In Re: the Matter of the Commitment of T.S., T.S. v. Logansport State Hospital (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Feb 10 2015, 10:42 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Carlos I. Carrillo Gregory F. Zoeller
Lafayette, Indiana Attorney General of Indiana
Kyle Hunter
Deputy Attorney General
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In Re: The Matter of the February 10, 2015
Commitment of T.S. Court of Appeals Cause No.
79A05-1406-MH-260
T.S.,
Appeal from the Tippecanoe Circuit
Appellant-Respondent, Court.
The Honorable Donald L. Daniel,
v. Judge.
Cause No. 79C01-0402-MH-8
Logansport State Hospital,
Appellee-Plaintiff

Riley, Judge.

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 STATEMENT OF THE CASE
[1] Appellant-Respondent, T.S., appeals the trial court’s Order of Regular

Commitment after a Review Hearing, ordering his continued involuntary

commitment at Logansport State Hospital.

[2] We affirm.

ISSUES

[3] T.S. raises two issues on appeal, which we restate as follows:

(1) Whether the trial court erred by finding that clear and convincing evidence

established that T.S. is mentally ill and presents a danger to others; and

(2) Whether his current commitment at the Logansport State Hospital is the

least restrictive environment appropriate for T.S.

FACTS AND PROCEDURAL HISTORY

[4] On January 4, 2004, T.S. was released from incarceration after serving his

sentence for two Counts of Class B felony child molesting. Approximately a

month later, on February 5, 2004, T.S. was involuntarily committed at

Logansport State Hospital (LSH) upon a finding that T.S. suffered from schizo-

affective disorder and was gravely disabled. His original psychiatric evaluation

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 indicated a history of self-mutilation, substance abuse and psychosis, depressive

and manic episodes. He was noted as being unable “to resist his sexual urges

outside of [a] hospital setting.” (Transcript p. 6). T.S. has remained

involuntarily committed at LSH since February of 2004.

[5] During the course of his treatment, T.S. was diagnosed with “post traumatic

stress disorder (PTSD), sexual disorder analyses, borderline [a] buoyant

personality traits and poly substance dependence.” (Tr. pp. 4-5). T.S. has

progressed in his treatment program to the point where his treating physician,

Dr. Danny Meadows (Dr. Meadows), now opines that T.S. “does not have a

diagnosis of psychotic illness” and has not “had a significant self-harm action in

recent memory.” (Tr. p. 7). T.S.’s most recent clinical plan indicated that his

PTSD is “controlled with treatment.” (Respondent’s Exh. 2).

[6] Throughout his treatment, it was noted that T.S. “had intermittent periods of

gender identity issues as well as insecurity regarding some of his sexual issues.”

(Tr. p. 5). LSH deemed that T.S. “had predominant sexual issues which he had

criminal activity for in the past which he was convicted of and [it] was felt from

a clinical point of view that these issues were going to be detrimental to him.”

(Tr. p. 7). As a result, T.S. was referred to the Sexual Responsibility Unit

(SRU) within LSH.

[7] The SRU is a program developed to treat male patients who have committed

criminal or deviant sexual acts and who may have previously been incarcerated.

See Commitment of T.S. v. Logansport State Hosp., 959 N.E.2d 855, 856 (Ind. Ct.

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 App. 2011). The SRU has various levels, starting with education, and to move

up to a higher level, the patient must demonstrate that he is changing his

pattern of behavior regarding his sexual issues. See id. There is no set time for

completion: while one patient may complete the different levels in six months,

another may take years to complete the program. See id. Despite years in the

program, T.S. has yet to complete the SRU’s program. On October 25, 2010,

T.S. sent a handwritten letter to the trial court, asking the court to support his

refusal to participate in the SRU. See id. After a hearing, the trial court denied

T.S.’s petition, concluding that it was in T.S.’s best interests to remain in the

program. Id. at 857. On appeal, we affirmed the trial court’s finding that T.S.

was still in need of the treatment offered by the program and that the risks

associated with the program were outweighed by the potential benefit that T.S.

might receive. Id. at 860.

[8] Over the past two years, T.S. has endeavored to participate fully in the SRU’s

counseling programs and is making progress under the guidance of Dr.

Meadows. T.S. was promoted to the highest privilege level and has been

allowed to attend supervised outings into the community to assess his ability to

handle situations around children and other high risk populations. During

those outings, T.S.’s treatment team noticed an increase in T.S.’s anxiety which

warranted an increase in his medications. The team also noted that T.S. “was

minimizing what they would call [T.S.’s] arousal.” (Tr. p. 35).

[9] On February 3, 2014, the trial court received a letter from T.S. requesting a

hearing for review of regular commitment. On April 23, 2014, the trial court

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 conducted a hearing on T.S.’s petition. Thereafter, on May 23, 2014, the trial

court issued its Order of Regular Commitment after a Review Hearing, finding

that T.S. “is suffering from Post-Traumatic Stress Disorder, Polysubstance

Dependence, Borderline Personality Traits and Avoidant Personality Traits,

which are mental illnesses as defined in Ind. Code § 12-7-2-130.” (Appellant’s

App. p. 13). After concluding that T.S. is dangerous to others, as defined in

I.C. § 12-7-2-53, the trial court ordered continued custody, care and treatment

at LSH for a period expected to exceed ninety days.

[10] T.S. now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Sufficiency of the Evidence

[11] T.S. contends that the State failed to present by clear and convincing evidence

that he is mentally ill and gravely disabled or dangerous to others. When

reviewing a challenge to the sufficiency of the evidence with respect to

commitment proceedings, we look to the evidence most favorable to the trial

court’s decision and draw all reasonable inferences from that decision.

Commitment of M.M. v. Clarian Health Partners, 826 N.E.2d 90, 96 (Ind. Ct. App.

2005). We neither reweigh the evidence nor judge the credibility of the

witnesses. Id. If the trial court’s commitment order represents a conclusion

that a reasonable person could have drawn, we will affirm the order even if

other reasonable conclusions are possible. Id.

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[12] Upon review, we consider three factors to determine whether the totality of the

circumstances support an involuntary commitment: “the gravity of the

behavior leading to hospital admission, behavior in the hospital, and the

relationship between problematic behaviors and the person’s mental illness.” In

re Commitment of T.K., 993 N.E.2d 245, 248 (Ind. Ct. App. 2013). In these

proceedings, the burden falls on the petitioner 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.”

I.C. § 12-26-2-5(e).

[13] In its Order of Regular Commitment after a Review Hearing, the trial court

concluded that T.S. suffered from a mental illness which made him dangerous

to others. Although in addition to the dangerousness requirement, T.S. also

disputes the alternative prong of I.C. § 12-26-2-5(e)—the gravely disabled

element—the trial court did not establish that finding and, as such, we will not

address T.S.’s argument in that regard.

A. Mental Illness

[14] In this context, mental illness is defined as “a psychiatric disorder that (A)

substantially disturbs an individual’s thinking, feeling, or behavior; and (B)

impairs the individual’s ability to function.” I.C. § 12-7-2-130(1). Focusing on

the absence of any self-mutilation episodes and the lack of any diagnosed

psychotic illnesses, T.S. contends that he no longer suffers from any mental

illness. Although he acknowledges to have suffered from PTSD and sexual

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 disorders, he considers his PTSD problem “resolved” and his inappropriate

sexual activity under control. (Appellant’s Br. p. 9).

[15] Originally, at his initial psychiatric evaluation during the intake at LSH in

February of 2004, T.S. was described as “having a history of psychosis,

depressive [a] manic episode.” (Tr. p. 6). T.S. had self-mutilation issues and a

substance abuse problem, in addition to “not [being] able to resist his sexual

urges outside of [the] hospital setting.” (Tr. p. 6). While we agree with T.S.

that currently, he no longer has “a diagnosis of psychotic illness” and there

have been no “significant self[-]harm action in recent memory,” T.S. is still

medically and statutorily considered mentally ill. (Tr. p. 7).

[16] During the hearing, Dr. Meadows testified that while T.S.’s difficulties with

PTSD, stemming from past sexual abuse, remain, at the present time, it is

managed and controlled with treatment. However, T.S.’s treatment plan report

clearly indicates that T.S. is susceptible to “distress at exposure to cues related

to traumatic events.” (Respondent’s Exh. 2).

[17] The record further supports that over the past two years, T.S. has been

participating fully in the SRU program to address his sexual disorder and,

unquestionably, is making progress under the guidance of Dr. Meadows. T.S.

was recently promoted to the highest privilege level and has been allowed to

attend supervised outings into the community to assess his ability to handle

situations around children and other high risk populations. During those

outings, T.S.’s treatment team noticed an increase in T.S.’s anxiety which

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 resulted in an increase in his medications. The team also noted that T.S. “was

minimizing what they would call [T.S.’s] arousal.” (Tr. p. 35). Unlike for his

PTSD, T.S.’s treatment plan indicates that his deviant sexual behavior

diagnosis remains in “active status.” (Respondent’s Exh. 1). So far, even

though T.S. has made progress in the treatment of his mental illness and its

underlying roots, no clinician has affirmed that T.S. is ready to be discharged.

Thus, while T.S.’s diagnoses might be managed and under control, he is by no

means ‘cured.’ Based on the evidence, the trial court reached a conclusion that

a reasonable person could have drawn, and therefore we will affirm its finding

that T.S. is mentally ill.

B. Dangerous

[18] Turning to the dangerousness prong, T.S. claims that the State failed to

establish that he presents a substantial risk to harm others. Within the province

of commitment proceedings, “dangerous” means “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.” I.C. § 12-7-2-53.

“Dangerousness must be shown by clear and convincing evidence indicating

that the behavior used as an index of a person’s dangerousness would not occur

but for that person’s mental illness.” In re Commitment of C.A., 776 N.E.2d

1216, 1218 (Ind. Ct. App. 2002). In other words, abnormal risk-taking will not

support a finding a person is dangerous as defined by statute, unless that risk-

taking is caused by mental illness. Commitment of J.B. v. Midtown Mental Health

Ctr., 581 N.E.2d 448, 452 (Ind. Ct. App. 1991), trans. denied. However, a trial

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 court is not required to wait until harm has nearly or actually occurred before

determining that an individual poses a substantial risk of harm to others. Matter

of Commitment of Gerke, 696 N.E.2d 416, 421 (Ind. Ct. App. 1998) (holding that

a commitment premised upon a trial court’s prediction of dangerous future

behavior, without prior evidence of the predicted conduct, was valid, and

observing “[t]he old adage of ‘the dog gets one bite’ does not, and should not,

apply in the context of commitment proceedings, despite the severe restrictions

on liberty imposed by commitment to a mental facility”).

[19] Characterizing Dr. Meadows’ testimony that there is a threat he might commit

a sexual act in the future as purely speculative, T.S. likens his situation to In re

Commitment of Steinberg, 821 N.E.2d 385 (Ind. Ct. App. 2004), in which we

reversed a finding of dangerousness. In Steinberg, Steinberg was admitted to the

emergency room after believing that he heard his roommates speak though his

computer speakers. Id. at 386. Steinberg also had periods of incontrollable

anger and had, in a single incident, pointed an unloaded gun at people who had

threatened him and his roommate. Id. at 387. Upon evaluation, Steinberg was

determined to be schizophrenic and found to be dangerous to others. Id. at 388.

Affirming the trial court’s conclusion of mental illness, we nevertheless reversed

its finding of dangerousness because Steinberg’s mother’s testimony pointing to

“any potential for danger . . . was purely speculative[.]” Id. While the incident

of the unloaded gun “may have been risky behavior,” we considered it “too

slender a thread to support an involuntary commitment.” Id. at 389.

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[20] As part of his mental illness diagnosis, Dr. Meadows testified that T.S. has a

sexual disorder, with intermittent periods of gender identity issues as well as

insecurity regarding some of his sexual issues. Because T.S. has difficulty

resisting his sexual urges outside of the hospital setting, he was convicted of two

Counts of Class B felony child molestation. Since T.S.’s admittance into the

SRU, T.S. has made advancements into managing his disorder to the point

where T.S. was promoted to participate in outings into the community after

having been separated from children and other high risk populations for more

than ten years. Because T.S.’s behavior during these community outings raised

serious concerns with T.S.’s treatment team, Dr. Meadows opined that, until

T.S. had fully completed the SRU program, T.S. remains a danger to others

when he is in the community.

[21] While the speculative facts in Steinberg dictated a reversal of the trial court’s

finding of dangerousness, the facts here do not warrant the same result. T.S.

has an established history of harming others. Based on the evidence, it is clear

that, despite appropriate treatment and progress, T.S.’s sexual disorder is still

affecting his behavior, emotions and thoughts, and impedes his ability to

function in an appropriate fashion while in the community. Considering the

totality of the circumstances, we affirm the trial court’s conclusion that T.S.

presents a substantial danger to others. See I.C. § 12-7-2-53.

II. Least Restrictive Environment

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[22] Repeating the argument developed in his previous appeal, T.S. again disputes

the appropriateness of continued placement in the SRU and contends that the

State failed to establish by clear and convincing evidence that the probable

benefits of the SRU outweigh any risk of harm to T.S.

[23] In the Commitment of T.S., T.S. contested his forcible participation in the SRU.

Comparing the legal precedents of forcible medication with the issue of forcible

participation in a therapeutic program, we noted that “counseling and therapy

are most often focused on behavior, and it is behavior that society is concerned

with in individuals like T.S., with a history of criminal, sexual misconduct.

Commitment of T.S., 959 N.E.2d at 859. We applied the relevant portions of the

existing legal framework with respect to mandatory medication to the situation

before us, and concluded that in order to forcibly enroll T.S. in counseling, the

State was required to prove by clear and convincing evidence that: “(1) a

current and individual assessment of T.S. had been made; (2) that this

assessment resulted in the honest belief of the medical professions that T.S.’s

continuation in the [SRU] would be of substantial benefit to treating T.S.’s

condition and controlling his behavior; and (3) that the probable benefits of the

[SRU] outweighed any risks of harm to T.S. and his personal concerns.” Id. at

859-60.

[24] Admittedly, much has changed since T.S.’s last appeal. T.S. has started to

participate in the SRU program and has made great strides in the management

of his sexual disorder. However, not a single clinician treating T.S. endorses his

request for discharge from the program. Dr. Meadows testified that his

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 recommended treatment plan is for T.S. to complete the SRU program and then

to be transitioned into the community so as to minimize the risk for relapse.

Opining that the SRU is currently the least restrictive environment suitable for

T.S.’s care and needs, Dr. Meadows clarified that when T.S.’s transition into

the community occurs, the SRU will also ensure that T.S. will continue to have

access to therapeutic services and treatments to deal with the ensuing difficulties

of his new environment. While we empathize with T.S.’s lengthy residency in

the SRU, we are impressed by his progress and it is clear from Dr. Meadows’

testimony that the SRU program offers significant benefits to T.S. in

progressing him to his eventual reintegration into society. Nevertheless, until

the impact of community outings on T.S. can be more thoroughly assessed and

“until he has fully completed [the SRU],” his current commitment outweighs

any risks of harm to T.S. (Tr. p. 11). Therefore, we refuse to disturb T.S.’s

current placement, and affirm the trial court’s order of continued commitment

to the SRU at LSH.

CONCLUSION

[25] Based on the foregoing, we conclude that clear and convincing evidence

established that T.S. is mentally ill and presents a danger to others, thereby

justifying a continued involuntary mental health commitment; and his current

placement in LSH’s SRU is appropriate.

[26] Affirmed.

Vaidik, C. J. and Baker, J. concur

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