                            NO. 4-06-0263        Filed: 11/20/06

                        IN THE APPELLATE COURT

                             OF ILLINOIS

                           FOURTH DISTRICT

In re: SHIRLEY M., a Person Found       )    Appeal from
Subject to Involuntary Admission,       )    Circuit Court of
THE PEOPLE OF THE STATE OF ILLINOIS,    )    Sangamon County
          Petitioner-Appellee,          )    No. 06MH106
          v.                            )
SHIRLEY M.,                             )    Honorable
          Respondent-Appellant.         )    George H. Ray,
                                        )    Judge Presiding.
_________________________________________________________________

           JUSTICE COOK delivered the opinion of the court:

           On February 24, 2006, respondent, Shirley M., was found

to be a person subject to involuntary admission.     Respondent was

ordered hospitalized for no more than 90 days.     Respondent

appeals.   We affirm.   We note this court recently reached a

different result, on somewhat different facts, in In re Sharon

L.N., No. 4-06-0045 (November 20, 2006), ___ Ill. App. 3d ___,

___ N.E.2d ___.

                            I. BACKGROUND

            On February 24, 2006, the trial court held an emer-

gency involuntary-admission hearing for respondent.     At the

hearing, the court noted that respondent was not present and that

respondent refused to speak with her attorney or attend the

hearing.

           Greg Donathan, a social worker assigned to respondent,

testified that he discussed the involuntary-admission hearing
with respondent.    Donathan explained to respondent that she was

going to have a hearing regarding whether she would stay or leave

the facility.    Donathan told respondent that the attorney who

would represent her wished to speak with her.    Respondent stated

that she does not know the attorney and would not speak with him.

Respondent refused to go into the lobby to speak with her attor-

ney.    Donathan explained that only staff are allowed past the

lobby at the facility.

            Respondent's appointed public defender, William Conroy,

argued that respondent's attendance at the hearing was required

under section 3-806 of the Mental Health and Developmental

Disabilities Code (Code) (405 ILCS 5/3-806 (West 2004)).    Fur-

ther, Conroy argued that under section 3-805 of the Code (405

ILCS 5/3-805 (West 2004)), he should be allowed to confer with

his client.    Conroy claimed that he could not waive respondent's

presence without speaking to her.    Conroy moved to dismiss the

case unless the trial court ordered respondent to appear, ordered

the facility to allow him to speak to respondent in her room, or

reasonably accommodated respondent by going to the residential

hall.

            Dr. James Myers testified that he attempted to inter-

view respondent for the hearing but she refused to speak with

him.    Dr. Myers stated that he believed ordering the facility to

bring respondent to the hearing against her will could be harmful


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to her physically and/or emotionally.    The trial court found

respondent's presence waived and proceeded with the hearing on

the petition for involuntary admission.

          After Conroy stipulated to Dr. Myers' qualifications as

an expert in the field of licensed clinical psychology, Dr. Myers

testified that he had only known respondent for one day.    Dr.

Myers attempted to examine respondent the day before the hearing

to determine her eligibility for involuntary hospitalization.

Because respondent was uncooperative and did not want to speak

with Dr. Myers, Dr. Myers was unable to inform respondent of the

purpose of the examination and of her rights regarding the

interview.   Dr. Myers observed respondent in her bedroom and

noted that she was still in her pajamas in the afternoon and

appeared disheveled.   Respondent looked, though, like she had

been bathing and eating.    Based on reviewing her records and in

his professional opinion, Dr. Myers determined that respondent

was able, with prompts and direction, to meet her basic physical

needs in a structured supervised environment.    If respondent were

discharged, though, she would not be able to meet her basic needs

without substantial help.    Specifically, respondent would likely

not take her medication.    Dr. Myers relied on the fact that

respondent has had multiple hospitalizations during the last six

months, with the last one being a two-week hospitalization two

months prior to this hearing.    Other than respondent's physical


                                - 3 -
appearance, Dr. Myers witnessed no other outward signs of mental

illness.    As a member of the treatment teams of all of the units

in the hospital, Dr. Myers was on respondent's treatment team.

            Dr. Myers diagnosed respondent with bipolar disorder

and stated that, because of this mental illness, respondent is

unable to provide for her basic physical needs so as to guard

herself from serious harm.    Dr. Myers further opined that the

least-restrictive treatment plan for respondent would be an

initial period of commitment for 90 days.    The comprehensive

physical, psychiatric, and social investigation, outlining

respondent's physical examination, psychiatric evaluation, social

investigation, and treatment plan, was admitted into evidence.

            The trial court found that respondent was subject to

involuntary admission for at least 90 days and that involuntary

admission is the least-restrictive alternative.    This appeal

followed.

                             II. ANALYSIS

            Respondent argues that her procedural due process

rights were violated when the involuntary-admission hearing was

held without her presence and without her having consulted with

her attorney.    Further, respondent claims that the State failed

to prove by clear and convincing evidence that involuntary

admission was warranted.

                 A. Procedural Due-Process Violation


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            We review de novo the issue of whether respondent's

procedural due process rights were violated as the allegations

involve only questions of law.     In re George O., 314 Ill. App. 3d

1044, 1046, 734 N.E.2d 13, 15 (2000).

                          1. Section 3-805

            Respondent first points to that fact that she did not

confer with counsel before the involuntary-admission hearing.

Section 3-805 of the Code provides that those subject to involun-

tary admissions are entitled to be represented by counsel and

counsel shall be allowed time for adequate preparation and shall

not be prevented from conferring with his client at reasonable

times.    405 ILCS 5/3-805 (West 2004).

            In this case, respondent argues Conroy was prevented

from conferring with her in violation of section 3-805 of the

Code.    Respondent argues section 3-805 of the Code required that

Conroy be allowed further into the facility to speak with respon-

dent after she refused to go into the lobby to speak with Conroy.

Respondent, though, mischaracterizes the testimony at the hear-

ing.    According to Donathan's testimony, respondent refused to

speak with Conroy outright.    She did not simply refuse to go to

the lobby.    The testimony indicates that even if Conroy had been

allowed further into the facility, respondent would have contin-

ued to refuse to speak with him.    Conroy was not prevented from

conferring with his client by the facility.    Section 3-805 of the


                                 - 5 -
Code was not violated.

           Respondent, though, cites In re Barbara H., 183 Ill. 2d

482, 702 N.E.2d 555 (1998), to support her position.     In Barbara

H., the respondent was appointed a public defender.     At the

hearing on her involuntary admission, the public defender in-

formed the trial court that the respondent told him that she had

other representation, that the public defender does not represent

her, and that she would not go to the hearing.     Barbara H., 183

Ill. 2d at 494, 702 N.E.2d at 561.     Instead of determining who

actually represented the respondent, the court stated that the

public defender's office had been assigned and asked the public

defender if he waived the respondent's presence at the hearing.

Barbara H., 183 Ill. 2d at 494-95, 702 N.E.2d at 561.     The public

defender waived the respondent's presence.

           The Illinois Supreme Court held that the respondent was

entitled to representation of her choice and that the attorney

the respondent explicitly rejected could not waive her presence

at the hearing.   Barbara H., 183 Ill. 2d at 495-96, 702 N.E.2d at

561.   The supreme court stated that when the trial court was

informed that the respondent had secured alternative representa-

tion and rejected the public defender's representation, the court

should have first determined who represented the respondent

before holding the hearing.

           In this case, respondent did not reject Conroy's


                               - 6 -
representation in favor of a different attorney.    Respondent

simply stated she did not want to speak to Conroy under any

circumstances and did not want to attend the hearing under any

circumstances.

                          2. Section 3-806

          Respondent also points to section 3-806 of the Code,

which mandates a respondent's attendance at an involuntary-

admission hearing unless the respondent's attorney waives her

appearance and the trial court is satisfied by a clear showing

that the respondent's attendance would subject her to substantial

risk of serious physical or emotional harm.   405 ILCS 5/3-806(a)

(West 2004).   At the respondent's attorney's request, the court

shall make reasonable accommodation concerning the location of

the hearing, and if the respondent's attorney advises the court

of respondent's refusal to attend the hearing, the hearing may

proceed in her absence.   405 ILCS 5/3-806(b) (West 2004).

          In this case, Conroy refused to waive respondent's

presence at the hearing because he had not had a chance to speak

with respondent.   Dr. Myers testified that forcing respondent to

attend the hearing would subject her to risk of physical or

emotional harm.    The trial court was informed at the beginning of

the hearing that respondent refused to come to the hearing.

Donathan's testimony indicated that respondent refused to attend

the hearing no matter where the hearing was held.    Respondent


                                - 7 -
simply did not wish to participate in her hearing in any way and

was not prevented from participating.    The court was permitted

under section 3-806(b) to hold the hearing in respondent's

absence after the testimony showed that respondent refused to

attend the hearing no matter the location or circumstances and

forcing her to attend could harm her.

                          3. Section 3-807

            Respondent argues section 3-807 of the Code was also

violated.    Under section 3-807, in order to involuntarily admit

someone, at least one psychiatrist, clinical social worker, or

clinical psychologist who has examined the person subject to the

involuntary admission must testify at the hearing.    405 ILCS 5/3-

807 (West 2004).    If such a qualified witness's testimony is not

presented, the State cannot meet its burden.

            Respondent cites In re Michelle J., 209 Ill. 2d 428,

808 N.E.2d 987 (2004), to support her argument that no qualified

witness testified at her hearing because Dr. Myers did not

personally examine her.   In Michelle J., the supreme court held

that the involuntary admission of Sam S. could not be sustained

because the requirements of section 3-807 were not satisfied.

The testifying psychologist was not able to examine Sam S.

personally because he was restrained and not in a position to be

interviewed when her schedule allowed.    "It was not because he

was incapable of being interviewed prior to the hearing."


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Michelle J., 209 Ill. 2d at 436, 808 N.E.2d at 991.    In fact,

three other workers were able to examine Sam S. prior to the

hearing.    They were apparently not called because of administra-

tive convenience; the testifying psychologist worked in the

county where the hearing was held, the others did not.    "Under

these circumstances, there is no legitimate basis for deviating

from section 3-807's explicit requirements."    Michelle J., 209

Ill. 2d at 436, 808 N.E.2d at 991.

            Michelle J.'s case involved different circumstances.

The testifying psychologist was unable to interview Michelle the

day before the hearing because Michelle did not appear capable of

making "'an informed decision on whether or not to waive her

rights.'"    Michelle J., 209 Ill. 2d at 433, 808 N.E.2d at 989.

"Unlike the expert in Sam's case, however, [the testifying

psychologist] was directly involved in the respondent's care."

Michelle J., 209 Ill. 2d at 439, 808 N.E.2d at 993.    She served

as a consultant to Michelle's treatment team and was able to meet

with Michelle personally in a group session, apparently within 72

hours of the hearing.    Accordingly, the supreme court could not

say the requirements of section 3-807 were not satisfied.

Michelle J., 209 Ill. 2d at 439, 808 N.E.2d at 993.

            As to Sam S., the supreme court refused to read its

previous decision, in Barbara H., "to permit recognition of an

exception to the personal[-]examination requirement based on the


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expert's inability to conduct a personal interview."     Michelle

J., 209 Ill. 2d at 436, 808 N.E.2d at 991.     The court also noted

that in any event such an exception would be inapplicable to Sam

S.'s situation.    Sam S. was capable of being interviewed prior to

the hearing.    Michelle J., 209 Ill. 2d at 436, 808 N.E.2d at 991.

Although not detailed in Barbara H., the reason the expert there

was unable to conduct a personal interview was that the respon-

dent refused to talk to the expert.     Michelle J., 209 Ill. 2d at

435, 808 N.E.2d at 991.    Justice Thomas, specially concurring,

questioned the holding in Barbara H.:     "Is the majority holding

that a respondent can avoid involuntary commitment simply by

refusing to speak with the doctor assigned to examine him or

her?"    Michelle J., 209 Ill. 2d at 441, 808 N.E.2d at 994

(Thomas, J., specially concurring).     Justice Thomas also noted

that the testifying doctor in Barbara H. had personally treated

the respondent for six months.    Justice Thomas questioned the

majority's reliance on the fact that Michelle J.'s personal

interview occurred within 72 hours of the hearing:     "[H]ow can we

write a 72-hour time limit into the statute?"     Michelle J., 209

Ill. 2d at 442, 808 N.E.2d at 995 (Thomas, J., specially concur-

ring).

            It is not clear what the rule would be if the respon-

dent simply refused to speak with the doctor assigned to examine

him or her.    That situation was not presented in Michelle J.,


                               - 10 -
where Sam S. was not incapable of being interviewed prior to the

hearing, and workers who had personally interviewed Sam S. prior

to the hearing were not called purely because of "administrative

convenience."   Nor was refusal to speak the focus of In re

Barbara H., where that fact was not even mentioned in the opin-

ion.   It seems likely that in a case where the respondent simply

refused to speak to the testifying worker, the court would follow

Justice Thomas's special concurrence.

            In this case, Dr. Myers falls between the two witnesses

in Michelle J..    Like the two witnesses, Dr. Myers did not

personally examine respondent.   Unlike the unqualified witness,

though, Dr. Myers did work at the facility where respondent was

held and no testimony suggested that other potentially qualified

witnesses were able to interview respondent before the hearing.

Like the qualified witness, Dr. Myers was a member of respon-

dent's treatment team, he was able to personally observe her, and

he was able to review her records.

            Because Dr. Myers attempted to interview respondent and

respondent refused to be interviewed by anyone for the hearing,

Dr. Myers was a member of respondent's treatment team,   Dr. Myers

personally observed respondent, and Dr. Myers reviewed respon-

dent's records, we find that the requirements of section 3-807

were met.

            Because respondent was afforded all of the procedural


                               - 11 -
safeguards contemplated by the statute, respondent's due-process

rights were not violated.

    B. Clear and Convincing Evidence of Involuntary Admission

          A person may be involuntarily admitted if it is estab-

lished by clear and convincing evidence (405 ILCS 5/3-808 (West

2004)) that the person has a mental illness and "because of his

or her illness is unable to provide for his or her basic physical

needs so as to guard himself or herself from serious harm" (405

ILCS 5/1-119(2) (West 2004)).    The standard of review for an

involuntary-commitment proceeding is whether the judgment is

against the manifest weight of the evidence.    In re Knapp, 231

Ill. App. 3d 917, 919, 596 N.E.2d 1171, 1172 (1992).    The trial

court's decision is given great deference, and absent a showing

that it is against the manifest weight of the evidence, it "'will

not be set aside at the appellate level, even if the reviewing

court, after applying the clear[-]and[-]convincing standard,

would have ruled differently.'"    In re Bennett, 251 Ill. App. 3d

887, 888, 623 N.E.2d 942, 944 (1993), quoting In re Orr, 176 Ill.

App. 3d 498, 505, 531 N.E.2d 64, 69 (1988).

          The trial court's finding that respondent was mentally

ill is not in dispute.   Dr. Myers' testimony that respondent was

suffering from the mental illness bipolar disorder was consistent

with respondent's treating physician's diagnosis.    On appeal,

respondent does not dispute that she was suffering from this


                                - 12 -
mental illness.   Respondent claims, though, that the State did

not prove that her mental illness rendered her incapable of

providing for her own basic needs.

          In determining whether respondent's mental illness

renders her incapable to provide for her basic physical needs,

this court has held that a court should consider whether that

person "(1) can obtain her own food, shelter, or necessary

medical care; (2) has a place to live or a family to assist her;

(3) is able to function in society; and (4) has an understanding

of money or a concern for money as a means of sustenance."     In re

Jakush, 311 Ill. App. 3d 940, 944, 725 N.E.2d 785, 788 (2000).

Because the trial court is in a superior position to determine

witness credibility and to weigh evidence, we give great defer-

ence to the trial court's findings.     Knapp, 231 Ill. App. 3d at

919, 596 N.E.2d at 1172.    The court does not have to wait until

respondent hurts herself or someone else before involuntarily

committing her.   In re Manis, 213 Ill. App. 3d 1075, 1077, 572

N.E.2d 1213, 1214 (1991).

          In this case, Dr. Myers testified that respondent could

only meet her basic physical needs in a structured, supervised

environment where she would receive substantial help.    "Expert

opinion regarding mental illness and inability to guard oneself

from harm must be in the form of explicit medical testimony,

based upon a clear and convincing factual basis."     Bennett, 251


                               - 13 -
Ill. App. 3d at 888, 623 N.E.2d at 943.    While Dr. Myers was not

able to interview respondent, he was able to review her records.

Respondent's comprehensive psychiatric evaluation, authored by

Dr. G. Midathala, showed that respondent had multiple hospital-

izations in the past six months.   Further, last summer, respon-

dent had a serious overdose that resulted in hospitalization in

the intensive-care unit.   The incident that prompted the most

recent hospitalization was a call from respondent to the sher-

iff's department reporting that there were "midgets" at her home

and that they needed to be killed.     Respondent believed that her

son was in danger from the "midgets."    Respondent reported that

her son cared for her, but she filed a report stating her son has

been abusive to her.   Sometime before this incident, respondent

took her son's car in the middle of the night without permission.

Respondent was eventually found at her daughter's home, beating

on the door and claiming her daughter was dead.    Respondent

reported that she does not take her medication because they

"crippled her."   Dr. Midathala noted that the community reported

that respondent does not bathe for days and always looks dishev-

eled and unkempt.   Based on his review of the reports, Dr. Myers

opined to a reasonable degree of psychiatric certainty that,

because of respondent's bipolar disorder, she was unable to

provide for her basic physical needs so as to prevent her from

harm.   Based on Dr. Myers' testimony, the trial court's finding


                              - 14 -
that respondent was subject to involuntary admission for no more

than 90 days was not against the manifest weight of the evidence.

            Respondent argues, though, that the State presented

insufficient evidence to show that involuntary admission was the

least-restrictive alternative.    Dr. Myers' treatment plan was

admitted into evidence.    The plan outlined the incident that led

to respondent's current hospitalization and stated that the

hospital's staff reported that respondent has become more impul-

sive, more dangerous, and more erratic.      The plan stated that

respondent's symptoms of mental illness have become exacerbated

to the extent that they are interfering with her ability to

remain appropriate in a community setting as evidenced by her

bizarre behavior and delusional statements.      Based on the infor-

mation in the treatment plan and Dr. Myers' opinion that involun-

tary admission was the least-restrictive alternative, the trial

court's finding that respondent is a person who is mentally ill

and who because of her illness is unable to provide for her basic

physical needs so as to guard herself from serious harm is not

against the manifest weight of the evidence.

                           III. CONCLUSION

            For the foregoing reasons, we affirm the trial court's

judgment.

            Affirmed.

            STEIGMANN, J., concurs.


                               - 15 -
           KNECHT, J., dissents.




           JUSTICE KNECHT, dissenting:

           Shirley M. was absent from the hearing where the trial

court approved her involuntary admission.   The lawyer who repre-

sented her at the hearing never saw or spoke to her.   A clinical

psychologist testified it would be harmful to order the facility

to bring Shirley M. to the hearing against her will.   The same

clinical psychologist diagnosed her and opined as to her need for

involuntary treatment even though he did not examine her, inform

her of the purpose of the examination, or inform her as to her

rights.

           The majority concludes Shirley M. was uncooperative,

refused to attend the hearing, refused to see or talk to her

attorney, did not want to speak to the clinical psychologist, and

was afforded all the procedural safeguards afforded by the

statute.   I disagree.

           Shirley M. cannot thwart the court process by refusing

to cooperate, but the State cannot prevail by presenting scant

evidence of her lack of cooperation and making no effort to

accommodate her right to counsel.   No evidence supports the


                              - 16 -
clinical psychologist's opinion it would be harmful to require

her to attend the hearing against her will.     Her attorney asked

to be allowed to see and speak with his client in her room or

within her residential hall.   The facility, the prosecutor, and

the trial court made no effort to accommodate her right to

counsel.   The clinical psychologist's single failed attempt to

examine or interview Shirley M. and advise her of her rights does

not constitute a good-faith effort to comply with the statute.

           Shirley M.'s liberty was at stake.   The right to

counsel is fundamental.   Her lack of cooperation does not trump

her right to due process or the responsibility of those who seek

to confine her to make a reasonable and measured effort to

accommodate that right.   I would reverse.




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