In the Matter of The Civil Commitment of: T.K. v. Eskenazi Health/Midtown CMHC (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jan 25 2019, 7:17 am

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

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Valerie K. Boots Bryan H. Babb
Marion County Public Defender Agency Sarah T. Parks
Indianapolis, Indiana Indianapolis, Indiana

IN THE
COURT OF APPEALS OF INDIANA

In the Matter of The Civil January 25, 2019
Commitment of: Court of Appeals Case No.
18A-MH-757
T.K.,
Appeal from the Marion Superior
Appellant-Respondent, Court, Probate Division
v. The Honorable Steven R.
Eichholtz, Judge
Eskenazi Health/Midtown The Honorable Kelly M. Scanlan,
CMHC, Commissioner

Appellee-Petitioner Trial Court Cause No.
49D08-1803-MH-8810

Altice, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-MH-757 | January 25, 2019 Page 1 of 15
 Case Summary

[1] T.K. appeals the trial court’s order for involuntary regular commitment, which

was based on the trial court’s determination that T.K. was mentally ill and

gravely disabled. T.K. presents a number of issues of which we address only

two: 1) whether the commitment order is defective because it contained only

the signature of a commissioner and 2) whether sufficient evidence supported

his involuntary civil commitment.

[2] We reverse.

Facts & Procedural History

[3] At the age of fifty-one, T.K. has a long history of schizophrenia, which he does

not dispute on appeal. He has prior hospitalizations, including involuntary

commitments, due to his mental health. T.K. had an involuntary temporary

commitment in 1999, an involuntary regular commitment in 2002, and an

involuntary temporary commitment in 2011. An involuntary regular

commitment in 2013 was reversed by our Supreme Court for insufficient

evidence that T.K. was either dangerous or gravely disabled. Commitment of

T.K. v. Dep’t of Veterans Affairs, 27 N.E.3d 271 (Ind. 2015).

[4] On Friday, March 2, 2018, T.K. was taken to Eskenazi Hospital (the Hospital)

on an immediate detention. The following Monday, the Hospital completed an

application for emergency detention of mentally ill person, alleging that T.K.

was extremely paranoid and exhibiting threatening behaviors. The Hospital

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 filed a report following emergency detention with the trial court on March 7,

2018, along with a physician statement by psychiatrist Aimee Patel. Dr. Patel

opined that due to his psychiatric disorders, T.K. was both dangerous to others

and gravely disabled. The Hospital sought an involuntary regular commitment

of T.K.

[5] Commissioner Kelly M. Scanlan presided over the commitment hearing held

on March 9, 2018, and permitted T.K. to represent himself. The Hospital

presented the testimony of two witnesses, Dr. Patel and Shelley Ulsenheimer,

an FBI agent. The trial court also took judicial notice of the prior

commitments. In closing, T.K. noted that he was employed, maintained a

clean house and two vehicles, and cared for his daily needs.

[6] Dr. Patel’s testimony was limited because, although she had been T.K.’s

treating physician for nearly a week, her interactions with him were “very

brief.” Transcript at 17. Dr. Patel explained that after a few moments, T.K.

generally began yelling and speaking over her and other doctors. Dr. Patel

testified that on one occasion she spoke with T.K. as he walked the unit. He

“became upset midway through and began cursing, referenced a baseball bat

and told [her] to leave him alone.” Id. at 18.

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[7] Dr. Patel diagnosed T.K. with schizophrenia, as well as possibly paranoid

personality disorder and narcissistic personality disorder. 1 As a result of his

mental illness, Dr. Patel opined that T.K. was gravely disabled due to

“substantial impairment in judgment and decision making” resulting in

“difficulty residing independently in the community.” Id. at 24, 20. In this

regard, Dr. Patel noted generally that T.K.’s “delusions and paranoia have led

to him having repeated hospitalizations and contacts with the law enforcement

system.” Id. at 24. Dr. Patel did not elaborate on her assertion regarding T.K.’s

contacts with law enforcement. Presumably, she was referring to his many calls

to the FBI and local law enforcement. With respect to the claim of repeated

hospitalizations, the record reveals no voluntary or involuntary commitments –

other than the one at hand – after his regular commitment in 2013, which was

reversed by the Supreme Court. Though opining that T.K. had difficulty

residing independently, Dr. Patel acknowledged that T.K. had his own

residence, had income, and took care of his daily needs (eating, personal

hygiene, and sleeping).

[8] Regarding an alternative basis for commitment, Dr. Patel testified that she

believed T.K. was dangerous to others because he had made threats toward her

and others on the treatment team. Dr. Patel noted that T.K. was agitated on

1
T.K. has delusions, paranoia, and grandiose beliefs. In particular, he believes that law enforcement,
medical personnel, and the government are out to get him. He believes that millions of dollars in patents
have been stolen from him by the government and that he is being watched, stalked, and harassed by local
law enforcement and EMS.

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 the first day of his emergency detention, requiring medication and restraints,

and that since that time he had made various verbal threats. Medical students

were kept away from T.K. out of concern for their safety. T.K. refused to take

his oral medication and lacked insight into his mental illness.

[9] The Hospital then called Agent Ulsenheimer as a witness for the purpose of

introducing recordings of nineteen voicemails left for a public affairs specialist

with a local FBI office. These voicemail recordings, which were admitted over

T.K.’s objection, each began with the caller identifying himself as T.K. The

messages were left between February 25 and March 1, 2018, some in the middle

of the night. They reveal T.K.’s delusional and paranoid thinking. In the

messages, T.K. indicates that he has been stalked by local law enforcement for

the last twenty-five years and that his inventions have been stolen. He

expresses frustration that the FBI is not helping him with the situation and

indicates that he is going to make all of this public, noting that he has

accumulated substantial evidence. Notably, the messages contain no threats of

violence by T.K.

[10] At the conclusion of the hearing, Commissioner Scanlan found by clear and

convincing evidence that T.K. suffered from mental illness and was gravely

disabled. Regarding grave disability, Commissioner Scanlan stated, “he is

demonstrating a substantial impairment and an obvious deterioration in his

judgment reasoning and behavior that has resulted in his inability to function

independently.” Id. at 59. Accordingly, Commissioner Scanlan entered an

Court of Appeals of Indiana | Memorandum Decision 18A-MH-757 | January 25, 2019 Page 5 of 15
 order of regular commitment based on T.K. being mentally ill and gravely

disabled.2 T.K. now appeals.

Discussion & Decision

Defective Order

[11] We initially address T.K.’s claim that the order for temporary commitment is

defective because it contains only the signature of Commissioner Scanlan and

lacked the required judge’s signature. Indeed, Indiana law expressly barred

Commissioner Scanlan from entering a final appealable order in this case. See

Ind. Code § 33-23-5-8;3 Capehart v. Capehart, 771 N.E.2d 657, 662 (Ind. Ct. App.

2002) (“magistrates and commissioners have identical authority”).

[12] Regardless, T.K. has waived appellate review of this issue because he did not

object to the commitment order at any point prior to this appeal. 4 “‘[I]t has

been the long-standing policy of [the Indiana Supreme Court] to view the

authority of the officer appointed to try the case not as affecting the jurisdiction

of the court’ – and so ‘the failure of a party to object at trial to the authority of a

2
Although asserted by the Hospital as a ground for commitment, Commissioner Scanlan did not find that
T.K. was a danger to himself or others. Commissioner Scanlan acknowledged evidence of threats but
observed that there is no evidence that “T.K. had actually tried to harm others.” Id.
3
This statute has since been amended, effective July 1, 2018. The amendment removed the limitation
regarding magistrates (and, thus, commissioners) entering a final appealable order. I.C. § 33-23-5-9(a),
however, still requires that the court “enter the final order” in instances such as this.
4
The order was signed by Commissioner Scanlan on March 9, 2018, and T.K. filed his notice of appeal on
April 9, 2018. T.K. had ample time between these dates where he could have filed an objection to the fact
that the commitment order lacked a judge’s signature.

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 court officer to enter a final appealable order waives the issue for appeal.’” In re

Adoption of I.B., 32 N.E.3d 1164, 1173 n.6 (Ind. 2015) (quoting Floyd v. State,

650 N.E.2d 28, 32 (Ind. 1994)); see also City of Indianapolis v. Hicks, 932 N.E.2d

227, 231 (Ind. Ct. App. 2010) (“defects in the authority of a court officer, as

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

waived if not raised through a timely objection”), 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.” Hicks, 932 N.E.2d at 231.

Sufficiency of the Evidence

[13] In an involuntary regular commitment case, the petitioner is required to prove

by clear and convincing evidence: “(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) (emphasis supplied); see

also T.K., 27 N.E.3d at 273. The trial court’s order of commitment in this case

declared that T.K. was mentally ill and gravely disabled. On appeal, T.K. does

not challenge the finding regarding his mental illness, but he contends that the

“gravely disabled” element was not proven by clear and convincing evidence.

[14] Our Supreme Court has observed that civil commitment proceedings serve both

to protect the public and to ensure the rights of the person whose liberty is at

stake. Id. To satisfy the requirements of due process in commitment

proceedings, the facts justifying the commitment must be shown by clear and

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 convincing evidence. Id. This heightened standard “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.” Id. (quoting Commitment of J.B. v. Midtown

Mental Health Ctr., 581 N.E.2d 448, 450 (Ind. Ct. App. 1991), trans. denied).

[15] In reviewing the sufficiency of the evidence supporting an involuntary civil

commitment, we consider the probative evidence and reasonable inferences

supporting the order, without reweighing the evidence or assessing witness

credibility. Id. We will affirm if a reasonable trier of fact could find the

necessary elements proven by clear and convincing evidence. Id. “Clear and

convincing evidence requires the existence of a fact to be highly probable.”

Civil Commitment of J.B. v. Cmty. Hosp. N., 88 N.E.3d 792, 795 (Ind. Ct. App

2017). “There is no constitutional basis for confining a mentally ill person who

is not dangerous and can live safely in freedom.” J.B., 581 N.E.2d at 451.

[16] The issue presented in this case is whether, considering the probative evidence

and reasonable inferences favorable to the judgment, a reasonable trier of fact

could have found by clear and convincing evidence that T.K. was gravely

disabled.5 “Gravely disabled” is defined as:

5
Dangerousness is not at issue because the trial court did not make such a finding to support the
commitment order.

Court of Appeals of Indiana | Memorandum Decision 18A-MH-757 | January 25, 2019 Page 8 of 15
 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. This case involves subsection 2, as there is no dispute

that T.K. was able to provide for his daily needs, along with being employed

and maintaining a home.

[17] As set forth above, T.K.’s 2013 involuntary regular commitment was

overturned by our Supreme Court based on insufficient evidence. The

Department of Veterans Affairs, the petitioner in that case, presented the

testimony of Dr. Joseph Bishara. Dr. Bishara testified as to T.K.’s mental

illness and indicated that T.K. was paranoid over a wide range of institutions

persecuting and targeting him. T.K., 27 N.E.3d at 274. T.K. had been brought

in on an emergency detention because he had been putting flyers on people’s

windshields regarding another individual’s criminal record and had gone into a

clinic and screamed at staff. Dr. Bishara testified that he had observed

aggressive, disruptive behavior toward another physician and that other patients

were fearful of T.K. Additionally, T.K.’s son had contacted Dr. Bishara and

expressed concern over his father’s erratic and aggressive behavior.

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[18] In reversing T.K.’s 2013 commitment, the Court discussed the element of

“grave disability” as follows:

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. 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. 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.”

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
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 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 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.

Id. at 276-77 (citations omitted); see also Commitment of M.E. v. Dep’t of Veterans

Affairs, 64 N.E.3d 855, 863 (Ind. Ct. App. 2016) (“M.E.’s aggression, paranoia,

and confrontational attitude do not establish an inability to function

independently under the law.”), disapproved on other grounds by A.A. v. Eskenazi

Health/Midtown CMHC, 97 N.E.3d 606, 611 (Ind. 2018).

[19] In this case, Dr. Patel’s opinion that T.K. was gravely disabled was based on

her general observation that T.K.’s “delusions and paranoia have led to him

having repeated hospitalizations and contacts with the law enforcement

system.” Transcript at 24. Dr. Patel did not further elaborate on this statement,

and there was no evidence presented of hospitalizations since the 2013

commitment that was reversed on appeal or details regarding T.K.’s contacts

with law enforcement.

[20] Like the previous case, there was evidence presented that T.K. had been loud

and verbally aggressive during the emergency commitment. Further, in the five

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 days leading up to his most-recent commitment, T.K. left nineteen voicemail

messages for an FBI official, expressing his delusional and paranoid thoughts

and his dissatisfaction with the FBI’s failure to assist him. These voicemail

messages clearly evidence T.K.’s mental illness and paranoid delusions

regarding the government. But I.C. § 12-7-2-96(2) requires more than paranoid

judgment, reasoning, or behavior to establish grave disability. The Hospital

was required to establish by clear and convincing evidence T.K.’s inability to

function independently as a result. The Hospital wholly failed in this regard.

The messages left by T.K. were no doubt annoying to the FBI public affairs

specialist receiving them, but at no point did T.K. threaten violence. Rather, he

threatened to publicize the government’s behavior and the FBI’s lack of action.

While misguided, the messages do not evidence an inability to function

independently, nor do T.K.’s general discontent and rudeness during this recent

involuntary commitment.

[21] We are compelled to conclude that the evidence presented by the Hospital does

not establish by clear and convincing evidence that T.K.’s mental impairment

or deterioration of judgment, reasoning, or behavior had resulted in his inability

to function independently. T.K.’s delusions and paranoia are obvious and long-

standing, and his mental illness has led to inappropriate behavior and repeated

calls to the FBI. T.K.’s behavior continues to be abrasive, boisterous, irritating,

and idiosyncratic, but there is no support in the evidence for a commitment

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 based on grave disability. Thus, we conclude that T.K.’s civil commitment was

improper.6

[22] Judgment reversed.

Brown, J., concurs.

Tavitas, J., dissents with opinion.

6
Because we reverse on insufficient evidence grounds, we do not reach T.K.’s three remaining evidentiary
and due process claims.

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 IN THE
COURT OF APPEALS OF INDIANA

In the Matter of The Civil Court of Appeals Case No.
Commitment of: 18A-MH-757

T.K.,
Appellant-Respondent,

v.

Eskenazi Health/Midtown
CMHC,
Appellee-Petitioner

Tavitas, Judge, dissenting.

[23] I respectfully dissent. I would concur with the majority’s result if the trial

court’s order was a final appealable order, but I part with the majority on the

same grounds stated in my dissenting opinion in In Re Civil Commitment of T.W.,

No. 18A-MH-1148, slip op. at pp. 13-20 (Ind. Ct. App. Nov. 21, 2018). In my

opinion, the commitment order is defective. By issuing a blanket order, which

summarily approved all recommendations of the court commissioner without

specifically reviewing the case(s) and approving the commissioner’s

recommendations, the trial court delegated its duty to render final decisions to

the commissioner without statutory authority.

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[24] I disagree with the majority’s conclusion that this issue is waived. Finding

waiver penalizes the respondent for failing to “timely” urge the trial court judge

to perform his statutory duty. A litigant cannot waive a trial court judge’s

exercise of statutory responsibility. Such abdication by trial court judges should

not be litigants’ and appellate courts’ problem to resolve.

[25] Accordingly, I would remand to the trial court judge for review and approval of

the commissioner’s recommended order for temporary commitment.

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