                                                                         Jul 20 2015, 10:50 am




      ATTORNEY FOR APPELLANT                                     ATTORNEY FOR APPELLEE
      Deborah Markisohn                                          Rene Wyatt-Foston
      Indianapolis, Indiana                                      Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      In the Matter of the Civil                                 July 20, 2015
      Commitment of T.D.,                                        Court of Appeals Case No.
                                                                 49A05-1411-MH-529
      Appellant-Respondent,
                                                                 Appeal from the Marion Superior
              v.                                                 Court
                                                                 Lower Court Cause No.
                                                                 49D08-1308-MH-16567
      Eskenazi Health Midtown
      Community Mental Health                                    The Honorable Mark Batties,
                                                                 Commissioner
      Center,
      Appellee-Petitioner.




      Pyle, Judge.


                                        Statement of the Case
[1]   Appellant-Respondent, T.D., appeals the trial court’s order granting Appellee-

      Petitioner, Eskenazi Health Midtown Community Mental Health Center’s

      (“the Hospital”), application for the emergency detention and involuntary civil

      commitment of T.D. based on her mental illness. She argues that the trial court


      Court of Appeals of Indiana | Opinion 49A05-1411-MH-529 | July 20, 2015                    Page 1 of 11
      erred in ordering her regular commitment because there was insufficient

      evidence that she was “gravely disabled,” as the Hospital was required by

      statute to prove. The only evidence in the record supporting her commitment

      was one isolated incident of unusual behavior, the fact that T.D. lived in a

      hotel, her psychiatrist’s recommendation, and her refusal to seek treatment.

      Because this did not constitute clear and convincing evidence to support her

      involuntary commitment, we reverse the trial court’s decision and remand for

      the trial court to vacate the commitment.


      We reverse and remand.


                                                         Issue
               Whether the trial court erred when it ordered T.D.’s regular
               commitment.1

                                                         Facts
[2]   T.D. is a fifty-one year old woman who has been diagnosed with bipolar

      disorder and has a history of psychiatric illness and treatment. Beginning on

      July 31, 2013, she was on a regular commitment with the Hospital. She was




      1
       In Civil Commitment of T.K. v. Dep’t of Veterans Affairs, 27 N.E.3d 271, 273 n.1 (Ind. 2015), our Supreme
      Court explained:
               In Indiana, an adult person may be civilly committed either voluntarily or involuntarily.
               Involuntary civil commitment may occur under four circumstances if certain statutorily
               regulated conditions are satisfied: (1) “Immediate Detention” by law enforcement for up to
               24 hours; (2) “Emergency Detention” for up to 72 hours; (3) “Temporary Commitment”
               for up to 90 days; and (4) “Regular Commitment” for an indefinite period of time that may
               exceed 90 days.
      (Internal citations omitted).

      Court of Appeals of Indiana | Opinion 49A05-1411-MH-529 | July 20, 2015                            Page 2 of 11
      doing well in treatment and resided at First Home, one of the Hospital’s

      residential housing programs. However, on July 22, 2014, the Hospital filed a

      notice with the trial court seeking to terminate T.D.’s civil commitment because

      she had elected to receive voluntary treatment. On September 4, 2014, the trial

      court entered an order terminating T.D.’s commitment.


[3]   When T.D.’s commitment ended, she was no longer able to live in the First

      Home residential program and went to live in a shelter and then in a hotel.

      During this time, T.D. became inconsistent in taking her medication and,

      according to her treating physician at the Hospital, Dr. Michael DeMotte (“Dr.

      DeMotte”), “her symptoms [] continued to worsen.” (Tr. 8). One night at the

      hotel, she was preparing a presentation for a large event in town, and she

      flooded her hotel room with water and steam, intending to set off the fire

      alarms so that the fire department would come to the hotel and help her prepare

      for the event.


[4]   Based on this incident, the Hospital filed an application for emergency

      detention of T.D. on October 14, 2014. Dr. DeMotte filed a report on the

      application on October 16, 2014, and recommended that T.D. be placed on a

      regular commitment under INDIANA CODE § 12-26-7 because she was in need

      of “custody, care, or treatment in an appropriate facility.” (Tr. 52). He also

      reported that T.D. had refused to continue voluntary treatment. The next day,

      the trial court set an evidentiary hearing on the matter for October 20, 2014,

      and ordered that T.D. be detained pending the hearing.



      Court of Appeals of Indiana | Opinion 49A05-1411-MH-529 | July 20, 2015   Page 3 of 11
[5]   Dr. DeMotte testified at the hearing as a psychiatric expert. He stated that T.D.

      was a “very pleasant woman” and that he did not believe she was a danger to

      herself or others. (Tr. 9). However, he also testified that:

              [she] does experience symptoms consistent with mania, including
              a euphoric mood. She gets very excited with things; very
              grandiose in her plans, large scope projects outside of a scope of
              reality. [She] [i]s very distractible in this and her thought process
              and decision[-]making frequently kind of get[s] side-tracked from
              what she’s working on—rapid speech, racing thoughts, some
              impulsivity. All kind of symptoms together in combination
              consistent with a manic episode.


      (Tr. 10). He explained that while medication did not cure all of T.D.’s

      symptoms, she had been doing substantially better while on treatment and her

      ability to function had improved. He expressed concerns that since her

      previous commitment had been terminated “there ha[d] been more

      inconsistency with medications[.]” (Tr. 8). He said that the last time he had

      talked to T.D., she had told him that “she no longer wished for voluntary

      treatment.” (Tr. 11). Instead, “[s]he felt like she was ready to be discharged

      from the hospital and was no longer going to be taking medications unless there

      was a subsequent court order for it.” (Tr. 11).


[6]   Later in his testimony, Dr. DeMotte also expressed concerns that T.D. had not

      “been able to maintain housing” without treatment, whereas she had been able

      to maintain it while she was in treatment. (Tr. 11). He said that he thought her

      symptoms “impair[ed] her judgment” and reasoning such that “[w]e get into

      circumstances such as those when she was brought to the hospital [from] the

      Court of Appeals of Indiana | Opinion 49A05-1411-MH-529 | July 20, 2015     Page 4 of 11
      hotel.” (Tr. 11). Based on these concerns, he recommended a regular

      commitment and said that he believed a regular commitment transitioning to

      outpatient care was the least restrictive option for T.D.


[7]   At the conclusion of the hearing, the trial court found that T.D. was “gravely

      disabled,” as required by statute, and granted the petition for her regular

      commitment. The court also ordered that T.D. take all medications as

      prescribed, attend all clinic sessions as scheduled, and maintain her address and

      phone number with the court. T.D. now appeals.


                                                   Decision
[8]   On appeal, T.D. argues that the trial court erred in ordering her commitment

      because there was not sufficient evidence to prove that she was “gravely

      disabled” as required by statute. See IND. CODE § 12-7-2-96. We have

      previously noted that civil commitment is a significant deprivation of liberty

      that requires due process protections. Commitment of L.W. v. Midtown Cmty.

      Health Ctr., 823 N.E.2d 702, 703 (Ind. Ct. App. 2005). The liberty interest at

      stake in a civil commitment proceeding goes beyond a loss of one’s physical

      freedom and, given the serious stigma and adverse social consequences that

      accompany such physical confinement, a proceeding for an involuntary civil

      commitment is subject to due process requirements. Civil Commitment of T.K.,

      27 N.E.3d at 273.


[9]   To satisfy the requirements of due process, the facts justifying an involuntary

      commitment must be shown by clear and convincing evidence. In re

      Court of Appeals of Indiana | Opinion 49A05-1411-MH-529 | July 20, 2015   Page 5 of 11
       Commitment of G.M., 743 N.E.2d 1148, 1151 (Ind. Ct. App. 2001). Clear and

       convincing evidence is that which “‘not only communicates the relative

       importance our legal system attaches to a decision ordering an involuntary

       commitment, but . . . also has the function of reducing the chance of

       inappropriate commitments.’” Civil Commitment of T.K., 27 N.E.3d at 273

       (quoting Commitment of J.B. v. Midtown Mental Health Ctr., 581 N.E.2d 448, 450

       (Ind. Ct. App. 1991)). It is defined as an intermediate standard of proof greater

       than a preponderance of the evidence and less than proof beyond a reasonable

       doubt. Lazarus Dep’t Store v. Sutherlin, 544 N.E.2d 513, 527 (Ind. Ct. App.

       1989), reh’g denied, trans. denied. In order to be clear and convincing, the

       existence of a fact must be highly probable. Id.


[10]   In reviewing the sufficiency of the evidence supporting a determination

       requiring clear and convincing evidence, we will consider only the evidence

       favorable to the judgment and all reasonable inferences drawn therefrom.

       Commitment of L.W., 823 N.E.2d at 703. We will not reweigh the evidence or

       judge the credibility of witnesses. Civil Commitment of T.K., 27 N.E.3d at 273.


[11]   In order for a trial court to order a regular commitment, there must be clear and

       convincing evidence that an individual is: (1) mentally ill; and (2) either

       dangerous or gravely disabled. I.C. § 12-26-7-1. Under INDIANA CODE § 12-7-

       2-96, “gravely disabled” is defined as:

               a condition in which an individual, as a result of mental illness, is
               in danger of coming to harm because the individual:



       Court of Appeals of Indiana | Opinion 49A05-1411-MH-529 | July 20, 2015     Page 6 of 11
                        (1) is unable to provide for that individual’s food, clothing,
                        shelter, or other essential needs; or
                        (2) has a substantial impairment or an obvious
                        deterioration of that individual’s judgment, reasoning, or
                        behavior that results in the individual’s inability to
                        function independently.

       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 was unable to provide for her basic needs or that her

       judgment, reasoning, or behavior was so impaired or deteriorated that it

       resulted in her inability to function independently. Civil Commitment of W.S. v.

       Eskenazi Health, Midtown Cmty. Health, 23 N.E.3d 29, 34 (Ind. Ct. App. 2014),

       trans. denied.


[12]   T.D. disputes the trial court’s finding that she was “gravely disabled” such that

       she required a regular commitment. Specifically, she asserts that, even though

       she suffers from bipolar disorder, the Hospital did not prove, by clear and

       convincing evidence, that she was unable to provide for her basic needs or that

       her judgment and reasoning were impaired. She notes that there was no

       evidence that she lacked personal grooming, was unable to obtain clothing and

       dress appropriately, or was malnourished. She also compares her case to K.F. v.

       St. Vincent Hosp. & Health Care Ctr., 909 N.E.2d 1063, 1067 (Ind. Ct. App. 2009),

       where we reversed a regular commitment based on insufficient evidence.


[13]   In response, the Hospital argues that there was sufficient evidence to prove that

       T.D. was gravely disabled under both prongs of the definition. First, the

       Court of Appeals of Indiana | Opinion 49A05-1411-MH-529 | July 20, 2015       Page 7 of 11
       Hospital asserts that, even though T.D. had housing, she had not been able to

       maintain it. Second, the Hospital argues that the hotel incident that led to

       T.D.’s emergency detention, as well as Dr. DeMotte’s testimony explaining his

       opinions regarding T.D.’s need for treatment, were sufficient to prove that she

       was gravely disabled. We disagree.


[14]   In Commitment of G.M. and Commitment of J.B., we recently discussed our

       Supreme Court’s seminal opinion regarding commitment in Addington v. Texas,

       441 U.S. 418 (1979). We explained:


               In [Addington] the United States Supreme Court expressed a
               strong concern that a decision ordering an involuntary
               commitment might be made on the basis of a few isolated
               instances of unusual conduct which occurred within a range of
               conduct which is generally acceptable. The Court opined that
               since 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 is demonstrated by
               idiosyncratic behavior.”


       Commitment of G.M., 743 N.E.2d at 1151 (quoting Commitment of J.B., 581

       N.E.2d at 450) (discussing Addington).


[15]   Our Indiana Supreme Court recently echoed the Addington Court’s caution

       against unnecessary commitments in Civil Commitment of T.K. There, our

       supreme court disapproved of multiple Court of Appeals decisions affirming

       commitments and emphasized that there must be a higher standard of clear and

       convincing evidence to support a regular commitment. Civil Commitment of

       T.K., 27 N.E.3d at 274. The Court noted that “[t]he clear and convincing

       Court of Appeals of Indiana | Opinion 49A05-1411-MH-529 | July 20, 2015     Page 8 of 11
       standard is employed in cases ‘where the wisdom of experience has

       demonstrated the need for greater certainty, and where this high standard is

       required to sustain claims which have serious social consequences or harsh or

       far reaching effects on individuals.’” Id. at 276 (quoting In re G.Y., 904 N.E.2d

       1257, 1260 n.1 (Ind. 2009) (additional citation omitted)).


[16]   Based on this standard, the Court found that there was insufficient evidence to

       support T.K.’s regular commitment, even though he had put flyers on people’s

       windshields to inform them of a person’s criminal record, had gone into an

       Adult and Child Clinic and started to scream at the staff in a manner that made

       them concerned, had acted aggressively towards other patients, was estranged

       from all family support, had mentioned use of violence in e-mails and on

       Facebook, and had refused treatment. Id. at 274. The supreme court reasoned

       that no evidence had been presented to dispute T.K.’s ability to provide food,

       clothing or shelter to himself. Id. at 276. Also, there was no evidence that he

       was gravely disabled because a refusal to medicate, alone, could not support a

       finding of gravely disabled. Id. As for T.K.’s aggression, T.K. “made no

       physical outbursts, destroyed no property, [and] did not put himself or others in

       actual danger with idiosyncratic behavior[.]” Id. at 277. Notably, the Court did

       not find testimony from T.K.’s psychiatrist that T.K. was gravely disabled

       dispositive. See id. at 275.


[17]   In light of Addington and T.K., we conclude that, here, there was not sufficient

       evidence to support T.D.’s regular commitment. While the Hospital argues

       that T.D. was unable to maintain shelter, there was no evidence in the record

       Court of Appeals of Indiana | Opinion 49A05-1411-MH-529 | July 20, 2015   Page 9 of 11
       that she was unable to pay her hotel bills. We find that T.D.’s decision to live

       in a hotel, alone, cannot support a finding of a grave disability because it is

       indisputable that a hotel is a form of “shelter.”


[18]   As for the second prong of the definition of gravely disabled—concerning a

       substantial impairment in judgment, reasoning, or behavior—the primary

       evidence in the record regarding this prong was Dr. DeMotte’s testimony that

       he believed T.D.’s judgment was impaired when she was not in treatment.

       However, the Indiana Code defines “gravely disabled” as:

               a condition in which an individual, as a result of mental illness, is
               in danger of coming to harm because the individual:
                                                  *       *        *
               (2) has a substantial impairment or an obvious deterioration of
               that individual’s judgment, reasoning, or behavior that results in
               the individual’s inability to function independently.


       I.C. § 12-7-2-96 (emphasis added). Thus, a part of the definition is that, in

       addition to having impaired, the individual “is in danger of coming to harm” as

       a result of the impaired judgment. I.C. § 12-7-2-96. Dr. DeMotte testified that

       T.D. was a “very pleasant woman” and that he did not believe she was a

       danger to herself or others. (Tr. 9).


[19]   Further, it is apparent that Dr. DeMotte’s opinion that T.D. was gravely

       disabled was based on her alleged failure to maintain housing, her refusal to

       seek treatment even though her behavior improved with treatment, and her

       incident at the hotel. We have already noted that T.D.’s housing at the hotel


       Court of Appeals of Indiana | Opinion 49A05-1411-MH-529 | July 20, 2015    Page 10 of 11
       was not a sufficient basis for a commitment, and in T.K. our supreme court

       affirmed that refusal to seek treatment, alone, is not a sufficient basis for

       commitment. See id. at 276. As for T.D.’s incident at the hotel, we find that,

       while this behavior might have indicated a need for treatment, it was not a

       sufficient basis for an ongoing, regular commitment. In Addington, our

       Supreme Court warned against the danger of committing individuals based on

       “a few isolated instances of unusual conduct.” Addington, 441 U.S. at 427. The

       hotel incident was one isolated incident, and, while T.D.’s actions at the hotel

       were unusual, she did not harm herself or anyone else.


[20]   Because the only evidence the Hospital presented at trial did not constitute clear

       and convincing evidence to support T.D.’s commitment, we reverse the trial

       court’s decision and remand for the trial court to vacate the regular

       commitment.


       Reversed and remanded.


       Crone, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 49A05-1411-MH-529 | July 20, 2015    Page 11 of 11
