Appeal from the Circuit Court of Cook County. No. 09 CoMH 3022 Honorable Alfred J. Paul, Judge Presiding. No. 09 CoMH 3099 Honorables Alfred J. Paul, Edward P. O'Brien Judges Presiding.
The opinion of the court was delivered by: Justice Lavin
JUSTICE LAVIN delivered the judgment of the court, with opinion.
Presiding Justice Gallagher and Justice Pucinski concurred in the judgment and opinion.
Following a trial in October 2009, the trial court ordered respondent Karen E. to be involuntarily committed to a mental health facility. Three days before trial, a hearing ensued at which the trial court ordered respondent to report to a mental health facility for examination. On appeal, respondent asserts the trial court erred by limiting her appointed counsel's participation at that hearing and by conducting the hearing off the record. We affirm.
The facts concerning respondent's mental illness are not at issue on appeal. The record generally indicates that respondent was diagnosed with schizoaffective disorder in 1991. As a result of her condition, respondent had been hospitalized on several occasions. In August 2009, respondent was released from a mental facility. When respondent initially returned home, she took her required medication but apparently stopped doing so shortly thereafter. Respondent also stopped taking care of the house, began spending more time by herself and stopped eating dinner with her husband John and their daughter. Respondent would not talk to her family.
On September 17, 2009, their daughter called John at work to report that respondent was "acting weird again." When John arrived home, respondent would not talk to him. He told her that she was "getting bad again," needed to talk to someone and needed to take her medicine. He also told her that she was reverting to the depression she had previously suffered from and that if she refused to do any of the required follow-up care, including taking her medicine and seeing a therapist, they would have to see a lawyer to obtain a separation. Respondent put on her jacket and shoes and left the house without identification or money. John's attempt to stop respondent and find out where she was going was unsuccessful. As a result, he reported her missing to the police. At 4 a.m. the next morning, the police called John after finding respondent and brought her home, but she refused to get out of the police car. She would not talk to John or look at him. The officers took respondent to the hospital, where she declined to cooperate with her psychiatrist's attempts to evaluate her. Respondent was also withdrawn, had no energy, refused the doctors' treatment plan, and would not talk with the staff or other patients. In addition, her treating psychiatrist believed that outside a structured environment, respondent did not know how to use the resources available to her and could not provide for her basic needs, including obtaining food and shelter for herself.
On September 21, 2009, a social worker filed an emergency petition for respondent's involuntary admission pursuant to section 3-600 of the Mental Health and Developmental Disabilities Code (the Code) (405 ILCS 5/3-600 (West 2008)), asserting that respondent was in need of immediate hospitalization (case No. 09 CoMH 3022). Attorney Laurel Spahn from Legal Advocacy Service of the Illinois Guardianship and Advocacy Commission was appointed as respondent's counsel. On September 28, 2009, John filed a petition for involuntary admission by court order pursuant to section 3-700 of the Code (405 ILCS 5/3-700 (West 2008)), rather than emergency admission, and asserted that respondent was in immediate need of hospitalization (case No. 09 CoMH 3099).
At a hearing before Judge Alfred J. Paul on September 28, 2009, the assistant State's Attorney (ASA) who had been pursuing the petition represented that the State had tried to find the officers who brought respondent to the hospital but were unsuccessful. As a result, the ASA moved to voluntarily dismiss the first petition and sought to "rewrit." Following argument, Judge Paul granted the motion to dismiss case No. 09 CoMH 3022 without prejudice over respondent's objection. The State then said it was "seeking to rewrit at this time" and had two witnesses. Spahn also asked to participate in the "writ." Apparently referring to the First District's decision in In re Nancy A., 344 Ill. App. 3d 540 (2003), Judge Paul indicated that no one was more familiar than him with the issue of whether Spahn could participate at this juncture because the appellate court had already considered a previous case in which Judge Paul had been confronted with this issue. In response to Spahn's request, Judge Paul stated as follows:
"THE COURT: The Court will allow you to participate. If [you] run the question by me, I will let you know whether or not, I will let you in, to ask any questions. Okay?
THE COURT REPORTER: Is this on the record or not? THE COURT: No, it's not on the record."
A discussion was then held off the record and the case was passed. When the case was recalled, the following colloquy ensued:
"MS. SPAHN: Your Honor, I would like to state, for the record, that I had no idea, this was not being transcribed, because there was a court reporter sitting here.
THE COURT: Well, that question was asked to me by the court reporter. And I said no. It's my discretion that this writ does not have to be recorded and taken down.
There is Appellate Court authority that gives me that decision. As a matter of fact, it was you and I [who] were involved in that.
MS. SPAHN: I did ask on the record at the end of the writ after [sic]. What happened on the writ, the State presented one witness. It was the respondent's husband. I asked to cross examine the witness, and you said you will ask me the questions, and I will see if they're appropriate to ask the witness. I presented you with some questions. You said they were not appropriate and did not ask them.
I asked to call as witnesses for the respondent Dr. Laba (phonetic spelling) who was present in court. I asked to call the respondent who was present in court. And those requests were denied.
THE COURT: Denied, right."
Spahn further stated that she had asked the court to certify certain questions for interlocutory appeal. Judge Paul responded that there was no question of law for which a difference of opinion needed to be resolved and that the court had the discretion to decide the manner in which the examination would go forward, including how many witnesses would testify, whether the hearing would be transcribed and whether respondent's attorney would be permitted to participate. The court added that traditionally, a respondent's attorney was not permitted to participate.
On the same day, Judge Paul entered a written "order of detention, examination, evaluation" in case No. 09 CoMH 3099. The form order stated that "[t]his matter coming to be heard on the Petition of John," the court finds that the "[s]ubject person is in need of detention and examination." Judge Paul checked the box requiring respondent to report to a mental health facility for examination within 72 hours but allowing respondent to remain in her place of residence until ...