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November 16, 1994


Appeal from Circuit Court of Peoria County. No. 93MH227. Honorable Thomas Ebel, Judge Presiding.

Present - Honorable John T. Mccullough, Presiding Justice, Honorable Frederick S. Green, Justice, Honorable James A. Knecht, Justice

The opinion of the court was delivered by: Green

JUSTICE GREEN delivered the opinion of the court:

On August 25, 1993, following a hearing, the circuit court of Peoria County found respondent Judith Katz to be a person subject to involuntary admission to a mental health facility pursuant to section 1-119(2) of the Mental Health and Developmental Disabilities Code (Code) (405 ILCS 5/1-119(2) (West 1992)). The court ordered respondent be involuntarily admitted to the Department of Mental Health and Developmental Disabilities (Department) for a period not exceeding 180 days. (405 ILCS 5/3-813 (West 1992).) On December 7, 1993, prior to the expiration of the 180-day commitment period, respondent filed a petition for discharge from the Zeller Mental Health Center (Zeller) pursuant to section 3-900 of the Code (405 ILCS 5/3-900 (West 1992)).

On December 8, 1993, the circuit court entered an order denying respondent's petition for discharge. Respondent appeals, contending (1) the court erred in denying her petition for discharge when she presented an uncontroverted prima facie case for discharge and there was no evidence that hospitalization was the least restrictive treatment setting; (2) the court erred in denying her request for a continuance to obtain an independent examination by a medical expert; and (3) she received ineffective assistance of counsel. We hold that plaintiff failed to make a prima facie case for discharge but the court did err in denying her request in regard to an independent examination. We need not pass upon the effectiveness of counsel.

The nature of our Disposition in this case has been complicated because the record shows that respondent was discharged on February 23, 1994. As respondent did not establish even a prima facie case, we cannot hold that she was entitled to a discharge. On the other hand, we cannot uphold the order that was entered because we conclude she was entitled to the independent psychiatric examination which she was denied and which might have enabled her to prove she was entitled to a discharge. Normally, error of this nature would entitle a respondent to a new hearing but that would be a useless exercise after she has been discharged.

The State argues that we should dismiss the appeal as being moot because of the discharge. However, the mootness doctrine is ordinarily not applicable to proceeding under the Code but may be invoked only when dismissal (1) would not have the effect of eliminating an "entire class of cases from appellate review" and (2) would not leave "collateral legal consequences which survive the expiration of the order under review." (Emphasis added.) ( In re Wathan (1982), 104 Ill. App. 3d 64, 65, 432 N.E.2d 670, 671, 59 Ill. Dec. 884, citing In re Sciara (1974), 21 Ill. App. 3d 889, 316 N.E.2d 153; see also In re Thompson (1991), 215 Ill. App. 3d 986, 987-88, 575 N.E.2d 975, 976, 159 Ill. Dec. 168.) If appeal from denial of this petition for discharge be deemed moot because of respondent's discharge, then virtually all of the class of appeals from such orders would become moot before the appeal would likely be decided because admissions to hospitalization under section 3-900 of the Code expire after 180 days and few appeals can be decided within that time frame.

Accordingly, even though retrial of the petition for discharge would be useless, we cannot dismiss this appeal as moot. Rather, we reverse the order denying the petition for discharge and remand to the circuit court with directions to dismiss the then-pending petition for discharge as moot. In that way, any collateral consequences of the court's denial of the petition for discharge will be eliminated. Respondent will have spent an additional period in commitment, which might not have been necessary, but that is a direct, and not a collateral, consequence of the court's order. No way exists to restore that time to respondent, but she will be in the same position as if no petition for discharge had been filed.

We now turn to the merits of the appeal. The parties do not dispute that under the rule set down in In re Smoots (1989), 189 Ill. App. 3d 289, 291, 544 N.E.2d 1235, 1237, 136 Ill. Dec. 460, the procedure on a hearing on a petition pursuant to section 3-900 of the Code is as follows. First, the party seeking discharge (here respondent) has the burden of establishing a prima facie case for discharge. If that happens, the State then has the burden of proving by clear and convincing evidence that the petition for discharge should be denied. Here, respondent was her only witness and the State did not produce any evidence in opposition. Thus, the question presented is whether petitioner made a prima facie case for discharge.

Respondent testified that (1) if her petition was granted, she would return to her trailer; (2) she had an income with which she could support herself; (3) she would like to continue the hearing to consult with her attorney; (4) since she had been involuntarily committed at Zeller, the staff had been trying to discharge her but the "conditions for discharge keep going up and up and changing," so she filed the petition for discharge; (5) she admitted that she was unable to care for herself but she claimed that she was capable of hiring a care giver; (6) she had a care giver named "Marge Gosich"; and (7) she was not suicidal or dangerous.

At the hearing when respondent was admitted, the evidence indicated that because of respondent's psychosis, she was unwilling to be cared for by someone else. At the hearing on the petition for discharge, respondent did not testify that she was now willing to do so. Much of respondent's refusal to be cared for at the time of hearing on the petition for involuntary admission centered upon her obsession about a fictitious character named Dillon who she believed wanted to kill her. None of respondent's testimony at the discharge hearing indicated that problem had been resolved. Rather, respondent's pro se petition for discharge indicated respondent continued to have paranoid delusions about Dillon.

Respondent's contention that error resulted from the State's failure to present evidence that her commitment to Zeller was the least restrictive mode of treatment arises from the provision in section 3-810 of the Code, which requires that prior to granting a petition for involuntary admission, the court must consider a report describing the propriety of alternative treatment settings, a social investigation of the respondent, and a preliminary treatment plan. (405 ILCS 5/3-810 (West 1992).) As we later consider in more detail, section 3-901(b) of the Code, which concerns the procedure for hearings on petitions for discharge, states that article VIII of the Code (405 ILCS 5/3-800 through 3-820 (West 1992)), of which section 3-810 is a part, governs the procedure for hearings on petitions for discharge. (405 ILCS 5/3-901(b) (West 1992).) However, no express authority exists requiring the court hearing a discharge petition to consider section 3-810 matters when no prima facie case is made to support the discharge petition. To require such a report in the absence of a prima facie case would be contrary to the format described in Smoots.

The circuit court properly found that no prima facie case had been presented. That court was not required to consider any material described in section 3-810 of the Code. The record did not indicate that respondent was entitled to a discharge. Nevertheless, as we have indicated, we conclude respondent was entitled to an examination by an independent expert which might have made a difference in respondent's proof.

In respondent's petition, she did request that the court appoint a Dr. "Deors" from St. Mary's Hospital in Galesburg to examine her and asked for a continuance so that this might be accomplished. The circuit court refused. Article VIII of the Code is entitled "COURT HEARINGS," and ...

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