MEMORANDUM DECISION
Mar 25 2015, 9:25 am
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 establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT
Steven E. Ripstra
Jacob P. Wahl
Ripstra Law Office
Jasper, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Commitment March 25, 2015
of Z.P., Court of Appeals Case No.
19A04-1410-MH-500
Z.P.,
Appeal from the Dubois Circuit
Appellant-Respondent, Court.
The Honorable William E. Weikert,
v. Judge.
Cause No. 19C01-1409-MH-155
Memorial Hospital,
Appellee-Petitioner.
Barteau, Senior Judge
Statement of the Case
[1] Z.P. appeals from the trial court’s judgment, which directed that he must be
involuntarily committed for outpatient mental health treatment. We affirm.
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Issue
[2] Z.P. argues that there is insufficient evidence to sustain the trial court’s
judgment. The dispositive issue is whether Z.P. invited error, but we also
consider whether there is sufficient evidence to support the judgment.
Facts and Procedural History
[3] Z.P. is a veteran and served our country in Iraq in 2007. He received mental
health services through the Veterans’ Health Administration (VA) after
returning home.
[4] In September and December 2011, Z.P. was detained at Memorial Hospital in
Jasper, Indiana, for mental health issues. Each time, he was detained for
several days. Next, he was detained at Memorial Hospital for mental health
issues twice in May 2014: from May 13 through May 15, and May 17 through
May 21. Dr. Robert White, a psychiatrist at Memorial Hospital, treated Z.P. at
that time. Dr. White was “very concerned” about Z.P.’s poor prognosis, which
posed a “risk to not only [Z.P.] but the police force.” Tr. p. 6. Dr. White was
also concerned about Z.P.’s noncompliance with treatment. Dr. White told
Z.P. that if he came back to Memorial Hospital and was not complying with
treatment, Dr. White would seek to have him involuntarily committed for
further treatment. Dr. White concluded that Z.P. needed more intensive
services and discussed Z.P.’s case with the VA.
[5] Z.P. continued to receive treatment from the VA. The VA “flagged him as high
risk,” indicating he was to see a therapist on a weekly basis. Id. at 3. His
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therapist went on maternity leave in July 2014, and Z.P. refused to see other
therapists. Furthermore, prior to going on leave, Z.P.’s therapist reported that
Z.P. had only partially complied with recommendations and was “minimally
engaged in treatment.” Id.
[6] In the fall of 2014, Z.P. applied for a treatment program through the VA, but he
failed to appear for three interviews and was deemed to be unsuitable for the
program. In addition, the VA offered Z.P. intensive outpatient programs or
partial hospitalization, and he rejected those options.
[7] On September 11, 2014, police officers brought Z.P. to Memorial Hospital.
Z.P. had expressed thoughts of suicide, and when officers arrived at his
location, he brandished knives with the intent to commit “suicide by cop.” Id.
Z.P. dropped the knives and surrendered only after an officer threatened to use
a Taser. Later that same day, a Memorial Hospital employee contacted the
trial court and requested an emergency detention order for Z.P. The court
granted the hospital’s request.
[8] Next, a Memorial Hospital employee asked the trial court to order a longer
commitment for Z.P. The court scheduled an evidentiary hearing and
appointed counsel to represent Z.P.
[9] During Z.P.’s hospitalization, Dr. White diagnosed him with “alcohol use
disorder, antisocial personality disorder, unspecified depressive disorder, and
probable PTSD.” Id. at 2. These diagnoses were “essentially the same as what
had been there” during Z.P.’s prior hospitalizations at Memorial Hospital. Id.
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[10] The court held an evidentiary hearing on September 25, 2014. Dr. White
testified that in his opinion, Z.P. was “dangerous to self and others.” Id. at 2.
Z.P. did not dispute that he needed additional treatment, testifying as follows:
With regards to the treatment from the VA, I 100% agree that I
do need treatment. I know I need to get better and I am willing
to go to the VA and see a therapist while my current therapist is
on maternity leave. I’m willing to do that. I know I need to get
better and I need to get fixed and I need to take my medicine.
Id. at 4.
[11] Z.P. further stated, “I will abstain from alcohol. I’m going to have to with my
legal issue. I will take random drug screens. I will do all that, but I want to see
the VA instead of Southern Hills.” Id. at 5. He agreed that he needed help
“with the PTSD.” Id. Finally, Z.P. told the court:
[I]npatient care is probably the best option for me right now, and
I was made aware that Heather had discussed a facility in
Marion, Indiana. And they are looking into that as an option for
me. The VA. I’ll have to wait for what they have to say.
Id.
[12] After hearing the evidence, the court determined:
I’m going to find that there is sufficient proof for regular
commitment, finding that [Z.P.] is suffering from illnesses
described by Dr. White, that he has been dangerous to himself
and others[,] that the best facility where he can receive treatment
and care at this point is Southern Hills which is the least
restrictive environment suitable for the necessary care, treatment
and protection of [Z.P.] And the conditions are they [sic] will
hopefully provide the right treatment for you and allow you to be
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in an environment where you can succeed rather than keep
coming back to the hospital as you have been in the past.
Id. at 6.
[13] The court rejected Z.P.’s request for services through the VA rather than
Southern Hills, stating “that’s not working” and “I don’t see anything that the
VA has to offer that is going to make it any different than it has been.” Id. at 6-
7. The court noted that Southern Hills provided only outpatient services, but if
Southern Hills’ staff determined that an inpatient VA program would help Z.P.,
the court would not object. This appeal followed.
Discussion and Decision
[14] Z.P. argues that there is insufficient evidence to support the trial court’s
decision that he is in need of an involuntary commitment for medical care.
Memorial Hospital, the health care provider that sought Z.P.’s involuntary
commitment, has not filed an Appellee’s Brief. When the appellee fails to
submit a brief, we will not undertake the burden of developing an argument on
its behalf. Geico Ins. Co. v. Graham, 14 N.E.3d 854, 857 (Ind. Ct. App. 2014).
Instead, we will reverse the trial court’s judgment if the appellant’s brief
presents a case of prima facie error. Id. In this context, prima facie error is
defined as at first sight, on first appearance, or on the face of it. Id. Even under
the prima facie error rule, we are obligated to correctly apply the law to the facts
in the record in order to determine whether reversal is required. Id. If the
appellant is unable to meet the burden of establishing prima facie error, we will
affirm. Id.
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[15] Before addressing the merits of Z.P.’s claim of insufficient evidence, we
conclude that he invited any error. The doctrine of invited error, which is
grounded in principles of estoppel, states that a party may not take advantage of
an error that he or she commits, invites, or which is the natural consequence of
his or her own neglect or misconduct. Witte v. Mundy, 820 N.E.2d 128, 133
(Ind. 2005).
[16] During the evidentiary hearing in this case, Z.P. conceded that he “need[ed]
treatment.” Tr. p. 4. He agreed that he “need[ed] help with the PTSD.” Id. at
5. Z.P. further expressed a willingness to see a therapist or participate in an
inpatient treatment program. He disagreed with the proposal to receive
treatment through Southern Hills, arguing that he would prefer to get treatment
from “the VA instead of Southern Hills,” but he did not dispute the need for
1
some form of court-ordered treatment. Id. Having conceded that he is
mentally ill and having agreed to receive court-ordered treatment, Z.P. invited
any error arising from an alleged lack of evidence to support the trial court’s
determination that a commitment for mental health treatment was appropriate.
See Beeching v. Levee, 764 N.E.2d 669, 674 (Ind. Ct. App. 2002) (appellant
invited any error arising from the admission of evidence because he asked the
trial court to admit the evidence).
1
Z.P. does not claim on appeal that the trial court erred by committing him to the care of Southern Hills
rather than the VA.
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[17] Waiver notwithstanding, we address Z.P.’s claim. An individual who is shown
to be mentally ill and either dangerous or gravely disabled may be involuntarily
detained or committed for different periods of time specified by statute,
including as an immediate detention, an emergency detention, a temporary
commitment, or a regular commitment. Ind. Code § 12-26-1-1 (1992). This
case concerns a regular commitment, the most extensive form of commitment.
A regular commitment is a commitment that is “reasonably expected to require
custody, care, or treatment in a facility for more than ninety (90) days.” Ind.
Code § 12-26-7-1 (1992). It applies to individuals who appear to be suffering
from chronic mental illnesses. Ind. Code § 12-26-7-2 (2004).
[18] Upon receiving a petition or a report requesting involuntary treatment of an
individual for more than ninety days, the trial court must schedule a hearing.
Ind. Code § 12-26-7-4 (1992). A petitioner seeking an involuntary, regular
commitment must prove at the hearing “by clear and convincing evidence” that
the individual is mentally ill and either dangerous or gravely disabled, and that
commitment of the individual is appropriate. Ind. Code § 12-26-2-5 (2007). If,
at the completion of the hearing and upon consideration of the record, a trial
court determines that an individual is mentally ill and either dangerous or
gravely disabled, the court may enter an order:
(1) For the individual’s custody, care, or treatment, or continued
custody, care, or treatment in an appropriate facility.
(2) For the individual to enter an outpatient therapy program
under IC 12-26-14.
Ind. Code § 12-26-7-5 (2009).
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[19] 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), trans. denied. We may not reweigh the evidence or judge the credibility
of witnesses. In re Involuntary Commitment of A.M., 959 N.E.2d 832, 835 (Ind.
Ct. App. 2011). If the trial court’s decision represents a conclusion that a
reasonable person could have drawn, we will affirm even if other reasonable
conclusions are possible. G.Q. v. Branam, 917 N.E.2d 703, 707 (Ind. Ct. App.
2009).
[20] Z.P. does not dispute the trial court’s determination that he is mentally ill.
Instead, Z.P. claims there is insufficient evidence to support the trial court’s
determination that he is “dangerous to himself and others.” Tr. p. 6.
[21] For the purpose of an involuntary civil commitment, “dangerous” is defined as
“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 (1992). We consider three factors in determining whether the
evidence supports the involuntary commitment: the gravity of the behavior
leading to the 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), trans. denied.
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[22] In this case, Z.P.’s behavior prior to his hospital admission strongly supports
the trial court’s decision. He threatened police officers with knives in an
attempt to provoke the officers to kill him. He thus endangered himself and the
officers. Dr. White had expressed concerns about Z.P.’s safety in May 2014.
In addition, despite repeated hospitalizations for mental health treatment, Z.P.
did not cooperate with his treatment providers prior to the detention at issue
here. His VA therapist reported that he was noncompliant and disengaged
from treatment. After she went on maternity leave, Z.P. refused to see a
different therapist, resulting in him failing to participate in therapy from July
2014 until his detention in September 2014. He also rejected the VA’s
recommendations for intense outpatient or partial hospitalization programs.
[23] The record also reflects a strong relationship between Z.P.’s mental illnesses
and his dangerous behavior. Z.P. concedes that his “behavior would not have
occurred but for his mental illness.” Appellant’s Br. p. 8. In addition, Dr.
White treated Z.P. at Memorial Hospital in May 2014, and he was concerned
at that time that Z.P.’s “poor prognosis” would put Z.P. and police officers at
risk. Tr. p. 6. Dr. White further stated that Z.P. had failed to follow through
on the “many types of treatment” that had been offered to him and had warned
Z.P. in May 2014 that further failure to comply with treatment would cause
Memorial Hospital to seek a regular commitment. Id. The VA had classified
Z.P. as “high risk,” and as a result Z.P. was required to appear for weekly
counseling sessions. Id. at 3.
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[24] This evidence is sufficient to establish a prima facie case of dangerousness,
which is the basis for the trial court’s order of involuntary regular commitment.
See Commitment of S.T. v. Cmty. Hosp. North, 930 N.E.2d 684, 692 (Ind. Ct. App.
2010) (evidence sufficient to establish dangerousness where patient was
hospitalized after attempting suicide, and her destructive behavior was caused
or exacerbated by her mental illness).
[25] Z.P. notes that the record is silent as to whether he behaved well at Memorial
Hospital following his detention. Lack of disruptive behavior while
hospitalized is a valid consideration, but more troubling is Z.P.’s history of
repeated, short-term hospitalizations, which did not cause Z.P. to correct his
behavior or to comply with treatment recommendations after the
hospitalizations ended.
[26] Z.P. cites to In the Matter of the Commitment of L.W. v. Midtown Community Health
Center, 823 N.E.2d 702 (Ind. Ct. App. 2005), in support of his appeal, but that
case is distinguishable. There, police brought L.W. to a hospital because he
was found holding an “iron object” when they came to his apartment. Id. at
704. No other facts were provided about that encounter, and a panel of this
Court deemed the evidence insufficient to support the order of commitment. Id.
By contrast, in this case the record demonstrates that the police confronted Z.P.
because he had made references to suicide, and when they arrived he threatened
them with knives in an attempt to provoke them into killing him. This case
presents more specific evidence of dangerousness. Also, in L.W.’s case the
evidence showed that he had cooperated with his treatment providers. By
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contrast, the record in this case reflects that Z.P. largely failed to cooperate with
the VA’s treatment plans, even after Dr. White advised him that further
noncompliance coupled with misbehavior could result in Memorial Hospital
seeking an involuntary regular commitment. Z.P. has failed to establish prima
facie error.
Conclusion
[27] Z.P. invited any error with respect to the sufficiency of the evidence supporting
his involuntary regular commitment. In any event, the evidence is sufficient to
support the trial court’s judgment. For the foregoing reasons, we affirm the
judgment of the trial court.
[28] Affirmed.
Vaidik, C.J., and Barnes, J., concur.
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