                                                                                   FILED
                                                                              Nov 21 2018, 9:33 am

                                                                                   CLERK
                                                                               Indiana Supreme Court
                                                                                  Court of Appeals
                                                                                    and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Joel M. Schumm                                           Andrew B. Howk
      Indianapolis, Indiana                                    Matthew M. Schappa
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      In the Matter of the Civil                               November 21, 2018
      Commitment of T.W.,                                      Court of Appeals Case No.
      Appellant-Respondent,                                    18A-MH-1148
                                                               Appeal from the Marion Superior
              v.                                               Court Probate Division
                                                               The Honorable Steven R.
      St. Vincent Hospital and Health                          Eichholtz, Judge
      Care Center, Inc.,                                       The Honorable Kelly M. Scanlan,
      Appellee-Petitioner                                      Commissioner
                                                               Trial Court Cause No.
                                                               49D08-1804-MH-14684



      Altice, Judge.


                                                Case Summary


[1]   T.W. appeals the trial court’s order for involuntary temporary commitment.

      He argues that the order is defective because it lacked the trial judge’s signature

      and contained only the signature of a commissioner. Additionally, T.W.


      Court of Appeals of Indiana | Opinion 18A-MH-1148 | November 21, 2018                       Page 1 of 20
      contends that there was insufficient evidence to support his temporary

      commitment.


[2]   We affirm.


                                       Facts & Procedural History


[3]   T.W. is an intelligent young man in his late twenties who has been diagnosed

      with schizophrenia since 2013. T.W. does not accept this diagnosis but has

      participated in treatment and taken anti-psychotic medication at times. When

      properly medicated, T.W. is “very friendly, very engaging, [and] amiable”.

      Transcript at 17. He is not aggressive and “does very well when he’s on his

      medication.” Id. at 20.


[4]   A little over a year before the commitment hearing, T.W. was living with his

      mother until an incident occurred where he physically attacked her. T.W. was

      not taking his medication, and he became angry with his mother following a

      minor vehicle accident. He blamed her for distracting him while driving.

      When she responded and grabbed his hand, T.W. choked her and brought her

      to the ground. The police were called, and T.W. was taken to jail. No criminal

      charges were pursued against T.W., but he was taken before the court and

      ordered to take his medication. For the next eleven months, T.W. took his

      medication and attended outpatient treatment at Aspire. T.W. lived with his

      paternal grandmother, and his father (Father) regularly took him to treatment

      during this time.



      Court of Appeals of Indiana | Opinion 18A-MH-1148 | November 21, 2018    Page 2 of 20
[5]   In December 2017, T.W. unilaterally decided to stop taking his medication.

      According to Father, T.W. eventually became more reclusive and withdrawn

      and was easily agitated. T.W. stopped attending treatment. His paranoid

      behaviors increased, and he made multiple reports to the FBI, including that a

      friend was a member of ISIS. In March 2018, T.W. left a note at the local

      library warning that a bomb or chemical weapon might be in the area. Local

      law enforcement and the FBI had multiple interactions with T.W.


[6]   On or about March 22, 2018, T.W. told Father that he was going to kill him,

      which then resulted in a physical altercation. Father took the threat seriously

      and observed that T.W. expressed it with “more maliciousness” than prior

      threats. Id. at 20. The police were called, and T.W. was brought by police to

      the emergency department at St. Vincent Hospital.


[7]   T.W. was admitted to St. Vincent Stress Center between March 22 and 29,

      2018. His treating psychiatrist, Erika Cornett, M.D. (Dr. Cornett), found

      T.W.’s diagnosis of schizophrenia to be evident. She noted his multiple

      contacts with the FBI and his delusional beliefs. T.W., however, continued to

      refuse to accept this diagnosis. Upon his discharge on March 29, T.W. refused

      to take his prescribed anti-psychotic medications. He did agree, however, to

      attend outpatient treatment at Aspire and take medication for anxiety.


[8]   On April 12, 2018, T.W. and Father had a meeting with members of the FBI.

      T.W. was warned by the FBI that his continued false reports could result in

      criminal charges. Father scheduled an emergency appointment at Aspire that


      Court of Appeals of Indiana | Opinion 18A-MH-1148 | November 21, 2018    Page 3 of 20
       same day. At this appointment, T.W. became threatening and aggressive

       toward staff.


[9]    As a result of T.W.’s threatening behavior, a physician with Aspire filed an

       application for T.W.’s emergency detention on April 12, 2018. The physician’s

       emergency statement indicated, regarding the immediacy of the danger, that

       T.W. “has been non compliant with medications, is actively hallucinating, is

       extremely paranoid and exhibits extreme mood lability and potential for

       violence.” Appendix at 19. The emergency detention was judicially authorized,

       and T.W. was admitted to Community North Behavioral Health on the

       afternoon of April 12, 2018.


[10]   T.W. was apparently transferred the following day to St. Vincent Stress Center1

       and again treated by Dr. Cornett. Although T.W. exhibited paranoid

       delusions, he was not aggressive or agitated with Dr. Cornett. T.W. denied

       experiencing hallucinations, which had been reported by hospital staff. T.W.

       continued to reject his diagnosis, believing that he only suffers from OCD and

       anxiety. He took three doses of Risperdal, an anti-psychotic drug, but then

       refused to take any more due to the side effects, including extreme drowsiness.


[11]   On April 17, 2018, St. Vincent Stress Center filed a petition for the temporary

       mental health commitment of T.W. In her physician’s statement, Dr. Cornett

       opined that T.W. suffers from a psychiatric disorder, i.e., schizophrenia. In her



       1
           The details of the transfer are not in the record.


       Court of Appeals of Indiana | Opinion 18A-MH-1148 | November 21, 2018   Page 4 of 20
       professional opinion, Dr. Cornett also indicated that T.W. presents a

       substantial risk of harm to others and is, therefore, dangerous. Specifically, she

       noted that T.W. had threatened to kill Father and that Father is fearful of his

       safety if T.W. were released. Dr. Cornett also indicated that T.W. had acted

       threatening toward a therapist at the outpatient clinic. Dr. Cornett

       recommended a temporary commitment to the St. Vincent Stress Center.


[12]   Commissioner Kelly M. Scanlan presided over the commitment hearing held

       on April 20, 2018, at which Dr. Cornett, Father, and T.W. testified. Dr.

       Cornett testified, among other things, that it was her professional opinion that

       T.W. was a potential danger to others. In this regard, she noted his refusal to

       take anti-psychotic medication and his resulting aggressive behavior.

       Specifically, she referenced his recent behavior at Aspire, his “several

       altercations” with Father, and reports that T.W. had threatened to “put a bullet

       in [Father’s] head.” Id. at 9. Dr. Cornett indicated a concern for

       “dangerousness and violence” if T.W. was released without the needed

       treatment. Id. at 12. Father echoed the same fears: “I mean … the key is I just

       don’t want it to get to a situation where he might actually hurt someone. Or

       hurt himself.” Id. at 22. He emphasized that T.W. needs to be medicated and

       testified that T.W. “is in complete denial that he even has a problem”. Id.

       Indeed, T.W. testified that he “fully disagree[d]” with his schizophrenia

       diagnosis and stated that he was “perfectly fine” when he stopped taking his

       medications. Id. at 25, 29.




       Court of Appeals of Indiana | Opinion 18A-MH-1148 | November 21, 2018      Page 5 of 20
[13]   At the conclusion of the hearing, Commissioner Scanlan expressly found by

       clear and convincing evidence that T.W. suffers from a mental illness and that

       he is both a danger to others and gravely disabled. Thus, Commissioner

       Scanlan granted the temporary commitment. On the same date, Commissioner

       Scanlan signed the written order for temporary commitment. T.W. filed a

       notice of appeal from this order on May 14, 2018.


                                              Discussion & Decision


                                                  Defective Order


[14]   We initially address T.W.’s claim that the order for temporary commitment is

       defective because it contains only the signature of Commissioner Scanlan and

       lacked the required judge’s signature. Indeed, at the time the order was issued,

       Indiana law expressly barred Commissioner Scanlan from entering a final

       appealable order in this case. See Ind. Code § 33-23-5-8;2 Capehart v. Capehart,

       771 N.E.2d 657, 662 (Ind. Ct. App. 2002) (“magistrates and commissioners

       have identical authority”).


[15]   Regardless, T.W. has waived appellate review of this issue because he did not

       object to the commitment order at any point prior to this appeal. “‘[I]t has been

       the long-standing policy of [the Indiana Supreme Court] to view the authority




       2
         This statute has since been amended, effective July 1, 2018. The amendment removed the limitation
       regarding magistrates (and, thus, commissioners) entering a final appealable order. I.C. § 33-23-5-9(a),
       however, still requires that the court “enter the final order” in instances such as this.

       Court of Appeals of Indiana | Opinion 18A-MH-1148 | November 21, 2018                             Page 6 of 20
       of the officer appointed to try the case not as affecting the jurisdiction of the

       court’ – and so ‘the failure of a party to object at trial to the authority of a court

       officer to enter a final appealable order waives the issue for appeal.’” In re

       Adoption of I.B., 32 N.E.3d 1164, 1173 n.6 (Ind. 2015) (quoting Floyd v. State,

       650 N.E.2d 28, 32 (Ind. 1994)); see also City of Indianapolis v. Hicks, 932 N.E.2d

       227, 231 (Ind. Ct. App. 2010) (“defects in the authority of a court officer, as

       opposed to jurisdiction of the trial court itself, to enter a final order will be

       waived if not raised through a timely objection”), trans. denied. “[A]ny

       objection to the authority of an adjudicative officer must be raised at the first

       instance the irregularity occurs, or at least within such time as the tribunal is

       able to remedy the defect.” Hicks, 932 N.E.2d at 231.


[16]   In Hicks, this court held that the appellant had waived a claim of error by failing

       to timely object to an order signed by a magistrate but not a judge. Id. We

       noted that the appellant called the trial court’s attention to the error well after

       the deadline for ruling on the motion to correct error had expired. Id. In other

       words, the appellant “fail[ed] to challenge at the first instance an irregularity

       apparent on the face of the order” and “failed to raise the issue until a point

       when the trial court could no longer correct the error by issuing an amended

       order bearing the trial judge’s signature.” Id. Here, T.W. likewise failed to




       Court of Appeals of Indiana | Opinion 18A-MH-1148 | November 21, 2018        Page 7 of 20
timely object to the order that was signed by only Commissioner Scanlan.3 We,

therefore, conclude that he has waived the issue for our review. 4


                                       Sufficiency of the Evidence




3
  The order was signed by Commissioner Scanlan on April 20, 2018, and T.W. filed his notice of appeal on
May 14, 2018. T.W. had ample time between these dates where he could have filed an objection to the fact
that the commitment order lacked a judge’s signature.
4
  The dissent relies on a recent opinion issued by another panel of this court that found the identical issue
(involving the same commissioner and judge) was not waived despite the fact that it was not raised at the trial
level. See L.J. v. Health & Hosp. Corp, No. 18A-MH-152, slip op. at 7 n.4 (Ind. Ct. App. October 18, 2018).
The L.J. court dismissed the appeal and remanded for the probate court judge to review the matter and enter
a final order. We understand the strong desire to address the clear impropriety of the trial court’s handling of
the matter, which appears to be a pattern, but we cannot agree with its ultimate decision to dismiss the
appeal. Our Supreme Court has expressly disapproved of decisions similar to L.J.:
       We conclude that it is improper for a reviewing court to dismiss an appeal on these grounds
       where no showing has been made that the issue was properly preserved. Instead, the reviewing
       court should deny relief on grounds of waiver. Because the following recent decisions of the Court of
       Appeals hold that the proper procedure in such situations is to dismiss the appeal without regard for whether
       the issue has been properly preserved, the decisions are disapproved: Cartwright v. State (1993), Ind. App.,
       621 N.E.2d 1164; Kirby v. State (1993), Ind. App., 619 N.E.2d 967; Hill v. State (1993), Ind.
       App., 611 N.E.2d 133 (2–1 decision, Buchanan, J., dissenting); Scruggs v. State (1993), 609
       N.E.2d 1148, 1150 (2–1 decision, Buchanan, J., dissenting), after remand, (1994), Ind. App., 637
       N.E.2d 175; Green v. State (1989), Ind. App., 540 N.E.2d 130, reh’g denied, (1989), 544 N.E.2d
       172, trans. denied. We cite Senior Judge Buchanan’s dissents in the Scruggs and Hill cases as
       correct statements of the law and precedent in this regard. We commend the Court of Appeals
       for properly applying these principles in Briscoe v. State and, accordingly, deny transfer in Briscoe.
Floyd, 650 N.E.2d at 32-33 (emphasis supplied). Indeed, the first case in the list disapproved by the Supreme
Court – Cartwright – is on par with this case. There, a referee issued a judgment that was not adopted or
approved by the trial court. Our court determined, like the dissent does here, that we lacked jurisdiction
because no appealable final judgment existed. Cartwright, 621 N.E.2d at 1165. We explained: “While a
referee, magistrate or commissioner may preside at a trial, they are not empowered to enter a final order or
judgment.” Id. Based on the trial judge’s failure to adopt and approve the referee’s judgment, we concluded:
       We regret the inconvenience this causes to both the appellant and appellee. However, it is
       incumbent upon the trial judges of this state to either properly appoint a judge pro tempore or a
       special judge, or to adopt and approve the actions of commissioners, magistrates and referees.
       Without strict adherence to the rules for the use of substitute judges, we lack jurisdiction to
       entertain the appeal.
Id. In Floyd, our Supreme Court rejected this type of analysis. We fail to see how the scale of the trial court’s
violation of the relevant statutes grants us the ability to disregard the Court’s directive in Floyd.



Court of Appeals of Indiana | Opinion 18A-MH-1148 | November 21, 2018                                        Page 8 of 20
[17]   On review, we look to the evidence most favorable to the trial court’s decision

       and all reasonable inferences drawn therefrom. In re Commitment of J.B., 766

       N.E.2d 795, 799 (Ind. Ct. App. 2002). Thus, we will not reweigh the evidence

       or judge the credibility of witnesses. Civil Commitment of J.B. v. Community Hosp.

       N., 88 N.E.3d 792, 795 (Ind. Ct. App 2017). “If the trial court’s commitment

       order represents a conclusion that a reasonable person could have drawn, the

       order must be affirmed, even if other reasonable conclusions are possible.” J.B.,

       766 N.E.2d at 799.


[18]   In an involuntary commitment case, the petitioner is required to prove by clear

       and convincing evidence: “(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) (emphasis supplied). “Clear and

       convincing evidence requires the existence of a fact to be highly probable.”

       J.B., 88 N.E.3d at 795.


[19]   On appeal, T.W. does not challenge the trial court’s determination that he is

       mentally ill. Rather, he contends that there is insufficient evidence to establish

       that he is either dangerous or gravely disabled. Because only one of these

       factors need be established to support an involuntary commitment, we focus

       our analysis on the sufficiency of the evidence regarding whether T.W. is

       dangerous.


[20]   An individual is dangerous for purposes of the involuntary commitment statute

       where he, “as a result of mental illness, presents a substantial risk that the


       Court of Appeals of Indiana | Opinion 18A-MH-1148 | November 21, 2018      Page 9 of 20
       individual will harm the individual or others.” Ind. Code § 12-7-2-53. “The

       evidence must indicate ‘that the behavior used as an index of a person’s

       dangerousness would not occur but for the person’s mental illness.’” J.B., 88

       N.E.3d at 796 (quoting B.M. v. Ind. Univ. Health, 24 N.E.3d 969, 972 (Ind. Ct.

       App. 2015), trans. denied). In this case, the trial court specifically found that

       T.W. was a danger to others.


[21]   T.W. argues that St. Vincent Stress Center failed to offer clear and convincing

       evidence that he presented a substantial risk to others. T.W. notes that there

       was no evidence that he threatened or harmed anyone at the hospital in the

       days leading up to his commitment hearing. Further, he argues that his

       physical attack of his mother took place more than a year before the

       commitment hearing.


[22]   We reject T.W.’s invitation to reweigh the evidence. The record establishes

       that when unmedicated, T.W.’s schizophrenia takes over and he becomes

       aggressive, paranoid, delusional, and dangerous. T.W.’s violent attack of his

       mother – choking her and taking her to the ground – happened at a time when

       he was not taking anti-psychotic medication. This violence led to his

       immediate arrest. Thereafter, T.W. took his medication as prescribed and

       attended outpatient treatment at Aspire for about eleven months. During this

       time, T.W. was back to his old, non-violent self. He was “very friendly, very

       engaging, [and] amiable”. Transcript at 17. This quickly changed when in

       December 2017, T.W. decided to stop taking his medication and attending

       treatment. As a result, T.W. became reclusive, withdrawn, and easily agitated.

       Court of Appeals of Indiana | Opinion 18A-MH-1148 | November 21, 2018      Page 10 of 20
       He made unfounded reports to the FBI regarding another individual and left a

       note at the library warning of a bomb or chemical weapons. Additionally,

       T.W. made violent, malicious threats against Father, which Father took

       seriously. T.W. also engaged in a physical confrontation with Father in late-

       March 2018, which led to police officers taking T.W. to the emergency

       department and a week-long admission to the St. Vincent Stress Center. Less

       than two weeks after his inpatient discharge, T.W. became threatening and

       aggressive toward Aspire staff during an outpatient therapy session on April 12,

       2018. This led to his emergency involuntary detention that same day.


[23]   Dr. Cornett testified that it was her professional opinion that T.W. was a

       potential danger to others due to his schizophrenia and refusal to take anti-

       psychotic medication. She indicated a concern for “dangerousness and

       violence” if T.W. was released without the needed treatment. Id. at 12. Father

       expressed similar fears that T.W. might actually hurt someone.


[24]   “[A] trial court is not required to wait until harm has nearly or actually

       occurred before determining that an individual poses a substantial risk of harm

       to others.” C.J. v. Health & Hosp. Corp. of Marion Cty., 842 N.E.2d 407, 410 (Ind.

       Ct. App. 2006). Based on the evidence presented at the commitment hearing, a

       reasonable person could conclude that T.W. posed a substantial risk of harm to




       Court of Appeals of Indiana | Opinion 18A-MH-1148 | November 21, 2018    Page 11 of 20
       others. Thus, we affirm the trial court’s conclusion that T.W. was dangerous to

       others at the time of his temporary involuntary commitment. 5


[25]   Judgment affirmed.


       Brown, J., concurs.


       Tavitas, J., dissents with opinion.




       5
        Because we conclude sufficient evidence was presented with respect to dangerousness, we need not consider
       T.W.’s argument related to the trial court’s conclusion that he was gravely disabled. See id. at 410 n.3.

       Court of Appeals of Indiana | Opinion 18A-MH-1148 | November 21, 2018                        Page 12 of 20
                                                 IN THE
          COURT OF APPEALS OF INDIANA

      In the Matter of the Civil                               Court of Appeals Case No.
      Commitment of T.W.,                                      18A-MH-1148

      Appellant-Respondent,

              v.

      St. Vincent Hospital and Health
      Care Center, Inc.,
      Appellee-Petitioner.



      Tavitas, Judge, dissenting.


[1]   I respectfully dissent. I differ with the majority’s determination that waiver

      analysis is dispostive here. I am guided by In Re Civil Commitment of L.J., No.

      18A-MH-152, slip op. at pp. 4-6, 8 (Ind. Ct. App. Oct. 18, 2018), in which a

      panel of this court recently held that the trial judge’s entry of a blanket business

      record order summarily approving all of the commissioner’s recommendations

      without review by the trial court warranted dismissal of the respondent’s appeal

      and remand to the trial court judge to review the matter and enter a final order.

      The L.J. panel reasoned that, absent any evidence that the trial judge: (1)

      reviewed L.J.’s case; (2) specifically referenced L.J.’s civil commitment; (3)

      indicated an intention to affirm the commissioner’s decision as the final order;


      Court of Appeals of Indiana | Opinion 18A-MH-1148 | November 21, 2018                Page 13 of 20
      and (4) entered the affirmation of the commissioner’s work under a business

      record cause number associated with L.J., the panel was “left without any

      assurance that the court fulfilled its obligation to review and ‘enter the final

      order.’” Id. at 8.


[2]   Several rules and statutes are relevant here. Appellate Rule 5(A), governing

      appeals from final judgments, provides: “Except as provided in Rule 4, 6 the

      Court of Appeals shall have jurisdiction in all appeals from Final Judgments of

      Circuit, Superior, Probate, and County Courts, notwithstanding any law,

      statute or rule providing for appeal directly to the Supreme Court of Indiana.”


[3]   Trial Rule 59(A) provides that a motion to correct error is a prerequisite for

      appeal only under the following circumstances:


                 (A) Motion to correct error--When mandatory. A Motion to
                 Correct Error is not a prerequisite for appeal, except when a
                 party seeks to address:


                          (1) Newly discovered material evidence, including alleged
                          jury misconduct, capable of production within thirty (30)
                          days of final judgment which, with reasonable diligence,
                          could not have been discovered and produced at trial; or


                          (2) A claim that a jury verdict is excessive or inadequate.




      6
          Appellate Rule 4 governs the jurisdiction of our supreme court.


      Court of Appeals of Indiana | Opinion 18A-MH-1148 | November 21, 2018             Page 14 of 20
              All other issues and grounds for appeal appropriately preserved during
              trial may be initially addressed in the appellate brief.


      Ind. Trial Rule 59(A) (bold emphasis in original, italics added).


[4]   A number of Indiana statutes in Title 33, governing courts and court officers,

      are implicated. Indiana Code Section 33-23-5-5, enumerating the powers of a

      magistrate judge, states nineteen acts that a magistrate “may” take.


[5]   In April 2018, when the commitment order was entered, Indiana Code Section

      33-23-5-8 provided as follows:


              Except as provided under sections 5(14) and 9(b) of this chapter,
              a magistrate:


              (1) does not have the power of judicial mandate; and


              (2) may not enter a final appealable order unless sitting as a judge
              pro tempore or a special judge.


      Ind. Code § 33-23-5-8 (2008). Effective July 1, 2018, Indiana Code Section 33-

      23-5-8 was amended to eliminate the restriction on the ability of magistrates

      and commissioners to enter final appealable orders. The current statute, thus

      provides, “[e]xcept as provided under sections 5(14) and 9(b) of this chapter, a

      magistrate does not have the power of judicial mandate.”


[6]   Indiana Code Section 33-23-5-9 provides that, except in cases of a criminal trial

      or guilty plea hearing, a magistrate “shall report findings in an evidentiary



      Court of Appeals of Indiana | Opinion 18A-MH-1148 | November 21, 2018            Page 15 of 20
      hearing, a trial, or a jury’s verdict to the court” and “[t]he court shall enter the

      final order.”


[7]   Indiana Code Section 33-33-49-16, which specifically enumerates the powers of

      probate hearing judges and commissioners and is applicable here, states that an

      appointed probate hearing judge or probate commission “shall be vested by the

      judge of the probate division with suitable powers for the handling of all

      probate matters” including:


                       (6) Taking or hearing evidence on or concerning matters
                       described in this subsection or any other probate,
                       guardianship, or trust matters in litigation before the court.


                       (7) Enforcing court rules.


                       (8) Making reports to the court concerning the judge’s or
                       commissioner’s doings in the proceedings described in this
                       subsection, including reports concerning the
                       commissioner’s findings and conclusions regarding the
                       proceedings.


              However, all matters handled by a hearing judge or commissioner
              under this subsection are under the final jurisdiction and decision of
              the judge of the probate division.

      I.C. § 33-33-49-16 (emphasis added).


[8]   Indiana Code Section 33-33-49-16(e) states,


              A master commissioner appointed by the court under this section
              has the powers and duties prescribed for a magistrate under IC

      Court of Appeals of Indiana | Opinion 18A-MH-1148 | November 21, 2018        Page 16 of 20
              33-23-5-5 through IC 33-23-5-9. A master commissioner shall
              report the findings in each of the matters before the master
              commissioner in writing to the judge or judges of the division to
              which the master commissioner is assigned or as designated by
              the rules of the court.


      It is undisputed that the commissioner had authority to hear the petition for

      commitment; however, the commissioner did not have statutory authority to

      enter a final appealable order. See I.C. § 33-33-49-16(a) (stating that “all matters

      handled by a hearing judge or commissioner under this subsection are under the

      final jurisdiction and decision of the judge of the probate division”). I conclude,

      as did the majority, that the commissioner did not have authority to enter a

      final order here.


[9]   The majority concludes that this issue is waived based on Floyd v. State, 650

      N.E.2d 28 (Ind. 1994), and City of Indianapolis v. Hicks, 932 N.E.2d 227 (Ind. Ct.

      App. 2010), trans. denied. The instant case is distinguishable from Floyd and

      Hicks because this case involves a blanket policy of the trial court rather than a

      mere oversight. A rash of cases involving potentially defective commitment

      orders have appeared before us, and panels of this court have reached varying

      conclusions in conducting appellate review. In my view, much-needed clarity

      could be supplied in the form of a statute or court rule specifically tailored to

      cases in which litigants risk waiving their claims of error due, not to the

      litigant’s acts or omissions, but rather, owing to the acts or omissions of

      presiding trial judges.



      Court of Appeals of Indiana | Opinion 18A-MH-1148 | November 21, 2018     Page 17 of 20
[10]   The instant case is not a case in which an inadvertent oversight by the trial

       court resulted in a final order that was not approved by the trial court judge.

       Rather, here, as in L.J., the trial court judge expressly abdicated his statutory

       duties under Indiana Code Section 33-33-49-16. The trial court judge issued a

       blanket order under the court business docket, which summarily approved all

       recommendations of the court commissioner without specifically reviewing the

       case(s) and indicating the trial court judge’s intention to approve the

       commissioner’s recommendations relating thereto. In so doing, the trial court

       clearly delegated to the commissioner, without statutory authority, the trial

       court’s duty to render final decisions.


[11]   Here, the trial court judge was required to enter a “decision,” pursuant to

       Indiana Code Section 33-33-49-16(a) and failed to do so. The waiver analysis

       employed by the majority falls short under these unique circumstances because

       the respondent is penalized for failing to “timely” urge the trial court judge to

       perform his or her statutory duty. A litigant cannot waive a trial court judge’s

       exercise of statutory responsibility.


[12]   Deeming the defective order issue waived because it was not raised below

       effectively allows the trial court judge to abdicate his duties and obligates the

       litigant to remind the judge of his duties by filing a motion in the very court that

       has abandoned its duties. Such abdication by trial court judges should not be

       litigants’ and appellate courts’ problem to resolve.




       Court of Appeals of Indiana | Opinion 18A-MH-1148 | November 21, 2018     Page 18 of 20
[13]   Again, I suspect that clarification, by statute or trial rule, of a litigant’s risk of

       waiver under circumstances such as these may be necessary. Perhaps a trial

       rule that addresses such a defect would assist litigants who are filing an appeal

       inasmuch as a motion to correct error was not required here before T.W.

       initiated his appeal. By what mechanism does a litigant who finds him/herself

       in this situation receive notice of the significant, and likely certain, risk of

       waiver? A trial rule or statute that discusses waiver and prescribes a time frame

       for raising the issue before the trial court would put such a litigant on notice in

       cases in which the underlying order was not duly approved and counter-signed

       by the trial court judge.


[14]   Due to the plain language of Indiana Code Section 33-33-49-16(a), I find that

       the order of commitment was not a final appealable order. As in L.J., we

       should “reject the trial court’s entry of a business record with no reference to

       specific case numbers as a method for adopting the findings and conclusions of

       a magistrate or commissioner as to any specific case heard during a specified

       time period” and determine that the underlying commitment order is not a final

       order. See L.J., No. 18A-MH-152, slip op. at p. 3.


[15]   For these reasons, the underlying commitment order here is defective because

       the trial judge did not specifically review and approve the commissioner’s

       recommendations as to T.W. Accordingly, I would remand to the trial court

       for review and approval of the commissioner’s recommended order for

       temporary commitment. I acknowledge that the issue is moot as to this



       Court of Appeals of Indiana | Opinion 18A-MH-1148 | November 21, 2018         Page 19 of 20
particular appellant; however, to correct the record, such approval by the trial

court judge is necessary.




Court of Appeals of Indiana | Opinion 18A-MH-1148 | November 21, 2018   Page 20 of 20
