MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Apr 29 2020, 11:17 am

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


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Deborah Markisohn                                       Bryan H. Babb
Marion County Public Defender Agency                    Sarah T. Parks
Indianapolis, Indiana                                   Bose McKinney & Evans LLP
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Civil                              April 29, 2020
Commitment of:                                          Court of Appeals Case No.
B.J.,                                                   19A-MH-2523
Appellant-Respondent,                                   Appeal from the Marion Superior
                                                        Court
        v.                                              The Honorable Amy Jones,
                                                        Special Judge
Health & Hospital Corporation                           Trial Court Cause No.
of Marion County d/b/a                                  49D08-1909-MH-39411
Eskenazi Health Midtown
Community Mental Health,
Appellee-Petitioner,



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-MH-2523 | April 29, 2020                  Page 1 of 9
                                Case Summary and Issue
[1]   B.J. appeals the trial court’s order of involuntary regular commitment at

      Eskenazi Health Midtown Community Mental Health (“Eskenazi”). He raises

      one issue which we restate as whether there was sufficient evidence to support a

      special condition to his order of commitment. Concluding that the evidence is

      insufficient to support such a special condition, we affirm in part, reverse in

      part, and remand with instructions.



                            Facts and Procedural History
[2]   B.J. is thirty-nine years old, has a history of mental illness, and lives with his

      parents. In early 2019, B.J. was released from a one-year commitment during

      which he took his prescribed medication and had therapy monthly. Upon being

      discharged, he stopped taking his medication and his behavior became

      increasingly worse to a point where his parents were “fearful that he would

      harm [them].” [Transcript], Volume II at 17. Multiple times each day, B.J.

      would walk to a neighborhood playground where he would curse, use vulgar

      language, and yell; this concerned his neighbors, and some had considered

      calling the police. In September 2019, B.J.’s father filed an Application for

      Emergency Detention of Mentally Ill and Dangerous Person (“Application”)

      with Eskenazi alleging B.J. was suffering from a psychiatric disorder. See

      Appellant’s Appendix, Volume II at 13. Dr. Gregory Singleton, a doctor with

      Eskenazi, filed a Physician’s Emergency Statement in support of the

      Application. After reviewing the Application and the Physician Statement, the

      Court of Appeals of Indiana | Memorandum Decision 19A-MH-2523 | April 29, 2020   Page 2 of 9
      trial court issued an order for B.J. to be admitted to Eskenazi on an emergency

      detention and set the matter for a commitment hearing on September 26, 2019.


[3]   At the commitment hearing, the trial court heard testimony from Dr. Carley

      Niehaus, Dr. Kenneth Smith, B.J.’s father, and B.J. Dr. Niehaus testified that

      B.J. suffered from Schizoaffective Disorder. Dr. Smith testified that B.J. made

      multiple threats to physically harm Dr. Smith and members of Dr. Smith’s

      family. Drs. Niehaus and Smith both believed that B.J. was gravely disabled

      and dangerous to others as a result of his mental illness. B.J. testified,


              I am sober. I am drug free. And I am clear headed and not sick. I
              . . . was affiliated with this guy who was in the [Alcoholics
              Anonymous] program and I do not really appreciate their antics
              to be honest. But anyway, I think you are going to do the right
              thing today, judge.


      Tr., Vol. II at 22. After hearing the evidence, the trial court found that B.J.

      suffers from Schizoaffective Disorder, is dangerous to himself or others, is

      gravely disabled, and is in need of custody, care and treatment at Eskenazi. The

      trial court ordered the regular commitment of B.J., involuntarily committing

      him to Eskenazi. The trial court also imposed five special conditions made part

      of the regular commitment, which included a mandate prohibiting B.J. from

      consuming “alcohol or drugs, other than those prescribed by a certified medical




      Court of Appeals of Indiana | Memorandum Decision 19A-MH-2523 | April 29, 2020   Page 3 of 9
      doctor[,]” when he attains outpatient status.1 Appealed Order at 2. B.J. now

      appeals.



                                   Discussion and Decision
                                        I. Standard of Review
[4]   Civil commitment proceedings have two purposes: to protect the public and to

      ensure the rights of the person whose liberty is at stake. P.B. v. Evansville State

      Hosp., 90 N.E.3d 1199, 1202 (Ind. Ct. App. 2017). When reviewing the

      sufficiency of the evidence supporting a special condition in a civil commitment

      case, we look only to the evidence most favorable to the judgment and any

      reasonable inferences therefrom. M.L. v. Eskenazi Health/Midtown Mental Health

      CMHC, 80 N.E.3d 219, 223 (Ind. Ct. App. 2017). We will not reweigh the

      evidence or judge the credibility of the witnesses. Id. at 223-24. The burden rests

      upon the petitioner—in this case, Eskenazi—to present sufficient evidence to

      support the imposition of a special condition. Id. at 223.


                                II. Sufficiency of the Evidence
[5]   B.J. contends there was insufficient evidence that the special condition

      prohibiting him from consuming alcohol or non-prescribed drugs bore a




      1
        The trial court also imposed as special conditions that B.J.: 1) take all medications as prescribed, 2) attend
      all clinic sessions as scheduled, 3) maintain his address and phone number with the trial court and designated
      facility, and 4) not harass or assault family members or others. B.J. does not challenge any of these special
      conditions and therefore, we do not address them.

      Court of Appeals of Indiana | Memorandum Decision 19A-MH-2523 | April 29, 2020                       Page 4 of 9
      reasonable relationship to his mental health treatment or to the protection of the

      public. See Brief of the Appellant at 10. We agree.


[6]   A trial court may impose special conditions on an individual who is

      involuntarily committed upon release to outpatient care. Commitment of M.M. v.

      Clarian Health Partners, 826 N.E.2d 90, 99 (Ind. Ct. App. 2005), trans. denied; see

      also Ind. Code § 12-26-14-3(4). However, the special conditions “must be

      reasonably designed to protect the individual as well as the general public.”

      Golub v. Giles, 814 N.E.2d 1034, 1041 (Ind. Ct. App. 2004), trans. denied. There

      must be sufficient evidence in the record for the trial court to conclude that the

      special condition “bears a reasonable relationship” to the committed

      individual’s treatment. Id.


[7]   We first addressed the validity of special conditions of commitment in Golub v.

      Giles. There, Golub suffered from a bipolar disorder with psychotic symptoms.

      Golub had a well-documented history of behavior that included, inter alia,

      lunging at a hotel manager, threatening his family members, discussing suicide,

      and “exhibiting unpredictability that evinced a potential to strike out physically

      in frustration and anger.” 814 N.E.2d at 1037. Following a commitment

      hearing, the trial court issued an order of regular commitment and imposed six

      special conditions, including a condition that Golub not use alcohol or drugs,

      other than those prescribed by a certified medical doctor. Golub appealed and

      with respect to the condition prohibiting him from consuming alcohol or drugs,

      we noted the record was “devoid of any evidence showing that Golub used or

      abused alcohol or drugs” nor was “the subject of alcohol and drug use . . . at

      Court of Appeals of Indiana | Memorandum Decision 19A-MH-2523 | April 29, 2020   Page 5 of 9
      issue at any time during the hearing[.]” Id. at 1041. We concluded that the

      condition was improperly imposed because there was no evidence in the record

      suggesting the “prohibition bears any relationship at all to Golub’s treatment or

      the protection of the public.” Id. at 1042.


[8]   Two Indiana cases have since followed the standard set forth in Golub. In

      Commitment of M.M., M.M. suffered from bi-polar mania and was admitted as

      an inpatient at Methodist Hospital in their psychiatric unit. On appeal, M.M.

      argued, the hospital conceded, and we agreed that the condition prohibiting

      M.M. from consuming alcohol or drugs was improper because there was “no

      evidence in the record to suggest that such a prohibition [bore] any relationship

      to M.M.’s treatment or the protection of the public[.]” 826 N.E.2d at 99.

      Similarly, in M.L., M.L. suffered from bi-polar mania and was admitted to

      Eskenazi on an emergency detention. At the evidentiary hearing, a doctor from

      Eskenazi testified that he was dangerous both to himself and others. When

      asked on direct examination whether M.L. used alcohol or drugs, the doctor

      responded that he did not. However, the doctor still requested that the trial

      court impose a special condition prohibiting M.L. from using alcohol or drugs,

      other than those prescribed by a certified doctor. The trial court agreed and

      imposed that special condition. On appeal, we struck the special condition

      prohibiting M.L. from consuming alcohol or drugs from the order of

      commitment, noting that “the record [was] barren as to M.L.’s use of alcohol or

      drugs and there [was] no suggestion that the special condition [bore] any

      relationship to M.L.’s treatment or the protection of the public.” 80 N.E.3d at


      Court of Appeals of Indiana | Memorandum Decision 19A-MH-2523 | April 29, 2020   Page 6 of 9
      224. Eskenazi argued that “[i]t should be obvious that M.L.’s use of alcohol or

      drugs would have exacerbated his conditions of grave disability and

      dangerousness.” Id. But we rejected that argument, explaining that Eskenazi

      did not present any evidence supporting the “obvious” statement. Id.


[9]   Likewise here, the record is devoid of any evidence as to B.J.’s use of alcohol or

      non-prescribed drugs and there is no evidence in the record that the special

      condition bears any relationship to B.J.’s treatment or to the protection of the

      public. Unlike the doctor in M.L., neither Dr. Niehaus nor Dr. Smith was asked

      about B.J.’s alcohol or drug use or requested that the trial court prohibit such

      activity. The subject of alcohol or drugs was never raised by Eskenazi or the

      trial court, nor did the trial court make a finding that B.J. had an alcohol or

      drug problem. When B.J.’s father testified, he did not mention use of alcohol or

      drugs as an explanation for B.J.’s behavior. Instead, he believed that B.J.’s

      behavior was a result of his psychiatric disorder. Eskenazi claims that B.J.’s

      assertion at the commitment hearing that he was sober, drug free, and affiliated

      with a person in the Alcoholics Anonymous program supports the inference

      that he used alcohol or drugs in the past and thus, supports the special

      condition. See Brief of Appellee at 5-6. But B.J.’s statements alone, without

      more, cannot serve as the basis to suggest that he previously used alcohol or

      drugs such that a special condition prohibiting him from consuming alcohol or

      non-prescribed drugs is appropriate and we cannot speculate as to the

      connection. The burden, as we have stated, is on Eskenazi to establish that

      connection. See M.L., 80 N.E.3d at 223. Moreover, Eskenazi failed to present


      Court of Appeals of Indiana | Memorandum Decision 19A-MH-2523 | April 29, 2020   Page 7 of 9
       evidence showing how the special condition bore any relationship to the

       protection of the public. Similar to the patients in Golub, Commitment of M.M.,

       and M.L., B.J. exhibited threatening and dangerous behavior to his family and

       the public. But, as in those three cases, Eskenazi as the petitioner did not

       present any evidence that would demonstrate a clear nexus between B.J.’s

       threatening and dangerous behavior and substance use. In fact, Dr. Niehaus

       testified that B.J.’s symptoms of Schizoaffective Disorder—delusions,

       disorganized speech, auditory hallucinations, mania, and mood episodes—are

       “not better explained by another medical condition or substance use.” Tr., Vol. II

       at 8 (emphasis added).


[10]   In sum, Eskenazi has failed to meet its burden of presenting evidence to support

       the imposition of the special condition prohibiting B.J. from consuming alcohol

       or drugs, other than those prescribed by a certified medical doctor. Eskenazi

       also failed to show how the prohibition bore any relationship to B.J.’s treatment

       or to the protection of the public. The trial court improperly imposed the special

       condition and therefore, we reverse that part of the trial court’s judgment and

       remand with instructions to strike the special condition prohibiting B.J. from

       consuming alcohol or non-prescribed drugs once he attains outpatient status.

       The remainder of the commitment order is affirmed.



                                              Conclusion
[11]   There is insufficient evidence to support the special condition prohibiting B.J.

       from consuming alcohol or non-prescribed drugs when he attains outpatient

       Court of Appeals of Indiana | Memorandum Decision 19A-MH-2523 | April 29, 2020   Page 8 of 9
       status. Accordingly, we reverse that part of the trial court’s judgment imposing

       the special condition prohibiting B.J. from consuming alcohol or non-

       prescribed drugs and affirm the remainder of the Order of Regular

       Commitment.


[12]   Affirmed in part, reversed in part, and remanded with instructions.


       May, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-MH-2523 | April 29, 2020   Page 9 of 9
