March 20, 2001

No. 2--00--0538

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE RAPP delivered the opinion of the court:

The respondent, Lawrence S., appeals from the entry of anorder of involuntary admission by the Lee County circuit court. 405 ILCS5/3--701 (West 1998). Respondent contends that the involuntary admission must bereversed because (1) the trial court allowed him to proceed pro sewithout inquiring into his capacity to make an informed waiver of his right tocounsel; (2) the trial court denied him the right to cross-examine the State'switnesses; (3) the State did not present clear and convincing evidence that hewas subject to involuntary admission; and (4) the State failed to present awritten predispositional report and failed to otherwise prove that inpatienthospitalization was the least restrictive treatment alternative.

Because we agree with respondent's second and fourthcontentions, we reverse.

On April 17, 2000, a petition seeking the involuntaryadmission of respondent to an Illinois mental health facility was filed in thecircuit court of Lee County. At that time, respondent was in the custody of theIllinois Department of Corrections (IDOC) at Dixon Correctional Center. Thepetition alleged that respondent was a person subject to involuntary judicialadmission, pursuant to the provisions of the Mental Health and DevelopmentalDisabilities Code (Mental Health Code)(405 ILCS 5/3--700 (West 1998)). Thepetition was accompanied by two certificates executed by a psychologist and thechief psychiatrist at the Dixon Correctional Center. In the certificates it wasopined that respondent is a person who is mentally ill, that because of hisillness he is reasonably expected to inflict serious physical harm on himself oranother in the near future, and that he is unable to provide for his basicphysical needs so as to guard himself from physical harm. The matter was set forhearing April 19, 2000.

At the April 19, 2000, hearing respondent's court-appointedcounsel informed the court that respondent wished to represent himself. Thefollowing exchange occurred:

"RESPONDENT'S COUNSEL: *** I've met with Mr. [S.] first at the Dixon Correctional Center and about two minutes ago and both times he made it quite clear he did not want me to represent him.

THE COURT: Is that correct, Mr. [S.], you don't want a lawyer?

                   MR. [S.]: I want to defend myself.

THE COURT: Okay. Alright, if there's something happens here that you don't understand, please tell me.

                   MR. [S.]: Yeah.

                   THE COURT: Thank you for coming [respondent's counsel]."

The State's first witness was Dr. Dobier, a licensed clinicalpsychologist from the Dixon Correctional Center. Dr. Dobier first met respondenton April 4, 2000, when respondent was transferred to Dixon Correctional Centerfrom Statesville Correctional Center. Respondent did not cooperate when Dr.Dobier attempted to interview him. Dr. Dobier said that she primarily relied onrespondent's records in assessing respondent's psychiatric condition. Dr. Dobierdiagnosed respondent as a schizophrenic, paranoid type.

Dr. Dobier explained that respondent has bizarre delusionsthat the State of Illinois has a satellite that is broadcasting laser beams tohim and inserting thoughts in his head. In a meeting with Dr. Dobier, respondenttold her that she was a state representative and it was her responsibility tohave the satellites turned off. Dr. Dobier opined that respondent is a danger tohimself or others and might cause others serious physical harm. Dr. Dobier basedher opinion on her review of respondent's IDOC master file, which indicatedrespondent had on three occasions attacked persons respondent believed wereinvolved in the conspiracy to have thoughts transmitted to his head. Dr. Dobiertestified that she was unable to ascertain whether respondent could take care ofhimself, and she did not know if respondent had any family members who couldassist him should he be released. It was Dr. Dobier's opinion that it wasnecessary to commit respondent to a mental health facility, and she was aware ofno less restrictive alternative.

The trial court asked Dr. Dobier when respondent was to bereleased from IDOC. The witness responded, "April 21, 2000." The trialcourt then asked the witness the offense for which respondent was confined. Thewitness answered that respondent was incarcerated on a parole violation for theoffense of burglary. At that point respondent interjected that he had originallybeen "put in there" for auto theft and snatching a purse from a12-year-old girl.

After being informed that the assistant State's Attorney hadno further questions of Dr. Dobier, the following exchange took place:

                   "THE COURT: Okay, thank you. You're excused.

ASSISTANT STATE'S ATTORNEY: Did you want to give him the opportunity --

                   THE COURT: No.

ASSISTANT STATE'S ATTORNEY: I would call Dr. Kowalkowski."

Dr. Kowalkowski, the chief psychiatrist at Dixon CorrectionalCenter, said that he had contact with respondent at Pontiac Correctional Centerwhen respondent was an inmate there in 1997 or 1998. At that time respondent wasdiagnosed with paranoid schizophrenia. Since respondent came to DixonCorrectional Center, Dr. Kowalkowski has had limited contact with respondent. Atthe first contact, respondent told Dr. Kowalkowski that he did not need anypsychiatric treatment and that he was not harmful to himself or others. On themorning of the hearing, Dr. Kowalkowski asked respondent what he planned to doupon discharge from IDOC. Respondent told Dr. Kowalkowski he did not wanttreatment and to get away from his cell door. According to Dr. Kowalkowski, adocument in respondent's master file indicates that respondent threatened hisparole officer.

Dr. Kowalkowski opined that respondent was currentlysuffering from paranoid schizophrenia. Dr. Kowalkowski opined further thatrespondent is a danger to himself and to others and has no insight into hischronic mental illness, which will impair his ability to take care of himself.Finally, Dr. Kowalkowski stated that it was his opinion that it was necessary tocommit respondent to a mental health facility and that to his knowledge therewere no less restrictive options.

When the assistant State's Attorney indicated he had nofurther questions of Dr. Kowalkowski, respondent asked Dr. Kowalkowski noquestions. The trial court did not ask respondent if he wished to cross-examinethe doctor. The State called no further witnesses.

Respondent testified that he was currently incarcerated for aparole violation. Respondent said that he never violated any parole agreementpremised on the mandatory attendance at outpatient mental health treatment.Respondent insisted that he had never been offered any outpatient mental healthtreatment and questioned how he could then be forced into a mental institution.Respondent said that he loved himself and had no interest in harming himself.Respondent also read a prepared statement denying the violation of his parole,asserting that he was not a threat to harm anyone, and maintaining that he couldtake care of himself.

The State briefly recalled Dr. Kowalkowski in rebuttal, andthen the trial court stated its findings and holdings. The trial court found:

"[T]he evidence indicates by clear and convincing standard that the respondent *** suffers from paranoia and schizophrenia. That he's in need of mental treatment, that he has refused mental treatment. That he's a danger to himself and to others and that he should be transferred to the Illinois Department of Mental Health."

The trial court entered an order admitting respondent"to the Illinois Department of Human Resources [sic], Division ofMental Health for an initial period not to exceed one hundred eighty (180) daysfor mental health treatment." The order also states that the trial courthad considered alternative mental health facilities. Respondent appeals fromthat order.

Although we find reversible error based on respondent'ssecond and fourth contentions, we will discuss respondent's waiver of his rightto counsel in order to aid the trial court on remand.

Respondent contends that the trial court's order forinvoluntary admission must be reversed because the trial court allowedrespondent to represent himself without first inquiring as to respondent'scapacity to make an informed waiver of his right to counsel. The State arguesthat, despite the trial court's failure to inquire into respondent's capacity towaive his right to counsel, reversal is not necessary because respondentsuffered no prejudice. We agree with the State.

The Mental Health Code affords all persons alleged to besubject to involuntary commitment a right to counsel. 405 ILCS 5/3--805 (West1998). The right to counsel can be waived by a respondent only if the court issatisfied that respondent has the capacity to make an informed waiver. 405 ILCS5/3--805 (West 1998). The trial court is obligated to determine whether arespondent has the capacity to make an informed waiver of counsel. 405 ILCS5/3--805 (West 1998). The determination of whether a respondent has the capacityto waive his or her right to counsel is within the discretion of the trialcourt. In re Denby, 273 Ill. App. 3d 287, 289 (1995).

In this case, the trial court clearly did not comply with therequirements of the Mental Health Code. We find In re Click, 196 Ill.App. 3d 413 (1990), instructive as to the type of inquiry a trial court shouldmake in determining whether a respondent has the capacity to waive his right tocounsel. In Click, the Fourth District found that the trial court didlittle to determine respondent's capacity to waive counsel where the inquiry waslimited to asking respondent if he wanted to represent himself. Click,196 Ill. App. 3d at 423. The Click court pointed out that the trial courtasked no questions concerning respondent's mental ability or intelligence or hisunderstanding of the basic purpose of counsel. Click, 196 Ill. App. 3d at423. We believe that these are the minimum inquiries the trial court is requiredto make of a respondent requesting to represent himself in proceedings pursuantto the Mental Health Code.

Accordingly, we conclude that the trial court erred when itdid not make an inquiry into respondent's capacity to waive his right to counselbefore allowing respondent to represent himself. However, reversal is notrequired on every occasion the trial court fails to inquire into respondent'scapacity before accepting a waiver of counsel; respondent must also sufferprejudice. Denby, 273 Ill. App. 3d at 291.

By accepting respondent's waiver of counsel and allowing himto proceed pro se, the trial court implicitly concluded respondenthad the capacity to waive a legal right. On appeal, the proper inquiry is notwhether respondent suffered prejudice during the hearing by proceeding withoutcounsel (litigants nearly always suffer prejudice when they proceed withoutcounsel), but whether respondent suffered prejudice from the court's failure toinquire as to his capacity. See In re Dennis D., 303 Ill. App. 3d 442,448-49 (1999). Accordingly, we must determine whether the record supports theconclusion that respondent had the capacity to waive a legal right.

Under Illinois law, adults are presumed competent to directtheir legal affairs. In re Phyllis P., 182 Ill. 2d 400, 401 (1998)."Underlying this presumption is the distinction between mental illness andthe specific decisional capacity to exercise or waive legal rights." PhyllisP., 182 Ill. 2d at 402.

When respondent took the stand on his own behalf, and beforebeginning his testimony, the following exchange occurred between respondent andthe trial court:

"THE COURT: Okay. Now, Mr. [S.], I am going to give you an opportunity to say whatever you want to say, okay. First tell us your name.

                   MR. S.: My name is [Mr. S.].

                   THE COURT: What's your birthday?

                   MR. S.: [states full date of birth].

THE COURT: Okay. Well, do you understand what we're here for?

                   MR. S.: Yes.

                   THE COURT: What are we here for?

MR. S.: The Illinois Department of Corrections is accusing me of not being capable of taking care of myself and not being capable to think for myself.

                   THE COURT: And what do they want to do, do you know?

MR. S.: The Illinois Department of Corrections is trying to admit me to a, to a mental institution of the United States after I'm released from their department of corrections.

                   THE COURT: That's right."

Although this inquiry was not specifically tailored to gleanwhether respondent understood the exact ramifications of waiving his right tocounsel, we believe it demonstrated that respondent had the capacity required towaive a legal right. See Phyllis P., 182 Ill. 2d at 402. We thereforehold that respondent was not prejudiced by the trial court's failure todetermine respondent's capacity before accepting his waiver of counsel.Accordingly, we find no abuse of discretion in allowing respondent to representhimself at the hearing.

Respondent's second contention is that the orderinvoluntarily committing him to a mental health facility must be reversedbecause he was denied the right to cross-examine the State's witnesses. TheState argues that reversal is not required in this case because respondent wasallowed to contradict Dr. Dobier's testimony and to testify on his own behalf.For the reasons that follow, we hold that the trial court's denial ofrespondent's right to cross-examination requires reversal.

Involuntary commitment hearings conducted pursuant to theMental Health Code are civil matters subject to the Civil Practice Law (735 ILCS5/2--101 et seq.(West 1998)). 405 ILCS 5/6--100 (West 1998). Thus,the constitutional rights to which a defendant in a criminal proceeding isentitled do not adhere to a respondent in a commitment hearing. However, oursupreme court has acknowledged that "[i]nvoluntary mental health servicesentail a 'massive curtailment of liberty.' " In re Barbara H., 183Ill. 2d 482, 496 (1998), quoting Vitek v. Jones, 445 U.S. 480, 491, 63 L.Ed. 2d 552, 564, 100 S. Ct. 1254, 1263 (1980). Because the State seeks tocurtail the respondent's liberty in an involuntary commitment hearing, theSupreme Court has held that procedural due process does guarantee certainprotections to civil commitment respondents. Vitek, 445 U.S. at 491-94,63 L. Ed. 2d at 563-65, 100 S. Ct. at 1262-64.

In Vitek, the Court identified, inter alia,the right to confront and to cross-examine witnesses called by the State, exceptupon an unarbitrary finding of good cause for not permitting suchcross-examination, as a minimum safeguard to which due process entitles arespondent in a commitment proceeding. Vitek, 445 U.S. at 494-96, 63 L.Ed. 2d at 565-67, 100 S. Ct. at 1264-65. Vitek makes clear that dueprocess affords the respondent at an involuntary commitment hearing some rightto cross-examine witnesses against him.

Nothing in the record of this case shows that respondent waseven made aware that he could ask questions of the State's witnesses. At worst,the record shows a deliberate denial of respondent's right to cross-examine and,at best, the neglect of what is a matter of right in all cases. We note that ifthe trial court had good cause for denying respondent cross-examination as ispermitted under Vitek, such as respondent's physical manifestation ofunwillingness or inability to perform cross-examination, it should have beenmade part of the record.

The State cites no authority for its position that reversalis not required in this case because respondent was allowed to contradict Dr.Dobier's testimony and allowed to testify on his own behalf. We fail to see howrespondent's contradiction of Dr. Dobier's testimony or the trial court'sallowing respondent to testify begins to replace the procedural safeguard ofcross-examination of the State's witnesses. We conclude that the trial court'sfailure to allow respondent to cross-examine the State's witnesses violatedrespondent's right to due process.

The reversal of the involuntary admission order is alsowarranted because the trial court failed to comply with section 3--810 of theMental Health Code, which states:

"Before disposition is determined, the facility director or such other person as the court may direct shall prepare a written report including information on the appropriateness and availability of alternative treatment settings, a social investigation of the respondent, a preliminary treatment plan, and any other information which the court may order. *** The treatment plan shall describe the respondent's problems and needs, the treatment goals, the proposed treatment methods, and a projected timetable for their attainment. If the respondent is found subject to involuntary admission, the court shall consider the report in determining an appropriate disposition." 405 ILCS 5/3-810 (West 1998).

The State concedes that the court did not consider apredispositional report prepared pursuant to section 3--810 in this case. TheState argues that the information the predispositional report is to contain wasprovided during the course of the testimony at the hearing and therefore therewas no error. We disagree.

The complete failure to comply with section 3--810 of theMental Health Code is reversible error. In re Watts, 250 Ill. App. 3d723, 727 (1993). However, in the absence of an objection from the respondent,oral testimony containing the information required by section 3--810 can be anadequate substitute for the predispositional report. In re Robinson, 151Ill. 2d 126, 134 (1992).

We have reviewed the testimony of the State's witnesses thatthe State argues conforms to the requirements of section 3--810 and find it tobe lacking. Dr. Dobier and Dr. Kowalkowski each opined that commitment to amental health facility was the least restrictive alternative, but neitherexplained the basis for her or his opinion nor mentioned any other alternativesthat were considered. There was simply no testimony about the appropriatenessand availability of alternative treatment settings or about a treatment plan forrespondent.

For the foregoing reasons, the order of the circuit court ofLee County is reversed. Because our decision to reverse is based on respondent'ssecond and fourth contentions, we need not fully address the remainingcontention raised by respondent. We do, however, note that the record supportsthe trial court's finding that defendant was currently a danger to himself andothers. It is unnecessary to remand the matter for a new hearing because theorder of involuntary admission has expired and the State can file a new petitionin the circuit court if it feels the respondent remains in need of involuntarycommitment. See Barbara H., 183 Ill. 2d at 498.

Reversed.

BOWMAN and BYRNE, JJ., concur.