In the Matter of the Commitment of M.E. v. Department of Veterans Affairs

FILED
Nov 23 2016, 9:01 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Joel M. Schumm Josh J. Minkler
Appellate Clinic United States Attorney
Robert H. McKinney School of Law
Danielle Kalivoda
Indianapolis, Indiana Special Assistant
United States Attorney
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the November 23, 2016
Commitment of M.E., Court of Appeals Case No.
Appellant-Respondent, 27A02-1605-MH-987
Appeal from the Grant Circuit
v. Court
The Honorable Mark E. Spitzer,
Department of Veterans Affairs, Judge
Appellee-Petitioner Trial Court Cause No.
27C01-9009-MH-567

Baker, Judge.

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[1] The Veterans Affairs (VA) Hospital filed a petition to involuntarily commit

M.E. by way of forcible medication after M.E. was brought there by local

police. The trial court issued an Order of Regular Commitment, committing

M.E. to the hospital until discharged, and granted an order to medicate M.E.

unless he did not substantially benefit from the medications. M.E. now appeals

his involuntary commitment. Finding that M.E. did not receive appropriate

notice, that his waiver was invalid, and that the VA did not carry its burden of

proof with respect to the elements of dangerousness and grave disability, we

reverse and remand with instructions to vacate the order of involuntary

commitment.

Facts 1

[2] M.E. is an army veteran who lives in Marion and has a well-established

diagnosis of paranoid schizophrenia. On March 31, 2016, M.E. was brought to

the VA Hospital by the police.2

[3] On April 4, 2016, the Department of Veterans Affairs Northern Indiana Health

Care System (NIHCS) filed an Application for Emergency Detention of M.E.

1
We heard oral argument on October 27, 2016, at Lawrence North High School. We would like to thank
the school’s administration, faculty, and students for their hospitality, and Lawrence North senior Bailey
Hogan for serving as our bailiff. We also thank counsel for their informative and engaging oral advocacy and
subsequent discussion with the students.
2
The record does not reveal the initial reason law enforcement became involved with M.E.

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 with the trial court. That same day, the trial court approved the emergency

detention.

[4] On April 6, 2016, the NIHCS filed multiple documents with the trial court,

including a Petition for Regular Commitment with a Physician’s Statement

attached. The VA did not serve these documents on M.E. or his counsel. Dr.

Masood Khan completed the Physician’s Statement preprinted form, indicating

that M.E. was in need of custody, care, or treatment in an appropriate facility;

that commitment would not be necessary if M.E. was taking medication for his

condition; and that M.E. cannot be relied upon to take medication as

prescribed. On April 7, 2016, the trial court issued a Commitment Hearing

Order, scheduling a hearing for April 12, 2016, a Notice of Rights and

Procedures, and a Mental Illness Summons. The Sheriff was ordered to serve

these documents on M.E. Also on April 7, 2016, M.E., who was still being

involuntarily detained at the hospital, signed a Waiver of Right to be Present at

Commitment Hearing. The waiver provided:

[5] I waive my right to be present at the hearing set for 1:30 O’clock
p.m. on 4/12/2016. I understand that, if I fail to appear at the
hearing, I lose this opportunity to contest my commitment unless
my representative contests the matter on my behalf. I wish to be
represented by: __________ at the hearing. This waiver is given
voluntarily. No person has encouraged or pressured me to sign
this waiver.

Appellant’s App. Vol. 2 p. 26.

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[6] M.E.’s counsel learned of the proceedings on April 8 when counsel for the VA

called him. M.E.’s counsel had to ask for all of the documents to be sent to

him. After speaking with M.E., M.E.’s counsel filed a motion to continue the

hearing. His request was granted, and on April 20, 2016, the hearing took

place. Meanwhile, on April 12, 2016, M.E. was discharged from the VA

hospital.

[7] At the hearing, Dr. Masood Khan, a staff inpatient psychiatrist at the hospital,

was the VA’s sole witness. Dr. Khan testified that when M.E. arrived at the

acute mental health unit, M.E. was swearing loudly, presenting with

disorganized thoughts and behavior, acting paranoid, and initially refusing

medications. According to Dr. Khan, the commitment order was necessary

because “the long history of non-compliance, is primary [sic] the issue, that’s

why the order is being questioned.” Tr. p. 6. Dr. Khan testified that

schizophrenia is categorized by delusions and hallucinations, and that when

M.E. is in his delusional state, he thinks that people are discriminating against

him because he is Black; when he is hallucinating, he responds loudly to unseen

others and makes physical gestures. When asked to explain the nature of

M.E.’s yelling or purported threats, Dr. Khan testified that M.E. yelled, “these

white bitches get away from me. You did this to me, you did that to me.” Id.

at 15. Dr. Khan testified that M.E. has a long history of marijuana use, which

will, in some cases, exacerbate schizophrenia.

[8] Dr. Khan further testified that prior to the instant admission, M.E. had been

admitted to the acute mental health unit of the VA Hospital in Marion at least

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 thirty-one times. He testified that when M.E. was part of the VA program for

mental health intensive case management, he was compliant with his

medication and was free of symptoms. Dr. Khan said that “[t]here has been no

physical [aggression] from what I am remembering from the records,” id. at 10,

and that the most recent time that M.E. was restrained was July 2013. Dr.

Khan testified that although M.E. showed up for his appointment on April 19,

2016, he declined the medication. Dr. Khan recommended a treatment plan

that was a long-acting injectable. He testified that M.E. is an ideal candidate

for this medication because he does not exhibit side effects from it and his

“presentation turns around 180 degrees.” Id. at 12.

[9] M.E. testified on his own behalf. He testified that he did not know why he was

taken to the hospital: “I got out there and they wouldn’t tell me, they never

told me anything. To this day I still don’t know what was said that I did to

except for what” he was told by counsel. Id. at 19. He stated that he wears an

allergy bracelet for the medication that he was forced to take, and that he suffers

side effects from it, including kidney and bladder problems. He testified that he

lives by himself in an apartment, pays rent for his apartment every month, eats

regularly, and dresses himself. He gets along well with his landlord. He said

that he gets loud sometimes because “my voice does accelerate.” Id. at 20. He

testified that one white patient “swore up and down and he went home” and

another “threw his tray on the floor” and would probably go home. Id. at 21.

As for his delusions, M.E. said that white people do not bother him, but that if

something happened, their word would overrule his.

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[10] On April 25, 2016, the trial court issued an Order of Regular Commitment,

finding M.E. to be mentally ill, dangerous, and gravely disabled, and permitting

him to be forcibly medicated. M.E. now appeals.

Discussion and Decision
[11] M.E. makes three arguments on appeal: (1) the VA failed to serve M.E. with

the documents it filed with the trial court; (2) the Waiver of Right to Be Present

at Commitment Hearing signed by M.E. was invalid; and (3) the involuntary

civil commitment was not warranted because the VA failed to establish that

M.E. exhibited a grave disability or dangerousness to self.3

I. Service of Pleadings
[12] M.E. first argues that a hospital in a civil commitment case is required to serve

the patient or patient’s counsel with all documents it files with a trial court,

including petitions for involuntary commitment.

[13] In civil proceedings, each party must be served with “every pleading subsequent

to the original complaint.” Ind. Trial Rule 5(A)(2). The rule further provides

that when “a party is represented by an attorney of record, service shall be made

3
Because M.E. was eventually able to obtain the documents at issue and because he appeared at his hearing,
the first two issues presented are moot. We generally do not discuss moot issues; however, a moot issue
“may be decided on its merits when it involves questions of great public interest that are likely to recur.”
Golub v. Giles, 814 N.E.2d 1034, 1036 n.1 (Ind. Ct. App. 2004). “The question of how persons subject to
involuntary commitment are treated by our trial courts is one of great importance to society.” Id. Further,
this case involves a question of whether an individual who is involuntarily committed is able to validly waive
his rights. These are issues of great public importance and are likely to recur, so we will address them.

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 upon such attorney unless service upon the party is ordered by the court.” T.R.

5(B). Service upon the attorney or party can be made through a variety of

methods, including through mail, e-mail, or fax. Id. Mental health proceedings

are conducted like other civil proceedings according to the trial rules except as

otherwise provided. Ind. Code § 12-26-1-6. An individual alleged to have a

mental illness has the right to receive adequate notice of a hearing so that the

individual or the individual’s attorney can prepare for the hearing; to receive a

copy of a petition or an order relating to the individual; to be present at a

hearing relating to the individual; and to be represented by counsel. Ind. Code

§ 12-26-2-2. The Indiana Legislature extended these rights to the proceedings

for temporary commitment and regular commitment, notice of discharge of an

individual, and review of commitment, but not for emergency detentions. I.C.

§ 12-26-2-2(a)(1)-(4).

[14] On April 6, 2016, the VA filed a petition seeking to have M.E. involuntarily

committed with an attached Physician’s Statement. Although M.E.’s counsel

had entered an appearance on M.E.’s behalf in March of 2015, M.E.’s counsel

was not served with these documents. He received notice when the VA’s

counsel called him on April 8 to ask about the necessity of a commitment

hearing. M.E.’s counsel had to request the documents filed by the VA; on April

11, the VA’s counsel faxed the pleadings to M.E.’s counsel.

[15] M.E. argues that he was not served with any of these documents, evidenced by

the fact that none contained a certificate of service, and he testified at the

commitment hearing that he first learned of the allegations supporting his

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 emergency detention and the sought-after commitment from his counsel,

despite the fact that M.E. was represented by counsel beginning in 2015 and

was represented by counsel when he was involuntarily committed on March 31,

2016.

[16] The VA relies on Cheek v. State, in which this Court found that where “an

individual appears with counsel, it is apparent that the notice was actually

received despite the fact that a sheriff’s return is not included in the trial

record.” 567 N.E.2d 1192, 1195-96 (Ind. Ct. App. 1991) (emphasis original).

[17] We find that M.E. was never served with the pleadings related to the

commitment petition. We decline to follow Cheek and find instead that service

and proof of service is required for all civil commitment cases. The mere fact

that an individual appeared at a hearing with counsel is insufficient to prove

service—indeed, the individual and his counsel may have learned of the hearing

through purely serendipitous circumstances, which is precisely what occurred in

the present case.

[18] For service to meet due process requirements, it must be “reasonably calculated

to inform the person to be served that an action has been instituted against him,

the name of the court, and the time within which he is required to respond.”

T.R. 4.15(F). If service “is not ‘reasonably calculated to inform . . .,’ the mere

fact that the party [served] has actual knowledge of the suit does not satisfy due

process . . . .” Glennar Mercury-Lincoln, Inc. v. Riley, 167 Ind. App. 144, 152, 338

N.E.2d 670, 675 (1975). Here, M.E. received notice only through his counsel;

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 M.E.’s counsel received notice only when the VA’s counsel called him to

discuss a hearing, and M.E.’s counsel then had to request that the VA send him

the documents that had been filed with the trial court. Even though the VA’s

counsel ultimately sent M.E.’s counsel the documents, such action does not

constitute effective service because it was not “reasonably calculated to inform”

M.E. of the action instituted against him. Compare to Thomison v. IK Indy, Inc.,

658 N.E.2d 1052, 1059 (Ind. Ct. App. 2006) (finding that service was effective

because the appellant-defendant conceded that the summons and complaint

were delivered to her residence and she made no argument that she did not

receive the complaint). Accordingly, despite the fact that M.E. appeared at the

hearing with counsel, his appearance does not establish that actual service

occurred.

[19] Fair notice requires that individuals who may be civilly committed and their

counsel receive the petitions and documents supporting the requests for civil

commitment. We find, therefore, that the VA’s failure to serve these

documents on M.E. and his counsel violated Trial Rule 5’s requirement that

each party must be served with every pleading, including and subsequent to the

original complaint, and that service must be made upon an attorney of a

represented party.

II. Waiver
[20] Next, M.E. argues that the “Waiver of Right to be Present at Commitment

Hearing” that the VA secured from him was invalid. We agree, finding that

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 any waiver presented to and signed by an individual who has been involuntarily

detained, and is alleged by the VA to be mentally ill, cannot be valid.

[21] In supporting its argument that M.E.’s waiver was valid, the VA relies on the

fact that the waiver involved in this case was an express, written waiver, and

that M.E.’s experience with commitment orders and the mental health unit of

NIHCS over the course of fifteen years indicates that M.E. understood the

waiver that he signed. This argument is unfathomable.

[22] It is difficult, if not impossible, to see how an individual who is involuntarily

detained under an emergency detention order by a mental health institution can

be considered able to exhibit the competency required to sign a valid waiver in

which he relinquishes his rights. The VA cannot argue on one hand that

someone is mentally ill and on the other hand that he is competent enough to

sign a legal document. In other words, an individual cannot be considered so

mentally ill that an emergency detention is ordered and a petition for regular

commitment is filed but, simultaneously, competent enough that any waiver he

may sign is validly obtained. Either an individual is competent, or he is not.

[23] Accordingly, we hold that a waiver purporting to relinquish the rights of an

involuntarily detained individual, or an individual at risk of being involuntarily

committed, is not valid.

III. Sufficiency of the Evidence
[24] M.E. argues that there was no clear and convincing evidence of dangerousness

to self or grave disability that warranted his involuntary civil commitment.
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[25] In reviewing the sufficiency of the evidence to support a civil commitment,

which requires clear and convincing evidence, “an appellate court will affirm if,

‘considering only the probative evidence and the reasonable inferences

supporting it, without weighing evidence or assessing witness credibility, a

reasonable trier of fact could find [the necessary elements] proven by clear and

convincing evidence.’” Civil Commitment of T.K. v. Dep’t of Veterans Affairs, 27

N.E.3d 271, 273 (Ind. 2015) (quoting Bud Wolf Chevrolet, Inc. v. Robertson, 519

N.E.2d 135, 137 (Ind.1988)).

[26] Indiana Code section 12-26-2-5(e) provides that the petitioner in a case

involving the involuntary treatment of mentally ill individuals 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. Clear and convincing evidence requires proof that the

existence of a fact is “highly probable.” Lazarus Dep’t Store v. Sutherlin, 544

N.E.2d 513, 527 (Ind. Ct. App. 1989). “There is no constitutional basis for

confining a mentally ill person who is not dangerous and can live safely in

freedom.” Commitment of J.B. v. Midtown Mental Health Ctr., 581 N.E.2d 448,

451 (Ind. Ct. App. 1991).

A. Evidence of Dangerousness
[27] An individual is “dangerous” when, as a result of mental illness, the individual

presents a substantial risk that he will harm himself or others. Ind. Code § 12-7-

2-53. When certain conduct is alleged to be dangerous, we must consider

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 whether “the conduct is an instance of everyday risk-taking behavior.”

Commitment of J.B., 581 N.E.2d at 451. Dangerousness must be shown through

behavior that would not occur but for the person’s mental illness. B.M. v. Ind.

Univ. Health, 24 N.E.3d 969, 972 (Ind. Ct. App. 2015). A trial court need not

wait until an individual commits a physical act before determining that the

individual poses a substantial risk of harm to himself or others. Id. When

determining future dangerousness, “the court must exercise extreme caution

that it not utterly strip a person suffering from mental illness of the power to

make an informed decision concerning risk-taking.” Commitment of J.B., 581

N.E.2d at 451.

[28] In J.B., J.B. suffered from alcohol abuse, and on three occasions, became so

intoxicated that her mother had to retrieve her. Id. at 449. On two of those

occasions, J.B. entered her mother’s car, but once the car was stopped at a busy

intersection, J.B. jumped out and ran away through traffic; on the third

occasion, J.B. did not enter her mother’s car but instead flagged down and got

into a car with several young men. Id. The court found these three instances to

be the only probative evidence of J.B.’s dangerousness, and that it was

undisputed that each time, J.B. was at least partly motivated by her desire to

escape her mother’s company. Id. at 452. Ultimately, the court held that

“[w]hile J.B. may have made a choice that many members in our society would

not think worth the risk, her conduct presents too slender a thread to support an

involuntary commitment.” Id.

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[29] M.E. argues that, like in J.B., the evidence is “too slender a thread” to prove by

clear and convincing evidence a substantial risk that M.E. would harm himself

or others. We agree. First, Dr. Khan testified that three years had passed since

M.E. had required physical restraint. Second, Dr. Khan’s evidence about

M.E.’s dangerousness was conclusory without providing facts about how M.E.

may be dangerous. Specifically, Dr. Khan testified, “[w]hen he presents, he is

very intimidating, he’s very loud, he’s very threatening. And that creates

potentially [sic] problems.” Tr. p. 10. When Dr. Khan was asked whether he

had heard M.E. threaten any person in any way, he replied, “I have on the unit

very loudly. . . . So in the morning my nurse would have to go multiple times

because there is loudly screaming and to figure out as to who is it? And they

would invariably come back, well this is [M.E.] again.” Id. at 14. When asked

whether M.E. had threatened to harm another person, Dr. Khan stated that

M.E. would say, “these white bitches get away from me. You did this to me,

you did that to me.” Id. at 15. Thus, the most specific evidence that Dr. Khan

could provide about M.E.’s dangerousness merely amounted to unpleasant

comments that M.E. made about white women. Such behavior does not

constitute a substantial risk that M.E. will harm himself or others, nor does it

support an involuntary commitment.

B. Evidence of Grave Disability
[30] An individual is “gravely disabled” when, as a result of mental illness, the

individual is in danger of coming to harm because he: 1) is unable to provide

for his food, clothing, shelter, or other essential needs; or 2) has a substantial

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 impairment or an obvious deterioration of his judgment, reasoning, or behavior

that results in his inability to function independently. I.C. § 12-7-2-96.

[31] Regarding the first prong that must be proven to establish grave disability, M.E.

argues that he is able to provide for his food, clothing, shelter, and other

essential needs, and that there is no evidence that suggests otherwise. At the

hearing, Dr. Khan testified that, upon M.E.’s arrival at the hospital, his staff

“did not comment on [M.E.’s] poor condition.” Tr. p. 9. On cross-

examination, Dr. Khan agreed that M.E. was “eating properly” in the unit, and

he had no reason to believe M.E. was not eating appropriately prior to his

admission. Id. at 14. When M.E. testified, he stated that he lives alone in an

apartment for which he pays rent, that he eats regularly, and that he is able to

clothe himself. Id. at 20.

[32] Regarding the second prong, M.E. asserts that he was functioning

independently and was not at risk of coming to harm because of any

impairment or deterioration of judgment or behavior. Although the VA argues

that grave disability results from a person’s failure to recognize his own “mental

illness and to take care of yourself by coming in and getting the medication that

you need,” id. at 24, our Supreme Court explicitly stated in T.K. that “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.’”

27 N.E.3d at 276 (quoting I.C. § 12-7-2-96). Further, we do not believe that

aggression or paranoia, alone, establish an inability to function independently.

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[33] We agree with M.E. that there is no clear and convincing evidence to establish

a grave disability. The government did not offer any evidence that M.E. is

unable to provide for his food, clothing, shelter, or other essential needs, nor did

it offer evidence that M.E. suffered from a substantial impairment or obvious

deterioration that affected his judgment or made him unable to function

independently. In fact, the physician who completed the Physician’s Statement

referenced by the Petition for Regular Commitment did not even check the box

to indicate that M.E. was suffering from grave disability. Appellant’s App. Vol.

2 p. 19-21. Moreover, the VA’s reliance on M.E.’s past behavior ignores the

fact that the statutory language looks to the patient’s behavior at the time of the

hearings, not to his history. M.E.’s aggression, paranoia, and confrontational

attitude do not establish an inability to function independently under the law.

[34] The judgment of the trial court is reversed and remanded with instructions to

vacate the order of involuntary commitment.

Riley, J., and Robb, J., concur.

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