                                  Illinois Official Reports

                                          Appellate Court



                              In re James W., 2014 IL App (5th) 110495




Appellate Court              In re JAMES W. (The People of The State of Illinois, Petitioner-
Caption                      Appellee, v. James W., Respondent-Appellant).


District & No.               Fifth District
                             Docket No. 5-11-0495


Filed                        May 30, 2014


Held                         Respondent was properly ordered to remain subject to involuntary
(Note: This syllabus         admission and hospitalized in a mental health or developmental center
constitutes no part of the   of the Department of Human Services, which is the least restrictive
opinion of the court but     environment currently appropriate and available, since the trial court’s
has been prepared by the     error in giving unconstitutional and outdated criteria for involuntary
Reporter of Decisions        commitment at the hearing on the State’s petition to continue
for the convenience of       respondent’s involuntary admission was harmless where the jury
the reader.)
                             returned a general verdict and there was clear and convincing
                             evidence that respondent was unable to care for his basic needs if not
                             subject to involuntary commitment, respondent was not denied
                             effective assistance of counsel, his counsel subjected the State’s case
                             to meaningful adversarial testing, and the testimony of a psychiatrist
                             based on respondent’s condition at the time of the hearing satisfied the
                             requirements of section 3-807 of the Mental Health and
                             Developmental Disabilities Code.


Decision Under               Appeal from the Circuit Court of Randolph County, No. 11-MH-126;
Review                       the Hon. Richard A. Brown, Judge, presiding.



Judgment                     Affirmed.
     Counsel on                Veronique Baker and Barbara A. Goeben, both of Guardianship &
     Appeal                    Advocacy Commission, of Alton, for appellant.

                               Jeremy R. Walker, State’s Attorney, of Chester (Patrick Delfino,
                               Stephen E. Norris, and Kelly M. Stacey, all of State’s Attorneys
                               Appellate Prosecutor’s Office, of counsel), for the People.


     Panel                     JUSTICE STEWART delivered the judgment of the court, with
                               opinion.
                               Justices Goldenhersh and Spomer concurred in the judgment and
                               opinion.


                                                OPINION

¶1         The respondent, James W., appeals from the trial court’s October 13, 2011, order
       concluding that he should remain subject to involuntary admission and be “hospitalized in a
       Department of Human Services mental health or developmental center, which is the least
       restrictive environment currently appropriate and available.” We affirm.

¶2                                           BACKGROUND
¶3         On September 15, 2011, a petition was filed in the circuit court of Randolph County
       seeking to continue the involuntary admission of the respondent in a Department of Human
       Services mental health center pursuant to section 3-813 of the Mental Health and
       Developmental Disabilities Code (the Code) (405 ILCS 5/3-813 (West 2010)). Ellen Steibel, a
       Chester Mental Health Center employee, alleged that the respondent was “a person with
       mental illness, who because of his or her illness is reasonably expected, unless treated on an
       inpatient basis, to engage in conduct placing such person or another in physical harm or in
       reasonable expectation of being physically harmed” and is “a person with mental illness, who
       because of his or her illness is unable to provide for his or her basic physical need so as to guard
       himself or herself from serious harm without the assistance of family or others, unless treated
       on an inpatient basis.” The respondent was admitted, on an involuntary basis, to the Chester
       Mental Health Center on December 13, 2003, from the Dixon Correctional Center. Ms. Steibel
       alleged that the respondent believed he did not have a mental illness, was not always
       medication-compliant, exhibited aggression toward staff and peers, and was paranoid with
       fixed delusions and poor insight and judgment.
¶4         Inpatient certificates by Chester Mental Health Center staff psychiatrist Dr. T. Casey and
       licensed social worker Tracy Mott were filed with the petition. Both opined that the respondent
       was in immediate need of hospitalization because he was “a person with mental illness who,
       because of his or her illness is unable to provide for his or her basic physical need so as to guard
                                                    -2-
     himself or herself from serious harm, without the assistance of family or others, unless treated
     on an inpatient basis.”
¶5       Dr. Casey outlined the respondent’s history. At the time of the report, the respondent was a
     57-year-old single black man who had never married. He had an eighth-grade education. Since
     1986 he had multiple Department of Human Services admissions. He had been convicted and
     incarcerated in the Department of Corrections for robbery, attempted murder, aggravated
     battery, aggravated sexual assault, possession of an illicit substance, and parole violation. He
     was readmitted to the Chester Mental Health Center in December 2003 as an involuntary
     admission from the Dixon Correction Center after reaching his mandatory parole date. The
     respondent had been diagnosed with chronic paranoid schizophrenia and had been treated with
     various antipsychotic medications.
¶6       Dr. Casey wrote that he examined the respondent on September 7, 2011. Dr. Casey
     reported that the respondent was psychotic, paranoid, and periodically aggressive, engaged in
     sexually inappropriate behavior, and possessed poor insight and judgment. He noted that the
     respondent was preoccupied and delusional about having syphilis. He complained about
     painful urination and blood in his urine, and he demanded penicillin shots despite negative
     tests. Dr. Casey wrote that the respondent did not believe he has a mental illness and had
     problems with medication compliance, resulting in an increase in positive symptoms of
     psychosis. Dr. Casey noted that while the respondent’s last restraint was in January 2011, he
     continued to be verbally abusive and periodically physically aggressive. Dr. Casey opined that
     the respondent continued to need the structure and supervision provided in a secure setting
     because without it he was unlikely to comply with his medications and treatment, causing him
     to further decompensate and inflict physical harm upon others.
¶7       Ms. Mott examined the respondent on September 6, 2011. In her inpatient certificate, she
     noted that the respondent’s psychiatric history dated back to age 13. She wrote that he suffered
     from both paranoid and grandiose delusions. He believed that he was “Jesus Christ Superstar”
     and other important religious figures. He also had a fixed delusional belief that he had a
     constant urinary tract infection and needed daily doses of antibiotics, despite repeated negative
     laboratory tests. Ms. Mott reported that since May 2011, the respondent had refused to take his
     medication on 19 occasions and, on May 31, 2011, told his therapist that he will not take his
     psychiatric medications when he is released. She noted that he consistently presented with
     antisocial behaviors such as stealing from his peers, harassing his peers, and having no regard
     for the welfare of others. Ms. Mott opined that the respondent was in need of involuntary
     hospitalization because he lacked insight into his mental illness, he demonstrated an impaired
     capacity for reality testing, and he was unable to understand his need for treatment. She
     believed that because of the length of time that the respondent had been hospitalized and
     incarcerated, he would be unable to provide for his basic needs without extensive support in
     the community.
¶8       A treatment plan that was formulated on August 16, 2011, was attached to the petition. It
     was signed by Dr. Casey and Wayne Womac, the respondent’s coordinating psychologist.
     Three problems were identified: psychiatric symptoms, verbal and physical aggression, and
     inappropriate sexual behavior. The respondent was diagnosed with chronic paranoid-type
                                                 -3-
       schizophrenia and an antisocial disorder. In the treatment plan it was noted that the respondent
       continued to be delusional. In particular, the respondent believed he had an undetected
       infection, that he was a central figure in the Old Testament, that he had “visions of light in the
       sky” that communicate with him, and that he was being singled out for persecution. His
       delusions and paranoid ideations caused him to become violent or to defend himself with
       aggression and/or illegal behaviors. It was noted that while the respondent had not been as
       aggressive as in the past, he continued to harass his peers. According to his treatment team, the
       respondent was not compliant with medications and therapeutic interventions.
¶9          The respondent filed a motion for an independent evaluation. On September 26, 2011, the
       trial court granted his motion and appointed Dr. Nageswara Vallabhaneni to conduct the
       independent evaluation.
¶ 10        On October 12, 2011, a jury trial was held. The inpatient certificates and the treatment plan
       were not admitted into evidence. Dr. Vallabhaneni testified that he is a psychiatrist who works
       at Chester Mental Health Center as an independent contractor. He stated that he had been a
       board-certified psychiatrist for 31 years. He met with the respondent on September 29, 2011,
       and October 4, 2011. The respondent did not cooperate with the full evaluation and their
       contacts were very brief. Dr. Vallabhaneni explained the purpose of the evaluation to the
       respondent. Each time the respondent said, “Oh, I want to go home. I want discharged.” and
       walked away.
¶ 11        Dr. Vallabhaneni testified that he had performed evaluations on the respondent on May 18,
       2010, February 8, 2011, and March 31, 2011. In forming his opinion Dr. Vallabhaneni testified
       that he based it on a review of the respondent’s clinical file, his own observations of the
       respondent, his past contact with the respondent, the treatment plan, Dr. Casey’s records, and
       the most recent psychiatric evaluation done at Chester Mental Health Center. Dr. Vallabhaneni
       diagnosed the respondent with paranoid-type schizophrenia and antisocial personality
       disorder. He stated that the respondent is delusional and believes he suffers from syphilis
       despite medical evidence to the contrary. The respondent persists in the belief, claims to have
       symptoms, and is so disturbed by the delusion that he cannot stop asking for treatment for the
       ailment.
¶ 12        Dr. Vallabhaneni testified that he believed that the respondent is a person who, because of
       his mental illness, can act out in a dangerous manner hurting himself or others. He stated that
       the respondent has a long history of assaulting other patients as evidenced by his behavior,
       aggression, and placement in restraints. Dr. Vallabhaneni stated that in the respondent’s last
       treatment plan it was reported that the respondent was involved in an aggressive act with
       another patient on September 4, 2011. The respondent had been harassing the peer, and when
       the peer became aggressive, the respondent fought with him.
¶ 13        Dr. Vallabhaneni opined that because the respondent is schizophrenic he is not likely to
       take his medication if released from Chester Mental Health Center. He stated that often
       schizophrenics do not take their medications because they believe that there is nothing wrong
       with them and fear that medicine will harm them. Dr. Vallabhaneni testified that if the
       respondent failed to take his medication he would have an immediate acute relapse. His
       symptoms would return very quickly, he would become psychotic, and he would be unlikely to
                                                     -4-
       take care of his own basic physical needs. Patients with serious mental illness who go off
       medication believe they do not need to bathe, eat properly, or sleep properly. Dr. Vallabhaneni
       anticipated that if released from Chester Mental Health Center, the respondent would neglect
       his basic needs in every way, possibly to the point where someone would realize he had a
       problem and take him back to a mental health facility. Dr. Vallabhaneni testified that the
       respondent’s failure to take his medication would cause the respondent’s symptoms to return,
       his condition would be worse, and the mental deterioration would cause him to be more likely
       to engage in dangerous conduct.
¶ 14        Dr. Vallabhaneni opined that the respondent had not reached the mental/behavior stability
       required to be transferred or discharged. Dr. Vallabhaneni felt that, due to the respondent’s
       serious mental disorder, the current placement in Chester Mental Health Center was clinically
       justifiable and that he was an appropriate candidate for involuntary commitment to a mental
       health facility within the Department of Human Services.
¶ 15        The respondent testified on his own behalf. When asked why he felt he should be released
       from the Department of Human Services he replied: “Because I served my time. I got a better
       life than being incarcerated.” He testified that if released he planned to go to Chicago, where he
       felt he would be able to find employment in the construction field. He planned to live in a
       group home until he could find his own apartment. He stated that his family lives in Detroit,
       California, and Iowa, but he would not consider living with any of them. The respondent
       testified that if released he would take his medication as prescribed. When asked if he believed
       that he suffered from a mental illness he replied, “Slightly.” He testified that he would not be a
       danger to himself or others.
¶ 16        The following instruction was given to the jury:
                    “A person is subject to involuntary admission when he is
                    A person with mental illness and who because of his illness is reasonably expected
                to engage in dangerous conduct which may include threatening behavior or conduct
                that places that person or another individual in reasonable expectation of being harmed;
                    A person with mental illness and who because of his illness is unable to provide for
                his basic physical needs so as to guard himself from serious harm without assistance of
                family or outside help; or
                    A person with mental illness who, because of the nature of his illness, is unable to
                understand his need for treatment and who, if not treated, is reasonably expected to
                suffer or continue to suffer mental deterioration or emotional deterioration, or both, to
                the point that the person is reasonably expected to engage in dangerous conduct.
                    If you find from your consideration of all the evidence that any one of these
                propositions has been proven by clear and convincing evidence, you should find the
                respondent subject to involuntary admission.
                    If you find from your consideration of all the evidence that none of these
                propositions has been proven by clear and convincing evidence, you should find the
                respondent not subject to involuntary admission.”


                                                   -5-
¶ 17       The jury found that the respondent was subject to involuntary admission. The verdict form
       was a general verdict form that stated simply, “We the jury, find the Respondent, James W
       ***, subject to involuntary admission.” On October 13, 2011, the trial court ordered the
       respondent to be hospitalized in a Department of Human Services mental health or
       development center, which is the least restrictive environment currently appropriate or
       available. The respondent filed a timely notice of appeal.

¶ 18                                            ANALYSIS
¶ 19       At the trial, the jury was instructed regarding three alternative criteria necessary to find the
       respondent subject to involuntary commitment. Two of these criteria were based on outdated
       statutory language from section 1-119 of the Code (405 ILCS 5/1-119 (West 2008)). The first
       and third criteria involved “dangerous conduct,” a statutory standard found unconstitutional in
       In re Torski C., 395 Ill. App. 3d 1010, 1027, 918 N.E.2d 1218, 1232-33 (2009). Subsequent to
       In re Torski C., the legislature amended section 1-119 (Pub. Act 96-1399, § 5 (eff. July 29,
       2010) (amending 405 ILCS 5/1-119 (West 2008))) to remove any references to “dangerous
       conduct” and changed the commitment criteria under section 1-119. The second criterion
       presented to the jury is still valid under the amended statute, which provides that a person is
       subject to involuntary admission on an inpatient basis if he or she is “[a] person with mental
       illness who 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 without the assistance of family or others,
       unless treated on an inpatient basis.” 405 ILCS 5/1-119(2) (West 2010). The respondent argues
       that because the trial court instructed the jury on unconstitutional and outdated criteria for
       involuntary commitment, he was denied his right to a fair trial.
¶ 20       The respondent brings this appeal from an involuntary admission order that was to remain
       in effect for 180 days from the date of the order. Because that time has expired, the order is no
       longer in effect and no actual relief can be granted. Before we can address the merits of the
       respondent’s appeal, we must first determine whether any exception to the mootness doctrine
       applies. Whether an appeal is moot presents a question of law and is reviewed de novo.
       In re Karen E., 407 Ill. App. 3d 800, 804, 952 N.E.2d 45, 50 (2011). There are three exceptions
       to the mootness doctrine in cases of involuntary admission: (1) the collateral-consequences
       exception, (2) the public-interest exception, and (3) the capable-of-repetition-yet-avoiding-
       review exception. In re Charles K., 405 Ill. App. 3d 1152, 1161, 943 N.E.2d 1, 8 (2010).
       Whether a case falls within one of the exceptions must be examined on a case-by-case basis.
       Id.
¶ 21       The issue in the instant case involves whether giving the jury instructions based on a statute
       that has been ruled unconstitutional and has been amended to remove the unconstitutional
       language deprives the respondent of a fair trial. The public-interest exception to the mootness
       doctrine applies. “The public interest exception allows a court to consider an otherwise moot
       case when (1) the question presented is of a public nature; (2) there is a need for an
       authoritative determination for the future guidance of public officers; and (3) there is a
       likelihood of future recurrence of the question.” In re Alfred H.H., 233 Ill. 2d 345, 355, 910
       N.E.2d 74, 80 (2009). The procedures and statutory guidelines that must be followed to order
                                                     -6-
       the involuntary commitment of an individual to a mental health facility are matters of
       considerable public concern. In re Lance H., 402 Ill. App. 3d 382, 385-86, 931 N.E.2d 734,
       738 (2010). Thus, the issue in this case is of a public nature.
¶ 22        Next we must examine whether there is a need for an authoritative determination and if
       there is a likelihood of future recurrence of the question. The State tendered the jury
       instructions, and defense counsel stated he had no objection to the instructions. The trial court
       accepted the instructions without question. In entering the order for the involuntary treatment
       of the respondent, the trial court used a preprinted form. The form had a box to check if the
       person was subject to involuntary admission and three boxes to check for the criteria for
       finding the respondent subject to involuntary commitment. The trial court did not check any of
       the criteria. The three criteria on the preprinted form included two containing the language
       “dangerous conduct.” This language was found to be unconstitutional in In re Torski C., 395
       Ill. App. 3d at 1027, 918 N.E.2d at 1232-33. In 2010 the legislature amended the statute to
       eliminate the “dangerous conduct” language. This became effective July 29, 2010. The order
       in this case was entered on October 13, 2011, two years after the decision in In re Torski C.,
       and more than one year after the legislature amended the statute. We believe there is a need for
       an authoritative determination for future guidance, and we feel there is a likelihood of future
       recurrence of the issue. Thus, we find that the issues in this case related to the use of a jury
       instruction containing unconstitutional language satisfy the public-interest exception to the
       mootness doctrine, and we will consider the respondent’s argument.
¶ 23        In the instant case, the respondent did not raise an issue in the trial court concerning the
       propriety of the jury instructions. A respondent forfeits review of a jury-instruction error if he
       did not object to the instruction or offer an alternative instruction. In re Charles K., 405 Ill.
       App. 3d at 1163, 943 N.E.2d at 10. At issue is whether the respondent received a fair trial. The
       imposition of involuntary mental health services implicates an individual’s substantial liberty
       interests. In re Charles H., 409 Ill. App. 3d 1047, 1054, 950 N.E.2d 710, 716 (2011). Forfeiture
       is a limitation on the parties, but not the court. Id. at 1055, 950 N.E.2d at 716. A finding that
       respondent has forfeited his constitutional argument could result in this court affirming his
       involuntary commitment even though the commitment might have been based on an
       unconstitutional statutory standard. Because a substantial liberty interest is involved and
       forfeiture is not a limitation on the court, we choose to address the issue raised in this appeal.
¶ 24        The respondent argues that because the trial court instructed the jury on unconstitutional
       and outdated criteria for involuntary commitment, he was denied his right to a fair trial. The
       respondent raises no issue with the jury instruction concerning his ability to provide for his
       basic needs.
¶ 25        “Instructions convey the legal rules applicable to the evidence presented at trial and thus
       guide the jury’s deliberations toward a proper verdict.” People v. Mohr, 228 Ill. 2d 53, 65, 885
       N.E.2d 1019, 1025 (2008). Jury instructions that are not supported by the law should not be
       given. Id. at 65, 885 N.E.2d at 1026. The reviewing court must determine whether the
       instructions, considered together, fully and fairly announce the law applicable to the theories of
       both parties. Id. “Although the giving of jury instructions is generally reviewed for an abuse of
       discretion, when the question is whether the jury instructions accurately conveyed to the jury
                                                   -7-
       the law applicable to the case, our review is de novo.” People v. Pierce, 226 Ill. 2d 470, 475,
       877 N.E.2d 408, 410 (2007).
¶ 26        In In re Charles K., a jury found the respondent to be a person subject to involuntary
       admission. In re Charles K., 405 Ill. App. 3d at 1154, 943 N.E.2d at 3. On appeal, the
       respondent argued that the order of commitment should be reversed because the jury was not
       instructed that the State was required to prove by clear and convincing evidence that he was
       mentally ill. Id. at 1154-55, 943 N.E.2d at 3. The respondent admitted he did not object to the
       instruction at trial or offer an alternative instruction. Id. at 1163, 943 N.E.2d at 10. The court
       found that the issue presented was of sufficient importance to justify its review despite the
       respondent’s forfeiture of the issue. Id. The respondent urged the court to review the issue
       under a doctrine analogous to the plain-error doctrine. Id. The court noted that while the
       plain-error doctrine applies to criminal and not civil cases, a similar analysis should be applied.
       Id. The court found that in reviewing the matter it must first determine whether any error
       occurred, and if so, whether the respondent suffered prejudice from the error. Id. at 1164, 943
       N.E.2d at 10.
¶ 27        The court found that the instructions given to the jury did not explicitly convey that the
       State had the burden of proving by clear and convincing evidence that the respondent suffered
       from a mental illness. Id. at 1165-66, 943 N.E.2d at 12. It held that because the instructions did
       not make clear a necessary element of the State’s burden of proof, it was error not to include an
       instruction explicitly conveying each and every factor that the State was required to prove in
       order to support a finding that the respondent was a person subject to involuntary admission.
       Id. at 1166, 943 N.E.2d at 12. The court then examined whether the respondent was prejudiced
       by the error. It held that a jury instruction is harmless if it is demonstrated that the result of the
       trial would not have been different had the jury been properly instructed. Id. The court found
       that, given the weight of the evidence presented at trial that respondent suffered from a mental
       illness, the fact that the jury was not specifically instructed about the State’s burden of proof
       was harmless error. Id. at 1167, 943 N.E.2d at 13. It found that the result of the trial would not
       have been any different had the jury been properly instructed. Id.
¶ 28        In the instant case, the trial court erred in giving instructions based on statutory provisions
       that had been found unconstitutional and had been amended to remove any reference to
       “dangerous conduct.” We must examine whether the respondent was prejudiced by the error.
       Section 6-100 of the Code provides that “[j]udicial proceedings conducted pursuant to this Act
       shall be conducted in accordance with the Civil Practice Law, except to the extent the
       provisions of this Act indicate to the contrary or are inconsistent, in which case this Act
       governs.” 405 ILCS 5/6-100 (West 2010). Section 2-1201 of the Code of Civil Procedure
       provides, in pertinent part, that “[i]f several grounds of recovery are pleaded in support of the
       same claim, whether in the same or different counts, an entire verdict rendered for that claim
       shall not be set aside or reversed for the reason that any ground is defective, if one or more of
       the grounds is sufficient to sustain the verdict.” 735 ILCS 5/2-1201(d) (West 2010).
¶ 29        In the instant case, Ms. Steibel filed a petition for involuntary admission on the grounds
       that the respondent was a person with a mental illness who because of his illness was
       reasonably expected, unless treated on an inpatient basis, to engage in conduct placing him or
                                                     -8-
       another in physical harm or in a reasonable expectation of being physically harmed and is
       unable to provide for his basic physical needs so as to guard himself from serious harm without
       the assistance of family or others, unless treated on an inpatient basis. The grounds for
       involuntary admission pled in the petition were in accordance with section 1-119 of the Code
       (405 ILCS 5/1-119 (West 2010)). The jury instructions included three grounds for the
       involuntary admission of the respondent. Two of those grounds were based on parts of section
       1-119 that were declared unconstitutional and violative of the substantive guarantees of due
       process. The jury returned a general verdict that the respondent was subject to involuntary
       admission. While two of the grounds presented in the jury instructions were based on a statute
       ruled unconstitutional, the second ground presented in the jury instruction was a valid ground.
       Because the jury returned a general verdict and one of the theories presented was a valid
       ground for involuntary admission, the verdict will be upheld if there was sufficient evidence to
       sustain the theory.
¶ 30       The respondent argues that the State failed to prove by clear and convincing evidence that
       he met the one valid criteria presented to the jury for involuntary commitment. At a
       commitment hearing, the State’s burden is to prove by clear and convincing evidence that the
       respondent is a person subject to involuntary admission. In re Nau, 153 Ill. 2d 406, 427, 607
       N.E.2d 134, 144 (1992). “The clear and convincing standard requires proof greater than a
       preponderance, but not quite approaching the criminal standard of beyond a reasonable doubt.”
       In re D.T., 212 Ill. 2d 347, 362, 818 N.E.2d 1214, 1226 (2004). A reviewing court may not
       disturb a jury’s decision unless it is against the manifest weight of the evidence. Burgess v.
       Abex Corp., 311 Ill. App. 3d 900, 903, 725 N.E.2d 792, 795 (2000). A jury’s decision is given
       respect and deference, and a reviewing court will not invade the function of the jury and
       substitute its judgment for the jury’s. Hawkes v. Casino Queen, Inc., 336 Ill. App. 3d 994,
       1011, 785 N.E.2d 507, 520 (2003). A judgment is against the manifest weight of the evidence
       only when an opposite conclusion is clearly apparent or where the jury findings are
       unreasonable, arbitrary, or not based on evidence. Id. at 1010, 785 N.E.2d at 520.
¶ 31       In the instant case, the jury was instructed that if it found, from consideration of all the
       evidence, that the State proved by clear and convincing evidence that the respondent was a
       person with mental illness who because of his illness was unable to provide for his basic
       physical needs so as to guard himself from serious harm without assistance of family or outside
       help, it should find the respondent subject to involuntary admission. This instruction
       accurately reflected the law. Section 1-119 provides, in pertinent part, that a person is subject
       to involuntary commitment if the State shows he or she is:
                   “(2) A person with mental illness who 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 without the assistance of family or others, unless treated on an inpatient basis[.]”
               405 ILCS 5/1-119(2) (West 2010).
¶ 32       The respondent argues that there was no evidence of any recent observation of him to
       support Dr. Vallabhaneni’s opinion that he was unable to take care of his basic needs. The
       respondent asserts that Dr. Vallabhaneni was not his treating physician or a member of his
       treatment team, and had only two brief contacts with him. The respondent argues that based on
                                                   -9-
       the doctor’s lack of direct, current interaction with him and the lack of direct evidence
       regarding his ability to meet his basic needs, the evidence was not sufficient for the jury to find
       him subject to involuntary commitment.
¶ 33       Section 3-807 of the Code provides, in pertinent part, that “[n]o respondent may be found
       subject to involuntary admission on an inpatient or outpatient basis unless at least one
       psychiatrist, clinical social worker, clinical psychologist, or qualified examiner who has
       examined the respondent testifies in person at the hearing.” 405 ILCS 5/3-807 (West 2012).
       This court has held that section 3-807 “requires the examiner to attempt a personal interview
       but that if the respondent refuses or is intentionally uncooperative, then the statutory
       examination may be based on discussions with treating staff and a review of medical records.”
       In re David B., 367 Ill. App. 3d 1058, 1069, 857 N.E.2d 755, 764 (2006).
¶ 34       The respondent requested an independent medical evaluation, and the court granted his
       motion. Dr. Vallabhaneni was appointed to evaluate the respondent. Dr. Vallabhaneni had not
       treated the respondent since 2004, but was familiar with him. He attempted to interview the
       respondent on September 29, 2011, and October 4, 2011. The respondent refused to cooperate,
       stated that he wanted to be discharged, and then walked away. Because the respondent was
       intentionally uncooperative with the physician performing the independent medical evaluation
       that he requested, Dr. Vallabhaneni could base his examination on a review of the medical
       records and discussions with treating staff.
¶ 35       Dr. Vallabhaneni testified that in addition to his meeting with the respondent on September
       29, 2011, and October 4, 2011, he had performed evaluations of the respondent on May 18,
       2010, February 8, 2011, and March 31, 2011. He stated that he formed his medical diagnosis of
       the respondent based on his extensive history, his clinical record, and his brief meetings with
       the respondent. Dr. Vallabhaneni particularly relied on the information from Dr. Casey, the
       respondent’s treating psychiatrist, plus his treatment plan review conducted on September 13,
       2011. Because the respondent was uncooperative with Dr. Vallabhaneni, and Dr. Vallabhaneni
       based his testimony on his meetings with the respondent and a review of the respondent’s
       medical records, his testimony met the requirements of section 3-807 of the Code.
¶ 36       The respondent argues that the State failed to show by clear and convincing evidence that
       he was unable to care for himself if released. “Generally, the inability to care for oneself so as
       to guard against physical harm is found where one’s illness substantially impairs [his] thought
       processes, perceptions, emotional stability, behavior, or ability to cope with life’s ordinary
       demands.” In re Tuman, 268 Ill. App. 3d 106, 112, 644 N.E.2d 56, 60 (1994). “In making such
       a determination, a court should consider whether a person (1) can obtain [his] own food,
       shelter, or necessary medical care; (2) has a place to live or a family to assist him; (3) is able to
       function in society; and (4) has an understanding of money or a concern for it as a means of
       sustenance.” Id.
¶ 37       Dr. Vallabhaneni testified that the respondent suffered from schizophrenia, paranoid type,
       and from antisocial personality disorder. He testified that the respondent’s schizophrenia
       caused him to have thought disturbances and that he often believed people were against him.
       Dr. Vallabhaneni testified that the respondent was delusional and had a strong belief that he
       suffered from syphilis. The respondent believed he had symptoms and demanded treatment
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       with penicillin. Despite evidence to the contrary, the respondent could not be convinced he did
       not have syphilis. Dr. Vallabhaneni testified that the respondent’s delusion was so strong that
       he could not stop asking for treatment for the condition.
¶ 38       Dr. Vallabhaneni testified that the respondent had no insight into his mental illness. When
       asked if he believed he was suffering from a mental illness, the respondent replied, “Slightly.”
       When asked on direct examination why he felt he should be released from the Department of
       Human Services, the respondent replied: “Because I served my time. I got a better life than
       being incarcerated. You know, I had skills. I do construction work. I have–I have been working
       since I was 13.” From this response, the jury could find that the respondent did not understand
       that he was in Chester Mental Health Center for treatment of mental illness and that this
       bolstered Dr. Vallabhaneni’s testimony that the respondent had little insight into his mental
       illness.
¶ 39       Dr. Vallabhaneni testified that he and the respondent’s treating physician and treating
       psychologist all felt that the respondent was mentally ill and met the criteria for involuntary
       commitment. Dr. Vallabhaneni stated that the respondent was delusional and aggressive. Dr.
       Vallabhaneni testified that based on the respondent’s lack of insight into his mental illness, his
       history of noncompliance in taking medication, and his diagnosis, there was a very good
       possibility that he would not take his medication if released from Chester Mental Health
       Center. He stated that if the respondent failed to take his medication it would result in an
       immediate acute relapse. The respondent’s symptoms would return and his condition would be
       worse. Dr. Vallabhaneni stated that if the respondent relapsed, he would be unlikely to take
       care of his own basic physical needs.
¶ 40       “The jury as trier of fact is in a superior position to a reviewing court to determine the
       witness’ credibility and weigh the evidence.” Ryan v. Mobil Oil Corp., 157 Ill. App. 3d 1069,
       1076, 510 N.E.2d 1162, 1166 (1987). The respondent responded to questions in an odd and
       inappropriate manner. The respondent testified that he had resided at Chester Mental Health
       Center for eight years. He stated that a facility up north transferred him to Chester Mental
       Health Center because: “The facility up north, they evaluated me. They said I don’t have a
       place to stay, you know, and so they put me in a hospital, but I came with $10,000 in my
       pocket.” When the respondent was asked if he had been committed to a different institution he
       replied:
                “No, just the county. I was–I would be arrested for things that wasn’t true, you know.
                First of all, in 1975, I was arrested for armed robbery, and in front of Judge James M.
                Bailey, he denied me a fair trial, and I got found guilty and he give me six to 20. I did
                the six years, I get out, police drive up on me, and they put me in the car. They accused
                me of being such and such and so I committed murder out of Michigan or I’m on
                parole. And each time they picked me up I’m doing six years, eight years, four years,
                three years, over 37 years–”
       The respondent was asked if he had ever been transferred from Chester before and he
       responded:
                “I was going–coming back and forth to Chester from being picked up in Chicago by
                officers, and they would give me an evaluation, and I would come back and forth from
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               Chester to the county so many times. And like Vallabhaneni said, you know, we go
               back a ways, all the way to ’78 sometime when I first met him.”
       From these responses the jury could determine that the respondent had been in the mental
       health system for a number of years.
¶ 41       The respondent testified that although his family lives in Detroit, California, and Iowa, he
       would not consider living with a family member and instead planned to move to Chicago if
       released. He stated that he had construction skills and planned to work in that field in Chicago.
       He also stated that he planned to live in a group home until he could find his own apartment. He
       did not offer any detail about his potential employment or housing. He did not indicate that he
       had researched any of these choices. Based on the respondent’s demeanor, his numerous years
       in the mental health system, his lack of insight into his mental illness as evidenced by his and
       Dr. Vallabhaneni’s testimony, Dr. Vallabhaneni’s diagnosis of the respondent, and Dr.
       Vallabhaneni’s opinion that the respondent would not take his medication if released, it was
       not against the manifest weight of the evidence for the jury to determine that the respondent
       was mentally ill and because of his mental illness he was unable to provide for his basic
       physical needs. Because there was sufficient evidence to sustain the jury’s verdict based on the
       second ground presented to it, we cannot say that the result of the trial would have been
       different had the jury been properly instructed. Thus, the improper jury instructions given at
       the respondent’s involuntary admission trial constituted harmless error.
¶ 42       Finally, the respondent argues that he was denied effective assistance of counsel. He argues
       that his counsel failed to object at trial that the jury instructions misstated the law and he failed
       to contradict the lack of evidence on his ability to take care of his basic needs. Section 3-805
       provides that “[e]very respondent alleged to be subject to involuntary admission on an
       inpatient or outpatient basis shall be represented by counsel.” 405 ILCS 5/3-805 (West 2010).
       “[T]he State’s statutorily providing a respondent in an involuntary commitment proceeding
       with the right to counsel implicitly includes the right to the effective assistance of that
       counsel.” In re Carmody, 274 Ill. App. 3d 46, 54, 653 N.E.2d 977, 983 (1995). The Strickland
       standard (Strickland v. Washington, 466 U.S. 668 (1984)) has been adopted in mental health
       cases involving involuntary commitment proceedings. In re Mark P., 402 Ill. App. 3d 173,
       179, 932 N.E.2d 481, 486 (2010). “Under Strickland, the respondent must establish that (1)
       counsel’s performance was deficient, such that the errors were so serious that counsel was not
       functioning as the ‘counsel’ contemplated by the Code; and (2) counsel’s errors were so
       prejudicial as to deprive [him] of a fair proceeding.” In re Carmody, 274 Ill. App. 3d at 57, 653
       N.E.2d at 985. To show prejudice, the respondent must show that there is a reasonable
       probability that, but for counsel’s unprofessional errors, the result of the proceeding would
       have been different. Strickland, 466 U.S. at 694.
¶ 43       As discussed, counsel’s failure to object at trial to the jury instruction that misstated the law
       did not prejudice the respondent. We have established that counsel’s failure to object to the
       misstatement of the law did not affect the outcome of the case because there was still one valid
       ground for the jury to find the respondent subject to involuntary commitment. Therefore, he
       suffered no prejudice because of the misstatement and has failed to establish the second prong
       of the Strickland test with respect to the jury instruction.
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¶ 44        The respondent alleges that his counsel ignored the State’s failure to provide any direct
       evidence on how his behavior satisfied the failure-to-meet-basic-needs criterion for
       commitment. He asserts that Dr. Vallabhaneni was the State’s sole witness and that Dr.
       Vallabhaneni had not treated him for over six years; therefore, the State’s case rested on
       historical facts and not his current behavior. The respondent argues that his counsel’s lack of
       questioning on this matter prejudiced him. Because the respondent was intentionally
       uncooperative when Dr. Vallabhaneni tried to interview him, Dr. Vallabhaneni properly based
       his testimony on his meetings with the respondent, the respondent’s clinical record,
       information from the respondent’s treating psychiatrist, and the respondent’s treatment plan
       review. This included both historical and current information on the respondent. The State did
       not fail to provide direct evidence of how the respondent would be unable to meet his basic
       needs if released from Chester Mental Health Center. Counsel’s performance with respect to
       direct evidence presented by the State was not deficient and did not prejudice the respondent.
¶ 45        The respondent argues that he need not prove the Strickland element of prejudice because
       his counsel failed to subject the State’s case to meaningful adversarial testing. Where counsel
       entirely fails to subject the State’s case to meaningful adversarial testing, prejudice will be
       presumed. People v. Hattery, 109 Ill. 2d 449, 461-62, 488 N.E.2d 513, 517 (1985).
       Respondent’s counsel did not fail to subject the State’s case to meaningful adversarial testing.
       Counsel did not concede that the respondent was subject to involuntary commitment. Trial
       counsel moved for an independent evaluation of the respondent. He questioned prospective
       jurors to find out any potential biases and to ensure that the respondent would receive a fair
       trial. He exercised peremptory challenges to potential jurors. He gave an opening and closing
       statement. He conducted cross-examination of the State’s witness, Dr. Vallabhaneni. Trial
       counsel conducted the direct examination of the respondent in which he tried to elicit
       testimony from the respondent to show that he was able to provide for his basic physical needs.
       After the respondent referred to some of his crimes, the State attempted to ask him questions
       about his criminal history. Counsel objected, and the objections were sustained. Because the
       respondent’s trial counsel did subject the State’s case to meaningful adversarial testing, the
       respondent needed to show prejudice to show his counsel was ineffective.
¶ 46        The trial court erred in giving the jury instructions that included unconstitutional and
       outdated criteria for involuntary commitment. However, one of the grounds presented to the
       jury for involuntary admission was valid. The respondent was not prejudiced by the erroneous
       jury instructions because the jury returned a general verdict and there was clear and convincing
       evidence presented to show that the respondent was unable to care for his basic needs if not
       subject to involuntary commitment. The respondent was not denied effective assistance of
       counsel. His counsel’s failure to object to the erroneous jury instruction did not prejudice him.
       Because Dr. Vallabhaneni explained the basis of his testimony and it was based on the
       respondent’s condition at the time of the hearing, counsel’s failure to question him about
       whether it rested on historical facts and not his current state did not prejudice the respondent.
       Counsel did not fail to subject the State’s case to meaningful adversarial testing.



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¶ 47                                     CONCLUSION
¶ 48       For the foregoing reasons, the judgment of the circuit court of Randolph County is
       affirmed.

¶ 49      Affirmed.




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