FILED
Jun 27 2017, 8:23 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Valerie K. Boots Jessica Barth
Marion County Public Defender Eskenazi Health
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Civil June 27, 2017
Commitment of: Court of Appeals Case No.
49A02-1612-MH-2823
M.L.,
Appeal from the Marion Superior
Appellant-Respondent, Court
v. The Honorable Steven R.
Eichholtz
Eskenazi Health / Midtown Trial Court Cause No.
Mental Health CMHC, 49D08-1612-MH-42227
Appellee-Petitioner.
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Respondent, M.L., appeals the trial court’s grant of Appellee-
Petitioner’s, The Health and Hospital Corporation of Marion County d/b/a/
Eskenazi Health/Midtown Mental Health CMHC (Eskenazi), request for
temporary commitment.
[2] We affirm in part, reverse in part, and remand with instructions.
ISSUES
[3] M.L. raises one issue for our review, which we restate as: Whether Eskenazi
presented sufficient evidence to support the special condition of commitment.
[4] Eskenazi presents one issue, which we restate as: Whether Eskenazi is entitled
to appellate attorney’s fees pursuant to Indiana Appellate Rule 66(E).
FACTS AND PROCEDURAL HISTORY
[5] On November 14, 2016, thirty-year-old M.L. was admitted to the inpatient unit
at Eskenazi hospital on an emergency detention. Eskenazi filed a petition for
involuntary commitment that same day, which was denied by the trial court.
M.L. was released from the hospital on November 22, 2016.
[6] On November 24, 2016, M.L. returned to the hospital to speak with Dr. Aimee
Patel (Dr. Patel), the attending psychiatrist. When he learned that Dr. Patel
was not there that day, M.L. asked the staff for a list of the chemicals he had
been exposed to during his recent hospitalization. M.L. left, but returned on
November 28, 2016, again requesting to speak with Dr. Patel. Dr. Patel
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observed M.L. to be “very disorganized, pressured, paranoid. Speaking about
be[ing] a spy and recording everything. [And] [n]eeding a list of all chemical
exposures.” (Transcript p. 7). She became concerned and filed another
petition, seeking an emergency detention of M.L. The application included a
physician’s emergency statement, which was signed on the same date. Dr.
Patel re-admitted M.L. to the inpatient psychiatric unit. The hospital filed a
Report Following Emergency Detention on November 30, 2016, which
included a physician’s statement.
[7] Upon M.L.’s re-admission, Dr. Patel determined that “[h]e [wa]s having a very
clear episode of bi-polar mania. Which has led to [a] very impaired thought
process. He [wa]s quite paranoid, quite delusional, very pressured.” (Tr. p. 7).
M.L. was given emergency medication for agitation several times at the
hospital but refused all offered medications. M.L. was “placed in restraints for
safety. He had made a number of statements about – actually about killing
himself[.]” (Tr. p. 7). He made threatening statements and gestures toward
other people on the unit and spoke of purchasing a gun for protection.
[8] On December 5, 2016, the trial court conducted an evidentiary hearing. During
the proceedings, Dr. Patel testified that M.L. was both dangerous to himself
and others, and gravely disabled by his mental illness in that he was not able to
provide his own food, clothing, shelter, and basic needs. Dr. Patel also
requested that the trial court impose certain special conditions on M.L. as part
of the Order of Commitment, including that he “not use alcohol or drugs, other
than those prescribed by a certified medical doctor.” (Tr. pp. 18-19). At the
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close of the evidence, the trial court ordered M.L. to be involuntarily committed
to Eskenazi hospital on a temporary basis for a period not to exceed ninety
days. Among the special conditions made a part of the Commitment Order
was the trial court’s mandate that “upon attaining outpatient status,” M.L.
“shall not use alcohol or drugs, other than those prescribed by a certified
medical doctor.” (Appellant’s App. Vol. II, p. 7).
[9] M.L. now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Mootness and Waiver
[10] Eskenazi’s appellate brief is entirely devoted to devising legal avenues so as not
to address the merits of M.L.’s appeal. However, all of these contentions fail
due to an apparent misunderstanding of the legal mechanics of objection and
waiver.
A. Mootness
[11] In their respective appellate briefs, Eskenazi advocates and M.L. concedes that
the case is moot because the Order of Commitment expired on March 5, 2017.
Therefore, this court cannot render effective relief to M.L. See In re Commitment
of T.K., 993 N.E.2d 245, 248 (Ind. Ct. App. 2013), trans. denied. “When a court
is unable to render effective relief to a party, the case is deemed moot and
usually dismissed.” Id. However, although moot cases are usually dismissed,
Indiana courts have long recognized that a case may be decided on its merits
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under an exception to the general rule when the case involves questions of
“great public interest.” Id. Typically, cases falling in the “great public interest
exception” contain issues that are likely to recur. Id.
[12] “The question of how persons subject to involuntary commitment are treated by
our trial courts is one of great importance to society.” Id. (quoting In Re
Commitment of J.B., 766 N.E.2d 795, 798 (Ind. Ct. App. 2002)). “Indiana
statutory and case law affirm that the value and dignity of the individual facing
commitment or treatment is of great societal concern.” Id. (citing In Re Mental
Commitment of M.P., 510 N.E.2d 645, 646 (Ind. 1987)). The instant case
involves the proof necessary to impose special conditions upon attaining
outpatient status. Because this is an issue of great public importance that is
likely to recur and for which Indiana case law is practically undeveloped, we
will address it here.
B. Waiver
Next, Eskenazi advances that M.L. waived this appeal, as he failed to object to
“the imposition of the special condition.” (Appellee’s Br. p. 8). Finding “the
record replete with M.L.’s opportunities to object to the imposition of the
special condition,” Eskenazi reiterates our well-known doctrine that “[a] party
may not present an argument or an issue to an appellate court unless the party
raised that argument or issue to the trial court.” (Appellee’s Br. p. 9) (reference
omitted); see, e.g., Carson v. Ross, 509 N.E.2d 239, 243 (Ind. Ct. App. 1987), reh’g
denied, trans. denied. Consequently, Eskenazi maintains that “[t]o choose to
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advance this issue to a full appeal is a waste of the scarce resources of three
different governmental entities: the public defender, [Eskenazi], and of course
this Court.” (Appellee’s Br. p. 9)
[13] It is clear that Eskenazi harbors a misunderstanding of what constitutes waiver
and what represents a meritorious appeal. Eskenazi claims the first waiver to
be present when M.L. failed to object to Dr. Patel’s direct testimony as to which
particular special condition she was requesting the trial court to impose. Then,
Eskenazi argues that M.L. failed to ask Dr. Patel “why she was requesting the
special condition or refer to it in any way” during cross-examination.
(Appellee’s Br. p. 9). The hospital contends that “[i]f M.L. had a concern about
the particular condition imposed by the trial court, M.L. should have raised it at
the hearing, which would have allowed Dr. Patel to explain why it was in
M.L.’s best interest not to drink alcohol or use drugs during his acute episode of
bi-polar mania.” (Appellee’s Br. p. 9). And lastly, Eskenazi takes issue with
M.L.’s counsel’s silence when the trial court ruled in favor of Eskenazi during
the proceedings and imposed “[a]s conditions of the commitment, if placed
outpatient, [M.L.] . . . . [shall] not use alcohol or drugs other than those
prescribed by a physician.” (Tr. p. 34).
[14] Because civil commitment is a significant deprivation of liberty that requires
due process protections, the burden falls on the petitioner. Addington v. Texas,
441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979). Accordingly, the burden
rested with Eskenazi to present sufficient evidence to support the imposition of
the special condition. However, rather than acknowledging that it carried the
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burden of proof by establishing the necessary evidence, Eskenazi now transfers
this burden and places it squarely on M.L. by characterizing it as a failure to
object to the imposition of the special condition. In other words, Eskenazi
faults M.L. for failing to make the case for it. During Dr. Patel’s testimony it
was incumbent upon Eskenazi to elicit sufficient evidence with respect to the
particularities of its request and its reason to impose the challenged special
condition. There was nothing for M.L. to object to, and M.L. was not under a
burden to present evidence as to the special condition’s necessity. Silence was
indeed M.L.’s best strategy here.
[15] When the trial court mandated the imposition of the special condition during
the hearing, the trial court issued its judgment. At that time, the proper legal
avenue to challenge a trial court’s decision is not by raising an objection—as no
evidence is presented—but by either filing a motion to correct error or by filing
a notice of appeal. Clearly, M.L. choose the latter, and we find that his appeal
has merit.
II. Special Condition
[16] M.L. contends that the trial court abused its discretion when it included the
special condition in its Order of Commitment and therefore, the condition
should be stricken. Indiana Code section 12-26-14-3 permits a trial court to
order special conditions when an individual is involuntarily committed to out-
patient care:
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The court may require an individual ordered to enter an
outpatient therapy program [] to do the following:
(1) Follow the therapy program the individual enters.
(2) Attend each medical and psychiatric appointment made for
the individual.
(3) Reside at a location determined by the court.
(4) Comply with other conditions determined by the court.
Such special conditions “must be reasonably designed to protect the individual
as well as the general public.” Golub v. Giles, 814 N.E.2d 1034, 1041 (Ind. Ct.
App. 2004), trans. denied. There must be “sufficient evidence in the record for
the trial court to conclude” that the special condition “bears a reasonable
relationship” to the committed individual’s treatment and to the protection of
others. Id. When we review a challenge to the sufficiency of this evidence, we
look to the evidence most favorable to the trial court’s decision and draw all
reasonable inferences from that decision. Id. at 1040. We may neither reweigh
the evidence nor judge the credibility of the witnesses. Id.
[17] The propriety of an appellate challenge to a special condition of commitment
has been considered only twice previously: Golub v. Giles, 814 N.E.2d 1034
(Ind. Ct. App. 2004), trans. denied, and M.M. v. Clarian Health Partners, 826
N.E.2d 90 (Ind. Ct. App. 2005), trans. denied. In both precedents, we struck the
special condition.
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[18] In Golub, the trial court imposed conditions prohibiting Golub from “harassing
or assaulting family members or others,” and from “using alcohol or drugs
other than those prescribed by a certified medical doctor.” Golub, 814 N.E.2d
at 1040. Golub appealed and argued that the conditions were improper as they
were not requested by the physician, they were not based on the physician’s
assessment of Golub, and they bore no relationship to the reasons for his
commitment. Id. Because we found evidence in the record that Golub had
threatened family members, we concluded that the special condition preventing
harassment bore a reasonable relationship to his treatment and was properly
imposed. Id. at 1041. However, finding “the record [] devoid of any evidence
that Golub used or abused alcohol or drugs,” we concluded that special
condition improperly imposed. Id. “Although [Golub’s physician] suggests on
appeal that it was permissible for the trial court to take judicial notice of the fact
that alcohol is a ‘known depressant’ and ‘could interact with Golub’s treatment
in unpredictable ways,’ there is no evidence of this suggestion in the record.”
Id.
[19] Less than a year after our decision in Golub, we again considered special
conditions ordered as part of involuntary outpatient treatment in M.M.
With respect to the condition prohibiting M.M. from consuming
alcohol or drugs, we observe the record is devoid of any evidence
showing M.M. used or abused alcohol or drugs. The subject of
alcohol or drug use was never raised during the hearing. Because
there is no evidence in the record to suggest that such a
prohibition bears any relationship to M.M.’s treatment or the
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protection of the public, we agree with the parties that the
condition was improperly imposed.
M.M., 826 N.E.2d at 99.
[20] Likewise here, the record is barren as to M.L.’s use of alcohol or drugs and
there is no suggestion that the special condition bears any relationship to M.L.’s
treatment or the protection of the public. During her testimony, Dr. Patel
requested the trial court to prohibit M.L. to abuse alcohol or to use any drugs
other than those prescribed by a certified medical doctor. When asked on direct
examination, “[d]oes he use any substances; alcohol or drugs?” (Tr. p. 10). Dr.
Patel responded, “No.” (Tr. p. 10). In a footnote, Eskenazi claims that “[i]t
should be obvious that M.L.’s use of alcohol or drugs would have exacerbated
his conditions of grave disability and dangerousness.” (Appellee’s Br. p. 14, fn.
2). But, as in Golub, Eskenazi did not present any evidence supporting this
‘obvious’ statement. Accordingly, as there is insufficient evidence to support
the imposition of this special condition, we affirm the trial court’s order in part
but reverse in part with instruction to strike the special condition prohibiting
M.L. from consuming alcohol and drugs, not prescribed by a certified medical
doctor, from the Order of Commitment.
III. Appellate Attorney’s Fees
[21] Eskenazi contends that it is entitled to appellate attorney’s fees pursuant to
Indiana Appellate Rule 66(E), claiming that
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[b]ringing a narrow appeal, based on a single argument that was
clearly waived—with the failure to raise that issue below actually
creating the ostensible basis for the appeal (i.e., a lack of evidence
about a condition)—cannot be within the bounds of acceptable
advocacy.
(Appellee’s Br. p. 14).
[22] Indiana Appellate Rule 66(E) provides, in pertinent part, that “[t]he Court may
assess damages if an appeal . . . is frivolous or in bad faith. Damages shall be in
the Court’s discretion and may include attorney’s fees.” Our discretion to
award attorney’s fees under Indiana Appellate Rule 66(E) is limited, however,
to instances when an appeal is permeated with meritlessness, bad faith,
frivolity, harassment, vexatiousness, or purpose or delay. Thacker v. Wentzel,
797 N.E.2d 342, 346 (Ind. Ct. App. 2003). Additionally, while Indiana
Appellate Rule 66(E) provides this court with discretionary authority to award
damages on appeal, we must use extreme restraint when exercising this power
because of the potential chilling effect upon the exercise of the right to appeal.
Id.
[23] Rather than being permeated with meritlessness or bad faith, M.L.’s appeal is
an entirely proper exercise of his constitutional rights to due process and
appellate review, based on established precedent of this court. Moreover, we
are taken aback with Eskenazi’s request for appellate attorney’s fees to be
assessed against another arm of the same Marion County government. The
Marion County Public Defender and Eskenazi serve a similar clientele—the
most indigent and vulnerable in our community—and both are a vital part of
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that same public safety net for Marion County. To seek a financial retribution
from the Public Defender Agency for protecting involuntarily committed
individuals’ constitutional rights based on Eskenazi’s own misunderstanding of
the legal mechanics of objection and waiver is remarkable. We deny Eskenazi’s
request.
CONCLUSION
[24] Based on the foregoing, we affirm the trial court’s order in part but reverse in
part with instruction to strike the special condition prohibiting M.L. from
consuming alcohol and drugs, not prescribed by a certified medical doctor,
from the Order of Commitment. We deny Eskenazi’s request for appellate
attorney’s fees pursuant to Indiana Appellate Rule 66(E).
[25] Affirmed in part, reversed in part, and remanded with instructions.
[26] Najam, J. concurs
[27] Bradford, J. dissents with separate opinion
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IN THE
COURT OF APPEALS OF INDIANA
In the Matter of the Civil
Commitment of: Court of Appeals Case No.
49A02-1612-MH-2823
M.L.,
Appellant-Respondent,
v.
Eskenazi Health / Midtown
Mental Health CMHC,
Appellee-Petitioner.
Bradford, Judge, dissenting.
[28] I respectfully disagree with the majority’s conclusion that M.L. adequately
preserved his claim that Eskenazi presented insufficient evidence to support a
special condition of his commitment, specifically, that he refrain from using
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alcohol or unauthorized drugs should he attain outpatient status.
Consequently, I respectfully dissent.
[29] “‘A party generally waives appellate review of an issue or argument unless the
party raised that issue or argument before the trial court.’” Benton Cty.
Remonstrators v. Bd. of Zoning Appeals of Benton Cty., 905 N.E.2d 1090, 1096 (Ind.
Ct. App. 2009) (quoting GKC Ind. Theatres, Inc. v. Elk Retail Inv’rs, LLC, 764
N.E.2d 647, 652 (Ind. Ct. App. 2002)). M.L. had ample opportunity to object
to the imposition of the special condition but did not do so at the trial court
level. If M.L. had objected, I believe it is near certain that Eskenazi would have
simply asked Dr. Patel if drugs or alcohol could interfere with M.L.’s prescribed
medications, and she would have answered in the affirmative. See Benton Cty.
Remonstrators, 905 N.E.2d at 1096-97 (“Had the Remonstrators raised this issue
at the trial court level, then the parties would have had an opportunity to
develop a record and provide the court with evidence as to when the clerk
mailed the panel. The Remonstrators cannot now raise such a fact-sensitive
issue without raising it first before the trial court and giving the other parties an
opportunity to address the issue and fully develop a record for appeal.
Therefore, we conclude that the Remonstrators have waived this argument.”).
Because I would conclude that M.L. has waived any challenge he might have
had to the imposition of the special condition, I would affirm the judgment of
the trial court.
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