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07/27/95 MATTER COLLEEN CARMODY v. COLLEEN CARMODY

July 27, 1995

IN THE MATTER OF COLLEEN CARMODY, A PERSON SUBJECT TO INVOLUNTARY ADMISSION, THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
COLLEEN CARMODY, RESPONDENT-APPELLANT.



Appeal from Circuit Court of Champaign County. No. 93M29. Honorable Ann A. Einhorn, Judge Presiding.

As Corrected August 28, 1995.

Honorable Robert J. Steigmann, J., Honorable James A. Knecht, P.j., Honorable Frederick S. Green, J., Concurring

The opinion of the court was delivered by: Steigmann

JUSTICE STEIGMANN delivered the opinion of the court:

In September 1993, the trial court found respondent, Colleen Carmody, Ph.D., subject to involuntary admission to a mental health facility. Respondent appeals, arguing that (1) the medical certificates supporting the trial court's commitment order were deficient, (2) the trial court failed to conduct the commitment hearing within five business days from the date the petition was filed, (3) the State failed to prove by clear and convincing evidence that she was subject to involuntary commitment, (4) the trial court erred in ordering the involuntary administration of psychotropic medication, (5) she received ineffective assistance of counsel, and (6) she was confined beyond the trial court's commitment order.

We affirm in part and reverse and vacate in part.

I. BACKGROUND

On September 1, 1993, respondent's brother filed a petition for respondent's continued involuntary admission to a mental health facility. (See 405 ILCS 5/3-813 (West 1992).) On September 9, 1993, the trial court conducted a hearing on that petition. Before the hearing, the court appointed the public defender to serve as respondent's guardian ad litem (GAL). However, immediately before the hearing began, respondent's privately retained counsel filed her appearance as well; nonetheless, the trial court did not dismiss the GAL. At the hearing, respondent's brother, respondent's treating psychiatrist, and respondent herself testified. After hearing the evidence and considering the arguments of counsel, the trial court found respondent subject to continued involuntary admission. Thereafter, the State requested the court to order respondent to submit to laboratory testing and to the involuntary administration of psychotropic medication. After considering further testimony from respondent's psychiatrist, the trial court granted the State's motion in full.

II. ANALYSIS

A. Sufficiency of the Medical Certificates Accompanying the Petition for Involuntary Admission

Respondent first argues that the trial court's commitment order must be reversed because (1) the record does not demonstrate that the medical certificates accompanying the petition for involuntary admission were attached to the petition at the time it was filed, (2) the identity of the physician who signed the first certificate could not be determined, and (3) respondent's privately retained counsel was not present when the trial court examined these certificates at the beginning of the hearing.

Sections 3-602 and 3-610 of the Mental Health and Developmental Disabilities Code (Code) require two certificates be filed with the trial court prior to the hearing in support of the petition for involuntary commitment. (405 ILCS 5/3-602, 3-610 (West 1992).) At the beginning of the hearing, the trial court reviewed the petition and its two accompanying certificates. The State also calls our attention to the common law record, which includes the petition and certificates. The State argues that the petition and certificates were originally stapled together, and the staple was subsequently removed. According to the State, because the documents were stapled together at the time they were filed, the circuit clerk only file stamped the top document, the petition itself. The State specifically notes that each document has similar holes at the upper left corner of the page, which it contends are from the original staple.

We reject respondent's argument without addressing the State's hypothesis. The trial court examined the petition and certificates at the beginning of the hearing and did not note any irregularity. We conclude that the record fails to support respondent's claimed error.

Respondent also contends that the trial court erred by conducting the examination of the petition and certificates before her privately retained counsel arrived for the hearing. However, the trial court had previously appointed the public defender as respondent's GAL, and the GAL was present during the court's review of the petition and certificates. The GAL was, of course, responsible for protecting respondent's interests and fully represented respondent at that time. We further note that when the trial court reviewed the petition and certificates, respondent's retained counsel had not yet filed an appearance in this case. Accordingly, we also reject respondent's contention that the trial court erred in reviewing these documents in the absence of her retained counsel.

Respondent also claims that one of the certificates was insufficient because the doctor's signature was illegible. Respondent points to no authority supporting her contention, we know of none, and we will not create such a rule now.

B. Timeliness of the Commitment Hearing

Respondent next argues that the trial court erred because it did not hold the commitment hearing within five business days of the date the petition for involuntary admission was filed. (See 405 ILCS 5/3-611 (West 1992).) Although the State initially conceded this argument, this court has previously rejected the State's concession, explaining as follows in an order directing further briefing:

"The Statute on Statutes (5 ILCS 70/1.11 (West 1992)) provides that 'the time within which any act provided by law is to be done shall be computed by excluding the first day ***.' In this case, since September 1 is the first day it must be excluded. Also excluded are Saturday through Monday, September 4 through 6, 1993, inclusive, which constituted the weekend and the Labor Day holiday. [Citation.] For that reason, the hearing on [September] 9 occurred on the fifth day." (Emphasis in original.)

Accordingly, this court has already addressed and resolved this argument ...


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