MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                        FILED
this Memorandum Decision shall not be
                                                                         May 16 2018, 9:07 am
regarded as precedent or cited before any
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
Cara Schaefer Wieneke                                   Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                 Attorney General of Indiana
Brooklyn, Indiana
                                                        Patricia C. McMath
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In re the Commitment of                                 May 16, 2018

D.E.,                                                   Court of Appeals Case No.
                                                        18A-MH-128
Appellant-Respondent,
                                                        Appeal from the Henry Circuit
        v.                                              Court
                                                        The Honorable Kit C. Dean Crane,
State of Indiana,                                       Judge
                                                        Trial Court Cause No.
Appellee-Petitioner.
                                                        33C02-0605-MH-6



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-MH-128 | May 16, 2018                       Page 1 of 7
                                          Case Summary
[1]   D.E. appeals an order continuing his involuntary commitment to Richmond

      State Hospital. He presents the sole issue of whether there is clear and

      convincing evidence that he is gravely disabled, pursuant to Indiana Code

      Section 12-7-2-96. We reverse.



                            Facts and Procedural History
[2]   D.E. has been diagnosed with chronic paranoid schizophrenia. In 2006, he was

      involuntarily committed to Logansport State Hospital. D.E.’s placement has

      changed over the years, and he has most recently resided in a transitional living

      program administered by Richmond State Hospital. He has obtained

      employment within the facility and saved several thousand dollars from his

      wages.


[3]   On December 1, 2017, a review hearing was conducted, at which D.E. and Dr.

      Christhart Schilbach testified. Dr. Schilbach opined that D.E. was gravely

      disabled and that he could be dangerous if he discontinued medication, as Dr.

      Schilbach feared would happen without court-ordered supervision. D.E.

      testified that he disagreed with the mental health diagnosis, but was willing to

      continue taking medication.


[4]   The trial court found that D.E. was suffering from a mental illness, specifically,

      chronic paranoid schizophrenia, and that he was gravely disabled as defined in

      Indiana Code Section 12-7-2-96. Based upon these findings, the trial court

      Court of Appeals of Indiana | Memorandum Decision 18A-MH-128 | May 16, 2018   Page 2 of 7
      concluded: “[D.E.] is in need of custody, care and treatment at Richmond

      State Hospital or an appropriate facility for a period expected to exceed ninety

      (90) days.” (Appealed Order at 1, App. at 161.) D.E. appeals.



                                  Discussion and Decision
[5]   To obtain a regular1 involuntary commitment of an individual, the petitioner

      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. Ind. Code § 12-26-2-5(e); In re the

      Civil Commitment of T.K. v. Dep’t of Veterans Affairs, 27 N.E.3d 271, 273 (Ind.

      2015). The facts justifying an involuntary commitment must be shown by clear

      and convincing evidence to satisfy the requirements of due process. Id. This

      heightened standard of proof is required because the liberty interest at stake

      goes beyond a loss of one’s physical freedom and may involve serious stigma

      and adverse social consequences. Id. (citing Addington v. Texas, 441 U.S. 418,

      425-26 (1979)). The application of the heightened standard functions to reduce

      the chance of inappropriate commitments. Id.


[6]   In reviewing the sufficiency of the evidence supporting a civil commitment

      decision, we consider only the probative evidence and reasonable inferences to




      1
        The petitioner sought to continue D.E.’s regular commitment, which is for an indefinite period of time that
      might exceed 90 days. Our statutes also provide for immediate detention by law enforcement lasting up to 24
      hours, Ind. Code § 12-26-4 et seq., an emergency commitment lasting up to 72 hours, Ind. Code § 12-26-5 et
      seq., and a temporary commitment for up to 90 days, Ind. Code § 12-26-6 et seq.

      Court of Appeals of Indiana | Memorandum Decision 18A-MH-128 | May 16, 2018                       Page 3 of 7
      be drawn therefrom which support the decision and we will neither weigh the

      evidence nor assess witness credibility. Id. We will affirm if, considering the

      probative evidence and reasonable inferences favorable to the judgment, the

      trial judge could have found by clear and convincing evidence that the statutory

      elements were proven. Id. at 273-74.


[7]   D.E. does not challenge the trial court’s finding of mental illness and the trial

      court did not find D.E. to be dangerous. Accordingly, D.E. argues only that

      the evidence failed to establish, clearly and convincingly, that he is gravely

      disabled.


[8]   Indiana Code Section 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.


[9]   Dr. Schilbach testified that D.E. has been diagnosed with chronic paranoid

      schizophrenia. He explained that “the hallmark of paranoid schizophrenia is

      delusions and/or auditory hallucinations,” but D.E. “has no auditory

      hallucinations whatsoever.” (Tr. Vol. II, pg. 51.) Rather, in Dr. Schilbach’s

      opinion, D.E. has “fixed delusions about what brought him to the mental


      Court of Appeals of Indiana | Memorandum Decision 18A-MH-128 | May 16, 2018   Page 4 of 7
       health system,” denying both that he has mental health issues and a need to

       take medication “to help fix” psychiatric issues. (Tr. Vol. II, pg. 51.) Dr.

       Schilbach also opined that D.E. expressed a delusional fear of coming to harm

       from other persons if he were placed in a facility in Indianapolis.


[10]   Dr. Schilbach found D.E. to be very responsible and able to take care of his

       personal needs. He denied ever seeing D.E. act in a physically aggressive

       manner. When asked if D.E. was “gravely disabled as a result of this mental

       illness,” and “whether or not his judgment is impaired to the extent that it

       affects his ability to function independently,” (Tr. Vol. II, pg. 57), Dr. Schilbach

       replied indirectly:


               Apart from the statements he has made regarding non-
               compliance, he has done a very good job holding down a job,
               and I expect him to continue doing that if he stays on his
               medication, with community support, and with mental health
               support. I expect him to continue doing that.


       (Tr. Vol. II, pgs. 57-58.)


[11]   Dr. Schilbach later summarized his concerns:


               There’s always some temptation with drugs, with cigarettes.
               He’s stayed away from all this, so he’s [] an exemplary young
               man who takes it seriously. The big problem is not accepting of
               his mental health diagnosis and potentially not accepting the
               medication, and then – then the consequences on [sic] that.


       (Tr. Vol. II, pg. 69.)



       Court of Appeals of Indiana | Memorandum Decision 18A-MH-128 | May 16, 2018   Page 5 of 7
[12]   As Dr. Schilbach concluded his direct testimony, the trial court asked him,

       “does Mr. E. have a substantial impairment of his judgment, reasoning, or

       behavior, that results in his inability to function independently” and Dr.

       Schilbach responded “judgment, yes.” (Tr. Vol. II, pg. 71.) At the conclusion

       of the hearing, the trial court addressed D.E. The trial court summarized

       portions of Dr. Schilbach’s testimony – the diagnosis and the response to the

       trial court’s statutory inquiry – and advised D.E., “the standard’s been met by

       clear and convincing evidence.” (Tr. Vol. II, pg. 104.)


[13]   We look to the evidence presented at the December 1, 2017 commitment

       hearing which supports the judgment. In re T.K., 27 N.E.3d at 237. Relative to

       grave disability, Dr. Schilbach opined that D.E.’s judgment was substantially

       impaired such that he was unable to function independently and explained that

       D.E.’s judgment fell short in two areas: acceptance of the mental health

       diagnosis and acknowledgment of the need for medication. The trial court

       credited Dr. Schilbach’s assessment. However, refusal to admit to having a

       mental 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.”’ In re T.K., 27 N.E.3d at 276 (quoting Ind. Code § 12-7-2-

       96(2)).


[14]   The State points out, and we acknowledge, that the appellant in In re T.K. was

       functioning independently in society – he was employed and renting a house.

       D.E. was not likewise living independently. Nonetheless, D.E. was not

       Court of Appeals of Indiana | Memorandum Decision 18A-MH-128 | May 16, 2018   Page 6 of 7
       required to establish that he was functioning independently; the petitioner for

       commitment was required to establish by clear and convincing evidence that

       D.E., as a result of his mental illness, had the inability to function

       independently. I.C. § 12-7-2-96. Evidence that a person has denied having a

       mental illness and refuses medication is, standing alone, insufficient to establish

       this inability to function independently. In re T.K., 27 N.E.3d at 276.

       Testimony that D.E. has impaired judgment because of his rejection of a mental

       health diagnosis and his potential rejection of psychotropic medications did not

       meet the statutory burden of proof.



                                              Conclusion
[15]   The evidence supporting the judgment was not sufficient to permit the trial

       court to find, by clear and convincing evidence, that the statutory elements were

       proven.


[16]   Reversed.


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




       Court of Appeals of Indiana | Memorandum Decision 18A-MH-128 | May 16, 2018   Page 7 of 7
