                           NO. 4-06-0525            Filed 2/20/07

                       IN THE APPELLATE COURT

                            OF ILLINOIS

                          FOURTH DISTRICT

In re: TODD K., a Person Found Subject  )    Appeal from
to Involuntary Admission,               )    Circuit Court of
THE PEOPLE OF THE STATE OF ILLINOIS,    )    Sangamon County
          Petitioner-Appellee,          )    No. 06MH399
          v.                            )
TODD K.,                                )    Honorable
          Respondent-Appellant.         )    George H. Ray,
                                        )    Judge Presiding.
_________________________________________________________________

          JUSTICE COOK delivered the opinion of the court:

          On June 16, 2006, respondent, Todd K., was found to be

a person subject to involuntary admission and was ordered hospi-

talized for 90 days.   Respondent appeals.   We affirm.

                           I. BACKGROUND

          On June 9, 2006, Robert Fitzgerald filed a petition for

the emergency involuntary admission of respondent along with

three certificates of qualified professionals stating respondent

is subject to involuntary admission.   At a hearing on June 16,

2004, Dr. Stacey Horstman, respondent's treating psychiatrist,

testified that she was acquainted with respondent through a prior

hospitalization, had treated him for the past week, and had

attempted to examine him on June 9, 2004.    At the examination,

respondent refused to get out of bed and speak to Dr. Horstman,

stating that he wished to speak with "the other doctor," who did

not seem to exist.   Dr. Horstman noted that respondent appeared
disorganized and seemed to be responding to internal stimuli.

          Dr. Horstman stated respondent had schizophrenia, and

due to his mental illness, respondent was at risk of inflicting

harm upon others.   In reaching this opinion, Dr. Horstman consid-

ered respondent's past medical records that revealed that respon-

dent was brought to the hospital on this most recent occasion

because he tried to choke a mental-health staff member.    Further,

the records showed that respondent had been hospitalized in the

past for assaulting a police officer.

          Dr. Horstman considered respondent in need of treatment

and formulated a plan for that treatment.   According to her

treatment plan, Dr. Horstman opined that the least-restrictive

treatment option was involuntary commitment for 90 days.

          The State rested after presenting Dr. Horstman's

testimony, and respondent moved for a directed finding.    Respon-

dent's motion was denied, and respondent testified.   Respondent

answered that he had "not really" been present for the hearing

thus far and did not hear the testimony of Dr. Horstman.   Respon-

dent testified that he did not attack or choke anyone but admit-

ted he was confrontational with a police officer who accused him

of the attack.   Respondent then renewed his motion for a directed

finding, and the motion was denied.

          The trial court found that based upon Dr. Horstman's

testimony, respondent was subject to involuntary admission as he


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suffered from a mental illness and was likely to inflict harm

upon himself or others if he was not hospitalized and treated.

The court reviewed the treatment plan and determined that invol-

untary commitment for 90 days was the least-restrictive alterna-

tive.   This appeal followed.

                           II. ANALYSIS

           Respondent argues that his procedural due-process

rights were violated when his guardian was not notified or

consulted about respondent's hearing.     Further, respondent claims

that the State failed to prove by clear and convincing evidence

that involuntary admission was warranted.

                A. Procedural Due-Process Violation

           We review the issue of whether respondent's procedural

due-process rights were violated de novo as the allegations

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

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

           Respondent argues that although his guardian was

provided with a copy of the petition for emergency involuntary

admission of respondent, the failure to notify the guardian of

the hearing violated his procedural due-process rights.    Sections

3-609 and 3-611 of the Mental Health and Developmental Disabili-

ties Code (Code) (405 ILCS 5/3-609, 3-611 (West 2004)) direct

that appropriate notice be served upon respondent, his attorney,

and his guardian after a petition is filed and after the court


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sets a hearing.   Respondent argues failure to comply with the

Code requires vacating his involuntary admission.

          The State responds that respondent has forfeited this

issue by failing to raise this objection before the trial court

or preserve it in his posttrial motion.    Further, respondent has

not demonstrated any prejudice from this technical violation.

          The record shows that respondent's guardian was served

with a copy of the petition and was referenced in the treatment

plan as having been contacted.

          Even if we deemed this issue not forfeited, respondent

has not demonstrated prejudice from the lack of formal notice of

the hearing to his guardian.   See In re Nau, 153 Ill. 2d 406,

419, 607 N.E.2d 134, 140 (1992) (reversal of a commitment order

is not warranted based upon a procedural defect if the defect was

harmless as the purpose of the statute was met).    Notice to the

guardian, like notice to the respondent, should be to give the

guardian a chance to assist the respondent in preparing for the

proceeding and a chance to be heard.     See Nau, 153 Ill. 2d at

419, 607 N.E.2d at 140, quoting In re Splett, 143 Ill. 2d 225,

232, 572 N.E.2d 883, 886 (1991).    The record suggests that

despite the guardian's failure to attend the hearing, respon-

dent's guardian was aware of the situation as he received a copy

of the petition and was contacted for the treatment plan.      As the

guardian was aware of the proceeding, he had the chance to assist


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respondent, and the failure to formally notify him of the time

and date of the hearing was harmless.    Because respondent was

afforded all of the procedural safeguards contemplated by the

statute, respondent's due-process rights were not violated.

    B. Clear and Convincing Evidence of Involuntary Admission

          A person may be involuntarily admitted if it is estab-

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

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

or her illness is reasonably expected to inflict serious physical

harm upon himself or herself or another in the near future" (405

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

involuntary-commitment proceeding is whether the judgment is

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

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

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

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

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

court, after applying the clear and convincing standard, would

have ruled differently.'"   In re Bennett, 251 Ill. App. 3d 887,

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

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

          The trial court's finding that respondent was mentally

ill is not in dispute.   Dr. Horstman testified respondent had

been treated for schizophrenia in the past and opined that


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respondent was still suffering from schizophrenia.    According to

respondent, however, Dr. Horstman's testimony never clearly and

convincingly proved that due to respondent's mental illness, he

was reasonably expected to threaten or imminently harm another.

Dr. Horstman did not observe or have any knowledge of the alleged

"choking" incident and did not observe any other incidents that

would support her conclusion that respondent was a danger.

Further, respondent denied that he ever choked anyone and only

agreed that he was confrontational when he was accused.

          We do not agree with respondent that Dr. Horstman's

opinion was based purely on someone telling her that respondent

had tried to choke someone.    Dr. Horstman testified that she was

acquainted with respondent through a prior commitment, and the

records show that the prior commitment was due to respondent's

aggravated battery to a police officer and resisting arrest.

Further, the treatment plan discussed respondent's long-standing

history of schizophrenia and his noncompliance with taking his

medications for the past year.    The plan discussed how respondent

had reportedly been increasingly agitated and aggressive.     When

respondent was taken to the emergency room after the police found

him wandering the streets after the alleged choking incident,

respondent was disoriented, had poor personal hygiene, seemed to

be responding to internal stimuli, and became so aggressive that

restraints were necessary.    This evidence, as well as Dr.


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Horstman's observations of respondent, supported her opinion that

respondent was a danger to others.

            Respondent suggests that Dr. Horstman's opinion that he

was likely to hurt someone in the near future is speculative

unless she witnessed an incident or act of aggression herself.

We disagree.    A treating psychiatrist's opinion of potential

dangerousness need not be derived from firsthand observations of

violence and may be based on knowledge of incidents derived from

medical history records.    In re Houlihan, 231 Ill. App. 3d 677,

683, 596 N.E.2d 189, 194 (1992).    An examining physician may

properly consider a respondent's complete medical history in

forming her opinion concerning that respondent's current and

future dangerousness.    In re Robert H., 302 Ill. App. 3d 980,

986, 707 N.E.2d 264, 269 (1999).    "A commitment order should be

affirmed where there is evidence of prior conduct along with

evidence that the respondent remains in need of mental treat-

ment."    Robert H., 302 Ill. App. 3d at 986-87, 707 N.E.2d at 269.

Further, the court does not have to wait until respondent hurts

himself or someone else before involuntarily committing him.       In

re Manis, 213 Ill. App. 3d 1075, 1077, 572 N.E.2d 1213, 1214

(1991).

            Because the trial court is in a superior position to

determine witness credibility and to weigh evidence, we give

great deference to the trial court's findings.    Knapp, 231 Ill.


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App. 3d at 919, 596 N.E.2d at 1172.      The court was in the best

position to determine that respondent's denial of the attack was

not credible and Dr. Horstman's opinion that respondent was a

danger to others was.   Based on Dr. Horstman's testimony, the

trial court's finding that respondent was subject to involuntary

admission was not against the manifest weight of the evidence.

          Respondent argues, though, that the State presented

insufficient evidence to show that involuntary admission was the

least-restrictive alternative.    Respondent's medical records show

that he has a history of involuntary admissions and noncompliance

with taking his prescribed medications.      The treatment plan

suggested he had not taken his medications for a year.      While

respondent has a legal guardian who supports him and he receives

social security disability, respondent had recently been evicted

according to the treatment plan.    As the evidence suggested

respondent was not taking his medication, had a history of

violence toward others, and had recently been acting aggres-

sively, the trial court could easily conclude that involuntary

commitment was the least-restrictive alternative.

          Based on the information in the treatment plan and Dr.

Horstman's opinion that involuntary admission was the least-

restrictive alternative, the trial court's findings that respon-

dent is a person who is mentally ill, that respondent poses a

danger to others, and that involuntary commitment is the least-


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restrictive alternative are not against the manifest weight of

the evidence.

                           III. CONCLUSION

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

judgment.

            Affirmed.

            STEIGMANN, P.J., and MYERSCOUGH, J., concur.




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