                                                                           FILED
                                                                      Nov 23 2016, 9:01 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Joel M. Schumm                                           Josh J. Minkler
Appellate Clinic                                         United States Attorney
Robert H. McKinney School of Law
                                                         Danielle Kalivoda
Indianapolis, Indiana                                    Special Assistant
                                                         United States Attorney
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the                                     November 23, 2016
Commitment of M.E.,                                      Court of Appeals Case No.
Appellant-Respondent,                                    27A02-1605-MH-987
                                                         Appeal from the Grant Circuit
        v.                                               Court
                                                         The Honorable Mark E. Spitzer,
Department of Veterans Affairs,                          Judge
Appellee-Petitioner                                      Trial Court Cause No.
                                                         27C01-9009-MH-567



Baker, Judge.




Court of Appeals of Indiana | Opinion 27A02-1605-MH-987 | November 23, 2016                    Page 1 of 15
[1]   The Veterans Affairs (VA) Hospital filed a petition to involuntarily commit

      M.E. by way of forcible medication after M.E. was brought there by local

      police. The trial court issued an Order of Regular Commitment, committing

      M.E. to the hospital until discharged, and granted an order to medicate M.E.

      unless he did not substantially benefit from the medications. M.E. now appeals

      his involuntary commitment. Finding that M.E. did not receive appropriate

      notice, that his waiver was invalid, and that the VA did not carry its burden of

      proof with respect to the elements of dangerousness and grave disability, we

      reverse and remand with instructions to vacate the order of involuntary

      commitment.


                                                        Facts     1




[2]   M.E. is an army veteran who lives in Marion and has a well-established

      diagnosis of paranoid schizophrenia. On March 31, 2016, M.E. was brought to

      the VA Hospital by the police.2


[3]   On April 4, 2016, the Department of Veterans Affairs Northern Indiana Health

      Care System (NIHCS) filed an Application for Emergency Detention of M.E.




      1
        We heard oral argument on October 27, 2016, at Lawrence North High School. We would like to thank
      the school’s administration, faculty, and students for their hospitality, and Lawrence North senior Bailey
      Hogan for serving as our bailiff. We also thank counsel for their informative and engaging oral advocacy and
      subsequent discussion with the students.
      2
          The record does not reveal the initial reason law enforcement became involved with M.E.


      Court of Appeals of Indiana | Opinion 27A02-1605-MH-987 | November 23, 2016                     Page 2 of 15
      with the trial court. That same day, the trial court approved the emergency

      detention.


[4]   On April 6, 2016, the NIHCS filed multiple documents with the trial court,

      including a Petition for Regular Commitment with a Physician’s Statement

      attached. The VA did not serve these documents on M.E. or his counsel. Dr.

      Masood Khan completed the Physician’s Statement preprinted form, indicating

      that M.E. was in need of custody, care, or treatment in an appropriate facility;

      that commitment would not be necessary if M.E. was taking medication for his

      condition; and that M.E. cannot be relied upon to take medication as

      prescribed. On April 7, 2016, the trial court issued a Commitment Hearing

      Order, scheduling a hearing for April 12, 2016, a Notice of Rights and

      Procedures, and a Mental Illness Summons. The Sheriff was ordered to serve

      these documents on M.E. Also on April 7, 2016, M.E., who was still being

      involuntarily detained at the hospital, signed a Waiver of Right to be Present at

      Commitment Hearing. The waiver provided:

[5]           I waive my right to be present at the hearing set for 1:30 O’clock
              p.m. on 4/12/2016. I understand that, if I fail to appear at the
              hearing, I lose this opportunity to contest my commitment unless
              my representative contests the matter on my behalf. I wish to be
              represented by: __________ at the hearing. This waiver is given
              voluntarily. No person has encouraged or pressured me to sign
              this waiver.


      Appellant’s App. Vol. 2 p. 26.




      Court of Appeals of Indiana | Opinion 27A02-1605-MH-987 | November 23, 2016   Page 3 of 15
[6]   M.E.’s counsel learned of the proceedings on April 8 when counsel for the VA

      called him. M.E.’s counsel had to ask for all of the documents to be sent to

      him. After speaking with M.E., M.E.’s counsel filed a motion to continue the

      hearing. His request was granted, and on April 20, 2016, the hearing took

      place. Meanwhile, on April 12, 2016, M.E. was discharged from the VA

      hospital.


[7]   At the hearing, Dr. Masood Khan, a staff inpatient psychiatrist at the hospital,

      was the VA’s sole witness. Dr. Khan testified that when M.E. arrived at the

      acute mental health unit, M.E. was swearing loudly, presenting with

      disorganized thoughts and behavior, acting paranoid, and initially refusing

      medications. According to Dr. Khan, the commitment order was necessary

      because “the long history of non-compliance, is primary [sic] the issue, that’s

      why the order is being questioned.” Tr. p. 6. Dr. Khan testified that

      schizophrenia is categorized by delusions and hallucinations, and that when

      M.E. is in his delusional state, he thinks that people are discriminating against

      him because he is Black; when he is hallucinating, he responds loudly to unseen

      others and makes physical gestures. When asked to explain the nature of

      M.E.’s yelling or purported threats, Dr. Khan testified that M.E. yelled, “these

      white bitches get away from me. You did this to me, you did that to me.” Id.

      at 15. Dr. Khan testified that M.E. has a long history of marijuana use, which

      will, in some cases, exacerbate schizophrenia.


[8]   Dr. Khan further testified that prior to the instant admission, M.E. had been

      admitted to the acute mental health unit of the VA Hospital in Marion at least

      Court of Appeals of Indiana | Opinion 27A02-1605-MH-987 | November 23, 2016   Page 4 of 15
      thirty-one times. He testified that when M.E. was part of the VA program for

      mental health intensive case management, he was compliant with his

      medication and was free of symptoms. Dr. Khan said that “[t]here has been no

      physical [aggression] from what I am remembering from the records,” id. at 10,

      and that the most recent time that M.E. was restrained was July 2013. Dr.

      Khan testified that although M.E. showed up for his appointment on April 19,

      2016, he declined the medication. Dr. Khan recommended a treatment plan

      that was a long-acting injectable. He testified that M.E. is an ideal candidate

      for this medication because he does not exhibit side effects from it and his

      “presentation turns around 180 degrees.” Id. at 12.


[9]   M.E. testified on his own behalf. He testified that he did not know why he was

      taken to the hospital: “I got out there and they wouldn’t tell me, they never

      told me anything. To this day I still don’t know what was said that I did to

      except for what” he was told by counsel. Id. at 19. He stated that he wears an

      allergy bracelet for the medication that he was forced to take, and that he suffers

      side effects from it, including kidney and bladder problems. He testified that he

      lives by himself in an apartment, pays rent for his apartment every month, eats

      regularly, and dresses himself. He gets along well with his landlord. He said

      that he gets loud sometimes because “my voice does accelerate.” Id. at 20. He

      testified that one white patient “swore up and down and he went home” and

      another “threw his tray on the floor” and would probably go home. Id. at 21.

      As for his delusions, M.E. said that white people do not bother him, but that if

      something happened, their word would overrule his.


      Court of Appeals of Indiana | Opinion 27A02-1605-MH-987 | November 23, 2016   Page 5 of 15
[10]   On April 25, 2016, the trial court issued an Order of Regular Commitment,

       finding M.E. to be mentally ill, dangerous, and gravely disabled, and permitting

       him to be forcibly medicated. M.E. now appeals.


                                      Discussion and Decision
[11]   M.E. makes three arguments on appeal: (1) the VA failed to serve M.E. with

       the documents it filed with the trial court; (2) the Waiver of Right to Be Present

       at Commitment Hearing signed by M.E. was invalid; and (3) the involuntary

       civil commitment was not warranted because the VA failed to establish that

       M.E. exhibited a grave disability or dangerousness to self.3


                                        I. Service of Pleadings
[12]   M.E. first argues that a hospital in a civil commitment case is required to serve

       the patient or patient’s counsel with all documents it files with a trial court,

       including petitions for involuntary commitment.


[13]   In civil proceedings, each party must be served with “every pleading subsequent

       to the original complaint.” Ind. Trial Rule 5(A)(2). The rule further provides

       that when “a party is represented by an attorney of record, service shall be made




       3
         Because M.E. was eventually able to obtain the documents at issue and because he appeared at his hearing,
       the first two issues presented are moot. We generally do not discuss moot issues; however, a moot issue
       “may be decided on its merits when it involves questions of great public interest that are likely to recur.”
       Golub v. Giles, 814 N.E.2d 1034, 1036 n.1 (Ind. Ct. App. 2004). “The question of how persons subject to
       involuntary commitment are treated by our trial courts is one of great importance to society.” Id. Further,
       this case involves a question of whether an individual who is involuntarily committed is able to validly waive
       his rights. These are issues of great public importance and are likely to recur, so we will address them.

       Court of Appeals of Indiana | Opinion 27A02-1605-MH-987 | November 23, 2016                       Page 6 of 15
       upon such attorney unless service upon the party is ordered by the court.” T.R.

       5(B). Service upon the attorney or party can be made through a variety of

       methods, including through mail, e-mail, or fax. Id. Mental health proceedings

       are conducted like other civil proceedings according to the trial rules except as

       otherwise provided. Ind. Code § 12-26-1-6. An individual alleged to have a

       mental illness has the right to receive adequate notice of a hearing so that the

       individual or the individual’s attorney can prepare for the hearing; to receive a

       copy of a petition or an order relating to the individual; to be present at a

       hearing relating to the individual; and to be represented by counsel. Ind. Code

       § 12-26-2-2. The Indiana Legislature extended these rights to the proceedings

       for temporary commitment and regular commitment, notice of discharge of an

       individual, and review of commitment, but not for emergency detentions. I.C.

       § 12-26-2-2(a)(1)-(4).


[14]   On April 6, 2016, the VA filed a petition seeking to have M.E. involuntarily

       committed with an attached Physician’s Statement. Although M.E.’s counsel

       had entered an appearance on M.E.’s behalf in March of 2015, M.E.’s counsel

       was not served with these documents. He received notice when the VA’s

       counsel called him on April 8 to ask about the necessity of a commitment

       hearing. M.E.’s counsel had to request the documents filed by the VA; on April

       11, the VA’s counsel faxed the pleadings to M.E.’s counsel.


[15]   M.E. argues that he was not served with any of these documents, evidenced by

       the fact that none contained a certificate of service, and he testified at the

       commitment hearing that he first learned of the allegations supporting his

       Court of Appeals of Indiana | Opinion 27A02-1605-MH-987 | November 23, 2016   Page 7 of 15
       emergency detention and the sought-after commitment from his counsel,

       despite the fact that M.E. was represented by counsel beginning in 2015 and

       was represented by counsel when he was involuntarily committed on March 31,

       2016.


[16]   The VA relies on Cheek v. State, in which this Court found that where “an

       individual appears with counsel, it is apparent that the notice was actually

       received despite the fact that a sheriff’s return is not included in the trial

       record.” 567 N.E.2d 1192, 1195-96 (Ind. Ct. App. 1991) (emphasis original).


[17]   We find that M.E. was never served with the pleadings related to the

       commitment petition. We decline to follow Cheek and find instead that service

       and proof of service is required for all civil commitment cases. The mere fact

       that an individual appeared at a hearing with counsel is insufficient to prove

       service—indeed, the individual and his counsel may have learned of the hearing

       through purely serendipitous circumstances, which is precisely what occurred in

       the present case.


[18]   For service to meet due process requirements, it must be “reasonably calculated

       to inform the person to be served that an action has been instituted against him,

       the name of the court, and the time within which he is required to respond.”

       T.R. 4.15(F). If service “is not ‘reasonably calculated to inform . . .,’ the mere

       fact that the party [served] has actual knowledge of the suit does not satisfy due

       process . . . .” Glennar Mercury-Lincoln, Inc. v. Riley, 167 Ind. App. 144, 152, 338

       N.E.2d 670, 675 (1975). Here, M.E. received notice only through his counsel;


       Court of Appeals of Indiana | Opinion 27A02-1605-MH-987 | November 23, 2016   Page 8 of 15
       M.E.’s counsel received notice only when the VA’s counsel called him to

       discuss a hearing, and M.E.’s counsel then had to request that the VA send him

       the documents that had been filed with the trial court. Even though the VA’s

       counsel ultimately sent M.E.’s counsel the documents, such action does not

       constitute effective service because it was not “reasonably calculated to inform”

       M.E. of the action instituted against him. Compare to Thomison v. IK Indy, Inc.,

       658 N.E.2d 1052, 1059 (Ind. Ct. App. 2006) (finding that service was effective

       because the appellant-defendant conceded that the summons and complaint

       were delivered to her residence and she made no argument that she did not

       receive the complaint). Accordingly, despite the fact that M.E. appeared at the

       hearing with counsel, his appearance does not establish that actual service

       occurred.


[19]   Fair notice requires that individuals who may be civilly committed and their

       counsel receive the petitions and documents supporting the requests for civil

       commitment. We find, therefore, that the VA’s failure to serve these

       documents on M.E. and his counsel violated Trial Rule 5’s requirement that

       each party must be served with every pleading, including and subsequent to the

       original complaint, and that service must be made upon an attorney of a

       represented party.


                                                 II. Waiver
[20]   Next, M.E. argues that the “Waiver of Right to be Present at Commitment

       Hearing” that the VA secured from him was invalid. We agree, finding that


       Court of Appeals of Indiana | Opinion 27A02-1605-MH-987 | November 23, 2016   Page 9 of 15
       any waiver presented to and signed by an individual who has been involuntarily

       detained, and is alleged by the VA to be mentally ill, cannot be valid.


[21]   In supporting its argument that M.E.’s waiver was valid, the VA relies on the

       fact that the waiver involved in this case was an express, written waiver, and

       that M.E.’s experience with commitment orders and the mental health unit of

       NIHCS over the course of fifteen years indicates that M.E. understood the

       waiver that he signed. This argument is unfathomable.


[22]   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 VA 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.


[23]   Accordingly, we hold that a waiver purporting to relinquish the rights of an

       involuntarily detained individual, or an individual at risk of being involuntarily

       committed, is not valid.


                              III. Sufficiency of the Evidence
[24]   M.E. argues that there was no clear and convincing evidence of dangerousness

       to self or grave disability that warranted his involuntary civil commitment.
       Court of Appeals of Indiana | Opinion 27A02-1605-MH-987 | November 23, 2016   Page 10 of 15
[25]   In reviewing the sufficiency of the evidence to support a civil commitment,

       which requires clear and convincing evidence, “an appellate court will affirm if,

       ‘considering only the probative evidence and the reasonable 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.’” Civil Commitment of T.K. v. Dep’t of Veterans Affairs, 27

       N.E.3d 271, 273 (Ind. 2015) (quoting Bud Wolf Chevrolet, Inc. v. Robertson, 519

       N.E.2d 135, 137 (Ind.1988)).


[26]   Indiana Code section 12-26-2-5(e) provides that the petitioner in a case

       involving the involuntary treatment of mentally ill individuals must 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. Clear and convincing evidence requires proof that the

       existence of a fact is “highly probable.” Lazarus Dep’t Store v. Sutherlin, 544

       N.E.2d 513, 527 (Ind. Ct. App. 1989). “There is no constitutional basis for

       confining a mentally ill person who is not dangerous and can live safely in

       freedom.” Commitment of J.B. v. Midtown Mental Health Ctr., 581 N.E.2d 448,

       451 (Ind. Ct. App. 1991).


                              A. Evidence of Dangerousness
[27]   An individual is “dangerous” when, as a result of mental illness, the individual

       presents a substantial risk that he will harm himself or others. Ind. Code § 12-7-

       2-53. When certain conduct is alleged to be dangerous, we must consider


       Court of Appeals of Indiana | Opinion 27A02-1605-MH-987 | November 23, 2016   Page 11 of 15
       whether “the conduct is an instance of everyday risk-taking behavior.”

       Commitment of J.B., 581 N.E.2d at 451. Dangerousness must be shown through

       behavior that would not occur but for the person’s mental illness. B.M. v. Ind.

       Univ. Health, 24 N.E.3d 969, 972 (Ind. Ct. App. 2015). A trial court need not

       wait until an individual commits a physical act before determining that the

       individual poses a substantial risk of harm to himself or others. Id. When

       determining future dangerousness, “the court must exercise extreme caution

       that it not utterly strip a person suffering from mental illness of the power to

       make an informed decision concerning risk-taking.” Commitment of J.B., 581

       N.E.2d at 451.


[28]   In J.B., J.B. suffered from alcohol abuse, and on three occasions, became so

       intoxicated that her mother had to retrieve her. Id. at 449. On two of those

       occasions, J.B. entered her mother’s car, but once the car was stopped at a busy

       intersection, J.B. jumped out and ran away through traffic; on the third

       occasion, J.B. did not enter her mother’s car but instead flagged down and got

       into a car with several young men. Id. The court found these three instances to

       be the only probative evidence of J.B.’s dangerousness, and that it was

       undisputed that each time, J.B. was at least partly motivated by her desire to

       escape her mother’s company. Id. at 452. Ultimately, the court held that

       “[w]hile J.B. may have made a choice that many members in our society would

       not think worth the risk, her conduct presents too slender a thread to support an

       involuntary commitment.” Id.




       Court of Appeals of Indiana | Opinion 27A02-1605-MH-987 | November 23, 2016   Page 12 of 15
[29]   M.E. argues that, like in J.B., the evidence is “too slender a thread” to prove by

       clear and convincing evidence a substantial risk that M.E. would harm himself

       or others. We agree. First, Dr. Khan testified that three years had passed since

       M.E. had required physical restraint. Second, Dr. Khan’s evidence about

       M.E.’s dangerousness was conclusory without providing facts about how M.E.

       may be dangerous. Specifically, Dr. Khan testified, “[w]hen he presents, he is

       very intimidating, he’s very loud, he’s very threatening. And that creates

       potentially [sic] problems.” Tr. p. 10. When Dr. Khan was asked whether he

       had heard M.E. threaten any person in any way, he replied, “I have on the unit

       very loudly. . . . So in the morning my nurse would have to go multiple times

       because there is loudly screaming and to figure out as to who is it? And they

       would invariably come back, well this is [M.E.] again.” Id. at 14. When asked

       whether M.E. had threatened to harm another person, Dr. Khan stated that

       M.E. would say, “these white bitches get away from me. You did this to me,

       you did that to me.” Id. at 15. Thus, the most specific evidence that Dr. Khan

       could provide about M.E.’s dangerousness merely amounted to unpleasant

       comments that M.E. made about white women. Such behavior does not

       constitute a substantial risk that M.E. will harm himself or others, nor does it

       support an involuntary commitment.


                             B. Evidence of Grave Disability
[30]   An individual is “gravely disabled” when, as a result of mental illness, the

       individual is in danger of coming to harm because he: 1) is unable to provide

       for his food, clothing, shelter, or other essential needs; or 2) has a substantial

       Court of Appeals of Indiana | Opinion 27A02-1605-MH-987 | November 23, 2016   Page 13 of 15
       impairment or an obvious deterioration of his judgment, reasoning, or behavior

       that results in his inability to function independently. I.C. § 12-7-2-96.


[31]   Regarding the first prong that must be proven to establish grave disability, M.E.

       argues that he is able to provide for his food, clothing, shelter, and other

       essential needs, and that there is no evidence that suggests otherwise. At the

       hearing, Dr. Khan testified that, upon M.E.’s arrival at the hospital, his staff

       “did not comment on [M.E.’s] poor condition.” Tr. p. 9. On cross-

       examination, Dr. Khan agreed that M.E. was “eating properly” in the unit, and

       he had no reason to believe M.E. was not eating appropriately prior to his

       admission. Id. at 14. When M.E. testified, he stated that he lives alone in an

       apartment for which he pays rent, that he eats regularly, and that he is able to

       clothe himself. Id. at 20.


[32]   Regarding the second prong, M.E. asserts that he was functioning

       independently and was not at risk of coming to harm because of any

       impairment or deterioration of judgment or behavior. Although the VA argues

       that grave disability results from a person’s failure to recognize his own “mental

       illness and to take care of yourself by coming in and getting the medication that

       you need,” id. at 24, our Supreme Court explicitly stated in T.K. that “denial of

       illness and refusal to medicate, standing alone, are insufficient to establish grave

       disability because they do not establish, by clear and convincing evidence, that

       such behavior ‘results in the individual’s inability to function independently.’”

       27 N.E.3d at 276 (quoting I.C. § 12-7-2-96). Further, we do not believe that

       aggression or paranoia, alone, establish an inability to function independently.

       Court of Appeals of Indiana | Opinion 27A02-1605-MH-987 | November 23, 2016   Page 14 of 15
[33]   We agree with M.E. that there is no clear and convincing evidence to establish

       a grave disability. The government did not offer any evidence that M.E. is

       unable to provide for his food, clothing, shelter, or other essential needs, nor did

       it offer evidence that M.E. suffered from a substantial impairment or obvious

       deterioration that affected his judgment or made him unable to function

       independently. In fact, the physician who completed the Physician’s Statement

       referenced by the Petition for Regular Commitment did not even check the box

       to indicate that M.E. was suffering from grave disability. Appellant’s App. Vol.

       2 p. 19-21. Moreover, the VA’s reliance on M.E.’s past behavior ignores the

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

       hearings, not to his history. M.E.’s aggression, paranoia, and confrontational

       attitude do not establish an inability to function independently under the law.


[34]   The judgment of the trial court is reversed and remanded with instructions to

       vacate the order of involuntary commitment.


       Riley, J., and Robb, J., concur.




       Court of Appeals of Indiana | Opinion 27A02-1605-MH-987 | November 23, 2016   Page 15 of 15
