                                                                                     FILED
                                                                               Dec 15 2017, 8:12 am

                                                                                     CLERK
                                                                                Indiana Supreme Court
                                                                                   Court of Appeals
                                                                                     and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Ernest P. Galos                                          Curtis T. Hill, Jr.
      South Bend, Indiana                                      Attorney General of Indiana

                                                               Kyle Hunter
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      In the Matter of the                                     December 15, 2017
      Commitment of P.B.,                                      Court of Appeals Case No.
      Appellant,                                               71A03-1706-MH-1362
                                                               Appeal from the St. Joseph
              v.                                               Superior Court
                                                               The Honorable David C.
      Evansville State Hospital,                               Chapleau, Judge
      Appellee.                                                Trial Court Cause No.
                                                               71D05-1103-MH-57



      Barnes, Judge.


                                             Case Summary
[1]   P.B. appeals her involuntary commitment to Evansville State Hospital (“the

      Hospital”). We reverse.



      Court of Appeals of Indiana | Opinion 71A03-1706-MH-1362 | December 15, 2017                      Page 1 of 12
                                                      Issue
[2]   The sole issue before us is whether there is sufficient evidence to support the

      trial court’s commitment order.


                                                     Facts
[3]   P.B. has been diagnosed with schizoaffective disorder and post-traumatic stress

      disorder. In Indiana, P.B. has been in and out of involuntary commitments to

      mental hospitals since March 2011. She also has previously been hospitalized

      in Virginia and California. She attempted suicide on several occasions, the last

      time being in 2014.


[4]   P.B.’s most recent hospitalization began on December 5, 2016, when she was

      involuntarily committed to a hospital in South Bend. Prior to this commitment,

      her treating psychiatrist stated that P.B. was suffering “from symptoms of

      paranoia, delusions, and mood lability.” App. Vol. II p. 41. She also had a

      recent history of threatening other residents of her apartment complex and

      being disruptive. She believed that her family and neighbors were breaking into

      her apartment at night and beating her up, and she was calling police two to

      three times a day making delusional claims about intruders. Generally, P.B.

      believed that her mother was conspiring against her, to harm her and she was

      extremely paranoid. P.B. had been “poorly compliant” with outpatient

      treatment to address her paranoia and regularly refused to take antipsychotic

      medication, believing it was poisonous. Id.




      Court of Appeals of Indiana | Opinion 71A03-1706-MH-1362 | December 15, 2017   Page 2 of 12
[5]   On February 13, 2017, P.B. was transferred to the Hospital, a State facility. On

      February 14, 2017, the trial court entered an order continuing P.B.’s regular

      commitment without hearing. On May 2, 2017, P.B. filed a request for review

      and dismissal of her commitment.


[6]   The trial court held a hearing on the matter on May 18, 2017. Dr. Boris Vatel,

      a psychiatrist at the Hospital, testified in favor of continuing P.B.’s

      commitment. He stated that P.B. had made “some progress” during her

      hospitalization but “I don’t think that she has sufficiently improved in order to

      be able to manage herself independently in the community.” Tr. p. 6. He

      further explained:


              The main concerns that we have about why she requires a longer
              hospitalization is not that she is suicidal. I do not believe she is
              dangerous to herself. I also do not believe that she is physically
              dangerous to other people. I do believe there is a question of
              grave disability that has to do with her emotional functioning and
              with her ability to function around other people, and also to
              cooperate with the necessary medical care that she requires
              because of her mental conditions.


      Id. at 7. Dr. Vatel also testified that P.B. did not want to take a prescribed

      antipsychotic mediation because she incorrectly believed that she was allergic to

      it. Although she sometimes was cooperative, at other times she was very

      hostile toward Hospital staff and other medical providers, sometimes even

      screaming at them.




      Court of Appeals of Indiana | Opinion 71A03-1706-MH-1362 | December 15, 2017   Page 3 of 12
[7]   P.B. has other health conditions, including diabetes, and she has a pacemaker.

      During her stay at the Hospital, she also was diagnosed as possibly having sleep

      apnea. Dr. Vatel considered P.B.’s diabetes to be stable but was concerned that

      her health could deteriorate outside of the Hospital. However, he also testified

      on cross-examination that he could not recall any evidence that P.B.’s physical

      health had ever become unstable because of her mental health. In sum, Dr.

      Vatel testified that P.B.’s involuntary commitment needed to be continued

      because “I don’t think she is able to get along with other people, and we all

      need to be able to do that in order to function independently in the community,

      A; B, the extreme mood liability [sic] that she is experiencing, and C, the

      delusions.” Id. at 14. Although Dr. Vatel expressed concern that P.B. was at

      risk of being unable to provide food, clothing, and shelter for herself, no

      evidence was presented that she had been unable to provide those necessities for

      herself in the past.


[8]   At the conclusion of the hearing, the trial court ordered continuation of P.B.’s

      regular involuntary commitment. P.B. now appeals.


                                                   Analysis
[9]   P.B. contends there is insufficient evidence to sustain her regular involuntary

      commitment. In a regular involuntary commitment proceeding, the petitioner

      may seek to have an individual hospitalized for more than ninety days. Ind.




      Court of Appeals of Indiana | Opinion 71A03-1706-MH-1362 | December 15, 2017   Page 4 of 12
       Code § 12-26-7-1.1 To obtain such a commitment, the petitioner must prove by

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

       dangerous or gravely disabled; and (2) detention or commitment of that

       individual is appropriate.” I.C. § 12-26-2-5(e). The Hospital here only sought

       P.B.’s commitment on the basis of her being “gravely disabled.” That phrase is

       defined by statute as:


                a condition in which an individual, as a result of mental illness, is
                in danger of coming to harm because the individual:


                (1) is unable to provide for that individual’s food, clothing,
                shelter, or other essential human needs; or


                (2) has a substantial impairment or an obvious deterioration of
                that individual’s judgment, reasoning, or behavior that results in
                the individual’s inability to function independently.


       I.C. § 12-7-2-96.


[10]   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 Veteran Affairs, 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, and given the serious stigma and adverse social consequences



       1
        There also exist procedures for involuntary “immediate” commitments lasting up to twenty-four hours,
       “emergency” commitments up to seventy-two hours, or “temporary” commitments up to ninety days. See
       Civil Commitment of T.K., 27 N.E.3d 271, 273 n.1 (Ind. 2015) (citing Ind. Code chs. 12-26-4, 12-26-5, and 12-
       26-6).

       Court of Appeals of Indiana | Opinion 71A03-1706-MH-1362 | December 15, 2017                      Page 5 of 12
       that accompany such physical confinement, a proceeding for an involuntary

       civil commitment is subject to due process requirements.” Id. Making clear

       and convincing evidence the burden of proof for civil commitment proceedings

       communicates the importance in our legal system of decisions ordering an

       involuntary commitment and reduces the risk of inappropriate commitments.

       Id.


[11]   When reviewing 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 will not reweigh evidence or judge witness credibility. Id.


[12]   We note that, in T.K., our supreme court disapproved of cases from this court

       applying a too-deferential standard of review, which affirmed civil commitment

       orders merely if a reasonable person could have drawn the conclusion that

       commitment was necessary, even if other reasonable conclusions were possible.

       Id. at 274 (disapproving M.L. v. Meridian Servs., Inc., 956 N.E.2d 752 (Ind. Ct.

       App. 2011); S.T. v. Cmty. Hosp. N., 930 N.E.2d 684 (Ind. Ct. App. 2010); K.F. v.

       St. Vincent Hosp. & Health Care Ctr., 909 N.E.2d 1063 (Ind. Ct. App. 2009); J.S. v.

       Ctr. for Behavioral Health, 846 N.E.2d 1106 (Ind. Ct. App. 2006), trans. denied).

       The T.K. opinion did not list every case from this court that contained the

       disapproved language. One case it did not include, but which does contain the

       disapproved standard of review, was In re Involuntary Commitment of A.M., 959



       Court of Appeals of Indiana | Opinion 71A03-1706-MH-1362 | December 15, 2017   Page 6 of 12
       N.E.2d 832, 835 (Ind. Ct. App. 2011).2 The Hospital relies heavily upon this

       case in arguing that P.B.’s commitment was supported by sufficient evidence.

       However, given that A.M. was decided before T.K. disapproved of the standard

       of review it employed, we give it little weight in deciding P.B.’s case. If an

       appellate case applied an incorrect and too-deferential standard of review, it is

       difficult if not impossible to assess whether that case’s ultimate determination of

       the sufficiency of the evidence is still valid. It is clear A.M. was implicitly, if not

       expressly, disapproved of by T.K.


[13]   The facts of T.K. are instructive here. The involuntarily-committed patient in

       that case suffered from extreme paranoid schizophrenia, believing that a wide

       range of institutions were persecuting and targeting him. Included in this

       paranoia was skepticism toward the pharmaceutical industry, psychiatrists, and

       hospitals, as a result of which he often did not comply with taking psychiatric

       medication. T.K. initially was detained at a hospital on an emergency basis

       after he put flyers on windshields detailing the sex offender criminal history of

       his ex-wife’s current husband. He also had a history of yelling at or being

       aggressive towards medical personnel, which caused some personnel and other

       patients to be fearful for their safety. T.K.’s son also expressed concern over the

       fact that T.K. was an ex-Marine who had knowledge of weapons or explosives

       and that he had mentioned the use of violence in emails and on Facebook.



       2
         A.M. also relied extensively upon the expressly-disapproved S.T. and J.S. cases. A.M., 959 N.E.2d at 836.
       It also relied upon In re Commitment of Bradbury, 845 N.E.2d 1063 (Ind. Ct. App. 2006). Id. Again, although
       not expressly disapproved of in T.K., Bradbury contains the standard of review of which T.K. disapproved.

       Court of Appeals of Indiana | Opinion 71A03-1706-MH-1362 | December 15, 2017                    Page 7 of 12
       There also was evidence presented by T.K. that he was employed, had a stable

       and clean residence plus three vehicles, received disability income, and

       regularly went to the gym and did his own laundry.


[14]   Our supreme court reversed the order for T.K.’s regular involuntary

       commitment, finding insufficient evidence of either “dangerousness” or “grave

       disability.” T.K., 27 N.E.3d at 276-77. As for “grave disability,” the court

       noted that there was no evidence disputing T.K.’s ability to provide food,

       clothing, or shelter for himself. It also held that T.K.’s refusal to acknowledge

       his mental illness or take recommended medication “standing alone, are

       insufficient to establish grave disability because they do not establish, by clear

       and convincing evidence, that such behavior ‘results in the individual’s inability

       to function independently.’” Id. at 276 (quoting I.C. §12-7-2-96(2)). The court

       summarized as follows:


               [T]he evidence put forth by the Department does not clearly and
               convincingly support the proposition that T.K. is gravely
               disabled. T.K. made no physical outbursts, destroyed no
               property, did not put himself or others in actual danger with
               idiosyncratic behavior, and was not at risk of suffering a lack of
               food, clothing, or shelter. Instead, at best, the evidence suggests
               that T.K.’s loud, boisterous, and rude public behavior harmed his
               reputation and made others not want to be around him. That is
               not sufficient evidence to support a civil commitment on grounds
               of grave disability.


       Id. at 277.




       Court of Appeals of Indiana | Opinion 71A03-1706-MH-1362 | December 15, 2017   Page 8 of 12
[15]   Following T.K. and its clarification of the standard of review for involuntary

       civil commitments, this court has reversed several such commitments. In T.D.

       v. Eskenazi Health Midtown Community Health Center, 40 N.E.3d 507 (Ind. Ct.

       App. 2015), we reversed an involuntary commitment where there was a lack of

       evidence regarding the individual’s ability to maintain shelter, she refused to

       seek treatment for her mental illness, and there was a single incident in which

       she intentionally flooded the hotel room where she was living in hopes that the

       fire department would come and help her prepare for an event. In Commitment

       of M.E. v. Department of Veterans Affairs, 64 N.E.3d 855 (Ind. Ct. App. 2016), we

       reversed an involuntary commitment where, again, there was a lack of evidence

       that the individual could not provide for his own shelter, food, clothing, and

       other essential needs, and again, the individual was not compliant with

       recommended treatment, and again, the individual suffered from paranoia,

       delusions, and hallucinations, and often acted aggressively and confrontational

       towards others, and the individual had a long history of mental health

       problems.


[16]   Finally, in Commitment of B.J. v. Eskenazi Hospital, 67 N.E.3d 1034 (Ind. Ct.

       App. 2016), we addressed the involuntary commitment of a paranoid and

       delusional individual who originally was hospitalized after making multiple

       death threats and rape threats to multiple people and who had attempted to

       choke his ex-wife. After being temporarily committed for several months, the

       hospital sought a regular commitment, based on the individual’s threatening

       behavior, having twice missed treatment appointments, and his apparent denial


       Court of Appeals of Indiana | Opinion 71A03-1706-MH-1362 | December 15, 2017   Page 9 of 12
       of having a mental illness. We held this was insufficient to support an

       involuntary commitment based on “grave disability,” where there was no

       evidence the individual could not provide for his own food, shelter, clothing,

       and other essentials. B.J., 67 N.E.3d at 1040. Although we acknowledged that

       threatening behavior could in another case be sufficient evidence of a grave

       disability, there was no evidence that the individual had destroyed property or

       put himself or others in actual danger after beginning treatment. Id. We also

       rejected testimony by the treating psychiatrist that the individual could

       deteriorate into a gravely-disabled state in the future if he did not continue

       treatment, holding that the statute defining “gravely disabled” was written in

       the present tense and it was improper to consider the individual’s hypothetical

       state based on future contingencies. Id.


[17]   We conclude that P.B.’s commitment was based on facts that closely resemble

       those found in T.K. and succeeding cases from this court. P.B.’s most recent

       hospitalization occurred because of her paranoid delusions, which caused her to

       believe persons were breaking into her apartment and threatening her harm,

       and that her mother was controlling her life. She also had frequent conflicts

       with her neighbors and called the police department so often—multiple times a

       day—that she was considered a nuisance. She often was not compliant with

       outpatient therapy or recommended medication. During her hospitalization,

       P.B. continued to display aggressive or unpleasant behavior and was resistant to

       being medicated, although she had improved since her initial detainment.




       Court of Appeals of Indiana | Opinion 71A03-1706-MH-1362 | December 15, 2017   Page 10 of 12
[18]   On the other hand, there is no evidence that P.B.’s delusions caused her to

       destroy property or actually cause harm to herself or any other person, or

       otherwise engage in any behavior that arose to the level of criminality.

       Likewise, there is no evidence P.B. was unable to provide herself with food,

       clothing, shelter, and other necessities or that she was in danger of failing to do

       so. It is true that P.B. did not affirmatively present evidence on this issue.

       However, the Hospital bore the burden of proving P.B. was “gravely disabled”

       and it did not present any evidence on this issue, and we will not presume that

       it could have. We also emphasize that, although P.B. has a history of suicide

       attempts, Dr. Vatel was very clear that he did not think she currently was

       suicidal or a threat to herself or others. Furthermore, although P.B. had some

       physical health issues and Dr. Vatel speculated that they could become

       problematic in the future if P.B. was released from the Hospital, there was no

       evidence that P.B.’s mental health had affected her physical health on any past

       occasion. This is the type of hypothetical speculation we disapproved of in B.J.


[19]   Essentially, Dr. Vatel’s recommendation in favor of P.B.’s continued

       involuntary commitment was based on her unpleasantness and inability to get

       along with other people, her paranoid delusions, and her failure to fully

       cooperate with treatment. None of this is untrue, and there is no doubt that

       P.B. suffers from severe mental illness. However, the statutory definition of

       “gravely disabled” is very specific, and it has not been met here. There is a lack

       of clear and convincing evidence that P.B. was unable to function

       independently or that she was in danger of not providing for her own needs. As


       Court of Appeals of Indiana | Opinion 71A03-1706-MH-1362 | December 15, 2017   Page 11 of 12
       such, her regular involuntary commitment and resulting deprivation of liberty

       was not supported by sufficient evidence.


                                                 Conclusion
[20]   The trial court’s order for P.B.’s regular involuntary commitment was not

       supported by sufficient evidence and must be reversed.


[21]   Reversed.


       May, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 71A03-1706-MH-1362 | December 15, 2017   Page 12 of 12
