Opinion
No. 353510
01-21-2021
In re BETTY JEAN PONDER. JACOB SILVA, Petitioner-Appellee, v. BETTY JEAN PONDER, Respondent-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Grand Traverse Probate Court
LC No. 19-035432-MI Before: GADOLA, P.J., and BORRELLO and M. J. KELLY, JJ. PER CURIAM.
Respondent appeals as of right the probate court's April 7, 2020 order, requiring respondent to receive combined hospitalization and assisted outpatient treatment for no longer than 180 days due to respondent's mental illness. For the reasons set forth in this opinion, we affirm.
I. BACKGROUND
Respondent has a history of involuntary mental health treatment for mental illness. In August 2019, the probate court ordered her to receive mental health treatment for no longer than 180 days, including up to 60 days of hospitalization.
This appeal arises from an April 2, 2020 petition for respondent to receive mental health treatment, arising from respondent's hospitalization at Munson Medical Center on April 1, 2020. Respondent was personally given copies of the petition, clinical certificates, and a statement of her rights. Counsel was appointed to represent respondent.
The lower court record contains a notice of hearing and advice of rights form indicating that a hearing on the petition would be held on April 7, 2020, at 10:30 a.m. The notice and advice of rights further explained that respondent had the right to be represented by counsel and had the right to attend the hearing. With respect to respondent's right to attend the hearing, the notice and advice of rights specifically stated as follows:
You have the right to be present at the hearing. If you fail to attend the hearing after having an opportunity to meet with your attorney, you will be considered to have waived your right to attend and the hearing may be held without you.
The lower court record also contains a proof of service indicating that respondent was personally served with the notice of hearing on April 3, 2020, at Munson Hospital. Respondent's appointed counsel was also served with the petition, clinical certificates, notice of hospitalization, and notice of hearing. Additionally, the lower court record contains a certificate of counsel completed and signed by respondent's appointed attorney, indicating the date and time of the scheduled hearing and further including the following statement acknowledged by counsel: "I certify that I personally have seen and consulted with the individual at least 24 hours before the time set for the hearing."
Pursuant to the notice cited above, a hearing was held on April 7, 2020, using telephone and video technology. Respondent's counsel, the nurse who signed the petition, and treating psychiatrist Dr. Thomas Harding participated in the hearing from Munson Medical Center. The prosecutor, representing petitioner, participated by telephone from a separate location. At the beginning of the hearing, the following discussion occurred on the record:
The Court: [Respondent's counsel], you have had an opportunity to speak with [respondent]?
[Respondent's Counsel]: I spoke with my client last week. I'm not sure where she is right now. Dr. Harding was going to see if he could entice her in. Dr. Harding has just walked in the room. We also have a security officer in the room.
The Court: I mean, this is the reality, does she not want to participate?
Dr. Harding: She's ambivalent. She says she wants to participate, but then she won't leave her room. She came out briefly and went back in. Other than putting hands on her, which I don't want to do.
The Court: No.
Dr. Harding: I don't know that I can force her here.
[Respondent's Counsel]: I experienced much the same when I saw her last I believe it was Friday, Your Honor.
Dr. Harding: She just mentioned to me that she was listening to something and she wouldn't come until she was done.
[Respondent's Counsel]: Your Honor, I have been here since 10:00 hoping to talk to her, but I have not been able to. If I could have just a couple minutes to walk to her room -
The Court: Of course.
[Respondent's Counsel]: —and attempt?
After a short break, the proceedings continued on the record and the following exchange occurred:
The Court: [Respondent's counsel] is back so now we will go back on the record. Once again we're on the record with respect to [respondent]. Sadly [respondent's counsel] did walk into the hearing room alone. So I take it—
[Respondent's Counsel]: That's correct.
The Court: I take it that [respondent] is refusing to attend at this time, is that correct?
[Respondent's Counsel]: That's the only conclusion I can draw. She would not say yes or no, but she kept asking me to leave and closed the door.
The Court: All right. Did you get any direction from her at all how she would like to proceed with this? Is she going to go forward with a hearing, or is she going to go ahead and just waive the testimony?
[Respondent's Counsel]: I can't answer that. I was not able to get either today or last week any useful information from her.
The Court: All right. So what I will do at this point is first of all I'm going to find that she has not appeared. She was given adequate notice. Everybody is present for the hearing. We have accommodated her by having her have this hearing done at the hospital where she is located at, and she is refusing to attend at this time. So we will go ahead and we will protect her rights and we will go ahead and have a hearing with respect to this matter.
The court continued with the proceedings, receiving testimony from the petitioning nurse and two psychiatrists.
At the conclusion of the hearing, the probate court found as follows:
So based upon the testimony presented here today I do believe that, first of all, [respondent] does have a mental illness and that at this time her individual judgment is so impaired by mental illness, and her lack of understanding for the need of treatment has caused her to demonstrate an unwillingness to voluntarily participate and adhere to treatment and is necessary on the basis of competent clinical opinion to prevent a relapse or harmful deterioration of her condition, and presents a substantial risk of significant physical or mental harm to her.
The probate court entered an order reflecting its findings and rulings at the hearing. The order indicated that the probate court found that notice of the hearing had been given according to law, that respondent was not present at the hearing "for reasons stated on the record." The order further stated that the probate court found by clear and convincing evidence that respondent was a person requiring treatment because of mental illness, "whose judgment is so impaired by that mental illness and whose lack of understanding of the need for treatment has caused him or her to demonstrate an unwillingness to voluntarily participate in or adhere to treatment that is necessary, on the basis of competent clinical opinion, to prevent a relapse or harmful deterioration of his or her condition, and presents a substantial risk of significant physical or mental harm to the individual or others." The probate court ordered that respondent would receive combined hospitalization and assisted outpatient treatment for no longer than 180 days, that respondent be hospitalized for up to 60 days of the 180-day assisted outpatient treatment period, and that an "initial hospitalization period shall be up to 60 days."
This appeal followed.
II. STANDARD OF REVIEW
This Court reviews for an abuse of discretion a probate court's dispositional rulings and reviews for clear error the factual findings underlying a probate court's decision. An abuse of discretion occurs when the probate court chooses an outcome outside the range of reasonable and principled outcomes. A probate court's finding is clearly erroneous when a reviewing court is left with a definite and firm conviction that a mistake has been made, even if there is evidence to support the finding. [In re Portus, 325 Mich App 374, 381; 926 NW2d 33 (2018) (quotation marks and citations omitted).]
III. ANALYSIS
On appeal, respondent raises several issues, all of which relate on her underlying challenge to the propriety of notice of the hearing. Respondent claims that she never received notice of the April 7, 2020 hearing as required by the applicable court rules and statutes. Respondent claims in the alternative that if she did receive the notice of hearing, she does not remember receiving it, or did not understand the notice due to her mental illness, and that the probate court should have adjourned the hearing to a later date as a reasonable accommodation for her disability pursuant to the Americans with Disabilities Act (ADA), 42 USC 12101 et seq. Respondent argues that the probate court's factual findings were clearly erroneous because the court did not have respondent's input and that the probate court's legal conclusions therefore were not accurate because they were not based on accurate facts. Accordingly, respondent argues that the probate court's order that she required mental health treatment was invalid.
"Proceedings seeking an order of involuntary mental health treatment under the Mental Health Code for an individual on the basis of mental illness . . . generally are referred to as 'civil commitment' proceedings." In re Portus, 325 Mich App at 382. "Under the Mental Health Code, a person subject to a petition for involuntary civil commitment has the right to a hearing before a judge or jury and may not be committed unless it is established by clear and convincing evidence that the individual is a person requiring treatment." In re KB, 221 Mich App 414, 417; 562 NW2d 208 (1997), citing MCL 330.1465. "Within four days of the filing of a petition, the probate court must give the person who is the subject of the petition a copy of the petition and notice of the rights to a full court hearing, to be present at the hearing, to legal representation, to a jury trial, and to an independent medical evaluation." In re KB, 221 Mich App at 417-418, citing MCL 330.1453.
MCL 330.1465 provides, "A judge or jury shall not find that an individual is a person requiring treatment unless that fact has been established by clear and convincing evidence."
More specifically, MCL 330.1453 provides as follows regarding notice:
(1) The court shall cause notice of a petition and of the time and place of any hearing to be given to the subject of the petition, his or her attorney, the petitioner, the prosecuting or other attorney provided for in section 457, the hospital director of any hospital in which the subject of a petition is hospitalized, the spouse of the subject of the petition if his or her whereabouts are known, the guardian, if any, of the subject of the petition, and other relatives or persons as the court may determine. Notice shall be given at the earliest practicable time and sufficiently in advance of the hearing date to permit preparation for the hearing.
(2) Within 4 days of the court's receipt of the documents described in section 452(1)(a), the court shall cause the subject of the petition to be given a copy of the petition, a copy of each clinical certificate executed in connection with the proceeding, notice of the right to a full court hearing, notice of the right to be present at the hearing, notice of the right to be represented by legal counsel, notice of the right to demand a jury trial, and notice of the right to an independent clinical evaluation.
MCL 330.1457 concerns attorneys presenting the case on behalf of the petitioner and is not at issue under the facts of this case.
These documents are "A petition for a determination that an individual is a person requiring treatment, a clinical certificate executed by a physician or a licensed psychologist, and a clinical certificate executed by a psychiatrist." MCL 330.1452(1)(a). --------
As relevant to the factual circumstances of this case, MCL 330.1452 provides, in part, as follows:
(1) The court shall fix a date for every hearing convened under this chapter. . . . [T]he hearing shall be convened promptly, but not more than 7 days after the court's receipt of . . .
(a) A petition for a determination that an individual is a person requiring treatment, a clinical certificate executed by a physician or a licensed psychologist, and a clinical certificate executed by a psychiatrist.
MCR 5.734 provides in pertinent part as follows regarding service of notice:
(A) Service of Papers. When required by the Mental Health Code, the court must have the necessary papers served. The individual must be served personally. The individual's attorney also must be served.
* * *
(C) Time for Service.
(1) A notice of hearing must be served on the individual and the individual's attorney
(a) at least 2 days before the time of a hearing that is scheduled by the court to be held within 7 days or less; or
(b) at least 5 days before the time scheduled for other hearings.
Additionally, "[e]very individual who is the subject of a petition is entitled to be represented by legal counsel." MCL 330.1454(1). The court must appoint counsel to represent the subject of the petition "[u]nless an appearance has been entered on behalf of the subject of a petition." MCL 330.1454(2). MCL 330.1454 also provides in relevant part as follows:
(7) Legal counsel shall consult in person with the subject of a petition at least 24 hours before the time set for a court hearing.
(8) Legal counsel for the subject of a petition under section 452(1)(a) who is hospitalized pending the court hearing shall consult in person with the individual for the first time not more than 72 hours after the petition and 2 clinical certificates have been filed with the court.
(9) After the consultation required in subsection (7) or (8), counsel promptly shall file with the court a certificate stating that he or she personally has seen and has consulted with the subject of a petition as required by this section.
Finally, MCL 330.1455(1) provides as follows regarding the subject's right to be present at the hearing and waiver of that right:
The subject of a petition has the right to be present at all hearings. This right may be waived by a waiver of attendance signed by the subject of a petition, witnessed by his or her legal counsel, and filed with the court or it may be waived in open court at a scheduled hearing. The subject's right to be present at a hearing is considered waived by the subject's failure to attend the hearing after receiving notice required by section 453 [i.e. MCL 330.1453] and any applicable court rule, providing the subject has had an opportunity to consult with counsel as required under section 454 [i.e. MCL 330.1454]. The court may exclude the subject from a hearing if the subject's behavior at the hearing makes it impossible to conduct the hearing. The court shall enter on the record its reasons for excluding the subject of a petition from the hearing. The subject's presence may be waived by the court if there is testimony by a physician or licensed psychologist who has recently
observed the subject that the subject's attendance would expose him or her to serious risk of physical harm. [Emphasis added.]
Here, the record clearly indicates that respondent received notice of the hearing. The record contains a proof of service indicating that respondent was personally served with the notice of hearing that stated the time and date of the hearing. The record evidence also reflects that respondent had an opportunity to consult with counsel before the hearing. The transcript of the hearing demonstrates that both Harding and respondent's counsel attempted to convince respondent to come from her room at the hospital to attend the hearing but that they were unsuccessful because respondent would not leave her room. Harding and respondent's counsel were participating in the hearing from the hospital via remote communication technology.
Although respondent's appellate brief states that respondent "refutes these facts, stating that she was never given notice of the hearing, and was never invited to the hearing by anyone," respondent has not provided any evidence to support this assertion. Indeed, there is no evidence in the record to support it. This Court's appellate review is limited to the original record from the lower court, and respondent's unsupported assertions in her appellate brief clearly do not constitute part of the lower court record. See MCR 7.210(A)(1).
Based on the uncontradicted evidence, the probate court's findings that respondent had been given adequate notice and was refusing to attend the hearing were not clearly erroneous. In re Portus, 325 Mich App at 381. The probate court thus did not err by treating respondent as having waived her right to attend the hearing. MCL 330.1455(1).
Respondent additionally argues that if she did receive notice of the hearing, she did not understand it or does not remember it and that, as a consequence, the notice was effectively "null" and void. However, respondent cites no legal authority for this proposition, and it is therefore abandoned. "An appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims, nor may [she] give issues cursory treatment with little or no citation of supporting authority." Houghton v Keller, 256 Mich App 336, 339; 662 NW2d 854 (2003) (citation omitted). "An appellant's failure to properly address the merits of his assertion of error constitutes abandonment of the issue." Id. at 339-340.
Next, respondent argues that the probate court should have adjourned the hearing as a reasonable accommodation for respondent's mental illness pursuant to the ADA. In the probate court, respondent never requested an adjournment or any other form of accommodation under the ADA, and this issue is therefore unpreserved. In re Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008) ("[B]ecause respondent failed to raise this issue before the trial court, it has not been properly preserved for appellate review."). Unpreserved issues are reviewed for plain error affecting substantial rights, id., which requires a showing that (1) there was error, (2) that "was plain, i.e., clear or obvious," and (3) that "affected substantial rights," People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Furthermore, respondent merely asserts this claim in her appellate brief without any significant analysis and without any citation to authority that would support her apparent contention that the probate court was obligated to sua sponte provide some sort of accommodation under the ADA in the context of these involuntary civil commitment proceedings. Therefore, respondent has failed to demonstrate any plain error that was "clear or obvious." Carines, 460 Mich at 763. The argument is also abandoned due to respondent's failure to properly present it for appellate review. Houghton, 256 Mich App at 339-340.
Respondent's remaining claims of error are all predicated on her claim that she was deprived of notice. Having failed to demonstrate any error with respect to notice or the probate court's ability to hold the hearing in respondent's absence under these circumstances, respondent has accordingly also failed to show that the probate court made any clearly erroneous factual findings or otherwise abused its discretion. In re Portus, 325 Mich App at 381. Moreover, considering that these additional arguments also were not raised below and are therefore unpreserved, In re Utrera, 281 Mich App at 8, respondent has likewise failed to demonstrate any plain error, Carines, 460 Mich at 763.
Affirmed.
/s/ Michael F. Gadola
/s/ Stephen L. Borrello
/s/ Michael J. Kelly