In Re: The Commitment of D.S. D.S. v. Indiana University Health Bloomington Hospital

FILED
Aug 23 2018, 8:44 am

CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Isabella H. Bravo James L. Whitlatch
Bloomington, Indiana Bunger & Robertson
Bloomington, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In Re: The Commitment of D.S.; August 23, 2018

D.S. Court of Appeals Case No.
Appellant/Respondent, 18A-MH-590
Appeal from the Monroe Circuit
v.
Court
Indiana University Health The Honorable Stephen R. Galvin,
Bloomington Hospital Judge
Appellee/Plaintiff.
Trial Court Cause No.
53C07-1801-MH-36

Pyle, Judge.

Statement of the Case
[1] D.S. (“D.S.”) appeals the trial court’s order granting the petition filed by

Indiana University Health Bloomington Health (“the Hospital”) for her regular

commitment. She argues that: (1) there was not sufficient evidence to prove

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 that she was “gravely disabled;” (2) that the trial court’s forced medication

order was not the least restrictive treatment; and (3) that the testimony of

psychiatrist Carey Mayer, M.D. (“Dr. Mayer”) contained inadmissible hearsay.

Because we conclude that there was not sufficient evidence to prove that D.S.

was “gravely disabled,” we reverse the trial court’s decision and remand for the

trial court to vacate the order of regular commitment. 1

[2] We reverse and remand.

Issue
Whether there was sufficient evidence to support the trial court’s
regular commitment of D.S.

Facts
[3] On January 27, 2018, Officer Kyle Thomas (“Officer Thomas”) of the

Bloomington Police Department (“BPD”) responded to a 911 call regarding an

incident (the “Incident”) in downtown Bloomington, Indiana. When Officer

Thomas responded to the call, he saw D.S. waving a sign out of a vehicle while

screaming. He attempted to stop D.S.’s vehicle, but she continued driving until

traffic blocked her vehicle. Believing D.S. to be suffering from psychosis,

Officer Thomas forcibly removed D.S. from her vehicle and brought her to the

Hospital for an emergency detention.

1
Because we reverse, we need not address whether the trial court’s forced medication order was the least
restrictive treatment or whether Dr. Mayer’s testimony contained inadmissible hearsay.

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[4] At the Hospital, physician Daniel J. Garrison, M.D. (“Dr. Garrison”) filed an

Application for Emergency Detention (“Application”) stating that D.S.

appeared to have “acute or chronic psychosis, patient is manic and lead [sic]

BPD in a chase in her car throughout downtown Bloomington.” (App. Vol. 2 at

5). Dr. Garrison further alleged in the Application that D.S.’s decision-making

was impaired, placing her in a potentially harmful situation, and he

recommended that D.S. be admitted to the Hospital’s Crisis Care Unit. The

next day, the trial court approved the seventy-two (72) hour emergency

detention of D.S., and D.S. was held at the Hospital.

[5] Three days later, on January 31, 2018, Hospital Social Worker James D. Baugh

(“Baugh”) completed a Report Following Emergency Detention (“Report”) and

filed in the trial court a Petition for Involuntary Commitment (“Petition”)

seeking regular commitment of D.S. for a period of one (1) year. In the

Petition, Baugh alleged that D.S. was suffering from a psychotic disorder and

“present[ed] as gravely impaired with helix of schizophrenia, bipolar,

schizoaffective, and bipolar type.” (App. Vol. 2 at 12). The Petition further

alleged that D.S. was unable to care for herself, meet her basic needs, or identify

appropriate shelter and that she had no family, friends, or others willing to

assist her in meeting those needs. Psychiatrist Carey Mayer, M.D. (“Dr.

Mayer”) simultaneously filed a physician’s statement alleging that D.S. was

suffering from a psychiatric disorder and was “delusional, causing

disturbance(s) involving the police.” (App. Vol. 2 at 15).

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[6] A week later, on February 6, 2018, the trial court held its hearing on the

Hospital’s Petition for the regular commitment of D.S. Two witnesses, Dr.

Mayer and D.S. testified. First, Dr. Mayer testified about the circumstances

under which D.S. was brought to the Hospital. At the outset of his testimony,

he read into the record an assessment done by one of the Hospital’s therapists

when D.S. was admitted. Counsel for D.S. objected to the testimony on the

basis that it was hearsay, and the trial court overruled the objection.

[7] Next, Dr. Mayer testified to his “own direct observations” of D.S. (Tr. 4). Dr.

Mayer testified that he assessed D.S. to be “suffering from a schizoaffective

disorder, bipolar type” and that she need[ed] medications “which unfortunately

she refuse[d] to consider.” (Tr. 5). He also testified that “for the last seven [or]

eight days” D.S. had remained “psychotic” and “preoccupied” and that he

therefore believes “she is gravely impaired and unable to provide for her own

safety, shelter, food, clothing, [and] needs.” (Tr. 5). Dr. Mayer also

recommended a forced medication order of three drugs: Zyprexa, Abilify, and

the injectable drug Invega. (Tr. 5). During cross-examination, Dr. Mayer

agreed that D.S. was neither malnourished nor dehydrated when admitted to

the Hospital, that she had a residence where she could stay upon release from

the Hospital, and that she had secured these “shelter, food, and clothing

without hospital assistance” and without taking “any type of medication.” (Tr.

12).

[8] Finally, D.S. testified about her life outside of the Hospital. She stated that she

had been living with a friend in Jackson County since approximately July 2016

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 and that she had been employed at an appliance production company in

Bedford, Indiana from August 2016 until January 2018. She also stated that

she maintained relationships with her parents and daughter who lived in

Indiana and her two brothers who lived in other states. She testified that she

had checking and savings accounts from which she paid weekly rent to her

friend, a monthly car payment, and car insurance. She further testified that

until her current hospitalization she had not been hospitalized since 2016. She

indicated that she was unwilling to take Invega because of negative side effects,

but that she would be willing to try an alternative.

[9] At the conclusion of the hearing, the trial court granted the Hospital’s Petition

for D.S.’s regular commitment, finding that D.S. was gravely disabled and in

need of commitment for a period expected to exceed ninety (90) days. The trial

court also granted the forced medication order, permitting the Hospital to treat

D.S. with Invega, Abilify, and Zyprexa. D.S. now appeals.

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 Decision
[10] On appeal, D.S. argues that the trial court erred in ordering her regular

commitment2 because there was insufficient evidence to prove that she was

“gravely disabled” as required by statute. See IND. CODE § 12-7-2-96. 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.’” Commitment of M.E. v. Dep’t of Veteran’s Affairs, 64

N.E.3d 855, 861 (Ind. Ct. App. 2016) (quoting Civil Commitment of T.K. v. Dep’t

of Veteran’s Affairs, 27 N.E.3d 271, 273 (Ind. 2015) (internal quotation omitted)).

[11] INDIANA CODE § 12-26-2-5(e) provides that the petitioner in a case involving

the involuntary commitment 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

2
In Civil Commitment of T.K. v. Dep't of Veterans Affairs, 27 N.E.3d 271, 273 n. 1 (Ind. 2015), our supreme
court explained:
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; (2) “Emergency Detention” for up to 72 hours; (3) “Temporary Commitment” for up to
90 days; and (4) “Regular Commitment” for an indefinite period of time that may exceed 90
days.
(internal citations omitted).

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 appropriate. Clear and convincing evidence requires proof that the existence of

a fact is “highly probable.” M.E., 64 N.E.3d at 861. “‘There is no

constitutional basis for confining a mentally ill person who is not dangerous

and can live safely in freedom.’” Id. (quoting Commitment of J.B. v. Midtown

Mental Health Ctr., 581 N.E.2d 448, 451 (Ind. Ct. App. 1991)).

[12] D.S. does not dispute the trial court’s finding that she is mentally ill. However,

she argues that there was insufficient evidence to support the trial court’s

finding that she is gravely disabled. INDIANA CODE § 12-7-2-96 defines

“gravely disabled” as:

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.

Because this statute is written in the disjunctive, a trial court’s finding of grave

disability survives if we find that there was sufficient evidence to prove either

that the individual was unable to provide for his basic needs or that his

judgment, reasoning, or behavior was so impaired or deteriorated that it

resulted in his inability to function independently. Commitment of B.J. v.

Eskenazi Hosp./Midtown CMHC, 67 N.E.3d 1034, 1039 (Ind. Ct. App. 2016).

Our supreme court has previously held that a denial of mental illness and

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 refusal to medicate, standing alone, are insufficient to establish grave disability

because they do not establish by clear and convincing evidence that the

individual is unable to function independently. See T.K., 27 N.E.3d at 276.

The United States Supreme Court has also held that, since everyone exhibits

some abnormal conduct at one time or another, “loss of liberty [through a

commitment] calls for a showing that the individual suffers from something

more serious than is demonstrated by idiosyncratic behavior.” Addington v.

Texas, 441 U.S. 418, 426-27, 99 S.Ct. 1804, 1810 (1979).

[13] D.S. argues that there was insufficient evidence that she was gravely disabled

because the only evidence bearing on that finding are the incident involving

police and her refusal to take medication. She claims that this “scant” evidence

is insufficient to establish that she: (1) is unable to provide for her essential

human needs; or (2) has a substantial impairment or obvious deterioration of

judgment that results in her inability to function independently. (Appellant’s

Br. 11).

[14] In response, the Hospital appears to concede that D.S. cannot be found gravely

disabled under the first prong of the definition and argues only that D.S. is

gravely disabled under the second prong of the definition. (See Appellee’s Br.

14 (arguing that “lack of evidence that [D.S.] was not able to provide for her

essential needs . . . is not fatal” and that “D.S. had an obvious deterioration that

affected her judgment and ability to function independently.”)). The Hospital

then argues that D.S.’s apparent “inability to . . . abide by the normal rules of

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 conduct[,]’” as shown by the Incident, was sufficient to prove that D.S. was

gravely disabled. (Appellee’s Br. 15 (quoting Tr. 10)). We disagree.

[15] While Dr. Mayer might have properly considered D.S.’s conduct during the

Incident to be contrary to “the normal rules of conduct,” (Tr. 10), the Hospital’s

burden of proof requires more than a showing that D.S. behaved abnormally or

idiosyncratically. Addington, 441 U.S. at 426-27. Rather, the Hospital needed

to have shown by clear and convincing evidence that D.S. lacked the judgment

and ability to function independently. B.J., 67 N.E.3d at 1039. Other than Dr.

Mayer’s diagnosis of psychosis caused by schizoaffective disorder, the Hospital

presented no evidence at all, much less clear and convincing evidence, that D.S.

could not function independently. The Incident was one isolated event, and

while D.S.’s actions during the Incident were unusual, there was no evidence

that her unusual conduct prevented her from functioning independently outside

the Hospital. See Addington, 441 U.S. at 427 (warning against committing

individuals based on “a few isolated instances of unusual conduct.”). D.S.

testified about her ability to work, pay bills, and live independently, and the

Hospital presented no contrary evidence regarding her ability to do so.

[16] Further, it is apparent from Dr. Mayer’s testimony that his opinion that D.S.

was gravely disabled was based solely on the Incident, her denial of her illness,

and her refusal to take prescribed medication. We have already noted above

that the Incident was not a sufficient basis for regular commitment, and in T.K.,

our supreme court affirmed that denial of illness and refusal to take medication

are likewise not a sufficient basis for commitment. See T.K., 27 N.E.3d at 276

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 (holding 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”) (internal quotation omitted)).

[17] Accordingly, because the only evidence the Hospital presented at trial did not

constitute clear and convincing evidence to support D.S.’s regular commitment,

we reverse the trial court’s decision and remand for the trial court to vacate the

regular commitment.

[18] Reversed and remanded.

Vaidik, C.J., and Barnes, Sr.J., concur.

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