                                                                  FILED
                                                             May 17 2018, 2:40 pm

                                                                  CLERK
                                                              Indiana Supreme Court
                                                                 Court of Appeals
                                                                   and Tax Court




                          IN THE

   Indiana Supreme Court
        Supreme Court Case No. 49S02-1711-MH-688

                             A.A.,
                     Appellant (Respondent)

                              –v–

        Eskenazi Health/Midtown CMHC,
                      Appellee (Petitioner)


       Argued: December 19, 2017 | Decided: May 17, 2018

Appeal from the Marion Superior Court, No. 49D08-1609-MH-31348

            The Honorable Steven R. Eichholtz, Judge

    On Petition to Transfer from the Indiana Court of Appeals,
                    No. 49A02-1610-MH-2286



                 Opinion by Chief Justice Rush
        Justices David, Massa, Slaughter, and Goff concur.
Rush, Chief Justice.

   Involuntary civil commitment, no less than imprisonment, is a
tremendous intrusion on personal liberty and autonomy. Individuals
under commitment may be confined against their will, restrained, forcibly
medicated, and even kept in seclusion.

   A person at risk of commitment, whose very liberty is at stake, is
therefore entitled to vigorous due process protections—including the right
to appear in person at a proceeding. That right is codified in Indiana Code
section 12-26-2-2(b), which also gives the trial court authority to waive the
individual’s presence if appearing at the hearing would be injurious to the
person’s mental health or well-being.

   Here, A.A.’s attorney waived A.A.’s right to personally appear. The
hearing proceeded without him, and the trial court ultimately ordered
involuntary civil commitment. A.A. appealed, arguing that the waiver
violated his due process rights. To clarify uncertainty surrounding waiver
of a respondent’s right to appear, we reach several holdings.

   First, a mentally competent civil-commitment respondent may
relinquish the right to appear with a knowing, voluntary, and intelligent
waiver; but an attorney may not waive the right on the respondent’s
behalf. Second, if the trial court independently waives a respondent’s
presence at a commitment hearing, it must do so at the outset of the
proceeding. And, finally, an improper waiver determination is subject to
harmless-error review.

   Because A.A.’s presence was improperly waived and because that error
was not harmless, we reverse and remand for the trial court to vacate the
regular involuntary-commitment order.


Facts and Procedural History
   In August 2016, thirty-six-year-old A.A. lived with his mother, who
grew concerned with his behavior and filed an application for emergency
detention. The application stated that A.A. suffered from a psychiatric




Indiana Supreme Court | Case No. 49S02-1711-MH-688 | May 17, 2018   Page 2 of 20
disorder and that A.A. wasn’t sleeping, was going outside and making
disruptive noises, and wanted to fight family members.

  Two days later, the trial court ordered A.A. detained and transported to
Eskenazi Hospital. Eskenazi then filed the required report following
emergency detention. In the attached physician’s statement, Dr. David
Pollock recommended regular involuntary commitment.

   The trial court held a commitment hearing on September 12, 2016. At
the beginning of the hearing, the trial court asked A.A.’s appointed
counsel why A.A. wasn’t there. A.A.’s counsel replied,

      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.


   After Eskenazi’s counsel confirmed that A.A. had received a summons,
the trial court stated, “So, [A.A.] does have notice of the proceedings and
he has chosen to waive his right to be present.” The hearing proceeded
without A.A.

    Eskenazi’s first witness was Dr. Pollock, who had last seen A.A. three
days prior to the hearing. Dr. Pollock opined that A.A. suffered from
schizophrenia and that because of his mental illness, A.A. was dangerous
to others and gravely disabled. Dr. Pollock also described A.A.’s behavior
since being detained—A.A. had been “menacing” and “aggressive”
toward staff and had required restraints or sedatives at times. The doctor
explained the side effects of recommended medication for A.A. and found
it “highly doubtful” that A.A. would take the medicine voluntarily.

   Dr. Pollock then testified about A.A.’s feelings regarding commitment.
Dr. Pollock was aware that A.A. “had been talking about court,” but did
not know whether A.A. had “given an opinion one way or another” about
being committed—just that A.A. had claimed “he doesn’t need to be in a
hospital.”



Indiana Supreme Court | Case No. 49S02-1711-MH-688 | May 17, 2018    Page 3 of 20
   Eskenazi next called A.A.’s mother to testify. She described her son’s
recent behavior, stating that she feared for her own safety. She also
explained what could be “agitating” her son: A.A.’s father had recently
died, and A.A. wouldn’t be able to attend the funeral.

   A.A.’s counsel, who had never met with or spoken to A.A., presented
no evidence. At the end of the hearing, the trial court found that A.A. was
a danger to others and gravely disabled by his schizophrenia. The court
ordered regular involuntary commitment.

   A.A. appealed, challenging his commitment order. He argued that the
trial court accepted an invalid waiver of his right to appear, denying him
due process.

   The Court of Appeals partly agreed with A.A. Relying on its recent
precedent, the panel held that, for competency reasons, “[a] respondent
for a civil commitment hearing cannot voluntarily waive his right to be
present at a commitment hearing.” A.A. v. Eskenazi Health/Midtown CMHC,
81 N.E.3d 629, 632 (Ind. Ct. App. 2017) (citing M.E. v. Dep’t of Veterans
Affairs (In re Commitment of M.E.), 64 N.E.3d 855, 860–61 (Ind. Ct. App.
2016)). The panel also decided that A.A.’s counsel could not waive A.A.’s
presence and that the trial court “was too readily disposed to agree to
waiver.” Id. at 633.

   But the Court of Appeals found no due process violation. Id. at 632–34.
It noted that a trial court has statutory authority to waive a respondent’s
right to be present in certain situations—such as when the respondent’s
“presence would be injurious to the individual’s mental health or well-
being.” Id. at 633 (quoting Ind. Code § 12-26-2-2(b)(3)(B)). The panel
credited evidence in the record that A.A.’s presence would have been
injurious to himself, but stressed that in future cases a trial court must
make a statutory waiver determination at the outset of a civil-commitment
hearing. Id. at 633–34. Explaining that a new hearing “would not provide
any real service to A.A.,” the Court of Appeals affirmed the regular
involuntary-commitment order. Id. at 634.




Indiana Supreme Court | Case No. 49S02-1711-MH-688 | May 17, 2018   Page 4 of 20
  We granted transfer, 1 vacating the Court of Appeals opinion. Ind.
Appellate Rule 58(A).


Standard of Review
   The parties collectively raise three issues about a respondent’s right to
be present at a commitment hearing. Specifically, we address (1) who can
waive a civil-commitment respondent’s due process right to appear; (2)
whether a trial court exercising its independent statutory authority to
waive a respondent’s presence must do so at the outset of the commitment
hearing; and (3) whether a failure to make a proper waiver determination




1Both A.A. and Eskenazi sought transfer, and we granted both petitions. As explained below,
while Eskenazi had no basis for seeking transfer under our appellate rules, we exercised our
broad jurisdiction to consider its petition.
Our appellate rules authorize parties aggrieved by an “adverse decision” from the Court of
Appeals to seek transfer to our Court. Ind. Appellate Rule 56(B). Here, though, Eskenazi
prevailed in both the trial and appellate courts. The trial court ordered A.A.’s civil
commitment, and the Court of Appeals affirmed that judgment in full. Still, Eskenazi believes
the appellate decision is adverse because its rationale creates potential mischief in how
Eskenazi may have to conduct future commitment proceedings. In other words, although
Eskenazi completely won, it didn’t like the way it won.
Our rule of appellate standing from a trial court is clear. “A party cannot appeal from a
judgment favorable to him.” Clark v. Stout, 105 N.E. 569, 569 (Ind. 1914), abrogated on other
grounds by Clark v. Stout, 183 Ind. 329, 108 N.E. 770 (1915). This same standing rule applies to
appellate litigants seeking transfer to this Court. To state it another way, what counts for
standing purposes is the Court of Appeals’ judgment and not the reasons underlying it. The
appellate decision was thus not adverse to Eskenazi.
Of course, Appellate Rule 56(B) does not limit the Court’s jurisdiction to entertain Eskenazi’s
petition. We have “broad constitutional authority to exercise appellate review and oversight,”
Tyson v. State, 593 N.E.2d 175, 180 (Ind. 1992), in discharging our inherent “duty to act as the
final and ultimate authority” in pronouncing Indiana law, Troue v. Marker, 253 Ind. 284, 288,
252 N.E.2d 800, 803 (1969). Transfer is merely the process by which the Court fulfills its law-
giving function, and the Court may choose to exercise that function even in cases that do not
comply strictly with the letter of the appellate rules for seeking transfer. See Tyson, 593 N.E.2d
at 180. Compare Ind. Const. art. 7, § 4 (“The Supreme Court shall exercise appellate jurisdiction
under such terms and conditions as specified by rules . . . .”), with App. R. 1 (“The Court may,
upon the motion of a party or the Court’s own motion, permit deviation from these Rules.”).



Indiana Supreme Court | Case No. 49S02-1711-MH-688 | May 17, 2018                     Page 5 of 20
is subject to harmless-error review. We evaluate these pure questions of
law de novo. See Hines v. State, 30 N.E.3d 1216, 1219 (Ind. 2015).


Discussion and Decision
    Involuntary civil commitment is a significant deprivation of liberty—
one that “goes beyond a loss of one’s physical freedom” and engenders
“serious stigma and adverse social consequences.” T.K. v. Dep’t of Veterans
Affairs (In re Civil Commitment of T.K.), 27 N.E.3d 271, 273 (Ind. 2015).
Involuntary-commitment respondents thus enjoy due process protections,
id., including notice of the commitment proceeding and an opportunity to
be heard, see Haegert v. Univ. of Evansville, 977 N.E.2d 924, 950 (Ind. 2012).

   The questions here center on A.A.’s due process right to be present and
whether it was violated when his attorney waived his presence and the
trial court agreed to the waiver. Though the issues seem straightforward
at first glance, that impression hides an underlying web of constitutional
and statutory matters. We address these interwoven matters in turn,
beginning with whether a civil-commitment respondent can personally
waive his right to appear at the commitment hearing.


I. A mentally competent respondent may give up
   the right to appear at a civil-commitment hearing
   through a knowing, voluntary, and intelligent
   waiver; however, the respondent’s attorney may
   not waive the right.
   A respondent has a due process right to be present at a civil-
commitment hearing—a hearing that will address, in part, whether the
individual suffers from a mental illness that requires involuntary
commitment. This does not mean, though, that a respondent can never
exhibit the mental competency to waive the right. Rather, appropriate
safeguards can ensure a personal waiver was made knowingly,
voluntarily, and intelligently.



Indiana Supreme Court | Case No. 49S02-1711-MH-688 | May 17, 2018    Page 6 of 20
  Yet, a respondent’s attorney may not waive the respondent’s right to
appear. The statute that codifies a respondent’s due process right to
appear gives the trial court independent authority to waive a respondent’s
appearance but bestows no waiver authority on an attorney.


    A. “Mental illness” and “mental competency” are not
       equivalent.
   Eskenazi and A.A. both argue that the Court of Appeals below
announced an overly broad rule: that a respondent, who necessarily faces
a claim of mental illness as defined by statute, can never be competent to
waive his right to be present at an involuntary-commitment hearing. See
A.A., 81 N.E.3d at 632. They contend that this rule perpetuates the wrong
presumption that “mental illness” is always equivalent to “mental
incompetency.”

   The broad holding stems from M.E., in which another panel addressed
in dicta whether an individual’s written waiver validly forfeited his right
to be present at his civil-commitment hearing:


      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. The [hospital] cannot argue on one hand
      that someone is mentally ill and on the other hand that he is
      competent enough to sign a legal document. In other words, an
      individual cannot be considered so mentally ill that an
      emergency detention is ordered and a petition for regular
      commitment is filed but, simultaneously, competent enough
      that any waiver he may sign is validly obtained. Either an
      individual is competent, or he is not.


M.E., 64 N.E.3d at 860–61.

  We agree with the parties that M.E. conflates mental illness and mental
competency, when Indiana law distinguishes between them. For purposes


Indiana Supreme Court | Case No. 49S02-1711-MH-688 | May 17, 2018    Page 7 of 20
of involuntary commitment, mental illness is defined as “a psychiatric
disorder” that “substantially disturbs an individual’s thinking, feeling, or
behavior” and “impairs the individual’s ability to function.” Ind. Code §
12-7-2-130 (2017). Yet Indiana Code section 12-26-2-8(a) explicitly states
that detention or commitment for a person with mental illness “does not
deprive the individual” of the rights to, among other things, dispose of
property, execute instruments, enter into contracts, and give testimony in
a court of law. This statute shows that even when someone suffering from
mental illness is under a commitment order, that person may still have
the mental competency to perform important legal acts. See generally
Nichols v. Estate of Tyler, 910 N.E.2d 221, 227 (Ind. Ct. App. 2009)
(discussing the mental-capacity standard for entering into a contract for
the sale of real property).

    Indiana courts have likewise distinguished between mental illness and
mental competency. For instance, in Anderson v. State, 699 N.E.2d 257, 260–
61 (Ind. 1998), this Court rejected an argument that counsel was ineffective
for failing to request a competency hearing for a defendant suffering from
schizophrenia. In doing so, we refused to assume that evidence of mental
illness would automatically lead to a determination of mental
incompetency. Id.; see also Hutchison v. State, 82 N.E.3d 305, 312 (Ind. Ct.
App. 2017) (distinguishing between mental illness and mental competency
and citing several cases in support).

    Because both the legislature and caselaw have distinguished mental
illness from mental competency, we disapprove of M.E. to the extent it
equates these terms. A court may not assume that a civil-commitment
respondent is mentally incompetent just because the person is facing a
claim of mental illness. What does this mean, though, for mentally
competent respondents who want to waive their right to appear? It means
that they may waive that right if certain conditions are met.




Indiana Supreme Court | Case No. 49S02-1711-MH-688 | May 17, 2018   Page 8 of 20
    B. Involuntary-commitment respondents may waive the
       right to appear if they are capable of voluntarily,
       knowingly, and intelligently making that decision.
   We arrive at this conclusion by first turning to the statute codifying the
due process right to appear at a civil-commitment hearing. Indiana Code
section 12-26-2-2(b) recognizes the civil-commitment respondent’s right
“[t]o be present at a hearing relating to the individual,” but the statute is
silent on personal waiver of that right. 2

  This silence, though, does not mean that a trial court must refuse a
mentally competent respondent’s personal waiver of his presence at a
commitment hearing. If it did, then the statutory right to be present would
become a requirement to be present—a conclusion unsupported by the
statute’s plain language. See Ind. Alcohol & Tobacco Comm’n v. Spirited Sales,
LLC, 79 N.E.3d 371, 376 (Ind. 2017) (explaining that a court starts with the
plain language of the statute and “may not add new words” to it). Rather,
the nature of a “right” dictates that, as a general rule, the right to appear at
a commitment hearing allows the respondent to decide that he does not,
in fact, wish to appear. Cf. GPH v. Giles (In re Commitment of GPH), 578
N.E.2d 729, 736–38 (Ind. Ct. App. 1991) (clarifying waiver of a
respondent’s codified due process right to counsel at a commitment




2 We note that Indiana Code section 12-26-2-2 does not directly refer to the emergency
detention statutes. The commitment statutes as a whole, however, make clear that the rights
listed in that section do apply to preliminary and final hearings for respondents in emergency
detention.
Once an individual is in emergency detention, and once the detaining facility files its required
report, the trial court must quickly either order the individual released or set a preliminary or
final hearing. I.C. §§ 12-26-5-8, -9. Both types of hearings involve determining whether
temporary or regular commitment is appropriate. I.C. § 12-26-5-9(a)(2)(B), (a)(3)(B). And
section 12-26-2-2’s rights explicitly apply in both temporary and regular commitment
proceedings—including ones that begin with emergency detention. I.C. §§ 12-26-2-2(a), -6-2,
-7-1. So, once a preliminary or final hearing has been set for an individual in emergency
detention, that individual is afforded the statutory rights in Indiana Code section 12-26-2-2,
including the right to be present.



Indiana Supreme Court | Case No. 49S02-1711-MH-688 | May 17, 2018                    Page 9 of 20
hearing when the statute recognized the right but was silent on personal
waiver), trans. denied.

   But recognizing a mentally competent respondent’s ability to
personally waive his appearance in a civil-commitment proceeding
resolves just the first facet of the inquiry. The next question remains: what
procedure must a trial court follow before accepting such a waiver? To
answer this, we acknowledge certain realities of a civil-commitment
proceeding—that the mental status of a respondent is necessarily at issue
and that the State is exercising its parens patriae power.

   As stated above, a civil-commitment respondent could exhibit the
necessary competency to personally waive an appearance. Yet we are
mindful that once an individual is at risk of commitment, that person’s
mental condition is necessarily at issue. See I.C. § 12-26-1-1. And, a
respondent may suffer from both mental illness and mental
incompetency. Accordingly, stringent safeguards are critical to guarantee
that a respondent is capable of personally waiving the right to appear and,
in turn, to guarantee the integrity of the proceeding as a whole.

   Safeguards also bolster the State’s ability to protect and care for a
respondent. The Supreme Court of the United States has recognized that
“[t]he state has a legitimate interest under its parens patriae powers in
providing care to its citizens who are unable because of emotional
disorders to care for themselves.” Addington v. Texas, 441 U.S. 418, 426
(1979). If a commitment hearing proceeds without the respondent, the
State’s ability to exercise this power is hindered, as an individual’s
presence will often yield vital information on the most appropriate
treatment plan.

   Of course, these concerns are also implicated when a civil-commitment
respondent wishes to personally waive other due process rights, such as
the right to counsel. The Court of Appeals has addressed personal waiver
in the right-to-counsel context, explaining that “a principal concern must
be whether the patient is capable of making such a decision” and that the
waiver must be made “knowingly, voluntarily, and intelligently.” GPH,
578 N.E.2d at 737.



Indiana Supreme Court | Case No. 49S02-1711-MH-688 | May 17, 2018   Page 10 of 20
    We likewise conclude that before a trial court accepts a respondent’s
personal waiver of the right to appear, it must ensure that the individual
is capable of knowingly, voluntarily, and intelligently making that
decision. This requires the trial court to expressly find those prerequisites
on the record—though how that is done will depend on the particular
circumstances of the case. In some cases, mental competency may be more
doubtful, and the court may need to diligently observe and question the
respondent in person. Other cases may not require such a deep inquiry.
Regardless, before accepting a personal waiver of appearance, the trial
court must find, through direct contact with the individual, that the
respondent understands the nature and importance of the right, the
consequences of waiving the right, the elements required to obtain an
involuntary commitment, and the applicable burden of proof. Cf. id. at
736–38. Direct contact may include, but is not limited to, contact made in
person, by telephone, or via video call. However, a signed waiver of the
right to appear, standing alone, will not suffice.


    C. An attorney may not waive an involuntary-commitment
       respondent’s right to appear.
   Nor can a respondent’s attorney validly waive the respondent’s right to
appear. To be sure, inherent in the respondent’s right is the personal
ability to choose whether to exercise it. But we will not infer another’s
ability to waive the right—to do so would undermine the right itself.

   Indeed, the legislature did not intend for waiver by attorney. Indiana
Code section 12-26-2-2, which sets forth a civil-commitment respondent’s
right to appear at a hearing, does give the trial court independent
authority to waive an individual’s appearance:


       (b) The individual alleged to have a mental illness has the . . .
           right[]:


           ...




Indiana Supreme Court | Case No. 49S02-1711-MH-688 | May 17, 2018   Page 11 of 20
            (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:


                 ...


                 (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. 3


   Notably missing is any provision giving waiver authority to an
attorney, leaving us to conclude that waiver by attorney is not permitted.
Two well-established rules of statutory construction inform our analysis.

   Under the doctrine of expressio unius est exclusio alterius, “[w]hen certain
items or words are specified or enumerated in a statute then, by
implication, other items or words not so specified or enumerated are
excluded.” State v. Willits, 773 N.E.2d 808, 813 (Ind. 2002) (quoting Forte v.
Connerwood Healthcare, Inc., 745 N.E.2d 796, 800 (Ind. 2001)). The
legislature specifically allowed the trial court to waive a respondent’s
right to appear under narrow circumstances but provided no mechanism
for an attorney to do the same. We thus infer that attorney waiver in the
civil-commitment context is not permitted. And to ignore this implication
and judicially construct an attorney-waiver standard would contravene
another statutory-interpretation canon—that courts may not engraft
additional or new words onto a statute. See Kitchell v. Franklin, 997 N.E.2d
1020, 1026 (Ind. 2013). Sidestepping these interpretive doctrines would
trample on the role of the legislature and erode principles that uphold the
separation of powers.




3
  The statute also gives the trial court the right to remove a respondent who “is disruptive to
the proceedings.” I.C. § 12-26-2-2(b)(3)(A). This provision recognizes the court’s need to
manage its courtroom and does not address waiver of an individual’s appearance. In other
words, it does not affect this case.




Indiana Supreme Court | Case No. 49S02-1711-MH-688 | May 17, 2018                   Page 12 of 20
   To reiterate, the right to appear is a respondent’s right. Limiting when
that right can be waived by another—in this case, the trial court judge—
ensures that those facing involuntary commitment are afforded their day
in court. After all, these are some of the most vulnerable members of our
society—those who are facing significant deprivations of liberty, such as
confinement and forced medication orders. See generally In re Mental
Commitment of M.P., 510 N.E.2d 645, 646 (Ind. 1987) (recognizing that
forced medication interferes with an individual’s liberty interest). And
stringently safeguarding the right to appear at a commitment hearing
surely “has the function of reducing the chance of inappropriate
commitments.” T.K., 27 N.E.3d at 273 (quoting J.B. v. Midtown Mental
Health Ctr. (In re Commitment of J.B.), 581 N.E.2d 448, 450 (Ind. Ct. App.
1991), trans. denied).

   In sum, Indiana Code section 12-26-2-2(b) recognizes that the
respondent has a due process right to appear at a civil-commitment
hearing; it does not force the respondent to exercise that right. Because the
respondent’s appearance is a right and not a requirement, a mentally
competent respondent may choose to relinquish the right through a
knowing, voluntary, and intelligent personal waiver. The respondent’s
attorney, however, may not waive the right.

   Here, the record is clear—A.A. did not personally waive his
appearance, and the statute does not permit waiver by A.A.’s attorney.
Still, Eskenazi argues there was no due process violation, pointing to the
trial court’s independent statutory authority to waive a respondent’s
appearance if his “presence would be injurious to [his] mental health or
well-being.” I.C. § 12-26-2-2(b)(3). A.A. recognizes this authority but
contends that the trial court never exercised it. The parties’ disagreement
on the issue partially rests on the timing of a statutory waiver
determination, which we address next.




Indiana Supreme Court | Case No. 49S02-1711-MH-688 | May 17, 2018   Page 13 of 20
II. A trial court must make a statutory waiver
    determination under Indiana Code section 12-26-
    2-2(b)(3)(B) at the beginning of a civil-
    commitment hearing.
   Both parties recognize that the trial court can waive a respondent’s
right to appear at a commitment hearing if the respondent’s presence
would be injurious to his mental health or well-being. The parties dispute,
however, when the trial court must make this statutory determination.
A.A. believes it must be made at the outset of a civil-commitment hearing,
while Eskenazi contends that a trial court should be allowed to listen to all
relevant evidence before making a waiver decision.

   Although Indiana Code section 12-26-2-2(b)(3)(B) plainly lists the
“injurious” waiver standard, the statute is silent on timing. Again guided
by statutory-construction principles, we conclude that the court must
exercise its independent waiver authority at the beginning of the
proceeding.

   In addition to a respondent’s right to appear at a commitment hearing,
Indiana Code section 12-26-2-2(b) codifies three due process rights: the
right to notice of a hearing, the right to a copy of the petition, and the right
to counsel. I.C. § 12-26-2-2(b)(1), (2), (4). The organization of these rights is
significant and leads to an oft-cited canon of statutory interpretation: to
determine the legislature’s intent in drafting a statute, we must consider
the “structure of the statute as a whole.” Spirited Sales, 79 N.E.3d at 376.

   When viewed as a whole, Indiana Code section 12-26-2-2(b) lists some,
but not all, due process rights applicable to commitment proceedings. See
In re Commitment of Turner, 439 N.E.2d 201, 203 (Ind. Ct. App. 1982)
(referencing Indiana Code section 12-26-2-2’s predecessor and listing the
“procedural due process rights” it codifies). For example, the rights to
present evidence and cross-examine witnesses are listed in the next
section, Indiana Code section 12-26-2-3. And the “clear and convincing”
standard of proof for civil-commitment proceedings—the standard
required to satisfy due process—is found in Indiana Code section 12-26-2-
5(e). T.K., 27 N.E.3d at 273.


Indiana Supreme Court | Case No. 49S02-1711-MH-688 | May 17, 2018     Page 14 of 20
   We believe that this grouping of certain due process rights in Indiana
Code section 12-26-2-2(b) was deliberate. They share a common temporal
characteristic—they attach before a commitment hearing, and their utility
decreases or even disappears if a respondent cannot exercise them in a
timely manner. The rights to notice of the hearing and to a copy of the
petition are futile unless they apply before the proceeding. The right to
counsel likewise has limited worth if a respondent cannot exercise it
before a hearing begins. And the right to appear obviously loses its value
as a proceeding continues in a respondent’s absence. In other words, these
rights are triggered before the trial court hears substantive evidence on
whether commitment is necessary.

   Eskenazi doesn’t dispute that a respondent’s right to appear applies
from the beginning of the hearing, but argues that no limitation should be
imposed on when waiver must occur. It reasons that placing the waiver
determination at the outset of a hearing would be unduly restrictive and
would fail to recognize that evidence presented later in the proceeding
could inform a waiver analysis.

   This position, though, compromises the statute’s objective, which is to
protect civil-commitment respondents by codifying some of their due
process rights. A respondent’s right to appear—which is implicated before
the proceeding begins—would not be adequately protected if the trial
court conducted the entire hearing before waiving the individual’s
presence. Furthermore, waiver at the end of the hearing would lead to a
significant waste of judicial resources. A trial court could conduct a
commitment hearing only to conclude that the “injurious” waiver
standard wasn’t met. In that situation, the trial court would have to redo
the entire proceeding with the respondent present. We must “presume[]
that the legislature intended for the statutory language to be applied in a
logical manner consistent with the statute’s underlying policy and goals.”
Prewitt v. State, 878 N.E.2d 184, 186 (Ind. 2007). And accepting Eskenazi’s
argument would run afoul of that presumption. Accordingly, a trial
court’s waiver determination under Indiana Code section 12-26-2-
2(b)(3)(B) must be made at the outset of the proceeding.




Indiana Supreme Court | Case No. 49S02-1711-MH-688 | May 17, 2018   Page 15 of 20
    Eskenazi is right, of course, that the same evidence may be relevant to
both the statutory waiver decision and the ultimate involuntary-
commitment decision. When that happens, a trial court can hear evidence
about waiver at the beginning of the hearing and then incorporate it into
its later decision on commitment. 4 This procedure not only conserves
judicial resources but also stringently protects a respondent’s due process
right to appear at a commitment hearing.

   Still, in some instances a trial court may fail to make a proper statutory
waiver determination and the hearing nevertheless proceeds without the
respondent. Below, we address how to analyze such an error and then
apply that framework to the specific facts of this case.


III. Failure to make a proper statutory waiver
     determination under Indiana Code section 12-26-
     2-2(b)(3)(B) is subject to harmless-error review.
   In the criminal context, the Supreme Court of the United States has
classified certain constitutional errors as “structural” because they
“affect[] the framework within which the trial proceeds.” Arizona v.
Fulminante, 499 U.S. 279, 310 (1991). Since structural errors affect “[t]he
entire conduct of the trial from beginning to end,” they cannot be deemed
harmless. Id. at 309–10. Many other constitutional errors, however, are




4A.A. contends that the Court of Appeals authorized the use of “unverified” pretrial filings
for the waiver determination, since the opinion provided,
       [E]vidence 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 documents such as the application for emergency detention,
       the report following emergency detention, and the physician’s statement.
A.A., 81 N.E.3d at 634. Eskenazi disagrees, arguing that the panel simply recognized that if a
party wished to use a pretrial filing, it would need “foundational, admissible evidence to
incorporate those filings.” We agree that Eskenazi’s reading reflects proper evidentiary
procedure.




Indiana Supreme Court | Case No. 49S02-1711-MH-688 | May 17, 2018                  Page 16 of 20
subject to harmless-error review, because they can be “assessed in the
context of other evidence presented” to determine if they are
“immaterial.” Id. at 308.

    A.A. argues that the failure to make a proper waiver determination
under Indiana Code section 12-26-2-2(b)(3)(B) is structural error, and thus
not subject to harmless-error review. He contends that this type of due
process deprivation—conducting a commitment hearing in a respondent’s
absence without first finding that his presence would be injurious to his
mental health or well-being—affects the entire framework of the
proceeding. While we agree that such a constitutional error is significant,
it is not structural.

   As explained above, when the trial court exercises its waiver authority
in involuntary-commitment cases, it makes two determinations. First, at
the outset of the hearing, the court determines whether the respondent’s
presence would be injurious to the respondent’s mental health or well-
being. I.C. § 12-26-2-2(b)(3)(B). Second, the court determines whether the
respondent is mentally ill and either dangerous or gravely disabled, as
part of the commitment decision. I.C. § 12-26-2-5(e). The same evidence
could be relevant to both determinations.

   When the evidence does overlap, an erroneous waiver can be “assessed
in the context of other evidence presented,” Fulminante, 499 U.S. at 308. In
other words, it’s possible that a trial court could improperly waive a
respondent’s presence, but then hear evidence that both supports a
commitment order and satisfies the “injurious” waiver standard. In such a
case, the error would not affect the commitment proceeding from
beginning to end—rather, had the trial court followed the proper
procedure at the outset of the hearing, there would have been evidence to
support waiver of the respondent’s presence. That is to say, the error
would ultimately be harmless.

   To be clear though, harmlessness depends not on whether evidence
supports commitment, but on the extent of record evidence supporting
waiver. And waiver focuses on why being present at the proceeding
would be injurious to the respondent’s mental health or well-being. Often,
evidence on mental illness or dangerousness or grave disability—which


Indiana Supreme Court | Case No. 49S02-1711-MH-688 | May 17, 2018   Page 17 of 20
are relevant to the main issue of commitment, see I.C. § 12-26-2-5(e)—will
inadequately address how appearing at the hearing would affect a
respondent.

    That is precisely what happened here. A.A. has never challenged the
evidence supporting his commitment. Rather, he has maintained that the
evidence that could point to dangerousness fails to show that his presence
in court would have been injurious to his mental health or well-being. For
its part, Eskenazi asserts that additional evidence does support waiver,
since bringing A.A. to court “against his will” and possibly having to
physically suppress him due to his violent tendencies would be injurious
to A.A.’s mental health or well-being. We agree with A.A.

   The only evidence about why A.A. wasn’t present at his involuntary-
commitment proceeding was his attorney saying, “I was informed this
morning that [A.A.] was not brought over due to him being agitated.”
After hearing this, the trial court found A.A.’s presence waived and heard
substantive evidence on commitment. That evidence included testimony
on A.A.’s intimidating actions towards staff (on days prior to the hearing)
and his inability to take care of his own needs. Contrary to Eskenazi’s
argument, we simply do not know why A.A. was agitated that day or
what it would have taken to bring him to court. Missing from the record,
then, is any evidence that A.A.’s presence at his own commitment hearing
would have been detrimental to him. Rather, we know only that A.A. was
aware of his hearing and did not want to be committed—an opinion he
couldn’t express to the court because he wasn’t there.

   This highlights the importance of a respondent’s right to appear at an
involuntary-commitment proceeding. If present, A.A. could have voiced
concerns on issues like adverse side effects of forced medications; assisted
his counsel in cross-examining witnesses, such as family members; and
offered mitigating evidence. These possibilities bolster our conclusion that




Indiana Supreme Court | Case No. 49S02-1711-MH-688 | May 17, 2018   Page 18 of 20
the failure to make a proper waiver determination was not harmless. For
that reason, we remand to the trial court to vacate the commitment order. 5


Conclusion
   This case highlights the importance of due process protections—
particularly the right to appear—for those at risk of involuntary
commitment. Today, we hold that a respondent can personally waive the
right to appear if the waiver is knowing, intelligent, and voluntary; but
the respondent’s attorney cannot waive the right by proxy. Further, if a
trial court independently waives a respondent’s presence, it must do so at
the beginning of the proceeding. And, finally, an improper waiver
determination is subject to harmless-error review.

   Here, the trial court did not make a proper waiver finding at the outset
of A.A.’s involuntary civil-commitment hearing. We conclude the error
was not harmless, given the lack of evidence on whether A.A.’s
appearance would have been injurious to his mental health or well-being.
For that reason, we reverse and remand to the trial court to vacate the
commitment order.


David, Massa, Slaughter, and Goff, JJ., concur.




5
 The record does not reveal A.A.’s current situation. If A.A. is under a regular involuntary-
commitment order stemming from his mother’s August 2016 application for emergency
detention, then he will no longer be subject to that order. However, the parties are reminded
not to take any action in reliance upon this opinion until its certification. App. R. 65(E).



Indiana Supreme Court | Case No. 49S02-1711-MH-688 | May 17, 2018                 Page 19 of 20
A TT O RN E YS FO R A P PELL A N T

Ruth A. Johnson
Deborah B. Markisohn
Marion County Public Defender Agency
Appellate Division
Indianapolis, Indiana


A TT O RN E YS FO R A P PELL EE

Bryan H. Babb
Bose McKinney & Evans LLP
Indianapolis, Indiana

Jessica Proctor Barth
Julie M. Conrad
Eskenazi Health Legal Services Department
Indianapolis, Indiana




Indiana Supreme Court | Case No. 49S02-1711-MH-688 | May 17, 2018   Page 20 of 20
