FOR PUBLICATION                                      Jan 07 2015, 10:27 am




ATTORNEY FOR APPELLANT:                       ATTORNEY FOR APPELLEE:


KARA A. HANCUFF                               JAMES L. WHITLATCH
Monroe County Public Defender                 KATHRYN DeWEESE
Bloomington, Indiana                          Bunger & Robertson
                                              Bloomington, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA


IN THE MATTER OF THE MENTAL            )
HEALTH PROCEEDINGS OF B.M.             )
                                       )
      Appellant-Respondent,            )
                                       )
             vs.                       )      No. 53A04-1405-MH-210
                                       )
INDIANA UNIVERSITY HEALTH,             )
HOSPITAL                               )
                                       )
      Appellee-Petitioner.             )


                    APPEAL FROM THE MONROE CIRCUIT COURT
                        The Honorable Stephen R. Galvin, Judge
                           Cause No. 53C07-1403-MH-103


                                   January 7, 2015


                             OPINION – FOR PUBLICATION


MATHIAS, Judge
       B.M. appeals the Monroe Circuit Court’s order involuntarily committing him to a

mental health facility. Specifically, B.M. argues that Indiana University Health (‘the

Hospital”) did not present sufficient evidence to support his involuntary commitment.

       We affirm.

                                Facts and Procedural History

       On March 28, 2014, B.M. placed a 911 call from the Ellettsville Library to the

police because he was worried that people were obtaining his personal information

through a social network. The police transported B.M. to the Hospital where he was

examined by an emergency room physician and a social worker. Both the physician and

the social worker believed that B.M. was psychotic and paranoid and a potential threat to

the safety of others. Appellant’s App. pp. 3-4. Therefore, the Hospital filed an application

for emergency detention. The trial court authorized B.M.’s emergency detention and he

was admitted to the Hospital.

       On April 1, 2014, the Hospital filed a “Report Following Emergency Detention.”

Dr. A.P. Griffith examined B.M. and found “probable cause to believe that [he] is

suffering from a psychiatric disorder and is dangerous . . . and requires continuing care

and treatment.”     Id. at 6.    Specifically, Dr. Griffith observed that B.M. is “very

threatening/psychotic.   Angry[.] Upset. Refuses care.”       Id. at 10.      Dr. Griffith also

believed that B.M. is dangerous and as a result of his psychiatric disorder, B.M. “presents

a substantial risk that he” will harm others. Id. at 11. The doctor opined that B.M. “is in

need of custody, care, or treatment in an appropriate facility.” Id. at 11.



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       Also, on April 1, 2014, Jennifer Kaladow, Ph.D. filed a petition for involuntary

commitment. Dr. Kaladow also agreed with Dr. Griffith that B.M. was suffering from a

psychiatric disorder. Specifically, Dr. Kaladow noted that B.M. is “extremely psychotic.

He is quite angry, upset & very threatening. He has been refusing treatment.” Id. at 9.

       The trial court held a hearing on the Hospital’s petition on April 8, 2014. Dr.

Griffith testified that during his emergency detention at the Hospital, B.M. “has been

quite delusional.” Tr. p. 2. B.M. believes

       that he is in fact in charge of the [] Securities Exchange Commission and
       that he is running websites throughout America and the world, believes that
       he has powers and abilities that one would typically say are not possible or
       true. [B.M.] does not believe that he has a mental illness. He believes that
       he is perfectly normal. He thinks that all the healthcare practitioners who
       have seen him are wrong.

Tr. pp. 2-3. Dr. Griffith stated that B.M. generally refuses to take medication and will not

take his medication on a routine basis. B.M. sleeps only one to two hours per night. The

doctor also testified that B.M. has an inflated self-esteem and “undoubtedly has bipolar

mania disease.” Tr. p. 3.

       Dr. Griffith’s believes that B.M. “is a threat to others if he does not get his way.

He becomes irritable, hostile and has been in restraints and fighting staff on several

occasions.” Id. B.M. blames the Hospital staff for his hostile behavior. Dr. Griffith

recommended that B.M. be committed to the Hospital for ninety days.

       The trial court issued an Order of Commitment on April 8, 2014. The court

concluded that B.M. suffers from mental illness, i.e. bipolar mania, and is dangerous to




                                             3
others. Therefore, the court ordered B.M. involuntarily committed to an appropriate

facility for a period not to exceed ninety days. B.M. now appeals.

                                         Standard of Review

        When we review whether the evidence supports an involuntary mental health

commitment, we consider only the evidence and reasonable inferences therefrom most

favorable to the trial court’s judgment. In re Involuntary Commitment of A.M., 959

N.E.2d 832, 834-35 (Ind. Ct. App. 2011). We cannot reweigh the evidence or judge the

credibility of witnesses. Id. at 835. If the trial court’s commitment reflects a conclusion

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

reasonable conclusions are possible. Id.

                                      Discussion and Decision

        In Indiana, a court may order a temporary commitment of not more than ninety

days for an individual who is mentally ill and either dangerous or gravely disabled. Ind.

Code § 12-26-6-1. B.M. argues that the Hospital failed to prove, by clear and convincing

evidence, that he is a dangerous individual, and therefore, the trial court’s involuntary

commitment order is not supported by sufficient evidence.1

        “Civil commitment is a significant deprivation of liberty that requires due process

protections.” C.J. v. Health & Hosp. Corp. of Marion County, 842 N.E.2d 407, 409 (Ind.

Ct. App. 2006) (citing Addington v. Texas, 441 U.S. 418, 425 (1979)). “Because

1
  The issue raised in this appeal is arguably moot because ninety days have elapsed since the trial court
issued its order, and B.M. has likely been released from his involuntary commitment. However, we will
address the issue raised in this appeal on its merits because, as we stated in In re Commitment of J.B., 766
N.E.2d 795, 798 (Ind. Ct. App. 2002), “[t]he question of how persons subject to involuntary commitment
are treated by our trial courts is one of great importance to society” and is likely to recur.

                                                     4
everyone exhibits some abnormal conduct at one time or another, loss of liberty calls for

a showing that the individual suffers from something more serious than is demonstrated

by idiosyncratic behavior.” Commitment of M.M. v. Clarian Health Partners, 826 N.E.2d

90, 97 (Ind. Ct. App. 2005), trans. denied.

           The petitioner is required to prove by clear and convincing evidence that the

individual is (1) mentally ill and (2) either dangerous or gravely disabled and that (3)

commitment is appropriate. Ind. Code § 12-26-2-5(e). The petitioner is not required to

prove that the individual is both dangerous and gravely disabled; however, “[t]here is no

constitutional basis for confining a mentally ill person who is not dangerous and can live

safely in freedom.” Commitment of J.B. v. Midtown Mental Health Ctr., 581 N.E.2d 448,

451 (Ind. Ct. App. 1991), trans. denied; see also M.L. v. Meridian Servs., Inc., 956

N.E.2d 752, 755 (Ind. Ct. App. 2011).

           The trial court found that B.M. suffers from bipolar mania,2 and B.M. does not

dispute this finding. However, B.M. does dispute the trial court’s finding that he is

dangerous to others.3 See Appellant’s App. p. 14.

           Dangerous “means a condition in which an individual as a result of mental illness,

presents a substantial risk that the individual will harm . . . others.” Ind. Code § 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 the



2
  “Mental illness” is defined as a “psychiatric disorder that . . . substantially disturbs and individual’s
thinking, feeling, or behavior; and [] impairs the individual’s ability to function.” Ind. Code § 12-7-2-130.
3
    The trial court did not find that B.M. is gravely disabled.

                                                         5
person’s mental illness.” Commitment of C.A. v. Center for Mental Health, 776 N.E.2d

1216, 1218 (Ind. Ct. App. 2002).

      “The determination of dangerousness under the involuntary commitment statute

has always been a question of fact for the trial court to decide.” Commitment of S.T. v.

Cmty. Hosp. North, 930 N.E.2d 684, 689 (Ind. Ct. App. 2010).

      Only the trial court sees the witnesses on the stand, their demeanor in
      testifying, their candor, or lack of candor, in disclosing facts about which
      they have knowledge. Juries and trial courts, quite often, properly, give
      more weight to the demeanor of witnesses than to the substance of their
      statements in the determination of truth. An Appellate Court, considering
      only the statements, is denied the assistance of this necessary factor.

Id. (quoting Lowman v. Lowman, 109 Ind. App. 163, 164, 33 N.E.2d 780, 785 (1941)).

      In support of his argument that the record lacks clear and convincing evidence that

he is dangerous to others, B.M. attempts to analogize his case to In re Commitment of

Steinberg, 821 N.E.2d 385 (Ind. Ct. App. 2004) and J.S. v. Center for Behavioral Health,

846 N.E.2d 1106 (Ind. Ct. App. 2006). In those cases, our court concluded that the

petitioner failed to present sufficient evidence that the committed individual was

dangerous.

      Unlike the circumstances in this case, in Steinberg, the only evidence was that

Steinberg had trouble controlling his anger and that, on one occasion, likely while

intoxicated, he pointed a firearm at a group of individuals who threatened him and his

roommate. The doctor who performed the psychiatric evaluation did not conclude that

Steinberg was dangerous to himself or others, just that he was gravely disabled. 821

N.E.2d at 387.


                                           6
       In J.S., the psychiatrist’s primary concern was that J.S. was gravely disabled. The

doctor testified that J.S. could lash out against someone if she feels assaulted or

manipulated. We concluded that the doctor’s “vague ‘lashing out’ assertion” did not

meet the threshold of dangerousness. 846 N.E.2d at 1112. In this case, Dr. Griffith was

most concerned that B.M. was dangerous to others as evidenced by his threatening and

hostile behavior toward the hospital staff.

       In this case four medical professionals examined B.M. and concluded that B.M.

suffers from mental illness. B.M.’s mental illness causes him to be delusional, psychotic,

hostile, upset, angry, and threatening. During his emergency detention at the Hospital,

B.M. had to be placed in restraints and fought with Hospital staff on several occasions.

And B.M. does not believe that he is mentally ill and refuses to take his medication. Dr.

Griffith opined that B.M. is dangerous and as a result of his psychiatric disorder, B.M.

“presents a substantial risk that he” will harm others. Appellant’s App. p. 11.

       No evidence in the record indicates that B.M. has actually harmed anyone, but a

trial court is not required to wait until an individual commits a physical act before

determining that the individual poses a substantial risk of harm to others. M.Z. v. Clarian

Health Partners, 829 N.E.2d 634, 638 (Ind. Ct. App. 2005), trans. denied (citation

omitted). See e.g., In re Commitment of T.K. v. Dep’t of Veterans Affairs, 993 N.E.2d

245, 250 (Ind. Ct. App. 2013) (concluding that evidence of threats and hostility towards

hospital staff and T.K.’s denial that he suffers from mental illness established that T.K.

was a danger to others). For all of these reasons, we conclude that the trial court’s



                                              7
finding that B.M. is a danger to others is supported by sufficient evidence. We therefore

affirm the trial court’s order of commitment.

      Affirmed.

      CRONE, J., concurs.

      RILEY, J., dissents with opinion.




                                            8
                              IN THE
                    COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE MENTAL                )
HEALTH PROCEEDINGS OF B.M.                         )
      Appellant-Respondent,                )
                                           )
              vs.                          )       No. 53A04-1405-MH-210
                                           )
INDIANA UNIVERSITY HEALTH,                 )
HOSPITAL                                   )
                                           )
      Appellee-Petitioner.                 )


RILEY, Judge, dissenting


       I respectfully disagree with the majority’s decision to affirm the trial court’s

involuntary commitment of B.M. Focusing on the dangerousness prong of the Statute,

the majority concluded that sufficient evidence was presented establishing B.M. to be a

danger to others. I disagree.

       “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. As noted by the majority, and I agree, the “trial court is not required to


                                               9
wait until a physical act is visited upon an individual [] before determining that an

individual poses a significant risk of harm to others.” See Commitment of Gerke, 696

N.E.2d 416, 421 (Ind. Ct. App. 1998) (Gerke had threatened his mother, damaged

property, and was overall very violent). In a similar vein, we have found the requirement

of dangerousness to be supported by a patient’s unwillingness to take medication. See,

e.g., Commitment of C.A., 776 N.E.2d 1216, 1218 (Ind. Ct. App. 2002). However, this

line of case law is precedented by the distinguishing fact that the patients had already

displayed unprovoked acts of physical aggression or had the potential to perform

unprovoked acts of physical aggression based on thought processes influenced by their

mental illness. See, e.g., M.Z. v. Clarian Health Partners, 829 N.E.2d 634, 640 (Ind. Ct.

App. 2005) (M.Z. removed a gun from his gun safe daily based on his delusional belief

that he was protecting himself). 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. As such, the justification to order an involuntary

commitment turns on the connection between the individual’s proclivity for

dangerousness and his or her mental illness.

       I find that nexus to be absent here. “[F]our medical professionals examined B.M.

and concluded that B.M. suffers from mental illness.” Slip Op. p. 7. It was noted that

B.M. was “extremely psychotic,” “angry, and “very threatening.” (Appellant’s App. p. 9).

At the hearing, Dr. Griffith testified that B.M. fought healthcare staff on several

occasions and had to be placed in restraints. However, notably lacking from the record

                                             10
and Dr. Griffith’s testimony is an explanation that the exhibited aggressive behavior was

connected with B.M.’s delusions. Rather, Dr. Griffith agreed that B.M. has not been a

threat to the general public. Because of Dr. Griffith’s deficient testimony and the

incomplete record before us, B.M.’s clarification that he became aggressive because he

refused to be forcibly medicated is not contradictory.

       Even though B.M. is irritable and hostile, a commitment cannot be based solely on

his display of idiosyncratic behavior, albeit maybe unusual and even undesirable, without

any display of danger to himself or others. As no clear and convincing evidence confirms

that B.M.’s displayed aggression derived from his delusions, I cannot conclude that B.M.

is dangerous within the perimeters of the involuntary commitment statute. Because

“[t]here is no constitutional basis for confining a mentally ill person who is not

dangerous[,]” I would reverse the trial court’s order of involuntary commitment. See

Commitment of J.B., 581 N.E.2d at 451.




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