In the Matter of the Civil Commitment of B.J. v. Eskenazi Hospital/Midtown CMHC (mem. dec.) , 2016 Ind. App. LEXIS 412 ( 2016 )


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  • MEMORANDUM DECISION
    Pursuant to Ind. Appellate Rule 65(D),                            FILED
    this Memorandum Decision shall not be                         Oct 21 2016, 9:26 am
    regarded as precedent or cited before any                         CLERK
    court except for the purpose of establishing                  Indiana Supreme Court
    Court of Appeals
    the defense of res judicata, collateral                            and Tax Court
    estoppel, or the law of the case.
    ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
    Patricia Caress McMath                                   Jenny R. Buchheit
    Marion County Public Defender Agency                     Stephen E. Reynolds
    Indianapolis, Indiana                                    Ice Miller LLP
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    In the Matter of the Civil                               October 21, 2016
    Commitment of B.J.,                                      Court of Appeals Case No.
    Appellant-Respondent,                                    49A02-1603-MH-413
    Appeal from the Marion Superior
    v.                                               Court
    The Honorable Amy Jones,
    Eskenazi Hospital/Midtown                                Special Judge
    CMHC,                                                    Trial Court Cause No.
    Appellee-Plaintiff.                                      49D08-1508-MH-27580
    Pyle, Judge.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1603-MH-413 | October 21, 2016   Page 1 of 13
    Statement of the Case
    [1]   B.J. appeals the trial court’s order for his involuntary regular civil commitment. 1
    On appeal, he argues that there was not sufficient evidence to support his
    commitment because there was no evidence that he was gravely disabled. In
    response, Eskenazi Hospital/Midtown CHMC (“Eskenazi”) asserts that there
    was sufficient evidence that B.J. was gravely disabled and, regardless, there was
    sufficient evidence that B.J. was dangerous. Because we conclude that there
    was not sufficient evidence to support B.J.’s involuntary commitment, we
    reverse and remand.
    [2]   We reverse and remand.
    Issue
    Whether there was sufficient evidence to involuntary commit B.J.
    to a regular civil commitment.
    Facts
    [3]   On August 18, 2015, B.J. was detained at Eskenazi on an emergency basis after
    a clinician reported that he was “psychotic and unable to use reasonable
    1
    In Civil Commitment of W.S. v. Eskenazi Health, Midtown Cmty. Mental Health, 
    23 N.E.3d 29
    , 33 n.2 (Ind. Ct.
    App. 2014) (internal citations omitted), trans. denied, we explained that:
    In general, there are three types of commitments: An emergency detention limits the
    detention of an individual to seventy-two hours. A temporary commitment may be
    authorized for up to ninety days. A regular commitment is the most restrictive form of
    involuntary treatment and is proper for an individual whose commitment is expected to
    exceed ninety days.
    .
    Court of Appeals of Indiana | Memorandum Decision 49A02-1603-MH-413 | October 21, 2016            Page 2 of 13
    judgment.” (App. 17). Dr. Xiaoxi Ouyang (“Dr. Ouyang”), a physician at
    Eskenazi, examined B.J. and filed a report stating that he had a psychiatric
    disorder. Specifically, she noted that B.J. had been:
    making death threats, rape threats, [and] lawsuit threats to
    multiple people. Multiple people [were] in fear for safety because
    of this patient[.] [He] prev[iously] attempted to choke [his] ex-
    wife due to delusions/impairing judgment[.] [He]’s a danger to
    others.
    (App. 21). She concluded that B.J. had no insight into his illness and
    recommended that he be committed to Eskenazi on a temporary basis for
    treatment.
    [4]   On August 26, 2015, the trial court held a hearing on Dr. Ouyang’s
    commitment petition and ordered B.J. committed on a temporary basis not to
    exceed ninety days. Before that ninety days had expired, B.J.’s psychiatrist at
    Eskenazi, Dr. Mary Salama (“Dr. Salama”), filed a report in which she
    requested that the court extend the temporary commitment. The trial court
    held a hearing on the report on November 16, 2015, and, with B.J.’s agreement,
    ordered that he complete a second temporary commitment on an out-patient
    basis and with an end-date of February 14, 2016.
    [5]   On January 22, 2016, Dr. Salama filed another report requesting an extension
    of B.J.’s second temporary commitment to a regular commitment. She claimed
    that B.J. had missed two treatment appointments in the previous three weeks
    and had rescheduled another. She also noted that B.J.’s family had continued
    to report that he had “ma[d]e threats by body language.” (App. 57). She
    Court of Appeals of Indiana | Memorandum Decision 49A02-1603-MH-413 | October 21, 2016   Page 3 of 13
    opined that B.J. could be a threat to others as a result of his paranoid delusions
    if he chose to stop taking his medications. However, she did not allege that B.J.
    had stopped taking his medication during his temporary commitment.
    [6]   Because of B.J.’s two missed appointments, Eskenazi filed a petition for his
    return to the hospital, which the trial court granted. When B.J. was admitted to
    the hospital, the dosage of his medicine had to be increased because he was
    showing signs of paranoia. B.J. also refused to take a drug test. However, the
    hospital was able to release him back to his out-patient status after five days.
    [7]   Subsequently, on February 9, 2016, the trial court held a hearing on Dr.
    Salama’s report requesting to extend B.J.’s temporary commitment to a regular
    commitment. At the hearing, Dr. Salama testified that she had diagnosed B.J.
    with delusional disorder, persecutory type; substance abuse disorder; and
    narcissistic personality disorder. She had prescribed him a monthly injection,
    haliperidone, and she acknowledged that B.J. had complied with receiving
    those injections. However, she also testified that she believed B.J. was “gravely
    disabled” because of his mental illness and that his delusional disorder affected
    his ability to function independently because “the constant sense of paranoia,
    sense that he is being tracked and watched makes him get very angry easily.”
    (Tr. 21). When asked whether she believed there was a risk that B.J. would
    harm himself or others, Dr. Salama responded, “If he does not—if he does not
    stick with the treatment and treatment plan, he will eventually deteriorate to—
    to where (indiscernible).” (Tr. 21). When asked whether B.J. could provide
    himself with food, clothing, shelter or other essential human needs, Dr. Salama
    Court of Appeals of Indiana | Memorandum Decision 49A02-1603-MH-413 | October 21, 2016   Page 4 of 13
    replied, “Well, there is going to be a[n] escalation in the symptoms which at the
    one point he’s not going to be able to reach that. He’s always supported now by
    his parents. He lives with them and they—they help him out.” (Tr. 18-19).
    She also noted that B.J. had received a misdemeanor charge in the prior ninety
    days, but she did not clarify the nature or circumstances of the charge. 2
    [8]   At one point during Dr. Salama’s testimony, it is apparent that B.J. physically
    reacted because the trial court interrupted the proceedings to tell B.J. to calm
    down. B.J. responded: “I am sorry. I just heard false statements. I’m sorry.”
    (Tr. 24). The proceedings then continued, and B.J. did not have any more
    outbursts.
    [9]   After Dr. Salama’s testimony, B.J. testified and explained that he had missed
    the two treatment appointments because of his work schedule. He said that he
    had gotten a new job as a car broker after his previous November 16 temporary
    commitment hearing and had begun to work seventy hours per week. He also
    testified that he was “able to dress [himself] and [shower and [] get to work and
    be a normal, productive member of society.” (Tr. 41). He testified that he
    planned to live with his parents for six months while he saved up money
    because he had recently divorced his wife. However, he testified that he
    frequently traveled by himself and was able to take care of himself on those
    occasions. He also agreed to continue to take his medicine and participate in
    2
    The charging information is not a part of the record.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1603-MH-413 | October 21, 2016   Page 5 of 13
    treatment without a regular commitment. As for the misdemeanor charge he
    had received, B.J. testified that the charge was based on an incident that had
    occurred a year and a half earlier, before he had begun treatment. He said that
    the charges had been filed when he moved away for a year, and there had been
    a warrant for his arrest when he came back.
    [10]   At the conclusion of the hearing, the trial court granted Eskenazi’s request to
    extend B.J.’s temporary commitment into a regular commitment. As a basis for
    its decision, the trial court stated to B.J.:
    I don’t get the impression that you think you have a mental
    health diagnosis. . . . I still see that there is – there’s absolutely
    no insight into your illness. There is no insight even into your
    behavior and how you act around people. And I can tell if you
    act this way in front of me, I don’t know what you’ve done in
    front of these doctors. When they are trying to have you do
    things that you don’t want to do. And we’re at a point now
    where there is no way that – that you can be given that much
    leeway to go out and do this on your own. Because, you can’t
    follow the Court’s order to do what the doctors tell you to do
    now. . . . The fact that you have – they have had to increase your
    injection due to your medication. Due to your – your thoughts.
    That [it] was a lengthier stay than normal[.] That’s not a
    punishment for failing to appear to an appointment. That is
    because you had delusions that were going on and you needed to
    be treated and you were not in a place where you could be
    released back to the community.
    (Tr. 66-68). B.J. now appeals.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1603-MH-413 | October 21, 2016   Page 6 of 13
    Decision
    [11]   On appeal, B.J. argues that there was insufficient evidence to support his
    involuntary commitment because Eskenazi did not prove by clear and
    convincing evidence that he was “gravely disabled,” as defined by statute.3
    Eskenazi responds that there was sufficient evidence that B.J. was “gravely
    disabled,” or, alternatively, that he was a danger to others, which is another
    statutory ground for an involuntary commitment.
    [12]   “‘[T]he purpose of civil commitment proceedings is dual: to protect the public
    and to ensure the rights of the person whose liberty is at stake.’” Civil
    Commitment of T.K. v. Dep’t of Veterans Affairs, 
    27 N.E.3d 271
    , 273 (Ind. 2015)
    (quoting In re Commitment of Rogers, 
    723 N.E.2d 474
    , 476 (Ind. Ct. App. 2000)).
    The liberty interest at stake in a civil commitment proceeding goes beyond a
    loss of one’s physical freedom, and given the serious stigma and adverse social
    consequences that accompany such physical confinement, a proceeding for an
    involuntary civil commitment is subject to due process requirements. 
    Id. To satisfy
    the requirements of due process, the facts justifying an involuntary
    commitment must be shown by “‘evidence . . . [which] 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 involuntary commitments.’” 
    Id. (quoting Commitment
    of J.B. v.
    3
    B.J. characterizes his argument as a due process claim, but we conclude that it is essentially a sufficiency of
    the evidence claim.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1603-MH-413 | October 21, 2016               Page 7 of 13
    Midtown Mental Health Ctr., 
    581 N.E.2d 448
    , 450 (Ind. Ct. App. 1991) (citations
    omitted), trans. denied).
    [13]   To obtain an involuntary regular commitment of an individual, a “‘petitioner is
    required to prove by clear and convincing evidence that: (1) the individual is
    mentally ill and either dangerous or gravely disabled; and (2) detention or
    commitment of that individual is appropriate.’” 
    Id. (quoting IND.
    CODE § 12-
    26-2-5(e)). In T.K., our supreme court recently criticized a line of cases in
    which this Court did not adequately apply the clear and convincing standard of
    review and instead affirmed civil commitment orders if such an order
    “‘represent[ed] a conclusion that a reasonable person could have drawn, even if
    other reasonable conclusions [were] possible.’” 
    Id. (quoting M.L.
    v. Meridian
    Servs., Inc., 
    956 N.E.2d 752
    , 755 (Ind. Ct. App. 2011)). The supreme court
    emphasized that we should instead apply the clear and convincing evidence
    standard, which is defined as an intermediate standard of proof greater than a
    preponderance of the evidence and less than proof beyond a reasonable doubt.
    T.D. v. Eskenazi Midtown Cmty. Mental Health Ctr., 
    40 N.E.3d 507
    , 510 (Ind. Ct.
    App. 2015). In order to be clear and convincing, the existence of a fact must be
    highly probable. 
    Id. In reviewing
    the sufficiency of the evidence supporting a
    civil commitment, we will not reweigh the evidence or assess witness
    credibility. See 
    id. Moreover, we
    will consider only the probative evidence and
    the reasonable inferences supporting the judgment. See 
    id. [14] B.J.
    does not dispute the trial court’s finding that he is mentally ill. However,
    he argues that there was not sufficient evidence to support the trial court’s
    Court of Appeals of Indiana | Memorandum Decision 49A02-1603-MH-413 | October 21, 2016   Page 8 of 13
    conclusion that, as a result of his mental illness, he is “gravely disabled.”
    INDIANA CODE § 12-7-2-96 defines “gravely disabled” as:
    [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.
    Because this statute is written in the disjunctive, a trial court’s finding of grave
    disability survives if we find that there was sufficient evidence to prove either
    that the individual was unable to provide for his basic needs or that his
    judgment, reasoning, or behavior was so impaired or deteriorated that it
    resulted in his inability to function independently. 
    T.D., 40 N.E.3d at 510
    .
    [15]   In support of his argument that he is not gravely disabled, B.J. cites to our
    supreme court’s decision in T.K. There, our supreme court found that T.K. was
    not gravely disabled even though he had “continuously refused treatment, [had]
    denied that he [had] any problem, and [had] been an aggressor in several areas
    of his life.” 
    T.K., 27 N.E.3d at 275
    . As in the instant case, T.K. had been
    “paranoid over a wide range of . . . institutions as persecuting him.” 
    Id. at 274.
    He put flyers of a person’s criminal record on windshields in order to “hurt” or
    “aggravate” that person and screamed at the staff in an Adult and Child Clinic
    in a manner that made the staff there concerned. 
    Id. A resident
    in psychiatry at
    Court of Appeals of Indiana | Memorandum Decision 49A02-1603-MH-413 | October 21, 2016   Page 9 of 13
    the hospital where T.K. was admitted testified that he had “‘observed [T.K.’s]
    aggressive, disruptive behavior towards [his] attending physician,’ that ‘other
    patients ha[d] complained about . . . being fearful of him, and of his
    aggression,’” and that the workers at the Adult and Child Clinic “felt
    threatened enough that they want[ed] to know if [T.K. was going to be]
    released, because they [were] fearful of T.K.’s physical violent behavior.” 
    Id. at 275.
    T.K.’s son was concerned because T.K. had military experience and had
    displayed erratic and aggressive behavior, including mentioning the use of
    violence in emails and on Facebook. 
    Id. [16] On
    appeal, our supreme court reversed T.K.’s commitment, finding that there
    was not sufficient evidence that he was “gravely disabled.” Specifically, the
    supreme court noted that both T.K. and the hospital psychiatry resident had
    testified that T.K. rented his home, lived by himself, held full-time employment,
    and owned two vehicles while making payments on a third. 
    Id. at 276.
    The
    court thus found that “[n]o evidence was presented to dispute his ability to
    provide food, clothing, or shelter for himself.” 
    Id. Further, the
    court found that
    there was not clear and convincing evidence that T.K. was unable to function
    independently. It reasoned that, while T.K.’s behavior was aggressive, he had
    not made any physical outbursts, destroyed any property, or put himself or
    others in actual danger. 
    Id. at 277.
    The court concluded that “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.” 
    Id. According to
    the court, that was “not sufficient evidence to support a civil commitment on
    Court of Appeals of Indiana | Memorandum Decision 49A02-1603-MH-413 | October 21, 2016   Page 10 of 13
    grounds of grave disability.” 
    Id. Finally, the
    court noted that a denial of mental
    illness and refusal to medicate were “insufficient to establish grave disability
    because they [did] not establish, by clear and convincing evidence, that such
    behavior ‘result[ed] in the individual’s inability to function independently.’” 
    Id. at 276.
    [17]   Here, Dr. Salama was the only witness who testified that B.J. had a grave
    disability. When asked whether B.J. could provide himself with food, clothing,
    shelter, or other essential human needs, Dr. Salama replied, “Well, there is
    going to be a[n] escalation in the symptoms which at the one point he’s not
    going to be able to reach that. He’s always supported now by his parents. He
    lives with them and they—they help him out. Before that he was in a restrictive
    environment.” (Tr. 18-19). When asked whether she believed there was a risk
    that B.J. would harm himself or others, Dr. Salama responded, “If he does
    not—if he does not stick with the treatment and treatment plan, he will
    eventually deteriorate to – to where (indiscernible).” (Tr. 21). In both of these
    instances, Dr. Salama evaluated B.J.’s hypothetical state based on future
    contingencies. We do not find this testimony persuasive as the statute clearly
    requires the trier of fact to assess the individual’s state at the time of the hearing
    prior to ordering a commitment. See I.C. § 12-7-2-96 (stating—in present
    tense—that a person is gravely disabled if that person “(1) is unable to provide
    for . . . food, clothing, shelter, or other essential human needs; or (2) has a
    substantial impairment or an obvious deterioration of . . . judgment, reasoning,
    Court of Appeals of Indiana | Memorandum Decision 49A02-1603-MH-413 | October 21, 2016   Page 11 of 13
    or behavior that results in the individual’s inability to function independently”)
    (emphasis added).
    [18]   The only other evidence supporting B.J.’s commitment was Dr. Salama’s
    testimony and reports that B.J. had threatened other individuals, Dr. Salama’s
    testimony that B.J. had missed two treatment appointments, and B.J.’s
    behavior that led the trial court to determine that he was in denial of his mental
    illness. However, the supreme court held in T.K. that threats such as those
    made by T.K. and B.J., failure to medicate, and a denial of mental illness are
    not sufficient to prove that an individual is gravely disabled. Accordingly, we
    must conclude that there also was insufficient evidence here for the trial court to
    conclude that B.J. was gravely disabled. We are not holding that evidence of
    threats may never be sufficient evidence of a grave disability, but there was no
    evidence that B.J. destroyed property or put himself or others in actual danger
    after he began his treatment. Those were two factors that the T.K. Court found
    significant in determining whether T.K. was gravely disabled. See 
    T.K., 27 N.E.3d at 277
    .
    [19]   Moreover, there was evidence that B.J. was able to meet his needs and function
    independently. During B.J.’s temporary commitment, B.J. gained and
    maintained employment at a job that required him to work seventy hours a
    week and travel frequently. B.J. testified that he was able to dress himself,
    shower, work, and act as a normal, productive member of society. He also
    testified that he had shelter in his parents’ house. Because we find that there
    was insufficient evidence to prove that B.J. was gravely disabled, we conclude
    Court of Appeals of Indiana | Memorandum Decision 49A02-1603-MH-413 | October 21, 2016   Page 12 of 13
    that there was also insufficient evidence to support his regular commitment. 4
    We reverse and remand.
    [20]   Reversed and remanded.
    Bradford, J., and Altice, J., concur.
    4
    Eskenazi argues that even if B.J. was not gravely disabled, his commitment was proper because there was
    sufficient evidence that he was a danger to others, which is another ground for commitment. See I.C. § 12-26-
    2-5(e). However, the trial court here did not make a determination regarding B.J.’s dangerousness to himself
    or others. Also, the supreme court considered the same argument in T.K. and held that there was not
    sufficient evidence that T.K. was dangerous. 
    T.K., 27 N.E.3d at 274
    . Because B.J.’s behavior here was
    similar to T.K.’s behavior that the T.K. Court found was insufficient to prove dangerousness, we necessarily
    also conclude that there was insufficient evidence here to prove that B.J. was dangerous.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1603-MH-413 | October 21, 2016         Page 13 of 13
    

Document Info

Docket Number: 49A02-1603-MH-413

Citation Numbers: 67 N.E.3d 1034, 2016 WL 6140782, 2016 Ind. App. LEXIS 412

Judges: Bradford, Altice, Pyle, Atlice

Filed Date: 10/21/2016

Precedential Status: Precedential

Modified Date: 11/11/2024