MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                  Feb 10 2015, 10:42 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Carlos I. Carrillo                                       Gregory F. Zoeller
Lafayette, Indiana                                       Attorney General of Indiana
                                                         Kyle Hunter
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

In Re: The Matter of the                                 February 10, 2015
Commitment of T.S.                                       Court of Appeals Cause No.
                                                         79A05-1406-MH-260
T.S.,
                                                         Appeal from the Tippecanoe Circuit
Appellant-Respondent,                                    Court.
                                                         The Honorable Donald L. Daniel,
        v.                                               Judge.
                                                         Cause No. 79C01-0402-MH-8
Logansport State Hospital,
Appellee-Plaintiff




Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 79A05-1406-MH-260 | February 10, 2015   Page 1 of 12
                                   STATEMENT OF THE CASE
[1]   Appellant-Respondent, T.S., appeals the trial court’s Order of Regular

      Commitment after a Review Hearing, ordering his continued involuntary

      commitment at Logansport State Hospital.


[2]   We affirm.


                                                   ISSUES

[3]   T.S. raises two issues on appeal, which we restate as follows:


      (1) Whether the trial court erred by finding that clear and convincing evidence

      established that T.S. is mentally ill and presents a danger to others; and


      (2) Whether his current commitment at the Logansport State Hospital is the

      least restrictive environment appropriate for T.S.


                           FACTS AND PROCEDURAL HISTORY

[4]   On January 4, 2004, T.S. was released from incarceration after serving his

      sentence for two Counts of Class B felony child molesting. Approximately a

      month later, on February 5, 2004, T.S. was involuntarily committed at

      Logansport State Hospital (LSH) upon a finding that T.S. suffered from schizo-

      affective disorder and was gravely disabled. His original psychiatric evaluation


      Court of Appeals of Indiana | Memorandum Decision 79A05-1406-MH-260 | February 10, 2015   Page 2 of 12
      indicated a history of self-mutilation, substance abuse and psychosis, depressive

      and manic episodes. He was noted as being unable “to resist his sexual urges

      outside of [a] hospital setting.” (Transcript p. 6). T.S. has remained

      involuntarily committed at LSH since February of 2004.


[5]   During the course of his treatment, T.S. was diagnosed with “post traumatic

      stress disorder (PTSD), sexual disorder analyses, borderline [a] buoyant

      personality traits and poly substance dependence.” (Tr. pp. 4-5). T.S. has

      progressed in his treatment program to the point where his treating physician,

      Dr. Danny Meadows (Dr. Meadows), now opines that T.S. “does not have a

      diagnosis of psychotic illness” and has not “had a significant self-harm action in

      recent memory.” (Tr. p. 7). T.S.’s most recent clinical plan indicated that his

      PTSD is “controlled with treatment.” (Respondent’s Exh. 2).


[6]   Throughout his treatment, it was noted that T.S. “had intermittent periods of

      gender identity issues as well as insecurity regarding some of his sexual issues.”

      (Tr. p. 5). LSH deemed that T.S. “had predominant sexual issues which he had

      criminal activity for in the past which he was convicted of and [it] was felt from

      a clinical point of view that these issues were going to be detrimental to him.”

      (Tr. p. 7). As a result, T.S. was referred to the Sexual Responsibility Unit

      (SRU) within LSH.


[7]   The SRU is a program developed to treat male patients who have committed

      criminal or deviant sexual acts and who may have previously been incarcerated.

      See Commitment of T.S. v. Logansport State Hosp., 959 N.E.2d 855, 856 (Ind. Ct.


      Court of Appeals of Indiana | Memorandum Decision 79A05-1406-MH-260 | February 10, 2015   Page 3 of 12
      App. 2011). The SRU has various levels, starting with education, and to move

      up to a higher level, the patient must demonstrate that he is changing his

      pattern of behavior regarding his sexual issues. See id. There is no set time for

      completion: while one patient may complete the different levels in six months,

      another may take years to complete the program. See id. Despite years in the

      program, T.S. has yet to complete the SRU’s program. On October 25, 2010,

      T.S. sent a handwritten letter to the trial court, asking the court to support his

      refusal to participate in the SRU. See id. After a hearing, the trial court denied

      T.S.’s petition, concluding that it was in T.S.’s best interests to remain in the

      program. Id. at 857. On appeal, we affirmed the trial court’s finding that T.S.

      was still in need of the treatment offered by the program and that the risks

      associated with the program were outweighed by the potential benefit that T.S.

      might receive. Id. at 860.


[8]   Over the past two years, T.S. has endeavored to participate fully in the SRU’s

      counseling programs and is making progress under the guidance of Dr.

      Meadows. T.S. was promoted to the highest privilege level and has been

      allowed to attend supervised outings into the community to assess his ability to

      handle situations around children and other high risk populations. During

      those outings, T.S.’s treatment team noticed an increase in T.S.’s anxiety which

      warranted an increase in his medications. The team also noted that T.S. “was

      minimizing what they would call [T.S.’s] arousal.” (Tr. p. 35).


[9]   On February 3, 2014, the trial court received a letter from T.S. requesting a

      hearing for review of regular commitment. On April 23, 2014, the trial court

      Court of Appeals of Indiana | Memorandum Decision 79A05-1406-MH-260 | February 10, 2015   Page 4 of 12
       conducted a hearing on T.S.’s petition. Thereafter, on May 23, 2014, the trial

       court issued its Order of Regular Commitment after a Review Hearing, finding

       that T.S. “is suffering from Post-Traumatic Stress Disorder, Polysubstance

       Dependence, Borderline Personality Traits and Avoidant Personality Traits,

       which are mental illnesses as defined in Ind. Code § 12-7-2-130.” (Appellant’s

       App. p. 13). After concluding that T.S. is dangerous to others, as defined in

       I.C. § 12-7-2-53, the trial court ordered continued custody, care and treatment

       at LSH for a period expected to exceed ninety days.


[10]   T.S. now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION

                                        I. Sufficiency of the Evidence

[11]   T.S. contends that the State failed to present by clear and convincing evidence

       that he is mentally ill and gravely disabled or dangerous to others. When

       reviewing a challenge to the sufficiency of the evidence with respect to

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

       court’s decision and draw all reasonable inferences from that decision.

       Commitment of M.M. v. Clarian Health Partners, 826 N.E.2d 90, 96 (Ind. Ct. App.

       2005). We neither reweigh the evidence nor judge the credibility of the

       witnesses. Id. If the trial court’s commitment order represents a conclusion

       that a reasonable person could have drawn, we will affirm the order even if

       other reasonable conclusions are possible. Id.



       Court of Appeals of Indiana | Memorandum Decision 79A05-1406-MH-260 | February 10, 2015   Page 5 of 12
[12]   Upon review, we consider three factors to determine whether the totality of the

       circumstances support an involuntary commitment: “the gravity of the

       behavior leading to hospital admission, behavior in the hospital, and the

       relationship between problematic behaviors and the person’s mental illness.” In

       re Commitment of T.K., 993 N.E.2d 245, 248 (Ind. Ct. App. 2013). In these

       proceedings, the burden falls on the petitioner to 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).


[13]   In its Order of Regular Commitment after a Review Hearing, the trial court

       concluded that T.S. suffered from a mental illness which made him dangerous

       to others. Although in addition to the dangerousness requirement, T.S. also

       disputes the alternative prong of I.C. § 12-26-2-5(e)—the gravely disabled

       element—the trial court did not establish that finding and, as such, we will not

       address T.S.’s argument in that regard.


                                                A. Mental Illness


[14]   In this context, mental illness is defined 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(1). Focusing on

       the absence of any self-mutilation episodes and the lack of any diagnosed

       psychotic illnesses, T.S. contends that he no longer suffers from any mental

       illness. Although he acknowledges to have suffered from PTSD and sexual


       Court of Appeals of Indiana | Memorandum Decision 79A05-1406-MH-260 | February 10, 2015   Page 6 of 12
       disorders, he considers his PTSD problem “resolved” and his inappropriate

       sexual activity under control. (Appellant’s Br. p. 9).


[15]   Originally, at his initial psychiatric evaluation during the intake at LSH in

       February of 2004, T.S. was described as “having a history of psychosis,

       depressive [a] manic episode.” (Tr. p. 6). T.S. had self-mutilation issues and a

       substance abuse problem, in addition to “not [being] able to resist his sexual

       urges outside of [the] hospital setting.” (Tr. p. 6). While we agree with T.S.

       that currently, he no longer has “a diagnosis of psychotic illness” and there

       have been no “significant self[-]harm action in recent memory,” T.S. is still

       medically and statutorily considered mentally ill. (Tr. p. 7).


[16]   During the hearing, Dr. Meadows testified that while T.S.’s difficulties with

       PTSD, stemming from past sexual abuse, remain, at the present time, it is

       managed and controlled with treatment. However, T.S.’s treatment plan report

       clearly indicates that T.S. is susceptible to “distress at exposure to cues related

       to traumatic events.” (Respondent’s Exh. 2).


[17]   The record further supports that over the past two years, T.S. has been

       participating fully in the SRU program to address his sexual disorder and,

       unquestionably, is making progress under the guidance of Dr. Meadows. T.S.

       was recently promoted to the highest privilege level and has been allowed to

       attend supervised outings into the community to assess his ability to handle

       situations around children and other high risk populations. During those

       outings, T.S.’s treatment team noticed an increase in T.S.’s anxiety which


       Court of Appeals of Indiana | Memorandum Decision 79A05-1406-MH-260 | February 10, 2015   Page 7 of 12
       resulted in an increase in his medications. The team also noted that T.S. “was

       minimizing what they would call [T.S.’s] arousal.” (Tr. p. 35). Unlike for his

       PTSD, T.S.’s treatment plan indicates that his deviant sexual behavior

       diagnosis remains in “active status.” (Respondent’s Exh. 1). So far, even

       though T.S. has made progress in the treatment of his mental illness and its

       underlying roots, no clinician has affirmed that T.S. is ready to be discharged.

       Thus, while T.S.’s diagnoses might be managed and under control, he is by no

       means ‘cured.’ Based on the evidence, the trial court reached a conclusion that

       a reasonable person could have drawn, and therefore we will affirm its finding

       that T.S. is mentally ill.


                                                  B. Dangerous


[18]   Turning to the dangerousness prong, T.S. claims that the State failed to

       establish that he presents a substantial risk to harm others. Within the province

       of commitment proceedings, “dangerous” means “a condition in which an

       individual[,] as a result of mental illness, presents a substantial risk that the

       individual will harm the individual or others.” I.C. § 12-7-2-53.

       “Dangerousness must be shown by clear and convincing evidence indicating

       that the behavior used as an index of a person’s dangerousness would not occur

       but for that person’s mental illness.” In re Commitment of C.A., 776 N.E.2d

       1216, 1218 (Ind. Ct. App. 2002). In other words, abnormal risk-taking will not

       support a finding a person is dangerous as defined by statute, unless that risk-

       taking is caused by mental illness. Commitment of J.B. v. Midtown Mental Health

       Ctr., 581 N.E.2d 448, 452 (Ind. Ct. App. 1991), trans. denied. However, a trial

       Court of Appeals of Indiana | Memorandum Decision 79A05-1406-MH-260 | February 10, 2015   Page 8 of 12
       court is not required to wait until harm has nearly or actually occurred before

       determining that an individual poses a substantial risk of harm to others. Matter

       of Commitment of Gerke, 696 N.E.2d 416, 421 (Ind. Ct. App. 1998) (holding that

       a commitment premised upon a trial court’s prediction of dangerous future

       behavior, without prior evidence of the predicted conduct, was valid, and

       observing “[t]he old adage of ‘the dog gets one bite’ does not, and should not,

       apply in the context of commitment proceedings, despite the severe restrictions

       on liberty imposed by commitment to a mental facility”).


[19]   Characterizing Dr. Meadows’ testimony that there is a threat he might commit

       a sexual act in the future as purely speculative, T.S. likens his situation to In re

       Commitment of Steinberg, 821 N.E.2d 385 (Ind. Ct. App. 2004), in which we

       reversed a finding of dangerousness. In Steinberg, Steinberg was admitted to the

       emergency room after believing that he heard his roommates speak though his

       computer speakers. Id. at 386. Steinberg also had periods of incontrollable

       anger and had, in a single incident, pointed an unloaded gun at people who had

       threatened him and his roommate. Id. at 387. Upon evaluation, Steinberg was

       determined to be schizophrenic and found to be dangerous to others. Id. at 388.

       Affirming the trial court’s conclusion of mental illness, we nevertheless reversed

       its finding of dangerousness because Steinberg’s mother’s testimony pointing to

       “any potential for danger . . . was purely speculative[.]” Id. While the incident

       of the unloaded gun “may have been risky behavior,” we considered it “too

       slender a thread to support an involuntary commitment.” Id. at 389.




       Court of Appeals of Indiana | Memorandum Decision 79A05-1406-MH-260 | February 10, 2015   Page 9 of 12
[20]   As part of his mental illness diagnosis, Dr. Meadows testified that T.S. has a

       sexual disorder, with intermittent periods of gender identity issues as well as

       insecurity regarding some of his sexual issues. Because T.S. has difficulty

       resisting his sexual urges outside of the hospital setting, he was convicted of two

       Counts of Class B felony child molestation. Since T.S.’s admittance into the

       SRU, T.S. has made advancements into managing his disorder to the point

       where T.S. was promoted to participate in outings into the community after

       having been separated from children and other high risk populations for more

       than ten years. Because T.S.’s behavior during these community outings raised

       serious concerns with T.S.’s treatment team, Dr. Meadows opined that, until

       T.S. had fully completed the SRU program, T.S. remains a danger to others

       when he is in the community.


[21]   While the speculative facts in Steinberg dictated a reversal of the trial court’s

       finding of dangerousness, the facts here do not warrant the same result. T.S.

       has an established history of harming others. Based on the evidence, it is clear

       that, despite appropriate treatment and progress, T.S.’s sexual disorder is still

       affecting his behavior, emotions and thoughts, and impedes his ability to

       function in an appropriate fashion while in the community. Considering the

       totality of the circumstances, we affirm the trial court’s conclusion that T.S.

       presents a substantial danger to others. See I.C. § 12-7-2-53.


                                     II. Least Restrictive Environment




       Court of Appeals of Indiana | Memorandum Decision 79A05-1406-MH-260 | February 10, 2015   Page 10 of 12
[22]   Repeating the argument developed in his previous appeal, T.S. again disputes

       the appropriateness of continued placement in the SRU and contends that the

       State failed to establish by clear and convincing evidence that the probable

       benefits of the SRU outweigh any risk of harm to T.S.


[23]   In the Commitment of T.S., T.S. contested his forcible participation in the SRU.

       Comparing the legal precedents of forcible medication with the issue of forcible

       participation in a therapeutic program, we noted that “counseling and therapy

       are most often focused on behavior, and it is behavior that society is concerned

       with in individuals like T.S., with a history of criminal, sexual misconduct.

       Commitment of T.S., 959 N.E.2d at 859. We applied the relevant portions of the

       existing legal framework with respect to mandatory medication to the situation

       before us, and concluded that in order to forcibly enroll T.S. in counseling, the

       State was required to prove by clear and convincing evidence that: “(1) a

       current and individual assessment of T.S. had been made; (2) that this

       assessment resulted in the honest belief of the medical professions that T.S.’s

       continuation in the [SRU] would be of substantial benefit to treating T.S.’s

       condition and controlling his behavior; and (3) that the probable benefits of the

       [SRU] outweighed any risks of harm to T.S. and his personal concerns.” Id. at

       859-60.


[24]   Admittedly, much has changed since T.S.’s last appeal. T.S. has started to

       participate in the SRU program and has made great strides in the management

       of his sexual disorder. However, not a single clinician treating T.S. endorses his

       request for discharge from the program. Dr. Meadows testified that his

       Court of Appeals of Indiana | Memorandum Decision 79A05-1406-MH-260 | February 10, 2015   Page 11 of 12
       recommended treatment plan is for T.S. to complete the SRU program and then

       to be transitioned into the community so as to minimize the risk for relapse.

       Opining that the SRU is currently the least restrictive environment suitable for

       T.S.’s care and needs, Dr. Meadows clarified that when T.S.’s transition into

       the community occurs, the SRU will also ensure that T.S. will continue to have

       access to therapeutic services and treatments to deal with the ensuing difficulties

       of his new environment. While we empathize with T.S.’s lengthy residency in

       the SRU, we are impressed by his progress and it is clear from Dr. Meadows’

       testimony that the SRU program offers significant benefits to T.S. in

       progressing him to his eventual reintegration into society. Nevertheless, until

       the impact of community outings on T.S. can be more thoroughly assessed and

       “until he has fully completed [the SRU],” his current commitment outweighs

       any risks of harm to T.S. (Tr. p. 11). Therefore, we refuse to disturb T.S.’s

       current placement, and affirm the trial court’s order of continued commitment

       to the SRU at LSH.


                                               CONCLUSION

[25]   Based on the foregoing, we conclude that clear and convincing evidence

       established that T.S. is mentally ill and presents a danger to others, thereby

       justifying a continued involuntary mental health commitment; and his current

       placement in LSH’s SRU is appropriate.


[26]   Affirmed.


       Vaidik, C. J. and Baker, J. concur

       Court of Appeals of Indiana | Memorandum Decision 79A05-1406-MH-260 | February 10, 2015   Page 12 of 12
