In re Moore

Fourth Division
September 30, 1997

No. 1-97-0283

IN RE DENICE MOORE ) APPEAL FROM THE
THE PEOPLE OF THE STATE OF ILLINOIS, ) CIRCUIT COURT OF
) COOK COUNTY.
Petitioner-Appellee, )
)
v. )
)
DENICE MOORE, ) HONORABLE
) RAYMOND L. JAGIELSKI,
Respondent-Appellant. ) JUDGE PRESIDING.


PRESIDING JUSTICE WOLFSON delivered the opinion of the court:

Respondent Denice Moore appeals from a December 10, 1996,
order of the circuit court involuntarily committing her to the
Illinois Department of Mental Health and Developmental
Disabilities. We reverse.
BACKROUND
On November 15, 1996, Maddix Moore petitioned the circuit
court for an order involuntarily committing his daughter to a
mental health facility. Therein, Moore alleged that immediate
hospitalization was necessary because respondent was mentally ill
and could be reasonably expected to inflict serious harm upon
herself or another in the near future. Moore further alleged that
respondent had been hospitalized on many prior occasions; that she
had threatened to kill him and her mother, Doris Moore; that she
physically assaulted her mother a few days earlier; that she
"[y]ells and curses;" that she "[w]alks around without proper
clothing;" that she has poor hygiene, and that she does not eat
properly and has lost weight.
An order of detention was entered by the circuit court that
same day, after which respondent was taken to Chicago Reed Mental
Health Center. There, she was examined by two psychiatrists, Drs.
Dang and Crisostomo.
Dang found respondent to be mentally ill and unable to provide
for her basic physical needs so as to guard herself from serious
harm. Dang specifically found respondent to be "acutely
psychotic," noting her disorientation, illogical thinking, and
absence from reality. It was Dang's opinion that respondent could
be reasonably expected to inflict serious harm upon herself or
another in the near future. Dang recommended that respondent be
involuntarily committed. Crisostomo reached the same conclusions
as Dang and also recommended respondent's involuntary commitment.
A commitment hearing was held on December 10, 1996. At that
hearing, psychiatrist Dr. Paule Philippe testified that she had
observed respondent during the week prior to the hearing and during
that time had become acquainted with respondent and had reviewed
respondent's records. Philippe also discussed respondent's care
with respondent's family and former psychiatrist. According to
Philippe, respondent's records chronicle 13 hospitalizations since
1981. They also describe respondent's most recent circumstances.
Respondent was living on the street for several days during the
winter, sleeping on porches; she was without a coat, shoes or
socks, and was not eating. Respondent's mother also told Philippe
that, in November, respondent stopped eating for a few days until
she became so hungry that she began begging for food. However,
when food was given to her, she became agitated and began to
scream, at which time she was arrested and jailed. Philippe was
further informed that when respondent would receive money, she
would secure lodging in a hotel until her money ran out, then
return to the street.
Based upon this information and her own independent
examinations of respondent, Philippe diagnosed respondent as
suffering from psycho-affective disorder. According to Philippe,
respondent is "out of touch with reality," "incoherent," subject to
moods swings and, at times, "very depressed." Philippe further
testified that respondent is psychotic with paranoid delusions that
"everybody is after her." It was also Philippe's opinion that
respondent was unable to provide for her basic needs, and that a
less restrictive alternative to hospitalization was not viable
because respondent could not "take care of herself outside."
Philippe further stated that respondent needed in-patient
treatment.
A treatment plan for respondent was then introduced into
evidence.
On cross-examination, Philippe conceded that what constitutes
"taking care of one's self" is a debatable issue, and that while
some may see a homeless person as someone unable to care for
himself, others may see that person as resourceful. Philippe
further conceded that respondent did not use the money she received
for drugs or alcohol, but for shelter. Philippe also agreed that
if one is hungry, the proper response is to ask for food.
The circuit court then listened to closing arguments on the
issue of respondent's inability to provide for her basic physical
needs, after which it found respondent subject to involuntary
commitment. According to the circuit court, respondent was proved
to be mentally ill and unable to provide for her basic physical
needs. This appeal followed.
DECISION
The State proved respondent is mentally ill. The State also
proved that because of her illness Denice Moore is unable to
provide for her physical needs so as to guard herself from serious
harm.
A person is subject to involuntary commitment under section
1-119(2) of the Mental Health Code when those allegations are made
and proved by clear and convincing evidence. 405 ILCS 5/1 (1996).
The problem here is that the State never alleged section
1-119(2). The State alleged section 1-119(1), which provides for
involuntary commitment of "A person with mental illness and who
because of his or her illness is reasonably expected to inflict
serious harm upon himself of herself or another in the near
future." Everyone agrees the State did not even attempt to prove
the respondent comes within section 1-119(1). Nor did the State
ever attempt to amend its pleadings to conform to the proof.
The State relies on waiver. We do not see how the respondent
could have waived her right to be judged according to the
allegations of the pleadings. Issues are formed by pleadings.
Even in a routine civil case a party cannot recover after stating
one cause of action in a complaint and presenting a different one
by proof. Gaiser v. Village of Skokie, 271 Ill. App. 3d 85, 92,
548 N.E.2d 205, 211 (1995).
This is not a routine civil case. Custodial confinement is a
serious deprivation of individual liberty. See O'Connor v.
Donaldson, 422 U.S. 563, 45 L. Ed. 2d 396, 95 S. Ct. 2486 (1975).
The Mental Health Code reflects the public interest in not
subjecting a person to unjustified confinement. People v. Sansone,
18 Ill. App. 3d 315, 323, 309 N.E.2d 733, 739 (1974). The two
section 1-119 definitions of a person subject to involuntary
commitment are separate and distinct. We are not willing to say
proof of one is proof of another.
It is not our function to correct the State's pleading errors.
If we do that, we are authorizing the State to engage in the
careless handling of a person's individual liberty.
It very well could be that Denice Moore should be confined for
treatment. But it has to be done according to law. Because we do
not believe that happened in this case, we reverse the trial

court's order of involuntary commitment.
REVERSED.
BURKE, J., concurs.
CERDA, J., dissents.
Justice Cerda, dissenting.
The circuit court did not find respondent subject to
involuntary commitment on the alleged basis, but on the unalleged
basis that she was mentally ill and unable to provide for her basic
physical needs so as to guard herself from serious harm. Although
that finding by the circuit court was not based upon the pleadings,
the absence of such pleadings may be waived by an opposing party's
conduct at trial. Pioneer Trust and Savings Bank v. County of
Cook, 71 Ill. 2d 510, 518, 365 N.E.2d 913 (1978); Hemingway v.
Skinner Engineering Co., 117 Ill. App. 2d 452, 463, 254 N.E.2d 133
(1969); Hedrich v. Village of Niles, 112 Ill. App. 2d 68, 75, 250 N.E.2d 791 (1969); McKinney v. Nathan, 1 Ill. App. 2d 536, 543, 117 N.E.2d 886 (1954); Cont. Concrete Pipe v. Century Road Build, 195
Ill. App 3d 1,14, 552 N.E.2d 1032 (1990).
I believe that respondent waived the failure to specifically
plead that she was mentally ill and unable to provide for her basic
physical needs so as to guard herself from serious harm by her
conduct at the commitment hearing. At that hearing, respondent not
only proceeded without objection, but also maintained throughout
that her inability to provide for her basic physical needs so as to
guard herself from serious harm was not proved by clear and
convincing evidence. Under such circumstances, respondent should
not now be heard to complain as she does. Pioneer Trust and
Savings Bank, 71 Ill. 2d at 518; McKinney, 1 Ill. App. 2d at 543-
45; see In re Nau, 153 Ill. 2d 406, 607 N.E.2d 134 (1992).
I also believe that unless the respondent is committed and
receives treatment, she is reasonably expected to inflict serious
harm upon herself in the future, based upon the record. There is
no question that respondent is mentally ill and in need of
treatment.
Respondent contends that her inability to provide for her
basic physical needs so as to guard herself from serious harm was
not proved by clear and convincing evidence.[fn1]
As stated by this court in In re Ingersoll, 188 Ill. App. 3d
364, 544 N.E.2d 409 (1989):
"An individual is subject to involuntary
admission if the State establishes by clear
and convincing evidence that a person is
mentally ill and, because of that illness, she
is unable to provide for her basic needs so as
to guard herself from serious harm. [Citation
omitted.] This illness must prevent her from
caring for her basic physical needs by
substantially impairing her thought process,
perception of reality, emotional stability,
judgment, behavior, or ability to cope with
life's ordinary demands." In re Ingersoll,
188 Ill. App. 3d at 368.
Moreover, in determining whether an individual is unable to provide
for her basic physical needs, a circuit court should consider
certain factors, including whether that individual has the ability
to secure food, shelter and necessary medical attention; whether
that individual has a place to live or a family to assist her;
whether that individual is able to function in society; and whether
that individual has an understanding of money or a concern for it
as a means of sustenance. In re Rovelstad, 281 Ill. App. 3d 956,
968, 6667 N.E.2d 720 (1996); In re Tuman, 268 Ill. App. 3d 106,
112, 644 N.E.2d 56 (1994); In re Winters, 255 Ill. App. 3d 605,
609, 627 N.E.2d 410 (1994); In re Long, 237 Ill. App. 3d 105, 110,
606 N.E.2d 1259 (1992). However, a circuit court need not wait
until the inability of an individual to provide for her basic
physical needs manifests itself in actual harm before ordering
involuntary commitment. In re Carmody, 274 Ill. App. 3d 46, 50,
653 N.E.2d 977 (1995); In re Knapp, 231 Ill. App. 3d 917, 920, 596 N.E.2d 1171 (1992); In re Ingersoll, 188 Ill. App. 3d at 369.
A circuit court's decision to involuntarily commit an
individual is accorded great deference, and will not be disturbed
on appeal unless that decision is shown to be against the manifest
weight of the evidence. In re Long, 237 Ill. App. 3d at 109-10.
A decision is against the manifest weight of the evidence if the
record on appeal clearly establishes that a contrary decision was
the proper result. In re Knapp, 231 Ill. App. 3d at 919.
Here, Philippe testified that respondent's mental illness
prevents her from using good judgment in protecting herself, as
evidenced by her extended time outside barefoot and without a coat
during the wintertime. The evidence also indicated that, while
capable of securing a place to live temporarily, respondent does
not have an adequate understanding of money, for she does not
budget and consequently is unable to provide for her other basic
physical needs. Nor does the evidence indicate that respondent has
a family capable of providing assistance. See People v. Sharkey,
60 Ill. App. 3d 257, 265, 376 N.E.2d 464 (1978). It was further
shown that respondent does not function well in society, prone as
she is to mood swings, trespassing and public outbursts. Under
these circumstances, I cannot say that the circuit court's decision
to involuntarily commit respondent was against the manifest weight
of the evidence, and therefore would not disturb that decision.
LEAST RESTRICTIVE ALTERNATIVE
Respondent lastly contends that involuntary commitment was not
proved by clear and convincing evidence to be the least restrictive
alternative for treatment of her mental illness. According to
respondent, there was no evidence concerning the appropriateness of
other less restrictive alternatives, such as an intermediate care
facility or out-patient treatment.
Pursuant to section 3-811 of the Mental Health and
Developmental Disabilities Code:
"If any person is found subject to involuntary
admission, the court shall consider
alternative mental health facilities which are
appropriate to the respondent, including but
not limited to hospitalization. *** The court
shall order the least restrictive alternative
for treatment which is appropriate." 405 ILCS
5/3-811 (West 1996).
Here, Philippe testified that a less restrictive alternative
to hospitalization would be inappropriate because, in her opinion,
respondent cannot "take care of herself outside." Philippe also
stated that respondent would benefit from further hospitalization,
and that she "needs in-patient treatment." I believe that
testimony was sufficient to justify the hospitalization of
respondent. Moreover, I find respondent's insinuation that her
parents may be able to care for her is particularly unpersuasive in
light of the fact that her father prepared and signed the petition
seeking her commitment. Sharkey, 60 Ill. App. 3d at 265.
CONCLUSION
For the aforementioned reasons, I would affirm the order of
the circuit court.
[fn1] Respondent also contends that she was not proved by
clear and convincing evidence to be an individual reasonably
expected to inflict serious physical harm upon herself or another
in the near future. However, I need not reach this issue, for I
have already found that respondent was not tried nor involuntarily
committed on that basis.