                                         2019 IL App (3d) 180264

                              Opinion filed September 10, 2019
     ____________________________________________________________________________

                                                  IN THE

                                  APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                   2019

     In re CHRISTINE R., a Person Found Subject
                                            )     Appeal from the Circuit Court
     to Involuntary Medication,             )     of the 10th Judicial Circuit,
                                            )     Peoria County, Illinois
     (The People of the State of Illinois,  )
                                            )
             Petitioner-Appellee,           )     Appeal No. 3-18-0264
                                            )     Circuit No. 18-MH-99
             v.                             )
                                            )
     Christine R.                           )     Honorable
                                            )     Alicia N. Washington
             Respondent-Appellant).         )     Judge, Presiding
     ____________________________________________________________________________

           JUSTICE O’BRIEN delivered the judgment of the court, with opinion.
           Justice Carter concurred in the judgment and opinion.
           Presiding Justice Schmidt dissented, with opinion.
     ____________________________________________________________________________

                                                  OPINION


¶1          The State filed petitions for the involuntary commitment and administration of

     psychotropic medication to respondent Christine R. At a hearing on the commitment petition,

     Christine was removed due to disruptive behavior, and her attorney waived Christine’s

     appearance and subsequent appearance at the medication hearing. The trial court granted both

     petitions. Christine appealed. We reverse.
¶2                                          I. BACKGROUND

¶3          Christine R. is a 67-year-old woman with a long history of mental illness. She lived alone

     in a trailer in a mobile home community and received home visits from the Human Service

     Center, a behavioral healthcare organization. Christine also received psychiatric care at the

     center. After she began to act erratically, her neighbor called Christine’s sister regarding her

     mental health and behavior toward the neighbors. The sister called the Emergency Response

     Service, which resulted in Christine being taken to the mental health unit at UnityPoint Proctor

     Hospital on April 26, 2018. She would not agree to admission so the staff filed petitions for

     Christine’s involuntary admission and administration of psychotropic medication.

¶4          Hearings took place on the petitions on May 1, 2018. At the commitment hearing,

     Christine was present. As Christine walked into court, she threw a file of paperwork toward the

     bench and was admonished by the court: “We don’t do that ***.” Christine explained that she

     wanted to show the trial court the paperwork she had been provided. Christine asked to represent

     herself, and the trial court questioned her about her education, employment history, and

     computer usage. It denied Christine’s request and informed her the public defender would

     represent her. Christine responded that the public defender did not know what was happening.

¶5          The hearing continued with one witness, Jayalakshmi Attaluri, Christine’s treating

     psychiatrist, testifying. Christine disrupted the testimony. The court then explained to Christine:

     “[T]he amazing thing about this process is, if there’s something that needs to be corrected, when

     it is time, when it is time, you will have that opportunity to clarify that information for the

     Court.” As Attaluri testified to the neighbors’ concerns about Christine’s behavior and threats

     toward them, Christine interrupted and asked, “What?” and “Where is all this bullshit coming

     from?” The court addressed Christine, as follows:


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                   “THE COURT: Here’s what’s amazing about this process.

                   [CHRISTINE]: Oh my God Almighty.

                   THE COURT: I recognize you have some concerns about the statements. We will

                have the opportunity to hear them. This will be the last time that I ask you to stop

                talking when the doctor talks, okay?”

¶6          The witness continued testifying, explaining that the police responded to Christine’s

     trailer. Christine interjected, “And she busted in my door.” The trial court stopped the hearing

     and the following exchange occurred.

                   “TRIAL COURT: This is where we’re gonna have to stop. We’re gonna—

                   [CHRISTINE]: We need for her to object.

                   THE COURT: No. No. At this point in time, the Court is going to direct this

                particular process to stop. We’re going to take a recess. Then you, [Christine], are

                going to have the opportunity to go to in the hallway and take a break. Okay?

                   We’re gonna give you a break.

                   Then you’re gonna come back. If you elect to come back in, you’re going to have

                to be quiet throughout the testimony of the doctor. It makes it very difficult—

                   [CHRISTINE]: Excuse me.

                   THE COURT: You keep raising your voice. You understand I can hear you. You

                have everyone in here to assist you if there’s any issues. I also want to give the

                opportunity to each witness so I can hear their testimony.

                   I have someone who is recording every statement. It’s very difficult to record

                while you’re yelling and making those outbursts. You understand that?



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                   [CHRISTINE]: She needs to object to what she’s saying. She should listen to her

               client. That’s why I didn’t want an attorney. I want to object to some of the stuff she

               says. I want it in the record and it’s put, being put down.

                   THE COURT: Unfortunately, [Christine], I have noticed you utilizing your finger

               and—

                   [CHRISTINE]: I’m going like this. (Indicating.)

                   THE COURT: You’ve been pointing throughout this process as well.

                   [CHRISTINE]: What I want to—

                   THE COURT: Please take her outside. I think we have an issue right now. I want

               to make sure we’re able to move forward. Thank you.

                                   (Patient taken out of the courtroom.)

                   THE COURT: I want to make sure her agitation level is taken care of as well.

                                           (A recess was taken.)

                   THE COURT: Back on the record. Based on the Court’s observation of

               [Christine] and the proximity of [Christine] to the nurse, to the doctor, to the Court,

               and how aggressive her mannerisms have been inside of this space, the Court has

               asked [Christine] to be removed from the courtroom.”

¶7          Christine did not return to the hearing. The trial court asked Christine’s attorney whether

     counsel could adequately represent Christine in her absence. When the attorney responded she

     could, the State moved to proceed in Christine’s absence. The court agreed, finding that, based

     on its observations and “being on the receiving end of [Christine’s] communications and

     physical actions since the entry of the court,” it was in Christine’s best interests that she



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       remained absent. The court stated it was difficult to proceed with Christine’s outbursts and

       excused her presence from the hearing.

¶8            The hearing continued in Christine’s absence. Attaluri testified Christine has suffered

       from mental illness since she was in her twenties and has had other hospitalizations. Christine

       has schizoaffective disorder, bipolar type. Attaluri had treated Christine in the behavioral unit

       from December 19, 2017, to February 16, 2018. Attaluri explained that Christine preferred a

       particular antipsychotic and believed that everything will be fine if she takes it. Christine was not

       interested in other medications. Attaluri considered alternative medications that come in an

       injectable form during Christine’s prior hospitalization but opted against them because

       Christine’s psychiatrist opined that Christine did well on Stelazine. According to Attaluri,

       Christine’s conduct in the courtroom mirrored her daily behavior, which included yelling at staff,

       making demanding remarks, becoming easily agitated, pounding on the table, and violating

       personal space boundaries.

¶9            No other witnesses testified, and Christine’s counsel waived closing argument. Counsel

       stated, “I believe my client’s behavior and statements when she was in here somewhat gave her

       closing statement.” The trial court found Christine subject to involuntary admission and ordered

       her committed for a 90-day period.

¶ 10          The court then recessed and when it reconvened it immediately proceeded to a hearing on

       the petition for involuntary administration of medication. At the onset of the hearing, Christine’s

       absence was discussed. The State asked the court to take judicial notice of the previous hearing

       and the statements made concerning Christine’s removal from it. Christine’s counsel asked the

       court to waive Christine’s presence, which the court did. The hearing took place in Christine’s

       absence.



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¶ 11          Attaluri again testified. She requested administration of several medications and

       explained Christine had been provided a list of the medications and information regarding their

       side effects and benefits, and had previously refused to take two of the antipsychotic medications

       Attaluri suggested. In Attaluri’s opinion, Christine lacked capacity and her illness prevented her

       from understanding the need for medication. Medical records from 2004 show that Christine was

       placed on different medications in the past but did not indicate whether she suffered side effects

       from them.

¶ 12          Closing arguments were waived and the trial court granted the petition for administration

       of medication. The court found Christine exhibited threatening and disruptive behavior and

       deterioration in her ability to function due to lack of sleep and difficult relationships. The court

       further found Christine lacked capacity and the medications’ benefits would outweigh any harm

       from them. The trial court authorized the testing requested by Attaluri, including “clinically

       indicated,” nonspecified testing. Christine timely appealed.

¶ 13                                             II. ANALYSIS

¶ 14          There are six issues on appeal: whether the case is moot, whether Christine was denied

       her rights to be present at the commitment and medication hearings, whether the medication

       order must be reversed if the commitment order is reversed, whether Christine was denied

       effective assistance of counsel, and whether the State’s statutory and petitioning failures require

       reversal if counsel’s representation was not ineffective.

¶ 15          We begin with a consideration of whether this case is moot. Christine argues that,

       although the 90-day period for the commitment and medication orders expired, the cause is not

       moot and should be considered under the public interest and capable of repetition yet evading

       review exceptions to the mootness doctrine.


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¶ 16          Generally, Illinois courts will not decide moot questions, render advisory opinions, or

       consider issues where the court’s decision will not affect the result. In re Mary Ann P., 202 Ill.

       2d 393, 401 (2002). There are exceptions to the mootness doctrine, including the public interest

       exception and the capable of repetition yet evading review exception. In re Atul R., 382 Ill. App.

       3d 1164, 1167-68 (2008). Under the public interest exception, a moot case may be considered

       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 (2009). The capable of

       repetition yet avoiding review exception allows a moot case to be considered when (1) the

       challenged action is of a duration too short to be fully litigated before it terminates, and (2)

       “there must be a reasonable expectation that ‘the same complaining party would be subjected to

       the same action again.’ ” Id. at 358 (quoting In re Barbara H., 183 Ill. 2d 482, 491 (1998)).

       Mootness is an issue of law this court reviews de novo. In re Rita P., 2014 IL 115798, ¶ 30.

¶ 17          It is undisputed this case is moot. The orders for involuntary commitment and

       administration of medication were entered on May 1, 2018, and were in effect for 90 days. At

       issue on appeal are the procedures the trial court should take when faced with a disruptive

       respondent during mental health proceedings. The procedures to be followed in hearings

       concerning involuntary treatment of mental health services are “matters of a public nature and of

       substantial public concern.” Mary Ann P., 202 Ill. 2d at 402. Thus, this case falls under the

       public interest exception. It also falls under the capable of repetition yet avoiding review

       exception. Both the commitment and involuntary administration of medication orders were for

       limited durations of 90 days, a period too short for litigation. The evidence established that

       Christine has a long history of mental illness and has been hospitalized on numerous occasions;



                                                       7
       thus, it is likely that she would face involuntary commitment and administration of psychotropic

       medications in the future. Despite the moot nature of the case, we find review is appropriate

       under either exception to the mootness doctrine as discussed.

¶ 18          We next consider whether Christine was denied her right to be present at the commitment

       and medication hearings. Christine claims her right to be present at the hearings was violated on

       both constitutional and statutory grounds. Because a nonconstitutional basis exists to resolve

       Christine’s claims, we will not address her constitutional arguments. See In re E.H., 224 Ill. 2d

       172, 178 (2006) (“cases should be decided on nonconstitutional grounds whenever possible,

       reaching constitutional issues only as a last resort”). We thus begin with a review of Christine’s

       argument that the trial court violated her statutory right to be present at the commitment and

       medication hearings.

¶ 19          Section 3-806 of the Mental Health and Developmental Disabilities Code (Mental Health

       Code) (405 ILCS 5/3-806 (West 2018)) affords a respondent the right to be present at any

       proceedings. Under section 3-806, there are two exceptions to the requirement of the

       respondent’s presence where: (1) respondent’s counsel waives his or her presence and there is a

       clear showing to the court that the respondent’s presence would subject her to a “substantial risk

       of serious physical or emotional harm” or (2) respondent’s attorney informs the court that the

       respondent refuses to attend the hearing. 405 ILCS 5/3-806(a)-(b) (West 2018). A respondent

       may lose her right to attend a commitment hearing if her conduct is so disruptive as to

       necessitate that she be excluded. In re Barbara H., 288 Ill. App. 3d 360, 367 (1997). Although a

       mental health respondent may waive her rights, the court should not allow waiver without

       considering the respondent’s capacity to waive her rights and her understanding of the

       consequences of waiver. In re Michael H., 392 Ill. App. 3d 965, 974 (2009). This court reviews



                                                       8
       de novo the determination of statutory requirements and whether a respondent’s statutory rights

       have been violated. In re Amanda H., 2017 IL App (3d) 150164, ¶ 34.

¶ 20          In order to determine whether the trial court violated Christine’s right to be present at the

       commitment hearing and subsequent medication hearing, it is necessary to determine whether

       either of the statutory exceptions to the right to be present apply to this case. Neither party argues

       and the record does not indicate that Christine refused to attend the hearing, so we review the

       proceedings to determine whether the remaining statutory exception was invoked so as to waive

       Christine’s right to be present. In order to do so, we must examine the transcript from the

       proceedings. In reviewing the transcript, it is apparent from the outset that Christine intended to

       fully participate in all the proceedings at issue before us. At the commencement of the

       commitment hearing, Christine informed the court that she wanted to represent herself. She

       represented to the court that she did not believe appointed counsel was prepared. The trial court

       informed Christine that it would need to assess her ability to represent herself, and after asking

       Christine a few questions about her education, her employment history, and the last date she used

       a computer, the court informed Christine that it would not allow her to represent herself and that

       appointed counsel would continue to represent her.

¶ 21          It is also apparent that Christine disrupted the proceedings by interrupting the court, the

       prosecutor, and a witness. She further made hand and/or finger gestures and spoke loudly. This

       behavior continued, despite the trial court’s warning to Christine about her behavior and the

       court’s explanation that Christine would have the opportunity, through counsel, to present

       evidence. After a series of interruptions, the trial court made the following statement:

                      “No. No. At this point in time, the Court is going to direct this particular process

                  to stop. We’re going to take a recess. Then you, [Christine], are going to have the


                                                         9
                  opportunity to go in the hallway and take a break. Okay? We’re gonna give you a

                  break.

                      Then you’re going to come back. If you elect to come back in, you’re going to

                  have to be quiet throughout the testimony of the doctor. It makes it very difficult—”

       At this point, Christine says, “[e]xcuse me,” and the trial court again tells Christine her loud

       voice makes it hard for the recording equipment to pick up all the witness’s testimony. The court

       also tells Christine it has noticed her utilizing her finger and then says: “Please take her outside. I

       think we have an issue right now.”

¶ 22          Christine proposes that courts use the following procedure when faced with a disruptive

       respondent in civil commitment hearings. First, the court must notify the respondent that certain

       behavior is disruptive or objectionable. Second, the court must warn the respondent that

       continued disruptive conduct will result in her removal. Third, the court must offer opportunities

       for the respondent to return. As described above, the procedure that Christine advocates was

       used, in part, by the trial court in removing Christine. The court warned Christine that her

       behavior was disruptive and offered her opportunities to align her behavior with courtroom

       decorum, to no avail. We find the court’s removal of Christine was not improper. Her behavior

       disrupted the proceedings, interrupted the witness, and ignored the court’s directives to remain

       quiet. See Illinois v. Allen, 397 U.S. 337, 343 (1970) (a disruptive criminal defendant may be

       removed from the proceedings after the trial court warns of removal and the defendant continues

       to disrupt the proceedings with his behavior; defendant is allowed to return once he is able to

       behave).

¶ 23          Although the court acted properly in removing Christine, it erred when it failed to allow

       Christine the chance to return to the proceedings or to make a record with the mandatory findings


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       as to why her return did not take place. When Christine was removed, the court recessed the

       proceedings. When the hearing resumed, Christine was not present. The court provided for the

       record that it asked for Christine’s removal based on its observation of Christine and her

       proximity to the nurse, doctor and court, “and how aggressive her mannerisms have been inside

       of this space.” Counsel for Christine informed the court she could adequately represent Christine

       in her absence. The court concluded it was in Christine’s best interest that she remain absent

       from the hearing, based on its observations and “being on the receiving end of [Christine’s]

       communications and physical actions.” The court also found that “it can become a safety issue

       for her.” The court added that Christine’s outbursts made it difficult to conduct the hearing

       before excusing her presence.

¶ 24          The Mental Health Code requires that a respondent’s absence at a civil commitment

       hearing is proper when the respondent’s attorney waives her right to be present and the trial court

       finds by “a clear showing” that the respondent’s presence would cause her a “substantial risk of

       serious physical or emotional harm.” 405 ILCS 5/3-806(a) (West 2018). Here, Christine’s

       attorney did not expressly waive her client’s presence; rather, she stated counsel could

       adequately represent Christine in her absence. Moreover, we cannot assume or infer from the

       circumstances that Christine was offered the chance to return as the record is silent regarding

       what transpired between Christine’s removal and the resumption of the commitment proceeding.

       See People v. Carlson, 221 Ill. App. 3d 445, 447 (1991) (court cannot make presumptions

       regarding defendant’s absence from commitment hearing).

¶ 25          The record does not demonstrate a clear showing that Christine would be subjected to

       serious physical or emotion harm if she attended the hearing. Rather, the court noted her

       proximity to others in the courtroom and her aggressive behavior, its own observations of



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       Christine’s behavior, and that the court itself was subjected to Christine’s “communications and

       physical actions.”These findings are not the statutorily required findings of substantial physical

       or emotional harm. The trial court made no such mandated findings. The court’s observations

       and speculations regarding Christine’s conduct do not equate to findings of substantial physical

       and emotional harm. Moreover, the record indicates removal was due to Christine’s outbursts,

       not because of a substantial risk of harm to her. The court mentioned more than once the

       difficulty in recording the proceedings caused by Christine’s outbursts. The court noted the

       presence of a nurse and two guards in the courtroom but it never suggested any courtroom

       personnel expressed concern about their safety or any concern that Christine would harm herself.

       The record does not establish that there was any risk of harm to Christine or to the court or others

       in the courtroom because of Christine’s presence.

¶ 26          Moreover, we have no information about what happened when Christine was removed

       from the commitment hearing. Per the trial court’s comments, the plan was to recess for

       Christine to take a break and collect herself, with the opportunity to return but it segued into her

       involuntary removal and continued absence without explanation. The court’s admonishments

       regarding Christine’s behavior never informed her that her conduct could result in permanent

       removal from the hearing. To the contrary, the court told Christine that she would be provided

       the opportunities to tell her story and clarify the evidence presented by the State, so long as she

       could remain quiet upon her return to the courtroom. Because the record is devoid of any

       explanation or chronology of what happened to Christine after her removal from the commitment

       hearing, we do not know if she was afforded a chance to return, as the trial court promised, or

       even if she wanted or was able to return.




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¶ 27          In In re Daryll C., 401 Ill. App. 3d 748, 750 (2010), this court took no issue with a civil

       commitment hearing taking place in the respondent’s absence, where the respondent was in the

       courthouse washroom taking a nap, he had been informed that the hearing would proceed

       without him and that he could return at any time and the court was aware that the respondent had

       been so informed. Respondent’s counsel waived the respondent’s presence by informing the

       court the hearing could proceed in the respondent’s absence and the respondent’s absence was

       not an issue for the reviewing court. Id. Significantly, the record indicated that the respondent

       was aware the hearing would proceed without him and that he was free to attend at any time. Id.

       Contrary to the facts in Daryll C., no information was presented regarding Christine’s

       whereabouts or whether she wanted or was able to return to the proceeding. From the trial

       court’s comments, we find it unlikely Christine was free to attend the hearings after her removal.

       The only certainty is that the hearing continued in Christine’s absence, contrary to the statutory

       dictates which mandate a clear showing of substantial harm. See In re James, 67 Ill. App. 3d 49,

       51 (1978) (respondent denied statutory right to be present where trial court removed her from a

       portion of commitment hearing without making required finding of harm). We find Christine was

       denied her right to be present at the commitment hearing and reverse the trial court’s involuntary

       commitment order.

¶ 28          Our reversal of the commitment order also vacates the medication order. See In re

       John N., 364 Ill. App. 3d 996, 998 (2006) (a respondent who is not ordered to receive or

       receiving mental health treatment is not a recipient of services, and the trial court cannot order

       the administration of psychotropic medication). However, we address Christine’s argument to

       clarify the statutory requirements of a respondent’s right to be present. At the medication

       proceeding, Christine was never provided the opportunity to be present at the hearing at any



                                                      13
       time. Rather, at the beginning of the hearing, the court sought statements regarding Christine’s

       absence. The State asked the court to take judicial notice of the commitment hearing and

       “statements that were made in regards to her removal from the hearing.” Christine’s attorney

       asked that Christine’s presence be waived “given the last hearing.” The trial court accepted the

       waiver, and the parties proceeded on the merits of the petition in Christine’s absence.

¶ 29          As noted above, the record lacks any information regarding Christine’s whereabouts after

       her removal or about whether Christine wanted to be present at the medication hearing. Although

       Christine’s attorney sought waiver of her presence, she did not indicate whether Christine wished

       to be present, whether she became less agitated during the recess between proceedings, or

       whether she was willing for the medication hearing to proceed in her absence. Her attorney did

       not expressly waive her right to be present at either hearing, and the court’s findings did not

       establish that Christine was at risk of physical or emotional harm. As occurred with the

       commitment hearing, the trial court permitted Christine’s absence in violation of the statutory

       requirement that she be present. We find that her statutory right to be present at each hearing was

       violated.

¶ 30          Because we find Christine was denied her statutory right to be present at the commitment

       and medication hearings, we reverse on those grounds and need not consider the other issues she

       raises on appeal.

¶ 31                                          III. CONCLUSION

¶ 32          For the foregoing reasons, the judgment of the circuit court of Peoria County is reversed.

¶ 33          Reversed.

¶ 34          PRESIDING JUSTICE SCHMIDT, dissenting:

¶ 35          It is undisputed that this case is moot. I would dismiss it as such.


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¶ 36          The majority finds that the public interest and capable of repetition exceptions to

       mootness apply. These exceptions are to be narrowly construed. Alfred H.H., 233 Ill. 2d at 355-

       56; In re A.W., 381 Ill. App. 3d 950, 954 (2008). The majority does not boldly go where no court

       of review has gone before. Because it breaks no new ground, the public interest exception does

       not apply. See In re Adoption of Walgreen, 186 Ill. 2d 362, 365 (1999) (public interest exception

       requires a “need to make an authoritative determination for future guidance of public officers”).

       This exception is also proper “where the law is in disarray or there is conflicting precedent.”

       (Internal quotation marks omitted.) Alfred H.H., 233 Ill. 2d at 358. This opinion says nothing that

       has not been said before and does not resolve a conflict in our precedent. See James, 67 Ill. App.

       3d at 51 (“Unless there is a specific finding that emotional or physical harm would result from a

       respondent’s presence in the courtroom, that individual should be permitted to be present ***.”).

¶ 37          Further, the fact that respondent may face involuntary admission and involuntary

       medication in the future is an insufficient basis to apply the capable of repetition exception.

       Alfred H.H., 233 Ill. 2d at 358-60. There is no clear indication that the issue the majority chooses

       to address could be of use to respondent in future litigation. Id. at 360.

¶ 38          Under     the   majority’s    analysis,   virtually   every    case   involving   involuntary

       admission/administration of drugs would fall within a mootness exception. I respectfully dissent.




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