                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                            In re Avery S., 2012 IL App (5th) 100565




Appellate Court            In re AVERY S., Alleged to Be a Person Subject to Involuntary
Caption                    Admission (The People of the State of Illinois, Petitioner-Appellee, v.
                           Avery S., Respondent-Appellant).



District & No.             Fifth District
                           Docket No. 5-10-0565


Filed                      June 28, 2012


Held                       A stipulation that was sufficient to establish by clear and convincing
(Note: This syllabus       evidence that respondent was subject to involuntary admission on the
constitutes no part of     ground that he had a mental illness that rendered him unable to provide
the opinion of the court   for his basic physical needs so as to guard himself from serious harm
but has been prepared      supported his admission, especially when the procedures followed did not
by the Reporter of         violate his rights or the statutory scheme of the Mental Health and
Decisions for the          Developmental Disabilities Code regarding agreed orders and he had a
convenience of the         history of disorders and prior admissions.
reader.)


Decision Under             Appeal from the Circuit Court of Randolph County, No. 10-MH-131; the
Review                     Hon. Richard A. Brown, Judge, presiding.



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

                           Randall Rodewald, State’s Attorney, of Chester (Patrick Delfino, Stephen
                           E. Norris, and Rebecca E. McCormick, all of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.


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




                                              OPINION

¶1           Avery S. (the appellant) appeals from an order entered by the circuit court of Randolph
        County on October 20, 2010, which found him subject to involuntary admission to a
        Department of Human Services mental health or developmental center. The circuit court’s
        order found that the appellant was subject to involuntary admission because he was a person
        with a mental illness who, because of that illness, was (1) reasonably expected to engage in
        dangerous conduct which may include threatening behavior or conduct that places himself
        or another in reasonable expectation of being harmed, (2) unable to provide for his basic
        physical needs so as to guard himself from serious harm, and (3) 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.
¶2           Preliminarily, we address a point on which the parties agree. The circuit court’s findings
        derive from section 1-119 of the Mental Health and Developmental Disabilities Code (the
        Code), which defined the term “ ‘[p]erson subject to involuntary admission on an inpatient
        basis.’ ” 405 ILCS 5/1-119 (West 2010). Prior to the entry of the court’s order, the term
        “dangerous conduct” as used in section 1-119 was declared to be unconstitutionally vague
        and violative of the substantive guarantees of due process. In re Torski C., 395 Ill. App. 3d
        1010, 1027 (2009). Accordingly, the first and third of the circuit court’s findings with respect
        to the appellant being a person subject to involuntary admission are void, and only the second
        of those findings remains valid. Thus, we address ourselves only to the circuit court’s finding
        that the appellant was a person subject to involuntary admission because he was a person
        with a mental illness who, because of that illness, was unable to provide for his basic
        physical needs so as to guard himself from serious harm.
¶3           The appellant brings this appeal from the order of involuntary admission. The involuntary
        admission was to remain in effect for 180 days from the date of the order, and, that time limit

                                                  -2-
     having expired, the order is no longer in effect and no actual relief can be granted.
     Nevertheless, we will review this otherwise moot order under the public-interest exception
     to the mootness doctrine because we believe that the issues presented are of a public nature
     and are likely to recur and that an authoritative determination would provide guidance to
     public officials in the future. In re Michael H., 392 Ill. App. 3d 965, 969 (2009).
¶4       On October 14, 2010, a petition was filed in the circuit court of Randolph County seeking
     to continue the involuntary admission of the appellant pursuant to section 3-813 of the Code
     (405 ILCS 5/3-813 (West 2010)). The petition alleged that the appellant was a person with
     a mental illness who, because of that illness, is unable to provide for his basic physical needs
     so as to guard himself from serious harm unless treated on an inpatient basis. The petition
     further alleges that the appellant had been transferred to the Chester Mental Health Center
     from Coles County after criminal charges of felony aggravated battery had been dismissed
     in return for civil commitment. The petition alleges that the appellant has no insight into his
     mental illness and is unable to function on his own in the community and that outside the
     structured environment, he would quickly become a danger to himself and others.
¶5       The petition is accompanied by the certificates of Kathryn Holt, Ph.D., a psychologist and
     qualified examiner, and T. Casey, M.D., a staff psychiatrist. The certificates of both
     examiners indicate that they had personally examined the appellant and were of the opinion
     that he was a person with a mental illness who, because of that illness, was unable to provide
     for his basic physical needs so as to guard himself from serious harm unless treated on an
     inpatient basis. Both certificates further indicate that both examiners believed the appellant
     was an individual subject to involuntary admission and in need of immediate hospitalization.
¶6       The certificate of Dr. Casey indicated that she based her opinion and her conclusion on
     the following facts. The appellant was a 22-year-old male who was admitted to the Chester
     Mental Health Center from the Coles County jail after he had been found unfit to stand trial
     for aggravated battery. While living in a group home, the appellant had stabbed another
     resident in the arm with a kitchen knife because he was angry that the other resident had been
     touching his property.
¶7       The appellant had a history of past self-injury, fire-setting, extreme physical aggression,
     elopement, and past and current command hallucinations. He had been diagnosed with
     schizoaffective disorder, intermittent explosive disorder, impulse control disorder, and mild
     to moderate mental retardation. The appellant had had numerous prior admissions to mental
     health centers and had exhibited aggressive behavior toward himself and toward staff and
     peers. He had previously stabbed himself with a pencil and attempted to electrocute himself.
     He had been violent with staff, necessitating restraints and medication for himself and
     causing injuries to staff members. He had been denied access to several groups due to
     inappropriate threatening statements. He had tried to set fires in the group home, had injured
     himself and others, and had attempted to elope multiple times. He suffered from command
     hallucinations telling him to kill himself and others, and delusions. The appellant also suffers
     from hypertension and type II diabetes.
¶8       The appellant had been removed from his parents’ home due to allegations of abuse and
     neglect. He was placed in foster care when he was eight years of age. During his childhood


                                               -3-
       he received psychiatric hospitalizations because of aggressive behaviors. He was eventually
       moved to a group home. He was in special education throughout his educational history. He
       has never been married, has no children, and has no history of employment.
¶9          Dr. Casey stated:
            “[The appellant’s] psychiatric condition is so severe it was clear right from the beginning
            that the patient was probably not going to obtain fitness ever. His mental retardation,
            psychosis and mood instability are quite intense. Despite alter [sic] in medication, he was
            required to be placed on full leather restraints on 07/01/10 for unpredictable aggressive
            episodes. His adaptive skills are extremely poor. His cognitive deficits are quite intense.
            He has not demonstrated any ability to learn information, register, and retrieve when
            necessary. *** His behavior remains unpredictable/aggressive and his thought content
            is delusional/psychotic.”
¶ 10        With respect to involuntary admission, Dr. Casey continued:
            “[The appellant] would be unable to care for himself. He has nowhere to reside. He has
            a lengthy history of psychiatric treatment and violent episodes. He currently needs the
            structure that Chester Mental Health Center is able to offer. He would be a danger to
            himself and others. It is my opinion that [the appellant] needs continued inpatient
            treatment.”
¶ 11        Kathryn Holt’s certificate indicated that she based her opinion and conclusion on many
       of the same facts as did Dr. Casey. In addition, she noted that the appellant had tried to hang
       himself with a rope. The appellant exhibits the following signs and symptoms consistent with
       schizoaffective disorder: he admits to having auditory hallucinations, that is, he hears voices
       telling him to do things; he has behavior indicative of attending to internal stimuli (prolonged
       periods of unfocused staring with limited motor activity and no response to external
       environment); he makes bizarre statements; and his mood frequently swings from euthymic
       (smiling, cordial, polite) to nonresponsive withdrawal. The appellant had become violent
       while hospitalized, requiring restraint, and was threatening. Holt concluded:
            “[The appellant] lacks insight into his mental illness and demonstrates poor judgment
            regarding self-regulation of his behavior. Although he is able to complete activities of
            daily living (ADLs) with prompting and supervision, his adaptive behavioral composite
            score indicates that he functions at the age equivalency level of 6 years, 11 months old.
            Consequently, he is not able to provide for his basic physical needs without extensive
            assistance from others. Additionally, [the appellant] has a history of aggressive behavior
            and non-compliance with medication. If medication and/or supervision were to be
            discontinued, [the appellant] would be reasonably expected to decompensate rapidly and
            place himself and/or others in jeopardy of physical/serious harm. In light of the data
            currently available to me, it is my opinion that [the appellant] currently meets the criteria
            for involuntary psychiatric hospitalization.”
¶ 12        The petition came on for hearing on October 20, 2010, and the following occurred. The
       appellant’s appointed counsel indicated that he had reviewed with the appellant the petition
       and the reports of the two examiners and that the appellant was “prepared to enter into a
       stipulation of those reports.” The appellant’s counsel stated that he would have no further

                                                  -4-
       evidence to present. The State’s Attorney indicated that he too would “stipulate to the records
       going in.” The court addressed the appellant and asked him if he understood what his counsel
       had said and if he had any objection. The appellant indicated that he understood and did not
       object. The court then indicated that it would “consider the reports of Dr. Holt and Dr. Casey
       as evidence the same as if they had taken the witness stand and testified.” The court then
       found, based on the written reports of Drs. Holt and Casey, that the appellant is a person
       subject to involuntary admission and ordered that the appellant be hospitalized in the
       Department of Human Services.
¶ 13        The appellant argues that the entry of a civil commitment order through a stipulated
       bench trial violated his due process rights as well as the Code and is contrary to case law. We
       do not agree. Because this case presents only a question of law, our review is de novo. In re
       George O., 314 Ill. App. 3d 1044, 1046 (2000).
¶ 14        We begin by pointing out that this case does not involve the waiver of the entire hearing,
       or an agreed order for involuntary commitment, as was the case in In re Michael H., 392 Ill.
       App. 3d 965 (2009). In Michael H., the respondent to a petition for involuntary admission,
       through his counsel, waived his right to any hearing on the petition and all the procedural
       safeguards attendant thereto, and essentially agreed to be involuntarily admitted. The
       respondent’s counsel told the court that his client had “ ‘indicated he would give up his right
       to the hearing scheduled for this morning.’ ” 392 Ill. App. 3d at 968. Apparently, no evidence
       was presented or considered, not even the written reports of the respondent’s treatment team
       or examiners. On appeal, this court held that a respondent cannot effectively waive the entire
       hearing on a petition for involuntary admission; if the respondent agrees to be admitted, he
       must be admitted on a voluntary basis. 392 Ill. App. 3d at 979.
¶ 15        The case at bar is more like People v. Johnson, 2012 IL App (5th) 070573, where the
       respondent stipulated to the admission into evidence of a psychiatrist’s report and did not
       make any argument in defense, but did not agree to be involuntarily admitted or waive his
       right to a hearing. On appeal, the respondent raised arguments similar, if not identical, to
       those raised in the case at bar: that because he stipulated to all of the evidence needed to
       support the determination that he was subject to commitment, the stipulation was tantamount
       to a waiver of the hearing, which the Code does not permit, and that even assuming waiver
       is permissible, the record does not demonstrate that the waiver was knowing and voluntary.
       2012 IL App (5th) 070573, ¶ 6.
¶ 16        This court held that the respondent had not waived the hearing in its entirety, but had
       merely waived the statutory requirement that the psychiatrist who had actually examined him
       testify in person at the hearing, a waiver which is expressly allowed by the Code. 2012 IL
       App (5th) 070573, ¶ 11. Section 3-807 of the Code provides as follows:
            “No respondent may be found subject to involuntary admission on an inpatient or
            outpatient basis unless at least one psychiatrist, clinical social worker, or clinical
            psychologist who has examined him testifies in person at the hearing. The respondent
            may waive the requirement of the testimony subject to the approval of the court.”
            (Emphasis added.) 405 ILCS 5/3-807 (West 2010).
       The court noted that the respondent had not waived other requirements of the Code, such as


                                                -5-
       the requirement that the State prove its case by clear and convincing evidence. Johnson, 2012
       IL App (5th) 070573, ¶ 21. Section 3-808 of the Code provides that no respondent may be
       found subject to involuntary admission unless that finding has been established by clear and
       convincing evidence. 405 ILCS 5/3-808 (West 2010). The court held that neither the Code
       nor due process was violated by this procedure. Johnson, 2012 IL App (5th) 070573, ¶ 17.
¶ 17       In the case at bar, as in Johnson, the appellant merely stipulated to the admission into
       evidence of the reports of the two examiners. The court considered these reports as evidence
       the same as if the examiners had been present and testified in open court. Either the reports
       established by clear and convincing evidence that the appellant was a person subject to
       involuntary admission or they did not. The burden remained on the State. Granted, the
       examiners were not subjected to cross-examination, and the appellant presented no evidence
       or argument on his own behalf, but these are decisions properly left to counsel and are not
       rights belonging to the appellant. Johnson, 2012 IL App (5th) 070573, ¶ 15. In Johnson, 2012
       IL App (5th) 070573, ¶ 14, the court pointed out that even in the criminal setting, the
       decision to stipulate to evidence is generally a tactical decision that can be made by a
       defendant’s attorney without any indication in the record that the defendant personally chose
       to waive his constitutional right to confront particular witnesses and without any indication
       that this waiver was knowing and voluntary.
¶ 18       The procedure followed in the case at bar did not violate the appellant’s rights to due
       process and did not violate any provision of the Code. The appellant did not waive the entire
       commitment hearing or agree to be involuntarily admitted, but agreed only to waive the live
       testimony of the examiners and to submit the case to the court on the basis of the written
       reports.
¶ 19       The appellant argues that even if a stipulated bench trial is permitted by law, the circuit
       court still has an obligation to confirm that the appellant voluntarily and knowingly waived
       his constitutional right to cross-examine witnesses, an obligation which it did not fulfill in
       the case at bar. In Johnson, 2012 IL App (5th) 070573, ¶ 14, we pointed out that even in the
       criminal setting, the decision to stipulate to evidence is generally a tactical decision that can
       be made by a defendant’s attorney without any indication in the record that the defendant
       personally chose to waive his constitutional right to confront particular witnesses and without
       any indication that this waiver was knowing and voluntary. The respondent to an involuntary
       commitment proceeding is not entitled to the same rights as is a criminal defendant, and in
       Johnson, 2012 IL App (5th) 070573, ¶ 17, we held that a respondent’s rights are adequately
       protected by the procedures established in the Code. Section 3-807 of the Code requires court
       approval before a respondent may waive his right to have an examiner testify in person in
       open court, but it does not require any specific admonitions to, or inquiries of, the
       respondent. 405 ILCS 5/3-807 (West 2010). The appellant’s rights are protected by the
       statute’s requirement that the right only be waived with approval of the court. The procedures
       of the Code are sufficient to protect the appellant’s due process rights in a mental health
       proceeding.
¶ 20       The appellant next argues that a stipulated bench trial such as the one in the case at bar
       contradicts the Code’s statutory scheme as reflected in section 3-801.5 of the Code (405
       ILCS 5/3-801.5 (West 2010)) regarding agreed orders for admission on an outpatient basis.

                                                 -6-
       That section provides that a respondent to a petition for involuntary admission may enter into
       an agreement with the State for an order for admission on an outpatient basis provided, inter
       alia, that the court advises the respondent of the conditions of the proposed order and is
       satisfied that the respondent understands and agrees to those conditions. 405 ILCS 5/3-
       801.5(a) (West 2010). The appellant argues that he is entitled to the same protections in the
       context of a stipulated bench trial and that no such protections were afforded him. Again, we
       do not agree.
¶ 21       In the context of a stipulated bench trial, the only right being waived is the appellant’s
       statutory right to have an examiner testify in person in open court. In all other respects the
       appellant’s rights are unaffected by the stipulated bench trial. The Code expressly provides
       for the waiver of this statutory right to have an examiner testify in person in open court. 405
       ILCS 5/3-807 (West 2010). The respondent does not thereby agree to be admitted; the burden
       remains with the State to establish by clear and convincing evidence that the respondent is
       a person subject to involuntary admission. We do not find the proceedings in the case at bar
       to be inconsistent with the statutory scheme of the Code regarding agreed orders.
¶ 22       The appellant also argues that the proceedings in the case at bar are inconsistent with the
       statutory scheme of encouraging the adoption of voluntary admission as opposed to
       involuntary admission because a stipulated bench trial is the functional equivalent of a
       voluntary admission but without its accompanying statutory and therapeutic benefits. We do
       not agree that a stipulated bench trial is the functional equivalent of a voluntary admission.
       Again, in this stipulated bench trial the only right being waived is the respondent’s right to
       have an examiner testify in person in open court. The Code expressly provides for such a
       procedure. 405 ILCS 5/3-807 (West 2010). A respondent to a petition for involuntary
       admission can stipulate to the introduction of evidence without agreeing to be involuntarily
       admitted. This is not the functional equivalent of a voluntary admission. The evidence may
       or may not be sufficient to prove that the respondent is a person subject to involuntary
       admission.
¶ 23       The appellant next argues that allowing a stipulated bench trial will encourage pro forma
       hearings which would result in erosion of a patient’s liberty interests. In recent years the
       courts have gone to some lengths to impress upon the circuit courts that proceedings under
       the Code are not to be conducted pro forma. The courts have required strict compliance with
       the Code in every respect (see In re George O., 314 Ill. App. 3d 1044, 1046 (2000)), and we
       do so here. The procedure followed in the case at bar is expressly provided for in the Code
       and does not violate any specific provision or the statutory scheme, nor does it violate the
       appellant’s due process rights.
¶ 24       Finally, relying on In re Mark W., 348 Ill. App. 3d 1065 (2004), the appellant argues that
       the stipulation in the case at bar was insufficient to establish by clear and convincing
       evidence that he is a person subject to involuntary admission. In Mark W., a proceeding to
       involuntarily administer medication under the Code, the respondent’s counsel stipulated as
       follows:
           “ ‘[W]e’ll have no evidence to dispute the [S]tate’s witnesses, so we’re willing to
           stipulate that the State would offer evidence that Mark has a serious mental illness, that


                                                -7-
           because of his illness he suffers by suffering from pervasive delusions, [that] his
           symptoms have persisted for a marked period of time, that they believe that the benefits
           of the treatment would outweigh the harm, that he lacks the capacity to make a reasoned
           decision about his treatment, and that less restrictive services are inappropriate.
                We don’t necessarily agree with all of that evidence, but we stipulate that it will be
           presented, and we have nothing to controvert it.’ ” 348 Ill. App. 3d at 1075.
       On appeal, this court found this stipulation to be insufficient because it failed to include any
       facts underlying its conclusions and did not address the required factors on which to base a
       decision whether to involuntarily administer medication. 348 Ill. App. 3d at 1076.
¶ 25       In the case at bar, the stipulation entered into by the parties was simply that the reports
       of the two examiners be admitted into evidence. The court accepted the stipulation and stated
       that it would “consider the reports of Dr. Holt and Dr. Casey as evidence the same as if they
       had taken the witness stand and testified.” The stipulation was sufficient for its purpose.
       Either the evidence as admitted pursuant to the stipulation was sufficient to prove that the
       appellant was a person subject to involuntary admission or it was not. The circuit court found
       that it was.
¶ 26       The appellant does not argue in his opening brief that the circuit court’s finding is
       contrary to the manifest weight of the evidence, and the argument is, therefore, waived. Ill.
       S. Ct. R. 341(h)(7) (eff. July 1, 2008). The appellant does make the argument in his reply
       brief, and despite its having been waived, we reject it on its merits. The certificates of Drs.
       Holt and Casey establish by clear and convincing evidence that the appellant suffered from
       the mental illness of schizoaffective disorder. This mental illness rendered the appellant
       unable to provide for his basic physical needs so as to guard himself from serious harm. He
       suffered from hallucinations telling him to kill himself, he had repeatedly tried to hurt or kill
       himself, and his thought content was delusional/psychotic. The appellant experiences
       prolonged periods of unfocused staring with limited motor activity and no response to
       external environment. He lacks insight into his mental illness and demonstrates poor
       judgment regarding self-regulation of his behavior. He can complete activities of daily living
       only with prompting and supervision. Finally, he suffers from hypertension and diabetes and
       has nowhere to live. Dr. Casey stated that the appellant would be unable to care for himself
       outside the hospital setting.
¶ 27       The certificates of the doctors also support a finding that hospitalization was the least
       restrictive treatment alternative. The appellant had been removed from the group home
       because he had become violent and attacked another resident with a knife. He had a history
       of elopement from less restrictive environments and needed the structure of hospitalization.
       The evidence was sufficiently clear and convincing to establish that the appellant was a
       person subject to involuntary admission.
¶ 28       For the foregoing reasons, the judgment of the circuit court of Randolph County is hereby
       affirmed.

¶ 29       Affirmed.


                                                 -8-
