In the Matter of The Civil Commitment of: T.K. v. Eskenazi Health/Midtown CMHC (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jan 25 2019, 7:17 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Valerie K. Boots Bryan H. Babb
Marion County Public Defender Agency Sarah T. Parks
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of The Civil January 25, 2019
Commitment of: Court of Appeals Case No.
18A-MH-757
T.K.,
Appeal from the Marion Superior
Appellant-Respondent, Court, Probate Division
v. The Honorable Steven R.
Eichholtz, Judge
Eskenazi Health/Midtown The Honorable Kelly M. Scanlan,
CMHC, Commissioner
Appellee-Petitioner Trial Court Cause No.
49D08-1803-MH-8810
Altice, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-MH-757 | January 25, 2019 Page 1 of 15
Case Summary
[1] T.K. appeals the trial court’s order for involuntary regular commitment, which
was based on the trial court’s determination that T.K. was mentally ill and
gravely disabled. T.K. presents a number of issues of which we address only
two: 1) whether the commitment order is defective because it contained only
the signature of a commissioner and 2) whether sufficient evidence supported
his involuntary civil commitment.
[2] We reverse.
Facts & Procedural History
[3] At the age of fifty-one, T.K. has a long history of schizophrenia, which he does
not dispute on appeal. He has prior hospitalizations, including involuntary
commitments, due to his mental health. T.K. had an involuntary temporary
commitment in 1999, an involuntary regular commitment in 2002, and an
involuntary temporary commitment in 2011. An involuntary regular
commitment in 2013 was reversed by our Supreme Court for insufficient
evidence that T.K. was either dangerous or gravely disabled. Commitment of
T.K. v. Dep’t of Veterans Affairs, 27 N.E.3d 271 (Ind. 2015).
[4] On Friday, March 2, 2018, T.K. was taken to Eskenazi Hospital (the Hospital)
on an immediate detention. The following Monday, the Hospital completed an
application for emergency detention of mentally ill person, alleging that T.K.
was extremely paranoid and exhibiting threatening behaviors. The Hospital
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filed a report following emergency detention with the trial court on March 7,
2018, along with a physician statement by psychiatrist Aimee Patel. Dr. Patel
opined that due to his psychiatric disorders, T.K. was both dangerous to others
and gravely disabled. The Hospital sought an involuntary regular commitment
of T.K.
[5] Commissioner Kelly M. Scanlan presided over the commitment hearing held
on March 9, 2018, and permitted T.K. to represent himself. The Hospital
presented the testimony of two witnesses, Dr. Patel and Shelley Ulsenheimer,
an FBI agent. The trial court also took judicial notice of the prior
commitments. In closing, T.K. noted that he was employed, maintained a
clean house and two vehicles, and cared for his daily needs.
[6] Dr. Patel’s testimony was limited because, although she had been T.K.’s
treating physician for nearly a week, her interactions with him were “very
brief.” Transcript at 17. Dr. Patel explained that after a few moments, T.K.
generally began yelling and speaking over her and other doctors. Dr. Patel
testified that on one occasion she spoke with T.K. as he walked the unit. He
“became upset midway through and began cursing, referenced a baseball bat
and told [her] to leave him alone.” Id. at 18.
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[7] Dr. Patel diagnosed T.K. with schizophrenia, as well as possibly paranoid
personality disorder and narcissistic personality disorder. 1 As a result of his
mental illness, Dr. Patel opined that T.K. was gravely disabled due to
“substantial impairment in judgment and decision making” resulting in
“difficulty residing independently in the community.” Id. at 24, 20. In this
regard, Dr. Patel noted generally that T.K.’s “delusions and paranoia have led
to him having repeated hospitalizations and contacts with the law enforcement
system.” Id. at 24. Dr. Patel did not elaborate on her assertion regarding T.K.’s
contacts with law enforcement. Presumably, she was referring to his many calls
to the FBI and local law enforcement. With respect to the claim of repeated
hospitalizations, the record reveals no voluntary or involuntary commitments –
other than the one at hand – after his regular commitment in 2013, which was
reversed by the Supreme Court. Though opining that T.K. had difficulty
residing independently, Dr. Patel acknowledged that T.K. had his own
residence, had income, and took care of his daily needs (eating, personal
hygiene, and sleeping).
[8] Regarding an alternative basis for commitment, Dr. Patel testified that she
believed T.K. was dangerous to others because he had made threats toward her
and others on the treatment team. Dr. Patel noted that T.K. was agitated on
1
T.K. has delusions, paranoia, and grandiose beliefs. In particular, he believes that law enforcement,
medical personnel, and the government are out to get him. He believes that millions of dollars in patents
have been stolen from him by the government and that he is being watched, stalked, and harassed by local
law enforcement and EMS.
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the first day of his emergency detention, requiring medication and restraints,
and that since that time he had made various verbal threats. Medical students
were kept away from T.K. out of concern for their safety. T.K. refused to take
his oral medication and lacked insight into his mental illness.
[9] The Hospital then called Agent Ulsenheimer as a witness for the purpose of
introducing recordings of nineteen voicemails left for a public affairs specialist
with a local FBI office. These voicemail recordings, which were admitted over
T.K.’s objection, each began with the caller identifying himself as T.K. The
messages were left between February 25 and March 1, 2018, some in the middle
of the night. They reveal T.K.’s delusional and paranoid thinking. In the
messages, T.K. indicates that he has been stalked by local law enforcement for
the last twenty-five years and that his inventions have been stolen. He
expresses frustration that the FBI is not helping him with the situation and
indicates that he is going to make all of this public, noting that he has
accumulated substantial evidence. Notably, the messages contain no threats of
violence by T.K.
[10] At the conclusion of the hearing, Commissioner Scanlan found by clear and
convincing evidence that T.K. suffered from mental illness and was gravely
disabled. Regarding grave disability, Commissioner Scanlan stated, “he is
demonstrating a substantial impairment and an obvious deterioration in his
judgment reasoning and behavior that has resulted in his inability to function
independently.” Id. at 59. Accordingly, Commissioner Scanlan entered an
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order of regular commitment based on T.K. being mentally ill and gravely
disabled.2 T.K. now appeals.
Discussion & Decision
Defective Order
[11] We initially address T.K.’s claim that the order for temporary commitment is
defective because it contains only the signature of Commissioner Scanlan and
lacked the required judge’s signature. Indeed, Indiana law expressly barred
Commissioner Scanlan from entering a final appealable order in this case. See
Ind. Code § 33-23-5-8;3 Capehart v. Capehart, 771 N.E.2d 657, 662 (Ind. Ct. App.
2002) (“magistrates and commissioners have identical authority”).
[12] Regardless, T.K. has waived appellate review of this issue because he did not
object to the commitment order at any point prior to this appeal. 4 “‘[I]t has
been the long-standing policy of [the Indiana Supreme Court] to view the
authority of the officer appointed to try the case not as affecting the jurisdiction
of the court’ – and so ‘the failure of a party to object at trial to the authority of a
2
Although asserted by the Hospital as a ground for commitment, Commissioner Scanlan did not find that
T.K. was a danger to himself or others. Commissioner Scanlan acknowledged evidence of threats but
observed that there is no evidence that “T.K. had actually tried to harm others.” Id.3
This statute has since been amended, effective July 1, 2018. The amendment removed the limitation
regarding magistrates (and, thus, commissioners) entering a final appealable order. I.C. § 33-23-5-9(a),
however, still requires that the court “enter the final order” in instances such as this.
4
The order was signed by Commissioner Scanlan on March 9, 2018, and T.K. filed his notice of appeal on
April 9, 2018. T.K. had ample time between these dates where he could have filed an objection to the fact
that the commitment order lacked a judge’s signature.
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court officer to enter a final appealable order waives the issue for appeal.’” In re
Adoption of I.B., 32 N.E.3d 1164, 1173 n.6 (Ind. 2015) (quoting Floyd v. State,
650 N.E.2d 28, 32 (Ind. 1994)); see also City of Indianapolis v. Hicks, 932 N.E.2d
227, 231 (Ind. Ct. App. 2010) (“defects in the authority of a court officer, as
opposed to jurisdiction of the trial court itself, to enter a final order will be
waived if not raised through a timely objection”), trans. denied. “[A]ny
objection to the authority of an adjudicative officer must be raised at the first
instance the irregularity occurs, or at least within such time as the tribunal is
able to remedy the defect.” Hicks, 932 N.E.2d at 231.
Sufficiency of the Evidence
[13] In an involuntary regular commitment case, the petitioner is required to prove
by clear and convincing evidence: “(1) the individual is mentally ill and either
dangerous or gravely disabled; and (2) detention or commitment of that
individual is appropriate.” Ind. Code § 12-26-2-5(e) (emphasis supplied); see
also T.K., 27 N.E.3d at 273. The trial court’s order of commitment in this case
declared that T.K. was mentally ill and gravely disabled. On appeal, T.K. does
not challenge the finding regarding his mental illness, but he contends that the
“gravely disabled” element was not proven by clear and convincing evidence.
[14] Our Supreme Court has observed that civil commitment proceedings serve both
to protect the public and to ensure the rights of the person whose liberty is at
stake. Id. To satisfy the requirements of due process in commitment
proceedings, the facts justifying the commitment must be shown by clear and
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convincing evidence. Id. This heightened standard “not only communicates
the relative importance our legal system attaches to a decision ordering an
involuntary commitment” but “also has the function of reducing the chance of
inappropriate commitments.” Id. (quoting Commitment of J.B. v. Midtown
Mental Health Ctr., 581 N.E.2d 448, 450 (Ind. Ct. App. 1991), trans. denied).
[15] In reviewing the sufficiency of the evidence supporting an involuntary civil
commitment, we consider the probative evidence and reasonable inferences
supporting the order, without reweighing the evidence or assessing witness
credibility. Id. We will affirm if a reasonable trier of fact could find the
necessary elements proven by clear and convincing evidence. Id. “Clear and
convincing evidence requires the existence of a fact to be highly probable.”
Civil Commitment of J.B. v. Cmty. Hosp. N., 88 N.E.3d 792, 795 (Ind. Ct. App
2017). “There is no constitutional basis for confining a mentally ill person who
is not dangerous and can live safely in freedom.” J.B., 581 N.E.2d at 451.
[16] The issue presented in this case is whether, considering the probative evidence
and reasonable inferences favorable to the judgment, a reasonable trier of fact
could have found by clear and convincing evidence that T.K. was gravely
disabled.5 “Gravely disabled” is defined as:
5
Dangerousness is not at issue because the trial court did not make such a finding to support the
commitment order.
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a condition in which an individual, as a result of mental illness, is
in danger of coming to harm because the individual:
(1) is unable to provide for that individual’s food, clothing,
shelter, or other essential human needs; or
(2) has a substantial impairment or an obvious
deterioration of that individual’s judgment, reasoning, or
behavior that results in the individual’s inability to
function independently.
Ind. Code § 12-7-2-96. This case involves subsection 2, as there is no dispute
that T.K. was able to provide for his daily needs, along with being employed
and maintaining a home.
[17] As set forth above, T.K.’s 2013 involuntary regular commitment was
overturned by our Supreme Court based on insufficient evidence. The
Department of Veterans Affairs, the petitioner in that case, presented the
testimony of Dr. Joseph Bishara. Dr. Bishara testified as to T.K.’s mental
illness and indicated that T.K. was paranoid over a wide range of institutions
persecuting and targeting him. T.K., 27 N.E.3d at 274. T.K. had been brought
in on an emergency detention because he had been putting flyers on people’s
windshields regarding another individual’s criminal record and had gone into a
clinic and screamed at staff. Dr. Bishara testified that he had observed
aggressive, disruptive behavior toward another physician and that other patients
were fearful of T.K. Additionally, T.K.’s son had contacted Dr. Bishara and
expressed concern over his father’s erratic and aggressive behavior.
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[18] In reversing T.K.’s 2013 commitment, the Court discussed the element of
“grave disability” as follows:
Dr. Bishara’s opinion that T.K. was gravely disabled was based
on T.K.’s refusal of treatment, T.K.’s denial that he had any
mental illness problem, and reports that T.K. had been aggressive
in several areas of his life. The Legislature, however, has defined
“gravely disabled” as a condition that causes an individual to (1)
be unable to meet their basic food, clothing, and shelter needs or
(2) be so obviously impaired in judgment, reasoning, or behavior
that such individual is unable to function independently. Both
Dr. Bishara and T.K. testified that T.K. rents his own home, lives
by himself, holds full-time employment, and owns two vehicles
while making payments on a third. No evidence was presented
to dispute his ability to provide food, clothing, or shelter for
himself. As to whether T.K. was or is gravely disabled, the
Department points to his refusal to admit he has a mental illness
or to take medication, but such denial of illness and refusal to
medicate, standing alone, are insufficient to establish grave
disability because they do not establish, by clear and convincing
evidence, that such behavior “results in the individual’s inability
to function independently.”
In this case, at the time of the commitment hearing in October,
T.K. had not been on medication since April, and in that six
months T.K. had secured full-time employment and started
renting a home. We do not weigh into the efficacy of whether
medication is appropriate for T.K., but the evidence in this case
has not clearly and convincingly shown that T.K.’s refusal to take
medication and recognize his illness constitutes grave disability
by resulting in such a “substantial impairment or an obvious
deterioration of [T.K.’s] judgment, reasoning, or behavior that ...
[he is unable] to function independently.” Ind. Code § 12-7-2-
96(2). The most favorable testimony to the trial court’s decision
is that T.K. was aggressive, loud, talked in a coarse manner that
was inappropriate, and proactively sought to shame someone by
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placing flyers on people’s windshields. While we certainly do
not condone such behavior and would like to see cooperation
between T.K. and medical professionals, the evidence put forth
by the Department does not clearly and convincingly support the
proposition that T.K. is gravely disabled. T.K. made no physical
outbursts, destroyed no property, did not put himself or others in
actual danger with idiosyncratic behavior, and was not at risk of
suffering a lack of food, clothing, or shelter. Instead, at best, the
evidence suggests that T.K.’s loud, boisterous, and rude public
behavior harmed his reputation and made others not want to be
around him. That is not sufficient evidence to support a civil
commitment on grounds of grave disability.
Id. at 276-77 (citations omitted); see also Commitment of M.E. v. Dep’t of Veterans
Affairs, 64 N.E.3d 855, 863 (Ind. Ct. App. 2016) (“M.E.’s aggression, paranoia,
and confrontational attitude do not establish an inability to function
independently under the law.”), disapproved on other grounds by A.A. v. Eskenazi
Health/Midtown CMHC, 97 N.E.3d 606, 611 (Ind. 2018).
[19] In this case, Dr. Patel’s opinion that T.K. was gravely disabled was based on
her general observation that T.K.’s “delusions and paranoia have led to him
having repeated hospitalizations and contacts with the law enforcement
system.” Transcript at 24. Dr. Patel did not further elaborate on this statement,
and there was no evidence presented of hospitalizations since the 2013
commitment that was reversed on appeal or details regarding T.K.’s contacts
with law enforcement.
[20] Like the previous case, there was evidence presented that T.K. had been loud
and verbally aggressive during the emergency commitment. Further, in the five
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days leading up to his most-recent commitment, T.K. left nineteen voicemail
messages for an FBI official, expressing his delusional and paranoid thoughts
and his dissatisfaction with the FBI’s failure to assist him. These voicemail
messages clearly evidence T.K.’s mental illness and paranoid delusions
regarding the government. But I.C. § 12-7-2-96(2) requires more than paranoid
judgment, reasoning, or behavior to establish grave disability. The Hospital
was required to establish by clear and convincing evidence T.K.’s inability to
function independently as a result. The Hospital wholly failed in this regard.
The messages left by T.K. were no doubt annoying to the FBI public affairs
specialist receiving them, but at no point did T.K. threaten violence. Rather, he
threatened to publicize the government’s behavior and the FBI’s lack of action.
While misguided, the messages do not evidence an inability to function
independently, nor do T.K.’s general discontent and rudeness during this recent
involuntary commitment.
[21] We are compelled to conclude that the evidence presented by the Hospital does
not establish by clear and convincing evidence that T.K.’s mental impairment
or deterioration of judgment, reasoning, or behavior had resulted in his inability
to function independently. T.K.’s delusions and paranoia are obvious and long-
standing, and his mental illness has led to inappropriate behavior and repeated
calls to the FBI. T.K.’s behavior continues to be abrasive, boisterous, irritating,
and idiosyncratic, but there is no support in the evidence for a commitment
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based on grave disability. Thus, we conclude that T.K.’s civil commitment was
improper.6
[22] Judgment reversed.
Brown, J., concurs.
Tavitas, J., dissents with opinion.
6
Because we reverse on insufficient evidence grounds, we do not reach T.K.’s three remaining evidentiary
and due process claims.
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IN THE
COURT OF APPEALS OF INDIANA
In the Matter of The Civil Court of Appeals Case No.
Commitment of: 18A-MH-757
T.K.,
Appellant-Respondent,
v.
Eskenazi Health/Midtown
CMHC,
Appellee-Petitioner
Tavitas, Judge, dissenting.
[23] I respectfully dissent. I would concur with the majority’s result if the trial
court’s order was a final appealable order, but I part with the majority on the
same grounds stated in my dissenting opinion in In Re Civil Commitment of T.W.,
No. 18A-MH-1148, slip op. at pp. 13-20 (Ind. Ct. App. Nov. 21, 2018). In my
opinion, the commitment order is defective. By issuing a blanket order, which
summarily approved all recommendations of the court commissioner without
specifically reviewing the case(s) and approving the commissioner’s
recommendations, the trial court delegated its duty to render final decisions to
the commissioner without statutory authority.
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[24] I disagree with the majority’s conclusion that this issue is waived. Finding
waiver penalizes the respondent for failing to “timely” urge the trial court judge
to perform his statutory duty. A litigant cannot waive a trial court judge’s
exercise of statutory responsibility. Such abdication by trial court judges should
not be litigants’ and appellate courts’ problem to resolve.
[25] Accordingly, I would remand to the trial court judge for review and approval of
the commissioner’s recommended order for temporary commitment.
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