                                                                    FILED
                                                               Jul 20 2017, 8:46 am

                                                                    CLERK
                                                                Indiana Supreme Court
                                                                   Court of Appeals
                                                                     and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEES
Deborah Markisohn                                          Jessica Proctor Barth
Marion County                                              Eskenazi Health
Public Defender Agency                                     Indianapolis, Indiana
Indianapolis, Indiana                                      Bryan H. Babb
                                                           Bose McKinney & Evans LLP
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

A.A.,                                                      July 20, 2017
Appellant-Respondent,                                      Court of Appeals Case No.
                                                           49A02-1610-MH-2286
        v.                                                 Appeal from the Marion Superior
                                                           Court
Eskenazi Health/Midtown                                    The Honorable Steven R.
CMHC,                                                      Eichholtz, Judge
Appellee-Petitioner                                        Trial Court Cause No.
                                                           49D08-1609-MH-31348



Baker, Judge.




Court of Appeals of Indiana | Opinion 49A02-1610-MH-2286 | July 20, 2017                Page 1 of 9
[1]   A.A. was involuntarily committed to Eskenazi Health/Midtown Community

      Mental Health Clinic (“Eskenazi”). He was not present at the commitment

      hearing. A.A. appeals, arguing that he did not validly waive his right to

      personally appear at his commitment hearing, and that he had a due process

      and a statutory right to be present. Eskenazi Health argues that the trial court

      had independent statutory authority to waive A.A.’s right to be present at the

      commitment hearing, and that A.A.’s presence at the commitment hearing

      would have been dangerous to A.A. and others at the hearing. We find that

      neither A.A. nor his counsel could validly waive his right to appear, but that the

      trial court had a statutory right to waive A.A.’s presence. Accordingly, we

      affirm.


                                                      Facts     1




[2]   A.A. is thirty-six years old and has been diagnosed with schizophrenia. He has

      been previously hospitalized and committed.


[3]   On August 29, 2016, A.A.’s mother completed an application for A.A.’s

      emergency detention. On August 31, 2016, the trial court issued an order for

      A.A. to be detained and taken to Eskenazi. On September 7, 2016, Eskenazi

      filed a report following emergency detention.




      1
       We held oral argument in this cause in Indianapolis on June 28, 2017. We thank counsel for their superior
      oral and written presentations.

      Court of Appeals of Indiana | Opinion 49A02-1610-MH-2286 | July 20, 2017                        Page 2 of 9
[4]   On September 12, 2016, a civil commitment hearing took place. A.A. was not

      present. When the trial court asked A.A.’s counsel about A.A., the following

      exchange occurred:


              Court: Good morning, everybody. We are here on a report
              following Emergency Detention. I see that [A.A.] is not present.
              [Counsel for A.A.], can you address that?


              Counsel for A.A.: Yes, Judge. Thank you. I have been
              informed that [A.A.] is agitated. I have tried to call him before
              today’s hearing to talk to him about his case. He would not
              answer the phone. I was informed this morning that he was not
              brought over due to him being agitated. So we are waiving his
              appearance today.


              Court: Thank you. Miss Barth, good morning.


              Counsel for Eskenazi: Good morning, Judge.


              Court: That does raise a question I kind of had, because I looked
              through the files and I see that we always send out a summons or
              fax one over. Do you guys serve them the summons? Like you
              are supposed to?


              Counsel for Eskenazi: Yes.


              Court: Oh, okay. Good. I’m glad to hear that.


              Counsel for Eskenazi: We do Judge, absolutely.


              Court: I’m glad to hear that. Just something that came up one
              day and I was thinking about it. I thought, you would be the

      Court of Appeals of Indiana | Opinion 49A02-1610-MH-2286 | July 20, 2017    Page 3 of 9
               perfect person to ask that question. So, he does have notice of
               the proceedings and he has chosen to waive his right to be
               present. All right . . . .


      Tr. p. 4-5. After hearing testimony, the trial court found that A.A. suffered

      from schizophrenia and that as a result of his mental illness, he was dangerous

      to others and gravely disabled. The trial court issued an order of regular

      commitment. A.A. now appeals.


                                      Discussion and Decision
[5]   A.A. presents two issues on appeal: (1) whether a mentally ill person,

      involuntarily detained under an emergency detention order by a mental health

      institution, can voluntarily waive his right to appear at his commitment

      hearing, and (2) whether the trial court and/or the mentally ill person’s counsel

      can waive his right to appear.2


                    I. A.A.’s Ability to Waive Right to Appear
[6]   A proceeding for an involuntary civil commitment involves a significant liberty

      interest and is subject to due process requirements. T.K. v. Dep’t of Veterans

      Affairs, 27 N.E.3d 271, 273 (Ind. 2015). Due process requires notice, an

      opportunity to be heard, and an opportunity to confront witnesses. Morton v.

      Ivacic, 898 N.E.2d 1196, 1199 (Ind. 2008). The “opportunity to be heard” is a




      2
       A.A. does not challenge the sufficiency of the evidence that supports the trial court’s order of civil
      commitment. Accordingly, we decline to discuss it here.

      Court of Appeals of Indiana | Opinion 49A02-1610-MH-2286 | July 20, 2017                              Page 4 of 9
      fundamental requirement of due process. Id. Effective and timely notice of due

      process rights is essential. Cheek v. State, 567 N.E.2d 1192, 1195 (Ind. Ct. App.

      1991).


[7]   A respondent for a civil commitment hearing cannot voluntarily waive his right

      to be present at a commitment hearing. M.E. v. Department of Veterans Affairs, 64

      N.E.3d 855, 860-61 (Ind. Ct. App. 2016) (noting that “it is difficult, if not

      impossible, to see how an individual who is involuntarily detained under an

      emergency detention order by a mental health institution can be considered able

      to exhibit the competency required to sign a valid waiver in which he

      relinquishes his rights”). Any waiver purporting to relinquish the rights of an

      involuntarily detained individual, or an individual at risk of being involuntarily

      committed, is not valid. Id. at 861.


[8]   Here, A.A. could not have knowingly, voluntarily, and intelligently waived his

      right to personally appear because he was being involuntarily detained in a

      psychiatric ward pending his commitment hearing. A.A. was diagnosed with

      schizophrenia, and Dr. David Pollack, the psychiatry resident intern who

      treated A.A., testified that A.A. “has currently been responding to internal

      stimuli.” Tr. p. 9. A.A. was observed to be talking to himself and laughing,

      being aggressive and impulsive, and having delusions. Like in M.E., we

      conclude that A.A. could not have validly waived his right to appear at his

      commitment hearing.




      Court of Appeals of Indiana | Opinion 49A02-1610-MH-2286 | July 20, 2017   Page 5 of 9
                  II. Counsel and Trial Court’s Right to Waive
[9]    A.A. next argues that neither his counsel nor the trial court could validly waive

       his right to appear at his commitment hearing. A.A. argues that the trial court

       committed fundamental error when it accepted A.A.’s counsel’s statement that

       A.A. waived his right to be present. “Fundamental error is error which is a

       blatant violation of our concepts of fundamental fairness and in which the harm

       is substantial and apparent.” A.L. v. Wishard Health Servs., 934 N.E.2d 755, 758

       (Ind. Ct. App. 2010). Fundamental error occurs when it “is so likely to have

       infected the verdict or judgment that confidence of the trial result has been

       undermined.” Id.


[10]   Initially, we hold that it was error for A.A.’s counsel to waive A.A.’s right to be

       present at the hearing. Counsel had no right, statutory or otherwise, to waive

       this right, and such action goes against the principles of due process. We also

       find that the trial court was too readily disposed to agree to waiver of A.A.’s

       right to be present without seeking more information about A.A.’s current

       mental and physical state.


[11]   Nonetheless, Indiana Code section 12-26-2-2(b) does give trial courts the ability

       to waive a respondent’s right to be present at a hearing. This provision of the

       statute has not previously been addressed by our appellate courts. The statute

       provides in relevant part that an individual alleged to have a mental illness has

       the following rights:




       Court of Appeals of Indiana | Opinion 49A02-1610-MH-2286 | July 20, 2017   Page 6 of 9
               (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.


[12]   Because the statute allows a trial court to waive a respondent’s right to be

       present, we disagree with A.A. that error occurred, let alone fundamental error.

       The information required to establish that A.A.’s presence would be injurious

       to himself entered the record. At the hearing, Dr. David Pollack, who treated

       A.A. at Eskenazi, testified that A.A.’s behavior


                . . . has been very menacing and agitated at times. He’s been
               aggressive. He has struck a staff member. Punched the staff
               member full force causing the staff member to fall back into a
               door jam. Hit his head and fall to the ground. He’s also hit a
               staff member with a towel. He has placed a towel around
               another patient’s neck, before the staff person told him to stop.
               He’s also had to have been given sedating medication several
               times for his agitation. And just general menacing and threats
               toward staff. And he’s also had to have been put in restraints as
               well at times.


       Tr. p. 8. Dr. Pollack further testified that A.A. was diagnosed with

       schizophrenia, has been responding to internal stimuli, has been talking and

       laughing to himself, and has delusions. He also stated that A.A. has been non-


       Court of Appeals of Indiana | Opinion 49A02-1610-MH-2286 | July 20, 2017        Page 7 of 9
       compliant and has resisted medication. A.A.’s mother testified that A.A.

       refused to take his medications, that she called the police following a

       threatening confrontation between A.A. and his brother, and that she feared for

       her own safety after an incident during which A.A. threatened her and her

       grandson with a fork in the kitchen. Absent from the record is evidence about

       A.A.’s behavior when he is taking medication. In sum, the evidence presented

       established that A.A.’s presence would have been injurious to his mental health

       or well-being.


[13]   The statute provides a practical way for a trial court to deal with a respondent

       whose presence at the hearing would be injurious to himself3—but the statute

       does not address the timing of the trial court’s right to waive the respondent’s

       presence. As a matter of first impression, we hold that, in the future, if the

       respondent is not present at the hearing, the trial court’s determination of

       whether it should waive the respondent’s presence must be made at the outset

       of the hearing. To make that determination, evidence must be presented to the

       trial court establishing that the respondent’s presence would be injurious to his

       mental health or well-being. In other words, evidence must address the specific

       components of the statute. This evidence may incorporate by reference




       3
        The parties suggested in the candid oral argument that, if a respondent’s presence would be injurious to
       himself at the hearing, a video conference might alleviate the problem, allowing the respondent to remain
       under care while still participating in the hearing.

       Court of Appeals of Indiana | Opinion 49A02-1610-MH-2286 | July 20, 2017                          Page 8 of 9
       documents such as the application for emergency detention, the report

       following emergency detention, and the physician’s statement.


[14]   We note that in civil commitment cases, a respondent’s presence is central to

       the commitment hearing. By being present, a respondent has the opportunity to

       share with the trial court any concerns he may have, whether it be about

       specific medications, method of taking medications, or other special matters.

       We therefore prompt trial courts, counsel, and caregivers to invoke Indiana

       Code section 12-26-2-2(b) only when the waiver of the right to be present is

       truly needed and supported by the evidence.


[15]   In this case, the evidence established why A.A. should not have been present at

       his commitment hearing as well as why he was not, in fact, present. To redo

       the commitment hearing would not provide any real service to A.A.


[16]   The judgment of the trial court is affirmed.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1610-MH-2286 | July 20, 2017   Page 9 of 9
