                                                                          FILED
                                                                     Mar 26 2019, 11:17 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Kyle K. Dugger                                            James L. Whitlatch
Bloomington, Indiana                                      Kathryn E. DeWeese
                                                          Bunger & Robertson
                                                          Bloomington, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

B. D.,                                                    March 26, 2019
Appellant-Respondent,                                     Court of Appeals Case No.
                                                          18A-MH-2672
         v.                                               Appeal from the Monroe Circuit
                                                          Court
Indiana University Health                                 The Honorable Stephen R. Galvin,
Bloomington Hospital,                                     Judge
Appellee-Petitioner.                                      Trial Court Cause No. 53C07-
                                                          1810-MH-422



Riley, Judge.




Court of Appeals of Indiana | Opinion 18A-MH-2672 | March 26, 2019                            Page 1 of 16
                                    STATEMENT OF THE CASE
[1]   Appellant-Respondent, B.D., appeals the trial court’s Order temporarily

      committing her to the care of Appellee-Petitioner, Indiana University Health,

      Bloomington Hospital (IU Health), for a period not to exceed ninety days.


[2]   We affirm.


                                                         ISSUES
[3]   B.D. presents us with two issues on appeal, which we restate as:


            (1) Whether the trial court’s determination that B.D. was dangerous to

                 herself was supported by clear and convincing evidence; and

            (2) Whether the trial court’s forced-medication order was supported by clear

                 and convincing evidence.


                          FACTS AND PROCEDURAL HISTORY
[4]   In the fall of 2018, B.D. was fifty-one years old. B.D. had attempted to commit

      suicide in the past by overdosing on medication. Early in September 2018,

      B.D. was treated at Methodist Hospital 1 for manic behavior and substance

      abuse. B.D. was given injections of the mood stabilizer, Abilify Maintena

      (Abilify). B.D. responded well to the Abilify. B.D. was released from




      1
          The location of this hospital is not clear from the record.


      Court of Appeals of Indiana | Opinion 18A-MH-2672 | March 26, 2019       Page 2 of 16
      Methodist Hospital with a prescription for oral Abilify, but at some point

      thereafter she stopped taking her medication.


[5]   On October 8, 2018, B.D. called a mental-health hotline expressing suicidal

      ideation and claiming to have overdosed on medication. The authorities were

      alerted, and officers came to B.D.’s home to check on her well-being but then

      left. The following day, B.D. contacted the hotline again expressing suicidal

      ideation. Officers came to B.D.’s home and escorted her to IU Health in

      Bloomington, where she was held for treatment after the trial court authorized

      an emergency detention. When B.D. first presented for crisis-care at IU Health,

      she was experiencing suicidal ideation. B.D. was agitated and unwilling to

      cooperate with an examination. B.D. banged her head against a gurney and

      kicked a hole in the wall of the crisis care unit. On October 10, 2018, Dr.

      Gregory Sidell (Dr. Sidell) was initially unable to assess B.D. because she was

      screaming and refusing to talk. When Dr. Sidell was able to assess B.D., she

      reported having a plan to harm herself with a “[m]edication overdose.”

      (Transcript p. 10). Dr. Sidell diagnosed B.D. with Bipolar Type 1 Disorder

      with psychotic features.


[6]   On October 10, 2018, IU Health filed a petition seeking a temporary

      involuntary commitment and a forced-medication order for Abilify injections

      for B.D. On October 12, 2018, the trial court held a hearing on the petition.

      Dr. Sidell was the sole witness for IU Health. Dr. Sidell testified that on

      October 11, 2018, B.D. had denied having continuing thoughts of suicide but

      that he had been informed by a member of Positive Link, a service provider to

      Court of Appeals of Indiana | Opinion 18A-MH-2672 | March 26, 2019       Page 3 of 16
      B.D. who she would contact for emotional support, that B.D. “would tell me

      and the rest of the hospital staff what she thought we wanted in order to let her

      go and that she still did have suicidal ideation.” (Tr. p. 7). Based upon his own

      evaluation of B.D. and the report from Positive Link, Dr. Sidell had concluded

      that B.D. was a danger to herself. Although Dr. Sidell could not make an exact

      prediction, it was his opinion that there was “definitely a threat” that B.D.

      would attempt suicide. (Tr. p. 11).


[7]   Concerning B.D.’s treatment plan, Dr. Sidell opined that a temporary

      commitment and Abilify injections were the best treatment options for B.D.

      Dr. Sidell recommended Abilify to stabilize B.D.’s mood so that she would not

      experience extreme depression or manic episodes. According to Dr. Sidell, the

      anger and agitation that B.D. displayed when she first arrived for treatment

      were hallmark characteristics of a depressive phase of her Bipolar Disorder and

      that her anger could increase the likelihood of “impulsive suicide action.” (Tr.

      p. 13). Dr. Sidell confirmed that he had considered lesser-restrictive alternative

      treatment options, including the alternate medication, Invega Sustenna

      (Invega). However, Dr. Sidell had rejected Invega as a treatment option

      because it did not treat depression. B.D. had also requested Adderall, but Dr.

      Sidell considered that medication to be a poor choice for B.D., given her

      Bipolar Disorder diagnosis, her history of substance abuse, and its likely

      tendency to counteract the effects of Abilify. B.D. did not wish to take Abilify

      because she reported that in the past she had gained twenty pounds and

      experienced muscle stiffness as side effects of the medication. However, Dr.


      Court of Appeals of Indiana | Opinion 18A-MH-2672 | March 26, 2019       Page 4 of 16
       Sidell was unable to substantiate that weight gain from B.D.’s medical records,

       and he felt that B.D. could address any weight gain with other medications. It

       was Dr. Sidell’s opinion that the benefits of Abilify injections outweighed its

       side effects and that it would treat B.D.’s Bipolar Disorder and not just control

       her symptoms. Dr. Sidell foresaw discharging B.D. with a prescription for oral

       Abilify and felt that her prognosis was good if she continued to take her

       medication.


[8]    After the close of evidence, the trial court found that B.D. was a danger to

       herself and issued its Order for a temporary commitment of B.D. not to exceed

       ninety days. The trial court’s Order included a grant of authority to IU Health

       to treat B.D. with Abilify unless she did not specifically benefit from the

       medication. On October 19, 2018, B.D. filed a motion to reconsider, which the

       trial court denied on November 5, 2018.


[9]    B.D. now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                             I. Preliminary Matters

[10]   On October 12, 2018, B.D. was temporarily committed to the care of IU Health

       for a period not to exceed ninety days, and so the period of temporary

       commitment has expired. Because the span of a temporary commitment is so

       short, an appeal is almost always moot by the time briefing is complete. As a

       general rule, we dismiss controversies that are moot. M.Z. v. Clarian Health

       Partners, 829 N.E.2d 634, 637 (Ind. Ct. App. 2005), trans. denied. However, an

       Court of Appeals of Indiana | Opinion 18A-MH-2672 | March 26, 2019        Page 5 of 16
       involuntary commitment is of great public interest and involves issues which

       are likely to recur, so we generally choose to address the merits of such appeals,

       despite the mootness of the case. See, e.g., Matter of Civil Commitment of A.M.,

       116 N.E.3d 496, 502 n.7 (Ind. Ct. App. 2018) (addressing the merits of A.M.’s

       challenge to her temporary involuntary commitment even though she had likely

       been discharged from treatment).


[11]   As another preliminary matter, we note that on February 21, 2019, B.D. filed a

       motion to strike portions of IU Health’s Appellee’s Brief pursuant to Indiana

       Appellate Rule 42 because she contends it contains material that is immaterial

       and inappropriate. 2 B.D. first requests that we strike IU Health’s references to

       the Statement in Support of Immediate Detention completed by an officer, the

       Application for Emergency Detention completed by Dr. Cory Norman, the

       Application for Emergency Detention and Report Following Emergency

       Detention completed by social worker Jayme Albin, and the Physician’s

       Statement completed by Dr. Sidell. Inasmuch as B.D. argues that IU Health

       improperly cited those documents because they were not made part of the

       October 12, 2018, hearing record, we agree. IU Health neither sought the

       admission of those documents at the October 12, 2018, hearing, nor did it

       request that the trial court take judicial notice of them. IU Health maintains

       that its references to the challenged documents were proper because they were




       2
         Contemporaneous to and consistent with this Opinion, we issue an order granting in part and denying in
       part B.D.’s motion to strike.

       Court of Appeals of Indiana | Opinion 18A-MH-2672 | March 26, 2019                            Page 6 of 16
       filed according to statutory mandates. It also directs our attention to Indiana

       Code section 12-26-6-8 which provides that the trial court may consider “the

       record” in reaching its temporary commitment determination. However, IU

       Health does not direct our attention to, and we are unaware of, any portion of

       the civil commitment statute which relieves a petitioner from making evidence

       part of the hearing record in order for the trial court to consider it. Therefore,

       we hereby strike those portions of IU Health’s brief which cite B.D.’s Appendix

       and relate to statements contained in those documents which were not admitted

       into evidence. If any facts were testified to by Dr. Sidell at the hearing were

       also contained in the stricken documents, we rely upon the testimony of Dr.

       Sidell in reaching our conclusions.


[12]   B.D. also requests that we strike portions of IU Health’s brief that refer to Dr.

       Sidell’s testimony containing hearsay which she contends could not be

       considered as substantive evidence by the trial court. B.D. relies upon our

       decision in Commitment of M.M. v. Clarian Health Partners, 826 N.E.2d 90, 95

       (Ind. Ct. App. 2005), trans. denied, in which we held that, in an involuntary

       commitment proceeding, a trial court may not consider as substantive evidence

       hearsay relied upon by a treating physician in reaching his professional opinion.

       Id. In that case, the treating physician testified, without personal knowledge,

       about events leading up to M.M.’s emergency commitment as well as events

       that occurred during her treatment prior to the commitment hearing. Id. at 94-

       95. However, M.M. made a detailed and timely objection to the challenged

       evidence at trial. Id. at 94. Here, B.D. raised only one hearsay objection at the


       Court of Appeals of Indiana | Opinion 18A-MH-2672 | March 26, 2019         Page 7 of 16
       October 12, 2018, hearing. That objection was to Dr. Sidell’s testimony that

       B.D. had denied having suicidal ideations the day before the hearing. After the

       trial court overruled that objection, B.D. did not object further or ask for a

       continuing objection to any other hearsay testimony. The failure to object at

       trial to the admission of such hearsay evidence results in waiver of any alleged

       error. Reed v. Bethel, 2 N.E.3d 98, 107 (Ind. Ct. App. 2014). In addition, B.D.

       did not raise any challenge to this evidence in her Brief of Appellant, further

       compounding her waiver. Instead, she has used a motion to strike and her

       reply brief in an attempt to circumvent the effect of her waiver. Because B.D.

       did not properly preserve her claim of error, we deny her motion to strike as to

       any hearsay contained in Dr. Sidell’s testimony. We also note that any error in

       the admission of Dr. Sidell’s testimony that B.D. had denied suicidal ideation

       the day before the hearing was harmless, as during her own testimony, B.D.

       denied that she had plans to hurt herself. See In re S.W., 920 N.E.2d 783, 788

       (Ind. Ct. App. 2010) (holding that the admission of evidence which is

       cumulative of other properly admitted evidence is harmless).


                                      II. Temporary Commitment Order

[13]   B.D. claims that insufficient evidence supported the trial court’s Order

       temporarily committing her to the care of IU Health. The purpose of civil

       commitment proceedings is 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). Given the liberty interest at stake, the

       serious stigma involved, and the adverse social consequences that accompany


       Court of Appeals of Indiana | Opinion 18A-MH-2672 | March 26, 2019         Page 8 of 16
       such physical confinement, a proceeding for an involuntary civil commitment is

       subject to due process requirements. Id. In order to protect the due process

       rights of a person subject to commitment, the facts justifying an involuntary

       commitment must be shown by clear and convincing evidence. Id. This

       standard of proof communicates the relative importance our legal system

       attaches to a decision ordering an involuntary commitment, and it also has the

       function of reducing the likelihood of inappropriate commitments. P.B. v.

       Evansville State Hosp., 90 N.E.3d 1199, 1202 (Ind. Ct. App. 2017). When we

       review the sufficiency of the evidence supporting an involuntary civil

       commitment, we will affirm if, after considering the probative evidence and

       reasonable inferences supporting the decision, a reasonable trier of fact could

       have found the necessary elements proven by clear and convincing evidence.

       Id. We do not reweigh the evidence, nor do we judge witness credibility. Id.


[14]   In Indiana “[a]n individual who is alleged to be mentally ill and either

       dangerous or gravely disabled may be committed to a facility for not more than

       ninety (90) days.” Ind. Code § 12-26-6-1. B.D. does not challenge the trial

       court’s finding that she is mentally ill, and the trial court did not conclude that

       B.D. was gravely disabled. Rather, B.D. contends that IU Health did not show

       by clear and convincing evidence that she was a danger to herself. For purposes

       of civil commitment, dangerousness is defined as “a condition in which an

       individual as a result of mental illness, presents a substantial risk that the

       individual will harm [herself] or others.” I.C. § 12-7-2-53. Dangerousness must

       be shown through behavior that would not occur but for the putative


       Court of Appeals of Indiana | Opinion 18A-MH-2672 | March 26, 2019          Page 9 of 16
       committee’s mental illness. B.M. v. Ind. Univ. Health, 24 N.E.3d 969, 972 (Ind.

       Ct. App. 2015), trans. denied. A trial court’s decision that a person is a danger to

       herself may be partially based upon the person’s threat to harm herself. See C.J.

       v. Health and Hosp. Corp. of Marion Cty., 842 N.E.2d 407, 410 (Ind. Ct. App.

       2006) (upholding a commitment where the trial court found C.J. dangerous to

       himself or other based, in part, on C.J.’s threat to kill his family and himself). 3


[15]   Here, the evidence at B.D.’s commitment hearing showed that B.D. has Bipolar

       Type 1 Disorder with psychotic features. B.D. had attempted suicide through

       medication overdose in the past, and, a mere one month or so prior to the

       events that led to the instant commitment, she had been treated for mania and

       substance abuse at Methodist Hospital. B.D. had stopped taking the oral

       Abilify she had been prescribed upon discharge from Methodist Hospital.

       Beginning on October 8, 2018, B.D. contacted a mental-health hotline two days

       in a row reporting that she was contemplating suicide and had overdosed on

       medication. After the second instance, B.D. was escorted to IU Health for

       treatment. There, she reported suicidal ideation and told Dr. Sidell that she had

       a plan to harm herself with medication. B.D. banged her head on a gurney and

       kicked a hole in the wall of the crisis-care unit. One day prior to the

       commitment hearing, B.D. reported to Dr. Sidell that she no longer experienced

       suicidal ideation, but she told Positive Link otherwise. It was Dr. Sidell’s



       3
         We are aware that in C.J. we applied a standard of review which was expressly disapproved of by our
       supreme court in T.K. However, the application of an inappropriate standard of review did not render the
       factors considered in C.J. invalid.

       Court of Appeals of Indiana | Opinion 18A-MH-2672 | March 26, 2019                            Page 10 of 16
       opinion that B.D.’s anger and agitation were hallmarks of her Bipolar Disorder

       that increased her suicide risk, B.D. posed a danger to herself, and that there

       was “definitely a threat” that B.D. would attempt to commit suicide. (Tr. p.

       11). Given B.D.’s history of attempted suicide, her failure to take her mood

       stabilizing medication, her repeated reports of suicidal ideation and overdose to

       the hotline, her physically aggressive behavior at IU Health, her reports to Dr.

       Sidell of suicidal ideation and a plan to overdose, her dissimulation to Dr.

       Sidell about whether she continued to feel suicidal, and Dr. Sidell’s opinion that

       there was a definite threat that she would attempt suicide, we conclude that the

       trial court’s determination that B.D. presented a substantial risk of harm to

       herself was supported by the evidence.


[16]   B.D. argues that she merely expressed suicidal ideation and exhibited anti-

       social activity, we have never affirmed the temporary commitment of someone

       under those circumstances, and that an affirmance of the trial court’s Order

       would have a chilling effect for reporting suicidal ideation. However, B.D.

       overlooks evidence in the record that she not only reported having suicidal

       ideation on multiple occasions spanning a number of days, but she also

       expressed a plan to harm herself by overdosing on medication, so our decision

       is not based merely on a single instance of suicidal ideation or anti-social

       behavior being reported to a hotline. B.D. also contends that Dr. Sidell’s

       opinion that there was a definite threat that she would attempt suicide was mere

       speculation and that the trial court was required to base its decision on her

       condition at the time of the commitment hearing. However, “a trial court is not


       Court of Appeals of Indiana | Opinion 18A-MH-2672 | March 26, 2019       Page 11 of 16
       required to wait until harm has nearly or actually occurred before determining

       that an individual poses a substantial risk of harm . . . ” Civil Commitment of J.B.

       v. Community Hosp. North, 88 N.E.3d 792, 796 (Ind. Ct. App. 2017) (quotation

       omitted). IU Health was not required to show a certainty that B.D. would

       attempt suicide. It was only required to show that B.D. posed a “substantial

       risk” of harm to herself which it accomplished through Dr. Sidell’s opinion

       testimony, which included his assessment that B.D. continued to pose a threat

       to herself. I.C. § 12-7-2-53. Accordingly, we conclude that the trial court’s

       determination was supported by clear and convincing evidence. See P.B., 90

       N.E.3d at 1202.


                                         III. Forced-Medication Order

[17]   B.D. also contends that the trial court’s Order allowing IU Health to administer

       her Abilify injections was not supported by clear and convincing evidence. In

       In re Mental Commitment of M.P., 510 N.E.2d 645 (Ind. 1987), our supreme court

       recognized that “[a] psychiatrist charged with treating a mentally ill patient

       must necessarily use his professional judgment in determining what he believes

       to be the preferred course of treatment. He must also be aware that he has an

       obligation to protect the patient from self-inflicted harm and to prevent him

       from harming others.” Id. at 646. The court also recognized that “the patient

       has a liberty interest in remaining free of unwarranted intrusions into his

       physical person and his mind while within an institution.” Id.




       Court of Appeals of Indiana | Opinion 18A-MH-2672 | March 26, 2019       Page 12 of 16
[18]   To balance these competing, important interests, our supreme court held that,

       in order to override a patient’s will regarding the administration of medication,

       the healthcare provider must show


               1) a current and individual medical assessment of the patient’s
               condition has been made; 2) that it resulted in the honest belief of
               the psychiatrist that the medications will be of substantial benefit
               in treating the condition suffered, and not just in controlling the
               behavior of the individual; 3) and that the probable benefits from
               the proposed treatment outweigh the risk of harm to, and
               personal concerns of, the patient. At the hearing, the testimony
               of the psychiatrist responsible for the treatment of the individual
               requesting review must be presented and the patient may present
               contrary expertise.


               Equally basic to court sanctionable forced medications are the
               following three limiting elements. First, the court must
               determine that there has been an evaluation of each and every
               other form of treatment and that each and every alternative form
               of treatment has been specifically rejected. It must be plain that
               there exists no less restrictive alternative treatment and that the
               treatment selected is reasonable and is the one which restricts the
               patient’s liberty the least degree possible. Inherent in this
               standard is the possibility that, due to the patient’s objection,
               there may be no reasonable treatment available. This possibility
               is acceptable. The duty to provide treatment does not extend
               beyond reasonable methods. Second, the court must look to the
               cause of the commitment. Some handicapped persons cannot
               have their capacities increased by anti-psychotic medication. The
               drug therapy must be within the reasonable contemplation of the
               committing decree. And thirdly, the indefinite administration of
               these medications is not permissible. Many of these drugs have
               little or no curative value and their dangerousness increases with
               the period of ingestion. The court must curtail the time period
               within which they may be administered. If a patient does not

       Court of Appeals of Indiana | Opinion 18A-MH-2672 | March 26, 2019        Page 13 of 16
               substantially benefit from the medication, it should no longer be
               administered.


       Id. at 647-48.


[19]   On appeal, B.D. does not appear to challenge the evidence supporting the three

       positive showings IU Health was required to make, namely that a current

       assessment had been made, Dr. Sidell’s honest belief that Abilify would treat

       B.D.’s Bipolar Disorder and not just control its symptoms, and that Abilify’s

       probable benefits outweighed its risks. Rather, B.D. contends that IU Health

       did not make an adequate showing of the limiting guidelines outlined in M.P.


[20]   As to the first limiting factor, B.D. argues that there was no evidence that Dr.

       Sidell considered any other form of treatment apart from psychotropic

       medication or that each and every other form of treatment had been considered

       and specifically rejected. However, Dr. Sidell was aware of B.D.’s non-

       compliance with the oral Abilify she had been prescribed upon release from

       Methodist Hospital, he considered and rejected the alternate medications

       Invega and Adderall, and he testified at the hearing that he had considered

       lesser-restrictive alternative treatment options. The trial court could have

       reasonably concluded from this evidence that Dr. Sidell had considered, but

       rejected, all reasonable lesser-restrictive forms of treatment. Though she

       contends other options could have been deployed such as therapy or continued

       contact with Positive Link, B.D.’s argument in this regard asks that we reweigh

       the evidence and consider evidence that does not support the trial court’s Order,

       in contravention of our standard of review. See P.B., 90 N.E.3d at 1202.
       Court of Appeals of Indiana | Opinion 18A-MH-2672 | March 26, 2019      Page 14 of 16
[21]   IU Health also made an adequate showing of the other limiting guidelines set

       out in M.P. As to the requirement that the proposed drug therapy be reasonably

       contemplated by the commitment order, B.D. was admitted for treatment due

       to suicidal ideation and having claimed to have overdosed on medication. The

       trial court found that B.D. was a danger to herself based on the continued threat

       that she would commit suicide. Dr. Sidell testified that B.D.’s anger and

       agitation were hallmarks of her Bipolar Disorder that increased her likelihood

       of impulsive suicidal action. Abilify is a mood stabilizer that would mitigate

       the extremes of her Bipolar Disorder. Thus, the treatment plan of Abilify

       injections was directly related to the reasons for the commitment. Lastly,

       contrary to B.D.’s assertion on appeal, we need not reverse the medication

       order for lack of any explicitly expressed time limit. The medication order was

       part of the ninety-day temporary commitment order and so had an inherent,

       innate limit. The trial court also limited the medication order by specifying that

       IU Health could treat B.D. with Abilify unless she did not specifically benefit

       from the medication. As such, we conclude that the trial court’s medication

       order was supported by clear and convincing evidence and leave it undisturbed.


                                             CONCLUSION
[22]   Based on the forgoing, we conclude that the trial court’s Order finding that

       B.D. was a danger to herself and authorizing IU Health to medicate B.D. was

       supported by clear and convincing evidence.


[23]   Affirmed.


       Court of Appeals of Indiana | Opinion 18A-MH-2672 | March 26, 2019      Page 15 of 16
[24]   Kirsch, J. and Robb, J. concur




       Court of Appeals of Indiana | Opinion 18A-MH-2672 | March 26, 2019   Page 16 of 16
