Rule 23 order filed                   NO. 5-05-0686
December 3, 2007;
Motion to publish granted                IN THE
January 17, 2008.
                            APPELLATE COURT OF ILLINOIS

                             FIFTH DISTRICT
________________________________________________________________________

In re CHARLES G., a Person Found      ) Appeal from the
Subject to Judicial Admission         ) Circuit Court of
                                      ) Madison County.
(The People of the State of Illinois, )
                                      )
   Petitioner-Appellee,               )
                                      )
v.                                    ) No. 05-MH-191
                                      )
Charles G.,                           ) Honorable
                                      ) Clarence W. Harrison II,
   Respondent-Appellant).             ) Judge, presiding.
________________________________________________________________________

       JUSTICE GOLDENHERSH delivered the opinion of the court:

       This is the second time this case has been before us. The first time we reviewed this

matter, we dismissed the appeal of respondent, Charles G., in a summary order pursuant to

Supreme Court Rule 23(c)(3) (166 Ill. 2d R. 23(c)(3)) on the basis that his appeal was moot.

The Illinois Supreme Court denied leave to appeal but entered a supervisory order in which

it directed us to vacate our summary order, reinstate the appeal, and decide respondent's

appeal on the merits. In re Charles G., 225 Ill. 2d 633, 873 N.E.2d 941 (2007). For the

following reasons, we now reverse the trial court's order finding respondent to be a person

subject to judicial admission.

                                     BACKGROUND

       Respondent, age 40 and mildly retarded, voluntarily admitted himself into the Alton

Mental Health Center (Alton). Respondent later requested a discharge. In response to his

request for a discharge, a social worker filed a commitment petition. The petition alleged

respondent was a person subject to involuntary admission for mental health treatment

                                             1
because there was a reasonable expectation, based upon his mental illness, that he could be

expected to inflict serious harm upon himself or others in the near future.

        On October 25, 2005, the trial court conducted a bench trial. The State called only

one witness, W alter Witalka, a licensed clinical social worker at Alton. Mr. Witalka was not

directly involved in respondent's care and treatment and did not personally examine

respondent because respondent was "tired" and Mr. Witalka "got the impression" respondent

did not want to talk to him. Mr. Witalka's testimony was based upon discussions with the

staff at Alton about respondent's condition and a review of respondent's records.

        Mr. Witalka testified that respondent has a history of being physically aggressive at

Alton, but he did not give any specific instances. He testified that respondent "could be" a

danger to himself or others if discharged. Mr. Witalka recommended that respondent be

placed in inpatient treatment with a gradual transfer to a developmental disabilities facility.

Upon cross-examination, Mr. Witalka admitted that a developmental disabilities facility

would be appropriate for respondent now and actually more suitable than a mental health

facility.

        Respondent testified that he hated being at Alton and wanted to leave the facility. He

further testified that he had no thoughts of hurting himself or another. Jolene Carter,

respondent's case manager at Alton, testified that prior to respondent's hospitalization at

Alton he was living in a group home, but, due to some incidents of aggression, the staff at

the group home believed that respondent would be better served in a state developmental

disabilities facility. However, long waiting lists at those facilities prevented respondent from

being admitted to such a facility. Carter admitted that Alton does not have the facilities

respondent needs and that "[h]e is just waiting" for placement at a state developmental

disabilities facility.

        The trial court entered an order for judicial admission, finding that respondent is


                                               2
"mentally retarded and *** is unable to care for his basic needs so as to protect himself from

serious physical harm." Respondent was remanded to the custody of the Department of

Human Services for a period of habilitation in a developmental disabilities facility for a

period not to exceed 180 days. On November 8, 2005, respondent filed a motion to

reconsider, which alleged that respondent had yet to be transferred to a developmental

disabilities facility but remained at Alton, a mental health facility. The trial court denied

respondent's motion to reconsider.

       Respondent filed a timely notice of appeal. Since the time of the trial, respondent has

moved into a developmental disabilities facility in Jacksonville, Illinois, and the 180-day

order entered by the trial court has expired. As previously stated, we entered a summary

order, finding respondent's appeal moot because the 180-day order had expired, and did not

address the appeal on its merits. Following our supreme court's supervisory order, we now

address the appeal on its merits.

                                          ANALYSIS

       Respondent argues that the order for judicial admission must be reversed because (1)

the trial court's reason for entering the order is not a ground for a judicial admission, (2) there

was no testimony from an expert who examined respondent, contrary to the requirement set

forth in section 4-607 of the Mental Health and Developmental Disabilities Code (Code)

(405 ILCS 5/4-607 (W est 2004)), and (3) the petition did not seek or include allegations

warranting the order for judicial admission. The State basically concedes these points,

relying only on the mootness doctrine. After careful consideration, we agree with respondent

that the trial court's order for judicial admission must be reversed.

       With regard to respondent's first argument, we note that the trial court's order for

judicial admission was based upon respondent's inability "to care for his basic needs so as

to protect himself from serious physical harm." However, basic needs is not a ground for a


                                                3
judicial admission based upon mental retardation under section 4-500 of the Code (405 ILCS

5/4-500 (West 2004)). Instead, basic needs is a ground for an involuntary admission based

upon mental illness under section 1-119 of the Code (405 ILCS 5/1-119 (West 2004)).

       The Code sets forth the following basis for a judicial admission based upon mental

retardation:

               "A person 18 years of age or older may be admitted to a facility upon court

       order under this Article if the court determines: (1) that he is mentally retarded; and

       (2) that he is reasonably expected to inflict serious physical harm upon himself or

       another in the near future." 405 ILCS 5/4-500 (West 2004).

The status of mental retardation without further inquiry or rationale is insufficient to justify

involuntary institutionalization. O'Connor v. Donaldson, 422 U.S. 563, 575, 45 L. Ed. 2d

396, 406-07, 95 S. Ct. 2486, 2493 (1975). Section 4-500 of the Code recognizes this

constitutional limitation and requires a finding that a mentally retarded person can only be

involuntarily committed if there is evidence showing that the mentally retarded person is

reasonably expected to inflict serious physical harm upon himself or another in the near

future. 405 ILCS 5/4-500 (W est 2004).

       We have no doubt that the trial court had nothing but respondent's best interests in

mind when committing respondent. The trial court explained that it was attempting to cut

through "the red tape" and get respondent admitted to a proper developmental disabilities

facility. Nevertheless, we agree with respondent that he cannot be judicially admitted to a

mental health facility on grounds not authorized by the Code, and for this reason, the trial

court's order must be reversed.

       Respondent also contends that the trial court's order for judicial admission must be

reversed because there was no testimony from an expert who examined respondent, contrary

to section 4-607 of the Code. Again, we must agree with respondent.


                                               4
          Section 4-607 of the Code provides as follows:

                 "Expert testimony; waiver. No respondent may be found to meet the standard

          for judicial admission unless at least one clinical psychologist, clinical social worker,

          or physician who has examined him testifies in person at the hearing. The respondent

          may waive the requirement of this testimony subject to the approval of the court."

          405 ILCS 5/4-607 (West 2004).

In the instant case, respondent did not waive the requirement, and the State only presented

the testimony of Walter Witalka, a licensed clinical social worker, who did not examine

respondent.

          Respondent cites In re Michelle J., 209 Ill. 2d 428, 808 N.E.2d 987 (2004), a

consolidated appeal involving two respondents, Michelle and Sam. Our supreme court found

it was appropriate for Michelle's clinical psychologist to testify, even though the psychologist

was unable to interview M ichelle before the hearing, because the psychologist was directly

involved in Michelle's care, was a consultant on Michelle's treatment team, and met with

Michelle in a group session three days before the hearing. In re Michelle J., 209 Ill. 2d at

439, 808 N.E.2d at 993. On the other hand, the supreme court found that Sam's involuntary

admission could not be extended based on the testimony of a psychologist who did not

examine Sam. That psychologist had never been directly involved in Sam's treatment and,

therefore, was without any personal knowledge of Sam's condition. The reason an interview

could not be conducted was that Sam was restrained and not in a position to be interviewed

when the psychologist's schedule allowed. In re Michelle J., 209 Ill. 2d at 436, 808 N.E.2d

at 991.

          We agree with respondent that Mr. Witalka's attempt to interview respondent was

insufficient. Mr. Witalka was not personally involved in respondent's treatment or care at

Alton. He did not talk directly with respondent because respondent was "tired" and Witalka


                                                  5
was under the impression respondent did not want to talk to him. Relying on our supreme

court's analysis in In re Michelle J., we find that Mr. Witalka's testimony failed to meet the

expert-testimony requirements set forth in section 4-607 of the Code.

       Finally, we also agree with respondent's third argument that the petition did not seek

or include allegations warranting the order for judicial admission. Again, we note that while

we believe the trial court was attempting to find the proper placement for respondent, the

pleadings and the trial court's findings do not have the necessary elements in common.

Respondent was denied his fundamental liberties and due process protections.

       For the foregoing reasons, the judgment of the circuit court of Madison County is

hereby reversed.



       Reversed.



       CHAPMAN and DONOVAN, JJ., concur.




                                              6
                                          NO. 5-05-0686

                                             IN THE

                               APPELLATE COURT OF ILLINOIS

                                  FIFTH DISTRICT
___________________________________________________________________________________

      In re CHARLES G., a Person Found      ) Appeal from the
      Subject to Judicial Admission         ) Circuit Court of
                                            ) Madison County.
      (The People of the State of Illinois, )
                                            )
         Petitioner-Appellee,               )
                                            )
      v.                                    ) No. 05-MH-191
                                            )
      Charles G.,                           ) Honorable
                                            ) Clarence W. Harrison II,
         Respondent-Appellant).             ) Judge, presiding.
___________________________________________________________________________________

Rule 23 Order Filed:        December 3, 2007
Motion to Publish Granted:  January 17, 2008
Opinion Filed:              January 17, 2008
___________________________________________________________________________________

Justices:          Honorable Richard P. Goldenhersh, J.

                 Honorable Melissa A. Chapman, J.,
                 Honorable James K. Donovan, J.,
                 Concur
___________________________________________________________________________________

Attorneys        Ann Krasuski, Guardianship & Advocacy Commission, West Suburban Office,
for              P.O. Box 7009, Hines, IL 60141-7009; Anthony E. Rothert, Staff Attorney, 4500
Appellant        College Avenue, Suite 100, Alton, IL 62002-5051; Penelope S. Smith, Guardianship
                 & Advocacy Commission, No. 7 Cottage Drive, Anna, IL 62906
___________________________________________________________________________________

Attorneys        Stephen E. Norris, Deputy Director, State's Attorneys Appellate Prosecutor, Sharon
for              Shanahan, Contract Attorney, 730 E. Illinois Hwy. 15, P.O. Box 2249, Mt. Vernon,
Appellee         IL 62864
___________________________________________________________________________________
