                                                                           FILED
                                                                       Jun 27 2017, 8:23 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Valerie K. Boots                                          Jessica Barth
Marion County Public Defender                             Eskenazi Health
Indianapolis, Indiana                                     Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Civil                                June 27, 2017
Commitment of:                                            Court of Appeals Case No.
                                                          49A02-1612-MH-2823
M.L.,
                                                          Appeal from the Marion Superior
Appellant-Respondent,                                     Court
        v.                                                The Honorable Steven R.
                                                          Eichholtz
Eskenazi Health / Midtown                                 Trial Court Cause No.
Mental Health CMHC,                                       49D08-1612-MH-42227

Appellee-Petitioner.




Riley, Judge.




Court of Appeals of Indiana | Opinion 49A02-1612-MH-2823 | June 27, 2017                       Page 1 of 14
                                STATEMENT OF THE CASE
[1]   Appellant-Respondent, M.L., appeals the trial court’s grant of Appellee-

      Petitioner’s, The Health and Hospital Corporation of Marion County d/b/a/

      Eskenazi Health/Midtown Mental Health CMHC (Eskenazi), request for

      temporary commitment.


[2]   We affirm in part, reverse in part, and remand with instructions.


                                                    ISSUES
[3]   M.L. raises one issue for our review, which we restate as: Whether Eskenazi

      presented sufficient evidence to support the special condition of commitment.


[4]   Eskenazi presents one issue, which we restate as: Whether Eskenazi is entitled

      to appellate attorney’s fees pursuant to Indiana Appellate Rule 66(E).


                      FACTS AND PROCEDURAL HISTORY
[5]   On November 14, 2016, thirty-year-old M.L. was admitted to the inpatient unit

      at Eskenazi hospital on an emergency detention. Eskenazi filed a petition for

      involuntary commitment that same day, which was denied by the trial court.

      M.L. was released from the hospital on November 22, 2016.


[6]   On November 24, 2016, M.L. returned to the hospital to speak with Dr. Aimee

      Patel (Dr. Patel), the attending psychiatrist. When he learned that Dr. Patel

      was not there that day, M.L. asked the staff for a list of the chemicals he had

      been exposed to during his recent hospitalization. M.L. left, but returned on

      November 28, 2016, again requesting to speak with Dr. Patel. Dr. Patel

      Court of Appeals of Indiana | Opinion 49A02-1612-MH-2823 | June 27, 2017   Page 2 of 14
      observed M.L. to be “very disorganized, pressured, paranoid. Speaking about

      be[ing] a spy and recording everything. [And] [n]eeding a list of all chemical

      exposures.” (Transcript p. 7). She became concerned and filed another

      petition, seeking an emergency detention of M.L. The application included a

      physician’s emergency statement, which was signed on the same date. Dr.

      Patel re-admitted M.L. to the inpatient psychiatric unit. The hospital filed a

      Report Following Emergency Detention on November 30, 2016, which

      included a physician’s statement.


[7]   Upon M.L.’s re-admission, Dr. Patel determined that “[h]e [wa]s having a very

      clear episode of bi-polar mania. Which has led to [a] very impaired thought

      process. He [wa]s quite paranoid, quite delusional, very pressured.” (Tr. p. 7).

      M.L. was given emergency medication for agitation several times at the

      hospital but refused all offered medications. M.L. was “placed in restraints for

      safety. He had made a number of statements about – actually about killing

      himself[.]” (Tr. p. 7). He made threatening statements and gestures toward

      other people on the unit and spoke of purchasing a gun for protection.


[8]   On December 5, 2016, the trial court conducted an evidentiary hearing. During

      the proceedings, Dr. Patel testified that M.L. was both dangerous to himself

      and others, and gravely disabled by his mental illness in that he was not able to

      provide his own food, clothing, shelter, and basic needs. Dr. Patel also

      requested that the trial court impose certain special conditions on M.L. as part

      of the Order of Commitment, including that he “not use alcohol or drugs, other

      than those prescribed by a certified medical doctor.” (Tr. pp. 18-19). At the

      Court of Appeals of Indiana | Opinion 49A02-1612-MH-2823 | June 27, 2017   Page 3 of 14
       close of the evidence, the trial court ordered M.L. to be involuntarily committed

       to Eskenazi hospital on a temporary basis for a period not to exceed ninety

       days. Among the special conditions made a part of the Commitment Order

       was the trial court’s mandate that “upon attaining outpatient status,” M.L.

       “shall not use alcohol or drugs, other than those prescribed by a certified

       medical doctor.” (Appellant’s App. Vol. II, p. 7).


[9]    M.L. now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                             I. Mootness and Waiver


[10]   Eskenazi’s appellate brief is entirely devoted to devising legal avenues so as not

       to address the merits of M.L.’s appeal. However, all of these contentions fail

       due to an apparent misunderstanding of the legal mechanics of objection and

       waiver.


                                                    A. Mootness


[11]   In their respective appellate briefs, Eskenazi advocates and M.L. concedes that

       the case is moot because the Order of Commitment expired on March 5, 2017.

       Therefore, this court cannot render effective relief to M.L. See In re Commitment

       of T.K., 993 N.E.2d 245, 248 (Ind. Ct. App. 2013), trans. denied. “When a court

       is unable to render effective relief to a party, the case is deemed moot and

       usually dismissed.” Id. However, although moot cases are usually dismissed,

       Indiana courts have long recognized that a case may be decided on its merits

       Court of Appeals of Indiana | Opinion 49A02-1612-MH-2823 | June 27, 2017   Page 4 of 14
       under an exception to the general rule when the case involves questions of

       “great public interest.” Id. Typically, cases falling in the “great public interest

       exception” contain issues that are likely to recur. Id.


[12]   “The question of how persons subject to involuntary commitment are treated by

       our trial courts is one of great importance to society.” Id. (quoting In Re

       Commitment of J.B., 766 N.E.2d 795, 798 (Ind. Ct. App. 2002)). “Indiana

       statutory and case law affirm that the value and dignity of the individual facing

       commitment or treatment is of great societal concern.” Id. (citing In Re Mental

       Commitment of M.P., 510 N.E.2d 645, 646 (Ind. 1987)). The instant case

       involves the proof necessary to impose special conditions upon attaining

       outpatient status. Because this is an issue of great public importance that is

       likely to recur and for which Indiana case law is practically undeveloped, we

       will address it here.


                                                     B. Waiver


       Next, Eskenazi advances that M.L. waived this appeal, as he failed to object to

       “the imposition of the special condition.” (Appellee’s Br. p. 8). Finding “the

       record replete with M.L.’s opportunities to object to the imposition of the

       special condition,” Eskenazi reiterates our well-known doctrine that “[a] party

       may not present an argument or an issue to an appellate court unless the party

       raised that argument or issue to the trial court.” (Appellee’s Br. p. 9) (reference

       omitted); see, e.g., Carson v. Ross, 509 N.E.2d 239, 243 (Ind. Ct. App. 1987), reh’g

       denied, trans. denied. Consequently, Eskenazi maintains that “[t]o choose to


       Court of Appeals of Indiana | Opinion 49A02-1612-MH-2823 | June 27, 2017      Page 5 of 14
       advance this issue to a full appeal is a waste of the scarce resources of three

       different governmental entities: the public defender, [Eskenazi], and of course

       this Court.” (Appellee’s Br. p. 9)


[13]   It is clear that Eskenazi harbors a misunderstanding of what constitutes waiver

       and what represents a meritorious appeal. Eskenazi claims the first waiver to

       be present when M.L. failed to object to Dr. Patel’s direct testimony as to which

       particular special condition she was requesting the trial court to impose. Then,

       Eskenazi argues that M.L. failed to ask Dr. Patel “why she was requesting the

       special condition or refer to it in any way” during cross-examination.

       (Appellee’s Br. p. 9). The hospital contends that “[i]f M.L. had a concern about

       the particular condition imposed by the trial court, M.L. should have raised it at

       the hearing, which would have allowed Dr. Patel to explain why it was in

       M.L.’s best interest not to drink alcohol or use drugs during his acute episode of

       bi-polar mania.” (Appellee’s Br. p. 9). And lastly, Eskenazi takes issue with

       M.L.’s counsel’s silence when the trial court ruled in favor of Eskenazi during

       the proceedings and imposed “[a]s conditions of the commitment, if placed

       outpatient, [M.L.] . . . . [shall] not use alcohol or drugs other than those

       prescribed by a physician.” (Tr. p. 34).


[14]   Because civil commitment is a significant deprivation of liberty that requires

       due process protections, the burden falls on the petitioner. Addington v. Texas,

       441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979). Accordingly, the burden

       rested with Eskenazi to present sufficient evidence to support the imposition of

       the special condition. However, rather than acknowledging that it carried the

       Court of Appeals of Indiana | Opinion 49A02-1612-MH-2823 | June 27, 2017   Page 6 of 14
       burden of proof by establishing the necessary evidence, Eskenazi now transfers

       this burden and places it squarely on M.L. by characterizing it as a failure to

       object to the imposition of the special condition. In other words, Eskenazi

       faults M.L. for failing to make the case for it. During Dr. Patel’s testimony it

       was incumbent upon Eskenazi to elicit sufficient evidence with respect to the

       particularities of its request and its reason to impose the challenged special

       condition. There was nothing for M.L. to object to, and M.L. was not under a

       burden to present evidence as to the special condition’s necessity. Silence was

       indeed M.L.’s best strategy here.


[15]   When the trial court mandated the imposition of the special condition during

       the hearing, the trial court issued its judgment. At that time, the proper legal

       avenue to challenge a trial court’s decision is not by raising an objection—as no

       evidence is presented—but by either filing a motion to correct error or by filing

       a notice of appeal. Clearly, M.L. choose the latter, and we find that his appeal

       has merit.


                                              II. Special Condition


[16]   M.L. contends that the trial court abused its discretion when it included the

       special condition in its Order of Commitment and therefore, the condition

       should be stricken. Indiana Code section 12-26-14-3 permits a trial court to

       order special conditions when an individual is involuntarily committed to out-

       patient care:




       Court of Appeals of Indiana | Opinion 49A02-1612-MH-2823 | June 27, 2017   Page 7 of 14
               The court may require an individual ordered to enter an
               outpatient therapy program [] to do the following:


               (1) Follow the therapy program the individual enters.


               (2) Attend each medical and psychiatric appointment made for
                   the individual.


               (3) Reside at a location determined by the court.


               (4) Comply with other conditions determined by the court.


       Such special conditions “must be reasonably designed to protect the individual

       as well as the general public.” Golub v. Giles, 814 N.E.2d 1034, 1041 (Ind. Ct.

       App. 2004), trans. denied. There must be “sufficient evidence in the record for

       the trial court to conclude” that the special condition “bears a reasonable

       relationship” to the committed individual’s treatment and to the protection of

       others. Id. When we review a challenge to the sufficiency of this evidence, we

       look to the evidence most favorable to the trial court’s decision and draw all

       reasonable inferences from that decision. Id. at 1040. We may neither reweigh

       the evidence nor judge the credibility of the witnesses. Id.


[17]   The propriety of an appellate challenge to a special condition of commitment

       has been considered only twice previously: Golub v. Giles, 814 N.E.2d 1034

       (Ind. Ct. App. 2004), trans. denied, and M.M. v. Clarian Health Partners, 826

       N.E.2d 90 (Ind. Ct. App. 2005), trans. denied. In both precedents, we struck the

       special condition.


       Court of Appeals of Indiana | Opinion 49A02-1612-MH-2823 | June 27, 2017   Page 8 of 14
[18]   In Golub, the trial court imposed conditions prohibiting Golub from “harassing

       or assaulting family members or others,” and from “using alcohol or drugs

       other than those prescribed by a certified medical doctor.” Golub, 814 N.E.2d

       at 1040. Golub appealed and argued that the conditions were improper as they

       were not requested by the physician, they were not based on the physician’s

       assessment of Golub, and they bore no relationship to the reasons for his

       commitment. Id. Because we found evidence in the record that Golub had

       threatened family members, we concluded that the special condition preventing

       harassment bore a reasonable relationship to his treatment and was properly

       imposed. Id. at 1041. However, finding “the record [] devoid of any evidence

       that Golub used or abused alcohol or drugs,” we concluded that special

       condition improperly imposed. Id. “Although [Golub’s physician] suggests on

       appeal that it was permissible for the trial court to take judicial notice of the fact

       that alcohol is a ‘known depressant’ and ‘could interact with Golub’s treatment

       in unpredictable ways,’ there is no evidence of this suggestion in the record.”

       Id.


[19]   Less than a year after our decision in Golub, we again considered special

       conditions ordered as part of involuntary outpatient treatment in M.M.


               With respect to the condition prohibiting M.M. from consuming
               alcohol or drugs, we observe the record is devoid of any evidence
               showing M.M. used or abused alcohol or drugs. The subject of
               alcohol or drug use was never raised during the hearing. Because
               there is no evidence in the record to suggest that such a
               prohibition bears any relationship to M.M.’s treatment or the


       Court of Appeals of Indiana | Opinion 49A02-1612-MH-2823 | June 27, 2017    Page 9 of 14
               protection of the public, we agree with the parties that the
               condition was improperly imposed.


       M.M., 826 N.E.2d at 99.


[20]   Likewise here, the record is barren as to M.L.’s use of alcohol or drugs and

       there is no suggestion that the special condition bears any relationship to M.L.’s

       treatment or the protection of the public. During her testimony, Dr. Patel

       requested the trial court to prohibit M.L. to abuse alcohol or to use any drugs

       other than those prescribed by a certified medical doctor. When asked on direct

       examination, “[d]oes he use any substances; alcohol or drugs?” (Tr. p. 10). Dr.

       Patel responded, “No.” (Tr. p. 10). In a footnote, Eskenazi claims that “[i]t

       should be obvious that M.L.’s use of alcohol or drugs would have exacerbated

       his conditions of grave disability and dangerousness.” (Appellee’s Br. p. 14, fn.

       2). But, as in Golub, Eskenazi did not present any evidence supporting this

       ‘obvious’ statement. Accordingly, as there is insufficient evidence to support

       the imposition of this special condition, we affirm the trial court’s order in part

       but reverse in part with instruction to strike the special condition prohibiting

       M.L. from consuming alcohol and drugs, not prescribed by a certified medical

       doctor, from the Order of Commitment.


                                         III. Appellate Attorney’s Fees


[21]   Eskenazi contends that it is entitled to appellate attorney’s fees pursuant to

       Indiana Appellate Rule 66(E), claiming that




       Court of Appeals of Indiana | Opinion 49A02-1612-MH-2823 | June 27, 2017   Page 10 of 14
               [b]ringing a narrow appeal, based on a single argument that was
               clearly waived—with the failure to raise that issue below actually
               creating the ostensible basis for the appeal (i.e., a lack of evidence
               about a condition)—cannot be within the bounds of acceptable
               advocacy.


       (Appellee’s Br. p. 14).


[22]   Indiana Appellate Rule 66(E) provides, in pertinent part, that “[t]he Court may

       assess damages if an appeal . . . is frivolous or in bad faith. Damages shall be in

       the Court’s discretion and may include attorney’s fees.” Our discretion to

       award attorney’s fees under Indiana Appellate Rule 66(E) is limited, however,

       to instances when an appeal is permeated with meritlessness, bad faith,

       frivolity, harassment, vexatiousness, or purpose or delay. Thacker v. Wentzel,

       797 N.E.2d 342, 346 (Ind. Ct. App. 2003). Additionally, while Indiana

       Appellate Rule 66(E) provides this court with discretionary authority to award

       damages on appeal, we must use extreme restraint when exercising this power

       because of the potential chilling effect upon the exercise of the right to appeal.

       Id.


[23]   Rather than being permeated with meritlessness or bad faith, M.L.’s appeal is

       an entirely proper exercise of his constitutional rights to due process and

       appellate review, based on established precedent of this court. Moreover, we

       are taken aback with Eskenazi’s request for appellate attorney’s fees to be

       assessed against another arm of the same Marion County government. The

       Marion County Public Defender and Eskenazi serve a similar clientele—the

       most indigent and vulnerable in our community—and both are a vital part of

       Court of Appeals of Indiana | Opinion 49A02-1612-MH-2823 | June 27, 2017    Page 11 of 14
       that same public safety net for Marion County. To seek a financial retribution

       from the Public Defender Agency for protecting involuntarily committed

       individuals’ constitutional rights based on Eskenazi’s own misunderstanding of

       the legal mechanics of objection and waiver is remarkable. We deny Eskenazi’s

       request.


                                              CONCLUSION
[24]   Based on the foregoing, we affirm the trial court’s order in part but reverse in

       part with instruction to strike the special condition prohibiting M.L. from

       consuming alcohol and drugs, not prescribed by a certified medical doctor,

       from the Order of Commitment. We deny Eskenazi’s request for appellate

       attorney’s fees pursuant to Indiana Appellate Rule 66(E).


[25]   Affirmed in part, reversed in part, and remanded with instructions.


[26]   Najam, J. concurs


[27]   Bradford, J. dissents with separate opinion




       Court of Appeals of Indiana | Opinion 49A02-1612-MH-2823 | June 27, 2017   Page 12 of 14
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       In the Matter of the Civil
       Commitment of:                                            Court of Appeals Case No.
                                                                 49A02-1612-MH-2823
       M.L.,
       Appellant-Respondent,

               v.

       Eskenazi Health / Midtown
       Mental Health CMHC,
       Appellee-Petitioner.


       Bradford, Judge, dissenting.


[28]   I respectfully disagree with the majority’s conclusion that M.L. adequately

       preserved his claim that Eskenazi presented insufficient evidence to support a

       special condition of his commitment, specifically, that he refrain from using




       Court of Appeals of Indiana | Opinion 49A02-1612-MH-2823 | June 27, 2017              Page 13 of 14
       alcohol or unauthorized drugs should he attain outpatient status.

       Consequently, I respectfully dissent.

[29]   “‘A party generally waives appellate review of an issue or argument unless the

       party raised that issue or argument before the trial court.’” Benton Cty.

       Remonstrators v. Bd. of Zoning Appeals of Benton Cty., 905 N.E.2d 1090, 1096 (Ind.

       Ct. App. 2009) (quoting GKC Ind. Theatres, Inc. v. Elk Retail Inv’rs, LLC, 764

       N.E.2d 647, 652 (Ind. Ct. App. 2002)). M.L. had ample opportunity to object

       to the imposition of the special condition but did not do so at the trial court

       level. If M.L. had objected, I believe it is near certain that Eskenazi would have

       simply asked Dr. Patel if drugs or alcohol could interfere with M.L.’s prescribed

       medications, and she would have answered in the affirmative. See Benton Cty.

       Remonstrators, 905 N.E.2d at 1096-97 (“Had the Remonstrators raised this issue

       at the trial court level, then the parties would have had an opportunity to

       develop a record and provide the court with evidence as to when the clerk

       mailed the panel. The Remonstrators cannot now raise such a fact-sensitive

       issue without raising it first before the trial court and giving the other parties an

       opportunity to address the issue and fully develop a record for appeal.

       Therefore, we conclude that the Remonstrators have waived this argument.”).

       Because I would conclude that M.L. has waived any challenge he might have

       had to the imposition of the special condition, I would affirm the judgment of

       the trial court.




       Court of Appeals of Indiana | Opinion 49A02-1612-MH-2823 | June 27, 2017    Page 14 of 14
