MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                                FILED
this Memorandum Decision shall not be                                             Jan 25 2019, 7:17 am

regarded as precedent or cited before any                                             CLERK
court except for the purpose of establishing                                      Indiana Supreme Court
                                                                                     Court of Appeals
                                                                                       and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Valerie K. Boots                                         Bryan H. Babb
Marion County Public Defender Agency                     Sarah T. Parks
Indianapolis, Indiana                                    Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of The Civil                               January 25, 2019
Commitment of:                                           Court of Appeals Case No.
                                                         18A-MH-757
T.K.,
                                                         Appeal from the Marion Superior
Appellant-Respondent,                                    Court, Probate Division
        v.                                               The Honorable Steven R.
                                                         Eichholtz, Judge
Eskenazi Health/Midtown                                  The Honorable Kelly M. Scanlan,
CMHC,                                                    Commissioner

Appellee-Petitioner                                      Trial Court Cause No.
                                                         49D08-1803-MH-8810



Altice, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-MH-757 | January 25, 2019                  Page 1 of 15
                                               Case Summary


[1]   T.K. appeals the trial court’s order for involuntary regular commitment, which

      was based on the trial court’s determination that T.K. was mentally ill and

      gravely disabled. T.K. presents a number of issues of which we address only

      two: 1) whether the commitment order is defective because it contained only

      the signature of a commissioner and 2) whether sufficient evidence supported

      his involuntary civil commitment.


[2]   We reverse.


                                       Facts & Procedural History


[3]   At the age of fifty-one, T.K. has a long history of schizophrenia, which he does

      not dispute on appeal. He has prior hospitalizations, including involuntary

      commitments, due to his mental health. T.K. had an involuntary temporary

      commitment in 1999, an involuntary regular commitment in 2002, and an

      involuntary temporary commitment in 2011. An involuntary regular

      commitment in 2013 was reversed by our Supreme Court for insufficient

      evidence that T.K. was either dangerous or gravely disabled. Commitment of

      T.K. v. Dep’t of Veterans Affairs, 27 N.E.3d 271 (Ind. 2015).


[4]   On Friday, March 2, 2018, T.K. was taken to Eskenazi Hospital (the Hospital)

      on an immediate detention. The following Monday, the Hospital completed an

      application for emergency detention of mentally ill person, alleging that T.K.

      was extremely paranoid and exhibiting threatening behaviors. The Hospital


      Court of Appeals of Indiana | Memorandum Decision 18A-MH-757 | January 25, 2019   Page 2 of 15
      filed a report following emergency detention with the trial court on March 7,

      2018, along with a physician statement by psychiatrist Aimee Patel. Dr. Patel

      opined that due to his psychiatric disorders, T.K. was both dangerous to others

      and gravely disabled. The Hospital sought an involuntary regular commitment

      of T.K.


[5]   Commissioner Kelly M. Scanlan presided over the commitment hearing held

      on March 9, 2018, and permitted T.K. to represent himself. The Hospital

      presented the testimony of two witnesses, Dr. Patel and Shelley Ulsenheimer,

      an FBI agent. The trial court also took judicial notice of the prior

      commitments. In closing, T.K. noted that he was employed, maintained a

      clean house and two vehicles, and cared for his daily needs.


[6]   Dr. Patel’s testimony was limited because, although she had been T.K.’s

      treating physician for nearly a week, her interactions with him were “very

      brief.” Transcript at 17. Dr. Patel explained that after a few moments, T.K.

      generally began yelling and speaking over her and other doctors. Dr. Patel

      testified that on one occasion she spoke with T.K. as he walked the unit. He

      “became upset midway through and began cursing, referenced a baseball bat

      and told [her] to leave him alone.” Id. at 18.




      Court of Appeals of Indiana | Memorandum Decision 18A-MH-757 | January 25, 2019   Page 3 of 15
[7]   Dr. Patel diagnosed T.K. with schizophrenia, as well as possibly paranoid

      personality disorder and narcissistic personality disorder. 1 As a result of his

      mental illness, Dr. Patel opined that T.K. was gravely disabled due to

      “substantial impairment in judgment and decision making” resulting in

      “difficulty residing independently in the community.” Id. at 24, 20. In this

      regard, Dr. Patel noted generally that T.K.’s “delusions and paranoia have led

      to him having repeated hospitalizations and contacts with the law enforcement

      system.” Id. at 24. Dr. Patel did not elaborate on her assertion regarding T.K.’s

      contacts with law enforcement. Presumably, she was referring to his many calls

      to the FBI and local law enforcement. With respect to the claim of repeated

      hospitalizations, the record reveals no voluntary or involuntary commitments –

      other than the one at hand – after his regular commitment in 2013, which was

      reversed by the Supreme Court. Though opining that T.K. had difficulty

      residing independently, Dr. Patel acknowledged that T.K. had his own

      residence, had income, and took care of his daily needs (eating, personal

      hygiene, and sleeping).


[8]   Regarding an alternative basis for commitment, Dr. Patel testified that she

      believed T.K. was dangerous to others because he had made threats toward her

      and others on the treatment team. Dr. Patel noted that T.K. was agitated on




      1
        T.K. has delusions, paranoia, and grandiose beliefs. In particular, he believes that law enforcement,
      medical personnel, and the government are out to get him. He believes that millions of dollars in patents
      have been stolen from him by the government and that he is being watched, stalked, and harassed by local
      law enforcement and EMS.

      Court of Appeals of Indiana | Memorandum Decision 18A-MH-757 | January 25, 2019                 Page 4 of 15
       the first day of his emergency detention, requiring medication and restraints,

       and that since that time he had made various verbal threats. Medical students

       were kept away from T.K. out of concern for their safety. T.K. refused to take

       his oral medication and lacked insight into his mental illness.


[9]    The Hospital then called Agent Ulsenheimer as a witness for the purpose of

       introducing recordings of nineteen voicemails left for a public affairs specialist

       with a local FBI office. These voicemail recordings, which were admitted over

       T.K.’s objection, each began with the caller identifying himself as T.K. The

       messages were left between February 25 and March 1, 2018, some in the middle

       of the night. They reveal T.K.’s delusional and paranoid thinking. In the

       messages, T.K. indicates that he has been stalked by local law enforcement for

       the last twenty-five years and that his inventions have been stolen. He

       expresses frustration that the FBI is not helping him with the situation and

       indicates that he is going to make all of this public, noting that he has

       accumulated substantial evidence. Notably, the messages contain no threats of

       violence by T.K.


[10]   At the conclusion of the hearing, Commissioner Scanlan found by clear and

       convincing evidence that T.K. suffered from mental illness and was gravely

       disabled. Regarding grave disability, Commissioner Scanlan stated, “he is

       demonstrating a substantial impairment and an obvious deterioration in his

       judgment reasoning and behavior that has resulted in his inability to function

       independently.” Id. at 59. Accordingly, Commissioner Scanlan entered an



       Court of Appeals of Indiana | Memorandum Decision 18A-MH-757 | January 25, 2019   Page 5 of 15
       order of regular commitment based on T.K. being mentally ill and gravely

       disabled.2 T.K. now appeals.


                                              Discussion & Decision


                                                  Defective Order


[11]   We initially address T.K.’s claim that the order for temporary commitment is

       defective because it contains only the signature of Commissioner Scanlan and

       lacked the required judge’s signature. Indeed, Indiana law expressly barred

       Commissioner Scanlan from entering a final appealable order in this case. See

       Ind. Code § 33-23-5-8;3 Capehart v. Capehart, 771 N.E.2d 657, 662 (Ind. Ct. App.

       2002) (“magistrates and commissioners have identical authority”).


[12]   Regardless, T.K. has waived appellate review of this issue because he did not

       object to the commitment order at any point prior to this appeal. 4 “‘[I]t has

       been the long-standing policy of [the Indiana Supreme Court] to view the

       authority of the officer appointed to try the case not as affecting the jurisdiction

       of the court’ – and so ‘the failure of a party to object at trial to the authority of a




       2
        Although asserted by the Hospital as a ground for commitment, Commissioner Scanlan did not find that
       T.K. was a danger to himself or others. Commissioner Scanlan acknowledged evidence of threats but
       observed that there is no evidence that “T.K. had actually tried to harm others.” Id.
       3
         This statute has since been amended, effective July 1, 2018. The amendment removed the limitation
       regarding magistrates (and, thus, commissioners) entering a final appealable order. I.C. § 33-23-5-9(a),
       however, still requires that the court “enter the final order” in instances such as this.
       4
         The order was signed by Commissioner Scanlan on March 9, 2018, and T.K. filed his notice of appeal on
       April 9, 2018. T.K. had ample time between these dates where he could have filed an objection to the fact
       that the commitment order lacked a judge’s signature.

       Court of Appeals of Indiana | Memorandum Decision 18A-MH-757 | January 25, 2019                   Page 6 of 15
       court officer to enter a final appealable order waives the issue for appeal.’” In re

       Adoption of I.B., 32 N.E.3d 1164, 1173 n.6 (Ind. 2015) (quoting Floyd v. State,

       650 N.E.2d 28, 32 (Ind. 1994)); see also City of Indianapolis v. Hicks, 932 N.E.2d

       227, 231 (Ind. Ct. App. 2010) (“defects in the authority of a court officer, as

       opposed to jurisdiction of the trial court itself, to enter a final order will be

       waived if not raised through a timely objection”), trans. denied. “[A]ny

       objection to the authority of an adjudicative officer must be raised at the first

       instance the irregularity occurs, or at least within such time as the tribunal is

       able to remedy the defect.” Hicks, 932 N.E.2d at 231.


                                        Sufficiency of the Evidence


[13]   In an involuntary regular commitment case, the petitioner is required to prove

       by clear and convincing evidence: “(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) (emphasis supplied); see

       also T.K., 27 N.E.3d at 273. The trial court’s order of commitment in this case

       declared that T.K. was mentally ill and gravely disabled. On appeal, T.K. does

       not challenge the finding regarding his mental illness, but he contends that the

       “gravely disabled” element was not proven by clear and convincing evidence.


[14]   Our Supreme Court has observed that civil commitment proceedings serve both

       to protect the public and to ensure the rights of the person whose liberty is at

       stake. Id. To satisfy the requirements of due process in commitment

       proceedings, the facts justifying the commitment must be shown by clear and


       Court of Appeals of Indiana | Memorandum Decision 18A-MH-757 | January 25, 2019   Page 7 of 15
       convincing evidence. Id. This heightened standard “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.” Id. (quoting Commitment of J.B. v. Midtown

       Mental Health Ctr., 581 N.E.2d 448, 450 (Ind. Ct. App. 1991), trans. denied).


[15]   In reviewing the sufficiency of the evidence supporting an involuntary civil

       commitment, we consider the probative evidence and reasonable inferences

       supporting the order, without reweighing the evidence or assessing witness

       credibility. Id. We will affirm if a reasonable trier of fact could find the

       necessary elements proven by clear and convincing evidence. Id. “Clear and

       convincing evidence requires the existence of a fact to be highly probable.”

       Civil Commitment of J.B. v. Cmty. Hosp. N., 88 N.E.3d 792, 795 (Ind. Ct. App

       2017). “There is no constitutional basis for confining a mentally ill person who

       is not dangerous and can live safely in freedom.” J.B., 581 N.E.2d at 451.


[16]   The issue presented in this case is whether, considering the probative evidence

       and reasonable inferences favorable to the judgment, a reasonable trier of fact

       could have found by clear and convincing evidence that T.K. was gravely

       disabled.5 “Gravely disabled” is defined as:




       5
        Dangerousness is not at issue because the trial court did not make such a finding to support the
       commitment order.

       Court of Appeals of Indiana | Memorandum Decision 18A-MH-757 | January 25, 2019                     Page 8 of 15
               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.


       Ind. Code § 12-7-2-96. This case involves subsection 2, as there is no dispute

       that T.K. was able to provide for his daily needs, along with being employed

       and maintaining a home.


[17]   As set forth above, T.K.’s 2013 involuntary regular commitment was

       overturned by our Supreme Court based on insufficient evidence. The

       Department of Veterans Affairs, the petitioner in that case, presented the

       testimony of Dr. Joseph Bishara. Dr. Bishara testified as to T.K.’s mental

       illness and indicated that T.K. was paranoid over a wide range of institutions

       persecuting and targeting him. T.K., 27 N.E.3d at 274. T.K. had been brought

       in on an emergency detention because he had been putting flyers on people’s

       windshields regarding another individual’s criminal record and had gone into a

       clinic and screamed at staff. Dr. Bishara testified that he had observed

       aggressive, disruptive behavior toward another physician and that other patients

       were fearful of T.K. Additionally, T.K.’s son had contacted Dr. Bishara and

       expressed concern over his father’s erratic and aggressive behavior.


       Court of Appeals of Indiana | Memorandum Decision 18A-MH-757 | January 25, 2019   Page 9 of 15
[18]   In reversing T.K.’s 2013 commitment, the Court discussed the element of

       “grave disability” as follows:


               Dr. Bishara’s opinion that T.K. was gravely disabled was based
               on T.K.’s refusal of treatment, T.K.’s denial that he had any
               mental illness problem, and reports that T.K. had been aggressive
               in several areas of his life. The Legislature, however, has defined
               “gravely disabled” as a condition that causes an individual to (1)
               be unable to meet their basic food, clothing, and shelter needs or
               (2) be so obviously impaired in judgment, reasoning, or behavior
               that such individual is unable to function independently. Both
               Dr. Bishara and T.K. testified that T.K. rents his own home, lives
               by himself, holds full-time employment, and owns two vehicles
               while making payments on a third. No evidence was presented
               to dispute his ability to provide food, clothing, or shelter for
               himself. As to whether T.K. was or is gravely disabled, the
               Department points to his refusal to admit he has a mental illness
               or to take medication, but such denial of illness and refusal to
               medicate, 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.”


               In this case, at the time of the commitment hearing in October,
               T.K. had not been on medication since April, and in that six
               months T.K. had secured full-time employment and started
               renting a home. We do not weigh into the efficacy of whether
               medication is appropriate for T.K., but the evidence in this case
               has not clearly and convincingly shown that T.K.’s refusal to take
               medication and recognize his illness constitutes grave disability
               by resulting in such a “substantial impairment or an obvious
               deterioration of [T.K.’s] judgment, reasoning, or behavior that ...
               [he is unable] to function independently.” Ind. Code § 12-7-2-
               96(2). The most favorable testimony to the trial court’s decision
               is that T.K. was aggressive, loud, talked in a coarse manner that
               was inappropriate, and proactively sought to shame someone by
       Court of Appeals of Indiana | Memorandum Decision 18A-MH-757 | January 25, 2019   Page 10 of 15
               placing flyers on people’s windshields. While we certainly do
               not condone such behavior and would like to see cooperation
               between T.K. and medical professionals, the 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 276-77 (citations omitted); see also Commitment of M.E. v. Dep’t of Veterans

       Affairs, 64 N.E.3d 855, 863 (Ind. Ct. App. 2016) (“M.E.’s aggression, paranoia,

       and confrontational attitude do not establish an inability to function

       independently under the law.”), disapproved on other grounds by A.A. v. Eskenazi

       Health/Midtown CMHC, 97 N.E.3d 606, 611 (Ind. 2018).


[19]   In this case, Dr. Patel’s opinion that T.K. was gravely disabled was based on

       her general observation that T.K.’s “delusions and paranoia have led to him

       having repeated hospitalizations and contacts with the law enforcement

       system.” Transcript at 24. Dr. Patel did not further elaborate on this statement,

       and there was no evidence presented of hospitalizations since the 2013

       commitment that was reversed on appeal or details regarding T.K.’s contacts

       with law enforcement.


[20]   Like the previous case, there was evidence presented that T.K. had been loud

       and verbally aggressive during the emergency commitment. Further, in the five


       Court of Appeals of Indiana | Memorandum Decision 18A-MH-757 | January 25, 2019   Page 11 of 15
       days leading up to his most-recent commitment, T.K. left nineteen voicemail

       messages for an FBI official, expressing his delusional and paranoid thoughts

       and his dissatisfaction with the FBI’s failure to assist him. These voicemail

       messages clearly evidence T.K.’s mental illness and paranoid delusions

       regarding the government. But I.C. § 12-7-2-96(2) requires more than paranoid

       judgment, reasoning, or behavior to establish grave disability. The Hospital

       was required to establish by clear and convincing evidence T.K.’s inability to

       function independently as a result. The Hospital wholly failed in this regard.

       The messages left by T.K. were no doubt annoying to the FBI public affairs

       specialist receiving them, but at no point did T.K. threaten violence. Rather, he

       threatened to publicize the government’s behavior and the FBI’s lack of action.

       While misguided, the messages do not evidence an inability to function

       independently, nor do T.K.’s general discontent and rudeness during this recent

       involuntary commitment.


[21]   We are compelled to conclude that the evidence presented by the Hospital does

       not establish by clear and convincing evidence that T.K.’s mental impairment

       or deterioration of judgment, reasoning, or behavior had resulted in his inability

       to function independently. T.K.’s delusions and paranoia are obvious and long-

       standing, and his mental illness has led to inappropriate behavior and repeated

       calls to the FBI. T.K.’s behavior continues to be abrasive, boisterous, irritating,

       and idiosyncratic, but there is no support in the evidence for a commitment




       Court of Appeals of Indiana | Memorandum Decision 18A-MH-757 | January 25, 2019   Page 12 of 15
       based on grave disability. Thus, we conclude that T.K.’s civil commitment was

       improper.6


[22]   Judgment reversed.


       Brown, J., concurs.


       Tavitas, J., dissents with opinion.




       6
        Because we reverse on insufficient evidence grounds, we do not reach T.K.’s three remaining evidentiary
       and due process claims.

       Court of Appeals of Indiana | Memorandum Decision 18A-MH-757 | January 25, 2019               Page 13 of 15
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       In the Matter of The Civil                               Court of Appeals Case No.
       Commitment of:                                           18A-MH-757

       T.K.,
       Appellant-Respondent,

               v.

       Eskenazi Health/Midtown
       CMHC,
       Appellee-Petitioner




       Tavitas, Judge, dissenting.


[23]   I respectfully dissent. I would concur with the majority’s result if the trial

       court’s order was a final appealable order, but I part with the majority on the

       same grounds stated in my dissenting opinion in In Re Civil Commitment of T.W.,

       No. 18A-MH-1148, slip op. at pp. 13-20 (Ind. Ct. App. Nov. 21, 2018). In my

       opinion, the commitment order is defective. By issuing a blanket order, which

       summarily approved all recommendations of the court commissioner without

       specifically reviewing the case(s) and approving the commissioner’s

       recommendations, the trial court delegated its duty to render final decisions to

       the commissioner without statutory authority.




       Court of Appeals of Indiana | Memorandum Decision 18A-MH-757 | January 25, 2019      Page 14 of 15
[24]   I disagree with the majority’s conclusion that this issue is waived. Finding

       waiver penalizes the respondent for failing to “timely” urge the trial court judge

       to perform his statutory duty. A litigant cannot waive a trial court judge’s

       exercise of statutory responsibility. Such abdication by trial court judges should

       not be litigants’ and appellate courts’ problem to resolve.


[25]   Accordingly, I would remand to the trial court judge for review and approval of

       the commissioner’s recommended order for temporary commitment.




       Court of Appeals of Indiana | Memorandum Decision 18A-MH-757 | January 25, 2019   Page 15 of 15
