MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be                                  Jan 15 2020, 7:58 am
regarded as precedent or cited before any
                                                                           CLERK
court except for the purpose of establishing                           Indiana Supreme Court
                                                                          Court of Appeals
the defense of res judicata, collateral                                     and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael C. Keating                                       Curtis T. Hill, Jr.
Law Offices of Steven K. Deig, LLC                       Attorney General of Indiana
Evansville, Indiana                                      Frances Barrow
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the                                     January 15, 2020
Commitment of K.K.,                                      Court of Appeals Case No.
                                                         19A-MH-953
K.K.
                                                         Appeal from the Vanderburgh
Appellant-Respondent,                                    Superior Court
        v.                                               The Honorable Mary Margaret
                                                         Lloyd, Judge
State of Indiana,                                        The Honorable Donald R. Vowels,
                                                         Magistrate
Appellee-Petitioner.
                                                         Trial Court Cause No.
                                                         82D05-1903-MH-1355



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-MH-953 | January 15, 2020                Page 1 of 16
[1]   K.K. was involuntarily committed to the Evansville State Hospital on April 3,

      2019, by an order of the Vanderburgh Superior Court. K.K. raises two issues for

      our review: (1) whether there is sufficient evidence to support his involuntary

      commitment; and (2) whether he received proper notice of the petition for

      involuntary commitment.


[2]   We reverse.


                                 Facts and Procedural History
[3]   K.K. was admitted to practice law in Indiana in 1988. He is a veteran of the

      Marines and served four tours in Iraq and one in Afghanistan. K.K. was also

      stationed for a time in Djibouti, in northern Africa, where he suffered a non-

      combat medical emergency. In the years before the events giving rise to this

      case, K.K. cared for an ailing parent, which caused him to incur significant

      financial losses that at one point jeopardized his home ownership.


[4]   In 2016, K.K. was charged with two counts of Class A misdemeanor resisting

      law enforcement and one count of Class A misdemeanor criminal trespass. In

      2017, K.K. was charged with one count of Class A misdemeanor intimidation.

      The filing of these charges, all in Marion County, led to a disciplinary action

      against K.K. before the Indiana Supreme Court Disciplinary Commission. His

      law license was subject to an “emergency interim suspension” during the

      pendency of the disciplinary action. Meanwhile, the Marion Superior Court

      presiding over the misdemeanor charges ordered that K.K. undergo a



      Court of Appeals of Indiana | Memorandum Decision 19A-MH-953 | January 15, 2020   Page 2 of 16
      competency evaluation; K.K.’s court-appointed counsel stipulated to K.K.’s

      incompetence and agreed to waive a competency hearing over K.K.’s objection.


[5]   On May 15, 2018, the trial court entered an order committing K.K. to the care

      and custody of the Indiana Family and Social Services Administration,

      Division of Mental Health and Addiction (“DMHA”). The trial court

      concluded that K.K. “has insufficient comprehension to understand the nature

      of the criminal action against him and to assist in preparing a defense,” which is

      also referred to as insufficient comprehension to stand trial (“ICST”). Ex. Vol.,

      p. 90. The order directed that:


               [I]f [K.K.] is unable to understand the proceedings and assist in
               the preparation of his defense within six (6) months after the date
               of his admission to a psychiatric institution, the [DMHA] shall
               institute regular commitment proceedings under [Ind. Code] 16-
               14-9.1.1


      Ex. Vol., p. 91.


[6]   Evansville State Hospital (“the hospital”) in Vanderburgh County was

      designated as the appropriate institution for K.K.’s confinement, evaluation,

      and treatment; K.K. was admitted to the hospital in August 2018.


[7]   Approximately six months later, on March 13, 2019, the hospital filed a petition

      for K.K.’s involuntary commitment, which was supported by a physician’s




      1
        Effective July 1, 2018, the relevant Title 16 provisions were replaced by new sections under Title 12; see I.C.
      § 12-26-7-5.

      Court of Appeals of Indiana | Memorandum Decision 19A-MH-953 | January 15, 2020                     Page 3 of 16
      emergency statement authored by psychiatrist Dr. David Gray. The trial court

      held a hearing on the petition on April 3, 2019, at which time Dr. Gray and the

      hospital’s associate director of nursing testified for the State; K.K. and his

      cousin Diane Gordon (“Gordon”) testified for K.K.


[8]   Dr. Gray had treated K.K. since his August 2018 admission to the hospital and

      had diagnosed K.K. with delusional disorder, persecutory type. K.K. initially

      refused medication at the hospital but did comply with taking the prescribed

      medication after the hospital received an order to treat in November 2018. Dr.

      Gray testified that K.K.’s behavior at the hospital had been both cooperative

      and uncooperative: K.K. was willing to participate in normal activities in his

      unit and in group treatments but was less willing or refused to undergo

      individual testing and treatment. Dr. Gray explained that he did not find K.K.

      to pose a danger to himself or others. Dr. Gray did believe K.K. was gravely

      disabled as a result of his mental illness. K.K.’s delusions were often related to

      courts and local events and included legal conspiracies. He exhibited distrust

      with the staff and processes of the hospital, including doubt about Dr. Gray’s

      own qualifications as a psychiatrist. Dr. Gray thought K.K.’s reluctance to

      address the pending misdemeanor criminal charges against him—and the

      events giving rise to the charges themselves—indicated severe impairment of

      K.K.’s judgment and processing. The hospital’s associate director of nursing,

      who regularly interacted with K.K., also testified and explained that K.K.’s

      therapeutic relationships were strained by his distrust and his threats of legal

      action.


      Court of Appeals of Indiana | Memorandum Decision 19A-MH-953 | January 15, 2020   Page 4 of 16
[9]    Dr. Gray testified that K.K. had not been restored to competency in the time he

       had been treated at the hospital, but that if K.K. cooperated with treatment, Dr.

       Gray believed his competency could be restored. Accordingly, Dr. Gray

       recommended that K.K. be involuntarily committed, continue taking

       medication as prescribed, and reassess his willingness to engage in therapy and

       testing. The trial court entered an order of involuntary regular commitment the

       same day as the hearing on the State’s petition. Its order read, in relevant part:


               1. Respondent is suffering from Delusional, Persecutory Type,
                  which is a mental illness as defined in Ind. Code § 12-7-2-130.


               2. . . . Respondent is gravely disabled as defined in Ind. Code §
                  12-7-2-96.


               3. Respondent is in need of custody, care and treatment [in]
                  Evansville State Hospital or an appropriate facility for a
                  period expected to exceed ninety (90) days.


                                                         ***


               IT IS THEREFORE ORDERED, ADJUDGED AND
               DECREED that the Respondent is accordingly committed to the
               designated facility until discharged or until the Court terminates
               the commitment.


       Appellant’s App. pp. 6–7.


[10]   The court also ordered for a periodic report to be submitted by September 30,

       2019. K.K. now appeals the order of involuntary commitment. Additional facts

       will be provided where appropriate.

       Court of Appeals of Indiana | Memorandum Decision 19A-MH-953 | January 15, 2020   Page 5 of 16
                                          Standard of Review
[11]   Our supreme court has explained involuntary commitment proceedings as

       follows:


               The purpose of civil commitment proceedings is dual: to protect
               the public and to ensure the rights of the person whose liberty is
               at stake. The liberty interest at stake . . . goes beyond a loss of
               one’s physical freedom, and given the serious stigma and adverse
               social consequences that accompany such physical confinement,
               a proceeding for an involuntary civil commitment is subject to
               due process requirements. To satisfy the requirements of due
               process, the facts justifying an involuntary commitment must be
               shown “by clear and convincing evidence . . . [which] not only
               communicates the relative importance our legal system attaches
               to a decision ordering an involuntary commitment, but . . . also
               has the function of reducing the chance of inappropriate
               commitments.”


       Civil Commitment of T.K. v. Dep’t of Veterans Affairs, 27 N.E.3d 271, 273 (Ind.

       2015) (quoting Commitment of J.B. v. Midtown Mental Health Ctr., 581 N.E.2d

       448, 450 (Ind. Ct. App. 1991), trans. denied) (additional quotes and citations

       omitted).


[12]   Thus, an order of involuntary commitment is warranted only if clear and

       convincing evidence establishes that (1) the individual is mentally ill and either

       dangerous or gravely disabled, and (2) the commitment of that individual is

       appropriate. I.C. § 12-26-2-5. Clear and convincing evidence requires proof that

       the existence of a fact is “highly probable.” Lazarus Dep’t Store v. Sutherlin, 544

       N.E.2d 513, 527 (Ind. Ct. App. 1989), trans. denied. For purposes of involuntary


       Court of Appeals of Indiana | Memorandum Decision 19A-MH-953 | January 15, 2020   Page 6 of 16
       commitment, mental illness is defined by law as a psychiatric disorder that (A)

       substantially disturbs an individual’s thinking, feeling, or behavior; and (B)

       impairs the individual’s ability to function. I.C. § 12-7-2-130.


[13]   When we review the sufficiency of the evidence with respect to involuntary

       commitment proceedings, we look only to the evidence most favorable to the

       trial court’s decision and all reasonable inferences to be drawn therefrom. Golub

       v. Giles, 814 N.E.2d 1034, 1038 (Ind. Ct. App. 2004), trans. denied. We will not

       reweigh the evidence or judge witness credibility. Id. The judgment of the lower

       court will be affirmed if, after considering the probative evidence and

       reasonable inferences therefrom, a reasonable trier of fact could have found the

       necessary elements proven by clear and convincing evidence. Civil Commitment

       of T.K., 27 N.E.3d at 273–74. “There is no constitutional basis for confining a

       mentally ill person who is not dangerous and can live safely in freedom.”

       Commitment of J.B., 581 N.E.2d at 451.


[14]   The issues presented in this case are whether, considering the probative

       evidence and reasonable inferences favorable to judgment, the trial court could

       have found by clear and convincing evidence that (1) K.K. meets the statutory

       definition of mental illness; (2) as a result of that mental illness, K.K. is gravely

       disabled such that involuntary commitment is warranted; and (3) whether

       untimely notice of the hearing on the State’s petition denied K.K. due process.




       Court of Appeals of Indiana | Memorandum Decision 19A-MH-953 | January 15, 2020   Page 7 of 16
                                                 I. Mental Illness

[15]   Dr. Gray testified that K.K. suffers from delusional disorder, persecutory type,

       and that two other forensic assessors at the hospital had also reached the same

       diagnosis. K.K. does not challenge this diagnosis on appeal, but he does

       challenge whether it meets the statutory definition of mental illness which

       requires, among other thing, that the disorder impairs K.K.’s ability to function.

       See I.C. § 12-7-2-130. Dr. Gray’s testimony regarding K.K.’s mental illness was

       based on his knowledge that K.K. was admitted “as an ICST” and on the

       observations he made during the six months of K.K.’s emergency commitment.

       Tr. p. 11. For the first three months of his commitment, K.K. refused to take

       medication or otherwise engage in treatment. K.K. had delusional thought

       processes about his own role in “uncovering corruption in Marion County” and

       about judges lacking legal authority to hear cases in the county. Tr. p. 13.

       During K.K.’s testimony, he noted that his law license was under an interim

       suspension because of a pending disciplinary action, due to four misdemeanor

       charges brought against K.K. in relation to which he spent time in Marion

       County Jail.


[16]   Evaluating this evidence and the inferences that can reasonably be drawn

       therefrom in the light most favorable to the trial court’s judgment, we disagree

       with K.K. that his disorder does not impair his ability to function. That K.K.,

       an attorney, was charged with several misdemeanor offenses, declared ICST

       and admitted to the hospital impaired his ability to function professionally, at

       the least. See In re D.W.H., 411 N.E.2d 721 (Ind. Ct. App. 1980) (reversing

       Court of Appeals of Indiana | Memorandum Decision 19A-MH-953 | January 15, 2020   Page 8 of 16
       finding of mental illness where appellant maintained regular work schedule

       despite diagnosed disorder and no other evidence indicated impairment of his

       ability to function). While hospitalized, K.K. was diagnosed with a psychiatric

       disorder by a trained psychiatrist yet refused treatment for that disorder until the

       hospital sought and received an Order to Treat. A reasonable person could

       conclude from this evidence that K.K.’s ability to function was impaired as a

       result of his diagnosed psychiatric disorder, and thus the State established by

       clear and convincing evidence that K.K. was mentally ill under Indiana Code

       section 12-7-2-130.


                                              II. Gravely Disabled

[17]   K.K. challenges the trial court’s order of involuntary commitment, arguing that

       neither prong of the applicable standard for proving grave disability was

       established by clear and convincing evidence, as is required before an individual

       may be involuntarily committed. Specifically, K.K. contends that the trial court

       erred in finding him gravely disabled because he was functioning independently

       and was not at risk of coming to harm because of any impairment in his

       judgment, reasoning, or behavior. Grave disability is defined 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
       Court of Appeals of Indiana | Memorandum Decision 19A-MH-953 | January 15, 2020   Page 9 of 16
                    results in the individual’s inability to function
                    independently.


       I.C. § 12-7-2-96 (emphasis added).


[18]   Dr. Gray testified that K.K.’s ability to provide for his food, clothing, shelter,

       and other essential needs was “marginal” based on K.K.’s home having been in

       foreclosure and the suspension of his law license. Tr. pp. 15–16. K.K. testified

       that prior to his incarceration and hospitalization, he was living independently

       and meeting his essential needs. K.K. also explained the reasons for his

       mortgage payment delinquency and how he ultimately avoided foreclosure with

       a loan from his cousin, Diane Gordon, and with assistance from a Wounded

       Warriors group. Gordon testified that she was maintaining K.K.’s home while

       he was hospitalized, and that the home was available for him to live in upon his

       release. No evidence was presented to dispute K.K.’s ability to provide food or

       clothing for himself. Because the State did not demonstrate with this testimony

       that K.K. was in danger of coming to any harm based on an inability to shelter

       himself, the majority of the parties’ testimony focused on evidence of the

       second prong, to which we now turn.


[19]   Dr. Gray’s testimony included several reasons why he believed that K.K.’s

       judgment and processing were severely impaired. K.K. believes there is

       corruption in Marion County and that the specific judge presiding over his

       charges lacks authority to do so, beliefs that he promoted at one point on his

       own website. Dr. Gray, however, was most concerned with K.K.’s

       unwillingness to engage in treatment to restore his competency and address his
       Court of Appeals of Indiana | Memorandum Decision 19A-MH-953 | January 15, 2020   Page 10 of 16
       status as ICST. In Dr. Gray’s experience, professional individuals facing similar

       circumstances to K.K.’s “want to get those [charges] resolved and to move on

       in their professional career.” Tr. p. 50. That K.K. was not highly motivated to

       address the pending misdemeanor charges against him and had retained and

       rejected the services of several attorneys was cited as evidence of substantial

       impairment of K.K.’s reasoning. Furthermore, Dr. Gray’s review of the records

       of K.K.’s misdemeanor charges and the ICST finding led him to report that

       they contained further evidence of poor judgment in processing.


[20]   On cross examination, Dr. Gray expanded on his concerns about K.K.’s

       judgment in the context of K.K.’s participation in his legal strategy and the

       restoration of K.K.’s competency:


               A: I think [K.K.’s] greatest challenge is to have a continuing
               relationship [with an attorney]. Because he presents well initially,
               but then after a couple of visits things don’t go so well.


               Q: On what do you base that statement? What facts do you base
               that statement on?


               A: Part of it is my interactions with [K.K.]. And part of it—and
               I’ve tried to review this with [K.K.]—he’s got misdemeanor
               charges that have not been taken care of for about two years.
               And that’s what I had trouble understanding, why have they not
               been addressed or dismissed, and why are we meeting here today
               for something that happened two and three years ago.


               Q: Well we’re here today because you filed a petition asking that
               [K.K.] be involuntarily committed, which you’re required to do


       Court of Appeals of Indiana | Memorandum Decision 19A-MH-953 | January 15, 2020   Page 11 of 16
               by statute since he did not regain competence within six months.
               That’s why we’re here, right? . . .


               A: Yes.


               Q: And you’re not a lawyer.


               A: No.


               Q: So [you’re] extrapolating from your experience with how he
               has interacted with you to how he might interact with lawyers.


               A: Yes.


       Tr. pp. 41–42.


[21]   Also demonstrating impaired judgment, reasoning, or behavior was K.K.’s

       skepticism of Dr. Gray and the rest of the treatment team. Dr. Gray explained

       that K.K. did not believe he was board certified or licensed and that he was

       himself delusional. K.K. also declined to sign release forms that required his

       signature and believed his mail that passed through the hospital’s system had

       been tampered with. Nurse McCall testified that K.K. was “adamantly

       opposed” to medication, to his diagnosis, and to testing. Tr. p. 54. She said that

       K.K. often threatened to sue the staff such that Nurse McCall “put an

       intervention in his treatment plan that we would cease conversation with him

       when he threatened [] litigation.” Tr. p. 54. K.K.’s level of distrust of the staff

       interfered with the therapeutic relationship and treatment.



       Court of Appeals of Indiana | Memorandum Decision 19A-MH-953 | January 15, 2020   Page 12 of 16
[22]   Dr. Gray also cited “unusual circumstances” as evidence of K.K.’s impaired

       judgment, reasoning, or behavior. Tr. pp. 16–17. On one occasion, K.K., a

       vegetarian, suspected the hospital cafeteria served him sheep testicles. K.K.

       once mentioned the cloning of patients at the hospital. Hospital staff also

       observed K.K. saving condiment packets but refusing to explain why.


[23]   Thus, Dr. Gray’s conclusion that K.K. was gravely disabled was based on

       K.K.’s distrust of his treatment at the hospital, which for a time included

       refusing medication, and isolated instances of bizarre behavior. However,

       paranoia, alone, does not establish an inability to function independently.

       Commitment of M.E. v. Dep’t of Veterans Affairs, 64 N.E.3d 855 (Ind. Ct. App.

       2016), disapproved of on other grounds. Our supreme court has clarified that refusal

       to accept medication, standing alone, is insufficient to establish grave disability

       because it does not establish, by clear and convincing evidence, that such

       behavior inhibits the individual from functioning independently. See I.C. § 12-7-

       2-96(2); see, e.g., J.S. v. Ctr. For Behavioral Health, 846 N.E.2d 1106, 1112–13

       (Ind. Ct. App. 2006) (where commitment because of grave disability was

       affirmed on appeal because committed person refused medication and had lost

       a lot of weight because she refused to eat for fear of being poisoned), disapproved

       of on other grounds, trans. denied; Golub, 814 N.E.2d at 1037–39 (where

       commitment because of grave disability was affirmed on appeal because

       committed person refused to take medication and destroyed property, made

       threats, and lunged at another person).




       Court of Appeals of Indiana | Memorandum Decision 19A-MH-953 | January 15, 2020   Page 13 of 16
[24]   K.K. declined individual therapy and treatment but participated in group

       activities and therapies and was not otherwise disruptive during his emergency

       commitment at the hospital. We note, too, that although K.K. refused

       medication for half of the time of his commitment, he complied when the

       hospital received an Order to Treat. In addition, Dr. Gray pointed to several

       examples of K.K.’s unusual behavior at the hospital. However, we have

       previously cautioned against orders of involuntary commitment being based on

       “a few isolated instances of unusual conduct which occurred within a range of

       conduct which is generally acceptable.” Commitment of J.P. v. Midtown Mental

       Health Center, 581 N.E.2d 448, 450 (Ind. Ct. App. 1991), trans. denied. On this

       point, the United States Supreme Court has explained, and we have cited

       approvingly, that “[l]oss of liberty 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, 427 (1979). The evidence in this case has not

       clearly and convincingly shown that K.K.’s refusal to take medication and

       participate in all aspects of his psychiatric treatment, plus isolated instances of

       behavior based on delusional beliefs, constitute grave disability by resulting in

       substantial impairment such that K.K. is unable to function independently.


[25]   Dr. Gray’s conclusion that K.K. was gravely disabled was also based on

       evidence of K.K.’s deluded beliefs about Marion County courts and the

       perceived tardiness with which K.K. was addressing his pending criminal

       charges. At best, the evidence suggests that K.K.’s beliefs about the legal

       professionals around him complicates his own legal situation, slows the


       Court of Appeals of Indiana | Memorandum Decision 19A-MH-953 | January 15, 2020   Page 14 of 16
       resolution of his pending criminal charges, and slows the restoration of his

       competency and thus also his status as ICST. The evidence of K.K.’s impaired

       judgment or behavior based on paranoia does not indicate that K.K. is unable

       to function independently under the law. Accordingly, the evidence is not

       sufficient to support his involuntary commitment on the grounds of grave

       disability.


[26]   Importantly, even if we agree that the State proved K.K.’s judgment, reasoning,

       and behavior was substantially impaired to the extent that he was unable to

       function independently, which we do not, the State failed to present evidence

       identifying how that impairment made K.K. in danger of coming to harm. I.C.

       § 12-7-2-96. That the individual alleged to be gravely disabled be in danger of

       coming to harm as a result of his inability to function independently is what the

       statute requires. Having failed to present evidence thereof, the trial court’s

       judgment that K.K. was gravely disabled as a result of mental illness cannot be

       supported. Thus, in light of the statutory prerequisite that the necessary

       elements for an involuntary commitment be established by clear and convincing

       evidence, we hold that the evidence presented was insufficient to establish that

       K.K. was gravely disabled. I.C. § 12-26-2-5(e)(1).


                                                   III. Waiver

[27]   Finally, K.K. argues for the first time on appeal that his due process rights were

       violated because he did not receive timely notice of the hearing on the petition

       for his involuntary commitment. Appellant’s Br. at 18; see I.C. § 12-26-7-4(b).

       An issue—particularly with a trial court’s procedure—that is raised for the first
       Court of Appeals of Indiana | Memorandum Decision 19A-MH-953 | January 15, 2020   Page 15 of 16
       time on appeal is waived. Mitchell v. Stevenson, 677 N.E.2d 551, 558 (Ind. Ct.

       App. 1997), trans. denied. K.K.’s counsel did not object to the alleged

       untimeliness of the notice of hearing on the petition, and thus the argument is

       waived.


[28]   Notwithstanding waiver, to prevail on his claim that his due process rights were

       violated, K.K. would have had to demonstrate that the lack of timely notice

       caused him prejudice, which K.K. has not done. At the hearing on the State’s

       petition for involuntary commitment, K.K. was ably represented by counsel.

       Counsel succeeded in excluding from evidence documents pertaining to the

       disciplinary complaint and to the criminal charges against K.K. Tr. pp. 89, 93.

       Thus, to the extent K.K. argues he was prejudiced by the untimeliness of the

       notice provided, the argument is belied by the record of the proceedings.


                                                 Conclusion
[29]   Clear and convincing evidence was not presented at K.K.’s involuntary

       commitment hearing to establish that he was gravely disabled as a result of

       mental illness, and we thus hold that K.K.’s involuntary commitment was

       improper and the judgment of the trial court is reversed.


[30]   Reversed.


       Robb, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-MH-953 | January 15, 2020   Page 16 of 16
