2024 IL App (2d) 230062 Nos. 2-23-0062, 2-23-0063, 2-23-0080, 2-23-0089, 2-23-0090 cons. Opinion filed January 30, 2024 ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Lake County. ) Plaintiff-Appellee, ) ) v. ) Nos. 22-DV-463 ) 23-CC-2 FRANK M. WEINSTEIN, ) ) Defendant-Appellee ) Honorable ) Paul B. Novak (The Department of Human Services, Appellant). ) Judge, Presiding. ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Lake County. ) Plaintiff-Appellee, ) ) v. ) Nos. 22-CF-1808 ) 22-CM-1368 ) 23-CC-1 GABRIELLE RENEE DUNCAN, ) ) Defendant-Appellee ) Honorable ) Paul B. Novak (The Department of Human Services, Appellant). ) Judge, Presiding.

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Lake County. ) Plaintiff-Appellee, ) )

2024 IL App (2d) 230062

v. ) Nos. 22-CF-1438 ) 23-CC-5 LUIS BARRADAS-ALVARADO, ) ) Defendant-Appellee ) Honorable ) Paul B. Novak (The Department of Human Services, Appellant). ) Judge, Presiding. ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Lake County. ) Plaintiff-Appellee, ) ) v. ) Nos. 22-CF-1876 ) 23-CC-6 NILES CLARK, ) ) Defendant-Appellee ) Honorable ) Paul B. Novak (The Department of Human Services, Appellant). ) Judge, Presiding. ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Lake County. ) Plaintiff-Appellee, ) ) v. ) Nos. 22-CF-950 ) 23-CC-7 ELIZABETH SEBESTA, ) ) Defendant-Appellee ) Honorable ) Paul B. Novak (The Department of Human Services, Appellant). ) Judge, Presiding. ______________________________________________________________________________

JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Presiding Justice McLaren and Justice Birkett concurred in the judgment and opinion.

OPINION

¶1 In these consolidated appeals, the circuit court, in five criminal actions, found defendants, Frank Weinstein, Gabrielle Duncan, Luis Barradas-Alvarado, Niles Clark, and Elizabeth Sebesta, 230063

2024 IL App (2d) 230062 unfit to stand trial and ordered that they be placed into the care of and provided inpatient fitness restoration treatment by the Department of Human Services (Department). Subsequently, the court held the Department in indirect civil contempt of court for failing to obey those orders and comply with certain statutory mandates (725 ILCS 5/104-17 (West 2020)) and it imposed a $500-per-day fine in each case until the defendant was placed and provided treatment. The Department appeals.

Ill. S. Ct. R. 304(b)(5) (eff. Mar. 8, 2016) (“[a]n order finding a person or entity in contempt of court which imposes a monetary or other penalty” vests jurisdiction in the appellate court without a special finding). The Department argues that the court erred in finding it in indirect civil contempt, where (1) there was no prima facie evidence of noncompliance with the court’s

unfitness orders; (2) in determining defendants established prima facie cases of contempt, the court improperly relied, in part, on the Department’s purported noncompliance with a statute, rather than the court’s orders; and (3) the evidence did not show willful and contumacious refusals to obey the court’s orders. We affirm.

¶2 I. BACKGROUND

¶3 In each of five criminal cases, the trial court entered an order finding the defendant unfit to stand trial and remanding the defendant to the Department’s custody for inpatient treatment.

Delays by the Department in taking each defendant into its custody and providing treatment led to findings of indirect civil contempt against the Department.

¶4 A. Duncan

¶5 On November 15, 2022, the trial court found Duncan, who had been charged with domestic battery, unfit to stand trial. It ordered the sheriff to transport Duncan to and place her in the custody of the Department and ordered the Department to determine the appropriate placement for Duncan and provide her treatment. The court also ordered the Department to provide, within 30 days, an

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2024 IL App (2d) 230062 opinion as to the probability of Duncan attaining fitness within one year and, if there was such a probability, to file a treatment plan. Finally, the court ordered the Department to file a progress

report at least seven days before a status hearing set for December 20, 2022. On December 2, 2022, the Department notified the court that it had completed an evaluation of Duncan on November 30, 2022, which suggested that she remained unfit to stand trial and that the Elgin Mental Health

Center (Elgin) was the most appropriate inpatient setting for a formal assessment. The Department stated that it would notify the sheriff of admissions availability and coordinate Duncan’s transfer.

At that time, a clinical opinion and treatment plan would be rendered and reported to the court.

¶6 On December 20, 2022, Duncan petitioned for a rule to show cause because she had not, as of the date of her petition, been transported to a Department facility for treatment. On December

27, 2022, the trial court issued the rule to show cause, finding that the Department had wholly and willfully failed and neglected to comply with the statute and the court’s order. It set the case for hearing.

¶7 On January 24, 2023, the evidentiary hearing commenced on Duncan’s petition. Initially, the court heard argument on whether Duncan presented a prima facie case.. The Department argued that it did not fail to comply with the court’s order, as there was no timeline for it to admit

Duncan into custody, and that the failure to comply with a statute cannot be the basis of a contempt finding. The court found that Duncan had established a prima facie case.

¶8 The Department called Agoritsa Barczak, its forensic court services administrator, who testified that she had a doctorate in clinical psychology with a forensic specialization. She oversaw admissions and treatment of forensic individuals who had been remanded to Department custody

as either unfit to stand trial or not guilty by reason of insanity. Addressing the issues at the Department’s mental health facilities, Barczak testified that the primary issue was the dramatic

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2024 IL App (2d) 230062 increase in referrals. While the Department had worked to add capacity and space to accommodate

the referrals, staffing vacancies had also increased. The Department had trouble adding and keeping staff, which was also a nationwide issue. The referral increase was significant; specifically, in the first half of 2022, as compared to the same period in 2021, referrals increased nearly 44%, which tapered off in the second half of the year to about a 20% increase as compared to before the COVID-19 pandemic. Prior to the increase, 80 to 100 individuals were on the waiting list “on a bad week,” whereas, 265 individuals were currently on the list and it had consistently been at that figure for two years.

¶9 Barczak addressed the Department’s efforts to increase capacity, explaining that it had repurposed spaces, including converting units previously used during the pandemic as triage units to accommodate several beds. It also assumed two units at Elgin that previously had been turned over to the Department of Corrections, which added 44 beds (of which 16 had already been

occupied; some of the staff initially hired for these additional beds was no longer with the Department and, thus, more beds could not be filled). The Department also contracted with Ingalls

Memorial Hospital in Harvey (Ingalls), adding about 24 beds (12 of which were added since the beginning of 2022), all of which were occupied. Addressing Lake County, Barczak testified that about 65 to 70 beds had been added with the additional two units at Elgin and the unit at Ingalls.

The Department was looking to expand further.

¶ 10 At Elgin, the Department increased its internal utilization review of cases, in which it currently assessed on a monthly (formerly quarterly) basis individuals who were still in custody

past 30 or 60 days and tried to provide assistance to staff to speed up fitness restoration or accommodate individuals. The Department was also looking into outpatient restoration. Further, in recent years, the Department began operating its facilities as one statewide team, rather than

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regional areas; thus, individuals could be placed at the first clinically appropriate bed anywhere in the state. As to staffing, the Department was placing advertisements and reaching out to temporary staffing services, including seeking out retired staff to return on a time frame contract.

¶ 11 Barczak explained that, after a defendant was referred to the Department for inpatient fitness restoration review, a preplacement evaluator would conduct a preplacement evaluation within seven days. The evaluator would recommend whether the defendant needed inpatient treatment and, if so, the location where they should be placed. The evaluation was typically conducted in person, but some cases required a video or telephone evaluation. The evaluator was

expected to follow up with the jail and its mental health staff every two weeks regarding the defendant’s status. The full evaluation, which assessed a defendant’s probability of attaining fitness within one year and the proposed treatment plan, was conducted only once the defendant is taken into Department custody.

¶ 12 On January 11, 2023, the Department received an update concerning Duncan’s condition and subsequently prioritized her admission. It was based on clinical need. Further, Barczak informed the court that Duncan would be admitted to a Department facility within two to three weeks of the hearing.

¶ 13 The Department had about 20 preplacement evaluators. Daidra Marano, whom Barczak supervised, was a psychologist assigned to conduct preplacement evaluations in Lake and about six other counties. For Duncan, Elgin was the only placement option because she was female, she was not appropriate for a lower security location such as Ingalls, and because of Elgin’s geographic proximity. However, if a bed opens at McFarland Mental Health Center (McFarland) or Alton

Mental Health Center (Alton), the Department would designate that bed for Duncan.

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2024 IL App (2d) 230062

¶ 14 In placing individuals, the Department’s first consideration was clinical necessity and then court date. There were cases where the evaluator received information about an individual

decompensating; the Department relied on that information without independently verifying the individual’s current state through personal contact. The 20-day evaluations were supposed to be conducted in person, but it would depend on the evaluator. Evaluations for the 30-day reports were conducted in person.

¶ 15 Barczak explained that violations of the statutory time frame for placement of individuals predated the pandemic but had worsened since the pandemic. Rules to show cause were filed against the Department prior to the pandemic, but not with the frequency with which they were currently being filed.

¶ 16 Duncan’s preplacement evaluation was completed over the telephone, like the majority of cases in Lake County. Barczak did not believe that this was acceptable. On January 11, 2023, Marano consulted with Deputy Chief Nicholas Kalfas of the Lake County Sheriff’s Office, who had spoken to someone in the jail’s mental health center and related that Duncan “was not looking good.”

¶ 17 Between January 11 and January 24, 2023, Marano had not seen Duncan in person.

(Barczak became aware of this at the hearing.) Barczak acknowledged that there were circumstances where something needed to be done by telephone, such as when jail personnel believed that it would not be safe to remove someone from his or her cell, the individual was too paranoid to sit in front of a videoconference screen or telephone, or he or she was too violent. Jail personnel typically would make this assessment.

¶ 18 Based on information that Marano received from the jail, Duncan was considered inappropriate for in-person evaluation. However, Marano’s general practice was to conduct

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examinations over the telephone with everyone. Kalfas was not a mental health professional, and, according to Barczak, he did not consult with the mental health staff at the jail.

¶ 19 Barczak further testified that, during the pandemic, most jails did not allow in-person visitation and the Department had to find ways to work around this restriction. The telephone evaluations came into play, as well as videoconferencing. Marano informed Barczak recently that

Lake County jail was not in favor of videoconferencing; however, they were not unable to do so.

¶ 20 Kalfas testified that he was the deputy chief of the adult correctional division at the Lake

County Sheriff’s Office. He was responsible for transporting individuals in the jail’s custody to other facilities and was the point person for individuals in custody who have been found unfit to stand trial. Once the Department had a bed available for an individual, Kalfas and his staff would transport him or her there within one week at the most.

¶ 21 According to Kalfas, the jail never stopped allowing in-person visits, including during the pandemic. It also had not stopped allowing Department staff to visit the jail in person. Since March

2020, neither Marano nor anyone else from the Department regularly visited the jail. Until recently

(i.e., January 2023), Marano had visited in person only in July 2022. Marano would call the jail to schedule telephonic preplacement evaluations with inmates. After the evaluations, she regularly

(i.e., every one to two weeks) e-mailed, asking for updates on all the inmates that were currently

on the Department’s waiting list. Kalfas then would call the mental health director or one of the social workers and go through the list with them, asking questions such as if there were any changes in the inmate’s behavior or if they had become more acutely psychotic.

¶ 22 Kalfas testified that, currently, no one at the Department communicated with jail mental health staff. Prior to October 2022, the jail had a director of mental health who spoke to Department

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2024 IL App (2d) 230062 personnel about inmates. She left the jail’s employment in October 2022 and was recently replaced. The new director had not had any contact with the Department.

¶ 23 Regarding Duncan, Kalfas denied that he advised the Department that they could not visit

her in person based on any behavioral or other concerns. Duncan was currently a level 2 inmate, which meant that she was combative with staff and incorrigible. Duncan was not receiving psychotropic medications. He explained that the jail could facilitate visits where the interviewer

and the inmate are separated by a clear partition. It could also bring interviewers to the door of the cell, which has a window where observation is possible. The phone option was not private.

¶ 24 On January 27, 2023, the trial court found the Department in indirect civil contempt for failing to follow the court’s November 15, 2022, order and fined it $500 per day until the contumacious conduct was purged by providing Duncan appropriate treatment. It determined that

Duncan had established a prima facie case and that the Department had failed to meet its burden

of showing that the violation (its failure to provide treatment to Duncan) was not willful and contumacious. It noted that it had ordered that the Department have Duncan transported to a facility

and provide treatment. The court found that the Department did not send a treatment team to the jail to assess Duncan. It found that the fact that Barczak did not know that her subordinate was not coming to the jail showed willfulness. The Department was “doing [ ] nothing” while Duncan was in jail.

¶ 25 One month later, Duncan was transported to Elgin, and the court determined that the Department’s contumacious conduct was purged, with $12,000 having accrued in fines. The Department appeals.

¶ 26 B. Weinstein 230070

2024 IL App (2d) 230062

¶ 27 On November 22, 2022, the trial court found Weinstein, who had been charged with

domestic battery and aggravated assault, unfit to stand trial and entered an order like that in Duncan’s case. On December 13, 2022, the Department notified the court that a preplacement evaluation was completed on December 8 and that the results suggested that Weinstein remained unfit to stand trial and that Elgin was the most appropriate inpatient setting for a formal assessment.

The Department stated that it would notify the sheriff of admissions availability and coordinate

Weinstein’s transfer. At that time, a clinical opinion and treatment plan would be rendered and reported to the court.

¶ 28 On January 4, 2023, Weinstein petitioned for a rule to show cause, asserting that he remained in the Lake County jail well over 30 days after being ordered into the Department’s custody and that he was receiving no fitness restoration treatment, had not received a formal evaluation, and had not received a treatment plan. Weinstein also asserted that the Department provided a status letter on December 13, 2022, informing the court that the Department would conduct a formal assessment only upon admission to their facility. Weinstein sought issuance of a rule to show cause as to why the Department should not be held in contempt of court for failing to place him into treatment and failing to comply with the court’s order for a status report. On January

10, 2023, the court issued the rule, finding that the Department had “wholly and willfully failed and neglected to comply with” statutory mandates and the court’s November 22, 2022, order. It set the matter for hearing.

¶ 29 At the January 31, 2023, evidentiary hearing, after argument, the trial court found that

Weinstein had established a prima facie case. The court noted that it had ordered Weinstein to

receive treatment from the Department—specifically ordering that he be transported to the Department’s custody and that the Department determine the appropriate placement and provide

- 10 - 2024 IL App (2d) 230062 treatment—and that the statute required the Department to file a 30-day report, none of which were completed. Accordingly, it further noted, the burden shifted to the Department. ¶ 30 The Department called Marano. Addressing the issues faced by the Department’s mental health facilities, Marano testified that some facilities had been closed, thus leading to a shortage of beds. Also, since the pandemic, there had been an employee shortage. Marano testified that, when she began her job in September 2020, she was told that she would work from home; she was also told not to go into jails “right now.” ¶ 31 Marano was responsible for the Lake County region. She conducted an in-person reevaluation of Weinstein on January 25, 2023. (Another doctor—Dr. Simonic—had conducted the preplacement evaluation because Marano was on vacation.) Weinstein reported that he was taking Depakote. At the time of the hearing, it was anticipated that Weinstein would be placed within three weeks. Marano did not write a report about her findings from January 25. The first time someone from the Department saw Weinstein in person after he was found unfit, on November 22, 2022, was Marano, on January 25, 2023. ¶ 32 Marano further testified that her boss, Barczak, contacted her after hearings on January 24, 2023, and instructed her to go to the Lake County jail to see everyone who was still unfit to stand trial. Mariano had not seen, or attempted to see, anyone in person at the jail since July 2022, and, prior to that, she worked remotely due to the pandemic. According to Marano, Kalfas never told her that she was not allowed to come to the jail. Rather, Kalfas told Marano that his preference was for her to conduct phone interviews. In person, Marano testified, is the superior way to conduct a preplacement evaluation, and her bosses have relayed this to her. ¶ 33 If there are no in-person visits or phone calls after the preplacement evaluation, Marano would ask Kalfas for monthly or biweekly updates for persons she is tracking, i.e., everyone in the - 11 - 2024 IL App (2d) 230062 Lake County jail who is unfit to stand trial and awaiting placement. Kalfas then would ask the jail’s mental health director for updates. ¶ 34 Marano was responsible for other jails. At other jails, where mental health departments are willing to do so, Marano had provided fitness materials for the defendants to study. Weinstein, she explained, did not understand fitness terminology. ¶ 35 The Lake County jail does not offer a videoconferencing option. Beginning in July 2022, the Department allowed Marano and her colleagues to go back into the field, i.e., the jails, for special circumstances. In July 2022, Kalfas told her his preference was for phone calls because he was short-staffed. ¶ 36 As of the date of the hearing, Weinstein had not received any treatment from the Department. The Department did not provide treatment until a defendant is taken into its custody. Weinstein informed Marano when she visited him in late January 2023 that he was taking medication to treat his illness. ¶ 37 The State called Kalfas. He denied telling Marano that he preferred phone interviews to in- person interviews at the jail. ¶ 38 On January 31, 2023, the trial court found the Department in indirect civil contempt of court for its failure to follow the court’s November 22, 2022, order that it treat Weinstein and further found that its violation was willful and contumacious. It fined the Department $500 per day until its contumacious conduct was purged by providing treatment for Weinstein. Specifically, the court determined that the Department’s “position is untenable.” Referencing the statute, the court noted that it required that a defendant undergo treatment within 30 days of the entry of an order: - 12 - 2024 IL App (2d) 230062 “And 17(e) clearly says that they’re supposed to provide a number of different things to the Court, a description of the treatment plan, all these kind of different things, but the court order that’s in question says that the [D]epartment’s supposed to provide treatment. And the Court’s belief is that that should be within 20 days, but even assuming— even assuming the [D]epartment’s reading is correct, that they’re not required to have the defendant arrive at the facility within 20—20 days, the [D]epartment’s position is that he’s not going to receive treatment for 77 days, this three-week period on top of what he’s been here—he’s been here since November—November 22nd, and so it’s approximately 65 days, somewhere around there, if my math is incorrect. But 65 days without receiving a lick of treatment. And I don’t understand. The [D]epartment is clearly making the decision to not treat people until they get to the facility. That’s a decision they’re making. That goes to willfulness. That absolutely goes to willfulness because the [D]epartment says they can’t— they won’t do it until they get to the facility.” ¶ 39 The trial court further referenced Marano’s testimony that, at other jails, she would provide information to defendants concerning fitness terminology (i.e., educational material concerning fitness terms) and that she had never done that at the Lake County jail. ¶ 40 Subsequently, on February 14, 2023, defendant was transported to Elgin for treatment, and, on February 21, a 30-day treatment report was submitted to the court regarding the Department’s opinion that he can be restored to fitness within one year of the unfitness finding. On February 21, 2023, defense counsel withdrew the petition for a rule to show cause and the court ordered that the contumacious conduct was purged and that the total fine was $6500. The Department appeals. - 13 - 2024 IL App (2d) 230062 ¶ 41 C. Barradas-Alvarado ¶ 42 On November 8, 2022, the trial court found Barradas-Alvarado, who had been charged with violating an order of protection and criminal trespass, unfit to stand trial and entered an order like that in the other defendants’ cases. On November 29, 2022, Marano informed the court that she had completed a preplacement evaluation of Barradas-Alvarado on that date, which suggested that he remained unfit to stand trial and that Elgin was the most appropriate inpatient setting for a formal assessment. Marano stated that the Department would notify the sheriff of admissions availability and coordinate Barradas-Alvarado’s transfer. At that time, a clinical opinion and treatment plan would be rendered and reported to the court. ¶ 43 On December 20, 2022, defendant petitioned for a rule to show cause, asserting that he had yet to be transported to a Department facility for treatment. On the same date, the trial court issued a rule to show cause, finding that the Department had wholly and willfully failed and neglected to comply with the statute and the court’s November 8, 2022, order. ¶ 44 On January 30, 2023, an evidentiary hearing commenced. Initially, the court heard arguments on whether a prima facie case was established. The Department took the position that the court’s order did not include a time frame for the Department to comply with and the order was the proper focus to assess contempt. It also argued that it was not required to provide treatment unless a defendant was in custody at one of its facilities. The court determined that its order was clear and that the statutory deadlines had not been met. Thus, it found that Barradas-Alvarado had established a prima facie case and that the burden therefore shifted to the Department. ¶ 45 The parties stipulated to the contents of the January 20, 2023, declaration of Sharon Coleman. Coleman, the Department’s deputy director of forensic and justice services for the division of mental health, was responsible for the Department’s forensic treatment programs. The - 14 - 2024 IL App (2d) 230062 division operated the state’s six mental health centers. Since May 2020, the division had admitted over 1600 patients to its forensic treatment programs. Since January 2022, there had been a 20% increase in courts’ forensic referrals for Department inpatient care, with 90 referrals in October 2022, a record. The waiting list for inpatient admissions consisted of 193 individuals, plus 72 individuals pending assessment for placement (most of whom would require inpatient admission). ¶ 46 Coleman further stated that, in addition to the substantial increase in forensic referrals, the division also faced a shortage of qualified mental health professionals and other staff. This was reflective of national trends. With considerable recruiting efforts in the past year, the division had hired over 500 employees for its 24/7 facilities, but, with offsetting attrition driven by the pandemic and the workforce crisis, vacant positions had increased by 50%. The average number of vacancies at such facilities was 303 in 2021 and 404 in 2022. The Department partnered with the Department of Central Management Services to expand recruitment efforts, including increasing salaries for entry-level mental health technicians, prioritizing hiring at critical sites, participating in recruitment events, and targeting hiring of nurses. ¶ 47 Another challenge Coleman noted was that there were limited opportunities for community placement of individuals exiting inpatient forensic treatment based on their court-ordered conditional release. This restricted the pace of discharge and ability to free up beds for new admissions. She also addressed the division’s efforts to expand forensic capacity, which included establishing 24 minimum-security beds at Ingalls, opening space at Alton to accommodate 22 new forensic beds, repurposing space at McFarland to add 24 new forensic beds, reclaiming space at Elgin and, thereby, adding 22 new forensic beds in November 2022 and 22 new beds in January 2023. The division was also repurposing 18 minimum-security beds at Chicago Read Mental Health Center and 5 minimum-security beds at Choate Developmental Center for patient “step - 15 - 2024 IL App (2d) 230062 down,” thereby freeing up existing beds in the system for unfit-to-stand-trial admissions. It was also making extensive capital improvements at an unused building at Alton to create up to 90 additional forensic beds (with a potential fall 2024 opening). The division was exploring additional partnerships with private hospitals to provide additional inpatient restoration beds, as well as additional step down options for not-guilty-by-reason-of-insanity individuals appropriate for conditional release or discharge from inpatient care at the Department, which would open up additional inpatient forensic beds. ¶ 48 Coleman also testified. She stated that, initially, Barradas-Alvarado had been directed to Elgin (in a medium-security unit) but was now directed to Chester Mental Health Center (Chester) (also in a medium-security unit); Elgin’s capacity was full. Barradas-Alvarado was previously treated at Chester’s medium-security unit. Currently, the waiting list at Chester was 40 to 50 individuals. In order to admit new individuals, others must be discharged. At Elgin, there were about 30 to 40 individuals on the waiting list for admission. (Every facility had a waiting list, totaling 250 people across the state. There was a waiting list even 10 years ago, and there were staff shortages, though of a lesser extent, before the pandemic.) However, if a bed became available at another treatment program that was consistent with patient needs, the Department would make a change. (Coleman estimated that, as of the hearing date, Barradas-Alvarado’s wait time for a bed was two to three additional weeks.) ¶ 49 Barradas-Alvarado was redirected to Chester because Marano’s most recent review of his clinical status the prior week (January 25, 2023) identified Chester’s medium security unit to be just as appropriate a treatment program as Elgin’s. ¶ 50 Generally, individuals were prioritized according to the date of the court order, but the list was reprioritized daily based on the clinical condition of any one patient. If an individual was - 16 - 2024 IL App (2d) 230062 deteriorating in the jail, they may be expedited and placed ahead of someone who had been waiting longer. As for Barradas-Alvarado, others had been prioritized over him in Lake County. The onus was on the Department, not the jail, to obtain the clinical update, and the Department’s policy is to monitor individuals awaiting transport every two weeks. ¶ 51 Prior to January 25, 2023, the only direct contact the Department had with Barradas- Alvarado was during the preplacement evaluation in November 2022. Barradas-Alvarado was interviewed over the phone because Marano had recently had arm surgery. At that time, he was not taking his medication; he had refused it. ¶ 52 The preplacement evaluation was supposed to occur within 7 to 10 days of receipt of the referral. The evaluator would determine the individual’s clinical condition and need for inpatient treatment and which hospital would best suit the individual’s needs. The Department tried to keep individuals geographically close to their courts. ¶ 53 Addressing whether the Department could attempt to initiate treatment in the jail, Coleman testified that most of the individuals who awaited inpatient admission were psychiatrically ill and either unmedicated or undermedicated. She stated that it was clinically not possible or prudent to attempt fitness restoration in terms of didactic education for individuals who were psychiatrically ill. They were not able to benefit from it, and the Department did not have the staffing to go into a jail to provide psychiatric services. Coleman further testified that she did not believe that the Department even had the authority to provide services on-site (per MW). Nor did the Department have the resources to create a treatment plan in the jail, because it was a multidisciplinary process involving social workers and nursing, psychiatric, and medical staff. She estimated that 97% of the individuals referred were not taking their medication or were poorly compliant and very psychiatrically ill. There wa no ability to enforce medication compliance in the jail environment. - 17 - 2024 IL App (2d) 230062 Prior to the pandemic, there were discussions between the Department and the Lake County jail about doing jail-based restoration. Nothing had moved forward on it, but Coleman conceded that it was possible to provide some level of treatment for individuals who have started medication in jail, noting that the Department had assessed and found people fit while in custody at the jail; however, that occurred with a “small minority” of individuals and usually those who voluntarily decide to comply with medication. Currently, the Department was considering pilot programs and looking at funding and providing services directly in the jails. This may include elements of jail- based restoration. ¶ 54 Coleman testified that it was concerning that Marano had appeared in person at the jail only twice since July 2022 (if the July 2022 visit was her only visit in three years). The Department’s preference was that people see individuals on-site and in person. About one week before her testimony, Coleman learned that Marano had not been coming to the jail on a regular basis. In response, she reaffirmed to Marano the Department’s protocol that evaluations must be on-site, unless the jail determines that someone is too violent to be seen in person or for other reasons. ¶ 55 Addressing the Lake County jail’s mental health services, Coleman testified that it had such services but they were not “significantly robust for the kind of individuals that are waiting for an inpatient admission to” the Department. Thus, there were fewer mental health resources at the jail and, relative to other jails (such as Cook County, which has a fully functioning hospital), people tended to decompensate quicker at the Lake County jail. They would go without treatment longer and, therefore, the Department prioritized these inmates over others in many cases. ¶ 56 Addressing budgeting, Coleman testified that the Secretary of Human Services and Governor’s offices “have been clear that they are affording all resources to this.” Thus, the issue - 18 - 2024 IL App (2d) 230062 was not budget but staffing, which predated the pandemic; the Department had been unable to hire. There was a “significant deficit in psychiatry,” and the Department could not run hospitals without psychiatrists. The Department had tried to hire “within the state employees” and use outside vendors. The feedback it received was that individuals were not interested in working in state hospitals when there were “better” (e.g., telehealth work as opposed to clinical work in facilities) opportunities. As to compensation, Coleman testified that the Department had adjusted the pay scale for many disciplines to incentivize people to work for it, including in psychiatry. Also, in the past year, there were 249 recruitment events with 9746 attendees. ¶ 57 Next, Marano testified as an expert in forensic psychology. She first interacted with Barradas-Alvarado in September 2021, when she conducted a phone interview with him. He was found unfit to stand trial and was sent to Chester. With respect to this case, Marano reengaged with Barradas-Alvarado via a desk review (i.e., not a phone evaluation but a review of records, court paperwork, medical chart, LEADS information, arrest report, and psychological evaluations) on November 10, 2022, and creating a letter recommending that he be admitted to Elgin. She did not interact with him until January 25, 2023, when Marano conducted a follow-up evaluation that consisted of a five to ten minute “cell-front” evaluation. She concluded that Barrados-Alvarado had a fair understanding of court terminology. He was a medium security risk, and either Elgin or, preferably, Chester, whichever becomes available first, would be a proper placement. Chester is more appropriate because of Barradas-Alvarado’s escape history, which Marano learned about in January 2023 when she visited him. He was in a segregated unit due to, according to an officer, failing to follow rules, refusing to exit his cell, flooding the cell, stopping up the toilet, and being verbally aggressive to females. Barrados-Alvarado was not taking medication. - 19 - 2024 IL App (2d) 230062 ¶ 58 Marano spoke to Kalfas about Barradas-Alvarado via e-mail. When asked again about her desk review, she reaffirmed that, without speaking to Barradas-Alvarado, she made the determination that he remained unfit to stand trial and that it was substantially probable that he will attain fitness within one year. ¶ 59 In November 2022, Marano had tendon surgery and she could not use her hand or a computer because she wore a cast. She continued working and conducted desk reviews, “because otherwise everything would have been further delayed.” She believed she would not have been permitted in the jail while wearing a cast, assuming the jail’s policy was similar to the Department of Corrections’ policy. She acknowledged, however, that the jail had clear partitions. ¶ 60 Kalfas told Marano in July 2022 that he was understaffed and that it was best to proceed with phone evaluations. Marano also offered to do “Webex” videoconferences but was told that was not available. ¶ 61 Next, Kalfas testified that the jail did not have a policy precluding people who were wearing casts after medical procedures from visiting the jail. The jail did not allow professional visits through videoconferencing, but it did have a noncontact visit option, specifically, with a clear partition. ¶ 62 Currently, mental health services were contracted to Wellpath, which provided an on-site psychiatrist for six hours per week. The jail also had a director of mental health, who worked 40 hours per week, and a social worker, who worked 16 hours per week. ¶ 63 Kalfas would communicate with Marano via e-mail once every few weeks. She would respond via e-mail to schedule phone interviews. When a new case came in, Kalfas e-mailed Marano fitness paperwork, as well as discovery, medical records, and other material. ¶ 64 The parties stipulated to the admission of Barczak’s testimony from Duncan’s case. - 20 - 2024 IL App (2d) 230062 ¶ 65 On February 14, 2023, the trial court found the Department in indirect civil contempt and fined it $500 per day until it purged its willful and contumacious conduct by providing Barradas- Alvarado treatment. It noted that, on November 8, 2022, it ordered the Department to treat Barradas-Alvarado and provide, within 30 days, an opinion as to the probability that he could attain fitness within one year. Addressing willfulness, the court noted that the Department is in charge of its own facilities and it found that the delays were budgetary. Department personnel are working for less pay and in “less than ideal circumstances.” The court found that, if personnel were paid more, there would be more employees. Further, the court noted that there were 28 beds, according to Coleman, but a backlog of 250 people, which, it determined, was relevant to consider as to willfulness. The court also noted the jail restoration program, which had not been pursued, and the years-long waiting list. ¶ 66 As to Barradas-Alvarado, the court noted that he had been in jail for 94 days with no treatment, which was “unconscionable.” The Department never filed a motion asserting that it would not be able to comply with the statute; rather, its actions were “reactive,” which factored into the court’s willfulness determination. ¶ 67 The Department’s contempt was purged on February 21, 2023. It appeals. ¶ 68 D. Clark ¶ 69 On December 20, 2022, the trial court found Clark, who had been charged with attempted residential burglary, unfit to stand trial and entered orders like those in the other defendants’ cases. On January 23, 2023, the Department informed the court that it had completed a preplacement evaluation of Clark on December 28, 2022, which suggested that he remained unfit to stand trial and that Elgin was the most appropriate inpatient setting for a formal assessment. The Department - 21 - 2024 IL App (2d) 230062 stated that it would notify the sheriff of admissions availability and coordinate defendant’s transfer. At that time, a clinical opinion and treatment plan would be rendered and reported to the court. ¶ 70 On January 24, 2023, Clark petitioned for a rule to show cause as to why the Department should not be held in contempt of court for failing to abide by the court’s December 20, 2022, order. Specifically, Clark asserted that the Department’s status letter on January 23 was dated 34 days after his assessment and that he had not yet been transported to a Department facility or provided treatment. ¶ 71 Also on January 24, 2023, the trial court issued the rule and set the matter for hearing. The evidentiary hearing commenced on February 14, 2023. The Department noted that, as in a previous case, it requested that the court discharge the rule it had entered. The court denied the Department’s request and noted that, therefore, the burden had shifted to the Department. ¶ 72 The Department called Tima Smith, a clinical psychologist who worked as a preplacement forensic investigator for the Department. Smith testified that she was initially assigned to Clark’s case because Marano was on vacation. She attempted to conduct a preplacement evaluation via telephone on December 28, 2022, but, initially, Clark did not come to the phone. He eventually came to the phone, Smith explained her role, and then Clark put down the phone and, per a sheriff’s deputy, walked away. Smith explained that she attempted the evaluation via telephone because she had tested positive for COVID-19. Marano was currently assigned to the case. ¶ 73 No one else was available to conduct the evaluation because, within a two-week period, Smith’s division was short three evaluators—two were on vacation and one retired. Only two individuals were available to cover 18 counties. - 22 - 2024 IL App (2d) 230062 ¶ 74 Once Clark ended the call, Smith conducted a desk review. She recommended Elgin because Clark was not exhibiting aggression and was not on medication. She noted that her observations were consistent with the fitness evaluator’s observations. ¶ 75 Addressing Clark’s interaction with Smith on the phone, Smith stated that he made statements indicative of active paranoid delusions. Clark felt that the state was against him, and he wanted to sue. He was very agitated and displayed thought disorganization. This aligned with the fitness evaluator’s report that Clark was schizophrenic. ¶ 76 Smith was assigned to Clark’s case from December 22, 2022, to January 4, 2023. During that time, she received no updates from the jail regarding his status there. Sometimes, jails initiate contact if someone is in distress or exhibiting extreme behaviors. Clark did not receive any restoration treatment in the jail. ¶ 77 Next, Marano testified that she met with Clark on January 25, February 16, and February 23, 2023. On January 25, Marano visited Clark at the jail and reviewed fitness terminology. His symptoms interfered with his ability to understand the terminology. Marano reviewed Smith’s recommendation for placement and felt it was appropriate. Also, Marano met with the jail’s mental health director and discussed the individuals on her caseload and their needs. (A new mental health director started at the jail in December 2022.) Marano asked Clark if he was willing to take medication, and he replied that he was not willing to do so. ¶ 78 Marano next saw Clark on February 16, 2023, and he did not mention as many delusions that day. He wanted to understand how he could engage with the court, so they discussed options. Marano did not move forward with a formal evaluation because Clark began exhibiting symptoms. Clark became mad and then left. - 23 - 2024 IL App (2d) 230062 ¶ 79 Marano’s final visit to see Clark was on February 23, 2023. During the visit, she went to Clark’s cell and spoke to him through the door because his unit was on lockdown due to quarantine. Her evaluation was not in depth because other people could overhear. Clark reported that he was doing okay and was feeling claustrophobic and irritable but was not as angry. He was calm, and his room was orderly and clean. Based on this evaluation, Marano did not change her recommendation for him. ¶ 80 Currently, Marano would visit the jail every Thursday and sometimes on Tuesday. She had asked for updates on individuals at the jail. She returned from vacation on January 3, 2023, and did not visit the jail until January 25, 2023. She returned after she had her cast taken off and pursuant to an order directing Department employees to do so. ¶ 81 Next, the parties stipulated to the admission of Barczak’s testimony from Duncan’s case, Coleman’s testimony from Barradas-Alvarado’s case, as well as Coleman’s declaration from Barradas-Alvarado’s case. ¶ 82 The trial court, on February 24, 2023, found the Department in indirect civil contempt, determining that the Department’s conduct was willful and contumacious for failing to follow the court’s December 20, 2022, order to properly issue its 30-day report and to have Clark transported to and provided treatment at a Department facility. The court also determined that the Department was not spending sufficient funds to have individuals in the jail transferred and provided treatment. The court noted that the individuals were presumed innocent of the charges against them and that the Department had decided not to treat individuals in the jail or to provide them medication. It also was not making sufficient efforts to more quickly transfer individuals to its facilities. The court found that the waiting lists predated the pandemic. The court ordered the Department to pay $500 per day until it purged its contempt by providing treatment to Clark. - 24 - 2024 IL App (2d) 230062 ¶ 83 In March 2023, Clark was transported to Elgin and the Department submitted a treatment plan with an opinion as to the probability of his attaining fitness within one year. On March 14, 2023, the court found that the Department had purged its contumacious conduct and that the total accrued fine was $6500. The Department appeals. ¶ 84 E. Sebesta ¶ 85 On December 13, 2022, the trial court found Sebesta, who was charged with false alarm/complaint to 911 and speeding, unfit to stand trial and entered an order like those in the other defendants’ cases. On December 21, 2022, the Department informed the court that it had completed a preplacement evaluation of Sebesta on that date, which suggested that Sebesta remained unfit to stand trial and that Elgin was the most appropriate inpatient setting for a formal assessment. The Department stated that it would notify the sheriff of admissions availability and coordinate Sebesta’s transfer. At that time, a clinical opinion and treatment plan would be rendered and reported to the court. ¶ 86 On January 24, 2023, Sebesta petitioned for a rule to show cause, alleging that the Department had not transported her to one of its facilities to undergo treatment and that it had not provided any additional status reports or findings related to her ability to attain fitness within one year. Also, on January 24, 2023, the trial court issued a rule to show cause, finding that the Department had “wholly and willfully” failed and neglected to comply with the statute and the court’s December 13, 2022, order. It set the case for hearing. ¶ 87 At a February 14, 2023, evidentiary hearing, the Department conceded that a prima facie case had been established and that the burden had shifted to it. It called Marano, who testified that she was assigned to Sebesta’s case in December 2022. On December 21, 2022, she conducted a preplacement evaluation over the telephone and recommended that Sebesta go to Elgin for - 25 - 2024 IL App (2d) 230062 treatment. Following the evaluation, Marano went to the Lake County jail on January 25, 2023, and saw Sebesta in person. She testified that Sebesta had a good knowledge of legal terminology. She was upset that she was wearing clothing that, as she told Marano, meant to her that she was identified as being aggressive. Sebesta was not on any medication and requested a specific medication and Marano contacted the mental health director about it. Marano was scheduled to see Sebesta again on February 16, 2023, in person, to see how she was doing. Prior to January 25, 2023, Marano did not attempt to see Sebesta in person. She had conducted a desk review. She conceded that the best practice in performing intake placement exams was an in-person assessment. ¶ 88 Marano recalled that she did not complete an assessment of Sebesta because she was told, via e-mail from Kalfas, that Sebesta was too aggressive to come to the phone. Thus, between the December 13, 2022, unfitness finding and January 25, 2023, Marano did not meet with Sebesta or speak with her on the phone. Marano, however, asked, via e-mail, for biweekly or monthly updates from the jail. ¶ 89 On February 7, 2023, Marano met with the jail’s mental health director and learned that the nurse practitioner believed that the medication Sebesta requested was not appropriate, due to side effects. Thus, Sebesta remained unmedicated. Marano had provided no treatment to Sebesta in regard to fitness restoration, but she provided the mental health director with fitness handouts if the director felt that it was appropriate to give them to Sebesta. ¶ 90 On February 24, 2023, the hearing continued. The parties stipulated to the admission of Barczak’s testimony from Duncan’s case, Coleman’s declaration from Barradas-Alvarado’s case, and Coleman’s testimony from Barradas-Alvarado’s case. Further, the parties stipulated to an affidavit by Marano wherein she included updates on Sebesta. Marano averred that she met with - 26 - 2024 IL App (2d) 230062 Sebesta in custody on January 25, 2023. She attempted to meet with her again on February 16, 2023, but, when she went to Sebesta’s cell, Sebesta yelled and was belligerent. Marano updated the mental health director at the jail and her supervisors. On February 23, 2023, Marano again attempted to meet with Sebesta at the jail. When she went to Sebesta’s cell, Sebesta demanded that the interview be recorded and yelled racial slurs and profanities at Marano and threatened Marano’s and her family’s lives. Marano updated the jail and her supervisors. ¶ 91 Sebesta called Kalfas, who testified that, in mid-December 2022, he transmitted to the Department information concerning Sebesta’s case. Further, prior to January 1, 2023, he did not recall informing the Department that Sebesta was too aggressive to even attempt to complete a phone evaluation. ¶ 92 On January 11, 2023, Kalfas received a communication from Marano providing a list of individuals she believed were currently in the jail’s custody who were unfit to stand trial. Sebesta’s name was not on the list. “There were names I had to add to the list.” He informed Marano that Sebesta was decompensating while in custody. Marano, according to Kalfas, came in person to the jail on January 25, 2023, and had visited every Thursday since that date. ¶ 93 The trial court found the testimony “astonishing,” noting that Sebesta was found unfit on December 13, 2022, but Department personnel did not see her until the court, on January 24, 2023, ordered the Department to do so. Thus, Sebesta, who was presumed innocent, was in jail for 43 days (from the issuance of the rule to the hearing date) without receiving any treatment or transport. The court found the Department in indirect civil contempt of court. It further noted that the Department had not provided a 30-day report because, it found, it “chooses to not follow the statute.” The court fined the Department $500 per day until the contempt was purged. - 27 - 2024 IL App (2d) 230062 ¶ 94 On April 3, 2023, Sebesta was transported to Elgin, and the Department submitted a treatment plan containing an opinion as to the probability of Sebesta attaining fitness within one year. The trial court found that the Department had purged its contumacious conduct and that the total accrued fine was $6500. The Department appeals. ¶ 95 II. ANALYSIS ¶ 96 The Department argues that the trial court’s findings were against the manifest weight of the evidence and that its contempt orders were an abuse of discretion because (1) there was no prima facie evidence of noncompliance with the unfitness orders; (2) in determining that defendants established prima facie cases of contempt, the court improperly relied, in part, on the Department’s purported noncompliance with a statute, rather than a court order; and (3) the evidence did not show a willful and contumacious refusal to obey the unfitness orders. The Department contends that each of the foregoing reasons is a sufficient basis to reverse, and it requests that we vacate the contempt orders. For the following reasons, we find the Department’s arguments unavailing. ¶ 97 A. Statutory Framework ¶ 98 The Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/100-1 et seq. (West 2020)) includes procedures for the involuntary commitment of defendants found unfit to stand trial. Its provisions govern proceedings to involuntarily admit those defendants and to determine whether they remain unfit to stand trial. In re Clarke, 200 Ill. App. 3d 365, 369 (1990). Under the Code, the court retains “supervisory jurisdiction” to monitor an unfit defendant’s commitment and treatment. See People v. Lavold, 262 Ill. App. 3d 984, 990 (1994) (discussing the period during which a pretrial detainee may be held pursuant to this jurisdiction without a separate finding that he or she is subject to civil commitment). Specifically, section 104-16(d) of the Code provides - 28 - 2024 IL App (2d) 230062 that, upon finding a defendant not fit to stand trial but likely to become fit within one year, the court must order the defendant to undergo treatment to render him or her fit to stand trial. 725 ILCS 5/104-16(d) (West 2020). ¶ 99 At the time of the proceedings, section 104-17(b) provided, in relevant part: “If the defendant’s disability is mental, the court may order him [or her] placed for treatment in the custody of the Department ***. If the court orders the defendant placed in the custody of the [Department], the Department shall evaluate the defendant to determine to which secure facility the defendant shall be transported and, within 20 days of the transmittal by the clerk of the circuit court of the placement court order, notify the sheriff of the designated facility. Upon receipt of that notice, the sheriff shall promptly transport the defendant to the designated facility. If the defendant is placed in the custody of the [Department], the defendant shall be placed in a secure setting. During the period of time required to determine the appropriate placement the defendant shall remain in jail. *** [U]pon completion of the placement process, the sheriff shall be notified and shall transport the defendant to the designated facility. If, within 20 days of the transmittal by the clerk of the circuit court of the placement court order, the Department fails to notify the sheriff of the identity of the facility to which the defendant shall be transported, the sheriff shall contact a designated person within the Department to inquire about when a placement will become available at the designated facility and bed availability at other facilities. If, within 20 days of the transmittal by the clerk of the circuit court of the placement court order, the Department fails to notify the sheriff of the identity of the facility to which the defendant shall be transported, the sheriff shall notify the Department of its intent to transfer the defendant to the nearest secure mental health facility operated by the Department and - 29 - 2024 IL App (2d) 230062 inquire as to the status of the placement evaluation and availability for admission to such facility operated by the Department by contacting a designated person within the Department. The Department shall respond to the sheriff within 2 business days of the notice and inquiry by the sheriff seeking the transfer and the Department shall provide the sheriff with the status of the evaluation, information on bed and placement availability, and an estimated date of admission for the defendant and any changes to that estimated date of admission. If the Department notifies the sheriff during the 2 business day period of a facility operated by the Department with placement availability, the sheriff shall promptly transport the defendant to that facility. The placement may be ordered either on an inpatient or an outpatient basis.” Id. § 104-17(b). 1 ¶ 100 At the time relevant to these appeals, 2 section 104-17(e) provided, in relevant part: