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05/02/97 MATTER ARLETTA F. ROBINSON v. ARLETTA F.

May 2, 1997

IN THE MATTER OF ARLETTA F. ROBINSON, A PERSON FOUND SUBJECT TO INVOLUNTARY ADMISSION, THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
ARLETTA F. ROBINSON, A/K/A LONDA STRICKLAND, RESPONDENT-APPELLANT.



Appeal from Circuit Court of Vermilion County. No. 96MH28. Honorable Joseph C. Moore, Judge Presiding.

As Corrected September 16, 1997.

Honorable Frederick S. Green, J., Honorable James A. Knecht, J. - Concur, Honorable Robert W. Cook, J. - Concur. Justice Green delivered the opinion of the court.

The opinion of the court was delivered by: Green

JUSTICE GREEN delivered the opinion of the court:

On August 26, 1996, following a hearing in the circuit court of Vermilion County, the court entered two separate orders (1) finding that respondent, Arletta F. Robinson, was in need of involuntary admission to the Department of Mental Health and Developmental Disabilities at the George A. Zeller Mental Health Center (Zeller) (405 ILCS 5/3-700 (West 1994)), and (2) directing the staff at Zeller to administer psychotropic medication to her (405 ILCS 5/2-107.1 (West Supp. 1995)). Respondent appeals, contending (1) certain defects in the State's petitions for involuntary commitment and administration of psychotropic medication, and the single proceeding held thereon, violated her procedural due process rights; (2) she was denied effective assistance of counsel; and (3) the evidence was insufficient to support the court's order directing involuntary commitment and administration of psychotropic medication.

We affirm in part and reverse in part.

Respondent's procedural due process claims concern violations of the statutes that govern (1) proceedings on a petition for administration of psychotropic medication (405 ILCS 5/2-107.1(a)(1), (a)(2) (West Supp. 1995)) and (2) proceedings on a petition for involuntary commitment (405 ILCS 5/3-601, 3-609 (West 1994)). The State concedes that all statutory violations as alleged by respondent have occurred but claims those errors should be deemed waived as respondent failed to object at the hearing, no prejudice had resulted, and there had been substantial compliance with the appropriate provisions of the Mental Health and Developmental Disabilities Code (Code) (405 ILCS 5/1-100 et seq. (West 1994)). As we will discuss, we decline to apply the waiver doctrine to issues concerning the petition for administration of psychotropic medication and the hearing held on that petition. As to issues concerning the petition for involuntary commitment, we apply the waiver doctrine.

The statutory provisions governing petitions for administration of psychotropic medication at issue here state as follows:

"(1) Any person 18 years of age or older, including any guardian, may petition the circuit court for an order authorizing the administration of psychotropic medication to a recipient of services. The petitioner shall deliver a copy of the petition, and notice of the time and place of the hearing, to the respondent, his or her attorney, and the guardian, if any, no later than 10 days prior to the date of the hearing. The petition may include a request that the court authorize such testing and procedures as may be essential for the safe and effective administration of the psychotropic medication sought to be administered, but only where the petition sets forth the specific testing and procedures sought to be administered.

(2) The court shall hold a hearing within 14 days of the filing of the petition. Continuances totaling not more than 14 days may be granted to the recipient upon a showing that the continuances are needed in order to prepare adequately for a hearing under this Section. The court may, in its discretion, grant additional continuances if agreed to by all parties. The hearing shall be separate from a judicial proceeding held to determine whether a person is subject to involuntary admission. " (Emphasis added.) 405 ILCS 5/2-107.1(a)(1), (a)(2) (West Supp. 1995).

Here, there is no dispute that respondent did not receive a copy of the petition for administration of psychotropic medication or notice of hearing 10 days prior to the date of the hearing as the petition was filed on August 26, 1996, the day of the hearing originally set for the petition for involuntary commitment. The August 26, 1996, hearing proceeded on both the petitions for involuntary commitment and administration of psychotropic medication. Thus, respondent did not receive a "separate" hearing on the issue of administration of psychotropic medication.

The transcript of that hearing indicated respondent's appointed counsel announced he was ready for trial. Respondent never objected to the State's failure to serve her with a copy of the petition for administration of psychotropic medication or the notice of hearing and never objected to a single hearing held on the petitions for involuntary commitment and administration of psychotropic medication.

The State maintains that trial counsel's failure to object requires the application of the waiver doctrine when the record establishes no prejudice occurred by any of the procedural errors and there was substantial compliance with the Code. The State relies on a line of cases where the Supreme Court of Illinois has held that the trial court's failure to strictly comply with notice requirements in involuntary commitment proceedings did not require reversal where the respondent failed to object and the respondent had actual notice of the proceedings. In re Splett, 143 Ill. 2d 225, 231-32, 572 N.E.2d 883, 886, 157 Ill. Dec. 419 (1991); In re Nau, 153 Ill. 2d 406, 419-20, 607 N.E.2d 134, 140-41, 180 Ill. Dec. 240 (1992). In Splett, the respondent did not receive formal notice of hearing but was present at the hearing and was represented by counsel who actively presented a defense.

Subsequently, the supreme court similarly held that strict compliance with the requirement of a written predispositional report (Ill. Rev. Stat. 1989, ch. 91 1/2, par. 3-810) in involuntary commitment proceedings was unnecessary where the respondent failed to object to the lack thereof and the purpose of the requirement was substantially fulfilled by oral testimony. In re Robinson, 151 Ill. 2d 126, 134, 601 N.E.2d 712, 717, 176 Ill. Dec. 14 (1992). Most recently, the supreme court in In re C.E., 161 Ill. 2d 200, 225-27, 641 N.E.2d 345, 356-57, 204 Ill. Dec. 121 (1994), applied Splett in holding that the trial court's failure to strictly comply with notice requirements in proceedings to ...


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