MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              May 11 2018, 9:00 am

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


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Joel M. Schumm                                          Jenny R. Buchheit
Indianapolis, Indiana                                   Gregory W. Pottorff
                                                        Ice Miller LLP
                                                        Indianapolis, Indiana




                                          IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Civil                              May 11, 2018
Commitment of:                                          Court of Appeals Case No.
                                                        49A02-1710-MH-2343
D.W.,
                                                        Appeal from the Marion Superior
Appellant-Respondent,                                   Court
        v.                                              The Honorable Steven R.
                                                        Eichholtz, Judge
Indiana University Health                               Trial Court Cause No.
Methodist,                                              49D08-1709-MH-34676

Appellee-Petitioner.



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1710-MH-2343 | May 11, 2018             Page 1 of 14
[1]   D.W. appeals the trial court’s September 22, 2017 Order of Regular

      Commitment of D.W. We affirm.


                                      Facts and Procedural History

[2]   On September 12, 2017, Indiana University Health Methodist (“Methodist”)

      filed a petition for involuntary commitment of D.W. which alleged that D.W.

      was born in June of 1958, is suffering from a psychiatric disorder, and is gravely

      disabled. The petition listed the following tasks which D.W. does not perform

      independently: “attend treatment (ECT. Outpatient therapy),” “comply with

      medication regimen,” and “take care of self and ADLs, daily functioning.”

      Appellant’s Appendix Volume II at 13. A physician’s statement by Dr. Michael

      Metrick dated September 12, 2017, was also filed in which Dr. Metrick stated

      that he examined D.W. on that date and that in his opinion she is suffering

      from schizoaffective disorder with recurring catatonia, is gravely disabled, and

      is in need of custody, care, or treatment in an appropriate facility. On

      September 21, 2017, the court held a commitment hearing at which it heard

      testimony from Dr. Metrick and Erin Robertson, who worked for The Center

      for At-Risk Elders (“CARE”) which provided services for D.W.


[3]   On September 22, 2017, the court issued an Order of Regular Commitment

      stating that it found, by clear and convincing evidence, that D.W. “is suffering

      from a psychiatric disorder, specifically schizoaffective disorder with recurrent

      catatonia, which is a mental illness,” is “gravely disabled, as defined in I.C. 12-

      7-2-96,” and “is in need of custody, care, and treatment at Indiana University


      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-MH-2343 | May 11, 2018   Page 2 of 14
      Health Methodist, Psychiatry / Behavioral Health Unit for a period expected to

      exceed ninety (90) days.” Id. at 9. The court ordered that D.W. be committed

      to the designated facility until discharged or until the court terminates the

      commitment and that the facility submit a periodic report no later than

      September 21, 2018, at which time the treatment plan will be reevaluated.


                                                  Discussion

[4]   D.W. requests that this Court vacate her involuntary commitment and argues

      that the trial court’s decision is not supported by sufficient clear and convincing

      evidence of grave disability. 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. T.D. v. Eskenazi

      Health Midtown Cmty. Mental Health Ctr., 40 N.E.3d 507, 510 (Ind. Ct. App.

      2015) (citing Ind. Code § 12-26-7-1); Ind. Code § 12-26-2-5(e) (setting forth the

      clear and convincing standard). The clear and convincing evidence standard is

      an intermediate standard of proof greater than a preponderance of the evidence

      and less than proof beyond a reasonable doubt. T.D., 40 N.E.3d at 510. In

      order to be clear and convincing, the existence of a fact must be highly

      probable. Id. In reviewing the sufficiency of the evidence, we will consider

      only the evidence favorable to the judgment and the reasonable inferences

      supporting the judgment, and we will not reweigh the evidence or assess the

      credibility of witnesses. Id.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-MH-2343 | May 11, 2018   Page 3 of 14
[5]   D.W. does not challenge the trial court’s finding that she is mentally ill.

      Instead, she argues that the evidence does not support the court’s determination

      that she is “gravely disabled.” Ind. Code § 12-7-2-96 provides:


              “Gravely disabled”, for purposes of IC 12-26, means a condition
              in which an individual, as a result of mental illness, is in danger
              of coming to harm because the individual:

                      (1) is unable to provide for that individual’s food,
                      clothing, shelter, or other essential human needs; or

                      (2) has a substantial impairment or an obvious
                      deterioration of that individual’s judgment, reasoning, or
                      behavior that results in the individual’s inability to
                      function independently.


      The statutory language looks to the patient’s behavior at the time of the

      hearings, not to the patient’s history. See Commitment of M.E. v. Dep’t of Veterans

      Affairs, 64 N.E.3d 855, 863 (Ind. Ct. App. 2016).


[6]   D.W. argues that the trial court’s finding that she is gravely disabled is not

      supported by the requisite proof of clear and convincing evidence. She argues

      there is no evidence that she was in danger of coming to harm at the time of the

      hearing because of an inability to provide food or shelter, and that Dr. Metrick

      testified she was not malnourished and had been living on her own in an

      apartment for at least a few months before her hospitalization. She also

      contends that she was not at risk of coming to harm because of any impairment

      or deterioration of judgment or behavior and was sufficiently capable of

      functioning independently.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-MH-2343 | May 11, 2018   Page 4 of 14
[7]   Methodist responds that D.W.’s arguments that she can provide herself with

      food and shelter amount to a request to reweigh the evidence. It states that Dr.

      Metrick explained that D.W. is unable to meet her essential human needs when

      her catatonia takes hold and there was a rapid increase in recurrence of

      symptoms and decompensation after D.W. transferred to an apartment, that

      Robertson confirmed that D.W. can feed herself appropriately when

      hospitalized, and that there was no evidence D.W. can provide herself with

      food when she is not medicated. It argues that Dr. Metrick testified and

      Robertson confirmed that D.W. will not take her medication without

      supervision, that Dr. Metrick noted that D.W.’s recurrent hospitalization was

      occasioned in part by her non-adherence to treatment, that Dr. Metrick testified

      that, without treatment, catatonia can be a terminal condition, and that

      Robertson testified that D.W. was not functioning independently at the time of

      the hearing.


[8]   At the commitment hearing, Dr. Metrick testified that he is a staff psychiatrist

      with Methodist and his opinion of D.W.’s condition has not changed since he

      filed his physician’s statement. He testified that D.W. “was referred to us from

      another hospital where she was taken secondary to decompensation for her

      mental concerns,” “[t]here was concern regarding recurrence of catatonia and

      some worry about suicideality,” “Community Hospital has assessed her, knew

      our familiarity with her and asked if we would be willing to hospitalize her,”

      “[w]e’ve had [D.W.] under our care periodically over the last year and a half,”

      “[s]pecifically in the last year alone, from September 2016 to know [sic] this is


      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-MH-2343 | May 11, 2018   Page 5 of 14
      the fifth in-patient hospitalization we’ve had with her and we’ve cared for her,”

      and “I have personally been involved with those admissions as well.”

      Transcript Volume II at 7. He estimated that he examined D.W. ten to twelve

      times during the latest admission, and stated that a temporary civil commitment

      had been granted in September 2016.


[9]   Dr. Metrick testified that D.W.’s condition is consistent with schizoaffective

      disorder, which has been her long-term diagnosis, that “she carries a very

      specific sub-set of symptoms that we term catatonia,” and that schizoaffective

      disorder with recurrent catatonia is a mental illness. Id. at 8. When asked to

      explain the reason for his diagnosis, Dr. Metrick testified:


              It’s the catatonia portion that has been most prominent and the
              one that we have observed most first-hand. When [D.W.] has
              fallen ill, she has exhibited a multitude of features. Most of it is
              extreme negativism. That includes basic difficulties
              communicating her needs, her caring for herself, prolonged
              periods of immobility and lack of speech. Inability to attend to
              ADL’s. Severe brakenesia; slow movements. The admission just
              prior to this, there has been a duration of immobility for nearly a
              full day and emergency services were called to her aid at that
              point in time. The basic difference[s] include difficulty feeding
              self, caring for herself. Thought blocking where there’s a
              significant poverty of content and difficulty, you know, engaging
              in any type of dialogue.


      Id. at 8-9. He indicated that D.W.’s lack of insight with regard to catatonia is

      one of the reasons for the recurrence of her in-patient stays.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-MH-2343 | May 11, 2018   Page 6 of 14
[10]   When asked if D.W. is unable to provide herself with essential human needs

       such as food, clothing, shelter, Dr. Metrick testified:


               She requires assistance with those, essentially with – when we
               first were made familiar with her she was living independently
               and had an apartment. But unfortunately, over the last year and
               a half, with these recurrent bouts of catatonia she did lose that
               apartment ultimately and needed to be placed in a nursing
               facility. A skilled nursing facility where she has a period of time
               of doing a little bit better with some recurrence. Since
               transitioning out, she has had the CARE organization advocating
               for her and assisting her getting back into some sort of apartment
               situation. Over the last few months unfortunately, we’ve seen a
               rapid increase in recurrence of symptoms and decompensation
               since being back in an apartment. She has required definitely
               supervision with those basic daily needs, including medication.


       Id. at 10. When asked if D.W. has “any difficulty feeding herself appropriately

       at this time,” he answered “[w]e’ve observed that – well, I would not say today,

       no. But when – during the highest impairment points certainly.” Id. When

       asked “is she unable to meet those needs as a result of her mental illness,” he

       replied “[y]es, when catatonia takes a hold, certainly she would be unable to

       meet those needs.” Id. at 11.


[11]   When asked “does [D.W.] also suffer substantial impairment or obvious

       deterioration of her judgment, reasoning or behavior that results in her inability

       to function independently,” Dr. Metrick replied “Yes. And with the catatonia,

       it is very difficult to have any conversation regarding treatment or needs. And

       at that point in time, the capacity for informed decision making is certainly lost.

       Necessitating historically of course, the previous commitment and the
       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-MH-2343 | May 11, 2018   Page 7 of 14
       appointment of a guardian.” Id. He indicated that D.W.’s mental illness affects

       her ability to take her medications. He also testified that, based on his

       treatment of D.W., she is gravely disabled. Dr. Metrick further testified “we

       have not experienced any direct self-threats or any violent behaviors,” “[o]ur

       primary concern is for safety towards herself is a more indirect effect of

       decompensation,” “[c]atatonia in its most extreme form is also – can become

       what we call malignant or lethal catatonia requiring even ICU stays,” “[o]ur

       idea is to maintain enough stability to prevent that from occurring,” and

       “without treatment, it can be actually a terminal condition.” Id. at 11-12.


[12]   Dr. Metrick further testified “[a]lternate plans have unfortunately failed to

       maintain stability including a previous temporary commitment, and

       appointment of guardianship,” “[w]e continue to find barriers and get lapses in

       treatment that have led to chronic recurrence of the illness,” “[w]e believe that

       she needs a long maintenance plan,” and “[w]e are considering a long-term

       plan, either in some structured environment with staff supervision and even

       state hospital is being considered.” Id. at 12. When asked if D.W. responded

       well to the medications when taken, Dr. Metrick replied “[y]es, we see a

       dramatic improvement.” Id. at 14. When asked if he believed D.W. can be

       relied upon to take her medications without supervision, he responded “[n]o, at

       this point she will take them with supervision, but unfortunately her recurrence

       of hospitalization has been led to partly by non-adherence with treatment.” Id.

       He stated:




       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-MH-2343 | May 11, 2018   Page 8 of 14
               [D.W.’s] prognosis is . . . good. We’ve seen a quite a big
               improvement with [D.W]. Prior to the last year and a half.
               When she was able to work independently. Or live
               independently, I’m sorry. She used to be employed at one point
               in the past. We do see a big change in her when she gets
               treatment regularly. Unfortunately, we think that there is enough
               gaps in the treatment that the back slide prevents maintaining
               that stability. Our hope is with more stabilized treatment she will
               restore well and be able to return to independent living and
               function well.


       Id. at 16. He testified that her prognosis without treatment is very poor.


[13]   On cross-examination, when asked if D.W. improved during the last one and

       one-half years, Dr. Metrick answered “[w]ell . . . it’s been up and down. She’s

       better today than when she came into the hospital, but with each admission she

       ends up back where we started. So it’s definitely been a sawtooth.” Id. at 18.

       He indicated that D.W. was not malnourished. When asked “and since she has

       been on the unit she has been eating,” he answered “[s]he has . . . it’s always

       slow at the beginning but it does improve as her treatment takes hold.” Id. at

       20.


[14]   Robertson testified that she is a client advocate for CARE and she discusses

       medical care with physicians, arranges appointments and transportation, and

       sets up services in the community. She indicated that her relationship to D.W.

       is that she is “her team lead,” that the role is similar to a guardian, and that

       “[w]e became permanent guardian on 3-2 of 17, but we received a referral from

       Methodist on October 12th of ’16.” Id. at 24. She testified that, when CARE


       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-MH-2343 | May 11, 2018   Page 9 of 14
       received a referral from Methodist, D.W. was ready for discharge but was

       deemed incapacitated, that her family at that time was refusing to make

       decisions on her behalf, and she needed a guardian to make discharge plans.


[15]   Robertson testified that when D.W. is taking her prescribed medications, she is

       able to communicate with people that she trusts, can engage in her care and

       treatment, and can complete her ADL’s on her own with minimal assistance.

       She testified that when D.W. is not taking her medication as prescribed, “[h]er

       thought processes has [sic] slowed way down,” “[s]he’s unable to communicate

       or carry on a conversation regarding treatment,” “[s]he is very distrusting and

       paranoid,” and she “[i]solates.” Id. at 26. Robertson indicated she did not

       believe D.W. can be relied upon to take her prescribed medications

       independently. When asked about other treatment options, she testified that

       CARE has tried to connect D.W. with services with Adult and Child, that

       during the intake she became very paranoid and distrusting and refused to

       continue, and she did not want to commit to group therapies or their intensive

       outpatient services in the community where they would visit her at her

       apartment.


[16]   Robertson indicated that she did not believe D.W. can function independently

       at this time. She testified “when [D.W.] is in the community on her own she

       doesn’t function independently,” “[s]he needs assistance with medication

       management,” and “[s]he needs twenty-four hour observation, transportation to

       treatments. Things that – services that don’t exist for what is appropriate for

       [D.W.].” Id. at 27. When asked if she believed D.W. has difficulty feeding

       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-MH-2343 | May 11, 2018   Page 10 of 14
       herself appropriately, Robertson testified: “When [D.W.] is in the hospital, I

       believe she can feed herself appropriately because they serve meals. When she

       is in her apartment, she can walk to the store and by [sic] microwave meals.

       And feed herself that way, but do I think that it is adequate? No.” Id. On

       cross-examination, Robertson indicated that D.W. can eat microwave meals

       and walk to the store on her own when taking medications.


[17]   D.W.’s counsel argued that D.W. “should be committed to temporary instead

       of a regular.” Id. at 39. The court stated:


               Well, in this matter there’s no doubt that [D.W.] suffers from
               schizoaffective disorder . . . catatonic type. . . . The guardianship
               is not sufficient because she still is becoming catatonic. Still
               having to go to the hospital because even under the provisions of
               the guardianship, and a substitute caregiver for lack of a better
               term; decision maker. She is still lapsing into stages of catatonia.
               . . . Which, by the Doctor’s testimony if that continues it could
               be lethal. The Court therefore will grant a regular commitment
               to . . . Methodist. . . .


       Id.


[18]   Although Dr. Metrick indicated D.W. was not malnourished and Robertson

       indicated D.W. could microwave meals and walk to the store when on her

       medications, Methodist elicited testimony that D.W. cannot be relied upon to

       take her medications without supervision and her recurrent hospitalization was

       occasioned in part by her non-adherence to treatment, that she needs assistance

       with medication management and twenty-four hour observation, that there was

       a rapid increase in recurrence of symptoms and decompensation after she

       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-MH-2343 | May 11, 2018   Page 11 of 14
       moved to an apartment, and that, when catatonia symptoms occur, she is

       unable to meet her needs. Dr. Metrick testified at length regarding D.W.’s

       prognosis and the symptoms she presents, and he testified that catatonia in its

       most extreme form can become malignant or lethal and that, without treatment,

       can be a terminal condition. Based upon the record, we conclude that clear and

       convincing evidence supports the trial court’s finding that D.W. is gravely

       disabled for purposes of her involuntary commitment.


[19]   To the extent D.W. asserts that the court erred in admitting certain hearsay

       testimony and the error was not harmless, we note that at one point during the

       commitment hearing Robertson began to testify “[t]he hospitalization before

       the current hospitalization, we received a phone call that . . . ,” D.W. then

       objected on hearsay grounds, and the court sustained D.W.’s objection.

       Transcript Volume II at 28. According to the hearing transcript, immediately

       after the court sustained D.W.’s objection, Robertson testified: “CARE received

       a phone call from Methodist Hospital that [D.W.] was brought in by the police

       early in the morning. She was found on a bench outside of the convention

       center, catatonic. And had got lost on the bus through the night.” Id. at 29.

       D.W. did not request the court to strike Robertson’s testimony. We presume

       that the court, consistent with its own ruling, did not consider the challenged

       statements of Robertson and did not consider inadmissible evidence. See Morfin

       v. Estate of Martinez, 831 N.E.2d 791, 800 n.5 (Ind. Ct. App. 2005) (noting that

       we presume that a trial court in a bench trial rendered its judgment solely on the

       basis of admissible evidence); see also Shanks v. State, 640 N.E.2d 734, 736 (Ind.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-MH-2343 | May 11, 2018   Page 12 of 14
       Ct. App. 1994) (noting that, in a trial without a jury, it may be presumed that

       the judge will disregard inadmissible and irrelevant evidence). The trial court

       did not reference the challenged statements in either its comments at the

       commitment hearing or in its commitment order. Further, the other testimony

       elicited from Robertson and from Dr. Metrick as set forth above and in the

       record is sufficient to support the court’s determination that D.W. is gravely

       disabled. See Commitment of M.M. v. Clarian Health Partners, 826 N.E.2d 90, 96

       (Ind. Ct. App. 2005) (finding the improper admission of certain third-party

       statements was harmless as a doctor’s testimony regarding his personal

       observations of M.M. during her detention adequately supported the

       commitment order). In light of the trial court’s evidentiary ruling, the fact

       D.W. did not move to strike the challenged statements, the presumption the

       court did not consider inadmissible evidence, and the other unchallenged

       testimony elicited from Robertson and Dr. Metrick, we conclude that the fact

       the trial court did not interrupt and prohibit Robertson from making the

       challenged statements or explicitly strike the statements does not necessitate

       reversal.


                                                  Conclusion

[20]   The evidence supports the trial court’s determination that D.W. is gravely

       disabled and its order of involuntary commitment. For the foregoing reasons,

       we affirm the trial court’s September 22, 2017 Order of Regular Commitment of

       D.W.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-MH-2343 | May 11, 2018   Page 13 of 14
[21]   Affirmed.


       Bailey, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-MH-2343 | May 11, 2018   Page 14 of 14
