FILED

September 17, 2014 Carla Bender NO. 4-13-0399 th 4 District Appellate Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re: JESSICA H., a Person Found ) Appeal from Subject to Involuntary Admission, ) Circuit Court of THE PEOPLE OF THE STATE OF ILLINIOS, ) Sangamon County Petitioner-Appellee, ) No. 13MH217 v. ) JESSICA H., ) Honorable Respondent-Appellant. ) Steven H. Nardulli, ) Judge Presiding.

Justice HOLDER WHITE delivered the judgment of the court, with opinion. Justices Pope and Harris concurred in the judgment and opinion.

OPINION

¶1 In September 2012, the trial court found respondent, Jessica H., subject to

involuntary commitment, committing her for 90 days. In December 2012, respondent was

recommitted pursuant to an order expiring on March 21, 2013. On March 29, 2013, a third

recommitment petition was filed. Following a hearing, the court granted the petition, committing

respondent for 180 days.

¶2 Respondent appeals, arguing that although her claim is moot, it fits within two

recognized exceptions to the mootness doctrine. On the merits, she argues this court should

reverse the trial court's recommitment order because the recommitment petition was untimely

and because respondent received ineffective assistance of counsel due to counsel's failure to

object to the untimely petition. The State concedes two recognized exceptions to the mootness doctrine apply and concedes respondent received ineffective assistance of counsel. We conclude

the "public interest" exception applies to respondent's claim and agree respondent received

ineffective assistance of counsel at the hearing. We vacate the trial court's order.

¶3 I. BACKGROUND

¶4 A. Previous Orders

¶5 Respondent was first admitted to McFarland Health Center (McFarland) on

September 28, 2012, following an initial commitment hearing on September 27, 2012.

Respondent, then 30 years old, had previously been staying at El Paso Nursing Home. The trial

court ordered respondent hospitalized for a period not to exceed 90 days, or until December 27,

2012. Before the December order expired, respondent filed a petition for discharge in Sangamon

County. On October 26, 2012, the court denied this petition, leaving the previous commitment

order in effect. On December 21, 2012, following a hearing, the trial court found respondent was

subject to continued commitment at McFarland. This order remained in effect for 90 days, or

until March 21, 2013.

¶6 B. Recommitment Petition

¶7 On March 29, 2013, staff at McFarland filed a petition for involuntary admission

and an individual treatment plan, pursuant to sections 3-601 and 3-813 of the Mental Health and

Developmental Disabilities Code (Code) (405 ILCS 5/3-601, 3-813 (West 2012)). The petition

asserted respondent was a person with a mental illness in need of immediate hospitalization, as

she had no insight into her mental illness or need for medication, continued to experience

psychosis, was unable to care for herself, and posed a threat to herself and others due to her

distorted view of reality. Proof of service was filed with the petition, indicating notice was sent

-2- to respondent's parents, Mr. and Mrs. H., who serve as her guardians. On April 1, 2013, the

court appointed attorney Robert Scherschligt to represent respondent.

¶8 C. The Hearing

¶9 On April 5, 2013, the trial court held a hearing on the petition for involuntary

admission. Attorney Sam Qui represented respondent at the hearing. Counsel for respondent did

not motion for discharge or notify the court the petition was untimely. Doctor Rachel Harlan

Link, respondent's treating psychiatrist, testified respondent has been diagnosed with

schizoaffective disorder, bipolar type, and her symptoms include delusional thoughts and

hallucinations. Dr. Link described some of respondent's hallucinations, incidents where Jessica

was aggressive to peers and staff at McFarland. Dr. Link stated, if discharged, respondent would

not take medication as directed and would be unable to provide a safe environment for herself.

¶ 10 Respondent lived in a nursing facility before she was admitted to McFarland.

McFarland staff investigated placing respondent in two locked nursing facilities as an alternative

to hospitalization. Dr. Link testified both facilities determined they could not provide for

respondent's needs because of her ongoing symptoms. While at times respondent's testimony

was disjointed and not based in reality, she clearly requested the court send her to a nursing

home.

¶ 11 The trial court ordered respondent recommitted, finding respondent suffered from

a mental illness and, because of her illness, can "reasonably be expected to harm others or place

other individuals in reasonable expectation of being physically harmed," is unable to provide for

her own basic needs, is likely to deteriorate further, and is in need of immediate hospitalization.

The court stated it would order respondent to remain at McFarland but order McFarland staff to

"exercise their best efforts to try to find a nursing home that [respondent] can go to."

-3- ¶ 12 D. Subsequent Procedural History

¶ 13 Respondent appealed. In November 2013, appointed appellate counsel, the

Guardianship and Advocacy Commission (Guardianship), moved to withdraw as counsel on

appeal pursuant to Anders v. California,

(1967), asserting "no grounds exist which

would warrant relief in this Court." On February 4, 2014, this court directed Guardianship to

provide documentation demonstrating the dates of respondent's previous commitment orders.

¶ 14 Upon obtaining these orders, Guardianship concluded the third recommitment

petition was filed eight days late, moved to withdraw its Anders motion, and requested leave to

file a brief. We allowed both requests. Guardianship now argues the recommitment order

should be reversed because the petition was untimely and respondent received ineffective

assistance of counsel at the hearing. Guardianship did not file a motion to supplement the record

but attached the previous commitment orders as appendices to its brief.

¶ 15 II. ANALYSIS

¶ 16 We first note that while Guardianship did comply with this court's order to

provide documentation demonstrating the dates of Jessica H.'s prior commitment orders, the

proper method to do so was not used. When supplementing the record, Illinois Supreme Court

Rule 329 (eff. Jan. 1, 2006) is controlling and should be followed. However, in the interest of

judicial economy and because the previous orders are necessary for our resolution of this case,

we will treat respondent's appendices as a motion to supplement the record and grant it.

¶ 17 A. Mootness

¶ 18 Guardianship argues that although respondent's claims are moot, they fall within

the "public interest" and "capable of repetition yet avoiding review" exceptions to the mootness

doctrine. The State concedes both exceptions apply. As we find the "public interest" exception

-4- applies to respondent's claims, we do not address the "capable of repetition yet avoiding review"

exception.

¶ 19 "As a general rule, courts in Illinois do not decide moot questions, render advisory

opinions, or consider issues where the result will not be affected regardless of how those issues

are decided." In re Alfred H.H.,

,

(2009). Illinois courts

will, however, consider an otherwise moot issue when a recognized exception to the mootness

doctrine applies.

One recognized exception, the "public interest" exception, has three

elements.

,

. First, the question presented must be one of a public

nature. Second, there must be a reasonable need for an authoritative determination for the future

guidance of public officers. Finally, there must be a likelihood of future recurrence of the

question.

¶ 20 Here, as entry of the recommitment order violated mandatory statutory language

and implicates one's constitutional rights, the issue is one of a public nature. Also, the court, the

State, and counsel for respondent failed to appreciate the mandatory statutory requirements given

the posture of this case. In addition, a determination as to the statutorily required outcome when

presented with facts such as those in this matter is needed. Such a determination would provide

for the future guidance of public officers. Finally, in light of the large number of individuals

impacted by subsequent involuntary-commitment proceedings, there is a likelihood of future

recurrence of the question presented. Thus, we conclude the "public interest" exception applies

to respondent's claims.

¶ 21 B. Ineffective Assistance of Counsel

¶ 22 Respondent argues this court should reverse the trial court's order because the

recommitment petition was untimely and she received ineffective assistance of counsel. The

-5- State concedes respondent received ineffective assistance of counsel. We accept the State's

concession.

¶ 23 Persons subject to involuntary-commitment proceedings are entitled to effective

assistance of counsel. In re Carmody,

,

(1995). In

Carmody, this court adopted the standard articulated in Strickland v. Washington,

(1984), for reviewing ineffective-assistance-of-counsel claims in involuntary-commitment

proceedings. Carmody,

,

. "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 her of a fair proceeding."

,

.

¶ 24 1. Counsel's Performance

¶ 25 The benchmark for judging any claim of ineffectiveness "must be whether

counsel's conduct so undermined the proper functioning of the adversarial process that the trial

cannot be relied on as having produced a just result." Strickland,

. In judging

counsel's effectiveness in an involuntary-commitment proceeding, courts focus "upon whether

the respondent's counsel acted so as to hold the State to its burden of proof and its procedural

requirements." Carmody,

,

.

¶ 26 Respondent's counsel did not hold the State or the trial court to the Code's

procedural requirements. Section 3-813(a) of the Code states "[i]f no petition is filed prior to the

expiration of the initial order, the recipient shall be discharged." 405 ILCS 5/3-813(a) (West

2012). Respondent's second consecutive commitment order expired on March 21, 2013.

McFarland staff filed the recommitment request eight days later, on March 29, 2013.

-6- Respondent's trial counsel did not notify the court the petition was untimely. It appears counsel

did not obtain the previous orders, which were not in the trial court's record, to check whether the

petition was timely. Rather, counsel appears to have relied on McFarland staff and the State to

file a timely petition. Guardianship, respondent's appellate counsel, did not become aware the

petition was untimely until we ordered it to provide the dates of the previous orders. If this

information was not in the trial court record, counsel had an obligation to seek it out because

doing so is the only way to ensure the petition is timely.

¶ 27 The first prong of the Strickland test is satisfied because respondent was

recommitted, without objection from counsel, pursuant to a petition in clear violation of section

3-813.

¶ 28 2. Prejudice

¶ 29 We also agree respondent was prejudiced by the eight-day delay. The statutory

language of section 3-813 is mandatory because it "dictates a particular consequence for failure

to comply with the provision." (Internal quotation marks omitted.) In re Rita P.,

,

(quoting In re M.I.,

,

, quoting

People v. Delvillar,

,

(2009)). Section 3-813 explicitly

requires a committed person to be discharged if a successive petition for recommitment is not

filed before the previous commitment order expires. See In re Luttrell,

,

(1994). Thus, had counsel informed the court the petition was late, the

trial court would have dismissed the State's recommitment petition.

¶ 30 Because respondent's counsel did not inform the court the petition was untimely

and move for discharge, respondent was detained for eight days without a valid court order.

Further, the trial court's order on appeal was respondent's third consecutive commitment order.

-7- As a result, respondent was committed for 180 days under the order, rather than 90. See 405

ILCS 5/3-813(a) (West 2012). In In re Nau,

,

(1992), the supreme court reasoned the committed person was not prejudiced by a recommitment

petition filed one day late. The court explained, "had respondent made a timely objection, the

State would simply have withdrawn its petition for continued hospitalization and filed instead a

petition for initial commitment."

,

. The court noted it was

insignificant whether the petition was labeled an additional petition or an initial petition.

,

. The court stated "[t]he obvious purpose behind section 3-813 is to

prevent patient neglect and to ensure that an involuntarily committed patient's eligibility for

commitment is reevaluated at regular intervals" and this "purpose was not frustrated by the one-

day delay in this case."

¶ 31 Unlike the one-day delay in Nau, the eight-day delay here was longer and had a

substantial effect on respondent's rights. Had the trial court known the petition was untimely, the

court would not have granted the recommitment petition. Respondent would have been

discharged, even if she would not have been able to physically leave McFarland. See In re

Andrew B.,

,

(2010) (discharge under section 3-813

does not require actual physical release from a mental health facility). The State would then

likely have filed a new initial petition to commit respondent. While it is likely this initial petition

would have been granted, as the evidence for involuntary commitment was strong and the

required burden of proof would have been the same, the order would have lasted 90 days, rather

than 180 days.

¶ 32 More frequent review would have benefited respondent. Before coming to

McFarland, respondent was housed in a nursing home and she had been evaluated by two locked

-8- facilities, which were unable to take her due to her ongoing symptoms. In rendering its

judgment, the trial court explained to respondent it was ordering McFarland staff to "exercise

their best efforts to try to find a nursing home that [respondent] can go to." Respondent would

have benefited from more frequent assessment of McFarland's efforts to ensure she was detained

in the least-restrictive facility available and able to meet her needs.

¶ 33 In Luttrell, we addressed the argument a committed person cannot suffer

prejudice due to a late petition for continued commitment because the State could have

withdrawn the petition for continued hospitalization and filed a petition for initial commitment.

We stated, "we disagree with any suggestion the supreme court in Nau impliedly approved

circumventing statutory procedures for continued hospitalization." Luttrell,

,

. We questioned "the propriety of permitting the State to disregard the

procedures for continued hospitalization, detain the respondent in the mental health facility

beyond the expiration of the original order of commitment despite the clear language of the

statute, and then follow those procedures for initial hospitalization, where it is not initial but

continued hospitalization that is sought."

,

. Here, the eight-day delay

constitutes prejudice because it is inconsistent with the Code's purpose to ensure periodic review

of involuntary commitment cases. See Nau,

,

.

¶ 34 We note, our conclusion differs from the Fifth District in In re Kevin S.,

,

(2008), concluding a committed person was not

prejudiced by a few days' delay in the filing of a recommitment petition even though an

"[o]bjection[] by trial counsel might have resulted in additional proceedings." In Kevin S. the

petition was at most only a few days late (id. at 267,

), while the petition in this

case was eight days late. The court in Kevin S. also concluded the petitioner would not have

-9- benefited from more frequent hearings reviewing the commitment petition. Here, as we have

stated, respondent clearly would have benefited from more frequent review of her case.

¶ 35 We conclude respondent was prejudiced by counsel's error. We agree with the

parties that respondent received ineffective assistance of counsel. Given our determination

respondent received ineffective assistance of counsel and was prejudiced, we need not address

respondent's argument that the State failed to ensure the filing of a proper petition.

¶ 36 III. CONCLUSION

¶ 37 For the reasons stated, we vacate the trial court's commitment order.

¶ 38 Order vacated.

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