NO. 4-96-0728
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In the Matter of ARLETTA F. ROBINSON, ) Appeal from
a Person Found Subject to Involuntary ) Circuit Court of
Admission, ) Vermilion County
THE PEOPLE OF THE STATE OF ILLINOIS, ) No. 96MH28
Petitioner-Appellee, )
v. )
ARLETTA F. ROBINSON, a/k/a LONDA ) Honorable
STRICKLAND, ) Joseph C. Moore,
Respondent-Appellant. ) Judge Presiding.
JUSTICE GREEN delivered the opinion of the court:
On August 26, 1996, following a hearing in the circuit
court of Vermilion County, the court entered two separate orders
(1) finding that respondent, Arletta F. Robinson, was in need of
involuntary admission to the Department of Mental Health and
Developmental Disabilities at the George A. Zeller Mental Health
Center (Zeller) (405 ILCS 5/3-700 (West 1994)), and (2) directing
the staff at Zeller to administer psychotropic medication to her
(405 ILCS 5/2-107.1 (West Supp. 1995)). Respondent appeals,
contending (1) certain defects in the State's petitions for
involuntary commitment and administration of psychotropic
medication, and the single proceeding held thereon, violated her
procedural due process rights; (2) she was denied effective
assistance of counsel; and (3) the evidence was insufficient to
support the court's order directing involuntary commitment and
administration of psychotropic medication.
We affirm in part and reverse in part.
Respondent's procedural due process claims concern
violations of the statutes that govern (1) proceedings on a
petition for administration of psychotropic medication (405 ILCS
5/2-107.1(a)(1), (a)(2) (West Supp. 1995)) and (2) proceedings on
a petition for involuntary commitment (405 ILCS 5/3-601, 3-609
(West 1994)). The State concedes that all statutory violations as
alleged by respondent have occurred but claims those errors should
be deemed waived as respondent failed to object at the hearing, no
prejudice had resulted, and there had been substantial compliance
with the appropriate provisions of the Mental Health and
Developmental Disabilities Code (Code) (405 ILCS 5/1-100 et seq.
(West 1994)). As we will discuss, we decline to apply the waiver
doctrine to issues concerning the petition for administration of
psychotropic medication and the hearing held on that petition. As
to issues concerning the petition for involuntary commitment, we
apply the waiver doctrine.
The statutory provisions governing petitions for
administration of psychotropic medication at issue here state as
follows:
"(1) Any person 18 years of age or older,
including any guardian, may petition the
circuit court for an order authorizing the
administration of psychotropic medication to a
recipient of services. The petitioner shall
deliver a copy of the petition, and notice of
the time and place of the hearing, to the
respondent, his or her attorney, and the
guardian, if any, no later than 10 days prior
to the date of the hearing. The petition may
include a request that the court authorize
such testing and procedures as may be
essential for the safe and effective
administration of the psychotropic medication
sought to be administered, but only where the
petition sets forth the specific testing and
procedures sought to be administered.
(2) The court shall hold a hearing within
14 days of the filing of the petition.
Continuances totaling not more than 14 days
may be granted to the recipient upon a showing
that the continuances are needed in order to
prepare adequately for a hearing under this
Section. The court may, in its discretion,
grant additional continuances if agreed to by
all parties. The hearing shall be separate
from a judicial proceeding held to determine
whether a person is subject to involuntary
admission." (Emphasis added.) 405 ILCS 5/2-
107.1(a)(1), (a)(2) (West Supp. 1995).
Here, there is no dispute that respondent did not receive
a copy of the petition for administration of psychotropic
medication or notice of hearing 10 days prior to the date of the
hearing as the petition was filed on August 26, 1996, the day of
the hearing originally set for the petition for involuntary
commitment. The August 26, 1996, hearing proceeded on both the
petitions for involuntary commitment and administration of
psychotropic medication. Thus, respondent did not receive a
"separate" hearing on the issue of administration of psychotropic
medication.
The transcript of that hearing indicated respondent's
appointed counsel announced he was ready for trial. Respondent
never objected to the State's failure to serve her with a copy of
the petition for administration of psychotropic medication or the
notice of hearing and never objected to a single hearing held on
the petitions for involuntary commitment and administration of
psychotropic medication.
The State maintains that trial counsel's failure to
object requires the application of the waiver doctrine when the
record establishes no prejudice occurred by any of the procedural
errors and there was substantial compliance with the Code. The
State relies on a line of cases where the Supreme Court of Illinois
has held that the trial court's failure to strictly comply with
notice requirements in involuntary commitment proceedings did not
require reversal where the respondent failed to object and the
respondent had actual notice of the proceedings. In re Splett, 143
Ill. 2d 225, 231-32, 572 N.E.2d 883, 886 (1991); In re Nau, 153
Ill. 2d 406, 419-20, 607 N.E.2d 134, 140-41 (1992). In Splett, the
respondent did not receive formal notice of hearing but was present
at the hearing and was represented by counsel who actively
presented a defense.
Subsequently, the supreme court similarly held that
strict compliance with the requirement of a written
predispositional report (Ill. Rev. Stat. 1989, ch. 91½, par. 3-810)
in involuntary commitment proceedings was unnecessary where the
respondent failed to object to the lack thereof and the purpose of
the requirement was substantially fulfilled by oral testimony. In
re Robinson, 151 Ill. 2d 126, 134, 601 N.E.2d 712, 717 (1992).
Most recently, the supreme court in In re C.E., 161 Ill. 2d 200,
225-27, 641 N.E.2d 345, 356-57 (1994), applied Splett in holding
that the trial court's failure to strictly comply with notice
requirements in proceedings to administer psychotropic medication
did not amount to a due process violation where the respondent had
actual notice of the proceedings and ample opportunity to prepare
a defense.
Here, unlike Splett and its progeny, we do not believe
the procedural defects can be deemed harmless or that respondent
had actual notice of the petition for psychotropic medication with
ample opportunity to prepare for a defense. The evidence indicates
respondent was present with her attorney at the August 26, 1996,
hearing to proceed on the involuntary commitment petition. Thus,
respondent had no notice of the petition for administration of
psychotropic medication until the day of the hearing and had no
opportunity to prepare a defense.
The State maintains that no prejudice occurred by the
total lack of notice of the petition for administration of
psychotropic medication as respondent and counsel actively
participated in the proceedings. However, we cannot determine from
the record that counsel's performance indicates he had an
opportunity to prepare for a hearing on the petition for
Moreover, in enacting the requirement of "separate"
hearings for petitions for involuntary commitment and
administration of psychotropic medication under section
2-107.1(a)(2) of the Code (405 ILCS 5/2-107.1(a)(2) (West Supp.
1995)), the legislature apparently intended to ensure that
psychotropic medication petitions are not just simply appended to
involuntary commitment petitions. Based on the notice
requirements, if followed, an involuntary commitment proceeding
would have to be held within five days of filing the petition (405
ILCS 5/3-611 (West 1994)), where administration of psychotropic
medication proceedings could not be held any earlier than 10 days
after filing the petition (405 ILCS 5/2-107.1(a)(1) (West Supp.
1995)). Thus, separate hearings would have to be held. Here,
where respondent had no notice of the administration of
psychotropic medication proceedings, we do not believe the
"separate" hearing requirement has been substantially complied with
by the court entering separate findings on each petition. The
decision in In re Herbolsheimer, 272 Ill. App. 3d 140, 650 N.E.2d
287 (1995), is not controlling here. There, the third district
held that a combined hearing on petitions for involuntary
commitment and administration of psychotropic medication was not
error. However, the Herbolsheimer case was decided prior to the
enactment of section 2-107.1(a)(2) of the Code expressly requiring
separate hearings.
Given our decision that respondent's failure to object to
defects in the administration of psychotropic drug proceedings does
not amount to a waiver on review, we further conclude that these
errors require us to reverse and vacate the court's medication
order. This court in In re Carmody, 274 Ill. App. 3d 46, 653
N.E.2d 977 (1995), held that the trial court erred in ordering the
administration of psychotropic medication following a finding that
the respondent was in need of hospitalization when no formal
petition for the administration of medication had been filed,
thereby depriving the respondent of proper notice. This court
explained that in order to proceed on a petition for administration
of psychotropic medication, it was implicit under the former
section 2-107.1 of the Code (see 405 ILCS 5/2-107.1 (West 1992))
that (1) a petition be filed prior to the date of the hearing and
(2) the trial court provide notice to respondent of the hearing.
Absent these requirements, the trial court is without authority
under section 2-107.1 of the Code to order the administration of
psychotropic medication. Carmody, 274 Ill. App. 3d at 54, 653
N.E.2d at 983. The Carmody holding applies here, as the
requirements stated in Carmody have expressly been made part of the
notice requirement of the amended section 2-107.1(a)(1) of the Code
(405 ILCS 5/2-107.1(a)(1) (West Supp. 1995)) applicable here.
As we are vacating the court's medication order, we need
not decide whether respondent received ineffective assistance of
counsel based on counsel's failure to object to the defects as
discussed in the administration of psychotropic medication
proceeding, nor do we need to address the sufficiency of the
evidence to support such an order.
Respondent also challenges the form of the petition for
involuntary commitment and whether she received formal service of
the petition with notice of hearing. The record indicates that two
petitions for involuntary commitment were filed. The first
petition was filed on August 22, 1996, by a Danville police officer
and erroneously provided that the petition was being filed on
grounds that respondent was a patient who continues to be subject
to involuntary commitment pursuant to section 3-813 of the Code
(405 ILCS 5/3-813 (West 1994)). However, the statement in support
of the petition indicated that respondent came to the Danville
police station on the evening of August 20, 1996, apparently
because she was homeless and in need of shelter. Respondent was
transported to United Samaritans Medical Center by the reporting
officer, as he believed respondent was unable to care for herself
and was a danger to herself.
The petition provided no answer in the space for listing
the "names and addresses of the spouse, parent, guardian, and close
relative or, if none, known friend." The petition also left blank
the space provided for proof of service of the petition upon
respondent. Attached to the petition were two medical certificates
establishing that respondent was examined by two psychiatrists,
once on August 21, 1996, and again on August 22, 1996. Those
examinations established that respondent suffered from
schizophrenia.
On August 26, 1996, the day of the hearing, a second
petition for involuntary admission was filed, that one indicating
that admission was requested by court order pursuant to section
3-700 of the Code (405 ILCS 5/3-700 (West 1994)). As in the first
petition, the second petition left blank the names and addresses of
family and friends to be contacted and proof of service of the
petition.
Attached to the petition was a copy of the first petition
and a handwritten notation near the proof of service portion that
stated, "[Patient] refuse[s] to sign upon [admission] to unit. 8-
21-96 per V. Hutchinson [R.N.] 8-23-96 Smith [R.N.]" Also
attached to the petition was a copy of an extensive history and
assessment of respondent prepared by a social worker on August 22,
1996.
The State acknowledges that the petitions were defective
in that (1) neither included the names and addresses of any
relative or close friend or explained why none were listed as
required by section 3-601(b)(2) of the Code (405 ILCS 5/3-601(b)(2)
(West 1994)), (2) neither contained a signed proof of service
indicating petitioner received a copy of the petition within 12
hours after admission as required by section 3-609 of the Code (405
ILCS 5/3-609 (West 1994)), and (3) both contained conflicting
statutory authority under which the State was proceeding for
involuntary admission. Furthermore, the record does not prove that
respondent received formal notices of hearing as required by
section 3-611 of the Code (405 ILCS 5/3-611 (West 1994)). The
State contends that these issues are waived, as respondent failed
to raise them to the trial court and no prejudice had resulted. We
agree with the State.
In In re Adams, 239 Ill. App. 3d 880, 607 N.E.2d 681
(1993), this court declined to apply the waiver doctrine to bar
consideration of an alleged error in a petition for involuntary
commitment in failing to provide names and addresses of the
respondent's family or friends or explain why none were listed as
required by section 3-601(b)(2) of the Code (Ill. Rev. Stat. 1991,
ch. 91½, par. 3-601(b)(2)). This court found waiver was
inappropriate there, as the error was apparent from the face of the
record, liberty interests were involved, and the error could be
considered prejudicial. Based on the supreme court's decision in
Nau, this court expressly held that failure to strictly comply with
the requirement of the petition to list names of relatives or
friends or indicate a diligent attempt to do so does not always
require reversal if it could be shown that no prejudice to the
respondent had occurred. Because the error there may have been
prejudical to the respondent, the court reversed the involuntary
commitment order. Adams, 239 Ill. App. 3d at 885, 607 N.E.2d at 684.
Similarly, in In re Ellis, 284 Ill. App. 3d 691, 694, 672
N.E.2d 893, 894-95 (1996), the Third District Appellate Court held
it was reversible error in involuntary commitment proceedings for
the petition to fail to list names and addresses of the
respondent's family or friends or a statement of diligent inquiry,
particularly where the respondent's mother had maintained contact
with the mental health facility.
We conclude the instant case is distinguishable from
Adams and Ellis as here, even though no names of family or friends
are listed on the petition or an explanation why none are listed,
an extensive report of respondent's history was attached to the
second petition for involuntary commitment. This report indicated
that respondent refused to give a personal history and had no known
family or friends, except a sister named Ethel Reed. Respondent
was presently refusing to acknowledge Reed was her sister and had
no "supportive family contact." Reed was last known to be living
in Danville, Illinois. We believe that based on Splett and Nau,
failure to strictly comply with section 3-601(b)(2) of the Code
does not require reversal as (1) respondent failed to object to the
alleged errors and (2) the report attached to the petition
indicated that a diligent attempt was made to learn of respondent's
family and friends, and respondent had no contact with Reed and
desired no contact with her. Thus, we do not believe the State's
failure to contact Reed resulted in prejudice to respondent and we
deem the issue waived for purposes of review.
We also conclude that failure to strictly comply with the
formal proof of service and notice of hearing requirements do not
require reversal as the evidence shows that, as in Splett and Nau,
respondent failed to object and had received actual notice of the
hearing. Respondent was present at the hearing and was represented
by appointed counsel who actively represented her interest on the
issue of involuntary commitment.
Furthermore, the record indicates that respondent was
given a copy of the petition for involuntary commitment.
Introduced into evidence, without objection by respondent, was a
progress note from respondent's chart where a nurse named "CVH"
stated that on August 21, 1996, she gave respondent a copy of the
petition and read the petition to her. Accordingly, although the
proof of service was not signed, the evidence clearly shows that
respondent had been given a copy of the petition and had actual
notice of the hearing. Thus, we deem this issue waived for
purposes of appeal.
Finally, we do not believe that error in marking the
first petition as seeking continued hospitalization, pursuant to
section 3-813 of the Code--when in fact the State was seeking an
original order of commitment--requires reversal under Splett and
Nau. The record indicates that following the filing of the first
petition, a hearing was set within five days on August 26, 1996.
On that date, another petition was filed attempting to correct the
error by indicating the petition was initiated by court order (405
ILCS 5/3-700 (West 1994)) and attaching the first petition and
other reports. Apparently, respondent contends that the filing of
the second petition would require new medical certificates and the
setting of a new hearing date with proof of service and notice of
hearing.
The statement provided by the Danville police officer who
executed the first petition clearly states that respondent was
brought from the police station to the hospital because she was
unable to care for herself and believed to pose a danger to
herself. Respondent was examined by two psychiatrists within 24
hours of her admission. These certificates indicated respondent
was wandering the streets and unable to provide for her needs.
These certificates were available to respondent's attorney. 405
ILCS 5/3-611 (West 1994). Clearly, even with the error in labeling
the first petition as requesting continued hospitalization, the
first petition established that an original order of commitment was
being requested as respondent was unable to care for herself and
posed a danger to herself.
Most likely, the officer who executed the first petition
was proceeding under article VI of the Code governing emergency
admissions by certification. 405 ILCS 5/3-600 through 3-611 (West
1994). Section 3-606 of the Code allows a peace officer to
transport a person to a mental health facility if he has reason to
believe hospitalization is necessary to protect that person from
harm. 405 ILCS 5/3-606 (West 1994).
At the August 26, 1996, hearing, respondent never
objected to the grounds for involuntary commitment cited in either
petition. As the first petition, in all other ways, clearly set
forth the reasons for seeking involuntary commitment, we do not
believe respondent was prejudiced by the error in labeling. There
is no dispute that the proper medical certificates were filed with
the first petition as an emergency admission petition (405 ILCS
5/3-602 (West 1994)) or an admission by court order (405 ILCS 5/3-
702 (West 1994)). Accordingly, we deem this issue waived for
purposes of review.
We further do not believe that respondent was denied
effective assistance of counsel by failing to raise the alleged
errors in the form of the involuntary commitment petitions. As we
have concluded that respondent was not prejudiced by these errors,
there can be no finding of ineffective assistance of counsel under
Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S.
Ct. 2052 (1984), for failing to object. Respondent contends that
counsel was ineffective for failing to object to the admission of
the progress note indicating "CVH" provided respondent with a copy
of the petition. However, respondent does not indicate on what
grounds counsel could have successfully objected to the admission
of the document.
Finally, we conclude that there was sufficient evidence
to support the court's finding that respondent was a person subject
to involuntary admission, and because of her illness, she was
reasonably expected to inflict serious harm upon herself or another
in the near future or was unable to care for her basic needs so as
to guard herself from serious harm. 405 ILCS 5/1-119 (West 1994).
The trial court's decision in involuntary commitment proceedings
will not be reversed on appeal unless its decision is determined to
be against the manifest weight of the evidence. In re Bennett, 251
Ill. App. 3d 887, 888, 623 N.E.2d 942, 944 (1993).
At the hearing, Linda Erp, assistant director at
Crosspoint Human Services, testified (1) she spoke with respondent
on August 23, 1996, (2) she has worked with respondent
intermittently since 1974, (3) she contacted respondent to evaluate
alternative placements and talked to her about the court process of
commitment, (4) respondent was unable to have a meaningful
conversation as her responses were not in touch with reality, (5)
respondent had refused to take her medications or see a doctor over
the past year, (6) respondent was "undomiciled," and (7) when
respondent was taking her medications, her condition improved.
Dr. Inagat M. Alikan, a psychiatrist that had been
treating respondent since August 21, 1996, testified (1) respondent
was suffering from an undifferentiated type of schizophrenia where
she becomes very "suspicious, delusional, loses touch with reality,
and [is] unable to take care of her daily needs"; (2) if respondent
was not presently given medical care, she would be a danger to
herself because she deludes herself into believing she is not ill
and does not take her medication; (3) respondent in her present
condition is unable to find a place to live and, consequently, has
been assaulted several times; (4) respondent has no understanding
about how to find a permanent home, food, or clothing; (5)
respondent needs long-term hospitalization; (6) only if respondent
takes her medication would outpatient treatment be feasible; and
(7) respondent suffers from auditory hallucinations and talks to
voices she hears.
Respondent testified (1) she was living at Oaklawn Inn
but right now she was "kidnapped" at the police station and taken
to the hospital; (2) she pays for food and rent from a monthly
social security check; (3) she is a Navaho Indian and cannot take
certain medications; (4) she has her own doctor, and she is not
supposed to take the medicine prescribed by Dr. Alikan; (5) she has
been "fed with a needle through [her] side," but she has not found
a doctor yet to do it; (6) she eats every day, and when she had her
own apartment, she used to prepare some of her food herself; (7)
when she was at the Oaklawn Inn, she bought food at the grocery
store and sometimes she bought food already prepared; (8) she
denied that God told her not to take her medicine; and (9) she
talked to herself only to the extent everyone normally does.
On cross-examination, respondent explained she was the
boss of Scotland Yard and she is here in Danville to see her
husband, Donnie Gaines. On the day she was hospitalized, she was
planning to stay all night at the Danville police station and then
go to the Salvation Army.
Considering all the evidence, the trial court could
reasonably have found that based on her mental illness, respondent
was unable to care for herself. The evidence established
respondent was wandering the streets, staying at temporary
shelters, and as a result, she had been assaulted and robbed
several times. Respondent had difficulty explaining why she was
staying at the police station for the night, what she was going to
do at the Salvation Army, and where she obtained her meals.
Clearly, respondent was delusional, and Dr. Alikan testified he
believed respondent was suffering from auditory hallucinations.
In summary, we (1) reverse the court's order approving
the administration of psychotropic medication, and (2) affirm the
court's order directing that respondent be involuntarily committed
at Zeller.
For the reasons stated, we affirm in part and reverse in
part.
Affirmed in part and reversed in part.
KNECHT and COOK, JJ., concur.