MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                             FILED
court except for the purpose of establishing                      Aug 03 2017, 5:45 am

the defense of res judicata, collateral                               CLERK
estoppel, or the law of the case.                                 Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Valerie K. Boots                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana

                                                        Frances Barrow
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Civil                              August 3, 2017
Commitment of S.T.,                                     Court of Appeals Case No.
                                                        49A02-1610-MH-2401
Appellant-Respondent,                                   Appeal from the Marion Superior
                                                        Court
        v.                                              The Honorable Steven Eichholtz,
                                                        Judge
Madison State Hospital,                                 Trial Court Cause No.
                                                        49D08-0901-MH-2739
Appellee-Petitioner.




Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1610-MH-2401 | August 3, 2017     Page 1 of 11
                                             Case Summary
[1]   S.T. appeals the trial court’s denial of his motion for dismissal of regular

      commitment. We affirm.


                                                     Issue
[2]   S.T. raises one issue, which we restate as whether the trial court properly found

      Madison State Hospital proved by clear and convincing evidence that S.T. is

      dangerous to others.


                                                     Facts
[3]   In September 2006, thirty-eight-year-old S.T. was accused of molesting a three-

      year-old boy at his church. The State charged S.T. with child molesting. S.T.’s

      I.Q. is 57, and he was found incompetent to stand trial. He was committed to

      the Division of Mental Health and Addiction of the Indiana Family and Social

      Services Administration, and he was housed at Logansport State Hospital. In

      January 2009, Logansport State Hospital filed a petition for involuntary

      commitment of S.T. A physician’s statement included with the petition stated

      that S.T. suffered from “Pedophilia [and] Mild Mental Retardation.”

      Appellant’s App. Vol. II p. 19. The trial court granted the petition. S.T. filed a

      motion for relief from judgment, arguing that service was not proper and that

      he did not meet the criteria for civil commitment. After a hearing, the trial

      court denied S.T.’s motion for relief from judgment. In its findings, the trial

      court noted:



      Court of Appeals of Indiana | Memorandum Decision 49A02-1610-MH-2401 | August 3, 2017   Page 2 of 11
              Nancy Maxwell, behavioral clinician 3 and sexual responsibility
              trainer at Logansport State Hospital, testified concerning her
              work with [S.T.]. She testified that she has [S.T.] in group and
              individual therapy once or twice a week, and in sexual
              responsibility training twice a week. She testified that [S.T.] is
              definitely a danger to children. [S.T.] has admitted to four other
              episodes of child molestation. Access to children was gained by
              [S.T.] through the church daycare center where he spent a lot of
              time. [S.T.] has admitted to watching child pornography. Ms.
              Maxwell testified that [S.T.] admitted to “trolling” the
              Greenwood Mall in search of children. [S.T.] drives a “hot
              yellow pickup truck” that works as a “kid magnet.” Ms.
              Maxwell testified that the pickup truck was a “grooming tool”
              and also endearing himself to the parents of young children was
              another grooming tool. [S.T.’s] preference is for young children
              because “they don’t tell on him.”


      Id. at 97.


[4]   Each year, Logansport State Hospital filed annual reports regarding S.T., and

      the trial court entered orders continuing S.T.’s commitment without hearing.

      In May 2011, S.T. was transferred from Logansport State Hospital to Madison

      State Hospital (“Hospital”), and the Hospital began filing the annual reports.

      The trial court continued extending S.T.’s commitment without hearing. In

      February 2015, hospital staff determined that S.T. was competent to stand trial.

      However, the State dismissed the charges against him. S.T. remained at the

      Hospital under a regular commitment.


[5]   In July 2016, S.T. filed a motion for a review hearing and dismissal of the

      regular commitment. At the review hearing, the Hospital presented the

      testimony of Dr. Ross Nunes, S.T.’s psychiatrist since 2011, and Dr. Pamela
      Court of Appeals of Indiana | Memorandum Decision 49A02-1610-MH-2401 | August 3, 2017   Page 3 of 11
Gutherie, S.T.’s clinical psychologist. The trial court entered findings of fact

and conclusions thereon as follows:


        [S.T.] was originally found incompetent to stand trial, and
        subsequently committed under a regular commitment on
        February 3, 2009. His commitment has been renewed annually
        since that time. On January 14, 2016, Madison State Hospital
        filed the current periodic report. On February 1, 2016, the court
        issued an order continuing the regular commitment. The matter
        was heard by the court on October 19, 201[6]. Dr. Nunes
        respondent’s treatment psychiatrist at Madison State Hospital
        testified that the respondent suffers from pedophilia, malingering,
        and mild intellectual disability all of which are mental disorders.
        During the course of his commitment to state hospitals
        respondent admits to having reoccurring urges to have sexual
        contact with minors age 13 or younger. Respondent has chosen
        for most of his stay not to participate in any of the treatment
        programs designed to assist him in coping with those urges. The
        psychiatrist and social worker involved [in] respondent’s care
        testified that they believe he is a danger to others and if released
        would be highly at risk to satisfy those urges. Their opinion is
        based on his behavior within the controlled setting of the state
        hospital. For most of his stay in state hospitals the respondent
        has been on 15 minute intervals to check his room at night to
        prevent him from attempting to enter the rooms of other patients
        to engage in unwanted sexual activity. He consistently acts on
        urges and impulses to violate the personal space of other patients,
        and violate rules of the hospital. His [sic] been giving various
        evaluations which place same in an overall risk/need category of
        moderate to high.


        The respondent has not engaged in any sexual acts with children
        under the age of 13 within the controlled hospital setting.
        However, he continues to attempt to engage in unwanted sexual
        behaviors with peers. He also routinely violates rules, takes
        advantage of peers and violates the rights of other patients.
Court of Appeals of Indiana | Memorandum Decision 49A02-1610-MH-2401 | August 3, 2017   Page 4 of 11
        These activities coupled with the risk need assessments support a
        finding that if not under a commitment in the controlled
        environment of the state hospital respondent is a danger to
        others. The court therefore finds:


        1.      Respondent is suffering from pedophilia, malingering, and
                mild intellectual disability which is mental illness as
                defined in IC 12-7-2-130.


        2.      Respondent is a danger to others, as defined by IC 12-7-2-
                53.


        3.      Respondent is in need of commitment to an appropriate
                facility for [a] period expected to exceed ninety (90) days.


        4.      The appropriate facility where Respondent can receive
                rehabilitative treatment or rehabilitation and care is
                Madison State Hospital, which is the least restrictive
                environment suitable for the necessary care, treatment and
                protection of said person and others.


        5.      Each and every form of treatment, and each and every
                alternative form of treatment has specifically been
                evaluated by psychiatrists for Respondent.


        6.      There is not less restrictive alternative treatment and the
                treatment selected is reasonable and restricts the
                Respondent’s liberty in the least possible degree.


    It is therefore ordered that [S.T.], Respondent, is accordingly
    committed to the designated facility, where Petitioner is granted an
    order to treat with medications unless Respondent does not
    specifically benefit from the medications, until the Respondent is
    discharged or until the Court terminates the commitment.

Court of Appeals of Indiana | Memorandum Decision 49A02-1610-MH-2401 | August 3, 2017   Page 5 of 11
      Appellant’s App. Vol. II pp. 14-15. S.T. now appeals.


                                                  Analysis
[6]   S.T. challenges the trial court’s continuation of his commitment. “‘[T]he

      purpose of civil commitment proceedings is dual: to protect the public and to

      ensure the rights of the person whose liberty is at stake.’” Civil Commitment of

      T.K. v. Dep’t of Veterans Affairs, 27 N.E.3d 271, 273 (Ind. 2015) (quoting In re

      Commitment of Roberts, 723 N.E.2d 474, 476 (Ind. Ct. App. 2000)). “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.” Id. (citing Addington

      v. Texas, 441 U.S. 418, 425-26, 99 S. Ct. 1804 (1979)). “To satisfy the

      requirements of due process, the facts justifying an involuntary commitment

      must be shown ‘by clear and convincing evidence . . . . [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.’” Id. (quoting Commitment of J.B. v.

      Midtown Mental Health Ctr., 581 N.E.2d 448, 450 (Ind. Ct. App. 1991), trans.

      denied).


[7]   In reviewing the sufficiency of the evidence supporting a determination made

      under the statutory requirement of clear and convincing evidence, we will

      affirm if, “‘considering only the probative evidence and the reasonable


      Court of Appeals of Indiana | Memorandum Decision 49A02-1610-MH-2401 | August 3, 2017   Page 6 of 11
      inferences supporting it, without weighing evidence or assessing witness

      credibility, a reasonable trier of fact could find [the necessary elements] proven

      by clear and convincing evidence.’” Id. (quoting Bud Wolf Chevrolet, Inc. v.

      Robertson, 519 N.E.2d 135, 137 (Ind. 1988)). This appellate standard of review

      applies in civil commitment decisions. Id.


[8]   The Hospital was required to prove by clear and convincing evidence that S.T.

      “is mentally ill and either dangerous or gravely disabled” and that S.T.’s

      continued commitment was appropriate. Ind. Code § 12-26-2-5. At least

      annually, the Hospital is required to file with the court a review of the

      individual’s care and treatment. I.C. § 12-26-15-1. The review must contain a

      statement of:

              (1) The mental condition of the individual.


              (2) Whether the individual is dangerous or gravely disabled.


              (3) Whether the individual:


                      (A) needs to remain in the facility; or


                      (B) may be cared for under a guardianship.


      Id.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1610-MH-2401 | August 3, 2017   Page 7 of 11
[9]    S.T. challenges the trial court’s finding that he is dangerous.1 Indiana Code

       Section 12-7-2-53 defines “dangerous” as “a condition in which an individual as

       a result of mental illness, presents a substantial risk that the individual will

       harm the individual or others.” The trial court found:


                [S.T.] continues to attempt to engage in unwanted sexual
                behaviors with peers. He also routinely violates rules, takes
                advantage of peers and violates the rights of other patients.
                These activities coupled with the risk need assessments support a
                finding that if not under a commitment in the controlled
                environment of the state hospital respondent is a danger to
                others.


       Appellant’s App. Vol. II p. 14.


[10]   The Hospital presented evidence regarding S.T.’s dangerousness. Dr. Nunes

       testified that S.T. has urges to have sexual contact with children, that S.T. has

       admitted to contact with more than one child, and that S.T.’s daily behaviors

       demonstrate “the consistent violation of others rights and boundaries.” Tr. p.

       11. Dr. Nunes believed that S.T. was “dangerous to others by virtue of his

       ongoing pedophilic urges.” Id. at 13. He testified:


                [S.T.] has expressed to me repeatedly over time including
                recently, an ongoing predilection towards having sexual fantasies
                of young male children. And one of the most common things




       1
        S.T. does not contest the trial court’s finding that he is mentally ill; however, he does dispute the trial
       court’s finding that he suffers from pedophilia. S.T. does not present “detailed argument on this point”
       because the finding of pedophilia “is not necessary for a finding of mental illness . . . .” Appellant’s Br. p. 12.
       Consequently, we do not address the issue.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1610-MH-2401 | August 3, 2017                 Page 8 of 11
        that I ask him about is you know, whether or not the medication
        that I am prescribing him is giving him any degree of relief from
        those urges, and he explains to me on the one hand yes it give
        him some degree of relief. But simultaneously he explains to me
        that his struggle is so significant that when I ask him as I
        routinely do, what if you were to not be in the hospital at this
        time what could you do – what steps could you take so that you
        would not sexually molest a child. And his most consistent
        answer to me is that he would have to one hundred percent avoid
        children. Not physically be in their vicinity.


Id. at 13. Dr. Nunes also testified that the treatment team has been concerned

over S.T.’s treatment of others and that, because of their concerns, S.T. was

placed on fifteen-minute checks at night to prevent him from entering the room

of another patient and exploiting or harming him or her. S.T. has also

repeatedly acted out sexually with his peers at the hospital even when his peers

have refused to consent. S.T. has difficulty controlling his impulses, plots

“discord between certain peers and himself, certain peers and each other,” and

difficulty keeping himself on task while avoiding engaging in disruptive

behavior. Id. at 16. Although sex offender treatment programs are available at

the Hospital, S.T. has, until recently, refused to fully participate in the

programs. Approximately seven to ten days before the hearing, S.T. “suddenly

rearticulated a desire to participate” in the treatment. Id. at 18. Overall,

however, his participation has been “sporadic” and “minimal.” Id. Because

S.T. has not been “very engaged” in sex offender treatment, he is not able to

“articulate triggers or coping mechanisms, or coping skills,” and S.T. has

shared his concerns that he would reoffend. S.T. has been prescribed a


Court of Appeals of Indiana | Memorandum Decision 49A02-1610-MH-2401 | August 3, 2017   Page 9 of 11
       medication to “diminish testosterone levels” and reduce “sexual aggression.”

       Id. Despite the medication, S.T. continues to act out sexually.


[11]   Dr. Gutherie testified that S.T. has admitted that “his primary sexual attraction

       is to young male children.” Id. at 56. S.T. had recently told Dr. Gutherie that

       “without further treatment if he were to go back into the community that he

       would probably reoffend.” Id. Dr. Gutherie believed, based on some of S.T.’s

       behaviors, that he also would “probably not respect the boundaries and rights of

       other people who he is sexually attracted to . . . .” Id. at 57. Dr. Gutherie

       prepared a psychological evaluation of S.T. She found that S.T. was at a

       “relatively high risk of reoffending.” Id. at 62.


[12]   S.T. argues that Dr. Nunes’ testimony, Dr. Guthrie’s testimony, and the

       Hospital’s documentation do not prove by clear and convincing evidence that

       S.T.’s behavior supports a finding of dangerousness. S.T. challenges the basis

       for the fifteen-minute night time checks, the lack of specific examples of

       dangerous conduct, and changing standards in the Hospital’s definition of

       inappropriate sexual behavior. S.T. also challenges the risk assessment tools

       and methodology that Dr. Guthrie used in assessing S.T.’s risk of reoffending.

       S.T. argues that Dr. Guthrie’s “unreasonable opinion about S.T.’s ‘urges’

       reveals a lack of understanding of mental retardation and cognitive disability.”

       Appellant’s Br. p. 25. Finally, S.T. argues that his own admissions do not

       constitute clear and convincing evidence of dangerousness because he is

       susceptible to suggestion. According to S.T., his “own uncorroborated



       Court of Appeals of Indiana | Memorandum Decision 49A02-1610-MH-2401 | August 3, 2017   Page 10 of 11
       admissions to prior criminal conduct have little evidentiary value.” Appellant’s

       Reply Br. p. 4.


[13]   S.T.’s arguments are merely a request that we reweigh the evidence, which we

       cannot do. Civil Commitment of T.K., 27 N.E.3d at 273. The Hospital presented

       clear and convincing evidence that S.T. remains a danger to others. Despite

       years of treatment and medication to reduce his sexual desires, S.T. continues

       to act out sexually. S.T. also continues to break Hospital rules, struggles with

       impulsive behavior, fails to get along with his peers, and fails to fully participate

       in sex offender treatment programs. His treatment team believed that his

       inability to control his behavior and lack of progress did not bode well for his

       ability to control his urges outside of the Hospital setting. The trial court’s

       finding that S.T. is dangerous to others is not clearly erroneous.


                                                 Conclusion
[14]   The Hospital presented clear and convincing evidence that S.T is a danger to

       others. Consequently, the trial court properly continued S.T.’s commitment.

       We affirm.


[15]   Affirmed.


       Baker, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1610-MH-2401 | August 3, 2017   Page 11 of 11
