Commitment of M.E. v. V.A. Medical Center

BAILEY, Judge,

concurring in result.

I fully concur in the result reached here. However, I write separately because I disagree with the analytical framework of allowing the appellant to argue “fundamental error” in this context so as to avoid procedural default. Failure to object waives an issue for appeal; the fundamental error exception to the waiver rule is “extremely narrow.” Boesch v. State, 778 N.E.2d 1276, 1279 (Ind.2002). The exception applies “only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.” Id. “The mere fact that an alleged error implicates constitutional issues does not establish fundamental error has occurred.” Schmidt v. State, 816 N.E.2d 925, 945 (Ind.Ct.App.2004), trans. denied.

I acknowledge that a civil commitment is a significant deprivation of liberty and that this Court has, in the past, entertained an appellant’s argument that a civil commitment is analogous to a criminal trial. See Jones v. State, 477 N.E.2d 353, 360 (Ind.Ct.App.1985) (finding no fundamental error in the conduct of witness examination while “stress[ing] the need for procedural protections of the ill person’s liberty interest”), trans. denied. More recently, separate panels of this Court have agreed that fundamental error is that which is “so likely to have infected the verdict or judgment that confidence in the correctness of the trial result has been undermined.” In re Commitment of Gerke, 696 N.E.2d 416, 421 (Ind.Ct.App.1998) (emphasis added); In re Commitment of A.L., 934 N.E.2d 755, 758 (Ind.Ct.App.2010), trans. denied.

*640I, however, do not feel at liberty to take the approach of applying the fundamental error rule to civil judgments. First, it has not been embraced by our Indiana Supreme Court. Second, I disagree with undertaking a “fundamental error” analysis where waiver would suffice. The substantive issue for determination in this case was whether M.E. should be provided mental health treatment on an involuntary basis. The appeal does not concern failure to prove an element or challenge basic procedural irregulaiities that call into question the reliability of the outcome of the proceeding.

Rather, at its heart, it is an evidentiary issue; that is to say, some evidence of M.E.’s interactions was generated during the pre-hearing delay. The trial court considered the testimony of the medical staffs observations concerning these interactions; this evidence was relevant to the commitment proceedings and admitted without objection from M.E. Thus, this issue is more appropriately a question of waiver not fundamental error.

Furthermore, M.E. provides no authority for the proposition that the remedy for pre-hearing delay is vacation of the mental health commitment. Thus, M.E. presents no cognizable argument for relief. Where an appellant fails to direct us to relevant facts or law to support an issue, the issue on appeal is waived. Spaulding v. Harris, 914 N.E.2d 820, 833 (Ind.Ct.App.2009), trans. denied.

For these reasons, I concur in result.