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IN THE SUPREME COURT OF OHIO In the Matter of Retha A. Thomas Defendant-Appell ant, v. Franklin county ADAMH Board Plaintiff- Appellees. ^^ , ,. , , _,._. r CASE I^10. M ,. ' Appeal from the Franktin county Court of Appeals, Tenth Appellate 1.^lstrict. NOTICE OF APPE;EI.L OF APPELLANT RETHA THOIVIAS Michael J Evans Attorney For ADAMH Executive A^enczes Section 261 West Johnstown Road Columbus, OH 43230-2732 Phone: 614-475-9511 Fax: (f^14} 475-0348 Attorney for Appellees Retha A. Thomas Pro se Appellant 1040 Loretta Avenue Columbus, OH 43211 (614) 209-2579 Pro se Appeliant .;,, .f ^>: ,^ ,,.^Fu ,^^..i; n, ^, ^^ , ; y^ 3 . ^, f_, } ^_.,^ ^.;I_ .E'+. rJ; t^ f,,^f<: ..^,,,, 3 ,^.. S _'_l_%^'^`iFy4^^'„^S,iS^i^ ^. ^^^ s.i^{£bS

NOTICE OF APPE;EI.L OF APPELLANT RETHA THOIVIAS the probate court that Retha Thomas was inconipetent for the given matter with that of the confrontation with the police and the probate

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Page 1: NOTICE OF APPE;EI.L OF APPELLANT RETHA THOIVIAS the probate court that Retha Thomas was inconipetent for the given matter with that of the confrontation with the police and the probate

IN THE SUPREME COURT OF OHIO

In the Matter of Retha A. ThomasDefendant-Appell ant,

v.

Franklin county ADAMH Board

Plaintiff- Appellees.

^^ , ,., ,_,._. rCASE I^10. M ,. '

Appeal from the Franktin county

Court of Appeals, Tenth Appellate

1.^lstrict.

NOTICE OF APPE;EI.L OF APPELLANT RETHA THOIVIAS

Michael J EvansAttorney For ADAMHExecutive A^enczes Section261 West Johnstown RoadColumbus, OH 43230-2732Phone: 614-475-9511Fax: (f^14} 475-0348

Attorney for Appellees

Retha A. ThomasPro se Appellant1040 Loretta AvenueColumbus, OH 43211(614) 209-2579Pro se Appeliant .;,, .f ^>: ,^ ,,.^Fu

,^^..i; n, ^, ^^ ,; y^ 3 . ^, f_, } ^_.,^

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_'_l_%^'^`iFy4^^'„^S,iS^i^ ^. ^^^ s.i^{£bS

Page 2: NOTICE OF APPE;EI.L OF APPELLANT RETHA THOIVIAS the probate court that Retha Thomas was inconipetent for the given matter with that of the confrontation with the police and the probate

NOTICE OF APPEAL OF APPELLANT RETHA THOMAS

Appellant RETIIA TI-IOMAS hereby gives notice of appeal to the Supreme Court of Ohio

Appeal from the Franklin county Court of Appeals, Tenth Appellate District, entered in Court of

Appeals Case No. 13AP-291 on November 5, 2013. This case raises substantial constitutional

questions, one of great public or general interest.

Respectfully^

ubmitted^` .

4Retha A. ThomasPro se Appellant1040 Loretta AvenueColumbus, OH 43211(614) 209-2579I'ro se Appellant

Page 3: NOTICE OF APPE;EI.L OF APPELLANT RETHA THOIVIAS the probate court that Retha Thomas was inconipetent for the given matter with that of the confrontation with the police and the probate

Certificate of service

I hereby certify that a true copy of the foregoing has been served upon Michael J Evans

Attorraey For ADAMH Executive Agencies Section 261 West Johnstown Road

Columbus, OH 43230-2732 Phone: 614-475-9511 Fax: (614) 475-0348, this day of November 5,

2013.

Respectfully su mitted

Retha A. ThomasPro se Appellant1040 Loretta AvenueColumbus, OH 43211(614) 209-2579Pro se Appellant

Page 4: NOTICE OF APPE;EI.L OF APPELLANT RETHA THOIVIAS the probate court that Retha Thomas was inconipetent for the given matter with that of the confrontation with the police and the probate

IN THE SUPREME COURT OF OHIO

In the Matter of Retha A. TliomasDefendant-Appellant,

V.

Franklin county AI7AMH Board

Plaintiff- Appeilees.

CASE NO.

Appeal from the Franklin county

Court of Appeals, Tenth Appellate

District.

MEMORANDUM IN SLIPPORT OF JURISDICTION OFAPPELLANT RETHA THOMAS

Michael J EvansAttorney For ADAMHExecutive Agencies Section261 West Johnstown RoadColumbus, OH 43230-2732Phone: 614-475-9511Fax: (614) 475-0348

Attomey for Appellees

Retha A. ThomasPro se Appellant1040 Loretta AvenueColumbus, OH 4321.1(614) 209-2579Pro se Appellant

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Table of contents

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT

GENERAL INTEREST ........ ..............:.................................................. 1

STATEMENT OF THE CASE AND FACTS ...................

ARGUMENT IN SUPPORT OF PROPOSITION OF LAW,:°...°,,,,.°,. 4

Proposition of Law No. I: The Ohio revised code and first amendment of the united states constitution

prohibits the State from violating the rights of an individual competent of incompetent of forcedadmission and medication .

based .. ................................................ ........................ 5

CONCLUSION ... ..........................................................................:........:... 7

CERTIFICATE OF SERVICE ....: ............. ° ° .,....,....... 9

APPENDiX:

Decision and Judgment

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EXPLANATION OF WHY THIS CASE IS A CASE OF PUBI..IC OR GREAT

This matter is of great interest because of the matter represents a matter of constitutional violation

upon a persons rights of speech and cruel and unusual punishment.

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ASSIGNMENT OF ERROR

ASSIGNMENT OF ERI2OR ONE.

The First assignment of error of the March 28thth probate court objection hearing decision iswhen the court made the error of upholding the magistrates decision

ASSIGNMENT OF ERROR TWO.

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11. The second assignment of error of the March 28thth probate court objection hearing decision iswhen the trial court's decision was based upon inadmissible evidence

ASSIGNMENT OF ERROR THREE.

ill. The third assignment of error of the March 28th`" probate court objection hearing decision is

when trial court made the error by forcing medication on the appellant

ASSIGNMENT OF ERROR FOUR.

IV. The fourth assignment of error of the March 28th`h probate court objection hearing decision is

when the trial court made the error by precluding appellant from introducing evidence at herhearing, as guaranteed by Revised code 5122.15.

/

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Statement of case and facts

Before March 20th 2013 and right after Febrttary 8th 2013 of her posted bond Retha Thomas wasplaced in Riverside Methodist hospital for a separate altercation with the Columbus policedepartment from that of a phone confrontation of words that caused the Columbus police on thatof February 28th 2013 to notify the netcare mental healtli facility to have her placed intoriverside Methodist hospital on that of March 4tti 2013. A probate con.irnitznent hearing at thetwin valley mental health facility was held on March 6th 2013, were she was not there for, thatestablished she was there not there under arrest or for any criniinal charges related to her case butfor the separate events of the phone confrontation with that of the Columbus police departmentand with that of an examination evaluation done by Dr. Bates. Dr. Bates gave his reasoning tothe probate court that Retha Thomas was inconipetent for the given matter with that of theconfrontation with the police and the probate court took the doctor's recommendation andordered her to be comrnitted to the Riverside hospital. After that the hospital doctors at riversidemoved for forced treatment upon Retha Thomas so the probate court held another hearing onMarch 13th 2013 were the doctor presented to the probate court name Dr. Dallas Erdmann ofRiverside. In the hearing the probate court asked Dr. Edraman could the treatment for RethaThomas make her normal again and if so how long. Dr. Erdmann stated to the probate court hefelt she would only need the treatment for two weeks after the start of it be normal again. Theprobate court agreed and set the treatment until that time. After she started and finished hertreatment to return to normal again the that is when on march 21 't 2013 the franklin countymunicipal judge Vanderkarr made the order with no hearing for Retha Thomas to be transferredfrom riverside to that of twin valley until Judge 1'yack over road to release for Varaderkarrprocedure violation.

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ASSIGNMFN'' F ERROR ONF.,^ . .

The First assignment of error of the March 28tht'' probate court objection hearing decision is

when he made the error of the March 6'h magistrate decision to base the decision on the fact

that February 7Th 2013 she was charged with a misdemeanor and not felony of the requested

officer by the detective because the matter was not emphasized as substantial. If the detective

at the time felt her having the knives was substantial risk due to a mental condition then the

netcare screening would have been made then not 21 days after to be filed on February 28th

2013. Based the decision on that of the information that was a separate prior municipal court

incident that the respondent had not been convicted of that was stated by the doctor. Similar

information was stated on the municipal court affidavit and the probate court detainment order

fact section introduction. This would be mentioned in that of the probate court order of

detainment and in the opening states with in the transcripts of which doctor Bates stated this

comes from the respondent attacking something that she was not convicted of doing. This is

stated on that of page 17 and line 7-19 of the court transcripts. Based the decision on only after

the police argument and statement was established the police order for the netcare screening

for the respondent was requested and added other separated unrelated things to form a greater

matter then what it was to push the process for their complaint just concerning them.

,X^ HEFFEL, APPELLANT v, ULIKOINSKI, SUPT., APPELLEE

CASE SUMMARY

PROCEDURAL POST E;Appellant sought review of a decision by the Court of Appeals forGuernsey County (Ohio), w h denied his application for a writ of habeas corpus directed agauistappellee mental health centerfsuperintendent. In denying the writ, the court of appeals found that theevidence was sufficient to justi"ry appeltant's involuntary coinmitment and thathe was not deprived ofdae process. 1 " .

OVERV.TEW: Appellant filed for voluntary admission to the mental health center under Ohio Rev.Code Ann. § 5122.15(G), and he subsequentIy requested ]iis release pursuairt to § 5122.03. Thecenter filed an affidavit utider § 5122.12 to comrnence involuntary commitment prnceedings, andappellant was referred to the center for examination and treatinent after a cozi?.mitmenYheariuig in a courtof common pleas. He unsuccessfully sought a writ of habeas corpus in the court of appeals, and heeventuali was dischartred frorn the center The court reversed the rt f i d th t d ' d thy t, cou o appea s or er a emewrit and found that the State did not ineet its burden of showing by clear and convincing evidence thatappellant satisfied the requirements in § 5122,01(B) for involuntary commitment. The-exW=cg didnQt establish that he ucas tznable to provide for his basic.physical needs, th4.t he represented a risk of

-----•-- --^ -^--- ^K physical hac^.la3f^LSelfor.tv others; or thaf"^e created a^rav an °irnm^ne`nt^iskfto thei't`g(its of^ anyane, as reyuir -d-by ^5122.{IY(B(44}: Tfh^re was no evidence that appellant had any psychotic

'-•-_ dts.o.rder.s-m'symptoms, that hts thought processes were abnormal, or that he had a prior history of mentalillness.

OUTCOME: The court reversed the decision.

Page 10: NOTICE OF APPE;EI.L OF APPELLANT RETHA THOIVIAS the probate court that Retha Thomas was inconipetent for the given matter with that of the confrontation with the police and the probate

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PROCEDURAL POST I;: The State sought review of the decision of the Court off^ppeals forFratiklin County (Ohio}^ ich reversed the decision of the trial court, which had found defendant stilln3entally ill and continu^ d^ endant's cont.mitment for two more years. The appellate court remandedand ordered a new heari^}g n ndant's mental status.

V

OVERVIEW: The trial court found defendant not guilty by reason of insanity of two counts ofaggravated murder. The trial court committed defendanttothe mental hospital, pursuant to Ohio Rev.Code § 2945.39 with periodic reviews of his mental status, pursuant to §§ 2945.39, 2945.40.On such a review, the trial court found defendant still mentally ill and ordered his continuedcommitment for two niore years. On defendant's appeal, the appellate court reversed and ordered a newhearing. On the State'.s appeal, the court affirmed the decision of the appellate court. The courtdetcrmined that the psychiatrists appearing at the hearing used, in addition to their own interviews,repor'ts about defendant that had not been part of the record of the trial, that Ohio R. Evid. 703required that facts or data employed by the experts be based on their own perceptions or on evidenceadntitted at the hearing, and tliat, therefore, the deterrnination of continued mental illness had to bereversed and the case remanded for a new hearing on defendant's mental status.

ASSIGNMENT OF ERROR TWO

The second assignment of error of the March 28thth probate court objection hearing decision is

when he made the error of the March 6`h magistrate decision on in violation to the evidence rule

of 703 document are required for the testimony to be offered which left a lack of evidence that

was concurred on by both the prosecution and the defense on page 13 lines 1-4 and pages 15

line 1-19 and page 14 lines 6-14. Base the decision on in the transcript the doctor admits to not

having record to submit to the court and did not view the record but made his determination on

statements of opinion and person beliefs from factual experiences but not to harm anyone.

Base the decision on that of the hearsay of no record and never said false statements made

about the respondent's daughter stating to neighbors about the condition of the respondent.

This is in the detainment form and transcript by the doctor bates. This is stated on page 17 lines

3-6 of the court transcripts. Base the decision on By doc who didnot agree she was of harm

and could not give logical statements as to her level of incompetency and threat and had no

medical record he did not review but to base reason for diagnosis off brief interview and

affidavit. It is stated on page 14 line 10 at to no medical records. It stated on page 15 lines 1-

19. Base on the decision against the rights of the respondent to have a separate chosen

evaluation by that of 5122.15 full hearing of the Ohio revised code and other medical

documents supporting the respondent which did happen on May 20'h to have her found

competent.

THE STATE OF OHIO, APPELLAIUT^ONFS, APPELLEE---_---==_---- ...

CASE SUMMARY

OUTCOME: The court affumed the decision of the appellate court, which had reversed the trial court'sfinding defendant still mentally ill, and which renianded the matter for a new hearing on defendant's

\_d nientat status.

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ASSIGNMENT OF ERROR TIIREE

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PROCEAURAL POSTURE: Appellant sought review of a decision by the Court of Appeals forGuernsey County(Ohio), which denied his application for a writ of habeas corpus directedagainstappellee mental lieaith center superintendeiit. In denying the writ, the court of appeals found that theevidence was sufficient to justif;, appellant's involuntaty cotnmitment and that he was not deprived ofdue process.

OVERVIEW: Appellant filed for voluntary adinission to the mental health center under Ohio Rev.Code Ann. § 5122.15(G), and he subsequently requested his release pursuant to § 5122.03, Thecenter filed an affidavit under § 5122.11 to comnience involuntary commitment proceedings, andappellant was a•eferred to the center for examination and treatment after a commitment hearing in a courtof common pleas. He onsuecessfiiily sought a writ of habeas corpus in the court of appeals, and heeventually was discharged from the center. The court reversed the court of appeals order that denied thewrit and found that the State did not meet its burden of showing by clear and convi-ncing evidence thatappellant satisfied the requirenients in § 5122.01( B) for involuntary commitment. The evidence didnot establish that he was unable to provide for his basic physical needs, that he represented a risk of

ASSIGNMENT OF ERROR THREr.

The third assignment of error of the March 28th"' probate court objection hearing decision is

when he made the error of the March 13th magistrate decision against the rights of respondent

to have competency acknowledged when she has not been subjected to guardianship by the

county to be labeled as that. Base the decision against the rights of the respondent to have

power of attorney acknowledged. Base the decision against the rights of the respondent to have

the case law presented in her favor of the respondent of Rogers v. okin and Rennie v. Klein.

CHARLES THOMAS.SELL, Petitione^V^iVITED STATES- „'~---

_..^------PROCEDiTRAL PO : Certiorari was granted to the United States Gorirt of Appeals for theEightl^ Circuit to revi w. `udgment permitting the government to administer autipsychotic drugs.involuntarily to defe d t i rder to render defendant competent to stand trial for a serious, butnonviolent, crime, ^

OVERVIEW: Both the appellate court and the district court approved forced medication solely in orderto render defendant competent to stand trial. The United States Supreme Court. assumed that defendant.was not dan;erous. Based on that hypothetical assumptiori, the United,States Supreme C©urt found thatthe appellate court was wrong to approve forced medication solely to render defendant competent tostand trial. The experts focused mainly on the dangerousness issue to the exclusion of other importantissues such as trial-related side effects and risks that could have helped determine whether forcednxedication was warranted on trial competence grounds alone. As a result, there was not enoughinforination to know whether the side effects of the antipsychotic mec3ication were likely to undermine.the fairness of the trial in defendant's case.

OUTCOME: 7'he judgment was vacated and remanded. The government was allowed to pursue itsre uest for forced medication on`./ q grounds related to the danger defendant posed to himself and others.

SHEFFELLAPPELLANV. . ULIKQWSKI, SUPT., APPELLEE

CASE SUMMARY

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ASSIGNMENT OF ERROR THREE

physical hami to himself or to others, or that he created a"grave and imminezit risk" to the rights ofanyone, as required by § 5122.01( B)(4). There was no evidence that appellant had any psyctioticdisorders or symptoms, that.his thought processes were abnormal, or that he had a prior history of mentaliElness.

OUTCOME: The court reversed the decision.

RUBIE RUGY-R:S, ET AL., Plaintiffs, Appeiiees/v. OBERT O` KIN, , M.D., ETC., ET AL.,sf / Defendarits, Appellants; RUBIE ROGERS, E L., Plaintiffs, Appellants, v. ROBERT'•-J OKIN, M.D., ETC., ET AL., Defendants, Appellees

P1ZE?CEDU PCrS'I'URIu: Defendants, hospital and staff, appeaied an injunctiort entered in theUnited Stat rs istrict Court for the District of Massachusetts that enjoined defendants from forciblyusing antip tic inedication to chemicaIly restrain plaintiffs, former and current mentally ill patients,who were i y^olu . ily committed.

OVERVIEW:13efore reviewing an injunction that prohibited defendants, hospital and staff, fronaforcibly chemically restraining plaintiffs, former and current mentally ill patients, who wereinvoluntarily committed, with antipsychotic drugs, the court held thatthe state supreine court's answ.ersto certified questions. did not moot the federal constitutional issues because there was no directlyenforceable declaration of federal rights, nor was the underlying controversy ended because thoseanswers were not self-executing. Next, the court held that the supreme court's answers, which set theparameters for forced medication under Mass. Gen. Laws. ch. 123, went beyond simple proceduralguidelines and provided substantive rights greater than that afforded by the: Due Process Clause of U.S.

Const. amend. XIV because forced medication could occur only after incompetence was determiuedby a judge, who made a substituted judgment decision regarding treatment, or if justified by definedemergencies. Finding that these protections created protected liberty interests t.inder the federalconstitution, the court determined that the injunction was no longer necessary and remanded for itstermination.

A-^ OUTCOlV1F,: The court remanded for terniination of the i.njunction that enjoined defendants, hospital

and staff, from forcibly inedicatingplaintiffs, former and current n3entally ill patients, who wereinvoluntarily cominitted. The court held that the state supreme court's declaration which recognizedpiaintiffs substantive and procedural rights created a liberty interest protected by the FourteenthAmendment.

PATE, WARDEivOBZNSON

-- ;^---- - -`CASE SUMMARY

PROCEDURA 'TURE: Respondent inmate was convicted of murder. The United States Court ofAppeals for the' Se nth Circuit reversed and remanded an order denying the inmate's petition for a writof habeas corpus directed that a hearing be held concezning the inmate's sanity. Certiorari wasgranted to th^ ited 'tates Supreme Court.

OVERVIEW: The appeals coitrt directed the district court on reinand to hold a hearing concerning the^- ^ inniate's sanity when he comniitted the offense. If the inmate was found to have been insane, the district

court was directed to release hiin. The Supretne Court held that the district court's failure to make an

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A:sSIGI'tiiMENT OF ERROR THREE

inquiry into the inmate's coinpetence to stand trial deprived the inmate of his coastitutional right to a fairtrial. :I'he inmate did not waive the defense of incompetence to. stand trial. Ccsunsel thi•ciughout iheproceedings insisted that the inmate's present sanity was an issue. Theevidence introduced.on theinmate's behalf entitled him to a competency hearing. `I'he inmate was constittitionally entitled to ahearing on the issue.of his competence to stand trial, but the. Court did not think that. there could be ameaningfuI hearing on the issue at such a late date. `' .

OUTCOME: The court affirmed the judgment of the court of appeals in part and remanded withdirections to issue the itimate's writ of habeas corpus petition and discharbe the inmate, unless the stategave him a new trial. within a reasonable time.

,STATE OF OHIO, Plaintiff-Appellee, vs - ROBERT E.- 4REWER, Defendant-Appellant.

-----------_,^------

CASE SUMMARY

PROCLOURAL POSTU E: After defendant was charged with 28 counts of pandering obscenityinvolving aminori i ion of R.C. 2907.321(A)(1) and R.C. 2907321(A)(5), and found.incompetent to stan tri,^he State petitioned the Clermont County Court of CommonPleas (Qhio) toorderhis involunta^y ixxedicatiqq, under lZ.C. 2945.38(B)(1)(c), in an effort to restore hiscompetency. The ttiaJJcourt granted the requested order, and defendant appealed.

OVERVIEW: Defendant said the involuntary medication order did not coniply with Sell v. UnitedStates. The appellate court disagreed. The State had an "important" interest in prosecuting him becausehis crimes were "serious," as their anandatory minimum penalties equalled or exceeded six months. Nospecial circuinstances lessened that interest's importance. Undisputed expert testiniony said the drugswould help restore him to competency, as most were successful in 65 to 70 percent of patients, and onewas effective nearly 90 percent of the time, meeting the "substantial likelihood" requirement. Thistestimony said each drug was unlikely to cause severe side effects, and that ifany side effects negativelyaffected defendant's ability to assist with his defense, itwould be adjusted or stopped, so the drugs weresubstantially unlikely to interfere signifzcantly with defendant's defense. The drugs were medicallyappropriate and in his best medical interest because an expert said they wodild help hiin fianction andtreat his delusions. lt was no error, based on the evidence, to find this treatment was medically necessaryand in defendant's best medical interest, given his mental condition.

^ OUTCOME: The trial court's judginent was affirmed.

1State of Ohio,_Pla-►ntiff-Appelle (v. Kovin D. McGlelland, Defendant-Appellant.^.-------^ -- .

-__------

CASE SUMMARY

PROCEDURAL POS ? E: Defendant, an incompetent, appealed orders from the Franklin CountyCourt of Common P eas ^ hio), which related to his hospitalization and efforts to restore him tocompetency thraug the tak. g of required medication against his wishes pursuant to R.C. §2945.38. A prior ppeal liakresulted in a reversal of the trial court's ruling on the medication issue anda remand for furthe finiiings, wl^ich were made.

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OVERVIEW: The trial court rendered orders regarding the incompetent defendant's hospitalization and

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ASSIGNMENT OF EIZR®R THI2EE

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medication against his wishes in an effort to restore him to competency. On a previous appeal, the courtreversed the order that required defendant to take niedication against his wishes. Upon remand, the trialcourt made additional findings and again ordered the administration of the medication. On appeal again,the courtfound that the failure of the trial court to have conducted a hearing within 10 days did notdeprive it of the authority to make its orders, as the 10-day liniit under R.C. § 2945.3$(H) wasdirectory, not jurisdictional. The remand previously was due to the trial court's failure to have made theexpress findings required by Sell. "The remanded order, however, clearly met those requirements andincluded those findings_ As defenda.nthad an inability to control his ernotions while interacting withothers in the courtroom and the medications were unlikely to have detrimental side effects, they were.properly ordered. Defendant had the benefit of'capable counsel, and the medications were ordered toallow defendant to assist in his defense and to assist bis attorney in his defense.

OUTCOME: The court affirnied the orders of the trial court.

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ASSIGNMENT OF ERROR. FOUR

The fourth assignment of error of the March 28th`h probate court objection hearing decision is

when he made the error of the March 13th magistrate decision against the requested rights of

the respondent to have court known supportive witnesses by that of 5122.15 full hearing of the

Ohio revised code and United States constitution. This is stated on page 6 lines 14-15 of the

court transcripts and page 7 line 1-7. Base the decision on restricted evidence of respondent.

Base the decision against eviderice.

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The case IN RE SLABAUGH------------ ._......_.-.._,_.__ CASE SUMMARY

PROCEDURAL POS : Appellant mental patient sought review of an order of the trial court(Ohio), which found hi t be a#'nentally ill person subject ta ltospitalization and ordered himhospitalized at a psyeha-11 tc o pital for a period not to exceed 90 days.

OVFRVTEW: 'The patient contended that the statute under which he was involuntarily hospitalized wasunconstitutional ifit contemplated his actions. becausehis behavior Nvus merely bothersome. He arguedthat there was no showing that he posed a serious threat of substaiit::d harm to liimself or others. He didnot attetid the referee's hearing but was represented by court--<tpp3inted ;:ounseL The patient sotight acontinuance at the probable cause hearing because he.had never bef ore o his couft-appointed counsel..The eourt reversed the trial court's denial of the motion. The patieut ,vas in need oftreatme;it.1Je, ^ti-as -: `initially transported to the state hospifal after creating disturbar' es at a pcl ice station that re ;ulte<i in hisarrest for trespass. Upon his initial adinission to the hospital, Ite wa s in an agitated, belligerent, andconfused. He initially reftesed to take medication, threatened the staff, was delusiona.l, and was paranoid.Prior to the incident at the police station, he was involved in a fstfi„ht that resulted in injuries requiringhospital emergency room care. However, the patient had to be afforded an attempt to obtain counsel ofhis choice when he entered his first appearance.

OUTCOME: The court reversed the jtjdgment hospitalizing the patient and remanded.

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Conclusion

For the cited a•easons the respondent respectfully request this court to reverse thejudganent of the probate court.

' , ...._i

Retha A. ThomasPro se Appellant1040 Loretta AvenueColumbus, OH 43211(614)209-2579Pro se Appellant

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Appendix

Judgement Entry date 3/29/2013. Case number M1-19885 Franklin county courYof coinrnonpleas civil division.

Original probate order

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e-F€€ed Franklin County Probate CourtSubmitted - Mar 29 2013 2:16 PM

Filed - Mar 29 2013 2:17 PM - M019885

PROBATE COURT OF FRANIi£LLN COUNTY, OI$OROBERT G. MO1t d. l,xlJMLli 1, d ULIIE

IN THE MATTER OF RETHA TIJVis1AJ,

RESPONDENT CASE NO. xMQ -1988$

JUDGMENT ENTRY OVERRULING OBJECTIONS AND ADOPTItYG 'PHE MAGIS7CRATE'S

DECISIoINs FTLEIJ MARCH 7, 2010 AND MAIiCH 14,2013

1. FACTUAL AND PROCEDURAL ]FIISTt)RY

This matter came before the Court on March 28, 2013 on Retha Thomas's ("the Respondent")

objections to the March 7, 2013 Magistrate's Report and Entry finding the Respondent to be a

mentally ill person subject to hospitalization. The Respondent, Retha Thomas also objects to the

March 14, 2013 Magistrate's Report and Entry Authorizing the forced administration of antipsychotic

medications.

On February 28, 2013, Lorna Ford, LSW, filed an Affidavit of Mental Illness ("Affidavit")

concerning the Respondent. The Affidavit provides the following significant facts:

• "On 02/07/03, client [the Ward] 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 ColumbusPolice 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.' *** She has also stated that this officer needs `abullet in his head."

• "Per the neighbors, client is seen pacing on the sidewalk on their street carrying knives. Shecan be seen talking to herself and will respond as if someone not present is speaking to her."

•"C€ient is also banging on the walls of her apartment and can be heard screaming for noapparent reason."

On February 28, 2013, an Order of Detention was filed. The Respondent was taken to Riverside

Methodist Hospital and a hearing on the Affidavit was set for March 6, 2013. The Respondent declined

to attend the March 6, 2013 hearing. Michael Evans, Esq., on behalf of the ADAMH Board; Wade

Harrison, Esq., on behalf of the Respondent; Stephanie Thomas and Jacqueline Thomas, daughters of the

Respondent; and William Bates, M.D. attended the March 6, 2013 hearing.

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On the day of the heariug, the Respondent's counsel filed a Motion in Liminei asking the Court to

limit the doctor's testimony based on records to only those records adniitted into evidence under Ohio

Evidence Rule 703 and State v. Jones, 9 Ohio St. 3d 123, (1984). The Magistrate gave the Respondent's

counsel an opportunity to object to any specific line of questioning or answers giving during the hearing.

No objections were made during the hearing, No objection was made concerning the authenticity of

medical records, nor the admissibility of medical records.

During the March 6, 2013 hearing, Dr. William Bates gave his expert opinion concerning the

Respondent. Dr. Bates testified to the following:

• The Respondent has schizo-affective disorder.• The Respondent has auditory hallucinations.• The Respondent has persecutorial dehisions including:

o The Respondent believes that people are trying to follow her, kill her, poison her,rape her, and harass her.

o The Respondent believes the white police want to follow her, captare her, rape her,and kill her,

o The Respondent confronted a neighbor with knives and weapons because shebelieved he wanted to rape her.

o The Respondent believes McDonalds is putting chips in her food.• The Respondent made threatening phone calls to the police department saying an officer

should be killed; somebody should put a knife to his head, bullet in his head and kill hisfamily.

• The Respondent is not suicidal.• The Respondent represents a danger to other people.• The Respondent is not able to function in society in her present condition.

Dr. Williani Bates ultimately concluded that the Respondent is a mentally ill person and needs to be

in a psychiatric facility. On March 7, 2013 the Magistrate's Order was filed with the Court finding the

Respondent to be a mentally ill person subject to hospitalization.

On March 7, 2013 an Application to Authorize Antipsychotic Medication was filed and a hearing on

the matter was scheduled for March 13, 2013. The Respondent declined to attend the March 13th

hearing. Present at the March 13, 2013 hearing were Gregory S. Dupont, Esq., on behalf of the ADAMH

Board; John M.D. Shady, Esq., on behalf of the Respondent; Stephanie Thomas, daughter of the

Respondent; John Morcos, M.D.; and Dallas Erdmann, M.D.

1 The Motion in Limine was officially filed with the Court on March 7, 2013.

2

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e»Faled Franklin County Probate CourtSubmitted - Mar 29 2013 2:16 PM Ng - 19885

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During the March 13, 2013 hearing, Mr. Erdmann testified to the following:

• The Respondent does not have the capacity to niake infornaed medical decisions.• Although diagnosed with a mental disorder, the Respondent does not believe she has a mental

illness or requires treatnxent.

• The Respondent told another doctor that Dr. Erdmann called the police to kill theRespondent.

• The benefits of the proposed antipsychotic treatment outweigh the risks of the probable sideeffects.

• The Respondent is not able to have a rational discussion conceming her mental illness.• Without treatment the Respondent will likely further deteriorate and her illness will become

harder to treat.• With treatment, the Respondent will likely show improvement within a couple ofweeks.• Given the nature of the Respondent's illness, without treatment she will require a "lengthy,

lengthy hospitalization."

• No lesser intrusive treatment alternatives are available.Dr. Erdmann ultimately concluded that the Respondent is a mentally ill person who is not able to give

informed consent to medical decisions. Additionally, Dr. Erdmann concludes that it is in the

Respondent's best interest to take antipsychotic medication and no less intrusive alternatives are

available.

During the March 13, 2013 hearing Dr. Morcos testified to the following:

• The Respondent does not have the capacity to give infornned consent about her medication.• The proposed treatment plan is appropriate for the Respondent.• No lesser treatment alternatives exist.• The benefits of treatment outweigh the risks.

Dr. Morcos ultimately concluded that the Respondent is a mentally ill person who is not able to

give inforrn:ed consent to medical decisions. Additionally, Dr. Morcos concludes that it is in the

Respondent's best interest to take antipsychotic medication and no less intrusive alternatives are

available.

The Respondent's daughter, Stepbanie Thomas ("Stephanie'), testified during the March 13,

2013 hearing. Stephanie asked the Court to consider "Rodgers v. Oakin, a federal case of the United

States Courts of Appeal of the First Circuit, r^vhen a person is involuntarily placed into the hospital and are

competent, they're supposed to be -- they're supposed to not be subjected to involuntary medication

treatment."

3

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On March 14, 2013 the Magistrate's Report and Entry Authorizing were filed authorizing the

administration of antipsychotic medication to the Respondent.

Thereafter, on March 21, 2013, the Respondent fiied a general objection to both the March 7,

2013 and March 14, 2013 Magistrate's Reports and Entries Authorizing. During the March 28, 2013

hearing on the objection, counsel for the Respondent clarified the objections. The Respondent claims the

Magistrate erred during the March 6, 2013 hearing by allowing testimony that may relate to medical

records not admitted into evidence under Ohio Rules of Evidence 703, Further, the Respondent claims

the Magistrate erred during the March 13, 2013 hearing by not fully addressing the case Stephanie

brought to the Court's attention during testimony.

For the reasons set forth below, the Court now overrules the Respondent's objections to the

Magistrate's decisions in their entirety.

I.I. STANDARD OF REVIEw

Civ, R, 53(D)(3XbXii) provides that objections to tne magistrate's decision shall be specific and state

with particularity all grounds for objections. Objections to a magistrate's factual findings, whether or not

specifically designated as a finding of fact, must be accompanied by a transcript of all evidence submitted

to the magistrate that is relevant to that fmding, or an affidavit of the evidence if a transcript is not

available. Civ, R. 53(D)(3)(b)(iii). A transcript must be filed in order for the trial court to conduct its de

novo review, Zacek v. Zacek, 11 Ohio App.3d 91, 463 N.E.2d 391, (10th Dist. 1983) paragraph one of

the syllabus; Segar v. Mia`west Surgeons, Inc., 2nd Dist. No. 16377, 1997 Ohio App. LEXIS 4875

(October 17, 1997).

Civ. R. 53(D)(4)(d) provides in part that, in ruling upon objections to a magistrate's decision:

[T]he court shall undertake an independent review as to the objected matters toascertain that the magistrate has properly determined the factual issues and appropriatelyapplied the law. Before so ruling, the court may hear additional evidence but may refuseto do so unless the objecting party demonstrates that the party could not, with reasonablediligence, have produced that evidence for consideration by the magistrate.

In ruling on objections to a magistrate's decision, "the trial court must undertake the equivalent of a

de novo determination, in light of any filed objections, when independently assessing the facts and

4

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conclusions obtained in the report of a[znagistrateJ." DeSantis v. Solder, 70 Ohio App.3d 226, 232, 590

N.E.2d 886 (10th Dist. 1990).

M. OB.TF.C7'IOiV AND LEGAL ANALYSIS

On March 21, 2013, the Respondent filed general objections to the Magistrates Decisions filed on

March 7, 2013 and March 14, 2013. During the March 28, 2013 hearing on the objections, the

Respondent's counsel clarified two specific objections for the Court: (1) the Magistrate erred during the

March 6, 2013 hearing by allowing testimony that may relate to medical records not admitted into

evidence under Ohio Rules of Evidence 703; and (2) the Magistrate erred during the March 13, 2013

hearing by not fully addressing the case Stephanie brought to the Court's attention during testimony.

Under Ohio Rules of Evidence § 703, the 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>

Here, the experts interviewed the Respondent and reviewed her medical file. The Respondent's counsel

was given the opportunity to object to any line of questioning or answers during the March 6, 2013

hearing. The Respondent's counsel did not object to any question or any answer given in testimony under

Ohio Rule of Evidence § 703. Therefore, the Court find the expert testimony proper and overrules the

Respondent's objections based on Ohio Rule of Evidence § 703.

Pursuant to R.C. § 5122.01(A), a person is considered mentally ill ifthey have a substantial

disorder of thought, mood, perception, orientation, or memory that grossly impairs judgrnent, behavior,

capacity to recognize reality, or ability to meet the ordinary demand of life. Here, the Respondent meets

the criteria of a mentally ill person because she has persecutorial delusions that grossly impair her

judgment. The Respondent has gone so far as to enter a rieighbor's home with knives and a saw because

she believes he is one of the people who want to rape her. The Respondent walks the street with knives

and believes people in general and the white police want to poison, kill, capture and rape her, The

Respondent is unable to recognize reality or have a rational conversation concerning her mental illness

with doctors. Therefore, the Respondent meets the statutory definition of a mentally ill person.

5

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e-Filed Franklin County Probate CourtSubmitted - Mar 29 2013 2:16 PM Mi - 14885

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Pursuant to R.C. § 5122.01(B)(2), a mentally ill person is subject to hospitalization by court order

when, due to the person's mental illness, they represent a substantial risk of physical harm to others as

manifested by evidence of recent homicidal or violent behavior, or evidence of real threats that place

another in reasonable fear of violent behavior and serious physical harm, Here, the Respondent, because

of her mental illness, entered a neigh.bors home and threatened his life by swinging knives and a saw.

Additionally, the Respondent has made repeated threatening calls to the Columbus Police Department

threatening the lives of police and police families. The Respondent states that one officer should be shot

in the head, and his family burned. Therefore, the statutory requirement for hospitalization by court order

because of mental illness under R.C. § 5122.01(BX2) is satisfied.

Additionally, under § 5122.01(B)(4), a mentally ill person is subject to hospitalization by coiirt order

when, because of the persons mental illness, they would benefit from treatment in a hospital and they are

in need of such treatment as manifest by evidence of behavior that creates a grave and imminent risk to

the substantial rights of others or the person. Here, the Respondent's mental illness will likely deteriorate

without treatment. However, with treatment, she will likely show improvement within a couple of weeks.

The Respondent has shown that she is not able to function in society in her present condition. The

evidence stated above clearly shows that the Respondent represents a danger to other people. Therefore,

the Respondent meets the statutory requirement for hospitalization by court order because of mental

illness under R.C. § 5122.01(B)(4).

Pursuant to Steele v. Hamilton Ctty. Community Health l3oard, 90 Ohio St.3d 176 (2000), a court may

issue an order permitting hospital employees to administer antipsychotic drugs against the wishes of an

involuntarily committed mentally ill person if it finds, by clear and convincing evidence, that (1) the

patient does not have the capacity to give or withhold informed consent regarding her treatment; (2) it is

in the patient's best interest to take the medication, i.e., the benefits of the medication outweigh the side

effects; and (3) no less intrusive treatment will be as effective in treating the mental illness. Steele is the

controlling standard in Ohio for the forced medication of an involuntarily committed mentally ill person.

The Court is not required to address a case from another federal district that has no precedence in this

6

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e-Filed Franklin County Probate CourtSubinitted - Mar 29 2013 2:16 PM MI - 19885

Filed - Mar 29 2013 2:17 PM - M019885

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case. IIere, on March 13, 2013, two doctors testify that the Respondent does not have the mental capacity

to make informed decisions concerning her medical treatment. Further, both doctors believe that the

benefits of the medication clearly outweigh the risk of any possible side effects for the Respondent,

Finally, both doctors agree that no less intrusive treatment will be as effective in treating the

Respondent's mental illness. Therefore, the court is able to issue an order for the forced medication of the

Respondent,

IV. CONCLUSION

Lzpon a thorough and independent review of this matter, the Court finds that the Magistrate

properly determined the issues in both the March 7th and March l3th, 2013 Magistrate's Decisions.

Accordingly, Retha Thomas' Objections to the Magistrate's Decisions are hereby OVERRULED in

their entirety. The Magistrate's Decisions filed on March 7, 2013 and on March 14, 2013 are hereby

APPROVED AND ADOPTED.

IT IS SO ORDERED.

CERTIFYCATE OF SERVICE

A copy of the foregoing Judgment Entry was sent by electronic means:

J. Michael Evans, Esq.Blumenstiel, Evans and Falvo, LLC261 West Johnstown RoadColumbus, Ohio 43230

Wade E. Harrison, Esq,200 East Campus View Blvd., Suite 200Columbus, Ohio 43235

this day of March, 2013.

.^:^,..- -.._.... .

--^ _De

7

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e-FiEed Franklin County Probate Court

Submitted - Feb 28 2013 1:57 PM

Filed - Feb 28 2013 2:00 PM - M019885

PG-M{-50.16

PROBATE COURT OF FRANKLIN COUNTY, OHIOROBERT G. MONTGOMERY, JUDGE

IN THE MATTER Ol=:

Retha A. ThomasALLEGED TO BE MENTALLY ILL

19 8"Case No: MI

RIGHTS OF AN INVOLUNTARILY DETAINED PERSON

You are in the cuStody of The Franklin County ADAMH Board, 447 East Broad

St. Columbus, OH 43215 for examination by mental health professionals at:

Netcare - 199 S. Central Ave., Columbus, OH 43223

This is not a rtm^n I arrest. vv^You have a RIGHT to: Sc Jc,^

q

^^^1. MAKE irnmediateiy a REASONABLE NUMBER OF TELEPHONE CALLSor use other reasonable means to contact an attorney, a physician, alicensed clinical psychologist, or to contact some other person or personsto secure representation by counsel, or to obtain medical or psychologicalassistance, and t;e provideci assistance in making calls if suct-i assistanceis needed and requested. /Ii! 11_

2. RETAIN COUNSEL and have independent expert evaluation of yourmental condition and, if you are unable to afford an attorney, berepresented by court-appointed counsel and have independent expertevaluation of your mental condition at public expense if you are unable toafford that evaluation.

3. HAVE a HEARING to determine whether or not you are a mentally illpersori subject to hospitalization by court order.

4. REQUEST a VOLUNTARY ADMISSION to this facility, which if accepted,will expunge your court record. If you voluntarily admit yourself before orat your initial hearing, your court file will also be expunged. If at your initialhearing you are found not to be mentally ill, subject to hospitalization bycourt order, your court file will be expunged.

mlo ^ %^ ^,^-^ "k (^`^`^.

'75

^

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e-Filed Franktin County Probate Court

Submitted - Feb 28 2013 1:57 PM

Filed - Feb 28 2013 2:00 PM - M019885

PC- Mi-50.15

PROBATE COURT OF FRANKLIN COUNTY, OHIOROBERT G. MONTGOMERY, JUDGE

IN THE MATTER OF:

Retha A. Thomas Case No. Mi- 19 885ALLEGED TO BE MENTALLY ILL

ORDER OF DETENTION

To: Zach Scott, Sheriff of Franklin County,

WHEREAS, LORA FORD, LSW - NETCARE

employed at 741 E. Broad St., Coiumbus OH 43205, has filed an Affidavit alleging that

Retha A. Thomas

currently at 1040 Loretta Ave. Calunibus, OH 43211

is a mentally ill person subject to hospitalization by Court order pursuant to Section 5122.11 of

the Ohio Revised Code. The Court finds probable cause to believe that respondent is a mentally

ill person subject to hospitalization by Court order.

You are therefore commanded to take into custody the said person forthwith to the

Franklin County ADAMH Board with placement at Netcare andlor TVBH-CC andlor any other

appropriate facility, then and there to abide the order of this Court in the premises.

HEREIN F:1iti NOT, and of this l'i!t rn:'aki, legal service and due return not €ater than the

first business day after service is had. In executing this order of detention, the person to whomthis order is directed shall use every reasonable and appropriate effort to take this person intocustody in the least conspicuous manner possible, using persuasion and a crisis interventionteani, if necessary. Having failed to accomplish custody thereby, forcible entry is authorized byutilizing the least destructive method and custody may thereupon be had by the use of the leastforce necessary to accomplish the task.

IN THE TESTiIb1ONY THEREOF, I hereto set my hand and affix the seal of said Probate

Court of Franklin County, Ohio on 02/28/2013

Signature Pacte AttachedJudge Robert G. Montgomery

rn 9

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e-Filed Franklin County Probate Court

Submitted - Feb 28 2013 1:57 PM

Filed - Feb 28 2013 2:00 PM - 1V1019888

Franklin County Probate Court

Date: 02-28-2013

Case Title: THOIVtAS, RETHA A

Case Number: M019885

Type: Order of Detentiozi

So Ordered

.QPOg: TE C0^ T .

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Judge Robert G. Montgomery (kc ci)

Electronicaliy signed on 2013-Feb-28 page 2 of 2

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e-Filed Franklin County Probate CourtSubmitted - Feb 28 2013 1;20 PM

Filed - Feb 28 2013 1:20 PM - M019885 Pc-rv31-50.2;RAv. 02-2010a

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IN THE MATTER OF

CASE NO

PROBATE COURT OF FRANKLIN COUNTY, OHIOROBERT G.1VfONTGOItdfERY, JUDGE

Rc. HTHA A. TFiOfv1AS

AFFIDAVIT OF MENTAL ILLNESS(R.G. 5122,11]

The State of Ohio, Franklin Couiity, s.s.

Lora L. Ford, LSW the undersigned, residing 74 '! E. Broad St.,

Columbus, OH 43205 says that he/she has information

to believe, or has actual knowledge that Retha A. Thoi-nas , a resident of

i=ranklin County is mentally ill, and because of the person's illness:

q Represents a substantial risk of physical harm to self as manifested by evidence of tllreats of, orattempts at, suicide or serious se(f-inflicted bodily harm;

^1 Represents a substantial risk of physical harm to others as manifested by evidence of recenthornicrdal or other violent behavior, evidence of recent threats that place another in reasonable fearof violent behavior and serious physical harm, or other evidence of present dangerousness;

EQ Represents a substantial and imrnediate risk of serious physical impairment or injury to self asmanifested by evidence that the person is unabfe to,orovide for and is not providing for the person'sbasic physical needs because of the person's mental illness and that appropriate provision for thoseneeds cannot be made immediately available in the community; or

VVould benefit from treatment in a hospital for this menta! illness and is in need of such treatinent asmanifested by evidence of behavior that creates a grave and imminent risk to substantial rights ofother's or the person.

Lora L. Ford, LSl/V further says that the facts supporting this belief are as follows:

(be specifi.cvtiiith facts substantiating diagnosis) Cl;ent is befng given a diagnosis of f'sychotic Disorder

Not Otherwise Specified. On 02/07/2013, client went to her neighbor's house and opened up his

,screen door.-Ciient had 2 knives and a hand saw and started swinging the weapons at the neighbor.

'\ e was arrested at that timP. Since being released pending her triai, client made nurnerous phonex i '°-° - -------- - ----------

calls to Columbus Police Department asserting that one of the officers that has been out to her hotrre

iis month "should be dead and his faiiiily set on fire". This statement was nzade on 02124/2013:

has also stated that this officer needs "a builet in his head". Client makes the statements in the

third person and not as direct am

Police Department based onA Ff

ific threats. This in

--^

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ation was provided by the Columbus---------- -

to the horne this month. On 02/28/2013, this writer

Y FORM 50.2 - AFFIaAV(T OF MENTAL ILLNESS

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. 5

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5.upmitted - Feb 28 2013 1:20 PI^

Fifed^- Feb 28 2013 1:20 Pfv1 - M019 85

C'ASE 1V0.

attempted a flace to face visit with client with nt. No one would answer the door

to the home, but this writer spoke with several of clfent's neighbors to deterniine symptoms. Per the

neighbor's, client is seen pacing on the sidewalks on fheir street carrying knives. She can be seen

talking to herself and will respond as if someone not present is speaking to her. Neighbor's further

report that ci' nt's daughter h'a stated that client hears voices. Client is also banging onthe walls of

p , `- ^ ^ -her a art,nen an can be heard s reamixtg for no apparent reason. Fi(ing is being completed sight

®^ -a- unseen as client was not present far a h e visit,

. . . . . . . ..0- 1 _ ---

o

These facts being sufficientto indicate probabie cause tha the above person is a mentally ifi person subjectto hospitalization by court order.

The name and address of responderit's legal guardian, spouse, and adult next of kin are:0v

^iame Kinship Addressv

None Legal Guardian0

Spouse

N Adult Next of Kin

Aduft Next of Kino:.o

O Affiant0O

0>1 Sworn to before me and signed in niy presence this 28th ay ef February, 2013

o l^/J.^```'FA(',iS''^.

`.SI}da t7dbmok

s^0a *; ^`9 NA* Public, SW@ Uj O}t10 '>+t)^serk 1 Noiar/ PibiicL4,4_^

U_ M^ Go m m 4*t E*tk1-f7 4 15;^^^ WAIVER

i, the undersigned affiant, hereby waive the issuing and service of Notice of Hearing on this Affidavi;; andvoluntarily eriter rny appearance herein.

1^. }r_g ^. f28/2Q13 ^,

Dakc 1fFior;t

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Now comes Retha A. Thomas, who does say:

1. Iam the named Appellant in 13 AP 291.

2. I am suffering from health problems, which caused me to be

hospitalized in Riverside Methodist Hospital.

3. 1 rely upon my daughter, Stephanie, for transportation and help

around the house.

4. Stephanie was incarcerated for six (6) days in June. Her

incarceration disrupted zny household routine and caused my

family significant distress.

S. A combination of my health problems and Stephanie's

incarceration delayed the preparation of my brief. It was not my

intention to prejudice the Appellee or create undue delay.

FURTHER AFFIANT SAYETH NAUGHT

------- -------------Retha A. ThonlasDate

Affirmed in my resence this (0 ciay of n2013.

. .... . t ^ Y ..r . eP^ . . . . . . .. ... .:::^^Notary Public Robert James Beck, .1r.

^ Notary publicIn and for the State Of Ohio

Attorney at LawMy Commgssson does not expire

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IN THE COURT OF APPEALS OF OHIO

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TENTH APPELLATE DISTRICT

In the matter of:

No, 13AP-291(P.C. No. MI-T9885)

Respondent-Appellant.

(ItEGUI.AR CALENDAR)

D E C I S I O N

Rendered on November 5, 2013

IZ.7:, pro se.

J. Michael Evans, for Franklin Couzity ADAMH Board.

APPEAL from the Franklin County Court of Common Pleas,Probate Division

T. BRYANT, J.

{1[1) Respondent-appellant, R.T., appeals from a jtidgment of the Franklin

CoLtnty Court of Common Pleas, Probate Division, overruling objections and adopting

the magistrate's reports and entries dated March 7 and March t4, 2013. Appellee,

Tranklin County Alcohol, Drug Addiction and Meiltal Health Services Board ("ADAMI-I

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, aii order of detention was filed

and appellant was taken to Riverside Methodist HospitaI. On Mareh 6, 2013, a hearing

was held ori the affidavit of mental illness. On March 7, 2013, a izz agistrate's report and

pntz YNa:s Cilcci rincling appellant to lZe arnPntally ill I^^rson sub}^ct.tc^ haspitahzatir^iz.

' The facts are taken mostly from the trial court judgn7ent entry.

^

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No. 13AP-2912

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{ ,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 autlzorizing the administration of antipsychotic medication toappellant.

{Ij4} 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.

{T5} Acting pro se, appellant filed a timely notice of appeal and raised the

follov,,ing assignments of error:

1. '1'.he First assignment of error of the March 28th probatecourt objection hearing decision is when the cotirt made theerror of upholding the magistrate[']s decision.

II. The second assignmerrt of error of the March 28thprobate court objection hearing decision is when the trialcourt's decision was based upon inadmissible evidence.

TII. The third assignment of error of the March 28th probatecourt objection hearing decision is when [the] trial courtmade the error by forcing medication on the appellant.

IV. The fourth assignment of error of the March 28thprobate court objection hearing decision is when the trialcourt made the error by precluding appellant fromintroducing evidence at her hearing, as guaranteed byRevised [C]ode 5122.15.

{^, 6} Prel'zminarily., we note that appellant was preseiit 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." '" Irz re K.W., roth Dist. No.o6AP-943, 2007-Ohio-699, T 8, quoting Lingo v. Ohio Cent. RR., Inc., loth Dist. No.05AP-2o6, 2oo6-Ohio-2268, ^ 20, quoting Grove City v. Clark, loth Dist. No. oiAP-

1369, 2002-Ohio-4549, T 11. F-lowever, 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 consequt:nces on the individual's life. In re Miller, 63 Ohio St.3d 99, 1o8(1992), citing Adclington v. Texas, 441 U.S. 418, 425-26 (1979). See also KW.; In reP.H., ioth Dist. No. 96APF12-1729 (July 10, 1997), Thus, we address the merits of herappeal.

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{yj7} We also note that the brief appellant filed with this court is very difficult to

decipher and does not comply with App.R. 76 in znany 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

specifsT the contentions pertaining to each assignrnent of error (App.R. 16(A)(7)). We

are free to disregard appellant's assignments of error under these circumstances. See

App.R, i2(A)(2). However, in the interest of justice, we will address what we discern to

be her assignments of error.

{¶8} By her first assigriment 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 persoxi faces involuntary commitment to a mental hospital, "tlie

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 ioi. 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.

{^110} 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 affida«.t must coiitain facts sufficient

to indicate probable cause that an individual is a mentally ill person subject to

hospitalization by court order. R.C. 5122.o1(:B) sets forth the criteria defining

"[an]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 invohzntarily committed, State v. Welch, 125 Ohio App.3d 49, 52 (lxth

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.] grosslyimpairs jud.grnent, behavior, capacity to recognize reality, orability to meet the ordinary demands of life.

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No. 13AP-291 4

{^111 } The third part of the definition is found in R.C. 5122.o:t(B), and requires a

finding that the individual:

(2) Represei-its a substantial risk of physical harm to self asmanifested by evidence of threats of, or atteznpfis at, suicideor seriotis self-inflicted bodily harm;

(2) Represents a substantial risk of physical hartn to othersas manifested by evidence of recent homicidal or otherviolent beFzavior, evidence of recent threats that placeanother in reasonable fear of violent behavior and seriousphysical harm, or other evidence of present dangerousness;

(3) Represents a substantial and immediate risk of seriousphysical impairment or injury to self as manifested byevidence that the person is unable to provide for and is riotproviding for the person's basic physical needs because of theperson's mental illness and that appropriate provision forthose needs cannot be made immediately available in thecommunity; or

(4) Would benefit from treatment in a hospital for theperson's mental illness and is in need of such treatment asmanifested by evidence of behavior that creates a grave andimminent risk to substantial rights of others or the person.

{¶12} Thus, the state must prove that a defendant has a sz.tbstantial inental

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.o1(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 rneasure 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

inincl 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 tliree 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." SState v. Schiebel, 55 Ohio St.3d 71, 74 (1990).

{1(13} In In re Burton, il. Ohio St.3d 147,149 (1984), the Supreme Court of Olzio

established a totality of the circumstances test to determine whether a person is subject

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No. 13A.P-2915

to hospitalization pursuant to R.C. 5122.01(B). Tlae factors the probate court is to

consider include, but are not limited to:

(i) [W]bether, in the court's view, the individual currentlyrepresents a substantial risk of physical harm to himself orother members of society; (2) psychiatric and rnedicaltestimony as to the present mental and physical condition ofthe alleged incompetent; (3) whether the person has insightinto his condition so that he will continue treatment asprescribed or seek professiozial assistance if needed; (4) thegrounds upon which the state relies for the proposedcommitment; (5) any past histoiy which is relevant toestablish the individual's degree of conformity to the laws,rules, regulations and values of society; and (6) if there isevidence that the person's mental illness is in a state ofremission, the court must also consider the medicallysuggested cause and degree of the remission and theprobability that the individual tivill continue treatment tomairitairi. the remissive state of his illness should he bereleased 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 physicalharm to others as manifested byr evidence of recenthomicidal or other violent behavior, evidence of recentthreats that place another in reasonable fear of violentbehavior aiid serious physical harrn, or other evidence ofpresent dangerousness;

-X- * *

On 02/07/2013, client went to her neighbor's house andopened up his screen door. Client had 2 knives and a handsaw and started swinging the weapons at the neighbor. * * *Since being released pending her trial, client made numerousphone calls to Columbus Police Department asserting thatone of the officers that has been out to her home this month"should be dead and his family set on fire". This statementwas made on 02/24/2013. She has also stated that thisofficer needs "a bullet in his head". * * * This informationwas provided by the Columbus Police Department based onthe ii runs to the home this month. * * * Per the neighbor's

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No. 13AP-29i6

[sic], client is seen pacing on the sidewalks on their streetcariying knives. She can be seen talking to herself and willrespond as if someone not present is speaking to her.Neighbor's [sic] further report that client's daughter hasstated that client hears voices. Client is also banging on thewalls of her apartnierzt and can be heard screaming for noapparent reason.

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{^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 Arith 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 otliers 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.oi(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 suUstantial mental disorder, that the mental disorder grossly impairs her functioning

and appellant rnust be hospitalized because her behavior represents a substantial risk of

physical harm to others that satisfies R.C. 5122.ol(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

inadnais,sible expert testimony. Appellant argues that the testimony of Dr. Bates was

inadmissible because appellant's medical records were not available to the court.

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No. 13AF'-291 7

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Appellant's counsel filed a motion in limine requesting that the court limit the testimony

of Dr. Bates to his personal observations. However, counsel ",tirithdrew the motion at the

conclusion of the hear.ingbecause it was not necessary based on the testimony.

{¶18} Despite appellant's coritentions, 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 niay 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 hearin.g. Appellant also seeiiis to be arguing that an involuntarily committed

patient cannot be forcibly medicated if that person has the capacity to make an informed

decision.

{¶20} V1rh.en 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 attornev, 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 inipairs 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 C)llio App.3d 161,

164 (6th Dist.1988) ("The creation of a power of attorney requires that the principal be

inentally 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 attorziey appellant had signed the day before the

laearing.

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No. 13AP-2918

{¶214 Appellant also cites to Rogers v. Okin, 738 F.2d 1(xst Cir.1984) andRennie 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 imminen :t harm to

himself/herself or others. However, those cases are distinguishable from these facts.

{^22} In Steele v. Hatnilton Cty. Conzmunittj Mental Health Bd., 9o Ohio St.3d

176 (2000), the Supreme Court of Ohio determined the circumstances under which an

involuntarily committed .m.entally 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 coinmitted mentally ill patient with

antipsychotic drugs when the physician determines that (i) 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 treatnient regimen and testified that he was uilaware of any

lesser treatment alternatives and that the benefits outweighed the risks. He stated that

without treatrnent, he had "significant reservations" about discharging her into the

community because of her behavior presenting a risk to her and others' safety. (Mar. t3,

2073 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.

{1124} In her fourth assignment of error, appellant contends that the magistrate

erred during the March 6, 2013 hearing in precluding appellant from introducing the

testiinony of supportive witnesses. Appellant's complaint is that her attorney did not

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No. 13AF'-291 9

have her daughter, Stephanie Thonias, and a neighbor testify. However, the attorney

explained to the magistrate that he had spoken to two gentlemen, one ivho 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 irrelevarrt to the proceedings. There is no duty to call ANritnesses to present irrelevant

testimoi7y. 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 arguinent before this court. This

court has no reason to think other thaz-i 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;jucl^gment affirmed.

DORRIAN and O'GRADY, JJ., concur.

T. BRYANT, J., retired, formerly of the Third AppellateDistrict, assigned to active duty under authority of the OhioConstitution, Article IV, Section 6(C).