                                                                          FILED
                                                                     May 18 2020, 8:58 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael E. Hunt                                           James L. Whitlatch
Rachel M. Rogers                                          Kathryn DeWeese
Monroe County Public Defender                             Bunger & Robertson
Bloomington, Indiana                                      Bloomington, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

A.S.,                                                     May 18, 2020
Appellant-Respondent,                                     Court of Appeals Case No.
                                                          19A-MH-3044
        v.                                                Appeal from the Monroe Circuit
                                                          Court
Indiana University Health                                 The Honorable Stephen R. Galvin,
Bloomington Hospital,                                     Judge
Appellee-Petitioner                                       Trial Court Cause No.
                                                          53C07-1911-MH-452



May, Judge.




Court of Appeals of Indiana | Opinion 19A-MH-3044 | May 18, 2020                              Page 1 of 16
[1]   A.S. appeals following her 90-day commitment to Indiana University Health

      Bloomington Hospital (“Hospital”). 1 A.S. raises four issues, which we

      consolidate, reorder, and restate as:


               1. Whether the trial court abused its discretion by admitting
               hearsay evidence;


               2. Whether the evidence was sufficient to support the trial court’s
               determinations that A.S. was gravely disabled and a danger to
               herself; and


               3. Whether the trial court erred in determining the treatment plan
               imposed was the least-restrictive plan available.


      We affirm.



                              Facts and Procedural History
[2]   On November 26, 2019, Hospital filed an Application for Emergency Detention

      of a Mentally Ill and Dangerous or Gravely Disabled Person regarding A.S.

      The Application indicated A.S. was “psychotic and she has been walking in the




      1
        Hospital notes A.S.’s temporary commitment was to expire on March 2, 2020, which technically renders
      moot A.S.’s appeal of her commitment. (Appellee’s Br. at 12.) Hospital also notes that we generally address
      these appeals under a public interest exception to the mootness doctrine, (id.), and we choose to do so again
      in this case. See T.W. v. St. Vincent Hospital & Health Care Center, Inc., 121 N.E.3d 1039, 1042 (Ind. 2019)
      (“Indiana recognizes a public interest exception to the mootness doctrine, which may be invoked when the
      issue involves a question of great public importance which is likely to recur.”) (quoting Matter of Tina T., 579
      N.E.2d 48, 54 (Ind. 1991)).

      Court of Appeals of Indiana | Opinion 19A-MH-3044 | May 18, 2020                                    Page 2 of 16
      middle of the highway multiple times.” (App. Vol. II at 8.) The court granted

      the emergency detention that day.


[3]   On November 27, 2019, Hospital petitioned for temporary involuntary

      commitment of A.S. The court heard evidence and argument on December 3,

      2019, and it entered an order for temporary commitment that same day. The

      trial court found A.S. to have schizophrenia, which rendered her both

      dangerous to herself and gravely disabled. The order permitted Hospital to

      keep A.S. for up to 90 days, provided Hospital permission to draw blood from

      A.S. as necessary for laboratory tests, and granted Hospital authority to treat

      A.S. with anti-psychotic medications.



                                 Discussion and Decision
[4]   Civil commitment proceedings have two purposes – to protect both the public

      and the rights of the person for whom involuntary commitment is sought. In re

      Civil Commitment of T.K., 27 N.E.3d 271, 273 (Ind. 2015). “The liberty interest

      at stake in a civil commitment proceeding goes beyond a loss of one’s physical

      freedom,” id., because commitment is accompanied by “serious stigma and

      adverse social consequences[.]” Id. Accordingly, proceedings for civil

      commitment are subject to the requirements of the Due Process Clause. Id.

      (citing Addington v. Texas, 441 U.S. 418, 425-26 (1979)).




      Court of Appeals of Indiana | Opinion 19A-MH-3044 | May 18, 2020         Page 3 of 16
                                       1. Admission of Evidence
[5]   A.S. asserts “[t]he trial court erroneously admitted inadmissible hearsay

      evidence . . . .” (Appellant’s Br. at 8.) We review the trial court’s admission of

      evidence for an abuse of discretion. Henderson v. Henderson, 139 N.E.3d 227,

      236 (Ind. Ct. App. 2019). An abuse of discretion occurred if the trial court’s

      decision was clearly against the logic and effect of the facts and circumstances

      before the court. Id.


[6]   In particular, A.S. points to statements made by the police who brought her to

      the emergency room for detention, and she claims “all information used to

      detain, and then commit, A.S.,[sic] was communicated through a loop that

      started with the police and ended with Dr. Mayer, without him ever speaking

      directly to them.” (Appellant’s Br. at 25.) Thus, A.S. asserts, Dr. Mayer’s

      testimony about what the police reported was inadmissible hearsay 2 that could

      not meet the criteria for admission under the exception for a “Statement Made

      for Medical Diagnosis or Treatment.” 3 Ind. Evidence Rule 803(4).


[7]   When Hospital called its psychiatrist, Dr. Carey Mayer, to the stand, Hospital’s

      counsel asked if A.S. was “willing to stipulate to the fact that Dr. Mayer is a




      2
        Hearsay is “a statement that: “(1) is not made by the declarant while testifying at the trial or hearing; and
      (2) is offered in evidence to prove the truth of the matter asserted.” Ind. Evidence Rule 801(c). “Hearsay is
      not admissible unless these rules or other law provides otherwise.” Evid. Rule 802.
      3
        Hearsay is admissible under the Medical Diagnosis or Treatment exception if the statement was “made by a
      person seeking medical diagnosis or treatment;” was “made for—and is reasonable pertinent to—medical
      diagnosis or treatment;” and “describes medical history; past or present symptoms, pain or sensations; their
      inception; or their general cause.” Evid. R. 803(4).

      Court of Appeals of Indiana | Opinion 19A-MH-3044 | May 18, 2020                                    Page 4 of 16
board certified psychiatrist qualified to render his medical opinion.” (Tr. Vol. II

at 4.) Counsel for A.S. responded, “Yes[.]” (Id.) Dr. Mayer testified he is

A.S.’s “attending psychiatrist” and had “seen her daily since” her admission on

November 26, 2019. (Id. at 5.) Dr. Mayer also testified he diagnosed A.S. as

having schizophrenia based on her behavior at Hospital and based on

information gathered from other sources, including Hospital’s Emergency

Department, A.S.’s family, and police reports. The following exchange then

occurred:


        [Hospital Counsel]: What, to start off, what behaviors have you
        observed since she’s been here on the unit?


        [Dr. Mayer]: Well she acts very inappropriately. She’s
        invariably agitated, has made delusional statements such as that
        she is Jesus. She was [sic] actually came to the attention of the
        police when she was walking in traffic. My understanding is that
        there was [sic] actually some car wrecks that were created by
        that. Police were called and she had made comments to the
        police and or


        [A.S. Counsel]: I would object to this. There was no direct
        observation, I believe.


        [The Court]: Your response, Counsel?


        [Hospital Counsel]: Doctor, is this type of information, police
        reports, reports from other practitioners, other providers, is that
        information, family members, is that information that you
        typically rely on in reaching a diagnosis?



Court of Appeals of Indiana | Opinion 19A-MH-3044 | May 18, 2020              Page 5 of 16
              [Dr. Mayer]: Yes.


              [The Court]: For purposes, for diagnostic purposes, I will allow
              the testimony.


      (Id. at 6-7.)


[8]   Thus, contrary to A.S.’s assertion, the trial court did not admit into evidence

      Dr. Mayer’s repetition of what the police reported. Instead, the trial court

      allowed Dr. Mayer to explain what the police reported “for diagnostic

      purposes.” (Id. at 7.) Pursuant to Evidence Rule 702(a), a witness “who is

      qualified as an expert by knowledge, skill, experience, training, or education

      may testify in the form of an opinion or otherwise if the expert’s scientific,

      technical, or other specialized knowledge will help the trier of fact to

      understand the evidence or to determine a fact in issue.” Furthermore, when a

      witness has been qualified as an expert under Rule 702, that person “may base

      an opinion on facts or data in the case that the expert has been made aware of

      or personally observed. Experts may testify to opinions based on inadmissible

      evidence, provided that it is of the type reasonably relied upon by experts in the

      field.” Evid. R. 703.


[9]   Here, when Dr. Mayer took the stand, A.S. stipulated that he was an expert

      qualified to give a medical opinion. (See Tr. Vol. II at 4.) Dr. Mayer also

      testified that police reports were one of the items typically relied on when

      rendering a mental health diagnosis. (See id. at 6.) As a result, Evidence Rule

      703 allowed Dr. Mayer to rely on the police report when determining a

      Court of Appeals of Indiana | Opinion 19A-MH-3044 | May 18, 2020           Page 6 of 16
       diagnosis for A.S. The trial court allowed Dr. Mayer to testify about the

       information from the police report not for evidentiary purposes but to explain

       how he reached his diagnosis. We presume that “trial courts know and follow

       the law,” Hecht v. Hecht, --- N.E.3d ----, 2020 WL 1057248, *7 (Ind. Ct. App.

       March 5, 2020), and that a judge considers only the properly-admitted evidence

       when rendering a judgment. See Konopasek v. State, 946 N.E.2d 23, 28 (Ind.

       2011) (“We generally presume that in a proceeding tried to the bench a court

       renders its decisions solely on the basis of relevant and probative evidence.”).

       A.S. has not demonstrated error in the trial court’s allowing Dr. Mayer to state

       what the police reported in order to explain his opinion about A.S.’s diagnosis.


                                     2. Sufficiency of Evidence
[10]   To comport with due process requirements, a person may not be committed

       without clear and convincing evidence in support thereof. In re T.K., 27 N.E.3d

       at 273. When we review a determination made under that clear and convincing

       standard, we 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.’” Id. (quoting Bud Wolf Chevrolet, Inc.

       v. Robertson, 519 N.E.2d 135, 137 (Ind. 1988)).


[11]   To have a person committed, the petitioner – here, Hospital – must prove by

       clear and convincing evidence that:




       Court of Appeals of Indiana | Opinion 19A-MH-3044 | May 18, 2020          Page 7 of 16
               (1) the individual is mentally ill and either dangerous or gravely
               disabled; and


               (2) detention or commitment of that individual is appropriate.


       Ind. Code § 12-26-2-5(e). Because the statute is written in the disjunctive, a

       petitioner need only prove the respondent is “either dangerous or gravely

       disabled.” Id. (emphasis added); see also M.Z. v. Clarian Health Partners, 829

       N.E.2d 634, 637 (Ind Ct. App. 2005) (“It is important to note that in order to

       carry its burden of proof, Clarian only had to prove that M.Z. was either

       gravely disabled or dangerous. It did not have to prove both of these

       elements.”) (emphasis in original), trans. denied.


[12]   For purposes of Indiana Code article 12-26, mental illness means “a psychiatric

       disorder that: (A) substantially disturbs an individual’s thinking, feeling, or

       behavior; and (B) impairs the individual’s ability to function.” Ind. Code § 12-

       7-2-130. Dangerous is defined as “a condition in which an individual as a result

       of mental illness, presents a substantial risk that the individual will harm the

       individual or others.” Ind. Code § 12-7-2-53. Gravely disabled means


               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




       Court of Appeals of Indiana | Opinion 19A-MH-3044 | May 18, 2020             Page 8 of 16
               (2) has a substantial impairment or an obvious deterioration of
               that individual’s judgment, reasoning, or behavior that results in
               the individual’s inability to function independently.


       Ind. Code § 12-7-2-96. Because the definition of grave disability is written in

       the disjunctive, the evidence needs to support only one of those two prongs for

       a person to be found gravely disabled. See A.L. v Wishard Health Servs., 934

       N.E.2d 755, 760 (Ind. Ct. App. 2010) (“When Indiana Code section 12-7-2-

       96(2) is at issue, the trial court need not find that the person in question is

       incapable of providing himself or herself with food or clothing[.]”), trans. denied.


[13]   The trial court found A.S. was schizophrenic, gravely disabled, and a risk to

       herself. A.S. does not challenge the finding that she has a mental illness.

       Instead she challenges the sufficiency of the evidence demonstrating she was

       dangerous to herself and gravely disabled. We choose to address first whether

       the record supports the trial court finding A.S. was gravely disabled because of

       a “substantial impairment or an obvious deterioration of that individual’s

       judgment, reasoning, or behavior that results in the individual’s inability to

       function independently.” Ind. Code § 12-7-2-96(2). Our review of the record

       uncovered the following testimony:


               [Dr. Mayer]: I believe that she meets the criteria for being
               gravely impaired and that she represents a danger to herself
               because of her poor judgment and insight.


               [Hospital Counsel]: What is the basis for your opinion that she
               is gravely disabled? Do you believe that she has a substantial


       Court of Appeals of Indiana | Opinion 19A-MH-3044 | May 18, 2020             Page 9 of 16
        impairment of her judgment or reasoning or behavior that results
        in an inability to function independently?


        [Dr. Mayer]: At this point in time, yes . . . .


        [Hospital Counsel]: Do you believe that she has insight into her
        illness or


        [Dr. Mayer]: No . . . I do believe that she is still psychotic. Still
        vitally needs this treatment and so far has been refusing.


(Tr. Vol. II at 8-9.) In addition, Dr. Mayer explained:


        [Dr. Mayer]: So she has had a history of being psychotic. She
        has said to staff on the unit that she’s Jesus. . . . Come to find
        out from her mother, that this patient had a full scholarship to
        New York University and so she is very bright, but at age
        nineteen, she had a psychotic break where she was found by her
        roommates on the floor sobbing that she had created a black hole
        and it was going to destroy the world. She was hospitalized for
        thirty days in one of the New York hospitals. My understanding
        is that like now, she had refused medication up until the very end
        of her stay. This patient has not had any continued or sustained
        outpatient treatment . . . .


(Id. at 7.) Dr. Mayer also testified that A.S. “acts very inappropriately” at the

hospital. (Id. at 6.) “She’s invariably agitated [and] has made delusional

statements such as that she is Jesus.” (Id.) In the days before the hearing, A.S.

had been “threatening towards staff.” (Id. at 21.) “She is so psychotic, her

judgment so impaired, that she needs the safety of a protective inpatient

psychiatric unit. Anything less than that, she could just walk away from.” (Id.


Court of Appeals of Indiana | Opinion 19A-MH-3044 | May 18, 2020            Page 10 of 16
       at 14.) Dr. Mayer also testified A.S.’s hygiene was “marginally okay” because

       she had begun taking showers, but she continued to be “dressed bizarrely.” (Id.

       at 18.)


[14]   All that evidence demonstrates that A.S. continued to display behavior toward

       and around hospital staff that demonstrated a substantial impairment of her

       judgment and reasoning based on her mental illness. 4 A.S. was making

       delusional statements, was agitated and threatening toward staff, and had only

       marginal hygiene and dress. Under these facts, we affirm the trial court’s

       determination that A.S. was gravely disabled due to her impaired judgment.

       See, e.g., Golub v. Giles, 814 N.E.2d 1034, 1039 (Ind. Ct. App. 2004) (holding

       evidence sufficient to demonstrate grave disability), trans. denied.


                            3. Reasonableness of Treatment Order
[15]   “Our supreme court has recognized that a patient has a liberty interest in

       ‘remaining free of unwarranted intrusions into his physical person and his

       mind, and ‘it cannot be seriously disputed that forcible medication of a mental

       patient interferes with that liberty interest.” Civil Commitment of W.S. v. Eskenazi

       Health, Midtown Community Mental Health, 23 N.E.3d 29, 35 (Ind. Ct. App.




       4
         A.S. analogizes her case to other recent cases in which orders of commitment have been reversed for
       insufficient proof of grave disability. (See Appellant’s Br. at 14-20.) As an example, A.S. cites In re
       Commitment of D.S., 109 N.E.3d 1056 (Ind. Ct. App. 2018), in which a psychiatrist had alleged D.S. was
       gravely disabled because of the “incident” that brought her to the hospital and her refusal to admit her illness
       or take medications. Here, however, we have additional testimony about A.S.’s behavior at the hospital that
       demonstrates her continued disability because of her illness. Because the facts herein distinguish A.S.’s
       situation from those cases, we decline to follow them.

       Court of Appeals of Indiana | Opinion 19A-MH-3044 | May 18, 2020                                   Page 11 of 16
2014) (quoting In re Mental Commitment of M.P., 510 N.E.2d 645, 646 (Ind.

1987)), trans. denied. To override a citizen’s right to refuse treatment,


        The State must demonstrate by clear and convincing evidence
        that: 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 a
        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.


        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
        with which they may be administered. If a patient does not
        substantially benefit from the medication, it should no longer be
        administered.



Court of Appeals of Indiana | Opinion 19A-MH-3044 | May 18, 2020            Page 12 of 16
       Id. (quoting In re M.P., 510 N.E.2d at 647-68).


[16]   The trial court found A.S. needed a 90-day commitment and Hospital was both

       an appropriate facility and the “least restrictive environment suitable for the

       necessary care, treatment and protection of” A.S. (App. Vol. II at 4.) In

       addition, the court found: “Each and every form of treatment, and each and

       every alternative form of treatment has specifically been evaluated by

       psychiatrists for Respondent[;]” (id.), and “There is not [sic] less restrictive

       alternative treatment and the treatment selected is reasonable and restricts

       [A.S.]’s liberty in the least possible degree.” (Id.) Finally, the court ordered

       Hospital “is granted an order to treat with the following medication, unless

       [A.S.] does not specifically benefit from these medications: Invega Sustenna,

       Abilify Maintena, Haldol Decanoate, Immediate Release Zyprexa.” (Id. at 5.)

       A.S. alleges the court’s order failed to meet all three of the “limiting elements”

       outlined in In re M.P., 510 N.E.2d at 647-48.


[17]   A.S. complains there is no evidence in the record to “justify a forced medication

       order of four heavy, debilitating antipsychotic drugs,” which A.S. calls “the

       most draconian combination of heavy antipsychotics available.” (Appellant’s

       Br. at 28.) However, A.S.’s argument, as with her claim about the admission of

       evidence, misrepresents the record. Dr. Mayer’s testimony makes very plain

       that Hospital was not seeking an order to give A.S. all four of those anti-

       psychotic medications at one time:


               [Hospital Counsel]: Okay. You are also seeking a forced
               medication order?
       Court of Appeals of Indiana | Opinion 19A-MH-3044 | May 18, 2020           Page 13 of 16
        [Dr. Mayer]: Yes.


        [Hospital Counsel]: For which medication?


        [Dr. Mayer]: For the anti-psychotic medications, I mean, we
        are, we have good evidence that she is psychotic and we feel that
        therefore needs to be on an anti-psychotic medication. And so
        we are asking the Court to allow us to use a forced medications
        so, because otherwise she’s not going to volunteer for it. We are
        asking for the long-acting injectable medications of Invega
        Sustenna, Abilify Maintena, Haldol Deconoate and Immediate
        Release Zyprexa in the IM formulation.


        [Hospital Counsel]: Okay. So in asking for all four of those
        medications, is that because you are not sure which will be best
        for her?


        [Dr. Mayer]: Correct.


        [Hospital Counsel]: Okay. So you are [sic] intention would not
        be to use all of those,


        [Dr. Mayer]: Correct.


        [Hospital Counsel]: it would be to figure out which one worked
        best for her?


        [Dr. Mayer]: Right. Monotherapy at this point would be an
        appropriate place to start, so yes, it would just be one of those.


(Tr. Vol. II at 11-12.)




Court of Appeals of Indiana | Opinion 19A-MH-3044 | May 18, 2020             Page 14 of 16
[18]   A.S. also argues the treatment cannot be the “least restrictive treatment

       available for A.S.” because Dr. Mayer did not testify that any other medication

       was considered. (Appellant’s Br. at 27.) However, after Dr. Mayer testified

       about the four anti-psychotics that might benefit A.S., this testimony occurred:


               [Hospital Counsel]: Are there any alternative medications that
               may work for her?


               [Dr. Mayer]: No.


                                                     *****


               [Hospital Counsel]: Okay. Do you believe that these
               medications will be of substantial benefit in treating her
               underlying condition and not just controlling her symptoms?


               [Dr. Mayer]: Yes.


               [Hospital Counsel]: Okay. Do you believe that the
               commitment and forced medication order at this time presents
               the least-restrictive environment that’s necessary for her care and
               treatment?


               [Dr. Mayer]: Yes.


               [Hospital Counsel]: Have you considered any less restrictive
               alternatives?


               [Dr. Mayer]: Yes.




       Court of Appeals of Indiana | Opinion 19A-MH-3044 | May 18, 2020         Page 15 of 16
               [Hospital Counsel]: And why, in your opinion, are none of
               those good options at this point?


               [Dr. Mayer]: She is so psychotic, her judgment so impaired,
               that she needs the safety of a protective inpatient psychiatric unit.
               Anything less than that, she could just walk away from.


       (Tr. Vol. II at 11-14.)


[19]   Finally, A.S. complains that the third limiting element – curtailing the timeline

       for forced medication – “was never even addressed on the record at the

       Commitment Hearing.” (Appellant’s Br. at 28.) However, as the trial court

       authorized Hospital to keep A.S. for “a temporary period not to exceed ninety

       (90) days,” (App. Vol II at 5), the timeline for forced medication is obviously

       limited to a period of ninety days. A.S. has not demonstrated error in the

       forced medication order.



                                               Conclusion
[20]   The trial court did not admit into evidence the hearsay about which A.S.

       complains. Dr. Mayer’s testimony provided clear and convincing evidence that

       A.S. was gravely disabled and that forced administration of anti-psychotic

       medication was warranted. Accordingly, we affirm.


[21]   Affirmed.


       Robb, J., and Vaidik, J., concur.



       Court of Appeals of Indiana | Opinion 19A-MH-3044 | May 18, 2020           Page 16 of 16
