# People v. Weinstein

> Appellate Court of Illinois · January 30, 2024 · 2024 IL App (2d) 230062

URL: https://www.frixlaw.com/law-library/cases/9928195

## Case

- **Court:** Appellate Court of Illinois
- **Decided:** January 30, 2024
- **Citations:** 2024 IL App (2d) 230062
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9928195

## How later opinions describe it (automated extraction)

- stating a court may not summarily punish an alleged contemnor for indirect contempt due to its lack of personal knowledge of the contumacious conduct

## Opinion text

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

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
______________________________________________________________________________

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

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

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Lake County.
)
Plaintiff-Appellee, )
)
2024 IL App (2d) 230062

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

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

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

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

OPINION

¶1 In these consolidated appeals, the circuit court, in five criminal actions, found defendants,

Frank Weinstein, Gabrielle Duncan, Luis Barradas-Alvarado, Niles Clark, and Elizabeth Sebesta,

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unfit to stand trial and ordered that they be placed into the care of and provided inpatient fitness

restoration treatment by the Department of Human Services (Department). Subsequently, the court

held the Department in indirect civil contempt of court for failing to obey those orders and comply

with certain statutory mandates (725 ILCS 5/104-17 (West 2020)) and it imposed a $500-per-day

fine in each case until the defendant was placed and provided treatment. The Department appeals.

Ill. S. Ct. R. 304(b)(5) (eff. Mar. 8, 2016) (“[a]n order finding a person or entity in contempt of

court which imposes a monetary or other penalty” vests jurisdiction in the appellate court without

a special finding). The Department argues that the court erred in finding it in indirect civil

contempt, where (1) there was no prima facie evidence of noncompliance with the court’s

unfitness orders; (2) in determining defendants established prima facie cases of contempt, the

court improperly relied, in part, on the Department’s purported noncompliance with a statute,

rather than the court’s orders; and (3) the evidence did not show willful and contumacious refusals

to obey the court’s orders. We affirm.

¶2 I. BACKGROUND

¶3 In each of five criminal cases, the trial court entered an order finding the defendant unfit to

stand trial and remanding the defendant to the Department’s custody for inpatient treatment.

Delays by the Department in taking each defendant into its custody and providing treatment led to

findings of indirect civil contempt against the Department.

¶4 A. Duncan

¶5 On November 15, 2022, the trial court found Duncan, who had been charged with domestic

battery, unfit to stand trial. It ordered the sheriff to transport Duncan to and place her in the custody

of the Department and ordered the Department to determine the appropriate placement for Duncan

and provide her treatment. The court also ordered the Department to provide, within 30 days, an

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opinion as to the probability of Duncan attaining fitness within one year and, if there was such a

probability, to file a treatment plan. Finally, the court ordered the Department to file a progress

report at least seven days before a status hearing set for December 20, 2022. On December 2, 2022,

the Department notified the court that it had completed an evaluation of Duncan on November 30,

2022, which suggested that she remained unfit to stand trial and that the Elgin Mental Health

Center (Elgin) was the most appropriate inpatient setting for a formal assessment. The Department

stated that it would notify the sheriff of admissions availability and coordinate Duncan’s transfer.

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

¶6 On December 20, 2022, Duncan petitioned for a rule to show cause because she had not,

as of the date of her petition, been transported to a Department facility for treatment. On December

27, 2022, the trial court issued the rule to show cause, finding that the Department had wholly and

willfully failed and neglected to comply with the statute and the court’s order. It set the case for

hearing.

¶7 On January 24, 2023, the evidentiary hearing commenced on Duncan’s petition. Initially,

the court heard argument on whether Duncan presented a prima facie case.. The Department

argued that it did not fail to comply with the court’s order, as there was no timeline for it to admit

Duncan into custody, and that the failure to comply with a statute cannot be the basis of a contempt

finding. The court found that Duncan had established a prima facie case.

¶8 The Department called Agoritsa Barczak, its forensic court services administrator, who

testified that she had a doctorate in clinical psychology with a forensic specialization. She oversaw

admissions and treatment of forensic individuals who had been remanded to Department custody

as either unfit to stand trial or not guilty by reason of insanity. Addressing the issues at the

Department’s mental health facilities, Barczak testified that the primary issue was the dramatic

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increase in referrals. While the Department had worked to add capacity and space to accommodate

the referrals, staffing vacancies had also increased. The Department had trouble adding and

keeping staff, which was also a nationwide issue. The referral increase was significant;

specifically, in the first half of 2022, as compared to the same period in 2021, referrals increased

nearly 44%, which tapered off in the second half of the year to about a 20% increase as compared

to before the COVID-19 pandemic. Prior to the increase, 80 to 100 individuals were on the waiting

list “on a bad week,” whereas, 265 individuals were currently on the list and it had consistently

been at that figure for two years.

¶9 Barczak addressed the Department’s efforts to increase capacity, explaining that it had

repurposed spaces, including converting units previously used during the pandemic as triage units

to accommodate several beds. It also assumed two units at Elgin that previously had been turned

over to the Department of Corrections, which added 44 beds (of which 16 had already been

occupied; some of the staff initially hired for these additional beds was no longer with the

Department and, thus, more beds could not be filled). The Department also contracted with Ingalls

Memorial Hospital in Harvey (Ingalls), adding about 24 beds (12 of which were added since the

beginning of 2022), all of which were occupied. Addressing Lake County, Barczak testified that

about 65 to 70 beds had been added with the additional two units at Elgin and the unit at Ingalls.

The Department was looking to expand further.

¶ 10 At Elgin, the Department increased its internal utilization review of cases, in which it

currently assessed on a monthly (formerly quarterly) basis individuals who were still in custody

past 30 or 60 days and tried to provide assistance to staff to speed up fitness restoration or

accommodate individuals. The Department was also looking into outpatient restoration. Further,

in recent years, the Department began operating its facilities as one statewide team, rather than

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regional areas; thus, individuals could be placed at the first clinically appropriate bed anywhere in

the state. As to staffing, the Department was placing advertisements and reaching out to temporary

staffing services, including seeking out retired staff to return on a time frame contract.

¶ 11 Barczak explained that, after a defendant was referred to the Department for inpatient

fitness restoration review, a preplacement evaluator would conduct a preplacement evaluation

within seven days. The evaluator would recommend whether the defendant needed inpatient

treatment and, if so, the location where they should be placed. The evaluation was typically

conducted in person, but some cases required a video or telephone evaluation. The evaluator was

expected to follow up with the jail and its mental health staff every two weeks regarding the

defendant’s status. The full evaluation, which assessed a defendant’s probability of attaining

fitness within one year and the proposed treatment plan, was conducted only once the defendant is

taken into Department custody.

¶ 12 On January 11, 2023, the Department received an update concerning Duncan’s condition

and subsequently prioritized her admission. It was based on clinical need. Further, Barczak

informed the court that Duncan would be admitted to a Department facility within two to three

weeks of the hearing.

¶ 13 The Department had about 20 preplacement evaluators. Daidra Marano, whom Barczak

supervised, was a psychologist assigned to conduct preplacement evaluations in Lake and about

six other counties. For Duncan, Elgin was the only placement option because she was female, she

was not appropriate for a lower security location such as Ingalls, and because of Elgin’s geographic

proximity. However, if a bed opens at McFarland Mental Health Center (McFarland) or Alton

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

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¶ 14 In placing individuals, the Department’s first consideration was clinical necessity and then

court date. There were cases where the evaluator received information about an individual

decompensating; the Department relied on that information without independently verifying the

individual’s current state through personal contact. The 20-day evaluations were supposed to be

conducted in person, but it would depend on the evaluator. Evaluations for the 30-day reports were

conducted in person.

¶ 15 Barczak explained that violations of the statutory time frame for placement of individuals

predated the pandemic but had worsened since the pandemic. Rules to show cause were filed

against the Department prior to the pandemic, but not with the frequency with which they were

currently being filed.

¶ 16 Duncan’s preplacement evaluation was completed over the telephone, like the majority of

cases in Lake County. Barczak did not believe that this was acceptable. On January 11, 2023,

Marano consulted with Deputy Chief Nicholas Kalfas of the Lake County Sheriff’s Office, who

had spoken to someone in the jail’s mental health center and related that Duncan “was not looking

good.”

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

(Barczak became aware of this at the hearing.) Barczak acknowledged that there were

circumstances where something needed to be done by telephone, such as when jail personnel

believed that it would not be safe to remove someone from his or her cell, the individual was too

paranoid to sit in front of a videoconference screen or telephone, or he or she was too violent. Jail

personnel typically would make this assessment.

¶ 18 Based on information that Marano received from the jail, Duncan was considered

inappropriate for in-person evaluation. However, Marano’s general practice was to conduct

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examinations over the telephone with everyone. Kalfas was not a mental health professional, and,

according to Barczak, he did not consult with the mental health staff at the jail.

¶ 19 Barczak further testified that, during the pandemic, most jails did not allow in-person

visitation and the Department had to find ways to work around this restriction. The telephone

evaluations came into play, as well as videoconferencing. Marano informed Barczak recently that

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

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

County Sheriff’s Office. He was responsible for transporting individuals in the jail’s custody to

other facilities and was the point person for individuals in custody who have been found unfit to

stand trial. Once the Department had a bed available for an individual, Kalfas and his staff would

transport him or her there within one week at the most.

¶ 21 According to Kalfas, the jail never stopped allowing in-person visits, including during the

pandemic. It also had not stopped allowing Department staff to visit the jail in person. Since March

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

(i.e., January 2023), Marano had visited in person only in July 2022. Marano would call the jail to

schedule telephonic preplacement evaluations with inmates. After the evaluations, she regularly

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

on the Department’s waiting list. Kalfas then would call the mental health director or one of the

social workers and go through the list with them, asking questions such as if there were any

changes in the inmate’s behavior or if they had become more acutely psychotic.

¶ 22 Kalfas testified that, currently, no one at the Department communicated with jail mental

health staff. Prior to October 2022, the jail had a director of mental health who spoke to Department

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personnel about inmates. She left the jail’s employment in October 2022 and was recently

replaced. The new director had not had any contact with the Department.

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

her in person based on any behavioral or other concerns. Duncan was currently a level 2 inmate,

which meant that she was combative with staff and incorrigible. Duncan was not receiving

psychotropic medications. He explained that the jail could facilitate visits where the interviewer

and the inmate are separated by a clear partition. It could also bring interviewers to the door of the

cell, which has a window where observation is possible. The phone option was not private.

¶ 24 On January 27, 2023, the trial court found the Department in indirect civil contempt for

failing to follow the court’s November 15, 2022, order and fined it $500 per day until the

contumacious conduct was purged by providing Duncan appropriate treatment. It determined that

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

of showing that the violation (its failure to provide treatment to Duncan) was not willful and

contumacious. It noted that it had ordered that the Department have Duncan transported to a facility

and provide treatment. The court found that the Department did not send a treatment team to the

jail to assess Duncan. It found that the fact that Barczak did not know that her subordinate was not

coming to the jail showed willfulness. The Department was “doing [ ] nothing” while Duncan was

in jail.

¶ 25 One month later, Duncan was transported to Elgin, and the court determined that the

Department’s contumacious conduct was purged, with $12,000 having accrued in fines. The

Department appeals.

¶ 26 B. Weinstein

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

domestic battery and aggravated assault, unfit to stand trial and entered an order like that in

Duncan’s case. On December 13, 2022, the Department notified the court that a preplacement

evaluation was completed on December 8 and that the results suggested that Weinstein remained

unfit to stand trial and that Elgin was the most appropriate inpatient setting for a formal assessment.

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

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

reported to the court.

¶ 28 On January 4, 2023, Weinstein petitioned for a rule to show cause, asserting that he

remained in the Lake County jail well over 30 days after being ordered into the Department’s

custody and that he was receiving no fitness restoration treatment, had not received a formal

evaluation, and had not received a treatment plan. Weinstein also asserted that the Department

provided a status letter on December 13, 2022, informing the court that the Department would

conduct a formal assessment only upon admission to their facility. Weinstein sought issuance of a

rule to show cause as to why the Department should not be held in contempt of court for failing to

place him into treatment and failing to comply with the court’s order for a status report. On January

10, 2023, the court issued the rule, finding that the Department had “wholly and willfully failed

and neglected to comply with” statutory mandates and the court’s November 22, 2022, order. It

set the matter for hearing.

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

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

receive treatment from the Department—specifically ordering that he be transported to the

Department’s custody and that the Department determine the appropriate placement and provide

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treatment—and that the statute required the Department to file a 30-day report, none of which were

completed. Accordingly, it further noted, the burden shifted to the Department.

¶ 30 The Department called Marano. Addressing the issues faced by the Department’s mental

health facilities, Marano testified that some facilities had been closed, thus leading to a shortage

of beds. Also, since the pandemic, there had been an employee shortage. Marano testified that,

when she began her job in September 2020, she was told that she would work from home; she was

also told not to go into jails “right now.”

¶ 31 Marano was responsible for the Lake County region. She conducted an in-person

reevaluation of Weinstein on January 25, 2023. (Another doctor—Dr. Simonic—had conducted

the preplacement evaluation because Marano was on vacation.) Weinstein reported that he was

taking Depakote. At the time of the hearing, it was anticipated that Weinstein would be placed

within three weeks. Marano did not write a report about her findings from January 25. The first

time someone from the Department saw Weinstein in person after he was found unfit, on

November 22, 2022, was Marano, on January 25, 2023.

¶ 32 Marano further testified that her boss, Barczak, contacted her after hearings on January 24,

2023, and instructed her to go to the Lake County jail to see everyone who was still unfit to stand

trial. Mariano had not seen, or attempted to see, anyone in person at the jail since July 2022, and,

prior to that, she worked remotely due to the pandemic. According to Marano, Kalfas never told

her that she was not allowed to come to the jail. Rather, Kalfas told Marano that his preference

was for her to conduct phone interviews. In person, Marano testified, is the superior way to conduct

a preplacement evaluation, and her bosses have relayed this to her.

¶ 33 If there are no in-person visits or phone calls after the preplacement evaluation, Marano

would ask Kalfas for monthly or biweekly updates for persons she is tracking, i.e., everyone in the

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Lake County jail who is unfit to stand trial and awaiting placement. Kalfas then would ask the

jail’s mental health director for updates.

¶ 34 Marano was responsible for other jails. At other jails, where mental health departments are

willing to do so, Marano had provided fitness materials for the defendants to study. Weinstein, she

explained, did not understand fitness terminology.

¶ 35 The Lake County jail does not offer a videoconferencing option. Beginning in July 2022,

the Department allowed Marano and her colleagues to go back into the field, i.e., the jails, for

special circumstances. In July 2022, Kalfas told her his preference was for phone calls because he

was short-staffed.

¶ 36 As of the date of the hearing, Weinstein had not received any treatment from the

Department. The Department did not provide treatment until a defendant is taken into its custody.

Weinstein informed Marano when she visited him in late January 2023 that he was taking

medication to treat his illness.

¶ 37 The State called Kalfas. He denied telling Marano that he preferred phone interviews to in-

person interviews at the jail.

¶ 38 On January 31, 2023, the trial court found the Department in indirect civil contempt of

court for its failure to follow the court’s November 22, 2022, order that it treat Weinstein and

further found that its violation was willful and contumacious. It fined the Department $500 per

day until its contumacious conduct was purged by providing treatment for Weinstein. Specifically,

the court determined that the Department’s “position is untenable.” Referencing the statute, the

court noted that it required that a defendant undergo treatment within 30 days of the entry of an

order:

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“And 17(e) clearly says that they’re supposed to provide a number of different

things to the Court, a description of the treatment plan, all these kind of different things,

but the court order that’s in question says that the [D]epartment’s supposed to provide

treatment.

And the Court’s belief is that that should be within 20 days, but even assuming—

even assuming the [D]epartment’s reading is correct, that they’re not required to have the

defendant arrive at the facility within 20—20 days, the [D]epartment’s position is that he’s

not going to receive treatment for 77 days, this three-week period on top of what he’s been

here—he’s been here since November—November 22nd, and so it’s approximately 65

days, somewhere around there, if my math is incorrect. But 65 days without receiving a

lick of treatment.

And I don’t understand. The [D]epartment is clearly making the decision to not

treat people until they get to the facility. That’s a decision they’re making. That goes to

willfulness. That absolutely goes to willfulness because the [D]epartment says they can’t—

they won’t do it until they get to the facility.”

¶ 39 The trial court further referenced Marano’s testimony that, at other jails, she would provide

information to defendants concerning fitness terminology (i.e., educational material concerning

fitness terms) and that she had never done that at the Lake County jail.

¶ 40 Subsequently, on February 14, 2023, defendant was transported to Elgin for treatment, and,

on February 21, a 30-day treatment report was submitted to the court regarding the Department’s

opinion that he can be restored to fitness within one year of the unfitness finding. On February 21,

2023, defense counsel withdrew the petition for a rule to show cause and the court ordered that the

contumacious conduct was purged and that the total fine was $6500. The Department appeals.

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¶ 41 C. Barradas-Alvarado

¶ 42 On November 8, 2022, the trial court found Barradas-Alvarado, who had been charged

with violating an order of protection and criminal trespass, unfit to stand trial and entered an order

like that in the other defendants’ cases. On November 29, 2022, Marano informed the court that

she had completed a preplacement evaluation of Barradas-Alvarado on that date, which suggested

that he remained unfit to stand trial and that Elgin was the most appropriate inpatient setting for a

formal assessment. Marano stated that the Department would notify the sheriff of admissions

availability and coordinate Barradas-Alvarado’s transfer. At that time, a clinical opinion and

treatment plan would be rendered and reported to the court.

¶ 43 On December 20, 2022, defendant petitioned for a rule to show cause, asserting that he had

yet to be transported to a Department facility for treatment. On the same date, the trial court issued

a rule to show cause, finding that the Department had wholly and willfully failed and neglected to

comply with the statute and the court’s November 8, 2022, order.

¶ 44 On January 30, 2023, an evidentiary hearing commenced. Initially, the court heard

arguments on whether a prima facie case was established. The Department took the position that

the court’s order did not include a time frame for the Department to comply with and the order

was the proper focus to assess contempt. It also argued that it was not required to provide treatment

unless a defendant was in custody at one of its facilities. The court determined that its order was

clear and that the statutory deadlines had not been met. Thus, it found that Barradas-Alvarado had

established a prima facie case and that the burden therefore shifted to the Department.

¶ 45 The parties stipulated to the contents of the January 20, 2023, declaration of Sharon

Coleman. Coleman, the Department’s deputy director of forensic and justice services for the

division of mental health, was responsible for the Department’s forensic treatment programs. The

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division operated the state’s six mental health centers. Since May 2020, the division had admitted

over 1600 patients to its forensic treatment programs. Since January 2022, there had been a 20%

increase in courts’ forensic referrals for Department inpatient care, with 90 referrals in October

2022, a record. The waiting list for inpatient admissions consisted of 193 individuals, plus 72

individuals pending assessment for placement (most of whom would require inpatient admission).

¶ 46 Coleman further stated that, in addition to the substantial increase in forensic referrals, the

division also faced a shortage of qualified mental health professionals and other staff. This was

reflective of national trends. With considerable recruiting efforts in the past year, the division had

hired over 500 employees for its 24/7 facilities, but, with offsetting attrition driven by the pandemic

and the workforce crisis, vacant positions had increased by 50%. The average number of vacancies

at such facilities was 303 in 2021 and 404 in 2022. The Department partnered with the Department

of Central Management Services to expand recruitment efforts, including increasing salaries for

entry-level mental health technicians, prioritizing hiring at critical sites, participating in

recruitment events, and targeting hiring of nurses.

¶ 47 Another challenge Coleman noted was that there were limited opportunities for community

placement of individuals exiting inpatient forensic treatment based on their court-ordered

conditional release. This restricted the pace of discharge and ability to free up beds for new

admissions. She also addressed the division’s efforts to expand forensic capacity, which included

establishing 24 minimum-security beds at Ingalls, opening space at Alton to accommodate 22 new

forensic beds, repurposing space at McFarland to add 24 new forensic beds, reclaiming space at

Elgin and, thereby, adding 22 new forensic beds in November 2022 and 22 new beds in January

2023. The division was also repurposing 18 minimum-security beds at Chicago Read Mental

Health Center and 5 minimum-security beds at Choate Developmental Center for patient “step

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down,” thereby freeing up existing beds in the system for unfit-to-stand-trial admissions. It was

also making extensive capital improvements at an unused building at Alton to create up to 90

additional forensic beds (with a potential fall 2024 opening). The division was exploring additional

partnerships with private hospitals to provide additional inpatient restoration beds, as well as

additional step down options for not-guilty-by-reason-of-insanity individuals appropriate for

conditional release or discharge from inpatient care at the Department, which would open up

additional inpatient forensic beds.

¶ 48 Coleman also testified. She stated that, initially, Barradas-Alvarado had been directed to

Elgin (in a medium-security unit) but was now directed to Chester Mental Health Center (Chester)

(also in a medium-security unit); Elgin’s capacity was full. Barradas-Alvarado was previously

treated at Chester’s medium-security unit. Currently, the waiting list at Chester was 40 to 50

individuals. In order to admit new individuals, others must be discharged. At Elgin, there were

about 30 to 40 individuals on the waiting list for admission. (Every facility had a waiting list,

totaling 250 people across the state. There was a waiting list even 10 years ago, and there were

staff shortages, though of a lesser extent, before the pandemic.) However, if a bed became available

at another treatment program that was consistent with patient needs, the Department would make

a change. (Coleman estimated that, as of the hearing date, Barradas-Alvarado’s wait time for a bed

was two to three additional weeks.)

¶ 49 Barradas-Alvarado was redirected to Chester because Marano’s most recent review of his

clinical status the prior week (January 25, 2023) identified Chester’s medium security unit to be

just as appropriate a treatment program as Elgin’s.

¶ 50 Generally, individuals were prioritized according to the date of the court order, but the list

was reprioritized daily based on the clinical condition of any one patient. If an individual was

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deteriorating in the jail, they may be expedited and placed ahead of someone who had been waiting

longer. As for Barradas-Alvarado, others had been prioritized over him in Lake County. The onus

was on the Department, not the jail, to obtain the clinical update, and the Department’s policy is

to monitor individuals awaiting transport every two weeks.

¶ 51 Prior to January 25, 2023, the only direct contact the Department had with Barradas-

Alvarado was during the preplacement evaluation in November 2022. Barradas-Alvarado was

interviewed over the phone because Marano had recently had arm surgery. At that time, he was

not taking his medication; he had refused it.

¶ 52 The preplacement evaluation was supposed to occur within 7 to 10 days of receipt of the

referral. The evaluator would determine the individual’s clinical condition and need for inpatient

treatment and which hospital would best suit the individual’s needs. The Department tried to keep

individuals geographically close to their courts.

¶ 53 Addressing whether the Department could attempt to initiate treatment in the jail, Coleman

testified that most of the individuals who awaited inpatient admission were psychiatrically ill and

either unmedicated or undermedicated. She stated that it was clinically not possible or prudent to

attempt fitness restoration in terms of didactic education for individuals who were psychiatrically

ill. They were not able to benefit from it, and the Department did not have the staffing to go into a

jail to provide psychiatric services. Coleman further testified that she did not believe that the

Department even had the authority to provide services on-site (per MW). Nor did the Department

have the resources to create a treatment plan in the jail, because it was a multidisciplinary process

involving social workers and nursing, psychiatric, and medical staff. She estimated that 97% of

the individuals referred were not taking their medication or were poorly compliant and very

psychiatrically ill. There wa no ability to enforce medication compliance in the jail environment.

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Prior to the pandemic, there were discussions between the Department and the Lake County jail

about doing jail-based restoration. Nothing had moved forward on it, but Coleman conceded that

it was possible to provide some level of treatment for individuals who have started medication in

jail, noting that the Department had assessed and found people fit while in custody at the jail;

however, that occurred with a “small minority” of individuals and usually those who voluntarily

decide to comply with medication. Currently, the Department was considering pilot programs and

looking at funding and providing services directly in the jails. This may include elements of jail-

based restoration.

¶ 54 Coleman testified that it was concerning that Marano had appeared in person at the jail

only twice since July 2022 (if the July 2022 visit was her only visit in three years). The

Department’s preference was that people see individuals on-site and in person. About one week

before her testimony, Coleman learned that Marano had not been coming to the jail on a regular

basis. In response, she reaffirmed to Marano the Department’s protocol that evaluations must be

on-site, unless the jail determines that someone is too violent to be seen in person or for other

reasons.

¶ 55 Addressing the Lake County jail’s mental health services, Coleman testified that it had

such services but they were not “significantly robust for the kind of individuals that are waiting

for an inpatient admission to” the Department. Thus, there were fewer mental health resources at

the jail and, relative to other jails (such as Cook County, which has a fully functioning hospital),

people tended to decompensate quicker at the Lake County jail. They would go without treatment

longer and, therefore, the Department prioritized these inmates over others in many cases.

¶ 56 Addressing budgeting, Coleman testified that the Secretary of Human Services and

Governor’s offices “have been clear that they are affording all resources to this.” Thus, the issue

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was not budget but staffing, which predated the pandemic; the Department had been unable to hire.

There was a “significant deficit in psychiatry,” and the Department could not run hospitals without

psychiatrists. The Department had tried to hire “within the state employees” and use outside

vendors. The feedback it received was that individuals were not interested in working in state

hospitals when there were “better” (e.g., telehealth work as opposed to clinical work in facilities)

opportunities. As to compensation, Coleman testified that the Department had adjusted the pay

scale for many disciplines to incentivize people to work for it, including in psychiatry. Also, in the

past year, there were 249 recruitment events with 9746 attendees.

¶ 57 Next, Marano testified as an expert in forensic psychology. She first interacted with

Barradas-Alvarado in September 2021, when she conducted a phone interview with him. He was

found unfit to stand trial and was sent to Chester. With respect to this case, Marano reengaged with

Barradas-Alvarado via a desk review (i.e., not a phone evaluation but a review of records, court

paperwork, medical chart, LEADS information, arrest report, and psychological evaluations) on

November 10, 2022, and creating a letter recommending that he be admitted to Elgin. She did not

interact with him until January 25, 2023, when Marano conducted a follow-up evaluation that

consisted of a five to ten minute “cell-front” evaluation. She concluded that Barrados-Alvarado

had a fair understanding of court terminology. He was a medium security risk, and either Elgin or,

preferably, Chester, whichever becomes available first, would be a proper placement. Chester is

more appropriate because of Barradas-Alvarado’s escape history, which Marano learned about in

January 2023 when she visited him. He was in a segregated unit due to, according to an officer,

failing to follow rules, refusing to exit his cell, flooding the cell, stopping up the toilet, and being

verbally aggressive to females. Barrados-Alvarado was not taking medication.

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¶ 58 Marano spoke to Kalfas about Barradas-Alvarado via e-mail. When asked again about her

desk review, she reaffirmed that, without speaking to Barradas-Alvarado, she made the

determination that he remained unfit to stand trial and that it was substantially probable that he

will attain fitness within one year.

¶ 59 In November 2022, Marano had tendon surgery and she could not use her hand or a

computer because she wore a cast. She continued working and conducted desk reviews, “because

otherwise everything would have been further delayed.” She believed she would not have been

permitted in the jail while wearing a cast, assuming the jail’s policy was similar to the Department

of Corrections’ policy. She acknowledged, however, that the jail had clear partitions.

¶ 60 Kalfas told Marano in July 2022 that he was understaffed and that it was best to proceed

with phone evaluations. Marano also offered to do “Webex” videoconferences but was told that

was not available.

¶ 61 Next, Kalfas testified that the jail did not have a policy precluding people who were

wearing casts after medical procedures from visiting the jail. The jail did not allow professional

visits through videoconferencing, but it did have a noncontact visit option, specifically, with a

clear partition.

¶ 62 Currently, mental health services were contracted to Wellpath, which provided an on-site

psychiatrist for six hours per week. The jail also had a director of mental health, who worked 40

hours per week, and a social worker, who worked 16 hours per week.

¶ 63 Kalfas would communicate with Marano via e-mail once every few weeks. She would

respond via e-mail to schedule phone interviews. When a new case came in, Kalfas e-mailed

Marano fitness paperwork, as well as discovery, medical records, and other material.

¶ 64 The parties stipulated to the admission of Barczak’s testimony from Duncan’s case.

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¶ 65 On February 14, 2023, the trial court found the Department in indirect civil contempt and

fined it $500 per day until it purged its willful and contumacious conduct by providing Barradas-

Alvarado treatment. It noted that, on November 8, 2022, it ordered the Department to treat

Barradas-Alvarado and provide, within 30 days, an opinion as to the probability that he could attain

fitness within one year. Addressing willfulness, the court noted that the Department is in charge

of its own facilities and it found that the delays were budgetary. Department personnel are working

for less pay and in “less than ideal circumstances.” The court found that, if personnel were paid

more, there would be more employees. Further, the court noted that there were 28 beds, according

to Coleman, but a backlog of 250 people, which, it determined, was relevant to consider as to

willfulness. The court also noted the jail restoration program, which had not been pursued, and the

years-long waiting list.

¶ 66 As to Barradas-Alvarado, the court noted that he had been in jail for 94 days with no

treatment, which was “unconscionable.” The Department never filed a motion asserting that it

would not be able to comply with the statute; rather, its actions were “reactive,” which factored

into the court’s willfulness determination.

¶ 67 The Department’s contempt was purged on February 21, 2023. It appeals.

¶ 68 D. Clark

¶ 69 On December 20, 2022, the trial court found Clark, who had been charged with attempted

residential burglary, unfit to stand trial and entered orders like those in the other defendants’ cases.

On January 23, 2023, the Department informed the court that it had completed a preplacement

evaluation of Clark on December 28, 2022, which suggested that he remained unfit to stand trial

and that Elgin was the most appropriate inpatient setting for a formal assessment. The Department

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stated that it would notify the sheriff of admissions availability and coordinate defendant’s transfer.

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

¶ 70 On January 24, 2023, Clark petitioned for a rule to show cause as to why the Department

should not be held in contempt of court for failing to abide by the court’s December 20, 2022,

order. Specifically, Clark asserted that the Department’s status letter on January 23 was dated 34

days after his assessment and that he had not yet been transported to a Department facility or

provided treatment.

¶ 71 Also on January 24, 2023, the trial court issued the rule and set the matter for hearing. The

evidentiary hearing commenced on February 14, 2023. The Department noted that, as in a previous

case, it requested that the court discharge the rule it had entered. The court denied the Department’s

request and noted that, therefore, the burden had shifted to the Department.

¶ 72 The Department called Tima Smith, a clinical psychologist who worked as a preplacement

forensic investigator for the Department. Smith testified that she was initially assigned to Clark’s

case because Marano was on vacation. She attempted to conduct a preplacement evaluation via

telephone on December 28, 2022, but, initially, Clark did not come to the phone. He eventually

came to the phone, Smith explained her role, and then Clark put down the phone and, per a sheriff’s

deputy, walked away. Smith explained that she attempted the evaluation via telephone because she

had tested positive for COVID-19. Marano was currently assigned to the case.

¶ 73 No one else was available to conduct the evaluation because, within a two-week period,

Smith’s division was short three evaluators—two were on vacation and one retired. Only two

individuals were available to cover 18 counties.

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¶ 74 Once Clark ended the call, Smith conducted a desk review. She recommended Elgin

because Clark was not exhibiting aggression and was not on medication. She noted that her

observations were consistent with the fitness evaluator’s observations.

¶ 75 Addressing Clark’s interaction with Smith on the phone, Smith stated that he made

statements indicative of active paranoid delusions. Clark felt that the state was against him, and he

wanted to sue. He was very agitated and displayed thought disorganization. This aligned with the

fitness evaluator’s report that Clark was schizophrenic.

¶ 76 Smith was assigned to Clark’s case from December 22, 2022, to January 4, 2023. During

that time, she received no updates from the jail regarding his status there. Sometimes, jails initiate

contact if someone is in distress or exhibiting extreme behaviors. Clark did not receive any

restoration treatment in the jail.

¶ 77 Next, Marano testified that she met with Clark on January 25, February 16, and February

23, 2023. On January 25, Marano visited Clark at the jail and reviewed fitness terminology. His

symptoms interfered with his ability to understand the terminology. Marano reviewed Smith’s

recommendation for placement and felt it was appropriate. Also, Marano met with the jail’s mental

health director and discussed the individuals on her caseload and their needs. (A new mental health

director started at the jail in December 2022.) Marano asked Clark if he was willing to take

medication, and he replied that he was not willing to do so.

¶ 78 Marano next saw Clark on February 16, 2023, and he did not mention as many delusions

that day. He wanted to understand how he could engage with the court, so they discussed options.

Marano did not move forward with a formal evaluation because Clark began exhibiting symptoms.

Clark became mad and then left.

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¶ 79 Marano’s final visit to see Clark was on February 23, 2023. During the visit, she went to

Clark’s cell and spoke to him through the door because his unit was on lockdown due to quarantine.

Her evaluation was not in depth because other people could overhear. Clark reported that he was

doing okay and was feeling claustrophobic and irritable but was not as angry. He was calm, and

his room was orderly and clean. Based on this evaluation, Marano did not change her

recommendation for him.

¶ 80 Currently, Marano would visit the jail every Thursday and sometimes on Tuesday. She had

asked for updates on individuals at the jail. She returned from vacation on January 3, 2023, and

did not visit the jail until January 25, 2023. She returned after she had her cast taken off and

pursuant to an order directing Department employees to do so.

¶ 81 Next, the parties stipulated to the admission of Barczak’s testimony from Duncan’s case,

Coleman’s testimony from Barradas-Alvarado’s case, as well as Coleman’s declaration from

Barradas-Alvarado’s case.

¶ 82 The trial court, on February 24, 2023, found the Department in indirect civil contempt,

determining that the Department’s conduct was willful and contumacious for failing to follow the

court’s December 20, 2022, order to properly issue its 30-day report and to have Clark transported

to and provided treatment at a Department facility. The court also determined that the Department

was not spending sufficient funds to have individuals in the jail transferred and provided treatment.

The court noted that the individuals were presumed innocent of the charges against them and that

the Department had decided not to treat individuals in the jail or to provide them medication. It

also was not making sufficient efforts to more quickly transfer individuals to its facilities. The

court found that the waiting lists predated the pandemic. The court ordered the Department to pay

$500 per day until it purged its contempt by providing treatment to Clark.

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¶ 83 In March 2023, Clark was transported to Elgin and the Department submitted a treatment

plan with an opinion as to the probability of his attaining fitness within one year. On March 14,

2023, the court found that the Department had purged its contumacious conduct and that the total

accrued fine was $6500. The Department appeals.

¶ 84 E. Sebesta

¶ 85 On December 13, 2022, the trial court found Sebesta, who was charged with false

alarm/complaint to 911 and speeding, unfit to stand trial and entered an order like those in the

other defendants’ cases. On December 21, 2022, the Department informed the court that it had

completed a preplacement evaluation of Sebesta on that date, which suggested that Sebesta

remained unfit to stand trial and that Elgin was the most appropriate inpatient setting for a formal

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

coordinate Sebesta’s transfer. At that time, a clinical opinion and treatment plan would be rendered

and reported to the court.

¶ 86 On January 24, 2023, Sebesta petitioned for a rule to show cause, alleging that the

Department had not transported her to one of its facilities to undergo treatment and that it had not

provided any additional status reports or findings related to her ability to attain fitness within one

year. Also, on January 24, 2023, the trial court issued a rule to show cause, finding that the

Department had “wholly and willfully” failed and neglected to comply with the statute and the

court’s December 13, 2022, order. It set the case for hearing.

¶ 87 At a February 14, 2023, evidentiary hearing, the Department conceded that a prima facie

case had been established and that the burden had shifted to it. It called Marano, who testified that

she was assigned to Sebesta’s case in December 2022. On December 21, 2022, she conducted a

preplacement evaluation over the telephone and recommended that Sebesta go to Elgin for

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treatment. Following the evaluation, Marano went to the Lake County jail on January 25, 2023,

and saw Sebesta in person. She testified that Sebesta had a good knowledge of legal terminology.

She was upset that she was wearing clothing that, as she told Marano, meant to her that she was

identified as being aggressive. Sebesta was not on any medication and requested a specific

medication and Marano contacted the mental health director about it. Marano was scheduled to

see Sebesta again on February 16, 2023, in person, to see how she was doing. Prior to January 25,

2023, Marano did not attempt to see Sebesta in person. She had conducted a desk review. She

conceded that the best practice in performing intake placement exams was an in-person

assessment.

¶ 88 Marano recalled that she did not complete an assessment of Sebesta because she was told,

via e-mail from Kalfas, that Sebesta was too aggressive to come to the phone. Thus, between the

December 13, 2022, unfitness finding and January 25, 2023, Marano did not meet with Sebesta or

speak with her on the phone. Marano, however, asked, via e-mail, for biweekly or monthly updates

from the jail.

¶ 89 On February 7, 2023, Marano met with the jail’s mental health director and learned that

the nurse practitioner believed that the medication Sebesta requested was not appropriate, due to

side effects. Thus, Sebesta remained unmedicated. Marano had provided no treatment to Sebesta

in regard to fitness restoration, but she provided the mental health director with fitness handouts if

the director felt that it was appropriate to give them to Sebesta.

¶ 90 On February 24, 2023, the hearing continued. The parties stipulated to the admission of

Barczak’s testimony from Duncan’s case, Coleman’s declaration from Barradas-Alvarado’s case,

and Coleman’s testimony from Barradas-Alvarado’s case. Further, the parties stipulated to an

affidavit by Marano wherein she included updates on Sebesta. Marano averred that she met with

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Sebesta in custody on January 25, 2023. She attempted to meet with her again on February 16,

2023, but, when she went to Sebesta’s cell, Sebesta yelled and was belligerent. Marano updated

the mental health director at the jail and her supervisors. On February 23, 2023, Marano again

attempted to meet with Sebesta at the jail. When she went to Sebesta’s cell, Sebesta demanded that

the interview be recorded and yelled racial slurs and profanities at Marano and threatened

Marano’s and her family’s lives. Marano updated the jail and her supervisors.

¶ 91 Sebesta called Kalfas, who testified that, in mid-December 2022, he transmitted to the

Department information concerning Sebesta’s case. Further, prior to January 1, 2023, he did not

recall informing the Department that Sebesta was too aggressive to even attempt to complete a

phone evaluation.

¶ 92 On January 11, 2023, Kalfas received a communication from Marano providing a list of

individuals she believed were currently in the jail’s custody who were unfit to stand trial. Sebesta’s

name was not on the list. “There were names I had to add to the list.” He informed Marano that

Sebesta was decompensating while in custody. Marano, according to Kalfas, came in person to the

jail on January 25, 2023, and had visited every Thursday since that date.

¶ 93 The trial court found the testimony “astonishing,” noting that Sebesta was found unfit on

December 13, 2022, but Department personnel did not see her until the court, on January 24, 2023,

ordered the Department to do so. Thus, Sebesta, who was presumed innocent, was in jail for 43

days (from the issuance of the rule to the hearing date) without receiving any treatment or transport.

The court found the Department in indirect civil contempt of court. It further noted that the

Department had not provided a 30-day report because, it found, it “chooses to not follow the

statute.” The court fined the Department $500 per day until the contempt was purged.

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¶ 94 On April 3, 2023, Sebesta was transported to Elgin, and the Department submitted a

treatment plan containing an opinion as to the probability of Sebesta attaining fitness within one

year. The trial court found that the Department had purged its contumacious conduct and that the

total accrued fine was $6500. The Department appeals.

¶ 95 II. ANALYSIS

¶ 96 The Department argues that the trial court’s findings were against the manifest weight of

the evidence and that its contempt orders were an abuse of discretion because (1) there was no

prima facie evidence of noncompliance with the unfitness orders; (2) in determining that

defendants established prima facie cases of contempt, the court improperly relied, in part, on the

Department’s purported noncompliance with a statute, rather than a court order; and (3) the

evidence did not show a willful and contumacious refusal to obey the unfitness orders. The

Department contends that each of the foregoing reasons is a sufficient basis to reverse, and it

requests that we vacate the contempt orders. For the following reasons, we find the Department’s

arguments unavailing.

¶ 97 A. Statutory Framework

¶ 98 The Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/100-1 et seq. (West 2020))

includes procedures for the involuntary commitment of defendants found unfit to stand trial. Its

provisions govern proceedings to involuntarily admit those defendants and to determine whether

they remain unfit to stand trial. In re Clarke, 200 Ill. App. 3d 365, 369 (1990). Under the Code,

the court retains “supervisory jurisdiction” to monitor an unfit defendant’s commitment and

treatment. See People v. Lavold, 262 Ill. App. 3d 984, 990 (1994) (discussing the period during

which a pretrial detainee may be held pursuant to this jurisdiction without a separate finding that

he or she is subject to civil commitment). Specifically, section 104-16(d) of the Code provides

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that, upon finding a defendant not fit to stand trial but likely to become fit within one year, the

court must order the defendant to undergo treatment to render him or her fit to stand trial. 725

ILCS 5/104-16(d) (West 2020).

¶ 99 At the time of the proceedings, section 104-17(b) provided, in relevant part:

“If the defendant’s disability is mental, the court may order him [or her] placed for

treatment in the custody of the Department ***. If the court orders the defendant placed in

the custody of the [Department], the Department shall evaluate the defendant to determine

to which secure facility the defendant shall be transported and, within 20 days of the

transmittal by the clerk of the circuit court of the placement court order, notify the sheriff

of the designated facility. Upon receipt of that notice, the sheriff shall promptly transport

the defendant to the designated facility. If the defendant is placed in the custody of the

[Department], the defendant shall be placed in a secure setting. During the period of time

required to determine the appropriate placement the defendant shall remain in jail. ***

[U]pon completion of the placement process, the sheriff shall be notified and shall transport

the defendant to the designated facility. If, within 20 days of the transmittal by the clerk of

the circuit court of the placement court order, the Department fails to notify the sheriff of

the identity of the facility to which the defendant shall be transported, the sheriff shall

contact a designated person within the Department to inquire about when a placement will

become available at the designated facility and bed availability at other facilities. If, within

20 days of the transmittal by the clerk of the circuit court of the placement court order, the

Department fails to notify the sheriff of the identity of the facility to which the defendant

shall be transported, the sheriff shall notify the Department of its intent to transfer the

defendant to the nearest secure mental health facility operated by the Department and

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inquire as to the status of the placement evaluation and availability for admission to such

facility operated by the Department by contacting a designated person within the

Department. The Department shall respond to the sheriff within 2 business days of the

notice and inquiry by the sheriff seeking the transfer and the Department shall provide the

sheriff with the status of the evaluation, information on bed and placement availability, and

an estimated date of admission for the defendant and any changes to that estimated date of

admission. If the Department notifies the sheriff during the 2 business day period of a

facility operated by the Department with placement availability, the sheriff shall promptly

transport the defendant to that facility. The placement may be ordered either on an inpatient

or an outpatient basis.” Id. § 104-17(b). 1

¶ 100 At the time relevant to these appeals, 2 section 104-17(e) provided, in relevant part:

1 Effective January 18, 2023, section 104-17(b) provides that the Department “shall admit

the defendant to a secure facility within 60 days of the transmittal of the court’s placement order,

unless the Department can demonstrate good faith efforts at placement and a lack of bed and

placement availability.” 725 ILCS 5/104-17(b) (West 2022). If placement cannot be made and the

Department has shown good faith efforts at placement and a lack of bed and placement availability,

it must provide updates to the court every 30 days until the defendant is placed. Id. The parties and

the trial court agreed that the amended version of section 104-17(b) did not retroactively apply in

these cases.
2 Effective January 18, 2023, section 104-17(e) provides that the Department must file the

report within 30 days of admission to the designated facility. Pub. Act 102-1118 (eff. Jan. 18,

2023). The parties and the trial court agreed that the amended version of section 104-17(e) did not

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“Within 30 days of entry of an order to undergo treatment, the person supervising the

defendant’s treatment shall file with the court, the State, and the defense a report assessing

the facility’s or program’s capacity to provide appropriate treatment for the defendant and

indicating his [or her] opinion as to the probability of the defendant’s attaining fitness

within a period of time from the date of the finding of unfitness. For a defendant charged

with a felony, the period of time shall be one year. *** If the report indicates that there is

a substantial probability that the defendant will attain fitness within the time period, the

treatment supervisor shall also file a treatment plan which shall include:

(1) A diagnosis of the defendant’s disability;

(2) A description of treatment goals with respect to rendering the defendant

fit, a specification of the proposed treatment modalities, and an estimated timetable

for attainment of the goals;

(3) An identification of the person in charge of supervising the defendant’s

treatment.” Id. § 104-17(e).

¶ 101 Section 104-18 provides that the treatment supervisor must file regular progress reports,

including an opinion regarding whether the defendant is likely to attain fitness within the

prescribed period. Id. § 104-18(a).

¶ 102 Section 104-20(a) requires the court to hold hearings every 90 days to determine if the

defendant is still unfit to stand trial and, if so, whether the defendant is likely to attain fitness within

one year. Id. § 104-20(a). If the court finds that the defendant is still unfit to stand trial but is

retroactively apply in these cases.

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making progress in treatment toward becoming fit, the court may continue or modify its original

treatment order. Id. § 104-20(c).

¶ 103 B. Contempt Proceedings

¶ 104 Courts typically enforce orders by way of contempt proceedings. Computer Teaching

Corp. v. Courseware Applications, Inc., 191 Ill. App. 3d 203, 206 (1989). A petition for a rule to

show cause is the method by which a party seeks enforcement of a court order, by bringing to the

court’s attention the opposing party’s alleged violation of that order. In re Marriage of LaTour,

241 Ill. App. 3d 500, 508 (1993).

¶ 105 Contempt may be either civil or criminal, and either direct or indirect, with varying due

process requirements depending on the classification. See People v. Javaras, 51 Ill. 2d 296, 299

(1972). Whether contempt is civil or criminal turns on the purpose of the contempt charge. In re

Marriage of Betts, 200 Ill. App. 3d 26, 43 (1990). Criminal contempt is used to punish past

contumacious conduct, including “an act committed against the majesty of the law in disrespect of

the court or its process” (Pryweller v. Pryweller, 218 Ill. App. 3d 619, 629 (1991)), whereas civil

contempt is used as a means to compel compliance with a court order, usually “for the benefit or

advantage of another party to the proceeding” (id. at 628). Betts, 200 Ill. App. 3d at 43. “Civil

contempt proceedings have two fundamental attributes: (1) [t]he contemnor must be capable of

taking the action sought to be coerced, and (2) no further contempt sanctions are imposed upon

the contemnor’s compliance with the pertinent court order.” Id. at 44.

¶ 106 Contempt, whether civil or criminal, may be direct or indirect. The distinction between

direct and indirect contempt largely depends on where the contumacious conduct took place. See

Cetera v. DiFilippo, 404 Ill. App. 3d 20, 41 (2010). Direct contempt occurs in the judge’s presence

or in an “integral or constituent part of the court.” Betts, 200 Ill. App. 3d at 47-48. All other

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contempt is indirect and includes all contempt that does not occur in such proximity to a court; it

“must be established by the presentation of evidence.” Wierzbicki v. Gleason, 388 Ill. App. 3d 921,

934 (2009). “A finding of indirect civil contempt relies on the existence of a court order and willful

disobedience of that court order.” Sinkus v. BTE Consulting, 2017 IL App (1st) 152135, ¶ 29.

¶ 107 Because a judge in indirect contempt proceeding does not have personal knowledge of the

allegedly contumacious conduct, the contemnor cannot be punished summarily. Pryweller, 218 Ill.

App. 3d at 629-30. Rather, due process requires that the contemnor receive (1) an evidentiary

hearing and (2) adequate notice of the time and place of such hearing. Id. at 629.

¶ 108 The petition for a rule to show cause and the rule to show cause work in concert to notify

the alleged contemnor of the charges against him or her and the time and place of an evidentiary

hearing. LaTour, 241 Ill. App. 3d at 508. A party’s petition for a rule to show cause typically

initiates civil contempt proceedings, but the court must also issue a rule to show cause to satisfy

notice requirements. Id. The rule to show cause is “the method by which the court brings the parties

before it for a hearing”; it is not itself a contempt finding. Id.

“Initially, the burden falls on the petitioner in a rule to show cause to establish, by

a preponderance of the evidence, that the alleged contemnor violated a court order and,

therefore, should be held in contempt. In re Marriage of Knoll, 2016 IL App (1st) 152494,

¶ 50. ‘Noncompliance with a court order is prima facie evidence of contempt.’ In re

Marriage of Ray, 2014 IL App (4th) 130326, ¶ 15. Once that burden is satisfied, the burden

shifts to the contemnor, who has the burden of showing that the violation was not willful

and contumacious and that he or she had a valid excuse for failing to follow the order.

Knoll, 2016 IL App (1st) 152494, ¶ 50. ‘Contumacious conduct consists of conduct

calculated to embarrass, hinder, or obstruct a court in its administration of justice or

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lessening the authority and dignity of the court.’ (Internal quotation marks omitted.) [Id.]”

In re J.S., 2022 IL App (1st) 220083, ¶ 72.

¶ 109 “A valid purge condition is a necessary part of an indirect civil contempt order, and ‘[a]

contemnor must be able to purge the civil contempt by doing that which the court has ordered him

[or her] to do.’ Felzak v. Hruby, 226 Ill. 2d 382, 391 (2007).” Id. ¶ 71. However, the inability

defense may not be asserted where the contemnor has voluntarily created the incapacity. County

of Cook v. Lloyd A. Fry Roofing Co., 59 Ill. 2d 131, 137 (1974).

¶ 110 Whether a party is guilty of contempt is a question of fact for the trial court, and a reviewing

court should not disturb the trial court’s determination unless it is against the manifest weight of

the evidence or the record reflects an abuse of discretion. In re Marriage of Knoll, 2016 IL App

(1st) 152494, ¶ 50. A decision is against the manifest weight of the evidence where the court’s

findings are unreasonable. Id. Similarly, a ruling constitutes an abuse of discretion where the

court’s ruling is unreasonable. People v. Cerda, 2014 IL App (1st) 120484, ¶ 183.

¶ 111 C. Prima Facie Cases of Contempt—Lack of Time Frame

¶ 112 First, the Department argues that the trial court erred in finding that defendants established

prima facie cases of indirect civil contempt.

¶ 113 Preliminarily, citing the trial court orders issuing the rules to show cause, defendants

respond that the record on appeal does not contain transcripts of the hearings on defendants’

petitions. At each of these hearings, the court considered the petition, heard counsel’s arguments,

and issued a rule to show cause. Defendants argue that, given that it is the appellant’s burden to

present a sufficiently complete record on appeal but the Department has failed to include all

relevant transcripts, any doubts arising from the incompleteness of the record should be resolved

against it (Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984)) and the court’s decision should be

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affirmed. See In re Marriage of Ray, 2014 IL App (4th) 130326, ¶ 17 (presumption of prima facie

case of contempt where there was no transcript of the hearing).

¶ 114 The Department responds by noting that the issuance of a rule to show cause merely

initiates contempt proceedings and does not constitute a finding on the merits that there was

prima facie evidence of noncompliance with a court order. Thus, it contends, the transcripts of the

proceedings that led to the issuance of the rules to show cause are irrelevant to assessing the court’s

findings made at the merits hearings on the rules to show cause.

¶ 115 We agree with the Department. In LaTour, 241 Ill. App. 3d at 508, the court explained the

civil contempt process:

“A petition for a rule to show cause is the method for notifying the court that a court

order may have been violated, and the petitioner requests a hearing on the issue. The

petition for a rule to show cause and the rule to show cause operate together to inform the

alleged contemnor of the allegations against [him or] her. The rule to show cause is the

method by which the court brings the parties before it for a hearing. It also notifies the

alleged contemnor of the time and place of the hearing. Thus, the petition for a rule to show

cause initiates the contempt proceedings, but it does not establish that a violation of a court

order has in fact occurred. The rule to show cause, issued by the court, is not a finding a

violation of a court order has occurred, but part of the process of notifying the alleged

contemnor of the charges, and time and place of the hearing. At the hearing, the burden is

on the petitioner to show a violation of a court order has occurred. Once this showing has

been made, the burden shifts to the alleged contemnor to show the violation was not

wil[l]ful.” (Emphasis added.)

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¶ 116 Here, the transcripts from the hearings on the merits are contained in the record on appeal.

Specifically, the record contains transcripts of the hearings that led to the court’s prima facie

findings, along with its willfulness determinations.

¶ 117 Turning to the Department’s argument, it contends that the court’s findings of prima facie

evidence of noncompliance were erroneous because the court’s orders did not each set a specific

time frame for it to place or treat defendants. The court, it notes, ordered that each defendant be

transported to and placed in the Department’s custody, with the Department determining the

appropriate placement and providing appropriate treatment. The 30-day deadline, the Department

contends, was a reporting requirement. The orders, in its view, contained no language requiring

that defendants be placed and treated by a specific date. Thus, the court’s findings that defendants

established prima facie cases of contempt were against the manifest weight of the evidence

because contempt must be found on an unambiguous order. See In re Marriage of Baumgartner,

2014 IL App (1st) 120552, ¶ 64. The Department reasons that, because the incorrect factual

findings were based on an error of law, the court’s contempt orders also constituted an abuse of

discretion.

¶ 118 We reject the Department’s argument. Noncompliance with a court order is prima facie

evidence of indirect civil contempt. In re Marriage of Dall, 212 Ill. App. 3d 85, 97 (1991) (child

support order). In Duncan’s case, for example, 3 on November 15, 2022, upon finding Duncan unfit

to stand trial, the court ordered the sheriff to transport Duncan to and place her in the custody of

the Department and ordered the Department to determine the appropriate placement and the

3 With the exception of case names, case numbers, and dates, identical form orders were

used for each defendant.

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appropriate treatment for her. The court also ordered the Department, within 30 days, to “indicate

an opinion as to the probability of [Duncan] attaining fitness within a period of one (1) year from

today’s date.” Further, if there was a probability that Duncan would attain fitness within one year,

the Department “shall [ ] file a treatment plan.” On December 2, 2022, the Department notified

the court that a preplacement evaluation was completed on November 30, 2022, and the results

suggested that Duncan remained unfit to stand trial and that Elgin was the most appropriate

inpatient setting for a formal assessment. The Department stated that it would notify the sheriff of

admissions availability and coordinate Duncan’s transfer. At that time, a clinical opinion and

treatment plan would be rendered and reported to the court. On December 20, 2022, Duncan

petitioned for a rule to show cause because she had not, as of the date of her petition, been

transported to a Department facility for treatment.

¶ 119 The court’s November 15, 2022, order unambiguously ordered the Department to

(1) determine appropriate placement for Duncan and “provide appropriate treatment”; (2) within

30 days, render an opinion as to the probability of Duncan attaining fitness within one year; and,

(3) if a probability existed that Duncan would attain fitness within one year, also file a treatment

plan. The court also ordered the Department to file a progress report at least seven days before a

status hearing set for December 20, 2022. The Department filed with the court, on December 2,

2022, a report indicating that it had conducted a preplacement evaluation on Duncan and

determined that she remained unfit to stand trial; that Elgin was the most appropriate placement

for a formal assessment; that, upon availability, it would have Duncan transferred there; and that,

upon admission, it would conduct a formal assessment and render to the court a treatment plan.

On December 20, 2022, when Duncan filed her petition, the Department had not provided Duncan

any treatment, opined as to the probability of her attaining fitness within one year, or filed a

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treatment plan. Indeed, on December 2, 2022, the Department notified the court that it would not

formally assess Duncan or file a treatment plan until Duncan was admitted to Elgin, thereby

conceding that it would not provide her any treatment until a later date. By the time of the

evidentiary hearing on Duncan’s petition on January 27, 2023, the Department had still not met its

obligations. Similar scenarios played out as to the other defendants.

¶ 120 The Department’s assertion that it was not required to provide treatment by a certain date

because that date was not specified in the court’s order is not well taken. In November 2022, the

court ordered the Department to treat Duncan and, within 30 days of its order, to file a treatment

plan if it determined that it was likely that she could be restored to fitness within one year. This

indisputably shows that the court intended Duncan’s treatment to commence nearly immediately

after it entered its order. Otherwise, there would be no need to add that a treatment plan be filed

within one month of the court’s unfitness finding. The Department did not treat Duncan and,

instead, merely conducted a preplacement evaluation and affirmatively stated that it would not

provide a clinical opinion and treatment plan until Duncan was taken into its custody and formally

evaluated. This did not occur until February 2023.

¶ 121 In re Marriage of Baumgartner, 2014 IL App (1st) 120552, upon which the Department

relies, is distinguishable because that case involved indirect criminal contempt, which implicates

certain constitutional requirements. Criminal contempt is used to punish past contumacious

conduct, including “an act committed against the majesty of the law in disrespect of the court or

its process” (Pryweller, 218 Ill. App. 3d at 629), whereas civil contempt is used as a means to

compel compliance with a court order, usually “for the benefit or advantage of another party to the

proceeding” (id. at 628). “To be found in indirect criminal contempt requires ‘(1) the existence of

a clear court order, and (2) the willful violation of that order.’ ” Baumgartner, 2014 IL App (1st)

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120552, ¶ 60. Further, “[t]o satisfy the first element, the would-be contemnor must have received

fair and precise notice of what the order prohibited.” Id.; see also Betts, 200 Ill. App. 3d at 58

(“Indirect criminal contempt proceedings must generally conform to the same constitutionally

mandated procedural requirements as other criminal proceedings. One charged with indirect

criminal contempt is entitled to *** know the nature of the charge against him [or her], to have it

definitely and specifically set forth by citation or rule to show cause, and *** [have] an opportunity

to answer ***.” (Internal quotation marks omitted.)). The Department cites no authority requiring

such exacting requirements in indirect civil contempt proceedings.

¶ 122 In re Marriage of Vickers, 2022 IL App (5th) 200164, another case upon which the

Department relies, is also distinguishable. In Vickers, an indirect civil contempt case, the court

noted generally that orders must be unambiguous and that the court’s order in that case, which

required the parties to communicate via text message or e-mail, did not unambiguously require

each parent to provide the other with his or her cell phone number. Id. ¶¶ 64-67. Vickers is not

helpful to our analysis because the trial court here unambiguously required the Department to

provide treatment, which the Department did not do. The Department’s argument that no time

frame was specified for providing treatment fails because the court ordered treatment, which

implies, along with the statutory timelines, that it be provided upon or near to the time of the court’s

order. Undisputedly, timeliness was essential.

¶ 123 In summary, the trial court did not err in finding that defendants established prima facie

cases for indirect civil contempt.

¶ 124 D. Prima Facie Cases of Contempt—Noncompliance With Statute

¶ 125 Next, the Department argues that the court’s reliance, in part, on the Department’s

purported noncompliance with a statute (as opposed to a court order) rendered its prima facie

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contempt findings an abuse of discretion. This constituted, it asserts, a misapplication of the law

because proof of willful disobedience of a court order is necessary for an indirect civil contempt

finding.

¶ 126 The Department notes that, as to each defendant, the trial court determined, in part, that the

agency did not follow statutory requirements—specifically, section 104-17(e) of the Code. 725

ILCS 5/104-17(e) (West 2020) (requiring, within 30 days of unfitness order, opinion as to

probability of the felony defendant attaining fitness within one year and, if there was such a

probability, filing a treatment plan). Conceding that, if the underlying orders incorporated the

statutory requirement, then contempt findings could be used to enforce them, the Department

argues that, although the trial court’s unfitness orders did not explicitly incorporate any of the

statutory requirements, they did independently require that the Department file a report within 30

days. The Department concedes that the court did not state that its analysis was informed only by

the statute’s requirements; but, the Department argues, it explicitly based its findings, in part, on

noncompliance with the statute.

¶ 127 We reject the Department’s argument. The trial court’s findings were based primarily on

its determination that the Department had not complied with its orders and partly on its findings

that the Department had not complied with the statute. For example, in the Weinstein case, the trial

court issued the rule on January 10, 2023, finding that the Department had neglected to comply

with the statute and the court’s unfitness order. Later, in finding that Weinstein had established a

prima facie case, the court noted that its unfitness order had directed the Department to provide

Weinstein treatment and that the statute required the agency to file a 30-day report, none of which

were completed. Subsequently, in finding the Department in indirect civil contempt, the court

found that the agency had failed to follow its unfitness order directing the Department to treat

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Weinstein and further found that the violation was willful and contumacious. The court also

referenced the statute, noting its interpretation that the statute required a defendant to undergo

treatment within 30 days.

¶ 128 As noted, apart from case names, case numbers, and dates, the court’s unfitness orders were

identical form orders for all defendants. They required that defendants be placed in the

Department’s custody and that the Department provide treatment and, within 30 days, provide an

opinion as to whether the defendants could attain fitness within one year; if so, the agency was to

file a treatment plan. Thus, the orders mirrored the statutory language. Section 104-17(b) of the

Code provides that, if a defendant’s disability is mental, the court may order him or her placed for

treatment in the Department’s custody. Id. § 104-17(b). Further, section 104-17(e) of the Code

requires the Department, within 30 days of an order directing treatment, 4 to file a report indicating

its opinion as to the probability of the defendant attaining fitness within one year and, if there is

such a probability, to file a treatment plan. Id. § 104-17(e). Administrative agencies are creatures

of statute and have no general or common-law powers. Goral v. Dart, 2020 IL 125085, ¶ 33. Their

powers are limited to those granted by the legislature, and any actions they take must be authorized

by their enabling statutes. Id. The trial court did not err in referencing the statutory requirements,

but it ultimately and primarily ruled that the Department had not complied with its unfitness orders.

¶ 129 E. Willful and Contumacious Conduct

4 Currently, the statute provides that the section 104-17(e) report be filed “[w]ithin 30 days

of admission to the designated facility” (725 ILCS 5/104-17(e) (West 2022)), rather than within

30 days of the entry of the unfitness order directing treatment of the defendant.

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¶ 130 The Department’s final argument is that, even if defendants established prima facie cases

of indirect civil contempt, the evidence did not show that the Department engaged in willful and

contumacious conduct. It contends that factors outside its control prevented it from placing and

treating defendants; its efforts, though unsuccessful, demonstrated that its noncompliance with the

unfitness orders was not willful. The Department further contends that the court abused its

discretion by relying, in part, on Department conduct that predated the unfitness orders.

¶ 131 “Contumacious conduct consists of ‘conduct calculated to embarrass, hinder, or obstruct a

court in its administration of justice or lessening the authority and dignity of the court.’ ” In re

Marriage of Charous, 368 Ill. App. 3d 99, 108 (2006) (quoting In re Marriage of Fuesting, 228

Ill. App. 3d 339, 349 (1992)).

¶ 132 The Department first takes issue with the trial court’s finding that the agency did not

dedicate sufficient resources to hiring, expanding facilities, and providing treatment in the county

jails. It asserts that the evidence demonstrates that the opposite conclusion is clearly evident: the

delay in placing and treating defendants was due to circumstances outside its control. The

evidence, the Department contends, showed that its facilities were at full capacity and that a

defendant could be admitted only if a current patient was discharged. Also, there were limited

opportunities for community placement, which restricted the agency’s ability to free up beds for

new admissions. Department personnel testified, it notes, about nationwide staff shortages that

prevented the Department from operating inpatient treatment at full capacity and further expanding

facility capacity. Also, it raised starting salaries and still had difficulty hiring staff, and, in recent

years, the number of court-ordered referrals for inpatient treatment had dramatically increased. As

for jail-based treatment, the Department notes, Coleman explained that the Department lacked

resources to provide comprehensive psychiatric services both within its facilities and at every

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county jail. The Department contends that no contrary evidence was presented and, thus, the court

did not have to weigh competing evidence.

¶ 133 Relatedly, the Department contends that, although its efforts to place and treat defendants

were unsuccessful, they did not demonstrate willfulness. The court, it argues, improperly focused

on the effectiveness of the Department’s efforts rather than on whether the efforts demonstrated a

lack of intent to comply with the court’s unfitness orders. Its efforts and placement must be

assessed, it urges, in the context of the systemic obstacles it faced. The Department notes that it

employed several methods to assess and track defendants’ mental health, including preplacement

evaluations, Marano’s monthly e-mail checks between November 2022 and late January 2023, her

in-person visits beginning in late January 2023 (every Thursday and sometimes on Tuesdays), and

her increased communications with the jail’s mental health staff (which helped identify defendants

who needed higher placement prioritization). All of these efforts, the Department asserts, were

intended to create faster compliance with the court’s orders and do not demonstrate willfulness.

The Department also takes issue with the court’s assessment that it could have implemented

treatment and placement procedures that the court believed would have been better or more

efficient. It argues that this did not demonstrate willfulness. Its efforts, it contends, were focused

on complying with the unfitness orders.

¶ 134 The Department relies on In re J.S., 2022 IL App (1st) 220083, ¶¶ 78, 87, where the

reviewing court reversed or vacated indirect civil contempt orders in several cases brought by the

public guardian against the Department of Children and Family Services (DCFS) for failing to find

appropriate placements for minors in either residential treatment centers or specialized foster

homes. In each of the cases, DCFS found facilities for potential placement for the minors, but the

facilities were not controlled by DCFS and the minors were rejected for placement for various

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reasons. The trial court found DCFS in indirect civil contempt for failing to place the minors by a

certain date and, in some of the cases, also found that DCFS ignored the court’s orders. In one

case, the trial court found that DCFS’s systemic issues affected minors throughout the State

(referencing 150 minors statewide in residential facilities being held beyond their discharge date

and 50 minors hospitalized beyond medical necessity) but noting that the specific reason it found

DCFS in contempt was the agency’s failure to comply with its orders to find appropriate

placements for the minors.

¶ 135 The reviewing court held that, although the agency’s efforts were ineffective, it was

actively engaged in trying to find appropriate placements and did not ignore the trial court’s orders;

thus, the contempt orders were an abuse of discretion. Id. ¶¶ 78-79, 83. The trial court, it

determined, failed to address the agency’s ability to comply with the court’s orders, given the

complexity of the cases, availability of resources, and the court’s time parameters. Id. ¶ 79. Further,

the reviewing court took issue with the trial court’s comments regarding DCFS activity before the

court’s placement orders were entered, noting that the conduct could not be considered in a civil

contempt proceeding. Id. ¶ 81.

¶ 136 Here, the Department argues that there should be a similar result as in J.S. It maintains that

it engaged in efforts that, although unsuccessful, were taken to comply with the unfitness orders:

it evaluated defendants, identified appropriate placements, monitored defendants’ conditions

through e-mail and in-person communication with jail personnel, and updated each defendant’s

priority on the waiting list based on their current mental health needs. Further, it argues that, as in

J.S., factors outside its control—insufficient staff and beds and increased referrals—delayed its

ability to place and treat defendants as required by the unfitness orders. Finally, the Department

contends that the fact that it controls its own facilities, unlike DCFS, is not dispositive of the

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underlying questions to establish willfulness—whether it engaged in efforts to comply and

compliance was impossible due to factors outside its control.

¶ 137 We reject the Department’s arguments. The issue is whether the court erred in determining

that the Department did not meet its burden to show that its violations were not willful and

contumacious and that it had a valid excuse for failing to follow the court’s orders. As noted, a

contemnor must be able to purge a civil contempt by doing what the court has ordered it to do. Id.

¶ 71. However, the contemnor cannot claim inability to purge where it has voluntarily created the

incapacity. Lloyd A. Fry Roofing, 59 Ill. 2d at 137.

¶ 138 The Department, as testified to by Barczak in Duncan’s case, has a policy that it will

conduct a full evaluation of a defendant (presumably, a prerequisite to any substantial treatment)

only after the defendant is in custody at one of its facilities. Notwithstanding this self-imposed

limitation, the evidence reasonably showed that the Department essentially failed to even monitor

and/or track defendants at the jail. This policy also resulted in Department staff relying on jail

personnel who had no mental health training to provide updates to staff concerning defendants.

Barczak testified in Duncan’s case that Marano conducted all preplacement evaluations via

telephone calls to Kalfas, who is not a mental health professional and does not consult with jail

mental health staff (although Kalfas disputed this latter point but also testified that no one at the

Department communicates with jail mental health staff). Indeed, Marano, who conceded that in-

person visits were the superior way to conduct preplacement evaluations, testified, in Weinstein’s

case, that she began visiting the jail in person only after Barczak contacted her after hearings on

January 24, 2023, and instructed her to go to the jail to see everyone who was still unfit to stand

trial. (She agreed, in Barradas-Alvarado’s case, that she was never prevented from visiting the

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jail.) Barczak also testified, in Duncan’s case, that it was unacceptable that Marano was conducting

preplacement evaluations over the telephone for most Lake County cases.

¶ 139 Sebesta’s case is perhaps the most egregious, as her case initially appeared to fall through

the cracks. According to Kalfas, as of January 11, 2023, Sebesta—who had been found unfit on

December 13, 2022—was not even on Marano’s list of jail inmates unfit to stand trial, and Kalfas

informed Marano of this and that Sebesta was decompensating. Thus, for nearly one month after

the unfitness order, Sebesta was nowhere on the Department’s radar. Marano met with Sebesta on

January 25, 2023, the date, according to Kalfas, that Marano began regularly coming to the jail.

For the Department to claim that it was making efforts to comply with the court’s orders is,

therefore, wholly inaccurate and mischaracterizes the nature of the Department’s actions.

¶ 140 In Weinstein’s case, as defendants note, the Department called only one witness—

Marano—who testified that Weinstein—who was found unfit on November 22, 2022—had not

received any treatment. She saw Weinstein in person for the first time on January 25, 2023, six

days before the hearing on the rule. Even after visiting Weinstein in person, Marano did not assess

him for a recommendation to a facility or write a report on her findings.

¶ 141 Clark was found unfit on December 20, 2022, and Smith was the initial evaluator, being

assigned to his case from December 22, 2022, through January 4, 2023, or 13 days. Smith

attempted to conduct a preplacement evaluation via telephone on December 28, but Clark was not

cooperative. Thereafter, she did not attempt to contact the jail for updates concerning his status.

Marano was assigned to Clark’s case, on January 5, 2023, but she did not visit him at the jail until

January 25, 2023, 20 days later.

¶ 142 Barradas-Alvarado was found unfit on November 8, 2022. Marano testified that she merely

conducted a desk review on November 10, 2022, and communicated with Kalfas, who was not a

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mental health professional, about Barradas-Alvarado. (Contrary to this testimony, Coleman

testified that the Department interviewed Barradas-Alvarado over the telephone.) The next contact

that Marano had with Clark was not until January 25, 2023, when she met him in person at his cell

front. She provided no treatment. Similarly, Duncan was found unfit on November 15, 2022, and

Marano did not see her in person for nearly two weeks after being informed on January 11, 2023,

that she was exhibiting behavioral issues.

¶ 143 The evidence concerning jail-based treatment also showed that the Department’s conduct

was willful and contumacious. Coleman stated that it is clinically not possible or prudent to attempt

fitness restoration in terms of didactic education for someone who is psychiatrically ill. However,

she also testified that the Department was currently considering pilot programs and looking at

funding services in the jails, which may include elements of jail-based restoration. Further, Marano

testified that she provides fitness educational pamphlets to certain jails but does not provide such

materials to Lake County inmates (with the exception of leaving fitness handouts with the jail’s

mental health director for Sebesta). Based on this evidence, the trial court reasonably determined

that the Department voluntarily chose to not attempt restoration at the Lake County jail.

¶ 144 Thus, focusing on the periods after the trial court’s unfitness orders, the evidence

reasonably showed that the Department failed to engage in efforts to comply with the court’s

unfitness orders.

¶ 145 We also find unavailing the Department’s claims that factors outside its control prevented

it from placing and treating defendants. Coleman’s declaration and testimony related recent

efforts—many of which predated the court’s fitness orders—that the Department had engaged in

to address the issues related to increases in referrals to its facilities and staffing shortages; these

efforts included recruiting, increasing salaries for certain entry-level positions, and expanding

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forensic capacity (including partnerships with private hospitals and capital improvements at an

unused Department building. However, Coleman also related that funding was not an issue, stating

that the Secretary of Human Services and the Governor’s offices were “affording all resources to

this.” Thus, the Department, which has full control over staffing, placement, and treatment

decisions, unlike DCFS in J.S., cannot reasonably claim that factors beyond its control precluded

it from complying with the court’s unfitness orders.

¶ 146 Coleman testified that, prior to the pandemic, the Department and the jail explored

conducting jail-based restoration but abandoned the plan. And, again, she explained that the

Department did not have the resources to provide treatment in the jail and described the challenges

in providing jail-based treatment. However, she also claimed that there were no budgetary

constraints and that the Department was currently exploring jail-based options. It is reasonable to

conclude from this evidence that the lack of some level of jail-based restoration services was a

voluntary decision by the Department.

¶ 147 Finally, the Department argues that the trial court erred in relying, in part, on Department

conduct that predated the unfitness orders. Specifically, it notes the court’s reliance on the agency’s

unsuccessful efforts several years ago to establish jail-based restoration services and the waiting

list, understaffing, insufficient space, and other issues that have existed for at least a decade prior

to the pandemic. The court, it further notes, also partly based its findings on the use of phone

interviews and desk reviews and on the lack of in-person visits starting in July 2022. The

Department contends that its conduct predating the unfitness orders cannot be considered in

establishing willfulness; thus, it concludes, the court erred as a matter of law by relying on these

extrinsic facts in finding the agency’s conduct willful, thereby, further rendering the findings an

abuse of discretion.

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¶ 148 We reject the Department’s claim. The trial court did not primarily rely on the

Department’s conduct that predated the unfitness orders. To the extent that the court relied on this

conduct, it did so to clarify the context of the Department’s actions. The Department points to

references the court made as examples of willfulness; in Barradas-Alvarado’s case, the court

referred to the fact that the agency had abandoned a jail-based restoration program years earlier.

It also referenced jail-based treatment in Clark’s case. But this history provided context for the

agency’s current efforts. Specifically, as noted, Coleman testified that the Department was

currently considering pilot programs and looking at funding and providing services directly in the

jails, noting that this may include elements of jail-based restoration. In another example, the

Department points to the trial court’s reference, in Sebesta’s case, to the years-long issues with

waiting lists and, again, a reference to jail-based restoration. The court’s reference to waiting lists

included mentioning Coleman’s testimony that about 20 beds had recently been added (in late

November 2022 and again in early January 2023) at Elgin, during a period that did not predate the

unfitness orders. Finally, we note that the Department itself references its historical staffing,

capacity, referral, and waiting list issues. In sum, the Department’s systemic issues and actions

taken before the unfitness orders were not the primary drivers of the court’s determination that the

Department’s failure to comply with the orders was willful and contumacious.

¶ 149 III. CONCLUSION

¶ 150 For the reasons stated, we affirm the judgment of the circuit court of Lake County.

¶ 151 Affirmed.

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People v. Weinstein, 2024 IL App (2d) 230062

Decision Under Review: Appeal from the Circuit Court of Lake County, Nos. 22-CC-2,
22-CF-1808, 22-CF-1438, 22-CF-1876, 22-CF-950, 22-DV-
463; the Hon. Paul B. Novak, Judge, presiding.

Attorneys Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz,
for Solicitor General, and Benjamin F. Jacobson, Assistant Attorney
Appellant: General, of counsel), for appellant.

Attorneys John W. Radosevich, Katherine A. McCollum, of Del Re Law
for Group, P.C., of Waukegan, for appellees.
Appellee:
David S. Friedland and Edward R. Psenicka, State’s Attorneys
Appellate Prosecutor’s Office, of Elgin, for the People.

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---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9928195. Public record. Not legal advice.