                                                                                 FILED
                                                                             Dec 13 2018, 8:39 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court



      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Valerie K. Boots                                          Jenny R. Buchheit
      Marion County Public Defender Agency                      Stephen E. Reynolds
      – Appellate Division                                      Gregory W. Pottorff
      Indianapolis, Indiana                                     Ice Miller, LLP
      Joel M. Schumm                                            Indianapolis, Indiana
      Indianapolis, Indiana




                                                 IN THE
          COURT OF APPEALS OF INDIANA

      In the Matter of the Civil                                December 13, 2018
      Commitment of A.M.,                                       Court of Appeals Case No.
                                                                18A-MH-636
      A.M.
                                                                Appeal from the Marion Superior
      Appellant-Respondent,                                     Court
              v.                                                The Honorable Kelly M. Scanlan,
                                                                Commissioner
      Community Health Network,                                 Trial Court Cause No.
      Inc.,                                                     49D08-1802-MH-7271

      Appellee-Petitioner.




      Mathias, Judge.


[1]   A.M. appeals the Marion Superior Court’s order of temporary involuntary

      commitment. A.M. raises two arguments, which we restate as:

        I. Whether the order is defective because it was only signed by the master
           commissioner, and not the trial judge; and,
      Court of Appeals of Indiana | Opinion 18A-MH-636 | December 13, 2018                           Page 1 of 15
          II. Whether the temporary involuntary commitment was supported by clear
              and convincing evidence of grave disability.

[2]   We affirm.


                                      Facts and Procedural History
[3]   A.M. is a forty-eight-year-old woman who suffers from a schizophrenia

      spectrum disorder.1 On or about February 21, 2018, A.M. was in the lobby of

      an Indianapolis Hampton Inn and was exhibiting disorganized behavior and

      thoughts. After concluding that A.M. needed medical treatment, a law

      enforcement officer transported her to Community North Hospital (“the

      Hospital”).


[4]   A.M. was examined by Dr. Shilpa Puri, and on February 22, 2018, the Hospital

      filed an Application for Emergency Detention. The Hospital alleged that A.M.

      was suffering from a psychiatric disorder “which substantially disturbs her

      thinking, feeling or behavior and impairs her ability of function.” Appellant’s

      App. p. 12. The Hospital specifically alleged that A.M. was either dangerous to

      herself or others or gravely disabled “as evidenced by disorganized behavior

      and thoughts and paranoid delusions. [A.M.] was very disheveled and

      malodorous upon admission indicating that she has not been taking care of her

      hygiene. She has been refusing all medication and labs.” Id.




      1
          A.M. was previously hospitalized in 2015 for acute agitation and suicidal ideations. Tr. p. 6.

      Court of Appeals of Indiana | Opinion 18A-MH-636 | December 13, 2018                                 Page 2 of 15
[5]   Five days later, the Hospital filed a “Report Following Emergency Detention”

      and alleged that A.M. was suffering from “unspecified schizophrenia spectrum

      and other psychotic disorder and is dangerous[.]” Id. at 14. The Hospital

      recommended that A.M. be detained pending the hearing. The accompanying

      physician’s statement alleged that A.M. was both dangerous to herself and

      others and gravely disabled. Dr. Puri believed that A.M. was “in need of

      custody, care, or treatment in an appropriate facility,” that “[o]utpatient

      treatment would be adequate,” and “[c]ommitment would not be necessary if

      this person were taking medication.” Id. at 17. Dr. Puri advised that A.M.

      refused to begin voluntary treatment. Therefore, the Hospital requested a

      temporary involuntary commitment not to exceed ninety days.

[6]   The commitment hearing was held on March 1, 2018, before Commissioner

      Scanlan. Dr. Puri testified that when A.M. was admitted to the Hospital, she

      “was jumping from topic to topic” and displayed “very disorganized behavior.”

      Tr. p. 6.


              She would throw a bunch of food and jigsaw piece[s] all over her
              room. She wasn’t showering, taking care of her hygiene. She was
              expressing grandiose delusions about her being on a neuro-
              science committee for Eli Lilly. Traveling to different countries
              for conferences. As well as paranoid delusions about the police
              being after her.


      Id.



      Court of Appeals of Indiana | Opinion 18A-MH-636 | December 13, 2018      Page 3 of 15
[7]   Dr. Puri examined A.M. eleven times from February 22 to March 1, 2018,

      including the morning of the hearing. She diagnosed A.M. with unspecified

      schizophrenia based on the following observations:


              [T]he patient was displaying very disorganized thoughts, jumping
              from topic to topic, no clear condition there. Disorganized
              behavior including the jigsaw puzzles and food being spread out
              all over her room. She would intermittently yell on the unit, for
              no apparent reason. She has been seen talking to her food. Been
              seen talking to herself, having auditory hallucinations as well as
              those grandiose delusions and the paranoid delusions that I
              mentioned earlier.


      Id. at 7. Dr. Puri testified that A.M. lacks insight into her mental illness, which

      “affect[s] her ability to seek care” and take medications. Id. at 8. Dr. Puri stated

      that A.M. missed sixteen doses of her medication. Id. Dr. Puri does not believe

      that A.M. will take medication unless she is hospitalized.

[8]   Dr. Puri also testified that A.M. is not able to provide herself with food,

      clothing and shelter.2 She was not aware whether A.M. had income or a place

      to live prior to her hospital admission, and A.M. was not employed. A.M.’s

      appearance is “disheveled,” and she does not shower or brush her teeth. Id. at




      2
        A.M. testified that she makes money from writing and she has friends and family that allow her to live with
      them. Tr. p. 18. She also testified that she gives herself a sponge bath but will not shower at the hospital
      because the water is cold. Id. at 19.

      Court of Appeals of Indiana | Opinion 18A-MH-636 | December 13, 2018                             Page 4 of 15
      8–9. To the doctor’s knowledge, A.M. does not have anyone who can assist her

      in meeting her basic needs.

[9]   The following exchange occurred at the hearing concerning the extent of

      A.M.’s mental illness:

              Question: Does Miss M suffer a substantial impairment or an
              obvious deterioration of her judgment, reasoning or behavior that
              results in her inability to function independently?

              Dr. Puri: Yes.

              Question: And how does the unspecified schizophrenia affect her
              ability to function independently?

              Dr. Puri: [She] is unable to take care of her hygiene. She hasn’t
              been showering; very malodorous. Unable to provide shelter for
              her as to my knowledge.

              Question: So if she were released, you . . . think that based on her
              behavior that she wouldn’t be able to function?

              Dr. Puri: I don’t believe so.

              Question: Okay. And are there any other behaviors that she’s
              exhibited that support your opinion that you haven’t mentioned?

              Dr. Puri: Those are the ones.

              Question: And based on your treatment of Miss M, is she gravely
              disabled?

              Dr. Puri: Yes.

              Question: Is this opinion based on her chronic mental illness?

              Dr. Puri: Yes.

      Court of Appeals of Indiana | Opinion 18A-MH-636 | December 13, 2018        Page 5 of 15
               Question: Based on your examination, treatment and contact
               with Miss M. do you believe that she presents a substantial risk
               that she will harm herself?

               Dr. Puri: Yes.

               Question: And what is the basis for your opinion?

               Dr. Puri: She has been displaying disorganized thoughts and
               behaviors as well as auditory hallucinations. So based on that she
               poses a potential risk for her listening to the auditory
               hallucinations and potentially harming herself.

       Id. at 9–10.


[10]   Dr. Puri also testified that there is a substantial risk that A.M. will harm others

       based on an incident with the nursing staff at the Hospital on February 26.

       Specifically, A.M. was agitated because the “nursing staff told her to not bring

       food into her room. She started yelling and pacing the hallways. She required

       PRN medication[,] including Haldol and Ativan to deescalate.” Id. at 11. Dr.

       Puri also stated that A.M.’s “paranoid delusions about the cops being after [her]

       there is some risk of her [h]arming other people.” Id. at 12. If A.M. thinks other

       people are trying to harm her, she “might actually harm other people.” Id.

       However, to Dr. Puri’s knowledge, A.M. has never physically harmed anyone.

       Id. at 17.


[11]   Finally, Dr. Puri stated that a temporary commitment was necessary for A.M.’s

       treatment to improve her condition because A.M. “believes that she is not

       suffering from any sort of psychiatric condition so she has been refusing all


       Court of Appeals of Indiana | Opinion 18A-MH-636 | December 13, 2018       Page 6 of 15
       medications scheduled for her.” Id. at 12. A.M. specifically refused to take

       certain anti-psychotic medications that Dr. Puri recommended to her. Id. at 14.


[12]   The trial court found that A.M. suffers from a mental illness, i.e. unspecified

       schizophrenia spectrum disorder, and that she is gravely disabled. Specifically,

       the court stated that A.M. “has not identified any income that she has or any

       particular place for her to stay and she is demonstrating a substantial

       impairment or obvious deterioration of her judgment, reasoning and behavior

       that has affected her ability to function independently.” Id. at 29–30. Therefore,

       the court ordered an involuntary, temporary commitment until May 20, 2018,

       unless discharged prior.


[13]   The commissioner issued the findings and signed the March 1, 2018 order

       involuntarily committing A.M. The trial judge did not sign the order. The trial

       judge issued an “approval order” on March 2 under a separate cause number

       approving of all of the orders entered by his commissioner on March 1, 2018.

       The approval order is not listed in the Chronological Case Summary (“CCS”)

       of these proceedings.

[14]   A.M. now appeals.3




       3
        This court held oral argument in this case on November 19, 2018, at Hamilton Southeastern High School in
       Fishers, Indiana. We thank the staff, administration, and students for their gracious hospitality, and
       particularly extend our gratitude to Janet Chandler and Mary Armstrong. We also commend counsel for the
       excellence of their oral and written advocacy.

       Court of Appeals of Indiana | Opinion 18A-MH-636 | December 13, 2018                         Page 7 of 15
                                            The Unsigned Order

[15]   A.M. argues that we should temporarily stay this case and remand to the trial

       court for further proceedings because the temporary involuntary commitment

       order was signed only by a commissioner and not the judge.4 On the date the

       order was issued, Indiana law expressly barred Commissioner Scanlan from

       entering a final appealable order in this case. See Ind. Code § 33-23-5-8.5

       However, the Hospital argues that A.M. waived her challenge to the validity of

       the commitment order because she did not object to the commitment order

       before pursuing her appeal.

[16]   “‘[I]t has been the long-standing policy of [the Indiana Supreme Court] to view

       the authority of the officer appointed to try a 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 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,




       4
         This has been a recurring issue in this trial court. However, in the following memorandum decisions, our
       court concluded that the patient waived the issue by failing to timely object that the commitment order was
       not signed by the trial judge. See C.H. v. Options Behavioral Health System, 18A-MH-638, 2018 WL 5943704
       (Ind. Ct. App. Nov. 14, 2018) (three consolidated appeals), A.L. v. St. Vincent Hosp. & Health Care Ctr., 18A-
       MH-1147, 2018 WL 4907037 (Ind. Ct. App. Oct. 10, 2018) and D.H. v. Eskenazi Health, 18A-MH-635, 2018
       WL 4558304 (Ind. Ct. App. Sept. 19, 2018).
       5
         Effective July 1, 2018, the statute was amended to remove the limitation regarding magistrates (and, thus,
       commissioners) from entering a final appealable order. However, Indiana Code section 33-23-5-9(a) still
       requires that the trial court “enter the final order” in instances such as this.

       Court of Appeals of Indiana | Opinion 18A-MH-636 | December 13, 2018                               Page 8 of 15
       932 N.E.2d 227, 231 (Ind. Ct. App. 2010) (stating that “defects in the authority

       of a court officer, as opposed to the 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.


[17]   Therefore, when a party seeks to object that a magistrate or commissioner, but

       not the judge, signed the final order, the party must file a motion to correct

       error or other similar motion before the notice of appeal is filed. However, this

       is inconsistent with Trial Rule 59(A) which provides that a motion to correct

       error is a not a prerequisite for appeal unless the party seeks to address newly

       discovered material evidence or a claim that a jury verdict is excessive or

       inadequate. The rule explicitly states that “[a]ll other issues and grounds for

       appeal appropriately preserved during trial may be initially addressed in the

       appellate brief.” Ind. Trial Rule 59(A).


[18]   We acknowledge this inconsistency, but we are constrained to follow precedent

       and conclude that A.M. waived her argument that the order is defective because

       it was not signed by a judge.6 See also In the Matter of A.M., 959 N.E.2d 832, 834

       n.1 (Ind. Ct. App. 2011) (concluding that A.M. waived the issue because she



       6
        Because we conclude that the issue is waived, we decline to address the Hospital’s argument that A.M.’s
       argument is moot because Indiana Code section 33-23-5-8 was amended effective July 1, 2018.

       Court of Appeals of Indiana | Opinion 18A-MH-636 | December 13, 2018                           Page 9 of 15
       failed to timely object that the commitment order was signed only by the

       magistrate), disapproved of on other grounds by P.B. v. Evansville State Hospital, 90

       N.E.3d 1199 (Ind. Ct. App. 2017); but see L.J. v. Health and Hospital Corp., 2018

       WL 5075089, Slip op. at 3 n.4 (Ind. Ct. App. Oct. 18, 2018) (declining to

       address the waiver argument).


                                   Evidence of Grave Disability

[19]   A.M. also argues that the Hospital failed to present clear and convincing

       evidence that she is gravely disabled.7 In this regard, our court has previously

       observed that “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.” In re

       Commitment of Roberts, 723 N.E.2d 474, 476 (Ind. Ct. App. 2000).


               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 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.




       7
        A.M.’s 90-day temporary commitment has expired, but her appeal is not moot. See M.Z. v. Clarian Health
       Partners, 829 N.E.2d 634, 637 (Ind. Ct. App. 2005), trans. denied.

       Court of Appeals of Indiana | Opinion 18A-MH-636 | December 13, 2018                         Page 10 of 15
       Civil Commitment of T.K. v. Dep’t of Veterans Affairs, 27 N.E.3d 271, 273 (Ind.

       2015) (internal citations and quotations omitted).


[20]   The Hospital was required to prove by clear and convincing evidence that A.M.

       is mentally ill and either dangerous or gravely disabled and that detention or

       commitment of A.M. is appropriate. See Ind. Code § 12-26-2-5(e). When we

       review the sufficiency of the evidence to support a civil commitment, “‘an

       appellate court will 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.’” Commitment of M.E. v. Dep’t of

       Veterans Affairs, 64 N.E.3d 855, 861 (Ind. Ct. App. 2016) (quoting T.K., 27

       N.E.3d at 273) (internal quotation omitted)), disapproved of on other grounds by

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

       and convincing evidence requires proof that the existence of a fact is “highly

       probable.” Id. “‘There is no constitutional basis for confining a mentally ill

       person who is not dangerous and can live safely in freedom.’” Id. (quoting

       Commitment of J.B. v. Midtown Mental Health Ctr., 581 N.E.2d 448, 451 (Ind. Ct.

       App. 1991)).


[21]   Indiana Code section 12-7-2-96 defines “gravely disabled” as:

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



       Court of Appeals of Indiana | Opinion 18A-MH-636 | December 13, 2018      Page 11 of 15
               (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.


       Because this statute is written in the disjunctive, a trial court’s finding of grave

       disability survives if we find that there was clear and convincing evidence to

       prove either that the individual was unable to provide for his basic needs or that

       her judgment, reasoning, or behavior was so impaired or deteriorated that it

       resulted in her inability to function independently. Commitment of B.J. v. Eskenazi

       Hosp./Midtown CMHC, 67 N.E.3d 1034, 1039 (Ind. Ct. App. 2016).


[22]   It is important to recall that denial of mental illness and refusal to medicate,

       standing alone, are legally insufficient to establish grave disability because they

       do not establish by clear and convincing evidence that the individual is unable

       to function independently. See T.K., 27 N.E.3d at 276. Moreover, since

       everyone exhibits some abnormal conduct at one time or another, “loss of

       liberty [through a commitment] 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).


[23]   A.M. concedes that she is mentally ill but argues that the Hospital failed to

       prove by clear and convincing evidence that she is “in danger of coming to

       harm” as a result of her mental illness. Appellant’s Br. at 10 (citing I.C. § 12-7-

       Court of Appeals of Indiana | Opinion 18A-MH-636 | December 13, 2018       Page 12 of 15
       2-96). Specifically, A.M. claims that her refusal to shower is not clear and

       convincing evidence that she is in danger of coming to harm. A.M. also asserts

       that the hospital failed to prove that she is unable to provide food, clothing and

       shelter for herself. A.M. concedes that she “may not be functioning optimally or

       ideally,” but “‘unusual decisions’ or ‘certain behaviors characteristic of a person

       with [a mental illness]” are not sufficient to uphold an involuntary commitment

       based on grave disability.” Id. at 13 (quoting In the Matter of the Commitment of

       K.F. v. St. Vincent Hosp. and Health Care Ctr., 909 N.E.2d 1063, 1067 (Ind. Ct.

       App. 2009), disapproved on other grounds by T.K., 27 N.E.3d at 274).


[24]   The Hospital argues that Dr. Puri’s testimony is sufficient to meet the clear and

       convincing evidence standard. Dr. Puri testified that as a result of her mental

       illness, A.M. is unable to function independently. Tr. p. 9. A.M. admitted that

       she lacks income and lives a transient lifestyle. A.M. does not properly care for

       her hygiene, and she throws and talks to her food. A.M. denies her mental

       illness and refuses to take her medication. Importantly, although the last two

       factors are, standing alone, insufficient to establish grave disability, they may

       still be considered in determining whether A.M. is gravely disabled.


[25]   A.M. attempts to analogize her case to other cases reversing temporary

       commitments because there was insufficient evidence to establish that the

       patient was gravely disabled. In T.K., there was no evidence presented to

       dispute the patient’s ability to provide food, clothing and shelter for himself

       because he was employed, owned two vehicles and rented his own home. 27

       Court of Appeals of Indiana | Opinion 18A-MH-636 | December 13, 2018      Page 13 of 15
       N.E.3d at 276. In M.E., the patient was able to function independently, ate

       properly, lived alone in his rented apartment and was able to clothe himself,

       and the petitioning hospital’s reliance on M.E.’s past behavior could not be

       utilized at the time of the commitment hearing to establish grave disability. 64

       N.E.3d at 862–63. Finally, in K.F., the petitioning hospital presented only the

       doctor’s equivocal testimony concerning whether the patient was able to

       function independently, there was no concern about her ability to care for her

       basic needs, and K.F.’s husband and son testified that she could function

       independently. 909 N.E.2d at 1066–67.

[26]   In contrast, A.M. is admittedly transient and does not have a stable income or

       shelter. And Dr. Puri testified that if A.M. were released from the Hospital, she

       would not be able to function independently. Also, and quite importantly, the

       Hospital was required to forcibly administer two psychotropic medications to

       de-escalate A.M.’s behavior while under her emergency commitment. Under

       these facts and circumstances, we conclude that the Hospital presented clear

       and convincing evidence that as a result of her mental illness, A.M. is gravely

       disabled because she is in danger of coming to harm from her inability to

       function independently.


                                                 Conclusion
[27]   Under controlling precedent, A.M. waived her claim that the temporary

       involuntary commitment order is defective, because she did not raise the

       argument in the trial court. Further, we affirm the trial court’s commitment
       Court of Appeals of Indiana | Opinion 18A-MH-636 | December 13, 2018    Page 14 of 15
       order because we conclude that the order is supported by clear and convincing

       evidence of grave disability.

[28]   Affirmed.


       Bradford, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 18A-MH-636 | December 13, 2018   Page 15 of 15
