MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                        FILED
this Memorandum Decision shall not be                              Jan 18 2017, 8:47 am

regarded as precedent or cited before any                               CLERK
                                                                    Indiana Supreme Court
court except for the purpose of establishing                           Court of Appeals
                                                                         and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ana M. Quirk                                             Curtis T. Hill, Jr.
Muncie, Indiana                                          Attorney General of Indiana

                                                         Frances Barrow
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

K.J.,                                                    January 18, 2017
Appellant,                                               Court of Appeals Case No.
                                                         18A02-1607-MH-1610
        v.                                               Appeal from the Delaware Circuit
                                                         Court
State of Indiana,                                        The Honorable Linda Ralu Wolf,
Appellee.                                                Judge
                                                         The Honorable Timothy Hollems,
                                                         Master Commissioner
                                                         Trial Court Cause No.
                                                         18C03-1310-MH-201



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A02-1607-MH-1610 | January 18, 2017     Page 1 of 15
                                          Case Summary
[1]   Appellant K.J. suffers from Schizo-Affective Disorder. As a result of her

      condition, K.J. was committed to the Division of Mental Health and Addiction

      of Richmond State Hospital (“RSH”) in November of 2013. At some point,

      K.J.’s condition stabilized and her commitment was transferred to a less

      restrictive placement with Meridian Health Services (“MHS”). In July of 2016,

      a representative of MHS filed a petition seeking an expedited review of K.J.’s

      case and requesting a more restrictive placement. Following a hearing, the trial

      court issued an order continuing the regular commitment of K.J. and placed her

      at RSH.


[2]   On appeal, K.J. contends that the evidence is insufficient to support the trial

      court’s order continuing her regular commitment. She also contends that the

      statutes setting forth the procedures relating to regular commitments are

      unconstitutional. Concluding otherwise, we affirm.



                            Facts and Procedural History
[3]   On October 2, 2013, K.J. was seen by medical personnel in the emergency

      room at Ball Memorial Hospital (“BMH”). Merrill McKinley, a licensed

      medical social worker with MHS, filed an emergency detention petition and

      K.J. was subsequently admitted to BMH after the treating medical personnel

      determined that she was gravely disabled and in need of immediate restraint.

      At the time, K.J. appeared to be delusional and exhibited tangential thinking,


      Court of Appeals of Indiana | Memorandum Decision 18A02-1607-MH-1610 | January 18, 2017   Page 2 of 15
      auditory hallucinations, and paranoid thoughts. K.J. was subsequently

      diagnosed with suffering from Schizo-Affective Disorder.


[4]   Following a hearing on the emergency detention petition, the trial court found

      that K.J. (1) was suffering from Schizo-Affective disorder, (2) was gravely

      disabled, and (3) was in need of commitment to an appropriate mental health

      facility for a period that was expected to exceed ninety days. The trial court

      further found that the least restrictive environment suitable to provide K.J. with

      the necessary care was a mental health facility operated by Appellee the State of

      Indiana (“the State”). K.J. was subsequently admitted to RSH on or about

      November 27, 2013.


[5]   On September 19, 2014, the Superintendent of RSH filed the statutorily-

      mandated annual periodic report on a regularly-committed individual. In this

      report, the Superintendent of RSH noted that K.J.’s condition had stabilized,

      she met all discharge criteria, and she was not a danger to herself or others. In

      light of K.J.’s improved condition, the Superintendent of RSH requested that

      K.J. be transferred to MHS. On September 24, 2014, the trial court entered an

      order continuing K.J.’s regular commitment without first conducting a hearing. 1

      K.J. was then discharged from RSH and transferred to MHS. 2




      1
          K.J. does not challenge this order in the instant appeal.
      2
        On September 27, 2014, K.J. was again admitted to BMH after presenting with auditory
      hallucinations, racing thoughts, extreme agitation, extreme confusion, and displaying suicidal

      Court of Appeals of Indiana | Memorandum Decision 18A02-1607-MH-1610 | January 18, 2017   Page 3 of 15
[6]   On September 2, 2015, an appropriate representative of MHS filed the

      statutorily-mandated annual periodic report on a regularly-committed

      individual. This report indicated that K.J. suffered from Schizo-Affective

      Disorder, Borderline Personality Disorder, and Polysubstance Dependence.

      The report further indicated that, while K.J. was not a danger to herself, she

      was gravely disabled. On September 3, 2015, the trial court entered an order

      continuing K.J.’s regular commitment without first conducting a hearing. 3


[7]   On October 6, 2015, BMH filed an application for the emergency detention of a

      mentally-ill and dangerous person. The application indicated that K.J. heard

      voices that told her to overdose on pills, was emotionally unstable and

      distraught, had delusional thoughts, and felt overwhelmed and hopeless. The

      application also indicated that K.J. was suicidal and was suffering from

      hallucinations. K.J. was dismissed from the hospital on October 19, 2015.


[8]   On June 7, 2016, MHS filed a petition for expedited review of K.J.’s case. The

      petition also included a request for more restrictive placement. The petition

      indicated that K.J.’s condition had not improved and that she was currently in

      the inpatient unit at BMH. The petition further indicated that K.J. had

      previously been admitted to BMH’s Psychiatry Unit from May 17-20, 2016 and




      thoughts. Though the exact date is not clear from the record, she was subsequently discharged
      back to MHS.
      3
          K.J. does not challenge this order in the instant appeal.

      Court of Appeals of Indiana | Memorandum Decision 18A02-1607-MH-1610 | January 18, 2017   Page 4 of 15
       on May 31, 2016, “and now needs to be committed to a State operated facility.”

       Appellant’s App. Vol. II, p. 73.


[9]    The trial court conducted a hearing on MHS’s petition on June 10, 2016.

       During this hearing, Carol Miller, a Behavior Clinician at MHS who worked

       with K.J. on a regular basis, testified that K.J.’s condition had deteriorated such

       that she believed that a more restrictive placement was necessary. Also during

       this hearing, Dr. Rohit Borkhetaria, a staff psychiatrist with MHS who has

       treated K.J., testified that K.J. suffers from “Schizo-Affective Disorder,

       Unspecified Anxiety Disorder, Poly-Substance Abuse Disorder, by history, and

       Borderline Personality Disorder.” Tr. p. 10. Dr. Borkhetaria testified that

       based on K.J.’s current condition, a more restrictive placement was necessary to

       effectively treat K.J. Dr. Borkhetaria testified that K.J. was a danger to herself

       and suffered from “a substantial impairment or obvious deterioration of her

       judgment, reasoning or behavior that results in her inability to function

       independently[.]” Tr. p. 12.


[10]   Following the conclusion of the hearing, the trial court issued an order in which

       it found that K.J. continues to suffer from mental illness and is both dangerous

       to herself and gravely disabled. The trial court further found that RSH is the

       least restrictive environment suitable to provide her with the necessary care,

       treatment, and protection. The trial court ordered that K.J. should continue

       under a regular commitment and placed K.J. at the RSH. This appeal follows.



                                 Discussion and Decision
       Court of Appeals of Indiana | Memorandum Decision 18A02-1607-MH-1610 | January 18, 2017   Page 5 of 15
[11]   On appeal, K.J. challenges the trial court’s commitment order by arguing that

       the evidence presented is insufficient to prove that a regular commitment is

       necessary. K.J. alternatively argues that Indiana Code chapter 12-26-15, which

       sets forth the procedures which are to be followed when completing the

       required annual review of a regular commitment, is unconstitutional.


                               I. Sufficiency of the Evidence
                                       A. Standard of Review
[12]           When reviewing a challenge to the sufficiency of the evidence
               with respect to commitment proceedings, we will only look to the
               evidence most favorable to the trial court’s decision and all
               reasonable inferences drawn therefrom. Golub v. Giles, 814
               N.E.2d 1034, 1038 (Ind. Ct. App. 2004), trans. denied. In
               reviewing the evidence supporting the judgment, we may neither
               reweigh the evidence nor judge the credibility of the witnesses.
               Id. “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. 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.


       M.Z. v. Clarian Health Partners, 829 N.E.2d 634, 637 (Ind. Ct. App. 2005).


[13]   In completing this review, we acknowledge that a civil commitment is a

       significant deprivation of liberty that requires due process protections. Civil

       Commitment of W.S. v. Eskenazi Health, Midtown Cmty. Mental Health, 23 N.E.3d

       29, 33 (Ind. Ct. App. 2014) (internal quotation omitted), trans. denied. “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
       Court of Appeals of Indiana | Memorandum Decision 18A02-1607-MH-1610 | January 18, 2017   Page 6 of 15
       is demonstrated by idiosyncratic behavior.” Id. (internal quotation omitted).

       As such, the petitioner seeking a civil commitment is required to prove by clear

       and convincing evidence that the individual for whom the commitment is

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

       (3) commitment is appropriate. Id. (citing Ind. Code § 12-26-2-5(e)).


[14]   “In order to carry its burden of proof, the petitioner is not required to prove that

       the individual is both dangerous and gravely disabled.” Id. (internal quotation

       omitted). “However, there is no constitutional basis for confining a mentally ill

       person who is not dangerous and can live safely in freedom.” Id. (internal

       quotation omitted).


                                                B. Analysis
[15]   We initially note that K.J. does not challenge the trial court’s determination

       that she suffers from mental illness pursuant to Indiana Code section 12-7-2-

       130, which defines mental illness as “a psychiatric disorder that: (A)

       substantially disturbs an individual’s thinking, feeling, or behavior; and (B)

       impairs the individual’s ability to function.” Instead, K.J. argues that the State

       failed to present sufficient evidence to support the trial court’s determination

       that she is gravely disabled. The term “gravely disabled” is defined as follows:


               a condition in which an individual, as a result of mental illness, is
               in danger of coming to harm because the individual:
                     (1) is unable to provide for that individual’s food,
                     clothing, shelter, or other essential human needs; or
                     (2) has a substantial impairment or an obvious
                     deterioration of that individual’s judgment,

       Court of Appeals of Indiana | Memorandum Decision 18A02-1607-MH-1610 | January 18, 2017   Page 7 of 15
                       reasoning, or behavior that results in the individual’s
                       inability to function independently.


       Ind. Code § 12-7-2-96.

               As we have often noted, because this statute is written in the
               disjunctive, a trial court’s finding of grave disability survives if we
               find that there was sufficient evidence to prove either that the
               individual is unable to provide for [her] basic needs or that [her]
               judgment, reasoning, or behavior is so impaired or deteriorated
               that it results in [her] inability to function independently.


       Civil Commitment of W.S., 23 N.E.3d at 34 (citing T.A. v. Wishard Health Servs.,

       950 N.E.2d 1266, 1271 n. 2 (Ind. Ct. App. 2011); A.L. v. Wishard Health Servs.,

       934 N.E.2d 755, 762 n. 2 (Ind. Ct. App. 2010), trans. denied).


[16]   Here, the evidence most favorable to the trial court’s determination that K.J. is

       gravely disabled indicates that K.J. continues to suffer from a psychiatric

       disorder such that she is both (1) a danger to herself and (2) suffers from a

       substantial impairment which renders her unable to function independently.

       Miller, who, again, has worked with K.J. at MHS on a regular basis, testified

       during the June 16, 2016 hearing that K.J.’s condition had deteriorated such

       that she believed that a more restrictive placement was necessary. Specifically,

       Miller testified as follows:


               [K.J.] has been increasingly getting worse with her symptoms to
               the point that our staff is no longer able to manage her care. We
               have a deep fear of her being either suicidal, drug overdose, [or]
               homicidal. She has been very hostile toward her family to the
               point that they are afraid for their safety. She makes very

       Court of Appeals of Indiana | Memorandum Decision 18A02-1607-MH-1610 | January 18, 2017   Page 8 of 15
        impulsive decisions that, you know, put her in harmful
        situations. She’s not really taking her medication like she used,
        you know, like she should. Even though we go every day to
        watch her take her morning meds, she doesn’t always take her
        evening meds. Like, we’ll sit down, talk to her and make a plan
        of treatment. She is not very cooperative with her treatment.
        We have a hard time, you know, getting her to be compliant.
        Understanding, you know, the choices she makes impacts her
        life, you know, in a negative way. She’s been hospitalized five
        (5) times in the last month. I mean as soon as she gets out of this
        inpatient, she’s back in the ER. Usually she is either drug
        seeking or she’s psychotic.


Tr. pp. 5-6. Miller further testified that she believed K.J. was a danger to

herself, stating as follows:

        She put herself in some risky situations that has really, you know,
        concerned the team.… she had got, she was released from
        inpatient a couple weeks ago, she went out and got alcohol, and
        got drunk. Her mom called us saying that, you know, she came
        there drunk and, I mean, it was like an ongoing situation from
        the time she got out of the hospital to the time, for the next four
        (4) days, trying to, you know, resolve that issue, work with her
        on, you know, using better decision, judgment, you know, using
        her coping skills, you know, understanding that, you know,
        drinking, drugging is not the way to go, especially when you
        have a mental illness, make sure she [is] taking her medication,
        you know, communicating with her family. She would go to her,
        her mom[’s] house and get disruptive. Her mom had to call the
        police on her, and I had came [sic] that day to take her to see [the
        doctor], and I told her, I said, well, I said if the police come here
        let them know that she’s at [MHS]. And she saw [the doctor],
        and then, the next thing I know she, she, um, a couple hours
        later, a few hours later, she went to the ER saying that she was
        psychotic, delusional and paranoid.


Court of Appeals of Indiana | Memorandum Decision 18A02-1607-MH-1610 | January 18, 2017   Page 9 of 15
       Tr. pp. 6-7. Miller also testified that she believed that K.J. suffered from a

       substantial impairment or an obvious deterioration in her judgment which

       rendered her unable to function.


[17]   In addition, Dr. Borkhetaria, who, again, has treated K.J. at MHS, testified that

       K.J. suffers from “Schizo-Affective Disorder, Unspecified Anxiety Disorder,

       Poly-Substance Abuse Disorder, by history, and Borderline Personality

       Disorder.” Tr. p. 10. Dr. Borkhetaria testified that based on K.J.’s current

       condition, a more restrictive placement was necessary to effectively treat K.J.

       Dr. Borkhetaria testified that K.J. was a danger to herself and suffered from “a

       substantial impairment or obvious deterioration of her judgment, reasoning or

       behavior that results in her inability to function independently[.]” Tr. p. 12.


[18]   The foregoing evidence clearly and convincingly demonstrates that K.J. is in

       danger of coming to harm because she suffers from a substantial impairment of

       her judgment, reasoning, and behavior. The evidence further demonstrates that

       in light of this impairment, K.J. is unable to function independently. Based

       upon the evidence presented, the trial court’s determination that K.J. is gravely

       disabled is reasonable. As such, we conclude that the trial court’s order

       providing for the continuation of K.J.’s regular commitment is supported by

       clear and convincing evidence. K.J.’s contention to the contrary is merely an

       invitation for this court to reweigh the evidence, which we will not do. See

       M.Z., 829 N.E.2d at 637.




       Court of Appeals of Indiana | Memorandum Decision 18A02-1607-MH-1610 | January 18, 2017   Page 10 of 15
                                 II. Constitutional Concerns
[19]   K.J. alternatively argues that Indiana Code chapter 12-26-15 is unconstitutional

       because it does not require an automatic hearing on the statutorily-mandated

       annual review of a regular commitment, but rather places the burden on the

       committed individual, or a representative of the committed individual, to

       request a hearing on said review.


                             A. Indiana Code Chapter 12-26-15
[20]   With respect to an individual subject to a regular commitment, Indiana Code

       section 12-26-15-1 provides that “[a]t least annually, … the superintendent of

       the facility or the attending physician including the superintendent or attending

       physician of an outpatient therapy program, shall file with the court a review of

       the individual’s care and treatment.” This review “must contain a statement of

       the following: (1) [t]he mental condition of the individual[;] (2) [w]hether the

       individual is dangerous or gravely disabled[; and] (3) [w]hether the individual:

       (A) needs to remain in the facility; or (B) may be cared for under a

       guardianship.”


[21]   “Upon receipt of the report required by section 1 of this chapter, the court shall

       do one (1) of the following: (1) [o]rder the individual’s continued custody, care,

       and treatment in the appropriate facility or therapy program[;] (2) [t]erminate

       the commitment or release the individual from the therapy program[; or] (3)

       [c]onduct a hearing [.]” Ind. Code § 12-26-15-2(a) (emphasis added). “The




       Court of Appeals of Indiana | Memorandum Decision 18A02-1607-MH-1610 | January 18, 2017   Page 11 of 15
       court may, in order to make provision for the individual’s continued care,

       appoint a guardian for the individual.” Ind. Code § 12-26-15-2(b).


[22]           Upon receiving a copy of the court order, the individual or the
               individual’s representative may request a hearing for review or
               dismissal of the commitment or order concerning the therapy
               program. The right to review of the regular commitment or
               therapy order is limited to one (1) review each year, unless the
               court determines that there is good cause for an additional
               review.


       Ind. Code § 12-26-15-3(a). “When a hearing request is received, the court shall

       set a hearing date and provide at least five (5) days notice to all of the following:

       (1) [t]he individual[;] (2) [t]he individual’s counsel[; and] (3) [o]ther interested

       parties.” Ind. Code § 12-26-15-3(b). The hearing may be held “at a facility or

       other suitable place not likely to have a harmful effect on the individual’s health

       or well-being.” Ind. Code § 12-26-6-5.


                                                B. Analysis
[23]   In arguing that Indiana Code chapter 12-26-15 violates a committed

       individual’s right to due process, K.J. relies on our prior opinion in In re Matter

       of Tedesco, 421 N.E.2d 726 (Ind. Ct. App. 1981). This reliance is misplaced,

       however, because Tedesco can easily be distinguished from the instant matter.


[24]   In Tedesco, Tedesco’s father filed a petition for the involuntary regular

       commitment of Tedesco. 421 N.E.2d at 727. In this petition, Tedesco’s father

       alleged that Tedesco talked to dead relatives, threatened to kill his father and

       brothers, and was suicidal. Id. Tedesco was detained in the Madison State

       Court of Appeals of Indiana | Memorandum Decision 18A02-1607-MH-1610 | January 18, 2017   Page 12 of 15
       Hospital a for a period of fourteen days before the trial court conducted a

       probable cause hearing on his father’s petition. Id. On appeal, we were faced

       with the question of whether the delay of fourteen days before conducting a

       hearing following Tedesco’s initial detention violated his due process rights. Id.

       at 728-731. In finding that it did, we acknowledged that a trial court should

       conduct a hearing following an initial detention within a reasonable time and

       found fourteen days did not meet this standard. Id. at 730. However, we

       concluded that absent any indication that Tedesco’s regular commitment

       hearing was tainted by his prehearing detention, dismissal of the proceedings

       was not warranted. Id. at 731. In reaching this conclusion, we noted that

       Tedesco had not challenged the regular commitment hearing as being

       procedurally defective or the sufficiency of the evidence which led the trial court

       to commit him for a period to exceed ninety days. Id.


[25]   Unlike in Tedesco, in the instant matter, K.J. makes no challenge to the initial

       commitment hearing which was conducted in 2013. Instead, she challenges the

       procedures relating to the statutorily-mandated annual review of her case. Our

       conclusion in Tedesco, which, again, considered only the time limitations for

       conducting an initial hearing when committing an individual, therefore has no

       bearing on the question at issue in the instant appeal.


[26]   Further, K.J. does not argue that she was denied a hearing after a request for a

       hearing was made or that the hearing conducted by the trial court was

       procedurally deficient. The record reveals that upon receiving K.J.’s request for

       a hearing, the trial court followed the relevant statutorily-mandated procedures

       Court of Appeals of Indiana | Memorandum Decision 18A02-1607-MH-1610 | January 18, 2017   Page 13 of 15
       for providing notice of and conducting said hearing. During this hearing, K.J.,

       through her attorney, was provided with the opportunity to cross-examine the

       State’s witnesses and to present evidence on her behalf. This is all that is

       required by due process. See Ind. State Bd. of Educ. v. Brownsburg Cmty. Sch.

       Corp., 842 N.E.2d 885, 889 (Ind. Ct. App. 2006) (providing that due process

       generally requires notice, an opportunity to be heard, and an opportunity to

       confront witnesses). K.J., therefore, failed to demonstrate that she was denied

       due process with regard to the challenged order of the trial court.


[27]   Furthermore, even if we were to consider K.J.’s challenges to Indiana Code

       chapter 12-26-15 as a blanket challenge to Indiana Code chapter 12-26-15,

       rather than considering only the facts and circumstances of this case, we

       conclude that such a challenge would also fail. K.J. points to no authority, and

       we find none, suggesting that due process requires that a trial court conduct a

       hearing in all annual reviews of a committed individual’s case. Again,

       “[g]enerally stated, due process requires notice, an opportunity to be heard, and

       an opportunity to confront witnesses.” Id. (citing In re M.L.K., 751 N.E.2d 293,

       295-96 (Ind. Ct. App. 2001)). “The notice provided must be reasonably

       calculated, under all the circumstances, to afford the interested parties an

       opportunity to present their objections.” Id. (citing In re M.L.K., 751 N.E.2d at

       296). “‘Such notice must reasonably convey the required information to the

       affected party, must afford a reasonable time for that party to respond, and is

       constitutionally adequate when the practicalities and peculiarities of the case

       are reasonably met.’” Id. (quoting In re M.L.K., 751 N.E.2d at 296).


       Court of Appeals of Indiana | Memorandum Decision 18A02-1607-MH-1610 | January 18, 2017   Page 14 of 15
[28]   As is set forth above, Indiana Code chapter 12-26-15 provides for notice of a

       trial court order to continue an individual’s commitment to the committed

       individual as well as for an opportunity to be heard. Specifically, Indiana Code

       chapter 12-26-15 provides that upon receiving a copy of the court order, a

       committed individual, or the individual’s representative, may request a hearing

       for review or dismissal of the commitment order. Ind. Code § 12-26-15-3.

       During this hearing, the committed individual, either individually or by

       counsel, is given the opportunity to be heard and to confront the petitioner’s,

       i.e., the State’s, witnesses. This procedure satisfies the requirements of due

       process.4 We therefore conclude that K.J.’s challenge to the constitutionality of

       Indiana Code chapter 12-26-15 is without merit.


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


       Vaidik, C.J., and Brown, J., concur.




       4
         Stated differently, although K.J. argues that a hearing should be conducted automatically
       rather than only upon request, due process requires only that an individual be given the
       opportunity to be heard, an opportunity which is provided for by Indiana Code chapter 12-26-
       15.

       Court of Appeals of Indiana | Memorandum Decision 18A02-1607-MH-1610 | January 18, 2017   Page 15 of 15
