In the Matter of the Civil Commitment of T.K. v. Dep't of Veterans Affairs

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Joel M. Schumm Chadwick C. Duran
Indianapolis, Indiana U.S. Dep't of Veterans Affairs
Indianapolis, Indiana
Ruth A. Johnson
Marion County Public Defender Agency
Indianapolis, Indiana

_____________________________________________________________________________
Mar 19 2015, 3:57 pm
In the
Indiana Supreme Court
_________________________________

No. 49S02-1503-MH-138

IN THE MATTER OF THE CIVIL COMMITMENT OF T.K., Appellant (Respondent),

v.

DEP'T OF VETERANS AFFAIRS, Appellee (Petitioner).
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Appeal from the Marion Superior Court, No. 49D08-9906-MH-582
The Honorable Gerald Zore, Judge
_________________________________

On Transfer from the Indiana Court of Appeals, No. 49A02-1310-MH-878
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March 19, 2015

Dickson, Justice.

T.K. challenges the sufficiency of the evidence supporting his involuntary civil
commitment. He was committed following a hearing on October 18, 2013. To obtain an
involuntary regular 1 commitment of an individual, a "petitioner is required to prove by clear and

1
In Indiana, an adult person may be civilly committed either voluntarily or involuntarily.
Involuntary civil commitment may occur under four circumstances if certain statutorily regulated
conditions are satisfied: (1) "Immediate Detention" by law enforcement for up to 24 hours, see Ind. Code
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) (2012). The trial court's order of commitment declared that, by clear and
convincing evidence, T.K. was mentally ill and both dangerous and gravely disabled. The Court
of Appeals affirmed in a memorandum decision. In the Matter of the Civil Commitment of T.K.,
No. 49A02-1310-MH-878, 3 N.E.3d 1090 (Ind. Ct. App. Jan. 30, 2014) (table), clarified on
reh'g, 10 N.E.3d 100 (Ind. Ct. App. Apr. 3, 2014) (table). We now grant transfer and reverse.

On appeal, T.K. does not challenge the finding of his mental illness, but he contends that
neither of the necessary alternative elements, "dangerous" or "gravely disabled," were proven by
clear and convincing evidence. The Petitioner disagrees and argues to the contrary.

"[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." In re Commitment of Roberts, 723
N.E.2d 474, 476 (Ind. Ct. App. 2000), trans. not sought. 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.
See Addington v. Texas, 441 U.S. 418, 425–26 (1979). To satisfy the requirements of due
process, the facts justifying an involuntary commitment must be shown "by clear and convincing
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 commitments." Commitment of J.B. v. Midtown Mental Health Ctr.,
581 N.E.2d 448, 450 (Ind. Ct. App. 1991) (citations omitted), trans. denied.

In reviewing the sufficiency of the evidence supporting a determination made under the
statutory requirement of clear and convincing evidence, an appellate court will affirm if,
"considering only the probative evidence and the reasonable inferences supporting it, without

§ 12-26-4 et seq.; (2) "Emergency Detention" for up to 72 hours, see Ind. Code § 12-26-5 et seq.;
(3) "Temporary Commitment" for up to 90 days, see Ind. Code § 12-26-6 et seq.; and (4) "Regular
Commitment" for an indefinite period of time that may exceed 90 days, see Ind. Code § 12-26-7 et seq.
In this case, the petitioner sought T.K.'s regular commitment.
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weighing evidence or assessing witness credibility, a reasonable trier of fact could find [the
necessary elements] proven by clear and convincing evidence." Bud Wolf Chevrolet, Inc. v.
Robertson, 519 N.E.2d 135, 137 (Ind. 1988). This appellate standard of review applies in civil
commitment decisions. See GPH v. Giles, 578 N.E.2d 729, 732–33 (Ind. Ct. App. 1991) ("In
reviewing a claim of insufficient evidence in a commitment case, we keep in mind that
commitment may be ordered only if the elements upon which the commitment is ordered are
proven by clear and convincing evidence, and we consider only that evidence most favorable to
the judgment, along with all favorable inferences therefrom."), trans. denied; Jones v. State, 477
N.E.2d 353, 360 (Ind. Ct. App. 1985) ("In reviewing a claim of insufficient evidence, we
consider only that evidence most favorable to the judgment along with all favorable inferences
therefrom, yet keep in mind that commitment may be ordered only upon a finding of clear and
convincing evidence."), trans. denied; see also Cheek v. State, 567 N.E.2d 1192, 1196 (Ind. Ct.
App. 1991) (citing Jones), trans. not sought.

Several recent decisions of the Court of Appeals, however, while perhaps reciting the
phrase "clear and convincing," have not applied this standard of proof in their analysis but rather
have affirmed civil commitment orders merely if such an order "represents a conclusion that a
reasonable person could have drawn, even if other reasonable conclusions are possible." M.L. v.
Meridian Servs., Inc., 956 N.E.2d 752, 755 (Ind. Ct. App. 2011), trans. not sought; see also, S.T.
v. Cmty. Hosp. N., 930 N.E.2d 684, 688 (Ind. Ct. App. 2010), trans. not sought; K.F. v. St.
Vincent Hosp. & Health Care Ctr., 909 N.E.2d 1063, 1066 (Ind. Ct. App. 2009), trans. not
sought; J.S. v. Ctr. for Behavioral Health, 846 N.E.2d 1106, 1111 (Ind. Ct. App. 2006), trans.
denied. We disapprove of this line of cases.

The issue presented in this case is whether, considering the probative evidence and
reasonable inferences favorable to judgment, the trial judge could have found by clear and
convincing evidence that T.K. was either dangerous or gravely disabled. "Dangerous" is "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." Ind. Code § 12-7-2-53 (2012). "Gravely
disabled" is defined as:

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 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.

Ind. Code § 12-7-2-96 (2012).

Before the trial court, the Department of Veterans Affairs, as petitioner, presented only
one item of evidence, the testimony of Dr. Joseph Bishara, a resident in psychiatry at the hospital
where T.K. was admitted on an emergency detention. Dr. Bishara testified that T.K. came to him
with "Chronic Paranoid Schizophrenia" and "Paranoid Personality Disorder." Tr. at 6. T.K. does
not challenge either of these diagnoses on appeal. Regarding whether T.K. was either dangerous
or gravely disabled, Dr. Bishara testified that T.K. is "paranoid over a wide range of . . .
institutions as persecuting him, and targeting him," id. at 12, and that the main reason he was
brought in on an emergency detention was that "he put flyers on people's windshields of
somebody's criminal record which he wished to . . . hurt . . . or aggravate this person . . . to
shame this person . . . [a]nd, then went into the Adult and Child Clinic, and started to scream at
the staff in a manner that made them concerned." Id. at 5–6. Dr. Bishara also testified that T.K.
was skeptical of the pharmaceutical industry as well as psychiatrists and hospitals, which T.K.
feels are co-conspirators in "diagnosing . . . extra people with mental disorders for the purposes
of getting money, lining their pockets." Id. at 5, 12. Dr. Bishara continued by saying that he had
"observed aggressive, disruptive behavior towards [his] attending physician," that other "patients
have complained about the—about being fearful of him, and of his aggression," and that workers
at "the Adult and Child in Greenwood . . . felt threatened enough that they want to know if [T.K.
is to be] released, because they're fearful of [T.K.'s] physical violent behavior . . . ." Id. at 12–13.
Later, Dr. Bishara testified that T.K. is "estranged from all family support" but that T.K.'s son
contacted Dr. Bishara to say that "he was concerned about his—his father's behavior, and his
father's behavior has been erratic, and aggressive . . . . [T.K.'s son's] specific concern is . . . . that
[his father] has some ammunitions expertise" from his time serving in the marines and "that
[T.K.] mentioned use of violence in emails, and on Facebook." Id. at 16–17.

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 After this testimony relating what had been reported by others and commenting on T.K.'s
medical record, which Dr. Bishara had reviewed, Dr. Bishara concluded:
I personally did not believe that he would be a danger to self or others, but I have to—I'm
not an expert. I don't know how to spell claymore explosives, let alone what one looks
like, or anything like that. [So when T.K.'s son—someone with knowledge of explosives
and knowledge of T.K.] has concerns about that, I have to believe that—it makes me
raise an eyebrow. . . . [T.K.] doesn't understand that former marines . . . cannot yell things
indiscriminately without being taken—held to a higher standard.

Id. at 20. Dr. Bishara continued by saying that medication and psychotherapy would be the
recommended course of action for T.K. The Department had no further questions. Before cross-
examination of Dr. Bishara, however, the trial court asked for clarification: "Doctor, I'm sorry
I'm not really clear. Do you consider [T.K. a] danger to himself, and others, or just to others?"
Id. at 23. To which Dr. Bishara responded, "to others . . . his biological son, the marine forced
my hand that way." Dr. Bishara also said T.K. is gravely disabled because he has continuously
refused treatment, has denied that he has any problem, and has been an aggressor in several areas
of his life. The trial court continued by asking for more information about the flyers that T.K.
had distributed, to which Dr. Bishara testified, "[M]y understanding is that [T.K.] distributed the
flyer of the molester of his daughter . . . . it was the public or one time public record of the sexual
offender. . . . And, this person is the husband of [T.K.'s] ex-wife." Id. at 23–24.

Other than Dr. Bishara, only T.K. testified at the commitment hearing. He testified that
he was employed, had been working in his current job for five months, had started as a day
laborer but earned permanent employee status, had been renting a home for going on 6 months,
owned two vehicles and had a third vehicle on which he makes payments, received disability
payments for injuries sustained while in military service, and had not taken medication for his
mental illnesses since the last time he was committed (February to April 2013). T.K. further
testified that when not committed, he goes to the gym every morning, does his own laundry,
maintains a clean home, and maintains his own vehicles.

In light of the statutory prerequisite requirement that the necessary elements for a civil
commitment be established by clear and convincing evidence, we hold that the evidence

5
presented was insufficient to establish that T.K. was "either dangerous or gravely disabled." Ind.
Code § 12-26-2-5(e)(1).
The clear and convincing standard is employed in cases 'where the wisdom of experience
has demonstrated the need for greater certainty, and where this high standard is required
to sustain claims which have serious social consequences or harsh or far reaching effects
on individuals . . . .'

In re G.Y., 904 N.E.2d 1257, 1260 n.1 (Ind. 2009) (quoting J.C.C. v. State, 897 N.E.2d 931,
934–35 (Ind. 2008)).

Regarding whether T.K. is dangerous, the Department's expert witness, Dr. Bishara,
acknowledged, "I personally did not believe that he would be a danger to self or others . . . ." Tr.
at 20. The doctor's personal uncertainty was further displayed when he responded to the trial
court's direct question to him: "Doctor, I'm sorry I'm not really clear. Do you consider [T.K. a]
danger to himself, and others, or just others?" Id. at 23. Dr. Bishara answered by saying that he
would not have found dangerousness, but that T.K.'s estranged son, who did not testify at trial,
"forced [his] hand in that way." Id. at 23. 2

Likewise, the alternative element of "grave disability" was not established by clear and
convincing evidence. Dr. Bishara's opinion that T.K. was gravely disabled was based on T.K.'s
refusal of treatment, T.K.'s denial that he had any mental illness problem, and reports that T.K.
had been aggressive in several areas of his life. Tr. at 23. The Legislature, however, has defined
"gravely disabled" as a condition that causes an individual to (1) be unable to meet their basic
food, clothing, and shelter needs or (2) be so obviously impaired in judgment, reasoning, or
behavior that such individual is unable to function independently. See Ind. Code § 12-7-2-96.

2
The chronological case summary reflects that T.K. has a substantial history of prior mental
health proceedings before the trial court: an involuntary temporary commitment in June of 1999, an
involuntary regular commitment in February of 2002, an involuntary temporary commitment in October
of 2011, and an involuntary regular commitment in February of 2013. Appellant's App'x at 6-9. At least
one of these involved the current trial judge, Hon. Gerald S. Zore, and it may be speculated that he
recalled some facts regarding T.K. from the previous proceeding. The record of this present commitment,
however, does not include any evidence from such prior proceedings. And the Department does not argue
that the present commitment decision was based on evidence from such prior proceedings. Nor does the
order of commitment make any reference to prior evidentiary facts but rather states it conclusions based
"[u]pon evidence presented." Id. at 12. The only evidence presented at the hearing was the personal
testimony of Dr. Bishara and T.K.
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Both Dr. Bishara and T.K. testified that T.K. rents his own home, lives by himself, holds full-
time employment, and owns two vehicles while making payments on a third. No evidence was
presented to dispute his ability to provide food, clothing, or shelter for himself. As to whether
T.K. was or is gravely disabled, the Department points to his refusal to admit he has a mental
illness or to take medication, but such 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." Ind. Code § 12-7-2-96(2). See, e.g., K.F., 909 N.E.2d at 1066–67 (where
commitment because of grave disability was found to be lacking clear and convincing evidence
even though the committed person did not wish to take her medication because the testifying
doctor was equivocal in his response regarding the committed person's ability to function
independently, other opinion testimony was conflicting, and there was no concern about lack of
food, clothing, or shelter), trans. not sought; J.S., 846 N.E.2d at 1112–13 (where commitment
because of grave disability was affirmed on appeal because committed person refused to take
medication and had lost a lot of weight because she refused to eat food for fear of it being
poisoned), trans. denied.; Golub v. Giles, 814 N.E.2d 1034, 1037–39 (Ind. Ct. App. 2004)
(where commitment because of grave disability was affirmed on appeal because evidence
showed that the committed person refused to take medication and destroyed hotel property, made
threats to family members, and lunged at a hotel manager), trans. denied.

In this case, at the time of the commitment hearing in October, T.K. had not been on
medication since April, and in that six months T.K. had secured full-time employment and
started renting a home. We do not weigh into the efficacy of whether medication is appropriate
for T.K., but the evidence in this case has not clearly and convincingly shown that T.K.'s refusal
to take medication and recognize his illness constitutes grave disability by resulting in such a
"substantial impairment or an obvious deterioration of [T.K.'s] judgment, reasoning, or behavior
that . . . [he is unable] to function independently." Ind. Code § 12-7-2-96(2). The most
favorable testimony to the trial court's decision is that T.K. was aggressive, loud, talked in a
coarse manner that was inappropriate, and proactively sought to shame someone by placing
flyers on people's windshields. While we certainly do not condone such behavior and would like
to see cooperation between T.K. and medical professionals, the evidence put forth by the

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Department does not clearly and convincingly support the proposition that T.K. is gravely
disabled. T.K. made no physical outbursts, destroyed no property, did not put himself or others
in actual danger with idiosyncratic behavior, and was not at risk of suffering a lack of food,
clothing, or shelter. Instead, 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. That is not
sufficient evidence to support a civil commitment on grounds of grave disability. 3

Conclusion

Clear and convincing evidence was not presented at T.K.'s civil commitment hearing to
establish that he was either dangerous or gravely disabled, and we thus hold that the civil
commitment of T.K. was improper and is hereby reversed.

Rush, C.J., and Rucker, David, Massa, JJ., concur.

3
T.K.'s appeal also challenges the trial court's admission of and reliance on alleged hearsay
evidence. Because we find the evidence insufficient, even including such challenged evidence, we
decline to separately address this claim.
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