In the Matter of the Commitment of E.F., E.F. v. Health and Hospital Corporation d/b/a Sandra Eskenazi Mental Health Center (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                                   Jan 22 2021, 9:28 am

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


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Valerie K. Boots                                         Bryan H. Babb
Deborah Markisohn                                        Sarah T. Parks
Marion County Public Defender Agency                     Bose McKinney & Evans, LLP
– Appellate Division                                     Indianapolis, Indiana
Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

In the Matter of the                                     January 22, 2021
Commitment of E.F.,                                      Court of Appeals Case No.
                                                         20A-MH-1103
E.F.
                                                         Appeal from the Marion Superior
Appellant-Respondent,                                    Court
        v.                                               The Honorable Kelly M. Scanlan,
                                                         Judge Pro Tempore
Health and Hospital Corporation                          Trial Court Cause No.
d/b/a Sandra Eskenazi Mental                             49D08-2005-MH-15959
Health Center,
Appellee-Petitioner.



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A-MH-1103 | January 22, 2021                 Page 1 of 14
[1]   E.F. appeals the Marion Superior Court’s order temporarily committing her to

      Eskenazi Mental Health Center (“Eskenazi”). E.F. argues that the trial court’s

      finding that she is gravely disabled is not supported by clear and convincing

      evidence.


[2]   Concluding that Eskenazi failed to prove that E.F. is gravely disabled, we

      reverse.


                                 Facts and Procedural History
[3]   E.F. is a thirty-three-year-old woman who has been diagnosed with

      schizophrenia and lives with her mother. E.F. has been hospitalized on several

      occasions over the past five years as a result of her mental illness. Most recently,

      she was hospitalized from February 26, 2020 to March 9, 2020, and from April

      2, 2020 to April 4, 2020. When she was discharged from those hospitalizations,

      she was prescribed oral medications, which she did not maintain.


[4]   On May 13, 2020, law enforcement officers transported E.F. to Eskenazi for an

      immediate detention following allegations that she was not taking her

      prescribed medication and had threatened to kill her mother. She also

      threatened to break the windows in her mother’s house. When she was

      admitted, E.F. “described a delusion that her mother was in some kind of . . .

      gang bang with the place [she] used to work, and a guy named Bill for ninety

      billion dollars.” Tr. p. 7.


[5]   The next day, Eskenazi filed in Marion Superior Court a “Report Following

      Emergency Detention.” Appellant’s App. p. 19. Dr. Halimah Oral (“Dr.
      Court of Appeals of Indiana | Memorandum Decision 20A-MH-1103 | January 22, 2021   Page 2 of 14
      Oral”), the treating physician, opined that E.F. suffers from schizophrenia and

      is gravely disabled. Eskenazi recommended that E.F. be detained in its facility

      pending a hearing. Dr. Oral believed that E.F. needed custody, care, or

      treatment in an appropriate facility and stated that E.F. refused to begin

      voluntary treatment. Id. at 24–25. Dr. Oral recommended a temporary

      commitment not to exceed ninety days.


[6]   The trial court held a commitment hearing on May 20, 2020. Eskenazi only

      presented evidence from Dr. Oral who testified that she had examined E.F. on

      numerous occasions during the emergency detention. Dr. Oral stated that E.F.

      suffers from schizophrenia, hallucinations, delusions, and impaired thinking

      and judgment. Dr. Oral expressed her opinion that E.F. would not take

      medication as prescribed if she were released from Eskenazi. Dr. Oral was

      concerned that if E.F. refused to take medications, her delusions would worsen

      and E.F. might become a danger to herself and/or others. Dr. Oral also testified

      that during the emergency detention, she has not observed that E.F. was a

      danger to herself or others, only that she possibly could be. Tr. pp. 9, 13.


[7]   E.F. testified and, on multiple occasions, denied suffering from schizophrenia.

      Tr. pp. 15, 20. Yet, she stated she would take her prescribed medications. While

      she did not deny prior hospitalizations, she did not agree that she was

      hospitalized as a result of her mental illness. E.F. was able to care for her basic

      needs during the emergency detention. And, Eskenazi did not present any

      evidence that she acted dangerously or aggressively toward hospital staff.



      Court of Appeals of Indiana | Memorandum Decision 20A-MH-1103 | January 22, 2021   Page 3 of 14
[8]   The trial court found that E.F. suffers from schizophrenia. The court also found

      that E.F.


              is currently gravely disabled in that she is demonstrating a
              substantial impairment and obvious deterioration in her
              judgment and reasoning and behavior that has resulted in her
              inability to function independently at this point in time. The
              court basis [sic] that on all of the testimony including Dr. Oral’s
              testimony - that of the delusions that [E.F.] reported and as well
              as her significant disorganized thought processes. . . . [H]er
              thoughts are not logical and goal directed, per Dr. Oral and her
              reasoning is significantly impaired which prevents her from
              reaching logical conclusions about what is going on around or
              what she should do which would certainly put her at risk for
              harm in the community. Furthermore, [E.F.] has . . .
              demonstrated no insight into her mental illness. She denies . . .
              having schizophrenia and it sounds as though . . . that she is not
              in agreement with taking medications once she is released from
              the hospital. . . . I will point out that the court is as well
              concerned with the multiple admissions since the end of
              February so [E.F.] has established a pattern of not following
              through with what has been prescribed and return to the hospital
              and she is a high risk of returning again if not on commitment.


      Tr. pp. 21–22. For these reasons, the trial court granted Eskenazi’s request to

      temporarily commit E.F. until August 18, 2020, unless discharged prior to that

      date.


[9]   E.F. now appeals. Additional facts are provided below.




      Court of Appeals of Indiana | Memorandum Decision 20A-MH-1103 | January 22, 2021   Page 4 of 14
                                      Discussion and Decision
[10]   E.F. contends that there was insufficient evidence to support her involuntary

       regular commitment because Eskenazi did not prove by clear and convincing

       evidence that she is gravely disabled. First, we observe that E.F.’s appeal is

       arguably moot because ninety days have elapsed since the trial court issued its

       order and she has likely been released from her involuntary commitment.

       “When a court is unable to render effective relief to a party, the case is deemed

       moot and usually dismissed.” In re Commitment of J.M., 62 N.E.3d 1208, 1210

       (Ind. Ct. App. 2016) (quoting In re J.B., 766 N.E.2d 795, 798 (Ind. Ct. App.

       2002)). However, “Indiana recognizes a public interest exception to the

       mootness doctrine, which may be invoked when the issue involves a question of

       great public importance which is likely to recur.” T.W. v. St. Vincent Hosp. &

       Health Care Ctr., Inc., 121 N.E.3d 1039, 1042 (Ind. 2019) (quoting Matter of Tina

       T., 579 N.E.2d 48, 54 (Ind. 1991)). “[A]n involuntary commitment is of great

       public interest and involves issues which are likely to recur, so we generally

       choose to address the merits of such appeals, despite the mootness of the case.”

       B.D. v. Ind. Univ. Health Bloomington Hosp., 121 N.E.3d 1044, 1048 (Ind. Ct.

       App. 2019).


[11]   “’[T]he purpose of civil commitment proceedings is dual: to protect the public

       and to ensure the rights of the person whose liberty is at stake.’” T.K. v. Dep’t of

       Veterans Affs., 27 N.E.3d 271, 273 (Ind. 2015) (quoting In re Commitment of

       Roberts, 723 N.E.2d 474, 476 (Ind. Ct. App. 2000)). “The liberty interest at stake

       in a civil commitment proceeding goes beyond a loss of one’s physical freedom,

       Court of Appeals of Indiana | Memorandum Decision 20A-MH-1103 | January 22, 2021   Page 5 of 14
       and given the serious stigma and adverse social consequences that accompany

       such physical confinement, a proceeding for an involuntary civil commitment is

       subject to due process requirements.” Id.


[12]   To satisfy due process, the facts justifying an involuntary commitment must be

       proved by clear and convincing evidence. In re Commitment of G.M., 743 N.E.2d

       1148, 1151 (Ind. Ct. App. 2001). Clear and convincing evidence is defined as an

       intermediate standard of proof greater than a preponderance of the evidence

       and less than proof beyond a reasonable doubt. T.D. v. Eskenazi Midtown Cmty.

       Mental Health Ctr., 40 N.E.3d 507, 510 (Ind. Ct. App. 2015). In order to be clear

       and convincing, the existence of a fact must be highly probable. Id. When we

       review the sufficiency of the evidence supporting an involuntary commitment,

       we 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.” T.K., 27 N.E.3d at 273 (citation omitted).


[13]   To obtain an involuntary commitment, the petitioner is “required to 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.” Ind. Code § 12-26-2-5(e). Here, the trial court found

       that E.F. is mentally ill and gravely disabled. E.F. does not dispute that she is

       mentally ill. Her sole challenge to the sufficiency of the evidence revolves

       around the trial court’s finding that she is gravely disabled.



       Court of Appeals of Indiana | Memorandum Decision 20A-MH-1103 | January 22, 2021   Page 6 of 14
[14]   Gravely disabled is defined 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.

       Ind. Code § 12-7-2-96. Because this definition is written in the disjunctive, it is

       not necessary to prove both prongs to establish grave disability. W.S. v. Eskenazi

       Health, Midtown Cmty. Mental Health, 23 N.E.3d 29, 34 (Ind. Ct. App. 2014),

       trans. denied. In this case, the trial court concluded that E.F. was gravely

       disabled as defined by Section 12-7-2-96(2).


[15]   E.F. lives with her mother. She has physically harmed her mother in the past.

       On May 13, 2020, the date E.F. was admitted to Eskenazi, she threatened to

       kill her mother and destroy the windows of their home. E.F.’s medical records

       from past hospitalizations document E.F.’s delusions that her mother is trying

       to harm her. Tr. p. 7. But Eskenazi did not present any evidence that E.F. made

       additional threats towards her Mother during her emergency detention in this

       case. And, very importantly, Eskenazi never alleged that she was a danger to

       herself or others.


[16]   Dr. Oral reviewed E.F.’s medical records and treated her when she was

       admitted to Eskenazi. Dr. Oral testified that E.F’s “symptoms have been


       Court of Appeals of Indiana | Memorandum Decision 20A-MH-1103 | January 22, 2021   Page 7 of 14
       present for well over six months[.]” Id. E.F. suffers from delusions,

       hallucinations and “significant thought disorganization.” Id. Dr. Oral

       personally observed E.F. suffering from hallucinations and disorganized

       thoughts. E.F. was previously hospitalized with similar symptoms from

       February 26 to March 9, 2020 and from April 2 to April 4, 2020. E.F. also has a

       history of several temporary commitments within the last five years. Dr. Oral’s

       testimony focused on E.F.’s prior commitments and medical records. While

       relevant, E.F.’s prior medical history and past treatment of her mental illness is

       not clear and convincing evidence that would support the conclusion that E.F.

       was gravely disabled on the date of the commitment hearing.


[17]   Eskenazi proved that E.F. lacks insight into her mental illness. E.F. struggles to

       understand the importance of taking her medications as prescribed. Tr. p. 11.

       E.F. describes pills as “yucky,” and she has stated that she will give her

       medication to someone who needs it. Id. E.F. also does not believe that she

       suffers from schizophrenia. Tr. pp. 11, 15, 20. She also denied suffering from

       delusions. Tr. p. 17. E.F. was hospitalized as a result of her mental illness on

       three separate occasions in less than three months in 2020. Dr. Oral does not

       believe that E.F. will continue to take prescribed medication if she is discharged

       and she would likely be re-hospitalized “very soon.” Tr. p. 11.


[18]   However, E.F. correctly observes that her refusal to acknowledge her mental

       illness or to take recommended medication “standing alone, are insufficient to

       establish grave disability because they do not establish, by clear and convincing



       Court of Appeals of Indiana | Memorandum Decision 20A-MH-1103 | January 22, 2021   Page 8 of 14
       evidence, that such behavior ‘results in the individual’s inability to function

       independently.’” 1 T.K., 27 N.E.3d at 276 (quoting I.C. § 12-7-2-96(2)).


[19]   After examining E.F. and considering her medical history, Dr. Oral concluded

       that E.F. “has decompensated due to noncompliance with medication.” Tr. p.

       9. Dr. Oral opined that if E.F. continues to refuse medication, “her delusions

       will worsen” and she will “have conflicts with the people that she is living with

       and possibly other individuals as well.” Id. Ultimately, Dr. Oral concluded that

       E.F. is gravely disabled because


                [S]he has severe thought disorganization that prevents her from
                being based in reality and knowing what needs to be done or . . .
                having a real picture of what is going on around her. And I think
                that the delusions also contribute to that. Yesterday when I spoke
                to her, she was still jumping from topic to topic. . . . [H]er
                thoughts were not logical or goal directed. . . . [E.F.’s] reasoning
                is significantly impaired because she is not able to sort of follow it
                out through to its conclusion and she is also bothered by these
                delusions that prevent her from having a real picture of what is



       1
         In T.K., our supreme court disapproved of cases from this court applying a too-deferential standard of
       review, which affirmed civil commitment orders merely if a reasonable person could have drawn the
       conclusion that commitment was necessary, even if other reasonable conclusions were possible. 27 N.E.3d at
       274 (disapproving M.L. v. Meridian Servs., Inc., 956 N.E.2d 752 (Ind. Ct. App. 2011); S.T. v. Cmty. Hosp. N.,
       930 N.E.2d 684 (Ind. Ct. App. 2010); K.F. v. St. Vincent Hosp. & Health Care Ctr., 909 N.E.2d 1063 (Ind. Ct.
       App. 2009); J.S. v. Ctr. for Behavioral Health, 846 N.E.2d 1106 (Ind. Ct. App. 2006), trans. denied). The T.K.
       Court did not list every case from this court that contained the disapproved language.
       Cases T.K. did not include, but which contain the disapproved standard of review, are A.L. v. Wishard Health
       Services, 934 N.E.2d 755 (Ind. Ct. App. 2010), trans. denied, and In re Involuntary Commitment of A.M., 959
       N.E.2d 832, 835 (Ind. Ct. App. 2011). Eskenazi relies heavily on these cases in arguing that E.F.’s
       commitment was supported by sufficient evidence. However, both cases were decided before T.K. disapproved
       of the standard of review employed in A.L. and A.M.; therefore, Eskenazi’s citations to A.L. and A.M. do not
       persuasively support its argument. If an appellate case applied an incorrect and too-deferential standard of
       review, it is difficult if not impossible to assess whether that case’s ultimate determination of the sufficiency
       of the evidence is still valid. Both A.L. and A.M. were implicitly, if not expressly, disapproved of by T.K.

       Court of Appeals of Indiana | Memorandum Decision 20A-MH-1103 | January 22, 2021                     Page 9 of 14
               going on. And because of that she cannot reach logical
               conclusions about what is going on around her or what she needs
               to do. So I think that constitutes an impairment in her reasoning.


       Tr. pp. 10–11. Dr. Oral believed that E.F. was capable of performing activities

       of daily living, i.e. showering and eating. But the doctor was concerned that

       E.F.’s mental illness could cause her harm because she was likely to become

       distracted by her delusions, which presents safety concerns. Dr. Oral was also

       concerned that E.F. was likely to be involved in conflicts with strangers.


[20]   But E.F.’s hypothetical mental state in the future cannot support a finding of

       grave disability. See In the Matter of the Civil Commitment of B.J., 67 N.E.3d 1034,

       1040 (Ind. Ct. App. 2016) (noting that Indiana Code section 12-7-2-96 requires

       the trier of fact to assess the individual’s state at the time of the hearing prior to

       ordering a commitment). In T.K., our supreme court concluded that threats to

       other individuals combined with a failure to medicate and denial of mental

       illness is not clear and convincing evidence that an individual is gravely

       disabled. 27 N.E.3d at 277.


[21]   In B.J., the treating physician believed that B.J. was gravely disabled because

       his delusions made B.J. believe that he was being watched, causing him to

       anger easily. 67 N.E.3d at 1037. The doctor also believed that if B.J. did not

       continue with his treatment plan there was a risk that he would harm himself or

       others because his symptoms would escalate. Id. Like E.F., B.J. lived with his

       parents and relied on them for support, and he was able to meet his basic

       human needs. Id. The trial court concluded that B.J. was gravely disabled

       Court of Appeals of Indiana | Memorandum Decision 20A-MH-1103 | January 22, 2021   Page 10 of 14
       because he both lacked insight into his mental illness and behavior and suffered

       from delusions. Our court reversed the commitment order after concluding that

       the evidence only supported the conclusion that B.J. might become a danger to

       himself or others in the future. Id. at 1040.


               The only other evidence supporting B.J.’s commitment was Dr.
               Salama’s testimony and reports that B.J. had threatened other
               individuals, Dr. Salama’s testimony that B.J. had missed two
               treatment appointments, and B.J.’s behavior that led the trial
               court to determine that he was in denial of his mental illness.
               However, the supreme court held in T.K. that threats such as
               those made by T.K. and B.J., failure to medicate, and a denial of
               mental illness are not sufficient to prove that an individual is
               gravely disabled. Accordingly, we must conclude that there also
               was insufficient evidence here for the trial court to conclude that
               B.J. was gravely disabled. We are not holding that evidence of
               threats may never be sufficient evidence of a grave disability, but
               there was no evidence that B.J. destroyed property or put himself
               or others in actual danger after he began his treatment. Those
               were two factors that the T.K. Court found significant in
               determining whether T.K. was gravely disabled. See T.K., 27
               N.E.3d at 277.


       Id.


[22]   Our court addressed similar circumstances in P.B. v. Evansville State Hospital, 90

       N.E.3d 1199 (Ind. Ct. App. 2017). In that case, P.B. was hospitalized because

       she suffered from paranoid delusions and believed that individuals were

       breaking into her apartment and threatening her harm. Id. at 1200–01. She had

       frequent conflicts with neighbors and called the police department multiple

       times per day. Id. She was not compliant with therapy or recommended

       Court of Appeals of Indiana | Memorandum Decision 20A-MH-1103 | January 22, 2021   Page 11 of 14
       medication. Id. at 1201. While hospitalized, P.B. engaged in unpleasant and

       aggressive behavior and was resistant to being medicated. Id. at 1204. However,

       there was no evidence that P.B.’s delusions caused her to destroy property or

       cause harm to herself or any other person. Id. And there was no evidence that

       she was unable to feed, shelter, or cloth herself. Id. We concluded that the

       hospital did not present clear and convincing evidence of grave disability after

       observing that


               Dr. Vatel’s recommendation in favor of P.B.’s continued
               involuntary commitment was based on her unpleasantness and
               inability to get along with other people, her paranoid delusions,
               and her failure to fully cooperate with treatment. None of this is
               untrue, and there is no doubt that P.B. suffers from severe mental
               illness. However, the statutory definition of “gravely disabled” is
               very specific, and it has not been met here. There is a lack of
               clear and convincing evidence that P.B. was unable to function
               independently or that she was in danger of not providing for her
               own needs.


       Id. at 1204–05.


[23]   Here, Dr. Oral testified that E.F. was able to take care of her basic needs.

       Eskenazi did not present any evidence that E.F. would be unable to return to

       her mother’s home when released from her hospitalization. E.F.’s testimony

       that she has a job was not disputed. Dr. Oral testified that E.F. suffered from

       hallucinations and delusions while hospitalized, but there was no evidence that

       E.F. threatened harm to herself or others or engaged in any harmful behavior to




       Court of Appeals of Indiana | Memorandum Decision 20A-MH-1103 | January 22, 2021   Page 12 of 14
       any person or property during her hospitalization. 2 E.F. did not refuse

       medication while hospitalized. Tr. p. 14. Dr. Oral’s concerns that E.F. would

       likely suffer harm if she does not continue to take her medication were

       speculative. And although Dr. Oral believed that E.F. suffers from impairment

       in her reasoning, she did not testify how that impairment rendered E.F. unable

       to function independently on the date of the commitment hearing. Tr. p. 10.

       Importantly, Dr. Oral testified she had not observed that E.F. was a danger to

       herself or others, only that she possibly could be. Tr. pp. 9, 13.


[24]   Eskenazi proved that E.F. suffers from schizophrenia affecting her ability to

       function independently. But Eskenazi was required to prove by clear and

       convincing evidence that E.F. was gravely disabled, i.e. in danger of coming to

       harm because she is unable to function independently. See I.C. § 12-7-2-96(2).

       Dr. Oral’s testimony is this case was simply too vague and speculative to

       support the trial court’s finding of grave disability. For these reasons, we

       conclude that the trial court’s temporary commitment order was not supported

       by clear and convincing evidence.




       2
         Dr. Oral testified that E.F. had physical altercations with her mother that led to prior hospitalizations. The
       incident that led to E.F.’s emergency detention in this case was an oral threat to kill her mother and destroy
       the windows of their home. E.F.’s mother dealt with the threats appropriately and called the police, who
       transported E.F. to Eskenazi. There is no evidence in the record that E.F. made any additional threats during
       her hospitalization.

       Court of Appeals of Indiana | Memorandum Decision 20A-MH-1103 | January 22, 2021                  Page 13 of 14
                                                 Conclusion

[25]   Eskenazi failed to establish, by clear and convincing evidence, that E.F. was

       gravely disabled, as defined by statute. Thus, the trial court’s order for E.F.’s

       involuntary commitment was not supported by sufficient evidence and must be

       reversed.


[26]   Reversed.


       Altice, J., and Weissmann, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A-MH-1103 | January 22, 2021   Page 14 of 14