author: JUSTICE McCULLOUGH

text:
      In re E.S. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Shelly Coleman, Respondent-Appellant).
    Fourth District
    No. 4 — 92—0541
    Opinion filed June 30, 1993.

      Gregg W. Bonelli, of Mattoon, for appellant.
    C. Stephen Ferguson, State’s Attorney, of Charleston (Norbert J. Goetten, Robert J. Biderman, and James Majors, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

On June 25, 1992, the parental rights of Shelly Coleman to her four minor daughters, E.S. (born February 27, 1985), C.S. (born January 18, 1983), P.S. (born July 17, 1981), and N.S. (born May 15, 1979), were terminated. Shelly has appealed, contending (1) the trial court erred by failing to grant her motion for witness fees and (2) its finding of unfitness was against the manifest weight of the evidence. She also contends the trial court erred in refusing to find she was entitled to the benefits of a purported settlement agreement in the United States District Court in Norman v. Suter (N.D. Ill.), No. 89— C — 1624. We affirm.

On September 28, 1988, a child protection investigator for the Illinois Department of Children and Family Services (DCFS) received a hotline report concerning Shelly and her daughters alleging environmental neglect and inadequate shelter. The investigator proceeded to the given address and found Shelly and her daughters living in a filthy, rodent-infested apartment. The entire floor of the apartment was covered with garbage, food, dirty clothes, and cockroaches. Open food containers were visible on the kitchen counter and the upstairs bathroom was nonfunctional.

The children were removed from the home, and the following day a petition for a finding of neglect was filed alleging Shelly:

“(A) does not provide the proper and necessary support or other care necessary for their [her daughters’] well[-]being, in that [she] maintains the home in a general filthy condition.
(B) And whose environment is injurious to the welfare and that the home is in a filthy condition with garbage and dirty clothing throughout the home and that the home is infested with cockroaches.”

A shelter-care hearing was held on October 5, 1988. Temporary custody and guardianship was placed with DCFS. An order of adjudication was entered October 27, 1988, finding the children to be neglected minors. A dispositional order was entered June 13, 1989, awarding custody and guardianship to DCFS and ordering respondent to comply with service plans and follow and complete mental health treatment deemed necessary.

On February 27, 1992, the State filed an amended petition for the termination of Shelly’s parental rights alleging she had failed to make reasonable efforts to correct the conditions which were the basis for the removal of the children or to make reasonable progress toward the return of the children within 12 months after the adjudication of neglect. (Ill. Rev. Stat. 1991, ch. 40, par. 1501(D)(m).) A hearing on this amended petition was held on June 10, 11, 19 and 25, 1992.

Gale Steidl was the first DCFS caseworker assigned to Shelly when the children were removed from the home in 1988. Steidl reviewed the five client service plans she created for Shelly between October 1988 and October 1990. She noted the objectives in each were essentially the same, namely, develop regular visitation with the children, provide a structurally safe and protective living residence, demonstrate money-management skills, cooperate and meet with a homemaker and attend mental health counseling. With the exception of the regular visitation, Shelly had unsatisfactory progress in every objective for this entire two-year period. She failed to maintain a suitable residence for any length of time. Between October 1988 and March 1989, the period of the review of the first client service plan, Shelly had four temporary residences, made excuses about moving from each one, entered into illegal leases, and had conflicts with the owners of the places she leased because of her alleged thefts. Shelly failed to meet all of the other objectives, including failing to meet with the homemaker or attend mental health counseling. She had obtained no permanent job. At this time, the permanency goal for the children was “return home.”

In March 1989, a new plan was made with the same objectives. In October 1989, that plan was reviewed and Shelly had unsatisfactory progress in every single objective, including visitation with the children. A new plan was developed at this time with new objectives, including that she (1) demonstrate in counseling that she accepted responsibility for the conditions causing the removal of the children; (2) protect her children from further sexual abuse; and (3) provide necessary understanding in support of the children. At this time, Shelly’s husband, Nelson Coleman, was on trial for the sexual abuse of C.S. Shelly constantly maintained her husband’s innocence. Eventually, Nelson was convicted of the crime, but this court overturned his conviction. (People v. Coleman (1990), 205 Ill. App. 3d 567, 563 N.E.2d 1010.) At this point, the children had been removed from Shelly for one year and she had made no progress toward the return of the children. Shelly was told that this was a very serious situation and, since one year had passed without any progress, the State could file a petition to terminate her parental rights.

Between April and March 1990, a new client service plan was drawn and a case review was held. The permanency goal had been changed to “substitute care pending a court decision” because the State had decided to file a petition to terminate Shelly’s parental rights. The same objectives were included in this plan and, except for the regular visitation with the children, Shelly had unsatisfactory progress on all other objectives. In October 1990, the permanency goal was still “substitute care pending a court decision” and Shelly had satisfactory progress with regard to the objective of regular visitation with the children but remained unsatisfactory in all other objectives.

Judy Sattazahn, the case review administrator for DCFS, testified as to four case reviews she participated in with Shelly. These occurred in March and October 1989, and April and October 1990. She reiterated the fact that Shelly had unsatisfactory progress for all the objectives except visitation with the children. At the October 1989 review, Shelly had unsatisfactory progress even on the visitation objective.

Several other homemakers and caseworkers from DCFS testified regarding Shelly’s progress between the time the children were removed from her home and the date the petition for termination of parental rights was filed. Each person testified Shelly failed to have stable housing or to attend counseling or cooperate with the homemakers.

A bonding assessment was ordered by the court on October 3, 1991, and a report on that assessment was submitted to the court on January 7, 1992. The report recommended that the children remain together if at all possible and remain in foster care with their foster parents. The report recommended the visits between Shelly and her children cease because each child had a flat relationship with her mother and was ambivalent and agitated during visits with her mother. The bonding assessment was terminated early because the evaluator suspected misconduct by Shelly in that she had engaged in inappropriate behavior with C.S. and her grandmother.

On June 19, 1992, the court concluded the State had established by clear and convincing evidence that Shelly was an unfit parent. The court noted Shelly had failed to comply with the proper housing objectives and the budgeting plans, or cooperate with the homemaker; neither did she participate in the mental health treatment. The court commended her for the regularity of her visitation with the children but reiterated the fact that maintaining visitation alone is not enough to overcome the petition to terminate parental rights. The court concluded she had not made reasonable efforts or reasonable progress toward correcting the conditions which were the basis for the removal of the children. On June 25, 1992, after interviewing the children in chambers, the court found it overwhelmingly clear that it was in the best interests of the children to terminate Shelly’s parental rights. Shelly timely filed her notice of appeal.

Shelly first contends the trial court erred by denying her request for witness fees. On October 3, 1991, the trial court ordered the bonding assessment of Shelly, the four girls, and their respective fathers. Subsequently, Shelly’s mother was ordered to be included in the bonding assessment.

The bonding assessment was performed at the DCFS regional office in Charleston on December 13, 1991. Dr. Elizabeth Scott conducted the assessment and her report was submitted to the court on January 7, 1992. On February 6, 1992, Shelly requested $800 for an additional expert witness to do another bonding assessment. She alleged the first bonding assessment failed to focus on her interaction with the girls alone and also alleged that C.S. was afraid to live in the foster home because of an incident of abuse by the foster parents’ adopted daughter.

The trial court heard arguments by all parties and then denied the request for witness fees for this bonding assessment. The trial court noted it was its duty to exercise discretion over the situation and that it would deny Shelly’s motion.

In support of her contention, Shelly asserts, as she did at trial, “juvenile court” matters are similar to criminal matters because both types of cases involve a deprivation of liberty. Shelly attempts to equate an indigent criminal defendant, who is entitled to expert witness costs in noncapital cases where the expert testimony has been deemed crucial to a proper defense by the trial judge, to an indigent parent facing the termination of her parental rights. She contends the parent whose rights to be with the children are terminated is deprived of sharing the joy of childhood with his or her children and has lost his or her right to have any contact with the children. Shelly concludes the bias of Dr. Scott was evident in the bonding assessment report and she was denied a fair trial because of the court’s failure to grant her request for expert fees for another bonding assessment.

The State contends Shelly has waived the resolution of this issue because she did not file a notice of appeal of the denial of her motion for witness fees until more than 30 days after the denial of that motion. The State alternatively suggests Shelly has waived this issue because she agreed to the use of Dr. Scott when the bonding assessment was first ordered and did not object to that procedure until one year and eight months after the first order. Finally, the State contends the trial court had no authority to appoint an expert witness and pay the fees and further contends the evidence showed Shelly had her own funds to secure the testimony of the expert -witness.

In both capital and noncapital cases, the trial court may order payment for expert witnesses on behalf of indigent defendants. (Ill. Rev. Stat. 1991, ch. 38, par. 113 — 3(d); People v. Kinion (1983), 97 Ill. 2d 322, 454 N.E.2d 625.) Proceedings under the Juvenile Court Act of 1987 (Act) (Ill. Rev. Stat. 1991, ch. 37, par. 801 — 1 et seq.) are civil in nature and the general rules of civil practice apply. (In re D.L. (1992), 226 Ill. App. 3d 177, 187, 589 N.E.2d 680, 686; In re J.J. (1991), 142 Ill. 2d 1, 8, 566 N.E.2d 1345, 1348.) Once there has been a finding of neglect pursuant to the Act, the proceedings by which parental rights are terminated are governed by the Adoption Act (Ill. Rev. Stat. 1991, ch. 40, par. 1501 et seq.). (In re Tolbert (1978), 62 Ill. App. 3d 927, 929, 378 N.E.2d 565, 567.) The provisions of the Civil Practice Law (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 101 et seq.) and the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 1 — 101 et seq.), including all existing and future amendments and supreme court rules, apply to all adoption procedures unless otherwise specified. Ill. Rev. Stat. 1991, ch. 40, par. 1524.

There is no provision in the Civil Practice Law corresponding to that in section 113 — 3(d) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1991, ch. 38, par. 113 — 3(d)) allowing the payment of expert witnesses on behalf of indigent defendants. The most analogous provision is found in Supreme Court Rule 215(b) (134 Ill. 2d R. 215(b)), which provides for the appointment of an impartial physical or mental examination of a party whose mental or physical condition is in issue. This may be done in the court’s discretion when it appears that such an examination will materially aid in the just determination of the case.

Shelly has cited no authority for her proposition that “juvenile court” matters are similar to criminal matters thus allowing the payment of expert witnesses for indigent defendants. In fact, case law supports the opposite conclusion, namely, that these matters are civil in nature and civil practice rules apply. Thus, we find this argument unpersuasive.

Even assuming the trial court had some authority to grant the motion, Shelly was not prejudiced by its denial. She made no objection to the court’s order appointing Dr. Scott to perform the bonding assessment. Moreover, Shelly only objected to Dr. Scott after her report, which reflected negatively upon Shelly and her interaction with the children, was submitted to the court. She was in disagreement with Dr. Scott and wanted another assessment done to contradict Dr. Scott’s assessment. Shelly alleged no ground for any possible bias or improper conduct by Dr. Scott. Finally, Shelly extensively cross-examined Dr. Scott about the report and had an opportunity to point out any defects in that report. Accordingly, there was no abuse of discretion by the trial court in denying Shelly’s motion for expert witness fees.

Next, Shelly alleges the trial court erred in denying that a purported settlement agreement in Norman v. Suter (N.D. Ill.), No. 89 — C—1624, is applicable here. Shelly alleges that under that settlement agreement, DCFS has to review all cases in which custody of a defendant’s children was taken due to environmental neglect or inadequate food, shelter, or clothing, and offer services to find suitable housing and shelter for the children. Included in the record on appeal is the notice of a post-settlement class action lawsuit affecting families involved with DCFS who cannot meet the substance or housing needs of their children. However, Shelly has offered no support to show that this settlement agreement has in fact been reached or that Shelly is a class member of that lawsuit. She offered no evidence to suggest that DCFS was under any mandate to offer these types of services to her in this case. In any event, no settlement in Federal court between a State agency and some litigant affects the authority or jurisdiction of the circuit courts of this State to adjudicate petitions to terminate parental rights under applicable State law, nor could such a settlement affect the justiciability of the issue.

Even assuming Shelly somehow qualified for such services, Beverly Pryor, a DCFS case review administrator, testified Shelly did not qualify for such assistance because she was uncooperative with DCFS and the permanency goal was no longer “return home,” but had been changed to “substitute care pending court decision.” Thus, even assuming Shelly has not waived this issue, she has offered no support to show that she was in fact entitled to such services or that DCFS erred in not providing these services to her.

Finally, Shelly contends the trial court’s finding that she was an unfit parent was against the manifest weight of the evidence. She alleges her daughters were removed from her because of housekeeping deficiencies yet no such reports were made after the removal. She also notes she consistently met the goal of visitation with her children.

“Unfit person” means any person whom the court shall find to be unfit to have a child without regard to the likelihood that the child will be placed for adoption, the grounds of such unfitness being any one or more of the following:

“(m) failure by a parent to make reasonable efforts to correct the conditions which were the basis for the removal of the child from such parent, or to make reasonable progress toward the return of the child to such parent within 12 months after an adjudication of neglected minor, abused minor or dependent minor under the Juvenile Court Act or the Juvenile Court Act of 1987.” Ill. Rev. Stat. 1991, ch. 40, par. 1501(D)(m).

A finding of unfitness may lead to the termination of parental rights and the court may take such action after finding it to be in the best interest of the minor. (In re D.L.W. (1992), 226 Ill. App. 3d 805, 809, 589 N.E.2d 970, 973.) The circuit court’s finding of parental unfitness will not be set aside on review unless it is contrary to the manifest weight of the evidence. In re K.S.T. (1991), 218 Ill. App. 3d 431, 435, 578 N.E.2d 306, 309.

“ ‘Whether a parent’s efforts to correct the conditions which were the basis for removing her children are reasonable involves a subjective judgment based upon the amount of effort which is reasonable for a particular person. [Citations.] In contrast, whether a parent’s progress toward return of the children within 12 months of being adjudicated neglected is reasonable involves an objective judgment based upon the amount of progress measured from the conditions existing at the time custody was taken away from the parent. [Citations.] At a minimum, reasonable progress requires measurable or demonstrable movement toward the goal of reunification.’ ” (Emphasis in original.) (In re L.L.S. (1991), 218 Ill. App. 3d 444, 459, 577 N.E.2d 1375, 1385, quoting In re Allen (1988), 172 Ill. App. 3d 950, 956, 527 N.E.2d 647, 651-52.)

____

The time frame in which a parent has to make reasonable progress is not limited to the 12 months after the adjudication of neglect. Rather, the court may consider the parent’s conduct during the entire post-adjudication period. (In re C.R. (1991), 221 Ill. App. 3d 373, 381, 581 N.E.2d 1202, 1207.) The 12-month period is a limiting provision which guarantees the parent a minimum of 12 months in which to improve the situation between the adjudication and a hearing on the issue of termination. In re A.T. (1990), 197 Ill. App. 3d 821, 832, 555 N.E.2d 402, 409.

The trial court’s finding that Shelly was an unfit parent was not against the manifest weight of the evidence. She made no reasonable efforts to correct the conditions which were the basis of the removal of the children. The children were removed for environmental neglect and inadequate shelter. During the entire time between the filing of the petition alleging neglect through the termination of her parental rights, Shelly failed to maintain a permanent, suitable home for herself and her four children. She did not avail herself of any homemaking services in order to learn better housekeeping skills, which were in essence part of the basis for removing the children. Likewise, she made no reasonable progress toward the return of the children in the 12 months after the children were adjudicated neglected. She failed to comply with any objectives in the client service plan except the regular visitation with the children and in fact on occasion failed to comply with that objective. Shelly did not obtain suitable housing, a permanent job, attend mental health counseling or cooperate with the DCFS homemakers. In short, Shelly made no measurable or demonstrable movement toward the goal of reunification.

Therefore, the trial court’s finding of unfitness was not against the manifest weight of the evidence. Accordingly, the judgment of the circuit court of Coles County is affirmed.

Affirmed.

COOK and LUND, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LUND

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PHILLIP R. JONES, Defendant-Appellant.
    Fourth District
    No. 4 — 92—0670
    Argued May 11, 1993.
    Opinion filed June 30, 1993.
    Rehearing denied July 29, 1993.
    Norman J. Fombelle (argued), of Burger, Fombelle, Zachry & Rathbun, P.C., of Decatur, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Norbert J. Goetten, Robert J. Biderman, and Leslie Hairston (argued), all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Following a jury trial in the circuit court of Macon County, defendant Phillip R. Jones was convicted of the offenses of theft by deception (Ill. Rev. Stat. 1991, ch. 38, par. 16 — 1(a)(2)(A)) and official misconduct (Ill. Rev. Stat. 1991, ch. 38, par. 33 — 3(c)). He now appeals, claiming the evidence was insufficient to prove him guilty beyond a reasonable doubt. We agree and reverse.

Defendant was a counselor with the Illinois Department of Rehabilitation Services (IDORS). Charges brought against him stemmed from an alleged sale to a Decatur business, California Custom Auto (Custom Auto), of State-owned equipment and a compressor purchased by IDORS for use by one of defendant’s clients who worked for Custom Auto. Defendant allegedly received $1,600 from Custom Auto and failed to turn the money over to the State.

Testimony at defendant’s jury trial was as follows.

State’s Case

John Steven Dolan

Dolan is administrator of field operations for IDORS. He is in charge of 50 offices around the State, with approximately 550 employees. He oversees the spending plan for the vocational rehabilitation program and is involved in formulating policy and the hiring and training of counselors. He has been with IDORS for 21 years. He was a counselor with IDORS at one time for 61/2 years.

The vocational rehabilitation program assists people with disabilities. Counselors such as defendant decide whether people who apply are eligible for the program. They have the responsibility of developing a plan to vocationally rehabilitate them and to see that the plan is carried out. Defendant has been a counselor for about 15 years and works out of the Decatur office.

People’s exhibit No. 1 was identified by Dolan as the case file for Ralph Wilkes, an IDORS client. The file contains documentation of Wilkes’ eligibility, everything that has been done on rehabilitation, and all money spent on Wilkes. Defendant was Wilkes’ counselor. Wilkes was accepted as an IDORS client in March 1990, and his vocational goal was to be an auto-body worker. He received his on-the-job training at Custom Auto in Decatur. As counselor, defendant had authority to authorize purchase of equipment for use by Wilkes and, in fact, did so. The process of making purchases for an IDORS client begins with the completion of an invoice voucher. This document is then sent to the State Comptroller, who causes a check to be issued to the named payee in the amount requested. Vouchers, as well as payee receipts, are kept in the case file.

Dolan identified several vouchers and receipts for items purchased for Wilkes. One was processed on August 13, 1990, for $1,372.14 to Scranton Paint and Auto Body as payee. There was also a receipt in the file from Scranton to Custom Auto for the same amount. Two vouchers to Mathias Body Shop as payee for $1,000 each, processed on September 25, 1990, for a 10-horsepower air compressor were also in the file. One voucher was cancelled on December 11, 1990, and the other changed to show the amount of $2,000, which was approved by an individual named C. Byerly. Over defense counsel’s objection, Dolan testified to circumstances surrounding what happened with cancellation of the one voucher. He stated the computer system processing vouchers will not process a voucher from a counselor for more than $1,000. The original $2,000 authorization for the air compressor had to be divided; it was later consolidated at a higher administrative level into one authorization for $2,000. There was also a receipt in the file dated August 9, 1990, from Mathias for $2,000 for a 10-horsepower air compressor. There were also vouchers in excess of $1,360 for equipment from Sears, Roebuck & Co.

Counselors are allowed to buy tools to benefit a client in his or her training that the client will be able to use on the job following training. For this reason, it is unusual to purchase an air compressor. Counselors usually purchase equipment either before the training program begins or immediately after. The equipment authorized for Wilkes was at the end of the program. It is also very unusual to spend $4,700 for equipment for one client.

Title to the property is in the State and remains there, although it may be assigned to the client after the program ends and it appears he or she is employed and will be able to use the equipment in employment. A form was in Wilkes’ case file which advises clients that property purchased for their benefit belongs to the State unless it is later assigned to them. That form was dated October 16, 1990, was signed by Wilkes, and contains numbers from invoice vouchers used to purchase the equipment. It appears title was never assigned to Wilkes. There is no provision to assign title to the business where the client is working. Counselors are not authorized to transfer any property to the business itself.

Dolan identified case notes in the Wilkes file. One entry was dated August 30,1990, and stated:

“Also issued authorizations to pay for air compressor for training in the amount of $2000.00 (two $1000.00 auths) (owner of Custom Auto is paying 50% of this equipment. We have a statement signed by owner and counselor that equipment being purchased will be reimbursed to [IjDORS in the event that [IjDORS does not have any client there any longer or if the business closes.”

Counselors are not authorized to make such arrangements. According to the records in the case file, the State paid the entire $2,000 for the air compressor. When a business closes or the IDORS client is no longer there, the State confiscates the equipment and attempts to use it for another client. It is taken to the nearest IDORS office, which in this case would be the Decatur office. There are no documents in the Wilkes case file to indicate any equipment was returned there.

Dolan was shown an agreement on IDORS letterhead, signed by defendant and the manager of Custom Auto (Greg Powell), and dated September 26, 1990. That document stated training equipment was being purchased for Wilkes and that IDORS was paying 50% of the cost. It also stated that IDORS would be reimbursed by Custom Auto in the event the business should close or if no IDORS clients were there. Dolan testified that defendant would not have been authorized to make such arrangements, as IDORS pays 100% of the equipment cost.

Two checks drawn on the account of Custom Auto were admitted as People’s exhibit No. 6. They are signed by Greg Powell and made payable to “Phillip R. Jones, Dist. 292.” One check is for $1,000 and has the notation “for equipment”; the other is for $600 with the notation “for compressor” on it. Both are dated September 26, 1990, and defendant’s signature is on the back of the checks in the endorsement area. Dolan testified that caseloads are identified by district numbers and that district No. 292 is where defendant was assigned at the Decatur office. There are no circumstances under which a check should be made payable to a counselor for services provided to a client — it should be made payable to the State or IDORS.

On cross-examination, Dolan testified he is assuming that “Dist.” on the checks stands for “District.” He admitted having no knowledge of what equipment was paid for by the $1,000 check to defendant. Neither check amount corresponds to the voucher figures about which he testified. Dolan had no first-hand knowledge of whether the State actually paid any of the $2,000 for the compressor or for any other equipment.

Dolan testified it is impossible for the State to make payment before receiving a voucher. It would have been substantially after September 25, 1990, that the State paid for the compressor. It normally takes approximately six weeks to process a voucher and issue the check, although it can take less time than that. Dolan was unable to explain why Mathias Body Shop would receipt for the purchase of a compressor on August 9, 1990, when the voucher for the compressor was not processed until September 25, 1990.

On redirect examination, Dolan testified the proper procedure is that “Receipt By Client” forms, such as the one signed by Wilkes on October 16, 1990, would be executed by the client after he has received the equipment. The purpose of the form is to guarantee receipt by the client. All the numbers at the bottom of the form correspond to numbers on vouchers used to request purchase of equipment and the compressor. Although defendant did not sign the vouchers as approving authority, his name appears on all of them as the responsible counselor. The counselor arranges for purchase of equipment for his or her own client. It is unheard of for a counselor to buy equipment for another counselor’s client. Nor is it the job of the supervisor.

James L. Taylor

Taylor, a former part-owner of Custom Auto, testified he is awaiting sentencing in Federal court on a charge of possession of cocaine with intent to deliver. The other part-owner was John Ellis and, prior to their ownership, the owner was Ricky Evans. Evans sold the business to Taylor and Ellis in September 1990. They retained several employees, among them Gregory Powell and Ralph Wilkes. Powell told Taylor that Wilkes had been placed there by IDORS and that defendant was his counselor. Powell was general manager of the business and was authorized to sign business checks. There was a compressor there when Taylor took over the business. On or about September 26, 1990, he, Ellis, Powell, and defendant had a conversation about some equipment in the office of Custom Auto. Greg Powell said that Evans owed defendant some money for a compressor and other equipment, and Taylor said to pay the money back to defendant. At his and Ellis’ direction, Powell wrote the two checks to defendant. Taylor also testified that on March 27, 1991, he turned the checks over to a State Police officer who had come to Custom Auto to get them.

On cross-examination, Taylor testified there was a large amount of equipment included in the purchase price of the business when he took over. When he checked in August 1990, a compressor was among the equipment. He learned that defendant had loaned Evans money to buy some of the equipment, and the checks issued to defendant were for repayment of the loan on this equipment.

Rhonda Berberet

Berberet is an IDORS fiscal supervisor. It is her responsibility to keep records of deposits made to the IDORS account for the State. She identified a cash receipt ledger from September 4 through October 31, 1990, which includes checks received on the IDORS account. She records the date the check is sent to the Comptroller by IDORS, the name of the person who sent the check, the check number and amount, and the receipt after deposit to the Comptroller’s account. These records show no deposit received from defendant on the IDORS cash ledger for that time period.

Defendant’s Case

Ricky Evans

Evans testified that he is currently under a conviction for conspiracy and is awaiting sentencing. He has known defendant for about 14 years. He opened Custom Auto in August 1989. Greg Powell was his manager and had authority to sign checks. Evans had to have air tools and an air compressor for the business. He borrowed part of the money to obtain equipment and other things from defendant in August 1989. In February 1990, the first IDORS client was placed with him. When he transferred the business to Taylor and Ellis in September 1990, he still owed defendant money. He transferred everything to the new owners, including the air compressor, air tools, and open accounts.

On cross-examination, Evans stated he pleaded guilty in Federal court to conspiracy to distribute cocaine. In 1988 he was found guilty of theft in Macon County. He pleaded guilty to charges in State court on the cocaine conspiracy. When he sold the business, items purchased by the State were in the shop. He does not know if one of the items purchased was an air compressor. Taylor and Ellis did not agree to pay his personal loan from defendant. Defendant loaned him $6,000 to start up his business, and he has paid back $1,500 to $1,600. He admitted telling police officers he had paid $1,200 or $1,300 back; he then stated he was not sure of the exact amount but that it would be between $1,200 and $1,600. He stated he had never paid 50% of the cost of any IDORS equipment.

Jury Verdict And Sentence

The jury found defendant guilty on both counts. Defendant filed a motion for judgment n.o.v., in the alternative, a new trial. That motion was denied. On August 4, 1992, the judge sentenced him to 30 months’ probation on each count, with the sentences to run concurrently. As to the theft offense, defendant was ordered to pay restitution of $4,000 to IDORS. As to the official misconduct offense, defendant was ordered to pay a fine of $5,000, serve the first 60 days of his probation in the county jail, and perform 500 hours of community service. Defendant filed his notice of appeal on August 11, 1992.

Analysis

On review, a criminal conviction will not be set aside on grounds of insufficiency of the evidence unless the proof is so improbable or unsatisfactory that there remains a reasonable doubt of the defendant’s guilt. The relevant question on review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Tye (1990), 141 Ill. 2d 1, 13-14, 565 N.E.2d 931, 937, cert. denied (1991), 502 U.S. 833, 116 L. Ed. 2d 81, 112 S. Ct. 112.

Defendant concedes the State proved the following: (1) privately owned equipment and a compressor were in existence at Custom Auto prior to February 1990, the month in which Ralph Wilkes started his job there; (2) the equipment was purchased with funds loaned by defendant to Ricky Evans; (3) after February 1990, the State purchased miscellaneous equipment for use by IDORS clients at Custom Auto; (4) defendant was an employee of the State; (5) in September 1990, defendant received two checks drawn on the private account of Custom Auto for repayment of the loan made to Evans in 1989; and (6) it takes six weeks after a voucher is processed for the State Comptroller to issue a warrant authorizing payment of the amount requested.

Defendant believes the State failed to prove any sale of equipment or compressor by him to Custom Auto or that the State suffered any loss. He also insists the State did not prove the existence of the compressor. He states the only compressor shown to exist was the one purchased by Evans in 1989 with the loan from defendant, and he argues that if the State ever purchased a compressor, it was long after the September 26, 1990, checks were issued to defendant. He further argues there was no evidence of deceitful statements by him to anyone. He points out that the State’s own witness, James Taylor, testified directly contrary to its theory that the checks were received for the sale of State property.

The State’s response to these arguments does little more than generally assert that the evidence was sufficient to convict defendant. In the process, it misstates some of the evidence. For instance, the State argues that defendant submitted vouchers which contravened IDORS policy and procedure and that defendant had his two checks from Custom Auto made out in amounts which corresponded to the vouchers. These two statements are not supported by the evidence. While Dolan testified the amount of equipment purchased for defendant’s client was unusually high, there was no evidence that the requests were violative of any IDORS policy. In addition, the evidence showed defendant received two checks from Custom Auto, one for $1,000 which bore the notation “for equipment,” and the other for $600 which bore the notation “for compressor.” Neither of those amounts corresponds to vouchers placed in evidence by the State. The State also attempts in its brief to misconstrue Taylor’s testimony, as the prosecution did at trial, by asserting that he testified he submitted the checks to defendant because he believed he was purchasing “the equipment” (presumably referring to the compressor and equipment at issue in this case), which defendant had no authority to sell. In fact, Taylor’s testimony was unequivocal that he was repaying a loan made by defendant to Ricky Evans for equipment bought by Evans with the loan proceeds.

The paperwork surrounding purchase of the compressor was confusing. Originally there were two vouchers for $1,000 each. One was cancelled in December 1990 and the other amended to $2,000. They were processed on September 25, 1990. Dolan testified that it normally takes about six weeks to receive a warrant from the State for the amount requested. However, there was a receipt for a $2,000 compressor in Wilkes’ case file from Mathias Body Shop, payee on the vouchers, which was dated August 9, 1990, long before money for the compressor was requested. Dolan testified he could not explain this. Defendant received the checks from Custom Auto on September 26, 1990, the day after the compressor vouchers were processed. The State presented no evidence to explain how defendant could sell a compressor to Custom Auto when it could not then have been in existence. Even assuming the “Receipt By Client” form signed by Wilkes in October 1990 is sufficient proof that the compressor was received by IDORS and transferred to Custom Auto, this does not answer the query just posed, since payment was made to defendant the month before this form was signed.

At trial, the prosecution made much of the September 26, 1990, agreement signed by defendant and Greg Powell, general manager of Custom Auto, stating that IDORS was paying half the cost of the compressor and equipment and, in the event Custom Auto should close or no IDORS clients were working at the business, Custom Auto would reimburse IDORS for its share of the cost. It was not made clear at trial whether this agreement was signed on behalf of Ricky Evans, the former owner, or the new owners, James Taylor and John Ellis. The assistant State’s Attorney asked Evans whether he had ever agreed with defendant to reimburse IDORS for half the cost of any equipment. Evans replied he had not. We note the case file shows Wilkes worked at Custom Auto until sometime in December 1990. If the agreement was signed on behalf of Taylor and Ellis, it remains a mystery why they would pay defendant for half the cost of the equipment and compressor at a time when Custom Auto was still in business and Wilkes was still an employee there. If it was signed on behalf of Evans, what would this tend to prove? The State failed to establish any connection between this agreement and the checks received by defendant. No attempt was made by the prosecution to explain any of these inconsistencies.

Testimony of James Taylor, one of the State’s key witnesses, wholly supported defendant’s version of the events. No attempt was made by the prosecution to impeach Taylor’s testimony. It is true that determinations of credibility of witnesses, the weight to be given to their testimony, and reasonable inferences to be drawn from the evidence are responsibilities of the trier of fact. (Tye, 141 Ill. 2d at 13, 565 N.E.2d at 937.) However, even assuming that the jury chose to ignore Taylor’s testimony, the other evidence, standing alone, was insufficient to support defendant’s conviction.

While defendant concedes, and we agree, that minor inconsistencies in the State’s case may be ignored by the jury (see People v. Brisbon (1985), 106 Ill. 2d 342, 360, 478 N.E.2d 402, 410), the State’s evidence against defendant in the instant case contains grave inconsistencies that are incompatible with the standard of proof beyond a reasonable doubt.

For the reasons stated, defendant’s conviction and sentence are reversed.

Reversed.

KNECHT and COOK, JJ., concur.


text:
    LES VANLANDINGHAM et al., d/b/a Newhouse Enterprises, Plaintiffs-Appellants, v. MARIA IVANOW et al., Defendants-Appellees.
    Fourth District
    No. 4 — 92—0933
    Argued May 19, 1993.
    Opinion filed June 30, 1993.

      Robert G. Kirchner (argued), of Lerner & Kirchner, of Champaign, for appellants.
    Thomas E. Betz and John P. Popek, both of Student Legal Service, University of Illinois at Urbana-Champaign, of Urbana, for appellees.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiffs Lester (Les) and Martha Vanlandingham, d/b/a Newhouse Enterprises, filed a complaint in small claims court against Maria Ivanow, Thomas Tecza and Kenneth Gearin seeking $1,800 in past-due rent and reasonable attorney fees. Following a bench trial, the trial court entered judgment in favor of defendants, finding plaintiffs breached the implied warranty of habitability and the setoff due defendants because of this breach exceeded the amount of damages plaintiffs proved they sustained as a result of defendants’ breach of the lease. Plaintiffs filed a motion for reconsideration, which was denied, whereupon they timely filed their notice of appeal. We affirm.

Defendants and Newhouse Enterprises, by Martha, entered into a lease agreement on May 14, 1988, in which defendants rented a house at 711 West California in Urbana, Illinois, for a monthly rent of $900. The period of the lease was August 15, 1988, to August 14, 1989.

Martha testified the house was in “fine shape” when defendants took possession. A deck was being built off of the living room, but other than that the interior of the house was clean and in good shape. Martha believed defendants were aware of the work in progress and stated they never asked for any repairs to be made prior to taking possession of the house.

The last rent payment Martha received from defendants was for the period of February 8 through March 15, 1989. Martha routinely telephoned defendants asking for the rent payment and defendants reassured her they would soon be paying the rent. She estimated that for approximately two months, defendants told her they would pay the rent but failed to do so. At the end of May 1989, Martha went to the house to see why defendants had not paid the rent and found it vacated. Martha had not received any notice of defendants’ intent to vacate the house.

Upon inspecting the house after defendants had vacated, Martha found the bathroom dirty, damage to the plaster walls and ceilings (because of water damage), and missing screens. She attempted to relet the house for the summer of 1989 but was unsuccessful. She did rent the house beginning in August 1989 for the next lease term at a monthly rent of $900.

On cross-examination, Martha testified that during the first four months of the lease, Gearin was to take care of any repairs to the house and since he never told her of any repairs, she presumed none were needed. Martha remembered receiving telephone calls in February 1989 from defendants expressing “general dissatisfaction” with the house but could not elaborate on the nature of the complaints. Martha claimed she answered “virtually all of” the telephone complaints from defendants.

Les characterized the house as being in “excellent condition” and testified it was “the nicest house I own.” He could not recall anything specific that defendants had complained about or asked to be repaired upon their taking possession of the house.

When he inspected the house after defendants had vacated in May 1989, Les found it filthy and cluttered with a significant amount of physical damage. He found missing storm windows and screens, water damage on the living room and bedroom ceilings, and he found the kitchen “beyond cluttered” with food left in the refrigerator after the power had been shut off. He also found damage to the roof.

On cross-examination, Les could not remember any tenants other than Gearin contacting him to complain about conditions in the house. He indicated he told Gearin he wanted Gearin to specifically handle any complaints and this would be for the entire term of the lease. Les admitted there was a building code inspection done by the City of Urbana in May 1989 which found numerous code violations. Les testified he never received any complaints about opossums, raccoons, or rats being in the house. He also testified nobody complained to him that the basement flooded during a rainstorm, or that problems existed with the bathroom faucets. Les admitted the remodeling he was doing pertaining to the deck was still ongoing.

On redirect examination, Les admitted he received a phone call in the spring of 1989 from an employee who stated Gearin had called about the shower faucet leaking. At this time, as Les was incarcerated in the county jail, he was unable to respond to the call. He told his employee to tell Gearin to tell defendants to simply quit using the bathroom for the next couple of days and when he was released, he would come and attend to the problem.

Michael D. Nichols, the housing inspector for the City of Urbana, inspected the house on June 15, 1989. It took approximately half an hour to inspect the house and he found 43 building code violations. He characterized some of these code violations as “pretty serious” and indicated that if the property had not already been vacated, he would have considered ordering it vacated. Compliance with the building code was eventually made on April 2, 1990.

Gearin inspected the property the day before signing the lease. He characterized the house as “broom-clean” but found it was missing some fixtures in the attic area, the garage was not in a usable condition, the basement was not in a usable condition, the washer and dryer did not appear to be in a usable condition, the house was in need of paint and there were screens missing on the porch. Gearin also noted the deck off of the living room was not completed. He indicated he had a verbal agreement with Martha that the deck would be finished before the tenants took occupancy and that other repairs would be made.

According to Gearin, the first problem defendants had with the house was with the washer and dryer not working correctly. He fixed the washer and dryer several times and was paid for those repairs by plaintiffs. These repairs took place in November 1988. During the first six months of the lease, defendants made several requests to have the deck completed because it was dangerous as there was a hole approximately two feet wide off of the living room door to the deck which a person could fall through to the ground. There was no railing around the deck and Gearin put up a makeshift railing to make it safe.

Gearin also indicated they had a severe roof leak which they requested be repaired because it was causing water damage in one of the bedrooms. It took approximately four to six hours to fix the roof and he was assisted in that repair by another of plaintiffs’ employees. On the second floor, there was a problem with the bathroom faucets because the hardware on the pipes popped out and sprayed water all over the bathroom. This occurred in October or November 1988 and was the first time defendants had water damage. Gearin reported this problem to Les but he did not come over and make the repairs. Gearin made temporary repairs himself. He did not receive compensation for these repairs.

The bathroom flooded a second time and the other tenants could not find the shutoff valve for the water because it was hidden in the corner of the basement by all types of debris. Gearin had to be called from class to come and shut off the water. In the meantime, water was running full blast and that was when the major damage occurred to the walls, living room area downstairs, and the ceilings. Gearin spoke to Martha, who told him to get the parts, to fix the faucet, and he would be reimbursed. He attempted to repair the pipes and the faucet and cement the pipe back into the wall. After the second occurrence, defendants were unable to use the shower but could only use the toilet in that bathroom.

As a result of the roof leak, there was damage to the ceiling in one of the bedrooms, which Gearin attempted to fix. The refrigerator sporadically broke down and had to be taken apart, the fan allowed to defrost, and then be reassembled. There were complaints regarding the basement flooding any time it would rain and a gas leak in the winter of 1988. Gearin testified there were numerous rats and opossums in the basement and kitchen and he had killed four to five rats, two opossums, and shot at many more that he did not kill. He complained about the rodents, but plaintiffs failed to send over an exterminator. On the first floor, there was a broken window without a frame, the porch was in need of repair and other screens were missing.

Gearin stated they stopped paying rent in early March 1989 because that was the only way they were going to get anything done. He explained that they had made numerous phone calls and tried to get the repairs completed but plaintiffs would either not return the phone calls or refuse to make the repairs. Defendants -believed that by withholding rent, they could force plaintiffs to make the repairs. Defendants did not call the building inspector prior to withholding payment and moving out because they felt they would be evicted immediately upon inspection and they had no other place to stay.

Gearin stayed in the house approximately one week after the others had vacated and he came back and attempted to clean the place. He cleaned out the refrigerator, turned off the electricity, and made other repairs. Gearin took several photographs of the damaged areas of the house. These pictures showed the uncompleted deck, the roof damage, the debris in the basement, the hole in the foundation of the house where the rodents were entering the basement, the water damage to the ceilings and walls and the exposed electrical wires in the basement of the house. Gearin estimated they only had approximately 40% to 50% of usable space in the house.

On cross-examination, Gearin opined the house was not delivered to the tenants in good condition. He indicated he believed good condition would be furnished with the items which were listed on the lease, which the house was not, e.a., a functional washer and dryer, and he believed good condition would include being able to use 100% of the premises, which they were unable to do. Gearin reaffirmed that he asked Martha, prior to their taking occupancy, to make certain repairs.

Ivanow testified that when she first inspected the property . prior to taking occupancy, she found the interior to be generally good, but there were things she would describe as incomplete, including missing lighting fixtures in the upper bedroom, missing screens, fractured windows, and the incomplete deck. She was told the deck was under construction and not to worry since it would be taken care of before they moved into the house. She was also told a fire escape would be completed from the third-floor bedroom. She stated the washer and dryer in the house were not functioning properly and she had no heat in her bedroom in October 1988. She complained about the lack of heat to Les, who told her that he was unable to come over and fix the heat because his dogs were sick. Ivanow saw a rat in the house during the first two weeks of the lease; a raccoon was trapped during the winter months; and in the late fall, she saw animal feces in the basement which had been deposited by two opossums. She indicated she cornered one of the opossums with a box, trapped it, and eventually let it go in the forest. She indicated they decided to withhold rent in March 1989 because the telephone calls regarding complaints they had made to plaintiffs were unsuccessful in getting the necessary repairs made. They did not consider calling the building inspection division because they were afraid of being evicted when the inspection was made and they had no other place to live. It was her opinion that they only had approximately 40% of usable space in the house.

Tecza inspected the premises prior to taking occupancy and he saw the incomplete deck, the missing fire escape from the bedroom, the missing screens, and the nonfunctional washer and dryer. He testified Martha told them at the time of the inspection that these things would be repaired upon their taking occupancy. Tecza testified that had he known the repairs they had been promised were not going to be made, he would not have entered into the lease or moved into the place.

Tecza stated there were no screens on some of the windows, there were no storm windows and there was a missing light fixture in his bedroom. There also were exposed wires in his bedroom, as well as a hole in both the foundation and the soffit where raccoons would enter the house. He reiterated the fact that the roof leaked, causing water damage into the other bedroom, and that complaints about all these problems were made to plaintiffs. The second-floor bathroom cold water knob in the shower had exploded, causing severe water damage to the house; he told Martha about this water damage, but she refused to make any repairs. He also indicated problems with the kitchen faucet not working, the stove and refrigerator not working correctly, and flooding in the basement. Tecza personally saw rats and raccoons in the house and he could hear the raccoons scratching on the walls of his bedroom. He estimated that 40% to 50% of the house was unusable.

In rebuttal, Les testified he never received any complaints or contacts from defendants asking him to make any of the repairs they described. He indicated that he certainly would have recalled complaints about a lack of heat or rodents in the house. He noted a muddy area in the basement which could have been caused by flooding in that area. Les denied ever promising them a date for the completion of the deck. Les screwed the door from the living room to the deck shut so- people could not enter the deck because it was missing the railing. Martha denied ever being contacted by any of defendants regarding water or rodent problems.

The trial court took the matter under advisement and later made the following docket entry:

“Decision on cause heretofore taken under advisement. The evidence presented at trial established that numerous, serious building code violations existed in the residence which Defendants rented from Plaintiffs throughout the term of Defendants’ tenancy. The building code violations constituted a breach by Plaintiffs of the warranty of habitability implied into [sic] the lease which they entered into with Defendants. The value to Defendants of their leasehold was diminished to the extent of 50% due to Plaintiffs’ breach of the implied warranty of habitability. The setoff due to Defendants by reason of Plaintiffs’ breach of the implied warranty of habitability exceeds the damages which Plaintiffs proved they sustained as a result of Defendants’ breaches of the parties’ lease agreement. Finding in favor of Defendants and against Plaintiffs. Judgment entered in favor of Defendants and against Plaintiffs. Plaintiffs’ Complaint is ordered dismissed, with prejudice, and stricken. Parties notified of the Court’s decision by mail.”

Plaintiffs filed a motion for reconsideration. The trial court noted it heard extensive evidence on the issues and found an extensive number of building code violations existed at the time the tenants took possession of the house and at various stages during the entire period of lease. The trial court noted supreme court authority about this issue and specifically found that building code violations existed which deprived the tenants of the use and benefit of the contract and which were not caused by the tenants. It found proper notice was given and that the appropriate repairs were not made. Based on those facts and the court’s analysis of the evidence, the motion for reconsideration was denied. This appeal followed.

Plaintiffs first allege the trial court erred in finding in favor of defendants under a theory of breach of implied warranty of habitability because defendants failed to plead a breach of that warranty as an affirmative defense. Defendants contend they did not have to plead this as an affirmative defense because they complied with supreme court rules regarding complaints filed in small claims court.

Supreme Court Rule 281 provides that a small claim is a civil action based on either tort or contract for money not in excess of $2,500. (134 Ill. 2d R. 281.) Since the prayer for relief of plaintiffs’ complaint only sought $1,800, this was properly filed in small claims court. Supreme Court Rule 286(a) (134 Ill. 2d R. 286(a)) provides:

“[T]he defendant in a small claim must appear at the time and place specified in the summons and the case shall be tried on the day set for appearance unless otherwise ordered. If the defendant appears, he need not file an answer unless ordered to do so by the court; and when no answer is ordered the allegations of the complaint will be considered denied and any defense may be proved as if it were specifically pleaded.”

Defendants suggest that under this rule, the trial court properly considered the affirmative defense of breach of the implied warranty of habitability even though it was not specifically pleaded. Defendants refer to Wroclawski v. Waszczyk (1976), 35 Ill. App. 3d 408, 342 N.E.2d 261, for support. There, plaintiff filed a small claims complaint seeking damages in the amount of $800 plus interest. Defendant filed an appearance but no answer. The court held defendant did not waive his right to assert an affirmative defense because he did not file an answer, nor was he ordered by the court to do so. Thus, pursuant to Supreme Court Rule 286, he was not precluded from asserting the defense, nor was the trial court barred from considering the defense. Wroclawski, 35 Ill. App. 3d at 412, 342 N.E.2d at 264.

As plaintiffs note, however, defendants here filed an answer specifically pleading three other affirmative defenses. Because of our determination as to the propriety of the breach of implied warranty of habitability defense which follows, we need not determine whether defendants were required to file the written affirmative defense because an answer was filed.

The facts constituting any affirmative defense which would likely take the opposite party by surprise must be plainly set forth in the answer. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 613(d).) The failure to state such facts so waives the asserted defense and it cannot be considered even if the evidence suggests the existence of such a defense. (Spagat v. Schak (1985), 130 Ill. App. 3d 130, 134, 473 N.E.2d 988, 992.) The test of whether a defense is an affirmafive defense and must be pleaded is whether the defense gives color to the opposing party’s claim and then asserts new matter by which the apparent right is defeated. The admission of the apparent right is inferable from the affirmative defense. Space v. E.F. Hutton Co. (1989), 188 Ill. App. 3d 57, 59, 544 N.E.2d 67, 69.

Under this analysis, breach of the implied warranty of habitability is an affirmative defense which must be pleaded and plainly set forth in the answer. Under the defense:

“The tenant is liable only for the fair rental value of the defective premises during the period of the breach of the implied warranty and is entitled to an abatement of rent in excess of that amount. If the full rent has been paid for a period for which the tenant is entitled to an abatement, damages may be awarded in his favor in that amount.” Glasoe v. Trinkle (1985), 107 Ill. 2d 1, 17, 479 N.E.2d 915, 922.

By asserting this defense, a defendant would acknowledge that past rent is due but that the defendant is either entitled to an abatement of that rent or damages because of the excess rent already paid during the period of the breach of the implied warranty. The defense “gives color” to the landlord’s claim for rent but asserts new matter which defeats that right. Thus, it must be characterized as an affirmative defense and specifically pleaded as such.

Normally, defendants would thus not be able to assert this defense because of a failure to specifically plead it. However, we conclude plaintiffs have waived all objections to defendants’ failure to plead this affirmative defense by their failure to object at trial.

A review of the record on appeal reveals that defense counsel’s theory throughout the trial was that plaintiffs breached the implied warranty of habitability because of the numerous building code violations and general poor condition of the house. Plaintiffs’ attorney did not object to any questions by defense counsel regarding the conditions of the house and; in fact, extensively cross-examined each defendant about the nature and extent of the defects. Defense counsel specifically asked each defendant the percentage reduction of the usable portion of the house, which clearly is a measure of the damages for breach of the implied warranty of habitability. (Glasoe, 107 Ill. 2d at 16, 479 N.E.2d at 921.) Furthermore, during closing argument by defense counsel, the implied warranty and the subsequent breach were specifically mentioned, and plaintiffs’ attorney failed to object and failed to respond in rebuttal to this argument. On the motion for reconsideration, plaintiffs specifically discussed the implied warranty of habitability.

In Truchon v. City of Streator (1979), 70 Ill. App. 3d 89, 388 N.E.2d 249, the court noted plaintiffs had challenged defendant’s failure to raise the affirmative defense of laches in her answer. The court responded:

“On appeal plaintiffs have challenged the failure of [defendant] to raise the affirmative defense of laches in her answer. It is sufficient to respond to plaintiffs’ contention to note that both plaintiffs’ and [defendant’s] counsel argued the issue on its merits to the trial court and the trial court did in fact render a decision on such issue. Having failed to raise in the first instance any objection to the failure to properly plead the affirmative defense of laches, and then proceeding to argue this same issue to the trial court, the plaintiffs have waived all objection to any procedural insufficiency.” Truchon, 70 Ill. App. 3d at 94, 388 N.E.2d at 253.

Therefore, in accordance with Truchon, plaintiffs have waived any objection to the failure to plead this affirmative defense. Plaintiffs did not object, in the first instance, to any failure to properly plead the affirmative defense, proceeded to argue this issue in the trial court as well as in the motion for reconsideration, and on appeal before this court.

Plaintiffs next offer alternate arguments in support of their final contention that the trial court erred in finding in favor of defendants. First, plaintiffs contend the trial court found, as a matter of law, that the violations of the building code provisions constituted a per se breach of the implied warranty of habitability. Plaintiffs assert the trial court must consider the factors set forth in Glasoe and cannot simply conclude that the building code violations equal a per se breach. Alternatively, plaintiffs contend the trial court’s decision was against the manifest weight of the evidence and arbitrary and capricious because it accepted defendants’ testimony regarding the diminution in value of the house without a sufficient factual background to support their testimony.

The implied warranty of habitability requires that a dwelling be fit for its intended use; that is, it should be habitable and fit for living. The warranty also requires that at the inception of the lease there be no latent defects in those facilities vital to the use of the dwelling for residential purposes and vital to the life, health, and safety of the tenant and that the premises will remain habitable throughout the term of the lease. (Glasoe, 107 Ill. 2d at 13, 479 N.E.2d at 919-20.) The warranty is to be implied in leases of single-family dwellings as well as leases of multiple-unit dwellings. Pole Realty Co. v. Sorrells (1981), 84 Ill. 2d 178, 182, 417 N.E.2d 1297, 1300.

In order to constitute a breach of the implied warranty of habitability, the defect must be of such a substantial nature as to render the premises unsafe or unsanitary and, thus, unfit for occupancy. A landlord is not required to insure that the dwelling is in a perfect or aesthetically pleasing condition. Not every defect or inconvenience will be deemed to constitute a breach of the covenant of habitability. Whether there has been a breach of the warranty is a question of fact to be determined on a case-by-case basis. (Glasoe, 107 Ill. 2d at 13, 479 N.E.2d at 920.) The simple fact that a house can be inhabited does not necessarily mean that the warranty of habitability has been satisfied. Pole, 84 Ill. 2d at 183, 417 N.E.2d at 1300.

In determining whether there has been a breach of the implied warranty, the courts have considered various factors, including the nature of the deficiency, its effect on habitability, the length of time it persisted, the age of the structure, the amount of the rent, the area in which the premises are located, whether the tenant waived the defects, and whether the defects resulted from abnormal or unusual use by the tenant. The condition complained of must be such as to truly render the premises uninhabitable in the eyes of a reasonable person. In addition to the guidelines stated, there must, of course, be notice of the alleged defects given by the tenant to the landlord and the landlord must have had a reasonable time within which to correct the alleged deficiencies. Glasoe, 107 Ill. 2d at 14, 479 N.E.2d at 920.

Damages for breach of the implied warranty of habitability can be measured in one of two ways. The “percentage reduction in the use” approach reduces the tenant’s rent by a percentage reflecting the diminution in the value and enjoyment of the premises by reason of the existence of defects which give rise to the breach of the implied warranty of habitability. (Glasoe, 107 Ill. 2d at 16, 479 N.E.2d at 921.) Since both sides would ordinarily be intimately familiar with the conditions of the premises, both before and after the breach, they are competent to give their opinion as to the diminution in value occasioned by the breach. In ascertaining damages, the finder of fact must weigh the severity of the violation and the duration of the conditions giving rise to the breach, as well as the effectiveness of steps taken by the landlord to abate those conditions. Glasoe, 107 Ill. 2d at 17, 479 N.E.2d at 921-22.

The tenant is liable only for the fair rental value of the defective premises during the period of the breach of the implied warranty and is entitled to an abatement of rent in excess of that amount. If the full rent has been paid for a period for which the tenant is entitled to an abatement, damages may be awarded in the tenant’s favor in that amount. The agreed rent may be considered by the court as evidence of the fair rental value. Glasoe, 107 Ill. 2d at 17, 479 N.E.2d at 921.

Plaintiffs first allege the trial court merely found, as a matter of law, that building code violations equaled a breach of the implied warranty of habitability and failed to consider the factors set forth in Glasoe. Although the trial court did not specifically enumerate the factors in Glasoe and explain how they applied to the facts of this case, it did consider those factors. The trial court was presented with evidence regarding (1) the nature of the deficiencies, (2) the effect on the habitability, (3) the length of time the deficiencies persisted, (4) the amount of rent, (5) the area in which the premises were located, and (6) whether the defects resulted from abnormal or unusual use by the tenants. Thus, plaintiffs’ argument on this point is without merit.

Alternatively, plaintiffs assert the trial court’s decision was against the manifest weight of the evidence and arbitrary and capricious. Without reciting the facts previously stated, the trial court’s decision was not against the manifest weight of the evidence. The evidence clearly supported the conclusion that plaintiffs breached the implied warranty of habitability. There was testimony from all three defendants pertaining to rats, opossums, and raccoons invading the house. There were dangerous conditions in the exposed wires, the uncompleted deck with the missing railing, and the gaping hole outside the door to the deck. The appliances provided for in the lease did not function properly, the roof leaked, the basement flooded, and the bathroom on the second floor was substantially unusable. Ivanow had no heat in her bedroom in October. Moreover, there were in fact 43 building code violations, which are some evidence of the inhabitability of the premises. Plaintiffs presented no evidence to contradict defendants’ testimony that these deficiencies existed in the house, and while plaintiffs denied that various complaints had been made, the trial court evidently chose to believe defendants’ testimony and was within its province in doing so. All of these defects made the house unsafe, unsanitary, and thus unfit for occupancy.

Defendants proved their damages by using the “percentage reduction in the use” method. As noted, this approach reduces the tenants’ rent by a percentage reflecting the diminution in value and enjoyment of the premises by reason of the existence of the defects which give rise to the breach of the implied warranty of habitability. The trial court found defendants’ value of the leasehold was diminished to the extent of 50% and the breach existed for the entire term of the tenancy. The total rental value for the property was $10,800 (12 months x $900-per-month rent). Reducing-this amount by 50%, defendants were only liable for $5,400 in rent. Defendants paid for seven months rent at $900 per month, totaling $6,300. Thus, the amount of rent defendants paid exceeded the amount they were required to pay and, therefore, their damages exceeded the amount of damages sought by plaintiffs.

Finally, plaintiffs suggest defendants were unqualified to give testimony regarding the nature of the defects and the diminution in value of the house; however, the language in Glasoe specifically states the parties are competent to testify regarding the diminution of the value occasioned by the breach because of the fact they resided in the property both before and after the breach occurred. Obviously, the tenants residing in the house are best qualified to testify as to the diminution in value of the house.

For the foregoing reasons, the judgment of the circuit court of Champaign County is affirmed.

Affirmed.

STEIGMANN, P.J., and KNECHT, J., concur.


author: JUSTICE KNECHT

text:
      In re DANIEL CLARK, a Person Found Subject to Involuntary Admission (The People of the State of Illinois, Petitioner-Appellee, v. Daniel Clark, Respondent-Appellant) .
    Fourth District
    No. 4 — 92—0469
    Opinion filed June 24, 1993.

      D. Peter Wise and Frederick J. Schlosser, both of Metnick, Barewin, Wise & Cherry, of Springfield, for appellant.
    Donald M. Cadagin, State’s Attorney, of Springfield (Norbert J. Goetten, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

Respondent, Daniel Clark, appeals from the entry of an order of involuntary admission by the Sangamon County circuit court. (Ill. Rev. Stat. 1991, ch. 911/2, pars. 3 — 601, 3 — 701.) He argues his involuntary admission was improper because the State did not follow statutory procedures and the evidence was insufficient to establish he could be expected to be a danger to himself or others. We disagree and affirm.

I. Facts

Respondent was involuntarily admitted to the Andrew McFarland Mental Health Center (McFarland) in December 1990. Successive petitions for continued involuntary admission were filed, with this petition filed April 14, 1992. The petition sought involuntary admission pursuant to sections 3 — 601 and 3 — 701 of the Mental Health and Developmental Disabilities Code (Code) (Ill. Rev. Stat. 1991, ch. 911/2, pars. 3-601, 3-701).

The petition was signed by Sherry Frederickson on April 13, 1992, at 3 p.m. It was filed with one certificate prepared by Dr. David Gilliland, who had examined respondent at 11 a.m. on April 14, 1992. A second certificate prepared by a psychiatrist who examined respondent at 4 p.m. on April 14 was filed April 15.

Before the April 24 hearing, respondent attacked his involuntary commitment on procedural grounds. He argued the State failed to timely prepare and file the certificates indicating commitment was necessary. He also argued he did not receive proper notice of the hearing. The State sought permission to amend the petition and to proceed pursuant to section 3 — 813 of the C0ode (Ill. Rev. Stat. 1991, ch. 911/2, par. 3-813).

The trial judge allowed the State to proceed under section 3— 813, reasoning that the only requirements under the provision are that a petition and two certificates be filed within 180 days of a patient’s prior involuntary admission. At the hearing, Gilliland, a psychologist who had treated respondent since respondent’s voluntary admission to McFarland in May 1989, began his testimony by recounting respondent’s psychological history indicated in his medical records. The trial judge sustained respondent’s objection to this testimony, reasoning that although relevant, the State should not rely on evidence about respondent’s psychological or social history which occurred more than 10 years ago.

According to Gilliland’s review of respondent’s more recent medical records, respondent requested medication to alleviate stress, talked to himself, was nude on several occasions when female nurses checked his room, and did not follow McFarland rules. Gilliland testified respondent’s current diagnosis was that he had a schizo-affective disorder.

Gilliland also stated respondent’s medical reports indicated he was hearing and responding to voices and he had threatened another patient. Gilliland opined respondent would inflict serious harm upon others in the near future and continued commitment was the least restrictive treatment for respondent.

During cross-examination, Gilliland stated respondent had taken an interest in his medication by sometimes requesting increases or decreases. Gilliland also conceded respondent’s medication, Prolixin Enanthate (Prolixin), could be administered on an outpatient basis. Gilliland also agreed respondent continued to have a strong interest in his farming operation and wanted to return to farming upon his release.

• Upon inquiry by the trial judge, Gilliland initially stated he did not know whether there was an alternative to respondent’s involuntary admission which would require respondent to voluntarily return to McFarland for his medication every three weeks and to also be subject to drug testing for alcohol or substance abuse. However, upon further questioning by the State, Gilliland opined that outpatient treatment was not a sufficient alternative for respondent.

Doctor Shan Suneja, respondent’s treating physician for the past year and a licensed psychiatrist, testified respondent had not demonstrated any symptoms during their hour-long sessions in April, May, and June 1991. In July 1991, Suneja began reducing respondent’s medication from one cc to one-fourth cc of Prolixin. In October, respondent’s medication was increased to one-half cc Prolixin, and then to one cc, upon his request. Respondent approached Suneja several weeks later and sought a reduction in his medication because he was feeling less stressful. Respondent was then given medication every three weeks rather than every two weeks.

According to Suneja, respondent suffers from a schizo-affective disorder. Symptoms of respondent’s disorder are manifested in hearing voices, talking to oneself, inappropriate laughter, and isolation. When asked if respondent could reasonably be expected to inflict serious physical harm upon others in the near future, Suneja stated there were several factors indicating respondent would be dangerous, while other factors indicated he would not. Personal factors indicating potential dangerousness included (1) respondent experienced violent behavior more than 10 years ago, (2) he did not regret this behavior, (3) he had previous alcohol and substance abuse problems, and (4) he lacked respect for McFarland’s rules. Suneja noted several environmental factors could result in respondent’s potential for violent behavior upon release, including returning to his farm near his father’s relatives and the ease with which a weapon could be acquired.

Suneja also outlined factors which indicated respondent would not be violent upon release: respondent (1) had followed unit rules for a long time, (2) had not struck anyone for a long time, (3) told Suneja he was not going to be involved in any more violence because he did not want to go back to prison, and (4) responds well to his medication and treatment. According to Suneja, respondent would not refuse to take his medication if he had a choice.

In his master treatment plan review, Suneja indicated respondent was struck by a fellow patient in February 1992 and that respondent was “reluctant to seek redress.” Suneja also indicated respondent appeared “extremely fearful of his alleged attacker.” He also noted respondent enjoys hard rock music and limited association with select peers. Under “supervision level,” Suneja wrote: “[Respondent] underutilizes his privileges but occasionally attends off-unit rehab programming without incident. He required no off grounds medical care and appears to be a minimal elopement risk.”

The trial judge concluded the need to involuntarily commit respondent was established by clear and convincing evidence. The evidence showed respondent had a mental illness and he was reasonably expected, in the near future, to engage in conduct which is dangerous to others. Involuntary commitment was viewed as the least restrictive alternative.

II. Alleged Deficiencies In Proceedings

Respondent raises two arguments on procedural deficiencies in his involuntary commitment proceedings, i.e., the State failed to comply with sections 3 — 703 and 3 — 705 of the Code, which require the appointment of a psychiatrist by the court and 36 hours’ notice to respondent of the court-mandated examination. He also argues the State failed to comply with section 3 — 810, which requires the Department of Mental Health and Developmental Disabilities to file a detailed report for the court to consider before disposition of the case.

The State contends the proper procedures were followed.

A. Court-Appointed, Psychiatrist Not Required

Section 3 — 703 of the Code states, in pertinent part:

“If no certificate was filed, the respondent shall be examined separately by a physician, or clinical psychologist, or qualified examiner and by a psychiatrist. *** If, as a result of an examination, a certificate is executed, the certificate shall be promptly filed with the court.” Ill. Rev. Stat. 1991, ch. 911/2, par. 3 — 703.

Respondent contends his commitment must be reversed because, although he was evaluated by a psychiatrist, the trial judge did not order the evaluation. Section 3 — 703 requires only that a certificate be filed by a psychologist and a psychiatrist. It does not require these examinations be performed only after a court order is entered. Respondent’s continued involuntary commitment was sought pursuant to section 3 — 813(a) of the Code:

“An initial order for hospitalization shall be for a period not to exceed 180 days. Prior to the expiration of the initial order if the facility director believes that the recipient continues to be subject to involuntary admission, a new petition and 2 new certificates may be filed with the court.” Ill. Rev. Stat. 1991, ch. 911/2, par. 3 — 813(a).

In this case, a new petition and two certificates, one from a psychologist and one from a psychiatrist, were filed within 180 days of the last commitment order. The Code does not mandate the psychiatrist’s certificate (in this case filed by a “Doctor Kleinplatz”) be filed pursuant to a court order. Section 3 — 813 contemplates the petition and certificates can be filed by the mental health facility before any court action must transpire.

Moreover, section 3 — 702(b) of the Code also indicates a court order is not required before evaluation:

“Upon receipt of the petition either with or without a certificate, if the court finds the documents are in order, it may make such orders pursuant to Section 3 — 703 as are necessary to provide for examination of the respondent. If the petition is not accompanied by 2 certificates executed pursuant to Section 3 — 703, the court may order the respondent to present himself for examination at a time and place designated by the court. If the petition is accompanied by 2 certificates executed pursuant to Section 3 — 703 and the court finds the documents are in order, it shall set the matter for hearing.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 911/2, par. 3 — 702(b).

This language indicates a trial judge must schedule a hearing when the required documentation is prepared. He may require the respondent to submit to an examination when two proper certificates do not accompany the petition. That respondent was evaluated by Dr. Kleinplatz absent a court order is not fatal to respondent’s commitment proceedings.

B. Notice to Respondent

Respondent directs this court to section 3 — 705 of the Code in arguing he was not provided sufficient notice of the evaluation by the psychiatrist. This provision states:

“At least 36 hours before the time of the examination fixed by the court, a copy of the petition, the order for examination, and a statement of rights as provided in Section 3 — 205 shall be personally delivered to the person ***.” Ill. Rev. Stat. 1991, ch. 911/2, par. 3 — 705.

He contends his commitment must be reversed because the trial judge failed to provide him with an order for examination within 36 hours before the examination was performed. He also contends reversible error occurred because he was not provided a copy of the petition within 36 hours of the examination and was not provided a statement of rights as mandated by section 3 — 205 of the Code (Ill. Rev. Stat. 1991, ch. 911/2, par. 3 — 205). The record indicates he was provided a copy of the petition on April 13, 1992, at 3:30 p.m. He was examined by a psychiatrist on April 14, 1992, at 4 p.m.

Respondent’s examination was not performed pursuant to a court order. By its terms, the procedures mandated by section 3— 705 of the Code apply to court-ordered examinations. Respondent’s proceedings complied with the requirements of section 3 — 813 of the Code.

C. Treatment Plan

The State initially argues respondent waived review of this issue by not raising it at the trial level. It contends In re James (1989), 191 Ill. App. 3d 352, 357, 547 N.E.2d 759, 762, is distinct because this court of review considered an issue under a doctrine analogous to plain error. In James, no report was filed. Although a report was filed in the present case, if it was — as respondent contends — inadequate to determine the propriety of continuing his involuntary commitment, this deficiency was prejudicial to respondent. For this reason, and because the error would have been apparent from the face of the record and respondent’s liberty interests are involved, we will address the merits of respondent’s claim. In re Adams (1993), 239 Ill. App. 3d 880, 883-84, 607 N.E.2d 681, 683-84.

Before the propriety of the involuntary commitment petition is determined, section 3 — 810 of the Code provides the following guideline for the requisite report:

“[T]he facility director or such other person as the court may direct shall prepare a report including information on the appropriateness and availability of alternative treatment settings, a social investigation of the respondent, a preliminary treatment plan, and any other information which the court may order. The treatment plan shall describe the respondent’s problems and needs, the treatment goals, the proposed treatment methods, and a projected timetable for their attainment.” Ill. Rev. Stat. 1991, ch. 911/2, par. 3 — 810.

The report included in the record consists of (1) a “summary of comprehensive evaluation and social investigation,” (2) a “comprehensive treatment plan,” indicating goals and functioning levels as of April 8, 1992, (3) a “master treatment plan review” dated March 11, 1992, (4) the initial March 24, 1989, “treatment plan,” and (5) psychiatric updates from April 10, 1991, and November 11, 1991. These reports were entered into evidence as the State’s exhibit No. 1. The reports indicate the respondent’s diagnosis, his needs, and treatment. They also indicate respondent’s behavior while in the hospital. The treatment indicates the use of medication and individual counseling. This information meets the requisites of section 3 — 810.

Respondent also argues the report is deficient because Sharon Frederickson, and not the facility director, filed the social investigation. Respondent contends section 3 — 810 of the Code requires the report be filed by the facility director. He also contends Suneja had no authority to file the report which indicated his recommendations. However, for purposes of the Code, “facility director” is defined as:

“[T]he chief officer of a mental health or developmental disabilities facility or his designee or the supervisor of a program of treatment or habilitation, or his designee. Designee may include a physician, clinical psychologist, social worker, or nurse.” Ill. Rev. Stat. 1991, ch. 911/2, par. 1 — 104.

Frederickson was a licensed social worker at the facility. She was authorized to file such a report. Suneja was respondent’s treating physician and, as such, could also file a report.

Finally, respondent argues even if the report was sufficient, the record does not indicate the trial judge considered it before concluding commitment was necessary. This claim is unsupported by the record. The record indicates before the trial judge pronounced judgment, he expressly referred to the State’s exhibit which outlined respondent’s treatment plan.

III. Sufficiency Of Evidence To Support Continued Commitment

Respondent finally argues the trial judge erred by authorizing the continuation of his involuntary admission because the State failed to prove by clear and convincing evidence that he could reasonably be expected to inflict serious physical harm on himself or another in the near future.

A trial court’s determination of whether the evidence is sufficient to continue involuntary commitment is given great deference because it had the opportunity to view the witnesses, determine their credibility, and weigh the evidence. (See In re Knapp (1992), 231 Ill. App. 3d 917, 919, 596 N.E.2d 1171, 1172; In re Biggs (1991), 219 Ill. App. 3d 361, 363, 579 N.E.2d 1170, 1172.) We will not disturb a trial judge’s ruling unless it is against the manifest weight of the evidence. The evidence must clearly establish a contrary result was proper. Knapp, 231 Ill. App. 3d at 919, 596 N.E.2d at 1172.

A person may be subjected to involuntary commitment when the evidence is clear and convincing that (1) he suffers from a mental disease or defect which (2) makes it reasonably possible he will inflict serious physical harm on himself or another. (In re Orr (1988), 176 Ill. App. 3d 498, 504, 531 N.E.2d 64, 69; Knapp, 231 Ill. App. 3d at 920, 596 N.E.2d at 1173.) Commitment need not be delayed until the danger is acute or someone is actually harmed. Knapp, 231 Ill. App. 3d at 920, 596 N.E.2d at 1173; In re Mazzara (1985), 133 Ill. App. 3d 146, 150, 478 N.E.2d 567, 569.

Suneja testified respondent could be prone to violent outbreaks. Gilliland testified such an outbreak is a symptom of respondent’s disorder considering his mood, anger, and agitation factors. Respondent has also disobeyed the rules at McFarland. He has been found with contraband in his room, he has used foul language, and has exposed his genitals to female staff members. When defendant was confronted with breaking the rules, he replied, “[t]o hell with the rules.” According to testimony at the hearing, his noncompliance with rules could be related to mood disturbance, antisocial personality, and schizo-affective disorder.

Respondent has been housed on a more restrictive ward and has not been granted more privileges because of his noncompliance. His lack of ability to control his impulses in a controlled setting raises legitimate concerns about his behavior outside that setting.

The record also indicates respondent has a long, and current, history of violence, beginning when he was convicted of the involuntary manslaughter of his father in 1981. As recently as November 1991 he threatened to kill a staff member of the hospital. He has repeatedly made similar threats. These threats, according to Gilliland, are consistent with respondent’s mental disorder. Respondent had earlier tried to hire someone to kill another individual while he was in the hospital.

Gilliland testified that respondent needed treatment and could reasonably be expected to harm himself or others within the near future based on his illness and condition. Due to respondent’s mood disturbance, if his mood became agitated, he could act on his anger and cause harm to others. According to Gilliland, there was no less restrictive form of treatment available for respondent. He also opined it would be difficult to construct an order which required respondent to return to the hospital periodically for medication because of the problem of enforcement. Finally, Gilliland saw a problem releasing respondent from the hospital with his medication because of respondent’s behavior while in the hospital.

Suneja also opined there was no less restrictive treatment suitable for respondent. This opinion was due to respondent’s potential to be dangerous if released from the restrictive environment of the hospital. According to Suneja, out of 14 factors used to determine potential for dangerousness, respondent possessed 10. Relevant factors included respondent’s past history of violent behavior, his lack of remorse or empathy for his past conduct, history of alcohol and substance abuse, his desire to be taken off the medication which helps his condition, and disregard for rules of the hospital.

Suneja also indicated other environmental factors to be considered in determining dangerousness included the fact respondent would return to his home where he would be confronted with relatives he does not get along with, the availability of weapons, and the fact respondent had tried to hire someone to hurt another person while he was in the hospital. Suneja opined respondent’s reason for not being involved in violence anymore was not a proper reason. Respondent said he would not do so because he did not want to go to prison.

Although respondent had not physically hit anyone in six months to a year, his reason for avoiding violent tendencies indicates if he could find a way to avoid being caught, he might continue to be violent. It does not indicate respondent currently grasps reasons for avoiding violence.

Where there is evidence of prior dangerous conduct and evidence respondent remains in need of mental treatment, the commitment order is proper. (Orr, 176 Ill. App. 3d at 505, 531 N.E.2d at 69; In re Williams (1987), 151 Ill. App. 3d 911, 921, 503 N.E.2d 816, 822-23.) Testimony at respondent’s involuntary commitment hearing established he had previously been prone to violent conduct. In addition, the professionals involved in respondent’s treatment opined there was no less restrictive means to provide respondent the necessary treatment and protect himself and society from danger.

Respondent’s argument he was being kept at the hospital only because of his remote history of violence fails. The trial judge agreed with his objection to testimony about his mental history more than 10 years ago and indicated recent occurrences were most important. The more remote history of violence, although relevant, was only one of numerous factors which the trial judge considered.

Respondent recently disregarded hospital rules and was observed apparently hearing voices and responding. His disregard for the rules and his lack of impulse control are also important. His behavior in the hospital, while on medication, indicated he may engage in dangerous conduct if released from the secure setting of the hospital.

IV. Conclusion

The trial judge’s findings that respondent was in need of mental treatment and continued to pose a risk of danger to others due to his mental illness were not against the manifest weight of the evidence. The procedures followed to continue respondent’s involuntary commitment were proper.

Affirmed.

COOK and GREEN, JJ., concur.