[Cite as In re R.T., 2019-Ohio-618.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

In re: R. T.,                                      :                 No. 17AP-288
                                                                  (Prob. No. MI-025404)
                 (Appellant).                      :
                                                               (REGULAR CALENDAR)
                                                   :


                                            D E C I S I O N

                                       Rendered on February 21, 2019


                 On brief: R.T., pro se. Argued: R.T.

                 On brief: J. Michael Evans for appellee Franklin County
                 Alcohol, Drug Abuse, and Mental Health Board. Argued:
                 J. Michael Evans

                  APPEAL from the Franklin County Court of Common Pleas,
                                     Probate Division

BRUNNER, J.
        {¶ 1} Respondent-appellant, R.T., appeals from a judgment of the Franklin County
Court of Common Pleas, Probate Division, committing appellant to the Franklin County
Alcohol, Drug Abuse, and Mental Health Board ("Franklin County ADAMH Board") for a
period not to exceed 90 days and authorizing the forced administration of psychotropic
medication. For the following reasons, we affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} On February 16, 2016, appellant was charged with criminal trespass and
aggravated menacing, in connection with an incident where appellant threatened to shoot
and kill Wal-Mart employees. The Franklin County Municipal Court found appellant
incompetent to stand trial on the criminal charges. Appellant was sent to Twin Valley
Behavioral Healthcare ("TVBH") for competency restoration. On February 24, 2017,
Christopher Boyd filed an affidavit of mental illness in the probate court regarding
appellant pursuant to R.C. 5122.11. Boyd is the assistant manager of the specialized docket
of the Franklin County Municipal Court, where appellant was held after the Wal-Mart
No. 17AP-288                                                                                           2


incident. On February 24, 2017, the municipal court filed an entry dismissing the criminal
complaint against appellant because the court found there was not a substantial probability
that appellant would become competent to stand trial within the time allotted by law. On
February 24, 2017, Peter Iverson, M.D., treating psychiatrist, and Ann K. Morrison, chief
clinical officer, on behalf of TVBH, filed an application to authorize forced psychotropic
medications.
        {¶ 3} On March 1, 2017, a magistrate1 held a hearing on the affidavit of mental
illness and a hearing on the application to authorize forced psychotropic medications. On
that same day, the magistrate issued an order finding appellant to be a mentally ill person
subject to hospitalization. On March 20, 2017, appellant filed an untimely pro se objection
that the trial court addressed in the interest of justice. The trial court appointed an attorney
for appellant and held a hearing on the objection. During the hearing, appellant's attorney
clarified appellant's objection. On March 24, 2017, the trial court filed a judgment entry
overruling appellant's objection and adopting the decision and orders of the magistrate.
Appellant was discharged from TVBH on April 11, 2017.
II. ASSIGNMENT OF ERROR
        {¶ 4} Appellant filed a timely pro se notice of appeal and raised the following
assignment of error for our review:

                THE LOWER COURT ERRORED [sic] IN VIOLATING
                5122.01, 5122.11, AND 5122.10 BY THAT OF FORCING
                APPELLANT TO STAY LONGER IN TWIN VALLEY AFTER
                SERVING THEIR CRIMINAL SENTENCING AND USING
                THE UNCONVICTED CRIMINAL SENTENCEING [sic]
                ALREADY SERVED AS A REASON TO MAKE APPELLANT
                TAKE FORCED MEDICATION.

III. DISCUSSION
        {¶ 5} Initially, we note that the record indicates that appellant was discharged from
TVBH on April 11, 2017 and was present for oral argument before this Court. While the
action may appear to be moot, this Court has previously recognized that such an action is
not moot. "An adjudication by the probate court of mental illness carries a stigma that can
have a significant impact and adverse consequences on the individual's life." In re R.T.,


1 R.C. Chapter 5122 refers to a referee rather than magistrate but we shall use "referee" and "magistrate"
interchangeably.
No. 17AP-288                                                                                              3


10th Dist. No. 13AP-291, 2013-Ohio-4886, ¶ 6, citing In re Miller, 63 Ohio St.3d 99, 108
(1992), citing Addington v. Texas, 441 U.S. 418, 425-26 (1979); see also In re D.B., 10th
Dist. No. 14AP-44, 2014-Ohio-1464, ¶ 7.
        {¶ 6} The brief appellant filed with this Court makes no supporting argument
regarding her assignment of error. App.R. 12(A)(2) provides that we are free to disregard
appellant's assignments of error under these circumstances. However, we will address
what we discern are the issues raised by appellant's assignment of error.
        {¶ 7} By her assignment of error, appellant seems to contend that the decision of
the trial court finding appellant to be a mentally ill person subject to hospitalization by court
order and its decision concerning the court's forced medication order were against the
manifest weight of the evidence.
        {¶ 8} R.C. Chapter 5122 sets forth the procedures for committing a person to a
mental hospital. "When commitment is against a person's will, it is particularly important
that the statutory scheme be followed, so that the patient's due-process rights receive
adequate protection." In re Miller at 101. When a person faces involuntary commitment
to a mental hospital "the individual's right against involuntary confinement depriving him
or her of liberty must be balanced against the state's interest in committing those who are
mentally ill." Id.
        {¶ 9} The non-emergency hospitalization under R.C. Chapter 5122 begins with the
filing of an affidavit with the court setting forth specifics under R.C. 5122.01(B) providing
the basis for the court's jurisdiction. The affidavit must contain sufficient facts to indicate
probable cause that an individual is a mentally ill person subject to hospitalization by court
order. R.C. 5122.01(B) defines the "[m]entally ill person subject to hospitalization by court
order."2 The court must conduct a hearing to determine whether the individual is a
mentally ill person subject to hospitalization and the statute provides a three-part test for
involuntary commitment. State v. Welch, 125 Ohio App.3d 49, 52 (11th Dist.1997). The
first two parts of the test are provided in R.C. 5122.01(A), as follows:

                "Mental illness" means a substantial disorder of thought,
                mood, perception, orientation, or memory that grossly impairs

2In 2014, the General Assembly amended R.C. 5122.01(B) and deleted "hospitalization by" following "person
subject to" in the introductory language of (B); deleted "in a hospital" in (B)(4); added (B)(5) and (Y) and
rewrote (V). A person who only meets the criteria in R.C. 5122.01(B)(5)(a) is not subject to hospitalization.
R.C. 5122.01(B)(5)(b).
No. 17AP-288                                                                                   4


               judgment, behavior, capacity to recognize reality, or ability to
               meet the ordinary demands of life.

       {¶ 10} The third part of the definition is found in R.C. 5122.01(B) and requires a
finding that the individual:

               (1) Represents a substantial risk of physical harm to self as
               manifested by evidence of threats of, or attempts at, suicide or
               serious self-inflicted harm;

               (2) Represents a substantial risk of physical harm to others as
               manifested by evidence of recent homicidal or other violent
               behavior, evidence of recent threats that place another in
               reasonable fear of violent behavior and serious physical harm,
               or other evidence of present dangerousness;

               (3) Represents a substantial and immediate risk of serious
               physical impairment or injury to self as manifested by
               evidence that the person 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.

       {¶ 11} Accordingly, for the trial court to find an individual is a mentally ill person
subject to hospitalization there must be sufficient evidence that the individual has a
substantial mental disorder that the mental disorder grossly impairs his/her functioning,
and the individual must be hospitalized for one of the four reasons provided in R.C.
5122.01(B). Each part of the definition must be established by clear and convincing
evidence. "Clear and convincing evidence is that measure or degree of proof which is more
than a mere 'preponderance of the evidence,' but not to the extent of such certainty as is
required 'beyond a reasonable doubt' in criminal cases, and which will produce in the mind
of the trier of facts a firm belief or conviction as to the facts sought to be established." Cross
v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus. "Where the proof
required must be clear and convincing, a reviewing court will examine the record to
determine whether the trier of facts had sufficient evidence before it to satisfy the requisite
No. 17AP-288                                                                            5


degree of proof." State v. Scheibel, 55 Ohio St.3d 71, 74 (1990). However, judgments that
are supported by some competent, credible evidence going to all the essential elements of
the case will not be reversed by a reviewing court and the appellate court should not
substitute its judgment for the trial court when there exists competent and credible
evidence supporting the trial court's findings of fact and conclusions of law. Id.
       {¶ 12} The Supreme Court of Ohio established a totality of the circumstances test to
determine whether a person is subject to hospitalization pursuant to R.C. 5122.01(B) in In
re Burton, 11 Ohio St.3d 147, 149 (1984). The trial court should consider the following
factors, including, but not limited to:

              (1) [W]hether, in the court's view, the individual currently
              represents a substantial risk of physical harm to himself or
              other members of society; (2) psychiatric and medical
              testimony as to the present mental and physical condition of
              the alleged incompetent; (3) whether the person has insight
              into his condition so that he will continue treatment as
              prescribed or seek professional assistance if needed; (4) the
              grounds upon which the state relies for the proposed
              commitment; (5) any past history which is relevant to establish
              the individual's degree of conformity to the laws, rules,
              regulations and values of society; and (6) if there is evidence
              that the person's mental illness is in a state of remission, the
              court must also consider the medically suggested cause and
              degree of the remission and the probability that the individual
              will continue treatment to maintain the remissive state of his
              illness should he be released from commitment.

In re Burton at 149-50.
       {¶ 13} The magistrate's March 2, 2017 order of commitment was based on the
magistrate's finding appellant to be a mentally ill person subject to hospitalization. The
order was based on an affidavit and a hearing. The affidavit was filed by Christopher Boyd,
the assistant manager of the specialized docket of the Franklin County Municipal Court,
where appellant was held after the Wal-Mmart incident. The affidavit provided the
following significant points:

              [Appellant] was found incompetent to stand trial and
              unrestorable despite attempts at in-patient restoration.
              [Appellant] was charged with criminal trespass and aggravated
              menacing after she threatened to shoot and kill employees at a
              Wal-Mart store. [Appellant] suffers from a Delusional
No. 17AP-288                                                                                6


              Disorder and is unwilling to accept medications or treatment at
              this time for her condition, despite already being in TVBH.
              [Appellant] presents with loose disorganized thoughts. She is
              acutely delusional and is unable to have a sustained logical
              conversation. She has persecutory and grandiose ideation. She
              reports the belief that law enforcement are repeatedly
              romantically pursuing her as well as claims about being the
              target of various assassination attempts. She is paranoid and
              believes others including her attorney are plotting against her.
              Her behavior is described as intrusive and largely
              uncooperative. [Appellant] at times cackles inappropriately.
              [Appellant] is in need of continued hospitalization and may
              benefit from a forced medication order due to her
              unwillingness to accept voluntary treatment for her psychiatric
              illness. [Appellant] continues to display behaviors based on
              her delusional beliefs which poses a serious risk of harm to
              herself and the community. Without treatment, [appellant] is
              likely to engage in similar dangerous behavior like that which
              led to her involvement with the Court system. [Appellant] is in
              need of a thorough risk assessment as well as, appropriate
              linkage to community resources that can assist in managing her
              condition upon discharge.

(Feb. 24, 2017 Aff. of Mental Illness.)
       {¶ 14} At the hearing, Peter Iverson, M.D., a psychiatrist at TVBH, testified that he
was the attending physician for appellant at TVBH. Dr. Iverson testified, in his opinion,
based upon a reasonable degree of psychiatric certainty, that appellant's current mental
condition consists of schizophrenia that rises to the level of a substantial disorder of mood
and thought, especially thought, memory, and perception. Dr. Iverson believes appellant's
disorder grossly impairs her judgment.        He believes that as a result of appellant's
schizophrenia and paranoia, she represents a substantial harm to herself and others, and
inpatient hospitalization is the least restricted setting consistent with her current treatment
needs. Dr. Iverson explained that appellant's thoughts are paranoid, and she believes the
staff is trying to kill her on a daily basis. Her impaired judgment and behavior has involved
trouble with the law, including the recent Wal-Mart incident and she has not improved in
the time she was at TVBH. Dr. Iverson believes appellant is at high risk for a similar
situation occurring again.
       {¶ 15} On cross-examination, Dr. Iverson was asked whether appellant's behavior
and thought processes were similar to her prior hospitalization in 2013. Dr. Iverson
No. 17AP-288                                                                                7


answered yes and mentioned the facts regarding a previous arrest and hospitalization for
competency restoration.
       {¶ 16} Dr. Iverson explained that appellant does not believe she has a mental illness
and, thus, refuses medication. Without medication treatment, Dr. Iverson believes she will
not improve. S.T., appellant's daughter, also testified at the hearing.
       {¶ 17} Based upon the testimony, the magistrate found the evidence was clear and
convincing that appellant suffers from a mental illness, diagnosed as schizophrenia, which
presents a substantial disorder of thought, perception, and memory which results in a gross
impairment of her judgment. The magistrate found clear and convincing evidence that
appellant represented a substantial risk of harm to herself since she was unable to care for
her basic physical needs outside of the hospital setting. Finally, the magistrate concluded
that the least restrictive alternative for her current treatment was inpatient hospitalization
in a civil mental hospital pursuant to R.C. 5122.15(E).
       {¶ 18} Based on the record, the testimony of Dr. Iverson presents clear and
convincing evidence to support the trial court's finding that appellant is a mentally ill
person, who, because of her illness, represented a substantial risk of physical harm to
herself or others under R.C. 5122.01(B). Appellant, as a result of her mental illness,
threatened to shoot and kill Wal-Mart employees and believed the staff at TVBH was trying
to kill her. The trial court had clear and convincing evidence that appellant has a substantial
mental disorder and that the mental disorder grossly impairs her functioning. Further, the
trial court had clear and convincing evidence that appellant must be hospitalized because
she did not recognize that she has a mental illness and needs treatment and, as such,
represented a substantial risk of physical harm to herself and others that satisfies R.C.
5122.01(B).
       {¶ 19} Appellant's assignment of error also seems to contend that the trial court's
order concerning the forced medication order was against the manifest weight of the
evidence. Since appellant was already released from TVBH and received the forced
medication, this argument is rendered moot. "A matter is moot where a judgment is sought
upon a matter which, when judgment is rendered, will not have any practical effect upon
the issues raised by the pleadings." Witkowski v. Arditi, 123 Ohio App.3d 26, 30 (7th
Dist.1997). Even if a case is moot, an appellate court may decide the appeal if an exception
No. 17AP-288                                                                                 8


to the mootness doctrine applies. The "capable of repetition yet evading review" exception
applies only in exceptional circumstances when (1) the challenged action is too short in
duration to be fully litigated before its cessation or expiration, and (2) there is a reasonable
expectation that the same complaining party will be subject to the same action again. State
ex rel. White v. Kilbane Koch, 96 Oho St.3d 395, 2002-Ohio-4848. That exception applies
in this case. However, the evidence provided in this case supported the order of forced
medication. Steele v. Hamilton Cty. Community Mental Health Bd., 90 Ohio St.3d 176,
189 (2000), fn. 8.
       {¶ 20} In Steele, at paragraph six of the syllabus and 187-88, the Supreme Court of
Ohio held that the standard for court authorization of forced treatment by providing that
the applicant must prove by clear and convincing evidence the following:

              (1) [T]he patient does not have the capacity to give or withhold
              informed consent regarding his/her treatment, (2) it is in the
              patient's best interest to take the medication, i.e., the benefits
              of the medication outweigh the side effects, and (3) no less
              intrusive treatment will be as effective in treating the mental
              illness.

       {¶ 21} The magistrate conducted a hearing on the application for authority to
forcibly medicate appellant. Dr. Iverson again testified. He stated he believed appellant
lacked the capacity to make an informed medical treatment decision because she does not
appreciate that she has schizophrenia, and she is not able to process the information
rationally. Dr. Iverson was not aware of a less-intrusive treatment alternative than his
suggested medication, and with the treatment, appellant's prognosis is fair and without
treatment, her prognosis is poor.
       {¶ 22} On cross-examination, Dr. Iverson explained that appellant did not believe
she was ill and therefore refused any medication, despite acknowledging that medication
had helped her in the past.
       {¶ 23} Andrew Savageau, M.D., also testified. Dr. Savageau, a licensed psychiatrist
working at TVBH, concurred with Dr. Iverson's opinion that appellant has schizophrenia
and is unaware that she is ill. Dr. Savageau believed the proposed treatment plan was very
appropriate and was not aware of a lesser-intrusive alternative consistent with her needs.
Dr. Savageau believed the benefits of treatment far outweighed any risks. Dr. Savageau also
agreed with Dr. Iverson that appellant's prognosis would be fair given treatment and
No. 17AP-288                                                                                9


without medication, her "illness will continue indefinitely and possibly worsen." (Mar. 1,
2017 Hearing Tr. at 44.)
       {¶ 24} Based on this testimony, the magistrate recommended that the hospital be
authorized to treat and medicate appellant according to the terms of the application to
authorize psychiatric treatment. Both doctors testified that appellant lacked the capacity
to make an informed treatment decision because she does not acknowledge that she has a
mental illness. Both doctors believed it was in appellant's best interest to receive this
medication and recommended treatment. Both doctors testified appellant was successfully
treated with the proposed medication previously, and Dr. Savageau testified that the
benefits far outweighed any risk. Both doctors stated that they were unaware of any less-
intrusive treatment alternative consistent with her needs. Dr. Savageau also agreed with
Dr. Iverson that appellant's prognosis would be fair given treatment and without
medication, her illness would continue and possibly worsen. Thus, the trial court had clear
and convincing evidence consistent with the requirements of Steele that supported the
order of forced medication.
       {¶ 25} Appellant argued in her objection in the trial court and in her brief before this
Court that the trial court relied on testimony regarding the facts supporting her prior
hospitalization in 2013. While Dr. Iverson did testify regarding those facts, the trial court
specifically stated that it put "little weight on the statement by the doctor concerning" the
facts regarding appellant's previous hospitalization. (Apr. 24, 2017 Jgmt. Entry at 11.) The
trial court mentioned only that the incident "is but one incident showing a pattern of
[appellant's] troubling behaviors." Id. Thus, the trial court did not rely on those facts to
support its order. The evidence provided at the hearings was sufficient without any
mention of previous incidents.
       {¶ 26} Finally, appellant seems convinced that the trial court relied on her arrest as
evidence to support the civil commitment. However, the civil commitment process is
separate from the criminal process, and the trial court properly followed the mandates of
R.C. Chapter 5122. Appellant's sole assignment of error is overruled.
No. 17AP-288                                                                          10


IV. CONCLUSION
      {¶ 27} For the foregoing reasons, appellant's sole assignment of error is overruled,
and the judgment of the Franklin County Court of Common Pleas, Probate Division, is
affirmed.
                                                                     Judgment affirmed.

                        DORRIAN and HORTON, JJ., concur.
