May 2016Volume 2Number 4PDF icon PDF version (for best printing)

Appellate update

Illinois Supreme Court

In re Linda B., 2015 IL App (1st) 132134 (February 18, 2015)

Illinois Guardianship and Advocacy Commission has filed a PLA and has filed a Motion for Extension. Respondent was held on medical floor for 17 days before a petition for involuntary admission was filed.

In re Benny M., 2015 IL App (2d) 141075 (November 2, 2015)

The appellate court held that the trial court improperly kept Respondent shackled during involuntary-medication trial over Respondent’s objection. Appellate court ruled that Boose hearing is required to determine necessity of restraint during trial. State’s petition for leave to appeal was allowed on 03/30/16. State has requested extension to file brief to June 8, 2016.

In re M.I., 2015 IL App (3d) 150403 (November 10, 2015)

State’s PLA was allowed on 01/22/16.

In re Megan G., 2015 IL App (2d) 140148 (November 17, 2015)

Appellate court held that trial court properly dismissed pending petitions for involuntary admission and involuntary treatment because of pending felony charges. State filed a PLA on 12/22/15. The State’s petition for leave to appeal was denied.

In re Miroslava P., 2016 IL App (2d) 141022 (March 30, 2016)

State has filed a Motion for Extension to file PLA. State is considering whether to file a PLA.

District Appellate Court

In re M.I., 2015 IL App (3d) 150403 (November 10, 2015)

The State brought a petition to terminate the parental rights of respondent J.B., the father of M.I., alleging that J.B. failed to make reasonable progress for nine months prior for the parenting of M.I. and failed to maintain a reasonable degree of interest, concern or responsibility to her. ¶1, 6. A psychological examination indicated that Respondent was diagnosed with bi-polar disease and was mildly mentally retarded, with an IQ of 58, and skills ranging from a kindergarten to third grade level. ¶4, 8, 14. His abilities were consistent with those of a young child. ¶4. The trial court found J.B. unfit to care for M.I. and it was in the best interest of M.I. that his parental rights be terminated. ¶1. The trial court granted the State’s petition to terminate the parental rights of Respondent. ¶1.

Respondent appealed the trial court’s unfitness findings and its termination of his parental rights on the following grounds: (1) the trial court improperly considered evidence outside the relevant time period in finding Respondent failed to make reasonable progress; (2) it erred in determining that he failed to maintain a reasonable degree of interest, concern or responsibility toward M.I., and (3) DCFS failed to make reasonable accommodations and services in light of his mental impairment. ¶11.

In terminating a parent’s rights, the State must first prove that the parent is unfit and, if so, then must prove that it is in the child’s best interest to terminate the parent’s rights. Citing, In re Petition of L.M., 385 Ill. App. 3d (1st Dist. 2008); 750 ILCS 50/1(D) (West 2010); and 705 ILCS 405/2-29(2) (West 2010). ¶12. “Grounds for termination of parental rights include the parent’s failure to make reasonable progress toward the return of the child within a specified nine-month period after an adjudication of neglect or abuse and failure to maintain a reasonable degree of interest, concern or responsibility.” 750 ILCS 50/1(D)(m)(ii), (D)(b) (West 2010). ¶12. “The court’s focus is on the efforts of the parent rather than his success, and the court must examine the parent’s conduct in the circumstances in which the conduct occurred.” Citing In re B’yata I., 2014 IL App (2d) 130558-B, ¶31. ¶13. Difficulty in obtaining transportation, poverty and other life issues needing resolution are circumstances relevant for the court’s consideration.” Id. ¶13.

The appellate court found that the majority of evidence considered by the trial court in making its unfitness finding was outside the specified nine-month period cited for lack of reasonable progress by Respondent. ¶15.

The appellate court rejected the trial court’s determination that failing to complete a task that is beyond one’s intellectual capacity is the same as refusing to comply with court-ordered directives and willfully not making reasonable progress toward the return of a minor child or willfully failing to maintain a reasonable degree of interest in the child. ¶16. The appellate court found that “there was no consideration of how the Respondent’s mental retardation impacted his efforts to comply the court’s directives.” ¶16. “Importantly, the State never provided a service plan for J.B.” ¶17.

The trial court was required to consider J.B.’s conduct in light of the circumstances [intellectual deficits and homelessness] facing him. ¶21. The appellate court found that the State did nothing to address J.B.’s particular situation. ¶21. “Rather, it abandoned a parent with an IQ of 58 to navigate the community social services network on his own and used his inability to do so as a grounds to terminate his parental rights.” ¶21. The appellate court also found that DCFS and the trial court completely failed to recognize J.B.’s minimal functioning level and adjust his requirements according to his circumstances. ¶21. “So while J.B. might be unfit, that does not necessarily mean his parental rights should be terminated.” Citing In re Workman, 56 Ill. App. 3d 1007, 1011 (3rd Dist. 1978) (parent retains bundle of rights until found unfit and guardian empowered to consent to adoption). ¶21.

The appellate court found that the State failed to meet its burden of proving J.B.’s unfitness and the trial court erred in terminating his parental rights. ¶21. Reversed and Remanded. ¶22.

People v. Bailey, 2016 IL App (3d) 150115 (opinion filed on February 10, 2016)

Defendant appealed the trial court’s ruling that he was in need of mental health services on an inpatient basis following a finding of not guilty by reason of insanity (NGRI). ¶1.

Defendant was charged with aggravated battery. ¶3. The trial court found defendant NGRI, and ordered that he be remanded to the custody of the Department of Human Services and be evaluated to determine whether he was in need of mental health services. ¶4. A written evaluation concluded that Defendant was in need of mental health services on an inpatient basis. ¶5. The evaluation noted that Defendant had a history of noncompliance with his prescribed medication on an outpatient basis, and a long history of substance abuse and problems with the criminal legal system. ¶5, 6.

At trial, a doctor testified that Defendant was diagnosed with manic bipolar disorder, which was in partial remission because he had been taking his medications. ¶8. The doctor opined that Defendant was in need of inpatient treatment based on Defendant’s history of noncompliance with his medications and lack of insight into his mental illness and substance abuse. ¶8. He believed that defendant would pose a risk of harm to himself or others if he were not hospitalized based on his mental illness. ¶8. Defendant’s father testified that he would allow Defendant to live with him and would be able to help Defendant obtain his medications and make sure he took them. ¶14. The father was not concerned for his safety if Defendant were to live with him. ¶14. Defendant testified that if the judge allowed him to receive outpatient mental health treatment, he would likely try to obtain his own housing. ¶15. The trial court found Defendant in need of mental health services on an inpatient basis and remanded him to the custody of DHS. ¶16. The trial court noted that Defendant exhibited a lack of compliance with his recommended treatment, a lack of insight into his mental illness, and a lack of remorse for his crime. ¶17.

Under section 5-2-4 of the Unified Code of Corrections, after a finding of NGRI, the trial court shall order the defendant to be evaluated by DHS to determine if the defendant is in need of mental health services. ¶20. DHS is to provide the trial court with a report of its evaluation within 30 days. Id. ¶20. After receiving the report, the trial court must hold a hearing to determine if the defendant is in need of mental health services and, if so, whether the defendant is in need of mental health services on an inpatient or outpatient basis. Id. ¶20. A finding that a defendant needs mental health treatment on an inpatient basis must be established by clear and convincing evidence. 730 ILCS 5/5-2-4(g). ¶21. Such a finding “must be based upon an explicit medical opinion regarding the defendant’s future conduct and cannot be based upon a mere finding of mental illness.” People v. Grant, 295 Ill. App. 3d 750, 758 (1998). ¶21.

Relevant factors in determining whether a person is reasonably expected to inflict serious harm upon himself or another include “evidence of (1) prior hospitalization with the underlying facts of that hospitalization and (2) defendant not taking his medication in the past and still not perceiving the value of continued medical treatment.” People v. Robin, 312 Ill. App. 3d 710, 718 (2000). ¶21. “Even though a finding of dangerousness must be based on a specific medical opinion regarding defendant’s possible future conduct, there does not need to be an expectation of immediate danger.” People v. Hager, 253 Ill. App. 3d 37, 41 (1993). ¶21. “The mere possibility that defendant may not comply with the prescribed treatment is insufficient to sustain a finding of involuntary commitment.” Robin, 312 Ill. App. 3d 718. ¶21.

The appellate court affirmed the trial court’s ruling, finding that the trial court’s determination that Defendant was in need of mental health services on an inpatient basis was not manifestly erroneous. ¶1, 23, 29. Factors which supported the trial court’s determination of treatment on an inpatient basis included the Defendant’s history of noncompliance with medications on an outpatient basis, Defendant’s lack of insight into his mental illness and substance abuse, lack of remorse for his crime, and that he was not fully compliant with attending therapy groups on an inpatient basis. ¶23.

In re Miroslava P., 2016 IL App (2d) 141022 (opinion filed on March 30, 2016)

The State petitioned for the involuntary admission and involuntary administration of psychotropic medication to Respondent, Miroslava P., a Bulgarian citizen. ¶1. At three early status hearings, Respondent requested that the Bulgarian consulate be notified of the admission proceedings. ¶1. Respondent then filed a Motion to Strike the petitions, arguing that the Vienna Convention required that the consulate be notified when one of its citizens was involuntarily detained. ¶8. The trial court denied Respondent’s motions to strike the petitions. ¶14. The trial court granted the petitions for involuntary admission and involuntary medication. ¶16.

Respondent then filed a Motion to Reconsider, arguing that the petitions should have been stricken based on the failure to timely notify the consulate and provide it with the admission petition and appropriate documentation. ¶17. In the Motion to Reconsider, Respondent, for the first time, cited section 3-609 of the Mental Health Code, which requires that “[n]ot later than 24 hours, *** a copy of the petition and statement shall be given or sent to the respondent’s attorney and guardian, if any. The respondent shall be asked if he desires such documents sent to any other persons, and at least 2 such persons designated by the respondent shall receive such documents.” (emphasis added.) 405 ILCS 5/3-609 (West 2014). ¶17. The trial court granted Respondent’s Motion to Reconsider, finding that noncompliance with section 3-609, warranted a reversal of both the admission order and the medication order. ¶1, 39.

The State appealed the trial court’s reversal of orders, arguing that the trial court abused its discretion in granting the Respondent’s motion to reconsider, because: (1) it should have found forfeited Respondent’s late citation to section 3-609; (2) any noncompliance with section 3-609 was harmless; and (3) even if compliance with section 3-609 justified vacating the admission order, it did not justify vacating the medication order. ¶22.

Initially, the appellate court held that the public-interest exception to the mootness doctrine applied. Since issues of statutory compliance are considered questions of a public nature, an authoritative determination is needed for future guidance, and the circumstances are likely to recur. ¶24-26.

Respondent’s counsel at trial initially cited the Vienna Convention, rather than the Code, for her position that the State must ensure that the consulate be notified. ¶ 32. Later in court when Respondent’s counsel mentioned the Mental Health Code, she did not specifically cite section 3-609 as authority. ¶32. Nevertheless, at each and every court appearance, Respondent’s counsel raised the broad issue of notifying the consulate. ¶32. “Under these circumstances, where counsel zealously and repeatedly raised the broad issue, Respondent did not forfeit the issue.” ¶32.

The appellate court found that Respondent’s request to provide her consulate with the petition detailing the reasons of her detainment was highly reasonable and agreed with the trial court’s determination that, pursuant to section 3-609, a respondent who is a foreign national may designate her locally stationed counsel as one of her two “other persons” who must receive copies of the admission petition. ¶43-44.

The appellate court also distinguished between “plain-error” and “harmless-error” review. In “plain error” review, where the respondent did not object in the trial court to a noncompliance error, the respondent bears the burden of persuasion to show that the error was prejudicial. ¶64. However, in a “harmless error” review, the noncomplying party – here, the State – bore the burden of persuasion to show the absence of prejudice. ¶64. Here, because Respondent repeatedly objected to the State’s failure to timely and adequately notify the consulate, a plain error analysis did not apply to this case. ¶65.

The appellate held that the trial court, in taking a strict compliance approach, did not abuse it discretion in vacating the admission order in light of the State’s noncompliance with section 3-609. ¶58, 66.

Regarding notice in a medication proceeding, if, as here, “a hearing is requested to be held immediately following the hearing on a petition for involuntary admission, then the notice requirement shall be the same as that for the hearing on the petition for involuntary admission, and the petition filed pursuant to this Section shall be filed with the petition for involuntary admission.” (Emphasis added.) 405 ILCS 5/2-107.1(a-5)(1) (West 2014). ¶69. “Also, the medication statute does require notification of an individual designated by the respondent, if the designation was made in writing.” 405 ILCS 5/2-102(a) (West 2014). ¶69. Finally, the appellate court held that the trial court’s determination that the medication order stemmed from the admission order was sound, and the State forfeited its opportunity to request a modification [treatment in an outpatient facility] as opposed to reversal. ¶70. Affirmed. ¶75.

In re Sharon N., 2016 IL App (3d) 140980 (April 15, 2016)

Respondent appealed the trial court’s order for involuntary admission and involuntary administration of psychotropic medication.

Respondent argued that (1) the evidence was insufficient to establish that she was subject to involuntary admission; (2) the evidence was insufficient to establish that she was subject to involuntary medication; (3) the State and the circuit court failed to comply with the statutory provisions on involuntary medication; and (4) her trial counsel was ineffective. ¶18.

The appellate court found that Respondent’s first two arguments presented nothing more than sufficiency of evidence arguments. ¶24. It found that those arguments did not meet the “capable of repetition, but evading review exception” to mootness and consequently did not address them. ¶25. However, the appellate court did find that Respondent’s third and fourth arguments qualified for the “public interest exception” to the mootness doctrine. ¶32.

The appellate court found that the circuit court committed two errors regarding the petition for involuntary medication and reversed the medication order. ¶40. First, the Petitioner failed to provide a three-day notice of the hearing to Respondent under section 2-107.1(a-5)(1) of the Mental Health Code. 405 ILCS 5/2-107.1(a-5)(1). ¶37, 40. Second, the circuit court failed to specify in the medication order what testing it was requiring to be conducted on the Respondent. 405 ILCS 5/2-107.1(a-5)(4)(G). ¶39, 40.

Regarding Respondent’s fourth argument that trial counsel was ineffective, the appellate court initially rejected her argument that failure to follow through with a jury demand in the commitment proceeding prejudiced her. ¶41. The appellate court found that trial counsel’s failure to object to Respondent’s mother’s testimony was not prejudicial, since the evidence from the psychiatrist’s testimony was sufficient to support a finding of involuntary admission. ¶5, 43. The appellate court declined to address Respondent’s remaining claims of ineffective assistance of counsel related to the medication hearing because it already held that the medication order must be reversed. ¶44.

Commitment order is affirmed and medication order is reversed. ¶47.


Andreas Liewald is a staff attorney with the Illinois Guardianship and Advocacy Commission, West Suburban (Hines) Office.

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