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03/24/88 In Re Richard Eugene Elkow (the People of the State of

March 24, 1988



Illinois, Petitioner-Appellee, v.

Richard Eugene Elkow, Respondent-Appellant)

521 N.E.2d 290, 167 Ill. App. 3d 187, 118 Ill. Dec. 222 1988.IL.423

Appeal from the Circuit Court of Vermilion County; the Hon. Rita B. Garman, Judge, presiding.


JUSTICE KNECHT delivered the opinion of the court. McCULLOUGH and SPITZ, JJ., concur.


Respondent, Richard Elkow, challenges the judgment of the circuit court of Vermilion County finding him to be a person subject to involuntary admission pursuant to article VI, chapter 3 of the Mental Health and Developmental Disabilities Code (Code) (Ill. Rev. Stat. 1985, ch. 91 1/2, pars. 3-600 through 3-611). He raises several issues on appeal, contending the petition was untimely filed, the petition was untimely served upon him, counsel was not appointed in accordance with the statutory requirements, notice of hearing was defective, and he was denied the effective assistance of counsel.

Phyllis Cline, a social worker at the Veterans Administration Medical Center (medical center) in Danville, filed a petition in circuit court May 27, 1987, asserting respondent was mentally ill and could reasonably be expected to inflict serious physical harm upon himself or another in the near future. She asserted respondent was unable to provide for his basic physical needs so as to guard himself from serious harm, and he was in need of immediate admission for the prevention of such harm. Cline based her assertions on a report respondent started a fire in his kitchen May 25 which threatened the lives of other building residents. Officials reportedly broke down the apartment door, which was barricaded, after respondent refused to let anyone enter. The fire department extinguished the blaze. Cline's report stated respondent was found incoherent and delusional. He resisted attempts to remove him from the apartment. The petition described the squalid conditions in which respondent was found.

The petition, form document No. 79 -- MHDD -- 5, was entitled "Petition for Involuntary/Judicial Admission." Above the title, at the left margin were listed the following sections of the Code: "Ref.: Sections 3 -- 403, 3 -- 601, 3 -- 603, 3 -- 607, 3 -- 701, 3 -- 813, 4 -- 306, 4 -- 401, 4 -- 403, 4 -- 405, 4 -- 501, 4 -- 611." The section of the Code under which Cline sought respondent's commitment did not appear in the petition.

The petition also contained a printed paragraph, signed by Cline, stating she had explained to respondent the rights of admittee and rights of recipients forms and she had given him copies of each form. Below that paragraph is a handwritten statement signed by Cline:

"[Attempt] made to give patient copies of his rights but he refused to accept them or listen to explanation and turned his back, told me to leave. He asked that copies be given to the nurse sitting next to him and this was done."

Filed along with the petition on May 27, 1987, were certificates prepared by medical center staff psychiatrists Dr. Lisa Barcenilla, who examined respondent May 26 at 3 p.m., and Dr. Choon Yu, who examined respondent May 27 at 8 a.m. The doctors stated respondent was mentally ill, and as a result, he was reasonably expected to inflict serious physical harm on himself in the near future. Dr. Barcenilla's report reflected that at the time of the examination, respondent had just been treated at the surgical clinic for "infection and probable burns." A social history and treatment plan were also filed May 27.

Notice of hearing dated May 28, 1987, showed a hearing scheduled for May 29. The notice was served upon respondent and Cline May 28. A second notice, scheduling a hearing for June 2, 1987, was filed with the circuit clerk and served on respondent and Cline June 1, 1987. The record does not reflect the reason for rescheduling.

At the outset of the June 2 hearing, respondent asked who his attorney was and stated he had a right to an attorney. After the Judge asked him if he had an attorney, respondent stated he was qualified and would represent himself. The Judge appointed Gaye Garner, an assistant public defender, to represent respondent. The court gave respondent an opportunity to confer with counsel. Once ...

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