because the record showed that appellant

refused to openly discuss his mental illness, disputed his psychiatrists’ working

diagnosis, refused to fully engage in the prescribed treatment plan, and demonstrated

impaired judgment and unreliable insight into reality).

{¶25} Unlike Mitterbach, where the affidavit included only clinical

conclusions and diagnoses without any facts, the affidavit in this case included facts,

detailing specific events, which led to appellant’s emergency hospitalization. Overall,

we find that the affidavit included sufficient factual allegations to establish probable

cause pursuant to R.C. 5122.11.

Conclusion

{¶26} We hold the mental-illness affidavit filed against appellant was

sufficient to establish probable cause that appellant was a mentally ill person subject

to hospitalization by court order under R.C. 5122.01(B)(4). Therefore, the probate

court had jurisdiction over the matter. We overrule appellant’s sole assignment of

error and affirm the judgment of the probate court.

Judgment affirmed.

MYERS, P. J., and ZAYAS, J., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.