In re R.T. , 2013 Ohio 4886 ( 2013 )

[Cite as In re R.T., 2013-Ohio-4886.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In the matter of: :
R.T., : No. 13AP-291
(P.C. No. MI-19885)
Respondent-Appellant. :
(REGULAR CALENDAR)
:
D E C I S I O N
Rendered on November 5, 2013
R.T., pro se.
J. Michael Evans, for Franklin County ADAMH Board.
APPEAL from the Franklin County Court of Common Pleas,
Probate Division
T. BRYANT, J.
{¶1} Respondent-appellant, R.T., appeals from a judgment of the Franklin
County Court of Common Pleas, Probate Division, overruling objections and adopting
the magistrate's reports and entries dated March 7 and March 14, 2013. Appellee,
Franklin County Alcohol, Drug Addiction and Mental Health Services Board ("ADAMH
Board"), filed a motion to dismiss. For the following reasons, we deny the motion to
dismiss, and affirm the trial court's decision.
{¶2} On February 28, 2013, Lora Ford, LSW, filed an affidavit of mental illness
regarding appellant pursuant to R.C. 5122.11.1 That day, an order of detention was filed
and appellant was taken to Riverside Methodist Hospital. On March 6, 2013, a hearing
was held on the affidavit of mental illness. On March 7, 2013, a magistrate's report and
entry was filed finding appellant to be a mentally ill person subject to hospitalization.
1
The facts are taken mostly from the trial court judgment entry.
No. 13AP-291 2
{¶3} On March 7, 2013, an application to authorize antipsychotic medication
was filed and a hearing was held on March 13, 2013. On March 14, 2013, a magistrate's
report and entry was filed authorizing the administration of antipsychotic medication to
appellant.
{¶4} Appellant filed a general objection to both the March 7 and March 14, 2013
magistrate's reports and entries. On March 28, 2013, the trial court held a hearing on
the objection and overruled the objection on March 29, 2013.
{¶5} Acting pro se, appellant filed a timely notice of appeal and raised the
following assignments of error:
I. The First assignment of error of the March 28th probate
court objection hearing decision is when the court made the
error of upholding the magistrate[']s decision.
II. The second assignment of error of the March 28th
probate court objection hearing decision is when the trial
court's decision was based upon inadmissible evidence.
III. The third assignment of error of the March 28th probate
court objection hearing decision is when [the] trial court
made the error by forcing medication on the appellant.
IV. The fourth assignment of error of the March 28th
probate court objection hearing decision is when the trial
court made the error by precluding appellant from
introducing evidence at her hearing, as guaranteed by
Revised [C]ode 5122.15.
{¶6} Preliminarily, we note that appellant was present for oral argument before
this court and has been released from the hospital and the matter appears to be moot.
"Actions are moot when ' "they involve no actual genuine, live controversy, the decision
of which can definitely affect existing legal relations." ' " In re K.W., 10th Dist. No.
06AP-943, 2007-Ohio-699, ¶ 8, quoting Lingo v. Ohio Cent. RR., Inc., 10th Dist. No.
05AP-206, 2006-Ohio-2268, ¶ 20, quoting Grove City v. Clark, 10th Dist. No. 01AP-
1369, 2002-Ohio-4549, ¶ 11. However, this matter is not moot. An adjudication by the
probate court of mental illness carries a stigma that can have a significant impact and
adverse consequences on the individual's life. In re Miller, 63 Ohio St.3d 99, 108
(1992), citing Addington v. Texas, 441 U.S. 418, 425-26 (1979). See also K.W.; In re
P.H., 10th Dist. No. 96APF12-1729 (July 10, 1997). Thus, we address the merits of her
appeal.
No. 13AP-291 3
{¶7} We also note that the brief appellant filed with this court is very difficult to
decipher and does not comply with App.R. 16 in many respects, including a lack of
reference to the places in the record where each error is reflected (App.R. 16(A)(3)), no
statement of the issues (App.R. 16(A)(4)), and the supporting argument does not clearly
specify the contentions pertaining to each assignment of error (App.R. 16(A)(7)). We
are free to disregard appellant's assignments of error under these circumstances. See
App.R. 12(A)(2). However, in the interest of justice, we will address what we discern to
be her assignments of error.
{¶8} By her first assignment of error, appellant contends that the trial court
erred in adopting the March 7, 2013, magistrate's report and entry because she alleges
that it was based on pending municipal court charges.
{¶9} When a person faces involuntary commitment to a mental hospital, "the
individual's right against involuntary confinement depriving him or her of liberty must
be balanced against the state's interest in committing those who are mentally ill." Miller
at 101. R.C. Chapter 5122 sets forth the procedures for committing a person to a mental
hospital. "When commitment is against a person's will, it is particularly important that
the statutory scheme be followed, so that the patient's due-process rights receive
adequate protection." Id.{¶10} Non-emergency hospitalization under R.C. Chapter 5122 is commenced
with the filing of an affidavit with the court setting forth specifics under R.C. 5122.01(B)
upon which the court's jurisdiction is based. The affidavit must contain facts sufficient
to indicate probable cause that an individual is a mentally ill person subject to
hospitalization by court order. R.C. 5122.01(B) sets forth the criteria defining
"[m]entally ill person subject to hospitalization by court order." The court must conduct
a hearing to determine whether the individual is a mentally ill person subject to
hospitalization. The statute provides a three-part definition of "mentally ill person
subject to hospitalization by court order," which the state must demonstrate to have a
person involuntarily committed. State v. Welch, 125 Ohio App.3d 49, 52 (11th
Dist.1997). R.C. 5122.01(A) provides the first two parts, as follows:
[1.] "Mental illness" means a substantial disorder of thought,
mood, perception, orientation, or memory that [2.] grossly
impairs judgment, behavior, capacity to recognize reality, or
ability to meet the ordinary demands of life.
No. 13AP-291 4
{¶11} The third part of the definition is found in R.C. 5122.01(B), and requires a
finding that the individual:
(1) Represents a substantial risk of physical harm to self as
manifested by evidence of threats of, or attempts at, suicide
or serious self-inflicted bodily harm;
(2) Represents a substantial risk of physical harm to others
as manifested by evidence of recent homicidal or other
violent behavior, evidence of recent threats that place
another in reasonable fear of violent behavior and serious
physical harm, or other evidence of present dangerousness;
(3) Represents a substantial and immediate risk of serious
physical impairment or injury to self as manifested by
evidence that the person is unable to provide for and is not
providing for the person's basic physical needs because of the
person's mental illness and that appropriate provision for
those needs cannot be made immediately available in the
community; or
(4) Would benefit from treatment in a hospital for the
person's mental illness and is in need of such treatment as
manifested by evidence of behavior that creates a grave and
imminent risk to substantial rights of others or the person.
{¶12} Thus, the state must prove that a defendant has a substantial mental
disorder, that the mental disorder grossly impairs his functioning, and the defendant
must be hospitalized for one of the four reasons provided in R.C. 5122.01(B). Each part
of the definition must be established by clear and convincing evidence. R.C. 5122.15(H).
"Clear and convincing evidence is that measure or degree of proof which is more than a
mere 'preponderance of the evidence,' but not to the extent of such certainty as is
required 'beyond a reasonable doubt' in criminal cases, and which will produce in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be
established." Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
"Where the proof required must be clear and convincing, a reviewing court will examine
the record to determine whether the trier of facts had sufficient evidence before it to
satisfy the requisite degree of proof." State v. Schiebel, 55 Ohio St.3d 71, 74 (1990).
{¶13} In In re Burton, 11 Ohio St.3d 147, 149 (1984), the Supreme Court of Ohio
established a totality of the circumstances test to determine whether a person is subject
No. 13AP-291 5
to hospitalization pursuant to R.C. 5122.01(B). The factors the probate court is to
consider include, but are not limited to:
(1) [W]hether, in the court's view, the individual currently
represents a substantial risk of physical harm to himself or
other members of society; (2) psychiatric and medical
testimony as to the present mental and physical condition of
the alleged incompetent; (3) whether the person has insight
into his condition so that he will continue treatment as
prescribed or seek professional assistance if needed; (4) the
grounds upon which the state relies for the proposed
commitment; (5) any past history which is relevant to
establish the individual's degree of conformity to the laws,
rules, regulations and values of society; and (6) if there is
evidence that the person's mental illness is in a state of
remission, the court must also consider the medically
suggested cause and degree of the remission and the
probability that the individual will continue treatment to
maintain the remissive state of his illness should he be
released from commitment.
Burton, at 149-50.
{¶14} The magistrate's March 7, 2013 report and entry found appellant to be a
mentally ill person subject to hospitalization. The report was based on an affidavit and a
hearing held on March 6, 2013. The affidavit was filed by Lora Ford, LSW, concerning
appellant. It provided the following significant points:
[Respondent] [R]epresents a substantial risk of physical
harm to others as manifested by evidence of recent
homicidal or other violent behavior, evidence of recent
threats that place another in reasonable fear of violent
behavior and serious physical harm, or other evidence of
present dangerousness;
***
On 02/07/2013, client went to her neighbor's house and
opened up his screen door. Client had 2 knives and a hand
saw and started swinging the weapons at the neighbor. * * *
Since being released pending her trial, client made numerous
phone calls to Columbus Police Department asserting that
one of the officers that has been out to her home this month
"should be dead and his family set on fire". This statement
was made on 02/24/2013. She has also stated that this
officer needs "a bullet in his head". * * * This information
was provided by the Columbus Police Department based on
the 11 runs to the home this month. * * * Per the neighbor's
No. 13AP-291 6
[sic], client is seen pacing on the sidewalks on their street
carrying knives. She can be seen talking to herself and will
respond as if someone not present is speaking to her.
Neighbor's [sic] further report that client's daughter has
stated that client hears voices. Client is also banging on the
walls of her apartment and can be heard screaming for no
apparent reason.
{¶15} At the hearing, William Bates, M.D., a psychiatrist, testified as to his
expert opinion regarding appellant. Dr. Bates testified that appellant has a schizo-
affective disorder and numerous delusions. As a result of her persecutory delusions, she
feels various people follow her and want to kill, rape, and poison or harass her. She
confronted a neighbor earlier that month with knives and weapons because she believed
he wanted to rape her. Her schizo-affective disorder is a disorder of thought and mind
and is substantial. She represents a substantial risk to others because she is in a state of
fear. Appellant made threatening phone calls to the police and has been walking around
the neighborhood with weapons. Dr. Bates testified that appellant is not able to
function in society in a meaningful way in her present condition and the least restrictive
environment is a psychiatric hospital. His ultimate conclusion was that appellant is a
mentally ill person and needs to be in a psychiatric facility.
{¶16} Under the totality of the circumstances, the testimony of Dr. Bates
presents clear and convincing evidence to support the trial court's finding that appellant
is a mentally ill person, who, because of her illness, represents a substantial risk of
physical harm to others under R.C. 5122.01(B)(2). Appellant, as a result of her mental
illness, entered a neighbor's home and threatened him with knives and a saw. Appellant
repeatedly made threatening phone calls to police officers and walked the neighborhood
streets carrying weapons. The trial court had clear and convincing evidence that she has
a substantial mental disorder, that the mental disorder grossly impairs her functioning
and appellant must be hospitalized because her behavior represents a substantial risk of
physical harm to others that satisfies R.C. 5122.01(B)(2). Appellant's first assignment of
error is overruled.
{¶17} By her second assignment of error, appellant contends the trial court erred
in adopting the magistrate's March 7 report and entry because the magistrate relied on
inadmissible expert testimony. Appellant argues that the testimony of Dr. Bates was
inadmissible because appellant's medical records were not available to the court.
No. 13AP-291 7
Appellant's counsel filed a motion in limine requesting that the court limit the testimony
of Dr. Bates to his personal observations. However, counsel withdrew the motion at the
conclusion of the hearing because it was not necessary based on the testimony.
{¶18} Despite appellant's contentions, the trial court did not rely on inadmissible
evidence. Pursuant to Evid.R. 703, "[t]he facts or data in the particular case upon which
an expert bases an opinion or inference may be those perceived by the expert or
admitted in evidence at the hearing." Thus, the medical records did not need to be
admitted in this case because the expert testified based upon facts and data he
perceived. Appellant's second assignment of error is overruled.
{¶19} By her third assignment of error, appellant contends that the trial court
erred in adopting the March 14, 2013 magistrate's report and entry because the
magistrate did not acknowledge the power of attorney appellant had signed the day
before the hearing. Appellant also seems to be arguing that an involuntarily committed
patient cannot be forcibly medicated if that person has the capacity to make an informed
decision.
{¶20} When the hearing began, appellant's counsel informed the court that
appellant's daughter, Stephanie, was present in the courtroom and had a health care
power of attorney, signed by appellant the previous day. Appellant's counsel made the
magistrate aware that even after executing the health care power of attorney, appellant
refused her medication the previous day. The magistrate found the health care power of
attorney ineffective for purposes of the hearing because appellant had already been
determined by clear and convincing evidence that she has a substantial mental disorder,
that the mental disorder grossly impairs her functioning and that she must be
hospitalized because her behavior represents a substantial risk of physical harm to
others. Given that adjudication, her ability to enter into a health care power of attorney
after that adjudication was compromised. See Testa v. Roberts, 44 Ohio App.3d 161,
164 (6th Dist.1988) ("The creation of a power of attorney requires that the principal be
mentally competent at the time the power is executed. * * * The test to be used to
determine mental capacity is the ability of the principal to understand the nature, scope
and the extent of the business he is about to transact."). Thus, the magistrate did not err
in not acknowledging the power of attorney appellant had signed the day before the
hearing.
No. 13AP-291 8
{¶21} Appellant also cites to Rogers v. Okin, 738 F.2d 1 (1st Cir.1984) and
Rennie v. Klein, 720 F.2d 266 (3rd Cir.1983). The citations seem to be in support of an
argument that an involuntarily committed mentally ill person has a constitutional right
to refuse the administration of antipsychotic drugs if that person has the capacity to
make informed treatment decisions and does not pose an imminent harm to
himself/herself or others. However, those cases are distinguishable from these facts.
{¶22} In Steele v. Hamilton Cty. Community Mental Health Bd., 90 Ohio St.3d
176 (2000), the Supreme Court of Ohio determined the circumstances under which an
involuntarily committed mentally ill patient may be forcibly medicated and the
necessary due process. The Supreme Court of Ohio set forth in Steele: "[a] physician
may order the forced medication of an involuntarily committed mentally ill patient with
antipsychotic drugs when the physician determines that (1) the patient presents an
imminent danger of harm to himself/herself or others, (2) there are no less intrusive
means of avoiding the threatened harm, and (3) the medication to be administered is
medically appropriate for the patient." Id. at paragraph three of the syllabus.
{¶23} In this case, the Steele requirements were met. Dallas Erdman, M.D., a
qualified psychiatrist who was appellant's treating physician testified and stated that
appellant did not have the current capacity to make medical decisions. She had an
inability to understand and have any rational, reasonable conversations about her
illness. He explained the treatment regimen and testified that he was unaware of any
lesser treatment alternatives and that the benefits outweighed the risks. He stated that
without treatment, he had "significant reservations" about discharging her into the
community because of her behavior presenting a risk to her and others' safety. (Mar. 13,
2013 Tr. 21.) John Morcos, M.D., also testified. He agreed that appellant did not have
the capacity to make informed consent regarding medication and he believed the
proposed treatment plan was appropriate. He was unaware of any lesser intrusive
treatment alternatives and the benefits outweighed the risks. Thus, the testimony
established the Steele requirements and the trial court did not err in adopting the
magistrate's report and entry authorizing forced medication. Appellant's third
assignment of error is overruled.
{¶24} In her fourth assignment of error, appellant contends that the magistrate
erred during the March 6, 2013 hearing in precluding appellant from introducing the
testimony of supportive witnesses. Appellant's complaint is that her attorney did not
No. 13AP-291 9
have her daughter, Stephanie Thomas, and a neighbor testify. However, the attorney
explained to the magistrate that he had spoken to two gentlemen, one who indicated he
was a neighbor, but the neighbor's testimony was relevant to appellant's pending case in
municipal court, not to this pending case in probate court. Appellant's counsel found no
need to call the witnesses that appellant claims were excluded because their testimony
was irrelevant to the proceedings. There is no duty to call witnesses to present irrelevant
testimony. Appellant's fourth assignment of error is overruled.
{¶25} Appellee filed a motion to dismiss in the case, contending that a proper
notice of appeal was not filed and that appellant's daughter, Stephanie Thomas, appears
to have filed the appeal on behalf of her mother. Since Thomas is not a qualified
attorney or her mother's guardian, she could not represent her mother. However, the
brief was signed by R.T. and appellant appeared at oral argument before this court. This
court has no reason to think other than appellant filed the appeal pro se. Appellee's
motion to dismiss is denied.
{¶26} For the foregoing reasons, appellant's four assignments of error are
overruled, appellee's motion to dismiss is denied, and the judgment of the Franklin
County Court of Common Pleas, Probate Division, is affirmed.
Motion to dismiss denied;
judgment affirmed.
DORRIAN and O'GRADY, JJ., concur.
T. BRYANT, J., retired, formerly of the Third Appellate
District, assigned to active duty under authority of the Ohio
Constitution, Article IV, Section 6(C).