MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                            FILED
this Memorandum Decision shall not be                         Oct 21 2016, 9:26 am
regarded as precedent or cited before any                         CLERK
court except for the purpose of establishing                  Indiana Supreme Court
                                                                 Court of Appeals
the defense of res judicata, collateral                            and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Patricia Caress McMath                                   Jenny R. Buchheit
Marion County Public Defender Agency                     Stephen E. Reynolds
Indianapolis, Indiana                                    Ice Miller LLP
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the Civil                               October 21, 2016
Commitment of B.J.,                                      Court of Appeals Case No.
Appellant-Respondent,                                    49A02-1603-MH-413
                                                         Appeal from the Marion Superior
        v.                                               Court
                                                         The Honorable Amy Jones,
Eskenazi Hospital/Midtown                                Special Judge
CMHC,                                                    Trial Court Cause No.
Appellee-Plaintiff.                                      49D08-1508-MH-27580




Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1603-MH-413 | October 21, 2016   Page 1 of 13
                                         Statement of the Case
[1]   B.J. appeals the trial court’s order for his involuntary regular civil commitment. 1

      On appeal, he argues that there was not sufficient evidence to support his

      commitment because there was no evidence that he was gravely disabled. In

      response, Eskenazi Hospital/Midtown CHMC (“Eskenazi”) asserts that there

      was sufficient evidence that B.J. was gravely disabled and, regardless, there was

      sufficient evidence that B.J. was dangerous. Because we conclude that there

      was not sufficient evidence to support B.J.’s involuntary commitment, we

      reverse and remand.


[2]   We reverse and remand.


                                                        Issue
               Whether there was sufficient evidence to involuntary commit B.J.
               to a regular civil commitment.

                                                        Facts
[3]   On August 18, 2015, B.J. was detained at Eskenazi on an emergency basis after

      a clinician reported that he was “psychotic and unable to use reasonable




      1
       In Civil Commitment of W.S. v. Eskenazi Health, Midtown Cmty. Mental Health, 23 N.E.3d 29, 33 n.2 (Ind. Ct.
      App. 2014) (internal citations omitted), trans. denied, we explained that:
               In general, there are three types of commitments: An emergency detention limits the
               detention of an individual to seventy-two hours. A temporary commitment may be
               authorized for up to ninety days. A regular commitment is the most restrictive form of
               involuntary treatment and is proper for an individual whose commitment is expected to
               exceed ninety days.
      .

      Court of Appeals of Indiana | Memorandum Decision 49A02-1603-MH-413 | October 21, 2016            Page 2 of 13
      judgment.” (App. 17). Dr. Xiaoxi Ouyang (“Dr. Ouyang”), a physician at

      Eskenazi, examined B.J. and filed a report stating that he had a psychiatric

      disorder. Specifically, she noted that B.J. had been:

              making death threats, rape threats, [and] lawsuit threats to
              multiple people. Multiple people [were] in fear for safety because
              of this patient[.] [He] prev[iously] attempted to choke [his] ex-
              wife due to delusions/impairing judgment[.] [He]’s a danger to
              others.

      (App. 21). She concluded that B.J. had no insight into his illness and

      recommended that he be committed to Eskenazi on a temporary basis for

      treatment.


[4]   On August 26, 2015, the trial court held a hearing on Dr. Ouyang’s

      commitment petition and ordered B.J. committed on a temporary basis not to

      exceed ninety days. Before that ninety days had expired, B.J.’s psychiatrist at

      Eskenazi, Dr. Mary Salama (“Dr. Salama”), filed a report in which she

      requested that the court extend the temporary commitment. The trial court

      held a hearing on the report on November 16, 2015, and, with B.J.’s agreement,

      ordered that he complete a second temporary commitment on an out-patient

      basis and with an end-date of February 14, 2016.


[5]   On January 22, 2016, Dr. Salama filed another report requesting an extension

      of B.J.’s second temporary commitment to a regular commitment. She claimed

      that B.J. had missed two treatment appointments in the previous three weeks

      and had rescheduled another. She also noted that B.J.’s family had continued

      to report that he had “ma[d]e threats by body language.” (App. 57). She

      Court of Appeals of Indiana | Memorandum Decision 49A02-1603-MH-413 | October 21, 2016   Page 3 of 13
      opined that B.J. could be a threat to others as a result of his paranoid delusions

      if he chose to stop taking his medications. However, she did not allege that B.J.

      had stopped taking his medication during his temporary commitment.


[6]   Because of B.J.’s two missed appointments, Eskenazi filed a petition for his

      return to the hospital, which the trial court granted. When B.J. was admitted to

      the hospital, the dosage of his medicine had to be increased because he was

      showing signs of paranoia. B.J. also refused to take a drug test. However, the

      hospital was able to release him back to his out-patient status after five days.


[7]   Subsequently, on February 9, 2016, the trial court held a hearing on Dr.

      Salama’s report requesting to extend B.J.’s temporary commitment to a regular

      commitment. At the hearing, Dr. Salama testified that she had diagnosed B.J.

      with delusional disorder, persecutory type; substance abuse disorder; and

      narcissistic personality disorder. She had prescribed him a monthly injection,

      haliperidone, and she acknowledged that B.J. had complied with receiving

      those injections. However, she also testified that she believed B.J. was “gravely

      disabled” because of his mental illness and that his delusional disorder affected

      his ability to function independently because “the constant sense of paranoia,

      sense that he is being tracked and watched makes him get very angry easily.”

      (Tr. 21). When asked whether she believed there was a risk that B.J. would

      harm himself or others, Dr. Salama responded, “If he does not—if he does not

      stick with the treatment and treatment plan, he will eventually deteriorate to—

      to where (indiscernible).” (Tr. 21). When asked whether B.J. could provide

      himself with food, clothing, shelter or other essential human needs, Dr. Salama

      Court of Appeals of Indiana | Memorandum Decision 49A02-1603-MH-413 | October 21, 2016   Page 4 of 13
      replied, “Well, there is going to be a[n] escalation in the symptoms which at the

      one point he’s not going to be able to reach that. He’s always supported now by

      his parents. He lives with them and they—they help him out.” (Tr. 18-19).

      She also noted that B.J. had received a misdemeanor charge in the prior ninety

      days, but she did not clarify the nature or circumstances of the charge. 2


[8]   At one point during Dr. Salama’s testimony, it is apparent that B.J. physically

      reacted because the trial court interrupted the proceedings to tell B.J. to calm

      down. B.J. responded: “I am sorry. I just heard false statements. I’m sorry.”

      (Tr. 24). The proceedings then continued, and B.J. did not have any more

      outbursts.


[9]   After Dr. Salama’s testimony, B.J. testified and explained that he had missed

      the two treatment appointments because of his work schedule. He said that he

      had gotten a new job as a car broker after his previous November 16 temporary

      commitment hearing and had begun to work seventy hours per week. He also

      testified that he was “able to dress [himself] and [shower and [] get to work and

      be a normal, productive member of society.” (Tr. 41). He testified that he

      planned to live with his parents for six months while he saved up money

      because he had recently divorced his wife. However, he testified that he

      frequently traveled by himself and was able to take care of himself on those

      occasions. He also agreed to continue to take his medicine and participate in




      2
          The charging information is not a part of the record.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1603-MH-413 | October 21, 2016   Page 5 of 13
       treatment without a regular commitment. As for the misdemeanor charge he

       had received, B.J. testified that the charge was based on an incident that had

       occurred a year and a half earlier, before he had begun treatment. He said that

       the charges had been filed when he moved away for a year, and there had been

       a warrant for his arrest when he came back.


[10]   At the conclusion of the hearing, the trial court granted Eskenazi’s request to

       extend B.J.’s temporary commitment into a regular commitment. As a basis for

       its decision, the trial court stated to B.J.:

               I don’t get the impression that you think you have a mental
               health diagnosis. . . . I still see that there is – there’s absolutely
               no insight into your illness. There is no insight even into your
               behavior and how you act around people. And I can tell if you
               act this way in front of me, I don’t know what you’ve done in
               front of these doctors. When they are trying to have you do
               things that you don’t want to do. And we’re at a point now
               where there is no way that – that you can be given that much
               leeway to go out and do this on your own. Because, you can’t
               follow the Court’s order to do what the doctors tell you to do
               now. . . . The fact that you have – they have had to increase your
               injection due to your medication. Due to your – your thoughts.
               That [it] was a lengthier stay than normal[.] That’s not a
               punishment for failing to appear to an appointment. That is
               because you had delusions that were going on and you needed to
               be treated and you were not in a place where you could be
               released back to the community.

       (Tr. 66-68). B.J. now appeals.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-MH-413 | October 21, 2016   Page 6 of 13
                                                         Decision
[11]   On appeal, B.J. argues that there was insufficient evidence to support his

       involuntary commitment because Eskenazi did not prove by clear and

       convincing evidence that he was “gravely disabled,” as defined by statute.3

       Eskenazi responds that there was sufficient evidence that B.J. was “gravely

       disabled,” or, alternatively, that he was a danger to others, which is another

       statutory ground for an involuntary commitment.


[12]   “‘[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 Rogers, 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. To

       satisfy the requirements of due process, the facts justifying an involuntary

       commitment must be shown by “‘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 involuntary commitments.’” Id. (quoting Commitment of J.B. v.




       3
         B.J. characterizes his argument as a due process claim, but we conclude that it is essentially a sufficiency of
       the evidence claim.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-MH-413 | October 21, 2016               Page 7 of 13
       Midtown Mental Health Ctr., 581 N.E.2d 448, 450 (Ind. Ct. App. 1991) (citations

       omitted), trans. denied).


[13]   To obtain an involuntary regular commitment of an individual, a “‘petitioner is

       required to prove by clear and convincing evidence that: (1) the individual is

       mentally ill and either dangerous or gravely disabled; and (2) detention or

       commitment of that individual is appropriate.’” Id. (quoting IND. CODE § 12-

       26-2-5(e)). In T.K., our supreme court recently criticized a line of cases in

       which this Court did not adequately apply the clear and convincing standard of

       review and instead affirmed civil commitment orders if such an order

       “‘represent[ed] a conclusion that a reasonable person could have drawn, even if

       other reasonable conclusions [were] possible.’” Id. (quoting M.L. v. Meridian

       Servs., Inc., 956 N.E.2d 752, 755 (Ind. Ct. App. 2011)). The supreme court

       emphasized that we should instead apply the clear and convincing evidence

       standard, which is defined as an intermediate standard of proof greater than a

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

       T.D. v. Eskenazi Midtown Cmty. Mental Health Ctr., 40 N.E.3d 507, 510 (Ind. Ct.

       App. 2015). In order to be clear and convincing, the existence of a fact must be

       highly probable. Id. In reviewing the sufficiency of the evidence supporting a

       civil commitment, we will not reweigh the evidence or assess witness

       credibility. See id. Moreover, we will consider only the probative evidence and

       the reasonable inferences supporting the judgment. See id.


[14]   B.J. does not dispute the trial court’s finding that he is mentally ill. However,

       he argues that there was not sufficient evidence to support the trial court’s

       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-MH-413 | October 21, 2016   Page 8 of 13
       conclusion that, as a result of his mental illness, he is “gravely disabled.”

       INDIANA CODE § 12-7-2-96 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:

                       (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.

       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 his basic needs or that his

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

       resulted in his inability to function independently. T.D., 40 N.E.3d at 510.


[15]   In support of his argument that he is not gravely disabled, B.J. cites to our

       supreme court’s decision in T.K. There, our supreme court found that T.K. was

       not gravely disabled even though he had “continuously refused treatment, [had]

       denied that he [had] any problem, and [had] been an aggressor in several areas

       of his life.” T.K., 27 N.E.3d at 275. As in the instant case, T.K. had been

       “paranoid over a wide range of . . . institutions as persecuting him.” Id. at 274.

       He put flyers of a person’s criminal record on windshields in order to “hurt” or

       “aggravate” that person and screamed at the staff in an Adult and Child Clinic

       in a manner that made the staff there concerned. Id. A resident in psychiatry at


       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-MH-413 | October 21, 2016   Page 9 of 13
       the hospital where T.K. was admitted testified that he had “‘observed [T.K.’s]

       aggressive, disruptive behavior towards [his] attending physician,’ that ‘other

       patients ha[d] complained about . . . being fearful of him, and of his

       aggression,’” and that the workers at the Adult and Child Clinic “felt

       threatened enough that they want[ed] to know if [T.K. was going to be]

       released, because they [were] fearful of T.K.’s physical violent behavior.” Id. at

       275. T.K.’s son was concerned because T.K. had military experience and had

       displayed erratic and aggressive behavior, including mentioning the use of

       violence in emails and on Facebook. Id.


[16]   On appeal, our supreme court reversed T.K.’s commitment, finding that there

       was not sufficient evidence that he was “gravely disabled.” Specifically, the

       supreme court noted that both T.K. and the hospital psychiatry resident had

       testified that T.K. rented his home, lived by himself, held full-time employment,

       and owned two vehicles while making payments on a third. Id. at 276. The

       court thus found that “[n]o evidence was presented to dispute his ability to

       provide food, clothing, or shelter for himself.” Id. Further, the court found that

       there was not clear and convincing evidence that T.K. was unable to function

       independently. It reasoned that, while T.K.’s behavior was aggressive, he had

       not made any physical outbursts, destroyed any property, or put himself or

       others in actual danger. Id. at 277. The court concluded that “at best, the

       evidence suggests that T.K.’s loud, boisterous, and rude public behavior harmed

       his reputation and made others not want to be around him.” Id. According to

       the court, that was “not sufficient evidence to support a civil commitment on


       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-MH-413 | October 21, 2016   Page 10 of 13
       grounds of grave disability.” Id. Finally, the court noted that a denial of mental

       illness and refusal to medicate were “insufficient to establish grave disability

       because they [did] not establish, by clear and convincing evidence, that such

       behavior ‘result[ed] in the individual’s inability to function independently.’” Id.

       at 276.


[17]   Here, Dr. Salama was the only witness who testified that B.J. had a grave

       disability. When asked whether B.J. could provide himself with food, clothing,

       shelter, or other essential human needs, Dr. Salama replied, “Well, there is

       going to be a[n] escalation in the symptoms which at the one point he’s not

       going to be able to reach that. He’s always supported now by his parents. He

       lives with them and they—they help him out. Before that he was in a restrictive

       environment.” (Tr. 18-19). When asked whether she believed there was a risk

       that B.J. would harm himself or others, Dr. Salama responded, “If he does

       not—if he does not stick with the treatment and treatment plan, he will

       eventually deteriorate to – to where (indiscernible).” (Tr. 21). In both of these

       instances, Dr. Salama evaluated B.J.’s hypothetical state based on future

       contingencies. We do not find this testimony persuasive as the statute clearly

       requires the trier of fact to assess the individual’s state at the time of the hearing

       prior to ordering a commitment. See I.C. § 12-7-2-96 (stating—in present

       tense—that a person is gravely disabled if that person “(1) is unable to provide

       for . . . food, clothing, shelter, or other essential human needs; or (2) has a

       substantial impairment or an obvious deterioration of . . . judgment, reasoning,




       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-MH-413 | October 21, 2016   Page 11 of 13
       or behavior that results in the individual’s inability to function independently”)

       (emphasis added).


[18]   The only other evidence supporting B.J.’s commitment was Dr. Salama’s

       testimony and reports that B.J. had threatened other individuals, Dr. Salama’s

       testimony that B.J. had missed two treatment appointments, and B.J.’s

       behavior that led the trial court to determine that he was in denial of his mental

       illness. However, the supreme court held in T.K. that threats such as those

       made by T.K. and B.J., failure to medicate, and a denial of mental illness are

       not sufficient to prove that an individual is gravely disabled. Accordingly, we

       must conclude that there also was insufficient evidence here for the trial court to

       conclude that B.J. was gravely disabled. We are not holding that evidence of

       threats may never be sufficient evidence of a grave disability, but there was no

       evidence that B.J. destroyed property or put himself or others in actual danger

       after he began his treatment. Those were two factors that the T.K. Court found

       significant in determining whether T.K. was gravely disabled. See T.K., 27

       N.E.3d at 277.


[19]   Moreover, there was evidence that B.J. was able to meet his needs and function

       independently. During B.J.’s temporary commitment, B.J. gained and

       maintained employment at a job that required him to work seventy hours a

       week and travel frequently. B.J. testified that he was able to dress himself,

       shower, work, and act as a normal, productive member of society. He also

       testified that he had shelter in his parents’ house. Because we find that there

       was insufficient evidence to prove that B.J. was gravely disabled, we conclude

       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-MH-413 | October 21, 2016   Page 12 of 13
       that there was also insufficient evidence to support his regular commitment. 4

       We reverse and remand.


[20]   Reversed and remanded.


       Bradford, J., and Altice, J., concur.




       4
         Eskenazi argues that even if B.J. was not gravely disabled, his commitment was proper because there was
       sufficient evidence that he was a danger to others, which is another ground for commitment. See I.C. § 12-26-
       2-5(e). However, the trial court here did not make a determination regarding B.J.’s dangerousness to himself
       or others. Also, the supreme court considered the same argument in T.K. and held that there was not
       sufficient evidence that T.K. was dangerous. T.K., 27 N.E.3d at 274. Because B.J.’s behavior here was
       similar to T.K.’s behavior that the T.K. Court found was insufficient to prove dangerousness, we necessarily
       also conclude that there was insufficient evidence here to prove that B.J. was dangerous.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-MH-413 | October 21, 2016         Page 13 of 13
