FIFTH DIVISION January 16, 2015 No. 1-12-3596

In re DEBORAH S., Alleged to Be a Person ) Subject to Involuntary Admission ) (The People of The State of Illinois, ) Appeal from the ) Circuit Court of Petitioner-Appellee, ) Cook County. ) v. ) No. 12 COMH 2028 ) Deborah S., ) Honorable ) Maureen Ward Kirby, Respondent-Appellant). ) Judge Presiding.

PRESIDING JUSTICE PALMER delivered the judgment of the court, with opinion. Justices McBride and Gordon concurred in the judgment and opinion.

OPINION

¶1 Following a hearing held on July 25, 2012, the trial court found that respondent, Deborah

S., was subject to involuntary commitment to Chicago Lakeshore Hospital (CLH). On appeal,

respondent argues that her involuntary admission was improper because: (1) the trial court

applied an improper standard in denying her request to proceed pro se; (2) the trial court abused

its discretion in denying her request to proceed pro se, and (3) the evidence presented at the

hearing was insufficient to support the trial court's order authorizing her involuntary admission.

¶2 I. BACKGROUND 1-12-3596

¶3 On July 16, 2012, a petition seeking the involuntary admission of respondent to CLH

pursuant to the provisions of the Mental Health and Developmental Disabilities Code (Mental

Health Code) (405 ILCS 5/1-100 et seq. (West 2012)) was filed in the circuit court of Cook

County. The petition alleged, inter alia, that respondent was unable to provide for her basic

physical needs due to a mental illness and was in need of immediate hospitalization. The petition

reflected that respondent was admitted to Centegra Hospital on July 15, 2012, exhibiting

paranoia and irrational thinking, as well as difficulties in caring for herself. The petition listed

numerous delusions and erratic behavior respondent exhibited toward staff and residents at

Home of the Sparrow (HOS), a transitional facility in which she had been living. In the

accompanying certificate, Dr. Scott Feldman opined that respondent was paranoid, psychotic,

delusional, unable to care for herself, and in need of immediate hospitalization. A commitment

hearing was held on July 25, 2012.

¶4 On the day of the hearing, respondent's court-appointed counsel informed the trial court

that respondent wished to represent herself and requested leave to withdraw as counsel. The trial

court then questioned respondent about her background, and respondent stated that she was 46

years old, was previously employed as a substitute mail carrier and as a driver for Walmart,

attended approximately two years of college, and has twin sons who currently live with their

father. Respondent informed the court that she was currently representing herself in her divorce

proceedings, and had appeared in court approximately 15 times in that capacity, but would hire

an attorney if she had the financial resources to do so. The court asked if she understood that her

current court-appointed attorney had specialized knowledge and was representing her free of

charge, and respondent stated that she did.

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¶5 The court then asked respondent if she understood that she would be held to the same

procedural and evidentiary rules as an attorney, and respondent stated that she did. When the trial

court asked her for an example of a rule of evidence, respondent stated "papers or petitions" and

"medical records." The following colloquy ensued:

"THE COURT: So let me ask you this, do you understand the ramifications of a

decision to proceed pro se? What happens if you forgot to raise an argument that your

lawyer could and that would have made the difference?

RESPONDENT: I guess that is part of not being trained.

THE COURT: That is why I am concerned.

RESPONDENT: I understand.

THE COURT: You're a bright lady. You've been able to answer my questions. I'm

concerned. I'm concerned that you would not have someone who has specialized training

who is very good at what she does.

RESPONDENT: Sure.

THE COURT: Who is very good at what she does and who is prepared to

represent you today and zealously advocate for your rights and make sure that your

constitutional liberty interest is protected. She is very good at what she does. So I haven't

heard from you why you don't want her to represent you. Why don't you want her to

represent you?

RESPONDENT: Well, your Honor, as I explained to her, I says [sic], obviously I

had a right to – I was not given the right to an attorney.

THE COURT: No, no. She is your attorney.

RESPONDENT: When I brought that to her attention –

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THE COURT: Just tell me what your issue is with [her].

RESPONDENT: I barely know the lady. I can't say I have no issues."

¶6 The court then asked respondent if she wished to represent herself, and respondent

replied, "what about a public defender?" The trial court explained that her choice was to

represent herself or move forward with appointed counsel. Respondent then asked if she could

have an attorney from the State's Attorney's office and the court said she could not. The

following colloquy ensued:

"THE COURT: So this is how it is going to go. [Appointed counsel] either

represents you or you represent yourself. So the important question here is you

have chosen to represent yourself, you. You have made the decision to represent

yourself, is that correct?

RESPONDENT: Okay. Your honor –

THE COURT: Yes or no?

RESPONDENT: Why can I not get a public defender?

THE COURT: No. Yes or no? You have chosen to represent yourself?

RESPONDENT: Your Honor, I'm trying – like you said, I'm trying to

understand. Just to make sure I do. I missed the first hearing because I was never

notified of that.

THE COURT: Ma'am, this is what I'm going to do. You're not answering

my question. That is the most important question to me. So I'm denying

[appointed counsel's] oral motion to withdraw as counsel. I'm having [her] stay on

as your attorney. She is court appointed, she is an excellent attorney. She is well

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regarded by all the judges in this division. She is staying on because I'm not

convinced that you would be able to represent yourself, appropriately raise an

objection and appropriately follow the rules of civil procedure, the rules of

evidence, and have an intricate understanding of the mental health and disabilities

code."

¶7 The hearing commenced and the State called Pamela Hadsell, respondent's sister. Hadsell

testified that in December 2010, she noticed that respondent became increasingly agitated. At

that time, respondent told Hadsell that she believed that her husband was laundering money, was

"doing something" in Miami, and was a spy and running guns for al-Queda. In April or May

2011, respondent was arrested in relation to a domestic dispute, after which she stayed in her

father's home for several weeks and Hadsell saw her on a daily basis. During that time,

respondent believed that the telephone was bugged and that she needed FBI protection, and

stated that she was a porn star in Europe because her husband had sold a sex video of her.

Hadsell thought respondent might have a brain tumor, given that their mother had suffered from

hallucinations that were caused by a brain tumor.

¶8 Hadsell further testified that after respondent left their father's house, she lived at HOS.

Hadsell estimated that from April 2011 to July 2012, respondent had lost approximately 25

pounds, but acknowledged that she did not appear to be malnourished. About four or five years

prior, respondent told Hadsell that she is diabetic and takes medication for that condition.

Hadsell did not think respondent can take care of her basic needs, but would not allow

respondent to live with her upon being discharged from the hospital.

¶9 Dr. Scott Feldman, a board-certified psychiatrist, provided expert testimony. He testified

that he has been respondent's treating psychiatrist as of July 16, 2012, when she was transferred

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from Centegra Hospital to CLH. Since then he had evaluated her, as well as observed her

behavior on the unit, on an almost daily basis. Dr. Feldman testified that respondent refused to

speak with him unless an attorney or patient advocate is present, but acknowledged that the

certificate he signed reflects that he advised her that she did not have to speak with him and that

if she did speak with him, he could divulge any of that information in court. Dr. Feldman

reviewed the petition and respondent's current and prior hospital records and spoke with Hadsell,

respondent's husband, and HOS staff. He gained information about respondent's condition from

all of those sources. He relied upon all of this information in reaching his clinical conclusion that

respondent suffers from the serious mental illness of psychosis NOS, meaning psychosis not

otherwise specified.

¶ 10 Dr. Feldman further testified that respondent had a history of paranoia, agitation, and

delusions that people are plotting against her and stealing from her, and was currently

symptomatic. Hadsell informed him about respondent's delusions regarding her husband, which

started around December 2010, and also described an occasion when officers responded to a

domestic dispute at respondent's home, and respondent believed that the officers were actors.

Respondent's paranoid delusions include recent instances involving HOS staff and residents. For

example, HOS staff reported to him that respondent was worried that people there were spying

on her and plotting to take her identity, and she thought the facility's lights and smoke detectors

had cameras. Two days prior to the hearing, respondent stated that she wanted to file a police

report because she believed that CLH had stolen money from her. To Dr. Feldman, this indicated

that respondent was beginning to incorporate him and the hospital staff into her persecutory

delusions.

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¶ 11 Dr. Feldman further testified that HOS staff also reported to him that respondent had poor

hygiene and would routinely sit in her car for hours in extremely hot temperatures and would

refuse water. Such behavior, which could lead to heat stroke, indicated to him that respondent

was not thinking clearly; however, Dr. Feldman acknowledged that he did not know whether

respondent's car was being cooled by air conditioning on the days in question. Hadsell recently

told him that respondent has diabetes, but respondent was not allowing CLH staff to evaluate her

and treat her for that condition. Lack of proper treatment for diabetes can lead to serious health

issues. Respondent's hospital records reflect that she was treated for low potassium when she was

admitted at Centegra Hospital, and her level was raised to "low normal" after one dose of

treatment. Depending on the underlying cause for her low potassium, respondent might need

daily treatment to maintain proper levels and avoid potential complications such as cardiac

arrhythmia.

¶ 12 Dr. Feldman further testified that during her stay at CLH, respondent had been

cooperative, had eaten regularly, was drinking sufficient fluids, and did not appear underweight.

However, her hygiene was "not the best," and she had been isolative, paranoid, and delusional,

and had little insight into her situation and did not appear to believe that she is mentally ill. In his

opinion, respondent needed to be properly evaluated and treated for her medical and psychiatric

issues as a hospital inpatient, and she would not be able to care for herself or to obtain her own

shelter or medical care if she were to leave the hospital. At CLH, respondent was provided with

food and prompted to eat, but that would not be the case if she were discharged, which

concerned him. Dr. Feldman had considered less restrictive placement alternatives, but did not

believe that they would be appropriate for respondent, and thus he was seeking a 90-day

commitment order.

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¶ 13 Respondent testified that prior to being taken to CLH she was living at HOS, a

transitional facility where she did not pay rent. She was living there because her husband, who

was seeking to divorce her, closed their joint bank account and took the money that was in it, as

well as took her name off their joint credit cards. Respondent testified that she had access to

money in the form of approximately $3,000 in tax refunds that were being held for her at an

attorney's office. HOS did not provide meals, so she obtained her own food and ate three meals a

day while staying there. Her belongings and car were still at HOS. When asked where she

planned to live upon leaving the hospital, respondent testified that she assumed she could return

to HOS, that she was never asked to leave that facility, had never caused a problem there, and

that the contents of a petition that was filed by HOS staff were hearsay.

¶ 14 Respondent further testified that she had not been in a mental health facility prior to her

admission to Centegra and CLH. She underwent two voluntary psychiatric evaluations, one in

2011 and one in 2012, and was "cleared" and deemed to not pose a danger to anyone. Upon

being asked whether she would see a medical doctor upon leaving the hospital, respondent stated

that she had never had a problem seeing a medical doctor and had seen emergency room doctors

four times throughout 2011 and 2012 to treat a urinary tract infection. She further testified that

during those visits, her blood, urine and vitals were analyzed and aside from the urinary tract

infection, everything "checked out okay," and "there was no diabetes." On cross-examination,

respondent testified that the home she had shared with her husband was a subject of dispute in

their divorce proceedings. When asked if there were any outstanding orders that would prevent

her from returning to that residence, respondent stated that "it is part of a motion." Respondent

acknowledged that HOS staff cooperated in having her taken away from the facility.

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¶ 15 The trial court found that the State had met its burden by clear and convincing evidence,

and found that respondent was subject to involuntary admission on an inpatient basis due to her

mental illness. The court entered an order admitting respondent to CLH for a period not to

exceed 90 days. Respondent appeals from that order.

¶ 16 II. ANALYSIS

¶ 17 A. Mootness

¶ 18 Before reaching respondent's substantive arguments, we must first address the issue of

mootness. In general, Illinois courts do not decide moot questions, render advisory opinions, or

consider issues where the result will not be affected regardless of how the issues are decided. In

re Alfred H.H.,

(2009). However, our supreme court has recognized the

following three mootness exceptions that may apply in certain cases: (1) the public interest

exception, (2) the capable of repetition yet evading review exception, and (3) the collateral

consequences exception.

.

¶ 19 Respondent concedes that her appeal is moot because the 90-day commitment order at

issue has expired. See In re Rita P.,

. She maintains, however, that all three

of the above-mentioned mootness exceptions apply in this case. The State contends that none of

the mootness exceptions apply and therefore this appeal must be dismissed. For reasons

discussed below, we find that the collateral consequences exception applies in this case and,

accordingly, need not address whether the public interest or capable of repetition yet evading

review exception is also applicable here.

¶ 20 The collateral consequences exception applies where a plaintiff has suffered or is

threatened with an actual injury traceable to the defendant and likely to be redressed by a

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favorable judicial decision. In re Alfred H.H.,

. Its application is decided on a

case-by-case basis, and this exception does not automatically apply in situations where a

respondent has not had prior involuntary admissions. In re Rita P.,

.

¶ 21 Respondent maintains that the collateral consequences exception applies here because the

commitment order at issue could plague her in some future proceeding relating to her mental

health or to her divorce, as well as adversely affect her efforts to obtain employment or renew or

retain her driver's license. The State responds that respondent has not identified any negative

collateral consequences that stem from the commitment order but, rather, is merely relying upon

a presumption of significant consequences flowing from the trial court's order. The State also

maintains that, involuntary admission order aside, facts regarding respondent's mental health

history and diagnosis by Dr. Feldman would be admissible in future proceedings as they relate to

her credibility as a witness, and that her licensure rights are affected by her mental illness as

opposed to the involuntary commitment order. In short, the State argues that it is respondent's

mental illness diagnosis, and not her involuntary commitment, from which any collateral

consequences would stem.

¶ 22 The State's position essentially leads to the conclusion that the collateral consequences

exception to the mootness doctrine is inapplicable in mental health cases in general, as the

original diagnosis of mental illness will always follow the respondent in question. This

reasoning, however, is the same which was relied upon by the appellate court in In re Alfred

H.H.,

(2008), and which was subsequently rejected by the supreme

court on appeal in that same case (In re Alfred H.H.,

). In doing so, the

supreme court positively cited numerous cases in which the collateral consequences exception

was found to apply in mental health cases.

at 362 (citing In re Splett,

, 228

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(1991) (applying the exception because collateral consequences related to the stigma of an

involuntary admission may confront respondent in the future), In re Hays,

(1984) (finding review appropriate because the character of an involuntary commitment has been

held to be of sufficient significance to permit the invoking of the collateral consequences

exception), In re Alex T.,

(2007) (applying the collateral consequences

exception in mental health case involving an involuntary admission order), and In re Sciara,

(1974) (same)).

¶ 23 Recently, in In re Rita P., the supreme court reiterated that the collateral consequences

exception is applicable to mental health cases and underscored that its application is decided on a

case-by-case basis. In re Rita P.,

. The court also expressly held that

the collateral consequences exception did not automatically apply in cases, such as the one at

bar, involving a first involuntary admission order, and that its application cannot rest upon vague

unsupported statements that collateral consequences might plague the respondent in the future. In

re Rita P.,

.

¶ 24 With these guiding principles in mind, we observe that here, respondent has identified

numerous collateral consequences which she believes stem solely from her involuntary

admission, some of which admittedly could be categorized as vague and/or unsupported. For

example, respondent maintains that her involuntary admission could "plague her" in future

proceedings relating to her pending divorce, but she does not offer any specifics in support of

this general argument. That said, respondent also argues that the involuntary admission order

will affect her ability to retain or renew her driver's license. Respondent points out that, pursuant

to the Illinois Vehicle Code, although the Secretary of State would only be able to deny the

renewal or retention of a person's driver's license if there is good cause to believe that person

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would not be able to operate a vehicle safely due to a mental disability, such renewal or retention

would not be allowed at all in cases where a person had been adjudged to be afflicted with or

suffering from a mental disability. 625 ILCS 5/6-103(5), (8) (West 2012).

¶ 25 Here, the record shows that respondent was previously employed as a substitute mail

carrier and as a driver for Walmart and that she is currently seeking employment. The record also

shows that respondent has a car at her disposal. We are thus presented with a situation where,

pursuant to the provisions of the Illinois Vehicle Code, respondent's ability to seek employment

similar to that she has held in the past would be negatively impacted by the involuntary

admission order in a way that differs from the impact caused solely by her mental diagnosis. 625

ILCS 5/6-103(5), (8) (West 2012). We thus find that, based on a case-by-case analysis of the

particular facts and circumstances of this case, the collateral consequences exception applies here

and we will address the merits of defendant's substantive arguments.

¶ 26 B. Sufficiency of the Evidence

¶ 27 On appeal, respondent raises the following issues: (1) whether the trial court failed to

comply with section 3-805 of the Mental Health Code (405 ILCS 5/3-805 (West 2012)) by

applying an impermissible standard in denying her request to represent herself, (2) whether the

trial court abused its discretion in denying her request to represent herself, and (3) whether the

evidence presented at the commitment hearing was sufficient to support the commitment order.

We note that respondent has argued these issues extensively in her brief, but that the State has

failed to respond to or address them in any way in its brief. Accordingly, the State has essentially

conceded these issues on appeal. Macknin v. Macknin,

(2010); Two

Hundred Nine Lake Shore Drive Building Corp. v. City of Chicago,

(1971);

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see also Plooy v. Paryani,

(1995) (noting that an appellee who fails

to address arguments in its brief should be treated as though it had not filed a brief at all).

¶ 28 Notwithstanding the State's failure to respond, our consideration of the merits of

respondent's arguments reveals that the commitment order at issue must be reversed because it

was not supported by clear and convincing evidence. Given our disposition on respondent's

sufficiency of the evidence argument, we need not address the other two arguments she raises on

appeal.

¶ 29 Respondent argues that the commitment order in this case was not supported by clear and

convincing evidence that she was unable to provide for her basic physical needs. A trial court's

decision to enter an involuntary commitment order will not be overturned on review unless it is

against the manifest weight of the evidence. In re Jakush,

(2000). A

judgment is considered against the manifest weight of the evidence only when an opposite

conclusion is apparent or when the findings appear to be unreasonable, arbitrary, or not based on

the evidence.

¶ 30 The State must prove the basis for involuntary commitment by clear and convincing

evidence.

Here, the State's petition to involuntarily commit respondent was based on section

1-119(2) of the Mental Health Code, which provides that a person subject to involuntary

admission on an inpatient basis means, inter alia, a person with a mental illness who, due to that

illness, is unable to provide for her basic physical needs so as to guard herself from serious harm

without the assistance of family or others, unless treated on an inpatient basis. 405 ILCS 5/1-

119(2) (West 2012). Respondent does not contest the sufficiency of the evidence to establish that

she is mentally ill.

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¶ 31 Factors to be considered in determining whether respondent can provide for her basic

physical needs include whether she (1) can obtain her own food, medical care, or shelter, (2) has

a place to live or a family to assist her, (3) is able to function in society, and (4) has an

understanding of money or a concern for it as a means of sustenance. In re Shirley M.,

(2006).

¶ 32 Here, respondent testified that while staying at HOS, she regularly ate three meals a day.

No evidence was presented to contradict that assertion. Nevertheless, Dr. Feldman testified that

although respondent did not appear to be underweight and ate regularly while at CLH, he was

concerned about whether she would eat regularly upon being discharged from the hospital. He

provided no reason for that opinion however. The weight to be accorded to an expert's opinion

depends on the factual basis for that opinion, given that the opinion's validity hinges on the

reasons for it (In re Winters,

(1994)), and here, Dr. Feldman's opinion

regarding respondent's ability to obtain her own food does not appear to be based upon facts.

Accordingly, it does not weigh in favor of involuntary commitment.

¶ 33 The same can be said about Dr. Feldman's opinion that respondent would not be able to

obtain her own medical care. In particular, Dr. Feldman expressed concern regarding potential

ramifications of untreated diabetes, as well as respondent's potassium levels. However, no

evidence was presented that respondent currently suffered from diabetes. Dr. Feldman testified

that Hadsell informed him that respondent suffered from diabetes. In turn, Hadsell testified that

approximately four or five years prior to the commitment hearing, respondent told her that she

was taking medication for diabetes. However, at the commitment hearing respondent testified

that throughout 2011 and 2012, she visited a doctor on four occasions in order to treat a urinary

tract infection and that during those visits she underwent tests that revealed that she no longer

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exhibited any signs of diabetes and that aside from the urinary tract infection, she had no medical

concerns. Additionally, although Dr. Feldman testified that upon arrival at Centegra Hospital on

July 15, 2012, respondent's potassium level was low, he further testified that after medical staff

administered one dose of treatment, her potassium was raised to "low normal." Notably, Dr.

Feldman made no mention of any documented concerns by Centegra staff about respondent

exhibiting symptoms of diabetes.

¶ 34 Further, although Dr. Feldman testified that HOS staff informed him that respondent sat

in her car on extremely hot days and refused water, which he believed could lead to heat stroke,

he acknowledged that he did not know whether the air conditioning was on in the car during that

time, and no evidence was presented regarding whether respondent seemed to be in any physical

distress on those occasions. We find that the evidence presented showed that that respondent

sought and obtained her own medical care while living on her own, and that no evidence was

presented that at the time of her admission to CLH, respondent had low potassium levels or

needed treatment for diabetes. We thus find that Dr. Feldman's opinion that respondent would be

unable to obtain her own medical care upon discharge from CLH was not based on the evidence,

and, as such, does not weigh in favor of involuntary commitment.

¶ 35 Dr. Feldman also opined that he did not believe that respondent would be able to obtain

her own shelter. The evidence presented does show that it is unclear where respondent would

live upon discharge from CLH. Hadsell testified that respondent could not live with her, and no

evidence was presented that respondent's father, who had welcomed respondent into his home in

the past, would do so again. Respondent testified that she planned to return to HOS, if allowed to

do so. However, as the State points out, HOS staff cooperated in having respondent removed

from the facility, and thus it is questionable whether respondent would be allowed to return

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there. That said, as noted in respondent's brief, not having a place to live is not reason to confine

a person in a mental health facility. O'Connor v. Donaldson,

(1975). We also

observe that it has been held that a person is free to live on the street if she chooses to do so. In

re Long,

(1992). Accordingly, this factor also weighs against

involuntary commitment. In re Winters,

.

¶ 36 In relation to respondent's ability to function in society, Dr. Feldman testified that HOS

staff reported that respondent believed that staff and residents at that facility were plotting

against her. These delusions, however, were the basis for finding that respondent suffered from a

mental illness, and mental illness alone is insufficient to support involuntary admission. In re

Jakush,

. Doctor Feldman also testified that respondent refused to speak to

him without the presence of an attorney or patient advocate, we do not find that this indicates

that respondent would be unable to function in society or to care for herself. We note that Dr.

Feldman acknowledged that the certificate he signed reflects that he advised respondent that she

did not have to speak with him, and that if she did speak with him, he would be able to divulge

that information in court. In light of this written admonishment, we do not find respondent's

reluctance to speak with Dr. Feldman to be unreasonable. In re Rovelstad,

(1996).

¶ 37 Additionally, although the petition reflects that HOS residents were "scared" of

respondent, no evidence was presented that respondent engaged in any acts of violence or

aggression against HOS staff and residents. We find that although respondent may have

difficulties functioning in society due to her mental illness, little factual support was presented

that she would be unable to guard herself against physical harm. In re Tuman,

(1994).

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¶ 38 Dr. Feldman did not provide an opinion regarding respondent's understanding of money.

Respondent testified that her husband removed her name from their joint checking account and

credit cards and that, due to this financial situation, she was living at HOS and representing

herself in her divorce proceedings. We find that this testimony reflects that respondent

understood the value of money and was taking active measures to conserve resources until her

divorce proceedings were resolved. Further, although providing evidence of a "visible means of

support" is not a requirement (In re Jakush,

), we note that respondent

testified that approximately $3,000 in tax refunds were being held for her by an attorney, and the

record reflects that she had the means by which to maintain possession of her car while she was

living at HOS. Under these circumstances, we find that the respondent had an understanding of

money and a concern for it as a means of sustenance, and, accordingly, this factor does not weigh

in favor of involuntary commitment.

¶ 39 III. CONCLUSION

¶ 40 In sum, we find that the State failed to establish by clear and convincing evidence that

respondent was unable to meet her basic physical needs so as to guard herself from serious harm.

. We therefore find that the trial court's order of involuntary commitment was against

the manifest weight of the evidence and reverse the judgment of the circuit court of Cook

County.

¶ 41 Reversed.

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