MEMORANDUM DECISION
                                                                Jun 02 2015, 9:05 am
Pursuant to Ind. Appellate Rule 65(D), this
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
Amy P. Payne                                             James L. Whitlatch
Bloomington, Indiana                                     Kathryn DeWeese
                                                         Bunger & Robertson
                                                         Bloomington, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

M.D.,                                                    June 2, 2015

Appellant-Respondent,                                    Court of Appeals Case No.
                                                         53A05-1411-MH-515
        v.                                               Appeal from the Monroe Circuit
                                                         Court.

Indiana University Health                                The Honorable Stephen R. Galvin,
                                                         Judge.
Bloomington Hospital,
                                                         Cause No. 53C07-1409-MH-309
Appellee-Petitioner.




Riley, Judge




Court of Appeals of Indiana | Memorandum Decision | 53A05-1411-MH-515 | June 2, 2015   Page 1 of 15
                                   STATEMENT OF THE CASE

[1]   Appellant-Respondent, M.D., appeals the trial court’s order of forced

      medication following a regular involuntary commitment order for a period

      expected to exceed ninety days.

      We affirm.

                                                    ISSUES

[2]   M.D. raises three issues on appeal, two of which we find dispositive and which

      we restate as:


          (1) Whether the trial court violated M.D.’s due process rights during the

              hearing on the petition to forcibly medicate M.D; and

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

              that a forced medication order is necessary.


      Appellee-Petitioner, Indiana University Health, Bloomington Hospital (IU

      Health) raises one issue, which we restate as: Whether M.D. timely appealed

      the trial court’s regular commitment order.


                           FACTS AND PROCEDURAL HISTORY

[3]   On September 20, 2014, M.D. was admitted to IU Health after becoming

      belligerent and combative at the consumption of several energy drinks and

      other substances in a local strip club. The officer accompanying M.D. to IU

      Health noted that M.D. “stated that he wanted to strangle someone, [he] also

      made several comments that people were going to die + Satan was coming for
      Court of Appeals of Indiana | Memorandum Decision | 53A05-1411-MH-515 | June 2, 2015   Page 2 of 15
      the world.” (Appellee’s App. p. 22). The officer concluded that M.D. “seemed

      very violent towards other people” and opined that if M.D. “is not restrained he

      will attempt to harm himself or others.” (Appellee’s App. p. 22). Dr. Kimberly

      Irwin completed the Physician’s Emergency Statement, documenting that M.D.

      “had a history of paranoid schizophrenia and became combative and belligerent

      in public after consuming multiple energy drinks and possible drugs. His

      mother claims he has been off his meds for 3-4 days. The patient is a danger to

      himself and others.” (Appellee’s App. p. 24).


[4]   On September 22, 2014, IU Health filed its petition for emergency detention of

      mentally ill, which was approved by the trial court the same day. On

      September 25, 2014, IU Health filed a report following emergency detention,

      stating that Steven Goad, M.D. (Dr. Goad) had examined M.D. and found him

      to be gravely disabled, requiring continuing care and treatment. That same day,

      IU Health filed its petition for involuntary commitment. In its petition, IU

      Health asserted that M.D. was suffering from a psychiatric disorder, as a result

      of which he presented a substantial risk of hurting himself or others. The

      petition elaborated that M.D. made threats that “people are going to die.”

      (Appellee’s App. p. 2). In addition, the petition alleged that because of his

      condition, M.D. is also gravely disabled and “displays very poor judgment.”

      (Appellee’s App. p. 2). The physician’s statement accompanying IU Health’s

      petition was completed by Dr. Goad. Dr. Goad affirmed that M.D. was

      suffering from a psychiatric disorder and developmental disability which

      impaired his ability to function. While he did not seek a forced medication


      Court of Appeals of Indiana | Memorandum Decision | 53A05-1411-MH-515 | June 2, 2015   Page 3 of 15
      order, Dr. Goad requested a commitment for a period expected to exceed

      ninety days.


[5]   On September 30, 2014, the trial court conducted a hearing on IU Health’s

      petition. At the hearing, Dr. Goad testified that he was M.D.’s admitting

      physician and had examined M.D. approximately seven out of the ten days

      M.D. was at IU Health. Dr. Goad explained that he had diagnosed M.D. with

      a chronic adjustment disorder and a verbal learning disorder, as well as possible

      attention deficit hyperactivity disorder. He elaborated that M.D.’s “inability to

      think logically and to plan lead to chronic problems in relationships and

      behavior[.]” (Transcript p. 6). M.D.’s episodes occur one after the other

      because of M.D.’s inability to plan and relate reasonably and understand what

      he just experienced. Based on this diagnosis, Dr. Goad believed M.D. to be

      gravely disabled to the point where he cannot take care of himself and is more

      “like a child who’s not able to manage for himself and needs [] a parent like

      person to take care of them.” (Tr. p. 7). Dr. Goad added that, if the petition

      was granted, M.D. would be discharged to Centerstone.


[6]   Although M.D. realizes he needs help, M.D. testified that he self-medicates

      with marijuana but plans to continue to see Dr. Goad upon his release. M.D.

      informed the court that he needs to get away from his mother because his

      mother “doesn’t want [him] to smoke weed so she’ll call the cops.” (Tr. p. 18).

      He conceded to having been admitted to IU Health five times previously, and

      attributed all of those admissions to his mother. At the conclusion of the

      testimony, the trial court issued an order of regular commitment. Specifically,

      Court of Appeals of Indiana | Memorandum Decision | 53A05-1411-MH-515 | June 2, 2015   Page 4 of 15
      the trial court found M.D. to be suffering from chronic adjustment disorder,

      non-verbal learning disorder and determined him to be gravely disabled. The

      trial court concluded M.D. to be in need of commitment for a period expected

      to exceed ninety days. No forced medication order was entered.


[7]   That same day, September 30, 2014, IU Health transferred M.D.’s commitment

      to Centerstone. On October 1, 2014, M.D. was re-admitted to IU Health after

      being notified by Centerstone that “M.D. has not been taking his meds and

      needs to be in a locked facility for his own safety and the safety of others.”

      (Appellee’s App. p. 12). On October 7, 2014, Perry Griffith, M.D. (Dr.

      Griffith), a psychiatrist at IU Health, contacted the trial court:

              The correct diagnosis for the patient in my opinion, is schizoaffective
              bipolar type. He needs a forced medication of Invega Sustenna.
              This would be for a dangerousness as he has threatened to kill people
              with a machete while in an untreated bipolar episode.
              The patient has been on a temporary commitment to Centerstone, and
              to IU Health in the year 2013, therefore I am asking for a regular
              commitment to the state of Indiana with a forced medication order of
              Haldol and Invega. The Invega will be used and the benefits far
              outweigh any negative side effects or there are no long-term side effects
              to Invega. He has been associated with this medication in the past and
              has taken it and has no problems with it.
      (Appellant’s App. p. 7).


[8]   Recognizing that an involuntary commitment order was already in place, the

      trial court characterized Dr. Griffith’s letter as a request for a forced medication

      order, and set the matter for a hearing on October 9, 2014. During the hearing,

      the trial court took judicial notice of the testimony from the September 30, 2014


      Court of Appeals of Indiana | Memorandum Decision | 53A05-1411-MH-515 | June 2, 2015   Page 5 of 15
      commitment hearing. Although M.D.’s counsel objected to “holding a

      hearing,” she agreed to proceed after rejecting the trial court’s offer of a

      continuance. Dr. Griffith testified about M.D.’s multiple prior admissions and

      history of health diagnoses of psychosis and schizophrenia. M.D.’s counsel

      objected during Dr. Griffith’s testimony on the ground that “[w]e’re here on a

      forced medic, on a motion for a forced medication order. It’s [] the regular

      commitment is not based on any kind of danger or violence and I think we’re

      probably about to get into some hearsay as well.” (Tr p. 34). The trial court

      overruled the objection. Dr. Griffith explained that M.D. needs “forced

      medication for his underlying schizophrenia or schizoaffective bi-polar disease”

      because he “doesn’t always take his medications as an out-patient.” (Tr. p. 36).

      At the close of the evidence, the trial court issued an Amended Order of

      Commitment – Forced Medication Order, ordering

              1) [M.D.], is suffering from schizophrenic or schizoaffective disorder.
                 Following his commitment on September 30, 2014, he was
                 released. Within one day, it was necessary for him to be
                 readmitted to the hospital. He threatened to harm others, stating
                 that he would “kill with a machete.”
              2) [M.D.] is clearly dangerous to others when not taking his
                 medication.
              3) [M.D.] has a history of medication non-compliance.
              4) [IU Health] is granted an order to treat [M.D.’s] condition with
                 Haldol Decanoate or Invega Sustenna. The benefits from these
                 medications outweigh any danger from their side effects.
      (Appellant’s App. p. 4).


[9]   M.D. now appeals. Additional facts will be provided as necessary.


      Court of Appeals of Indiana | Memorandum Decision | 53A05-1411-MH-515 | June 2, 2015   Page 6 of 15
                                   DISCUSSION AND DECISION

                                               I. Scope of Appeal

[10]   Because IU Health presents this court with a procedural threshold question

       involving the scope of the appeal before us, we will address its issue first to

       determine the appropriate parameters of this appellate proceeding. At the

       center of this appeal are the trial court’s two orders: the involuntary

       commitment order issued on September 30, 2014, and the forced medication

       order, entered on October 9, 2014. M.D.’s notice of appeal, filed on November

       5, 2014, indicates that he is appealing the forced medication order.

       Nonetheless, M.D.’s appellate brief in large part contests the appropriateness

       and sufficiency of the trial court’s involuntary commitment order. M.D. asserts

       that the involuntary commitment order was timely and properly appealed by

       way of the forced medication order. In essence, M.D. maintains that because

       the trial court in its forced medication order altered the grounds for involuntary

       commitment—from a chronic adjustment disorder which made M.D. gravely

       disabled to a schizoaffective disorder which made him dangerous to others—the

       sufficiency of the involuntary commitment order can be contested. IU Health

       objects to M.D.’s attempt to bring the involuntary commitment order into play

       and asserts not only that the appeal is untimely but M.D. “acknowledged that

       the purpose of the [October 9, 2014] hearing was to hear evidence on IU

       Health’s Petition for Forced Medication Order.” (Appellee’s Br. p. 11).


[11]   The record established that on September 30, 2014, the trial court issued an

       involuntary commitment order for a period expected to exceed ninety days.

       Court of Appeals of Indiana | Memorandum Decision | 53A05-1411-MH-515 | June 2, 2015   Page 7 of 15
       Barely seven days later, the trial court received a letter from Dr. Griffith, which

       it characterized—uncontested by the parties—as a petition for a forced

       medication order. At the commencement of the hearing on the petition, the

       trial court reaffirmed Dr. Griffith’s request for a forced medication order.

       During his testimony, Dr. Griffith elaborated on the process of seeking the

       involuntary commitment and the grounds therefor, and testified on M.D.’s

       schizoaffective illness and his dangerous behavior. M.D.’s counsel objected to

       the testimony because “[w]e’re here on a [] motion for a forced medication

       order. [] [T]he regular commitment is not based on any kind of danger or

       violence[.]” (Tr. p. 34). The trial court overruled the objection after asking a

       foundational question as to whether this is the kind of information the doctor

       would rely on in reaching his diagnosis, to which Dr. Griffith responded

       affirmatively. Later during the hearing, the trial court questioned Dr. Griffith

       as to the fact that M.D. “does not always take his medication” and the different

       types of medication M.D. has been prescribed in the past. (Tr. p. 36).


[12]   Although the trial court allowed Dr. Griffith a lot of discretion in presenting

       evidence on the grounds for an involuntary commitment—which were not

       before the court at that time—it clearly attempted to keep the hearing on track

       by asking pertinent questions regarding the request for a forced medication

       order and the medical requirements for issuing such an order. While at first

       glance the forced medication order might alter the grounds for involuntary

       commitment by referencing M.D.’s schizoaffective disorder and dangerousness,

       these comments should be interpreted in the light of the conditions for a forced


       Court of Appeals of Indiana | Memorandum Decision | 53A05-1411-MH-515 | June 2, 2015   Page 8 of 15
       medication order. See In Re Mental Commitment of M.P., 510 N.E.2d 645, 647-48

       (Ind. 1987) (concluding that one of the requisite elements is a current and

       individual medical assessment of the patient’s condition). As such, we cannot

       conclude that the trial court’s hearing on the petition for forced medication was

       in fact a disguised hearing on M.D.’s involuntary commitment. Therefore, if

       M.D. wanted to appeal the involuntary commitment order, he should have filed

       a notice of appeal within thirty days of the trial court’s September 30, 2014

       order, which M.D. failed to do. See Ind. Appellate Rule 9(A)(1).


[13]   Even though M.D. concedes that his appeal to the involuntary commitment

       order was filed outside the thirty day period, he relies on our supreme court’s

       opinion in In the Matter of the Adoption of O.R., 16 N.E.3d 965, 971 (Ind. 2014),

       in an attempt to present the evidentiary sufficiency of the commitment for our

       review. In In the Matter of the Adoption of O.R., our supreme court clarified that

               [t]he untimely filing of a Notice of Appeal is not a jurisdictional defect
               depriving the appellate courts of the ability to entertain an appeal.
               Instead, the timely filing of a Notice of Appeal is jurisdictional only in
               the sense that it is a Rule-required prerequisite to the initiation of an
               appeal in the [c]ourt of [a]ppeals. Timely filing relates neither to the
               merits of the controversy nor to the competence of the courts on
               appeal to resolve the controversy. . . . [T]he right to appeal having
               been forfeited, the question [then becomes] whether there are
               extraordinarily compelling reasons why this forfeited right should be
               restored.
       Id. at 971.


[14]   We are mindful that “our appellate rules exist to facilitate the orderly

       presentation and disposition of appeals . . . and [] our procedural rules are


       Court of Appeals of Indiana | Memorandum Decision | 53A05-1411-MH-515 | June 2, 2015   Page 9 of 15
       merely means for achieving the ultimate end of orderly and speedy justice.” Id.

       at 971-72 (quoting In Re Adoption of T.L., 4 N.E.3d 658, 661 n.2 (Ind. 2014)).

       Even though a forfeited right to appeal can be restored by presenting

       “extraordinarily compelling reasons,” we cannot condone its application in

       what essentially amounts to a collateral attack on a previously issued final

       judgment. See id. at 971. Granting an appellate review of the trial court’s

       involuntary commitment order in the case before us would open the proverbial

       floodgates as any final order at some point during a proceeding could be

       contested by way of a collateral attack of the last order issued. Accordingly, we

       limit our appellate review to the trial court’s forced medication order.1


                                                II. Due Process Rights


[15]   Continuing his characterization of the hearing on Dr. Griffith’s petition for

       forced medication as a second commitment hearing, M.D. contends that his

       due process rights were violated because the trial court failed to follow the

       proceedings prescribed in Indiana Code section 12-26-7-4, the rights of subject

       individuals during regular commitment proceedings.


[16]   However, because we review the appeal to a forced medication order, we find

       that Indiana Code chapter 12-26-2, governing the rights of persons during

       voluntary and involuntary treatment of mentally ill individuals, is more




       1
        IU Health also contends that M.D.’s appellate brief was filed outside the thirty day period after notice of
       completion of transcript. See Ind. Appellate Rule 45(B)(1)(b). However, M.D.’s brief is file-stamped
       February 9, 2014, which was the final day to timely file his appellant’s brief.

       Court of Appeals of Indiana | Memorandum Decision | 53A05-1411-MH-515 | June 2, 2015              Page 10 of 15
       appropriate to the case at hand. Specifically, Indiana Code section 12-26-2-2

       provides:

               Notice of hearings; receipt of copies of petitions or orders; presence
               at hearings; application of section
               Sec. 2 (a) This section applies under the following statutes:
               ***
                       (2) [I.C. §] 23-26-7 [involuntary commitment]
               (b) The individual alleged to have a mental illness has the following
               rights:
                       (1) To receive adequate notice of a hearing so that the
                       individual or the individual’s attorney can prepare for the
                       hearing.
                       (2) To receive a copy of a petition or an order relating to the
                       individual.
                       (3) To be present at a hearing relating to the individual. The
                       individual’s right under this subdivision is subject to the court’s
                       right to do the following:
                                (A) Remove the individual if the individual is disruptive
                                to the proceedings.
                                (B) Waive the individual’s presence at a hearing if the
                                individual’s presence would be injurious to the
                                individual’s mental health or well-being.
                       (4) To be represented by counsel.
[17]   Reviewing the proceedings of the forced medication hearing, it is clear that

       M.D. was granted all the rights afforded to him by statute. Dr. Griffith’s

       request for forced medication was filed on October 7, 2014. The following day,

       the trial court scheduled a hearing for October 9, 2014, and signed a transport

       order to ensure M.D.’s attendance at the hearing. Hearing notices were also

       sent to M.D.’s counsel and to IU Health, and the trial court “provided copies of


       Court of Appeals of Indiana | Memorandum Decision | 53A05-1411-MH-515 | June 2, 2015   Page 11 of 15
       [Dr. Griffith’s letter] to the parties.” (Tr. p. 29). At the day of the scheduled

       hearing, M.D. appeared in person and was represented by counsel. Although

       the trial court was willing to grant M.D.’s counsel a continuance to prepare and

       call witnesses, M.D.’s counsel declined, not knowing if it would be in her

       “client’s best interest to ask for a continuance.” (Tr. p. 30). Accordingly, in

       light of this evidence, we cannot conclude that M.D.’s due process rights were

       violated.


                                        III. Sufficiency of the Evidence


[18]   Lastly, M.D. contends that there is “no clear and convincing evidence that a

       forced medication order is necessary.” (Appellant’s Br. p. 11). Our supreme

       court has addressed the issue of forced medication with antipsychotic drugs as

       follows:

               In order to override a patient’s statutory rights 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. At the hearing, the testimony of the psychiatrist responsible
               for the treatment of the individual requesting review must be presented
               and the patient may present contrary expertise.
               Equally basic to court sanctionable forced medications are the
               following three limiting elements. First, the court must determine that
               there has been an evaluation of each and every other form of treatment
               and that each and every alternative form of treatment has been
               specifically rejected. It must be plain that there exists no less restrictive
               alternative treatment and that the treatment selected is reasonable and

       Court of Appeals of Indiana | Memorandum Decision | 53A05-1411-MH-515 | June 2, 2015   Page 12 of 15
               it the one which restricts the patient’s liberty the least degree possible.
               Inherent in this standard is the possibility that, due to the patient’s
               objection, there may be no reasonable treatment available. This
               possibility is acceptable. The duty to provide treatment does not
               extend beyond reasonable methods. Second, the court must look to
               the cause of the commitment. Some handicapped persons cannot have
               their capacities increased by anti-psychotic medication. The drug
               therapy must be within the reasonable contemplation of the
               committing decree. And thirdly, the indefinite administration of these
               medications is not permissible. Many of these drugs have little or no
               curative value and their dangerousness increases with the period of
               ingestion. The court must curtail the time period within which they
               may be administered. If a patient does not substantially benefit from
               the medication, it should no longer be administered.
       In Re Mental Commitment of M.P., 510 N.E.2d 645, 647-48 (Ind. 1987).


[19]   Following the involuntary commitment hearing on September 30, 2014, M.D.

       was transferred to Centerstone. However, M.D. was re-admitted to IU Health

       on October 1, 2014, because he had “not been taking his meds and needs to be

       in a locked facility for his own safety and the safety of others.” (Appellee’s

       App. p. 12). During the hearing on IU Health’s petition for forced medication,

       Dr. Griffith initially testified about his medical assessment of M.D.’s mental

       illness. He explained that M.D. has a long history of previous admittances on

       the basis of schizophrenia. Based on his current observation of M.D., Dr.

       Griffith reaffirmed the earlier diagnosis and informed the trial court that M.D.

       “clearly becomes violent and threatening[.]” (Tr. p. 33). Dr. Griffith

       elaborated that M.D. “needs forced medication for his underlying

       schizophrenia or schizoaffective bi-polar disease of Invega Sustina or Haldol

       Decanoate.” (Tr. p. 36). Because M.D. does not always take his medications

       as an out-patient, Dr. Griffith recommended a monthly injection of Invega

       Court of Appeals of Indiana | Memorandum Decision | 53A05-1411-MH-515 | June 2, 2015   Page 13 of 15
       Sustina. Based on previous experience, M.D. “does very well” with that: “[h]e

       is not threatening[,] he does not come in the Emergency Room by police

       threatening to kill people at business establishments with a machete. His

       thinking becomes clearer and he becomes a more logical reasonable person.”

       (Tr. p. 37). Turning to Invega’s potential side effects, Dr. Griffith explained

       that “there are no long term side effects that we know of” and the “[b]enefits for

       him far outweigh any risks.” (Tr. pp. 38, 39).


[20]   The limiting factors outlined in Mental Commitment of M.P. are present as well.

       Due to M.D.’s history of refusing to take his medications and, at times, self-

       medication with marijuana, Dr. Griffith considered it necessary to request a

       forced medication order to treat M.D.’s mental illness. A less restrictive

       alternative was attempted by his transfer to Centerstone, but this rapidly proved

       to be unsuccessful. Although the trial court’s order is silent as to the time

       period within which the forced medication order will apply, the order is time-

       limited by statute. Pursuant to Ind. Code § 12-26-15-1(a), a commitment order

       must be reviewed at least annually. Moreover, the trial court directed IU

       Health to “submit a Periodic Report not later than September 30, 2015.”

       (Appellant’s App. p. 6). “While it would have been better for the trial court to

       include the periodic report deadline in its latest . . . forced medication order, the

       statutory review requirement exists regardless of whether the trial court’s order

       mentions it.” See J.S. v. Center for Behavioral Health, 846 N.E.1106, 1115 (Ind.

       Ct. App. 2006), disapproved of on other grounds by Civil Commitment of T.K. v. Dep’t

       of Veterans Affairs, 27 N.E.3d 271 (Ind. 2015). Accordingly, we conclude that IU


       Court of Appeals of Indiana | Memorandum Decision | 53A05-1411-MH-515 | June 2, 2015   Page 14 of 15
       Health presented clear and convincing evidence that M.D. was in need of a

       forced medication order.


                                               CONCLUSION

[21]   Based on the foregoing, we conclude that M.D. did not timely appeal the trial

       court’s involuntary commitment order. With respect to the trial court’s forced

       medication order, we conclude that M.D.’s due process rights were not violated

       during the proceedings and IU Health presented clear and convincing evidence

       to support the issuance of the order.


[22]   Affirmed.


[23]   Bailey, J. and Barnes, J. concur




       Court of Appeals of Indiana | Memorandum Decision | 53A05-1411-MH-515 | June 2, 2015   Page 15 of 15
