Drier v. Jestila (In re Jestila)

1

In re CHRISTIE LYNN JESTILA.

EMELEE DRIER, Petitioner-Appellee, v. CHRISTIE LYNN JESTILA, Respondent-Appellant.

No. 362500

Court of Appeals of Michigan

January 26, 2023

Benzie Probate Court LC No. 20-000004-MI

Before: Patel, P.J., and Borrello and Shapiro, JJ.

Shapiro, J.

Respondent appeals as of right the probate court's order requiring her to adhere to mental health treatment. Respondent argues that her due-process rights were violated because she was not given proper notice of the hearing after which the order was entered. We agree and vacate the order for continuing mental health treatment.

I. BACKGROUND

Respondent suffers from schizoaffective disorder-bipolar type, and in February 2022, a petition was filed seeking an order for continuing mental health treatment. The hearing on the petition was originally scheduled for February 24, 2022, and respondent was personally served with the petition and notice of hearing. For reasons that are unclear from the record, the hearing was repeatedly rescheduled. The first three times it was rescheduled respondent was sent the notice of hearing by first-class mail. After another rescheduling, the probate register sent an e-mail to a person named Heath Green asking if he would personally serve respondent at an upcoming medical appointment, noting that mail sent to respondent had been returned as undeliverable. But no proof of service was filed indicating that respondent was provided notice of the rescheduled hearing which was held on July 5, 2022. Respondent was absent for the hearing,^[1] at which Dr. Jennifer Palamara testified that an order for continuing mental health treatment was necessary because respondent lacked insight into her illness and she would pose a risk to the community without medication. An order requiring another year of mental health treatment was entered after the hearing, and this appeal followed.

II. DISCUSSION

Respondent argues that was she denied her right to due process of law because she did not receive proper notice of the July 5, 2022 hearing.^[2] We agree.^[3]

Respondents in civil commitment proceedings enjoy due-process rights. In re Moriconi, 337 Mich.App. 515, 527; 977 N.W.2d 583 (2021). "Due process requires that a party receive notice of the proceedings against it and a meaningful opportunity to be heard." Sandstone Creek Solar, LLC v Benton Twp, 335 Mich.App. 683, 712; 967 N.W.2d 890 (2021). Notice must "be reasonably calculated to apprise interested parties of the action and to provide them an opportunity to be heard." Sidun v Wayne Co Treasurer, 481 Mich. 503, 515; 751 N.W.2d 453 (2008) (quotation marks and citation omitted). This Court has previously held that "the procedures embodied in the Mental Health Code satisfy due process guarantees." In re KB, 221 Mich.App. 414, 421; 562 N.W.2d 208 (1997).

"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. 374, 382; 926 N.W.2d 33 (2018). The process for "obtaining continuing orders of hospitalization or other forms of treatment based on a person's mental illness are contained in various provisions of Chapter 4 of the Mental Health Code, MCL 330.1400 et seq." Id. A respondent has the right to be present at a civil commitment hearing. See MCL 330.1453(2). Notice of a hearing on a civil commitment petition is governed by section 453 of the Mental Health Code, which provides in relevant part:

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. [MCL 330.1453(1).]

Service of papers in civil commitment proceedings is governed by MCR 5.734, which provides in relevant part:

(A)Service of Papers. When required by the Mental Health Code, the court must have the necessary papers served. The individual must be personally served. The individual's attorney also must be served.

(B) Notice of Subsequent Petitions. The court must serve a copy of a petition for the second or continuing order of involuntary mental health treatment or petition for discharge and the notice of hearing on all persons required to be served with notice of hearing on the initial petition or application for hospitalization.

In this case, it is clear that the probate court did not comply with the notice and service requirements. Pursuant to MCR 5.734(A), a respondent must be served personally. The record shows that during the period of time when the hearing was repeatedly being rescheduled, respondent was served with notices of hearing by mail three times. At least two of these notices appear to have been returned as undeliverable. In any event, because personal service is required and because there is nothing in the record suggesting that respondent waived her right to personal service, these instances of attempted service by mail were in violation of MCR 5.734(A).

Those notices, however, concerned hearing dates that were rescheduled. This appeal primarily concerns whether respondent was properly notified of the July 5, 2022 hearing that actually occurred. It appears that the probate court stopped attempting to serve respondent by mail-which, as discussed, is insufficient under MCR 5.734(A)-because the notices were being returned as undeliverable. In a June 2, 2022 e-mail, the probate register requested that respondent receive personal service of the notice of hearing at an upcoming medical appointment. But there is simply nothing in the record to suggest that this occurred. First, there is no response to this email that is found in the lower court record. Second, the proof of service of notice for the July 5, 2022 hearing does not list respondent as one of the parties that was served with notice in any manner that was reasonably calculated to apprise her of the hearing. Accordingly, there is no record basis to conclude that respondent was personally served with notice of the July 5, 2022 hearing as required by MCR 5.734(A), or that she was provided actual notice of the hearing.

For these reasons, we conclude that there was a wholesale failure by the probate court to comply with the notice and service requirements governing civil commitments, i.e., the procedural safeguards ensuring respondent's rights to be present and heard. This was a significant error that cannot be deemed harmless. The Michigan Supreme Court has held that civil commitment statutes must be strictly complied with. See In re Wojtasiak, 375 Mich. 540, 544; 134 N.W.2d 741 (1965). This requirement should be obvious given the compelling liberty interest at stake. As the Illinois Court of Appeals has explained:

Involuntary commitment affects very important liberty interests, and thus those seeking to keep an individual so confined must strictly comply with procedural safeguards included within the [Code]. These safeguards are included within the Code to ensure that the mental health system does not become an oppressive tool rather than a means to serve the society in which we live. The

...