Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                                  Apr 30 2013, 9:09 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                                      ATTORNEY FOR APPELLEE:

PATRICIA CARESS MCMATH                                       CHAD C. DURAN
Marion County Public Defender Agency                         Office of Regional Counsel
Indianapolis, Indiana                                        U.S. Department of Veteran Affairs
                                                             Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

IN THE MATTER OF THE CIVIL                           )
COMMITMENT OF: D.P.                                  )
                                                     )
       Appellant-Respondent,                         )
                                                     )
               vs.                                   )      No. 49A02-1210-MH-807
                                                     )
RICHARD L. ROUDEBUSH VETERANS                        )
AFFAIRS MEDICAL CENTER,                              )
                                                     )
       Appellee-Petitioner.                          )


                      APPEAL FROM THE MARION SUPERIOR COURT
                      The Honorable William R. Fatout, Judge Pro-Tempore
                              Cause No. 49D08-1204-MH-17064


                                           April 30, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                          Case Summary

       D.P. was ordered into temporary commitment for mental health reasons, pursuant to

Indiana Code section 12-26-6-1 et seq. He now appeals the trial court’s order.

       We affirm.

                                                Issue

       D.P. presents a single issue for our review, which we restate as whether the trial court

abused its discretion when it denied D.P.’s request for a continuance so that he could both

seek private counsel in place of a court-appointed public defender and attempt to obtain

evidence to oppose the petition for involuntary temporary commitment.

                                 Facts and Procedural History

       On September 6, 2012, D.P., who has a history of psychiatric illness and related

hospitalizations1, was living at Wheeler Mission in Indianapolis. On that day, a petition was

filed seeking temporary involuntary commitment of D.P. to the care of the Veteran’s

Administration Hospital in Indianapolis (“Hospital”) for a period of ninety days (“the

Petition”). The Petition alleged that D.P. presented a significant risk to himself based upon

multiple instances of attempted suicide and suicidal ideations, gestures, and threats, and that

D.P. was unable to provide self-care due to his psychiatric condition.

       A hearing on the Petition was scheduled for September 14, 2012. At the beginning of

the hearing, D.P. requested a continuance in order to seek private counsel and obtain

evidence to oppose involuntary commitment for the ninety-day period requested in the

1
 D.P. had been subject to an emergency, seventy-two hour commitment on April 26, 2012, for suicidal
behavior, substance dependency, and a large benzodiazepine overdose.

                                                  2
Petition. The court observed that the appointed public defender routinely handled cases like

D.P.’s, concluded that delay of the hearing would not be in D.P.’s best interests, and

proceeded with the commitment hearing. At the conclusion of the hearing, the trial court

concluded that the Hospital had met its burden of proof, and ordered D.P. committed to the

Hospital’s care for ninety days.

         This appeal ensued.

                                    Discussion and Decision

         D.P. appeals the trial court’s order that he be involuntarily committed to the Hospital’s

care for ninety days. D.P. contends that he was deprived of his right to due process during

the commitment proceedings because the trial court denied his motion for a continuance,

which he pursued in order to seek privately-retained counsel and to obtain evidence in his

favor.

         Where, as here, a litigant seeks to continue a hearing, we review a trial court’s denial

of that motion for an abuse of discretion. Lewis v. State, 730 N.E.2d 686, 690 (Ind. 2000).

Where a litigant appeals from a trial court’s denial of the right to counsel of choice, we

review such decisions to determine whether the trial court acted unreasonably and arbitrarily.

Id.

         Civil commitment for medical treatment “constitutes a significant deprivation of

liberty that requires due process protection.” Addington v. Texas, 441 U.S. 418, 426 (1979);

A.L. v. Wishard Health Servs., Midtown Cmty. Health Ctr., 934 N.E.2d 755, 758 (Ind. Ct.

App. 2010), trans. denied. “Generally stated, due process requires notice, an opportunity to


                                                 3
be heard, and an opportunity to confront witnesses.” Ind. State Bd. of Educ. v. Brownsburg

Cmty. Sch. Corp., 842 N.E.2d 885, 889 (Ind. Ct. App. 2006), trans. denied.

       Our statutes set forth numerous due process protections for individuals alleged to be

mentally ill and requiring involuntary commitment. The petitioner—whether an individual or

an institution—must provide by clear and convincing evidence that the individual sought to

be committed “is mentally ill and either dangerous or gravely disabled,” Ind. Code § 12-26-2-

5(e)(1), and that “detention or commitment of that individual is appropriate.” I.C. § 12-26-2-

5(e)(2). Such an individual may be committed to a facility for up to ninety days. I.C. § 12-

26-6-1.

       Proceedings for temporary commitments may be begun by petition, court order, or

certain other means. I.C. § 12-26-6-2. An individual subject to temporary commitment

proceedings is entitled to notice of hearing stating the time, place, and date of the hearing.

I.C. § 12-26-6-3. Such individuals are entitled to representation of counsel. I.C. § 12-26-2-

2(b)(4). They are also entitled to “an opportunity to appear at hearings and to testify,” I.C. §

12-26-2-3(b), and to “present and cross-examine witnesses at hearings.” I.C. § 12-26-2-3(c).

Even when subject to temporary civil commitment, however, that adjudication “does not

limit or restrict the right of a person to apply to an appropriate court for a writ of habeas

corpus.” I.C. § 12-26-2-1.

       D.P. contends that the trial court violated his due process rights, as enumerated by our

statutes and the United States Constitution, when it denied his request for a continuance

because he wished to obtain different counsel and seek evidence. D.P. further notes that the


                                               4
trial court was incorrect when it stated that it needed to resolve the Petition within the

seventy-two hour period required for emergency civil commitments, and thus incorrectly

declined to grant D.P.’s motion to continue the hearing. D.P. also analogizes his situation to

that of a criminal defendant seeking a continuance to obtain counsel. The Hospital responds

that if there was any error, it was not prejudicial because there was sufficient evidence from

which the court could properly conclude that temporary commitment was appropriate in

D.P.’s case and D.P. has not established how he was prejudiced by the court’s denial of his

motion to continue.

       Pointing to cases interpreting the Sixth Amendment right to counsel in criminal cases,

D.P. observes in his brief that the right to counsel has as its corollary “the right to choose

counsel when a defendant is financially able to do so.” Lewis, 730 N.E.2d at 689 (citing,

inter alia, Powell v. Alabama, 287 U.S. 45 (1932)). This right is not absolute, however, and

must be exercised “‘at the appropriate stage in the proceeding.’” Id. (quoting Parr v. State,

504 N.E.2d 1014, 1016 (Ind. 1987)). Thus, in criminal cases, our supreme court has

concluded on numerous occasions that there was no abuse of discretion in denying last-

minute motions to continue trials where the basis for the request is a criminal defendant’s

wish to replace appointed counsel with privately-retained counsel. Id. at 689-90 (citing, inter

alia, Perry v. State, 638 N.E.2d 1236 (Ind. 1994); Beadin v. State, 533 N.E.2d 144 (Ind.

1989); Dickson v. State, 520 N.E.2d 101 (Ind. 1988)).

       Assuming, without deciding, that the right to counsel of choice in civil commitment

proceedings is identical with that in criminal proceedings, we nevertheless find no abuse of


                                              5
discretion in the trial court’s denial of D.P.’s motion for a continuance in order to retain

private counsel. Here, on the day of the temporary commitment hearing, D.P. requested a

continuance to obtain private counsel. When asked why he wished to obtain new counsel,

D.P. told the trial court that he didn’t believe that his court-appointed counsel was “on my

side.” (Tr. at 3.) When the trial court asked D.P. whether he could afford private counsel,

D.P. replied, “It’d be very tight. I can try.” (Tr. at 3.) Thus, unlike cases such as Lewis,

where court-appointed counsel was ready to proceed to trial and the defendant had retained

counsel who was present on the day of trial and unwilling to provide representation without a

continuance, D.P. had not established that he was able to retain counsel; rather, he speculated

that a different attorney would provide better representation. See Lewis, 730 N.E.2d at 688.

       D.P. argues that his situation does not fall within the scope of concerns that give rise

to limits on the right to counsel of choice, noting that “[t]his is not a situation where D.P. had

months or even weeks to secure counsel of his choice before the hearing” because he was not

afforded “a meaningful opportunity to hire counsel” before that date. (Appellant’s Br. at 5-

6.)   Yet D.P. had already been involuntarily committed, and while he faced further

deprivation of his liberty, that deprivation was limited in scope to ninety days. That period is

far less than the extended periods of incarceration faced by the criminal defendants in the

cases upon which D.P. relies, and even in those cases, our supreme court found no abuse of

discretion in the trial courts’ denials of the various motions to continue. Lewis, 730 N.E.2d

at 689-90. D.P. faced neither imprisonment for a criminal offense nor the protracted

interference with his liberty interests posed by a criminal conviction, and thus we cannot


                                                6
conclude that D.P. enjoyed greater right to counsel than the criminal defendants in Lewis and

other cases.

       Further, D.P. retained a remedy beyond an appeal of the temporary commitment order:

D.P. could still retain counsel and pursue a writ of habeas corpus. See I.C. § 12-26-2-1.

And while D.P. argues that “there is no authority for restricting a person’s rights simply

because the court unilaterally believes it is in the person’s best interest,” (Appellant’s Br. at

7) he articulates no basis upon which he was prejudiced by any abuse of discretion. For

example, no evidence was presented to establish any basis upon which this Court could

conclude that he did not receive effective representation, or to indicate what evidence he

would have introduced on his own behalf that court-appointed counsel did not provide. We

therefore affirm the trial court’s decision denying D.P.’s motion to continue the commitment

hearing.

       Affirmed.

NAJAM, J., and BARNES, J., concur.




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