In the Matter of the Civil Commitment of: D.H. v. Eskenazi Health/Midtown Mental Health CMHC (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Sep 19 2018, 9:01 am

court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Victoria L. Bailey Bryan H. Babb
Valerie K. Boots Sarah C. Thompson
Marion County Public Defender Agency Bose McKinney & Evans LLP
Indianapolis, Indiana Indianapolis, Indiana
Anna Kirkman
Eskenazi Health
Legal Services Department
Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of the Civil September 19, 2018
Commitment of: Court of Appeals Case No.
18A-MH-635
D.H.,
Appeal from the
Appellant-Respondent, Marion Superior Court
v. The Honorable
Steven R. Eichholtz, Judge
The Honorable
Eskenazi Health/Midtown Kelly M. Scanlan, Commissioner
Mental Health CMHC,
Trial Court Cause No.
Appellee-Petitioner. 49D08-1712-MH-44331

Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-MH-635 | September 19, 2018 Page 1 of 7
[1] D.H. appeals the trial court’s order extending her temporary involuntary

commitment to a regular involuntary commitment. D.H. raises the following

restated issue for our review: whether the order should be remanded because it

is defective.

[2] We affirm.

Facts and Procedural History
[3] D.H. suffers from schizophrenia and diabetes, and prior to 2009, she was on a

regular commitment for “a couple of years” or “a few years.” Tr. Vol. II at 9.

Psychiatrist Dr. Hector Diez (“Dr. Diez”), who works for Eskenazi Health

Midtown Community Mental Health (“Midtown”), began working with D.H.

in March of 2017, around one year before the hearing in this case. Id. at 5-6.

D.H. was not on an involuntary commitment at that time, but had “an

established diagnosis and treatment for several years with Midtown.” Id. at 9.

She was taking daily oral doses of Clozaril, a strong anti-psychotic medication,

used to treat refractory patients with schizophrenia, who have not responded to

anti-psychotics. Id. at 10-11.

[4] At some point during the fall of 2017, D.H. decompensated. Id. at 11. In

November 2017, she stopped going to her appointments at Midtown and

stopped taking her medication. Id. at 9. She stopped eating and drinking, lost

her job, and became homeless. Id. at 11-12. Dr. Diez received reports that

D.H. was not taking care of herself, and he initiated an emergency detention.

Id. at 8. When she was hospitalized on November 30, 2017, D.H. was talking

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 to herself and was “internally preoccupied.” Id. at 12. She was refusing

everything, including medications and was at risk of dying from arrhythmia as a

result of not eating or drinking. Id. at 12, 14.

[5] A hearing was held on December 6, 2017, and D.H. was ordered to be on a

temporary commitment and began receiving treatment. Appellant’s App. Vol. II

at 60-61. D.H. began taking Clozaril again and improved, getting “back on

track.” Tr. Vol. II at 11-12, 13. In February 2018, Dr. Diez wrote a Physician’s

Statement expressing his opinion that D.H. should be under a regular

commitment to “achieve improvement in [D.H.’s] condition.” Appellant’s App.

Vol. II at 66-68. Eskenazi Health/Midtown Mental Health CMHC

(“Eskenazi”) formally requested an extension of the temporary commitment to

a regular commitment and attached Dr. Diez’s statement. Id. at 64-68.

[6] On March 1, 2018, a hearing was held on Eskenazi’s request for the regular

commitment of D.H. Commissioner Kelly M. Scanlan (“Commissioner

Scanlan”) presided over the hearing. Id. at 11-12. Dr. Diez testified that he

believed that D.H. is gravely disabled due to her impaired reasoning and

judgment that caused her not to understand the risks of stopping her treatment.

Tr. Vol. II at 16, 18. Dr. Diez stated that D.H. does not have “the insight [into

her illness] to understand the implications of not being in treatment for her

schizophrenia or diabetes.” Id. at 16. Dr. Diez further noted that D.H. is

opposed to taking treatment and that she had stated multiple times that she

would only continue treatment if she is under commitment. Id. at 10, 12-13, 18.

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[7] After considering the evidence, Commissioner Scanlan stated:

[B]ased on all of the evidence, the Court finds that by clear and
convincing evidence the respondent does have a mental illness,
specifically schizophrenia. And that she is gravely disabled in
that she demonstrated a substantial impairment and obvious
deterioration in her judgment and behavior that negatively
affected her ability to function independently. The Court
therefore grants the order of Regular commitment and orders the
attending physical [sic] to submit a periodic report no later than
March 1st, 2018 and orders that upon obtaining outpatient status,
or while on outpatient status, the respondent shall take all
medications as prescribed, attend all clinic sessions as scheduled
and maintain her address and phone number with the court and
the facility.

Id. at 28-29. On the same date, Commissioner Scanlan signed the “Order on

Extension of a Temporary Commitment to a Regular Commitment,” on a

signature line titled, “Judge, Steven R. Eichholtz, Marion County Superior

Court” (“Judge Eichholtz”). Appellant’s App. Vol. II at 6-7. Nothing in the

record indicated that Commissioner Scanlan was appointed special judge or

judge pro tempore in the present matter. The entries in the CCS for March 1,

2018 reflected that the hearing was held, with Commissioner Scanlan presiding,

and that: “Court finds by clear and convincing evidence that the Respondent,

[D.H.], suffers from a mental illness that is; schizophrenia and is gravely

disabled. REGULAR Commitment is GRANTED to Eskenazi

Health/Midtown Community Mental Health. Standard outpatient

conditions.” Id. at 11-12. There was also an entry that the “Order Granting

Extension of Mental Health Commitment” was signed on March 1, 2018, with

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 the Judicial Officer listed as Commissioner Scanlan. Id. at 12. There were no

further entries that reflected that Judge Eichholtz signed the order, and his

signature does not appear anywhere on the order. D.H. now appeals.

Discussion and Decision
[8] D.H. argues that the court’s order for regular commitment is defective because

it lacks a judge’s signature and only contains the signature of Commissioner

Scanlan. A magistrate does not have the power of judicial mandate and may

not enter a final appealable order unless sitting as a judge pro tempore or a

special judge, or in certain other exceptions. Ind. Code § 33-23-5-8.1 Those

exceptions are criminal matters and other matters not relevant to the present

appeal. Ind. Code §§ 33-23-5-5; 33-23-5-9. Otherwise, the magistrate shall

report findings, but “[t]he court shall enter the order.” Ind. Code § 33-23-5-9(a).

This case involves an involuntary commitment and not a criminal matter or any

of the other exceptions. Therefore, because the order for regular commitment

lacks a judge’s signature, we agree with D.H. that it is defective. See In re the

Involuntary Commitment of A.M., 959 N.E.2d 832, 834 n.1 (Ind. Ct. App. 2011)

(finding an order of regular commitment to be defective where it was signed

only by a magistrate and not by a judge).

1
Indiana Code section 33-23-5-8 was amended, effective July 1, 2018. This amendment changed the
wording of the statute to: “Except as provided under sections 5(14) and 9(b) [Indiana Code section 33-23-5-
5(14) and Indiana Code section 33-23-5-9(b)] of this chapter, a magistrate does not have the power of judicial
mandate.”

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[9] However, defect notwithstanding, we conclude that D.H. has waived any

challenge to the validity of the order for regular commitment because she failed

to raise an objection to the order at any point prior to appeal. “Our [S]upreme

[C]ourt has long held that defects in the authority of a court officer, as opposed

to the jurisdiction of the trial court itself, to enter a final order will be waived if

not raised through timely objection.” City of Indianapolis v. Hicks, 932 N.E.2d

227, 231 (Ind. Ct. App. 2010) (citing Floyd v. State, 650 N.E.2d 28, 33 (Ind.

1994) (holding “the failure of a defendant to object at the original trial to the

jurisdiction of a court officer to enter a final appealable order operates as waiver

of the issue both on appeal . . . and on collateral attack . . . .”)), trans. denied.

“[A]ny objection to the authority of an adjudicative officer must be raised at the

first instance the irregularity occurs, or at least within such time as the tribunal

is able to remedy the defect.” Id. (citing Sullivan v. City of Evansville, 728 N.E.2d

182, 188-90 (Ind. Ct. App. 2000)). In Hicks, this court held that a party waived

a claim to error for failing to timely object to an order on a motion to correct

error signed by a magistrate but not a judge. Id. Here, D.H. likewise failed to

timely object to the order for regular commitment that was signed by

Commissioner Scanlan only. We, therefore, conclude that she has waived the

issue for our review.2

2
D.H. argues that she had no realistic opportunity to address the defect in the order for regular commitment
and could not be presumed to have known that the trial judge would fail to sign the order and give his
judicial approval to the findings of Commissioner Scanlan. However, Commissioner Scanlan signed the
order for regular commitment and the order was entered in the CCS on March 1, 2018. Appellant’s App. Vol.
II at 12. D.H. filed her notice of appeal on March 26, 2018. Id. Therefore, D.H. had at least twenty-five

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[10] Affirmed.

Vaidik, C.J., and Riley, J., concur.

days between the date the order for regular commitment was signed and the date she filed her notice of
appeal where she could have filed an objection to the fact that the order of regular commitment lacked a
judge’s signature. We, therefore, reject D.H.’s contention that she did not have a realistic opportunity to
object to the defect in the order of regular commitment.

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