                                                                                  FILED
                                                                            Aug 23 2018, 8:44 am

                                                                                  CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
      Isabella H. Bravo                                         James L. Whitlatch
      Bloomington, Indiana                                      Bunger & Robertson
                                                                Bloomington, Indiana



                                                  IN THE
           COURT OF APPEALS OF INDIANA

      In Re: The Commitment of D.S.;                            August 23, 2018

      D.S.                                                      Court of Appeals Case No.
      Appellant/Respondent,                                     18A-MH-590
                                                                Appeal from the Monroe Circuit
      v.
                                                                Court
      Indiana University Health                                 The Honorable Stephen R. Galvin,
      Bloomington Hospital                                      Judge
      Appellee/Plaintiff.
                                                                Trial Court Cause No.
                                                                53C07-1801-MH-36




      Pyle, Judge.


                                        Statement of the Case
[1]   D.S. (“D.S.”) appeals the trial court’s order granting the petition filed by

      Indiana University Health Bloomington Health (“the Hospital”) for her regular

      commitment. She argues that: (1) there was not sufficient evidence to prove


      Court of Appeals of Indiana | Opinion 18A-MH-590 | August 23, 2018                             Page 1 of 10
      that she was “gravely disabled;” (2) that the trial court’s forced medication

      order was not the least restrictive treatment; and (3) that the testimony of

      psychiatrist Carey Mayer, M.D. (“Dr. Mayer”) contained inadmissible hearsay.

      Because we conclude that there was not sufficient evidence to prove that D.S.

      was “gravely disabled,” we reverse the trial court’s decision and remand for the

      trial court to vacate the order of regular commitment. 1


[2]   We reverse and remand.


                                                        Issue
               Whether there was sufficient evidence to support the trial court’s
               regular commitment of D.S.

                                                        Facts
[3]   On January 27, 2018, Officer Kyle Thomas (“Officer Thomas”) of the

      Bloomington Police Department (“BPD”) responded to a 911 call regarding an

      incident (the “Incident”) in downtown Bloomington, Indiana. When Officer

      Thomas responded to the call, he saw D.S. waving a sign out of a vehicle while

      screaming. He attempted to stop D.S.’s vehicle, but she continued driving until

      traffic blocked her vehicle. Believing D.S. to be suffering from psychosis,

      Officer Thomas forcibly removed D.S. from her vehicle and brought her to the

      Hospital for an emergency detention.




      1
        Because we reverse, we need not address whether the trial court’s forced medication order was the least
      restrictive treatment or whether Dr. Mayer’s testimony contained inadmissible hearsay.

      Court of Appeals of Indiana | Opinion 18A-MH-590 | August 23, 2018                               Page 2 of 10
[4]   At the Hospital, physician Daniel J. Garrison, M.D. (“Dr. Garrison”) filed an

      Application for Emergency Detention (“Application”) stating that D.S.

      appeared to have “acute or chronic psychosis, patient is manic and lead [sic]

      BPD in a chase in her car throughout downtown Bloomington.” (App. Vol. 2 at

      5). Dr. Garrison further alleged in the Application that D.S.’s decision-making

      was impaired, placing her in a potentially harmful situation, and he

      recommended that D.S. be admitted to the Hospital’s Crisis Care Unit. The

      next day, the trial court approved the seventy-two (72) hour emergency

      detention of D.S., and D.S. was held at the Hospital.


[5]   Three days later, on January 31, 2018, Hospital Social Worker James D. Baugh

      (“Baugh”) completed a Report Following Emergency Detention (“Report”) and

      filed in the trial court a Petition for Involuntary Commitment (“Petition”)

      seeking regular commitment of D.S. for a period of one (1) year. In the

      Petition, Baugh alleged that D.S. was suffering from a psychotic disorder and

      “present[ed] as gravely impaired with helix of schizophrenia, bipolar,

      schizoaffective, and bipolar type.” (App. Vol. 2 at 12). The Petition further

      alleged that D.S. was unable to care for herself, meet her basic needs, or identify

      appropriate shelter and that she had no family, friends, or others willing to

      assist her in meeting those needs. Psychiatrist Carey Mayer, M.D. (“Dr.

      Mayer”) simultaneously filed a physician’s statement alleging that D.S. was

      suffering from a psychiatric disorder and was “delusional, causing

      disturbance(s) involving the police.” (App. Vol. 2 at 15).




      Court of Appeals of Indiana | Opinion 18A-MH-590 | August 23, 2018       Page 3 of 10
[6]   A week later, on February 6, 2018, the trial court held its hearing on the

      Hospital’s Petition for the regular commitment of D.S. Two witnesses, Dr.

      Mayer and D.S. testified. First, Dr. Mayer testified about the circumstances

      under which D.S. was brought to the Hospital. At the outset of his testimony,

      he read into the record an assessment done by one of the Hospital’s therapists

      when D.S. was admitted. Counsel for D.S. objected to the testimony on the

      basis that it was hearsay, and the trial court overruled the objection.


[7]   Next, Dr. Mayer testified to his “own direct observations” of D.S. (Tr. 4). Dr.

      Mayer testified that he assessed D.S. to be “suffering from a schizoaffective

      disorder, bipolar type” and that she need[ed] medications “which unfortunately

      she refuse[d] to consider.” (Tr. 5). He also testified that “for the last seven [or]

      eight days” D.S. had remained “psychotic” and “preoccupied” and that he

      therefore believes “she is gravely impaired and unable to provide for her own

      safety, shelter, food, clothing, [and] needs.” (Tr. 5). Dr. Mayer also

      recommended a forced medication order of three drugs: Zyprexa, Abilify, and

      the injectable drug Invega. (Tr. 5). During cross-examination, Dr. Mayer

      agreed that D.S. was neither malnourished nor dehydrated when admitted to

      the Hospital, that she had a residence where she could stay upon release from

      the Hospital, and that she had secured these “shelter, food, and clothing

      without hospital assistance” and without taking “any type of medication.” (Tr.

      12).


[8]   Finally, D.S. testified about her life outside of the Hospital. She stated that she

      had been living with a friend in Jackson County since approximately July 2016

      Court of Appeals of Indiana | Opinion 18A-MH-590 | August 23, 2018         Page 4 of 10
      and that she had been employed at an appliance production company in

      Bedford, Indiana from August 2016 until January 2018. She also stated that

      she maintained relationships with her parents and daughter who lived in

      Indiana and her two brothers who lived in other states. She testified that she

      had checking and savings accounts from which she paid weekly rent to her

      friend, a monthly car payment, and car insurance. She further testified that

      until her current hospitalization she had not been hospitalized since 2016. She

      indicated that she was unwilling to take Invega because of negative side effects,

      but that she would be willing to try an alternative.


[9]   At the conclusion of the hearing, the trial court granted the Hospital’s Petition

      for D.S.’s regular commitment, finding that D.S. was gravely disabled and in

      need of commitment for a period expected to exceed ninety (90) days. The trial

      court also granted the forced medication order, permitting the Hospital to treat

      D.S. with Invega, Abilify, and Zyprexa. D.S. now appeals.




      Court of Appeals of Indiana | Opinion 18A-MH-590 | August 23, 2018       Page 5 of 10
                                                     Decision
[10]   On appeal, D.S. argues that the trial court erred in ordering her regular

       commitment2 because there was insufficient evidence to prove that she was

       “gravely disabled” as required by statute. See IND. CODE § 12-7-2-96. In

       reviewing the sufficiency of the evidence to support a civil commitment, which

       requires clear and convincing evidence, “‘an appellate court will affirm if,

       considering only the probative evidence and the reasonable inferences

       supporting it, without weighing evidence or assessing witness credibility, a

       reasonable trier of fact could find the [necessary elements] proven by clear and

       convincing evidence.’” Commitment of M.E. v. Dep’t of Veteran’s Affairs, 64

       N.E.3d 855, 861 (Ind. Ct. App. 2016) (quoting Civil Commitment of T.K. v. Dep’t

       of Veteran’s Affairs, 27 N.E.3d 271, 273 (Ind. 2015) (internal quotation omitted)).


[11]   INDIANA CODE § 12-26-2-5(e) provides that the petitioner in a case involving

       the involuntary commitment of mentally ill individuals must 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




       2
        In Civil Commitment of T.K. v. Dep't of Veterans Affairs, 27 N.E.3d 271, 273 n. 1 (Ind. 2015), our supreme
       court explained:
                In Indiana, an adult person may be civilly committed either voluntarily or involuntarily.
                Involuntary civil commitment may occur under four circumstances if certain statutorily
                regulated conditions are satisfied: (1) “Immediate Detention” by law enforcement for up to 24
                hours; (2) “Emergency Detention” for up to 72 hours; (3) “Temporary Commitment” for up to
                90 days; and (4) “Regular Commitment” for an indefinite period of time that may exceed 90
                days.
       (internal citations omitted).

       Court of Appeals of Indiana | Opinion 18A-MH-590 | August 23, 2018                             Page 6 of 10
       appropriate. Clear and convincing evidence requires proof that the existence of

       a fact is “highly probable.” M.E., 64 N.E.3d at 861. “‘There is no

       constitutional basis for confining a mentally ill person who is not dangerous

       and can live safely in freedom.’” Id. (quoting Commitment of J.B. v. Midtown

       Mental Health Ctr., 581 N.E.2d 448, 451 (Ind. Ct. App. 1991)).


[12]   D.S. does not dispute the trial court’s finding that she is mentally ill. However,

       she argues that there was insufficient evidence to support the trial court’s

       finding that she 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. Commitment of B.J. v.

       Eskenazi Hosp./Midtown CMHC, 67 N.E.3d 1034, 1039 (Ind. Ct. App. 2016).

       Our supreme court has previously held that a denial of mental illness and


       Court of Appeals of Indiana | Opinion 18A-MH-590 | August 23, 2018            Page 7 of 10
       refusal to medicate, standing alone, are insufficient to establish grave disability

       because they do not establish by clear and convincing evidence that the

       individual is unable to function independently. See T.K., 27 N.E.3d at 276.

       The United States Supreme Court has also held that, since everyone exhibits

       some abnormal conduct at one time or another, “loss of liberty [through a

       commitment] calls for a showing that the individual suffers from something

       more serious than is demonstrated by idiosyncratic behavior.” Addington v.

       Texas, 441 U.S. 418, 426-27, 99 S.Ct. 1804, 1810 (1979).


[13]   D.S. argues that there was insufficient evidence that she was gravely disabled

       because the only evidence bearing on that finding are the incident involving

       police and her refusal to take medication. She claims that this “scant” evidence

       is insufficient to establish that she: (1) is unable to provide for her essential

       human needs; or (2) has a substantial impairment or obvious deterioration of

       judgment that results in her inability to function independently. (Appellant’s

       Br. 11).


[14]   In response, the Hospital appears to concede that D.S. cannot be found gravely

       disabled under the first prong of the definition and argues only that D.S. is

       gravely disabled under the second prong of the definition. (See Appellee’s Br.

       14 (arguing that “lack of evidence that [D.S.] was not able to provide for her

       essential needs . . . is not fatal” and that “D.S. had an obvious deterioration that

       affected her judgment and ability to function independently.”)). The Hospital

       then argues that D.S.’s apparent “inability to . . . abide by the normal rules of



       Court of Appeals of Indiana | Opinion 18A-MH-590 | August 23, 2018           Page 8 of 10
       conduct[,]’” as shown by the Incident, was sufficient to prove that D.S. was

       gravely disabled. (Appellee’s Br. 15 (quoting Tr. 10)). We disagree.


[15]   While Dr. Mayer might have properly considered D.S.’s conduct during the

       Incident to be contrary to “the normal rules of conduct,” (Tr. 10), the Hospital’s

       burden of proof requires more than a showing that D.S. behaved abnormally or

       idiosyncratically. Addington, 441 U.S. at 426-27. Rather, the Hospital needed

       to have shown by clear and convincing evidence that D.S. lacked the judgment

       and ability to function independently. B.J., 67 N.E.3d at 1039. Other than Dr.

       Mayer’s diagnosis of psychosis caused by schizoaffective disorder, the Hospital

       presented no evidence at all, much less clear and convincing evidence, that D.S.

       could not function independently. The Incident was one isolated event, and

       while D.S.’s actions during the Incident were unusual, there was no evidence

       that her unusual conduct prevented her from functioning independently outside

       the Hospital. See Addington, 441 U.S. at 427 (warning against committing

       individuals based on “a few isolated instances of unusual conduct.”). D.S.

       testified about her ability to work, pay bills, and live independently, and the

       Hospital presented no contrary evidence regarding her ability to do so.


[16]   Further, it is apparent from Dr. Mayer’s testimony that his opinion that D.S.

       was gravely disabled was based solely on the Incident, her denial of her illness,

       and her refusal to take prescribed medication. We have already noted above

       that the Incident was not a sufficient basis for regular commitment, and in T.K.,

       our supreme court affirmed that denial of illness and refusal to take medication

       are likewise not a sufficient basis for commitment. See T.K., 27 N.E.3d at 276

       Court of Appeals of Indiana | Opinion 18A-MH-590 | August 23, 2018        Page 9 of 10
       (holding that “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”) (internal quotation omitted)).


[17]   Accordingly, because the only evidence the Hospital presented at trial did not

       constitute clear and convincing evidence to support D.S.’s regular commitment,

       we reverse the trial court’s decision and remand for the trial court to vacate the

       regular commitment.


[18]   Reversed and remanded.


       Vaidik, C.J., and Barnes, Sr.J., concur.




       Court of Appeals of Indiana | Opinion 18A-MH-590 | August 23, 2018        Page 10 of 10
