FOR PUBLICATION                                                               Aug 21 2013, 5:33 am




ATTORNEY FOR APPELLANT:                        ATTORNEY FOR APPELLEE:

VALERIE K. BOOTS                               TAMI R. NANTZ
Marion County Public Defender                  Staff Attorney
Indianapolis, Indiana                          Office of Regional Counsel
                                               U.S. Department of Veterans Affairs
                                               Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE COMMITMENT                )
OF T.K.,                                       )
                                               )
T.K.,                                          )
                                               )
        Appellant-Respondent,                  )
                                               )
               vs.                             )       No. 49A05-1303-MH-100
                                               )
DEPARTMENT OF VETERANS AFFAIRS,                )
                                               )
        Appellee-Petitioner.                   )


                     APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Barbara Collins, Senior Judge
                             Cause No. 49D08-9906-MH-582



                                     August 21, 2013


                               OPINION - FOR PUBLICATION

BRADFORD, Judge
       An application for the emergency detention of Appellant-Respondent T.K. was filed

on February 8, 2013. The application alleged that T.K. was a mentally ill and dangerous

person. That same day, the trial court issued an order granting the application. T.K. was

admitted to the Richard L. Roudebush VA Medical Center (“the VA Medical Center”) on or

about February 11, 2013. Following a February 19, 2013 evidentiary hearing, the trial court

issued an order of regular commitment, finding that T.K. was suffering from mental illness

and was dangerous to others. On appeal, T.K. challenges the sufficiency of the evidence to

sustain the trial court’s order. We affirm.

                          FACTS AND PROCEDURAL HISTORY

       During the week leading up to February 8, 2013, T.K. made over twenty-five

threatening phone calls to Adult and Child Inc. (“Adult and Child”).1 In these threatening

phone calls, T.K. threatened to “cut off the genitals of staff” and made threats to the director

of the facility. Because of the large number and threatening nature of the calls, on February

8, 2013, Adult and Child filed an application for the emergency detention of T.K. The

application indicated that staff at the facility noted that they found T.K. to be hostile, actively

psychotic, delusional, and in need of immediate help. The trial court granted the application;

issued a warrant for T.K.’s arrest; and issued an order allowing for T.K. to be detained,

examined, and treated at the VA Medical Center.

       T.K. was detained about three days later and admitted to the VA Medical Center.


       1
          Adult and Child provides mental health and child welfare programs in Indianapolis and central
Indiana. See http://adultandchild.com/ (last visited August 8, 2013).



                                                  2
While at the VA Medical Center, T.K. was treated by Dr. Corey Trobaugh. During the

course of his treatment, T.K. threatened Dr. Trobaugh by telling Dr. Trobaugh that he could

hurt him and take his money and clothes. T.K. also asked Dr. Trobaugh if he had children,

and, when Dr. Trobaugh did not respond, T.K. told Dr. Trobaugh “well I can take them.” Tr.

p. 14. T.K. later told Dr. Trobaugh that he could “strap [Dr. Trobaugh] into a chair and taser

[him].” Tr. p. 14. Dr. Trobaugh felt threatened by T.K.’s words and menacing demeanor.

       T.K. also threatened the staff at the VA Medical Center, who considered T.K.’s

behavior “as being largely hostile, aggressive, and threatening in nature.” Tr. p. 14. T.K.

threatened to make the VA “pay” if he were committed, stating that he would “have [a]

behavioral outburst that would cost the VA millions of dollars.” Tr. pp. 14, 15.

       After meeting with T.K. on two separate occasions and reviewing T.K.’s medical

history, which included a documented history of mental illness and prior mental illness-

related commitments, Dr. Trobaugh diagnosed T.K. with chronic paranoid schizophrenia. In

making this diagnosis, Dr. Trobaugh noted that T.K. exhibited disorganized speech,

delusions of persecution, and grandiosity as well as paranoia. Dr. Trobaugh noted that T.K.

did not show any insight into his mental illness, denied that he suffered from mental illness,

and refused medication.

       The trial court conducted an evidentiary hearing on February 19, 2013, for the purpose

of determining whether a continued commitment of T.K. to the VA Medical Center was

warranted. During the evidentiary hearing, Dr. Trobaugh acknowledged that T.K. had yet to

act on any of the threats levied against anyone at Adult and Child or the VA Medical Center.



                                              3
For his part, T.K. attempted to diminish the serious nature of his threats against Dr. Trobaugh

by construing the threats as a “miscommunication.” Tr. p. 17. Dr. Trobaugh testified that he

believed that T.K. posed a danger to others and indicated that he believed that a regular

commitment was necessary to ensure that T.K. received the necessary treatment and care.

Upon the conclusion of the presentation of the evidence, the trial court determined that

without treatment, T.K. was a danger to others. The trial court issued an order of regular

commitment, which involuntarily committed T.K. to the care of the VA Medical Center for a

term of at least ninety days. This appeal follows.

                             DISCUSSION AND DECISION

                               I. The Question of Mootness

       T.K. concedes that he has been discharged from his involuntary commitment at the

VA Medical Center for some time now. Therefore, this court cannot render effective relief to

him. See In re Commitment of J.B., 766 N.E.2d 795, 798 (Ind. Ct. App. 2002). “When a

court is unable to render effective relief to a party, the case is deemed moot and usually

dismissed.” Id. (citing In re Lawrance, 579 N.E.2d 32, 37 (Ind. 1991)). However, although

moot cases are usually dismissed, Indiana courts have long recognized that a case may be

decided on its merits under an exception to the general rule when the case involves questions

of “great public interest.” Id. (citing In re Lawrance, 579 N.E.2d at 37). Typically, cases

falling in the “great public interest” exception contain issues that are likely to recur. Id.

       “The question of how persons subject to involuntary commitment are treated by our

trial courts is one of great importance to society.” Id. “Indiana statutory and case law affirm



                                               4
that the value and dignity of the individual facing commitment or treatment is of great

societal concern.” Id. (citing In re Mental Commitment of M.P., 510 N.E.2d 645, 646 (Ind.

1987) (noting that the statute granting a patient the right to refuse treatment “profoundly

affirms the value and dignity of the individual and the commitment of this society to insuring

humane treatment of those we confine”)). The instant case involves the proof necessary for

involuntary commitment. Because this is an issue of great public importance that is likely to

recur, we will address it here. See generally Commitment of S.T. v. Cmty. Hosp. N., 930

N.E.2d 684, 687 (Ind. Ct. App. 2010); Commitment of M.M. v. Clarian Health Partners, 826

N.E.2d 90, 94 n.3 (Ind. Ct. App. 2005), trans. denied; In re Commitment of J.B., 766 N.E.2d

at 799.

                              II. Sufficiency of the Evidence

          T.K. contends that the evidence is insufficient to prove that an involuntary

commitment at the VA Medical Center was warranted. 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.” Commitment of S.T., 930 N.E.2d at 690. In the instant matter, T.K. specifically

argues that the evidence is insufficient to sustain the trial court’s determination that he was

dangerous. T.K. also argues that the evidence is insufficient to sustain the trial court’s

determination that a regular commitment order reflected the least restrictive environment

suitable for his treatment.



                                              5
                                  A. Standard of Review

              Proceedings for involuntary commitment are subject to federal due
       process requirements. For the ordinary citizen, commitment to a mental
       hospital produces “a massive curtailment of liberty” and thus “requires due
       process protection.” Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 60
       L.Ed.2d 323 (1979); see also C.J. v. Health and Hosp. Corp. of Marion
       County, 842 N.E.2d 407 (Ind. Ct. App. 2006). The loss of liberty produced by
       an involuntary commitment is more than a loss of freedom resulting from the
       confinement. Commitment to a mental hospital “can engender adverse social
       consequences to the individual; ... [w]hether we label this phenomena stigma
       or choose to call it something else ... we recognize that it can occur and that it
       can have a very significant impact on the individual.” Addington, 441 U.S. at
       425, 99 S.Ct. 1804.

Commitment of S.T., 930 N.E.2d at 687.

       Our court has previously recognized that the extraordinary curtailment of liberty

involved with a commitment to a mental hospital. See Commitment of M.M., 826 N.E.2d at

97 (citing Commitment of Gerke, 696 N.E.2d 416 (Ind. Ct. App. 1998)). “Because 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.” 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 Center, 581 N.E.2d 448, 451 (Ind. Ct. App. 1991), trans. denied).

              When reviewing a challenge to 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. In re
       the Commitment of G.M., 743 N.E.2d 1148, 1150-51 (Ind. Ct. App. 2001).
       Moreover, 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.
              When we review the evidence supporting such a judgment, we may
       neither reweigh the evidence nor judge the credibility of the witnesses. In re


                                               6
       Mental Commitment of W.W., 592 N.E.2d 1264, 1266 (Ind. Ct. App. 1992).
       Where the evidence is in conflict, we are bound to view only that evidence that
       is most favorable to the trial court’s judgment. Id.
              In commitment proceedings, the burden falls on 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.” Ind. Code § 12-26-2-5(e).

Golub v. Giles, 814 N.E.2d 1034, 1038 (Ind. Ct. App. 2004), trans. denied.

                 B. Whether the Evidence is Sufficient to Sustain the
                Trial Court’s Determination that T.K. Was Dangerous

       T.K. argues that the evidence presented during the evidentiary hearing is insufficient

to sustain the trial court’s finding that he was dangerous at the time of the commitment

hearing. T.K. acknowledges that the evidence indicates that he made “rather colorful verbal

threats.” Appellant’s Br. p. 8. T.K. asserts, however, that there was no evidence that T.K.

“has ever followed through with any assaultive, violent or dangerous behavior.” Appellant’s

Br. p. 8. As such, T.K. argues that this type of behavior does not suggest any risk, let alone a

substantial risk, that he would harm himself or others.

              “Dangerousness” for our purposes is defined as “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 (West 2001).
       “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 person’s mental illness.” Commitment of C.A. v. Center for
       Mental Health, 776 N.E.2d 1216, 1218 (Ind. Ct. App. 2002).

Commitment of M.M., 826 N.E.2d at 97. “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., 930 N.E.2d at 689. Moreover, a trial court is not required to

wait until an individual commits a physical act before determining that the individual poses a


                                               7
substantial risk of harm to others. M.Z. v. Clarian Health Partners, 829 N.E.2d 634, 638

(Ind. Ct. App. 2005) (citing Matter of Commitment of Gerke, 696 N.E.2d at 421), trans.

denied.

       In the instant matter, the evidence demonstrates that in the week leading up to

February 8, 2013, when Adult and Child filed its application for the emergency detention of

T.K., T.K. made over twenty-five threatening phone calls to Adult and Child. In these

threatening phone calls, T.K. threatened to “cut off the genitals of staff” and made threats to

the director of the facility. Staff at the facility indicated that they found T.K. to be hostile,

actively psychotic, delusional, and in need of immediate help.

       With respect to his interactions with T.K. following his admission to the VA Medical

Center, Dr. Trobaugh testified that T.K. threatened him. Specifically, Dr. Trobaugh stated

that

       [T.K.] informed me that he could hurt me, that he could take my money, that
       he could take my clothes. He asked me if I had children, which I did not
       respond. He said, well I can take them. He later told me that he can strap me
       into a chair and taser me.

Tr. p. 14. Dr. Trobaugh testified that he felt threatened by T.K.’s words and menacing

demeanor. For his part, T.K. attempted to diminish the serious nature of these threats and

construe the threats against Dr. Trobaugh as a “miscommunication.” Tr. p. 17.

       Dr. Trobaugh further testified that T.K.’s behavior had been interpreted by the staff at

the VA Medical Center “as being largely hostile, aggressive, and threatening in nature.” Tr.

p. 14. T.K. also threatened to make the VA “pay” if he were committed, stating that he

would “have [a] behavioral outburst that would cost the VA millions of dollars”. Tr. pp. 14,


                                               8
15. Dr. Trobaugh did acknowledge that T.K. had yet to follow through on any of the threats

levied against anyone at Adult and Child or the VA Medical Center.

       In addition, Dr. Trobaugh diagnosed T.K. with chronic paranoid schizophrenia. T.K.

exhibited disorganized speech, delusions of persecution, and grandiosity as well as paranoia.

Dr. Trobaugh stated that he had reviewed T.K.’s medical records, which indicated that T.K.

had been treated for mental illness in the past and had previously been subject to commitment

for treatment for his mental illness. T.K. did not show any insight into his mental illness,

denied that he suffered from mental illness, and refused medication. Dr. Trobaugh testified

that he believed that T.K. posed a danger to others and indicated that he believed that a

regular commitment was necessary to ensure that T.K. receives the necessary treatment and

care. Upon review, we conclude that T.K.’s numerous threats to the therapists and staff at

Adult and Child, T.K.’s continued threats to Dr. Trogaugh and the staff at the VA Medical

Center, T.K.’s diagnosis as suffering from chronic paranoid schizophrenia, T.K.’s medical

history that indicates that T.K. has suffered from mental illness for some time, as well as his

denial that he suffers from mental illness and refusal to take recommended medication

support the trial court’s determination that, without treatment, T.K. was a danger to others.

       Further, despite T.K.’s claim to the contrary, relevant Indiana precedent indicates that

the trial court did not have to wait until T.K. acted on any of the threats levied against the

staff at Adult and Child, Dr. Trobaugh, or the staff at the VA Medical Center before finding

him to be dangerous. See M.Z., 829 N.E.2d at 368; see generally also Commitment of S.T.,

930 N.E.2d at 691-92 (providing that evidence demonstrating that S.T. displayed extreme



                                              9
anger; made, but did not carry out, threats; had to be secluded from other patients due to

destructive verbal behavior; and admitted to irritability, mood swings, racing thoughts, poor

anger management, erratic sleep, and increased risk-taking behaviors was sufficient to

sustain the trial court’s determination that S.T. was “dangerous”); Jones v. State, 477 N.E.2d

353, 360 (Ind. Ct. App. 1985) (providing that the evidence demonstrating that Jones

exhibited character disorders of possibly sociopathic dimensions and was verbally assaultive

and physically threatening to a degree she was sequestered from other patients was sufficient

to sustain the trial court’s determination that Jones was “dangerous”).

       Furthermore, to the extent that T.K. bases his claim regarding the sufficiency of the

evidence upon this court’s opinion in In re Commitment of Steinberg, 821 N.E.2d 385 (Ind.

Ct. App. 2004), we find Steinberg to be distinguishable from the instant matter. In Steinberg,

the trial court relied upon the testimony of Steinburg’s mother that she was concerned that he

would “mentally just [go] away” on his trips to Bloomington, despite the fact that no

evidence was presented that this had indeed happened or was likely to happen. 821 N.E.2d at

388 (brackets in original). This court reversed the trial court’s determination that Steinburg

was dangerous, concluding that the trial court’s determination was “purely speculative” and

that the trial court should not have considered Steinburg’s mother’s unfounded concern that

Steinburg might “mentally just go away” as proof of dangerousness. Id.

       However, unlike in Steinberg, the above-stated evidence demonstrates that the trial

court’s determination that T.K. was dangerous was not based to mere speculation. The trial

court’s determination was based on actual threats levied by T.K. against the staff at Adult and



                                              10
Child, Dr. Trobaugh, and the staff at the VA Medical Center. T.K.’s claim effectively

amounts to an invitation to reweigh the evidence, which we will not do. See Golub, 814

N.E.2d at 1038.

          C. Whether the Evidence is Sufficient to Sustain the Trial Court’s
             Determination that a Regular Commitment Was the Least
              Restrictive Environment Suitable for T.K.’s Treatment

       T.K. also argues that the evidence presented during the evidentiary hearing is

insufficient to sustain the trial court’s finding that a regular commitment which placed T.K.

in the care of the VA Medical Center for a period of at least ninety days was the least

restrictive environment suitable for his treatment.

       In general, there are three types of commitments. An emergency detention
       limits the detention of an individual to seventy-two hours. Ind. Code §§ 12-
       26-5-1 to -12. A temporary commitment may be authorized for up to ninety
       days. Ind. Code §§ 12-26-6-1 to -11. “A regular commitment is the most
       restrictive form of involuntary treatment and is proper for an individual whose
       commitment is expected to exceed ninety days.” In re Commitment of R.L.,
       666 N.E.2d 929, 930 n. 3 (Ind. Ct. App. 1996); Ind. Code §§ 12-26-7-1 to -5.

J.S. v. Ctr. for Behavioral Health, 846 N.E.2d 1106, 1111 (Ind. Ct. App. 2006).

       “If an individual has previously been the subject of a commitment proceeding, the

court may order a regular commitment if a longer period of treatment is warranted.” Ind.

Code § 12-26-5-11(d). Indiana Code section 12-26-7-4 provides that a trial court shall

conduct an evidentiary hearing upon receiving a report that recommends treatment in a

facility for more than ninety days.

       If at the completion of the hearing and the consideration of the record an
       individual is found to be mentally ill and either dangerous or gravely disabled,
       the court may enter either of the following orders:
       (1) For the individual’s custody, care, or treatment, or continued custody, care,


                                              11
       or treatment in an appropriate facility.
       (2) For the individual to enter an outpatient therapy program.…

Ind. Code § 12-26-7-5.

       During the evidentiary hearing, Dr. Trobaugh requested the trial court to order a

regular commitment. In making this request, Dr. Trobaugh testified that he believed a

regular commitment was necessary because T.K. had been subject to numerous prior mental

health commitments, his condition had again deteriorated to the point that commitment was

necessary, T.K. refused to admit that he suffers from mental illness or take medication as

instructed, and without treatment, T.K. was a danger to others. Dr. Trobaugh testified that he

believed that T.K. needed to be committed to the VA Medical Center until his condition

stabilized. Dr. Trobaugh further testified that T.K. would require outpatient treatment once

his condition stabilized to a point where inpatient treatment was no longer necessary.

       T.K.’s medical history and past involuntary commitments suggest that T.K. required

ongoing outpatient treatment to maintain his mental health once his condition stabilized.

Indiana Code section 12-26-14-7 provides that if an individual

              (1) has been committed under [Indiana Code § 12-26-7];
              (2) is likely to benefit from a therapy programed designed to
              decrease the individual’s dangerousness or grave disability;
              (3) is not likely to be either dangerous or gravely disabled if the
              individual continues to follow the therapy program; and
              (4) is recommended for an outpatient therapy program by the
              individual’s attending or examining physician;
       The superintendent of the facility in which the individual is committed or the
       court at the time of commitment may place the individual on outpatient status
       for the remainder of his commitment period, subject to the conditions of
       outpatient therapy programs….

In light of Dr. Trobaugh’s testimony regarding T.K.’s need for inpatient treatment followed


                                             12
by outpatient treatment and the clear language of Indiana Code section 12-26-14-7, we

conclude that the evidence is sufficient to support the trial court’s decision that a regular

commitment offered the least restrictive alternative to ensure that T.K. received the needed

long-term inpatient and outpatient treatment.

       Furthermore, T.K. also appears to challenge the portion of the trial court’s order that

ordered him to take all medications as prescribed. In In re Mental Commitment of M.P., 510

N.E.2d 645, 647 (Ind. 1987), the Indiana Supreme Court held that in order to override a

patient’s right to refuse treatment,

       the State must demonstrate by clear and convincing evidence that: 1) a current
       and individual medical assessment of the patient’s condition has been made; 2)
       that it resulted in the honest belief of the psychiatrist that the medications will
       be of substantial benefit in treating the condition suffered, and not just in
       controlling the behavior of the individual; 3) and that the probable benefits
       from the proposed treatment outweigh the risk of harm to, and personal
       concerns of, the patient.

Dr. Trobaugh’s testimony met these requirements.

       Dr. Trobaugh testified that he had personally examined T.K. twice and had spent

approximately six hours reviewing his medical records. Dr. Trobaugh’s testimony made it

clear that he considered the possible side effects in coming to the opinion that T.K.’s

condition required treatment with medication. Specifically, Dr. Trobaugh stated that

       [s]ide effects are always a concern with any medication and we always weigh
       the risk against the benefits. And, if we were to have [T.K.] on a medication
       where the side effects were deemed intolerable, we would likely try to change
       it to a different medication.

Tr. p. 19. Upon questioning by T.K. about why medication was necessary and what T.K.

would “get” from possible changes in medication, Dr. Trobaugh further stated that


                                               13
       [T.K.], I have a firm belief that the Haldol Decanoate injection showed some
       benefit in the past based on review of your medical records, and the interaction
       that you were having with staff. I think that more or less the issue that we’re
       discussing has a possibility of side effects which I think the benefits of having
       you on the medication currently outweigh the risk of any current side effects,
       and I think that we would be perfectly happy, and willing to work with you to
       find the medication with the lease amount of side effects that still gave us the
       results that we need, so that you can live an appropriate life, and have the
       things that you wish to have.

Tr. p. 20. Dr. Trobaugh’s testimony indicates that he wished to treat T.K.’s medical

condition in the least restrictive way possible so as to provide T.K. with the opportunity to

live a life unencumbered by mental illness.

       In sum, concluding that the evidence is sufficient to sustain the trial court’s

determination that, without treatment, T.K. posed a danger to others as well as the

determination that the ordered regular commitment offered the least restrictive alternative to

ensure that T.K. received the needed long-term inpatient and outpatient treatment, we affirm

the judgment of the trial court.

       The judgment of the trial court is affirmed.

BAILEY, J., and MAY, J., concur.




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