FILED
Jul 20 2017, 8:46 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
Deborah Markisohn Jessica Proctor Barth
Marion County Eskenazi Health
Public Defender Agency Indianapolis, Indiana
Indianapolis, Indiana Bryan H. Babb
Bose McKinney & Evans LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
A.A., July 20, 2017
Appellant-Respondent, Court of Appeals Case No.
49A02-1610-MH-2286
v. Appeal from the Marion Superior
Court
Eskenazi Health/Midtown The Honorable Steven R.
CMHC, Eichholtz, Judge
Appellee-Petitioner Trial Court Cause No.
49D08-1609-MH-31348
Baker, Judge.
Court of Appeals of Indiana | Opinion 49A02-1610-MH-2286 | July 20, 2017 Page 1 of 9
[1] A.A. was involuntarily committed to Eskenazi Health/Midtown Community
Mental Health Clinic (“Eskenazi”). He was not present at the commitment
hearing. A.A. appeals, arguing that he did not validly waive his right to
personally appear at his commitment hearing, and that he had a due process
and a statutory right to be present. Eskenazi Health argues that the trial court
had independent statutory authority to waive A.A.’s right to be present at the
commitment hearing, and that A.A.’s presence at the commitment hearing
would have been dangerous to A.A. and others at the hearing. We find that
neither A.A. nor his counsel could validly waive his right to appear, but that the
trial court had a statutory right to waive A.A.’s presence. Accordingly, we
affirm.
Facts 1
[2] A.A. is thirty-six years old and has been diagnosed with schizophrenia. He has
been previously hospitalized and committed.
[3] On August 29, 2016, A.A.’s mother completed an application for A.A.’s
emergency detention. On August 31, 2016, the trial court issued an order for
A.A. to be detained and taken to Eskenazi. On September 7, 2016, Eskenazi
filed a report following emergency detention.
1
We held oral argument in this cause in Indianapolis on June 28, 2017. We thank counsel for their superior
oral and written presentations.
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[4] On September 12, 2016, a civil commitment hearing took place. A.A. was not
present. When the trial court asked A.A.’s counsel about A.A., the following
exchange occurred:
Court: Good morning, everybody. We are here on a report
following Emergency Detention. I see that [A.A.] is not present.
[Counsel for A.A.], can you address that?
Counsel for A.A.: Yes, Judge. Thank you. I have been
informed that [A.A.] is agitated. I have tried to call him before
today’s hearing to talk to him about his case. He would not
answer the phone. I was informed this morning that he was not
brought over due to him being agitated. So we are waiving his
appearance today.
Court: Thank you. Miss Barth, good morning.
Counsel for Eskenazi: Good morning, Judge.
Court: That does raise a question I kind of had, because I looked
through the files and I see that we always send out a summons or
fax one over. Do you guys serve them the summons? Like you
are supposed to?
Counsel for Eskenazi: Yes.
Court: Oh, okay. Good. I’m glad to hear that.
Counsel for Eskenazi: We do Judge, absolutely.
Court: I’m glad to hear that. Just something that came up one
day and I was thinking about it. I thought, you would be the
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perfect person to ask that question. So, he does have notice of
the proceedings and he has chosen to waive his right to be
present. All right . . . .
Tr. p. 4-5. After hearing testimony, the trial court found that A.A. suffered
from schizophrenia and that as a result of his mental illness, he was dangerous
to others and gravely disabled. The trial court issued an order of regular
commitment. A.A. now appeals.
Discussion and Decision
[5] A.A. presents two issues on appeal: (1) whether a mentally ill person,
involuntarily detained under an emergency detention order by a mental health
institution, can voluntarily waive his right to appear at his commitment
hearing, and (2) whether the trial court and/or the mentally ill person’s counsel
can waive his right to appear.2
I. A.A.’s Ability to Waive Right to Appear
[6] A proceeding for an involuntary civil commitment involves a significant liberty
interest and is subject to due process requirements. T.K. v. Dep’t of Veterans
Affairs, 27 N.E.3d 271, 273 (Ind. 2015). Due process requires notice, an
opportunity to be heard, and an opportunity to confront witnesses. Morton v.
Ivacic, 898 N.E.2d 1196, 1199 (Ind. 2008). The “opportunity to be heard” is a
2
A.A. does not challenge the sufficiency of the evidence that supports the trial court’s order of civil
commitment. Accordingly, we decline to discuss it here.
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fundamental requirement of due process. Id. Effective and timely notice of due
process rights is essential. Cheek v. State, 567 N.E.2d 1192, 1195 (Ind. Ct. App.
1991).
[7] A respondent for a civil commitment hearing cannot voluntarily waive his right
to be present at a commitment hearing. M.E. v. Department of Veterans Affairs, 64
N.E.3d 855, 860-61 (Ind. Ct. App. 2016) (noting that “it is difficult, if not
impossible, to see how an individual who is involuntarily detained under an
emergency detention order by a mental health institution can be considered able
to exhibit the competency required to sign a valid waiver in which he
relinquishes his rights”). Any waiver purporting to relinquish the rights of an
involuntarily detained individual, or an individual at risk of being involuntarily
committed, is not valid. Id. at 861.
[8] Here, A.A. could not have knowingly, voluntarily, and intelligently waived his
right to personally appear because he was being involuntarily detained in a
psychiatric ward pending his commitment hearing. A.A. was diagnosed with
schizophrenia, and Dr. David Pollack, the psychiatry resident intern who
treated A.A., testified that A.A. “has currently been responding to internal
stimuli.” Tr. p. 9. A.A. was observed to be talking to himself and laughing,
being aggressive and impulsive, and having delusions. Like in M.E., we
conclude that A.A. could not have validly waived his right to appear at his
commitment hearing.
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II. Counsel and Trial Court’s Right to Waive
[9] A.A. next argues that neither his counsel nor the trial court could validly waive
his right to appear at his commitment hearing. A.A. argues that the trial court
committed fundamental error when it accepted A.A.’s counsel’s statement that
A.A. waived his right to be present. “Fundamental error is error which is a
blatant violation of our concepts of fundamental fairness and in which the harm
is substantial and apparent.” A.L. v. Wishard Health Servs., 934 N.E.2d 755, 758
(Ind. Ct. App. 2010). Fundamental error occurs when it “is so likely to have
infected the verdict or judgment that confidence of the trial result has been
undermined.” Id.
[10] Initially, we hold that it was error for A.A.’s counsel to waive A.A.’s right to be
present at the hearing. Counsel had no right, statutory or otherwise, to waive
this right, and such action goes against the principles of due process. We also
find that the trial court was too readily disposed to agree to waiver of A.A.’s
right to be present without seeking more information about A.A.’s current
mental and physical state.
[11] Nonetheless, Indiana Code section 12-26-2-2(b) does give trial courts the ability
to waive a respondent’s right to be present at a hearing. This provision of the
statute has not previously been addressed by our appellate courts. The statute
provides in relevant part that an individual alleged to have a mental illness has
the following rights:
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(3) To be present at a hearing relating to the individual. The
individual’s right under this subdivision is subject to the court’s
right to do the following:
(A) Remove the individual if the individual is disruptive to
the proceedings.
(B) Waive the individual’s presence at a hearing if the
individual’s presence would be injurious to the individual’s
mental health or well-being.
[12] Because the statute allows a trial court to waive a respondent’s right to be
present, we disagree with A.A. that error occurred, let alone fundamental error.
The information required to establish that A.A.’s presence would be injurious
to himself entered the record. At the hearing, Dr. David Pollack, who treated
A.A. at Eskenazi, testified that A.A.’s behavior
. . . has been very menacing and agitated at times. He’s been
aggressive. He has struck a staff member. Punched the staff
member full force causing the staff member to fall back into a
door jam. Hit his head and fall to the ground. He’s also hit a
staff member with a towel. He has placed a towel around
another patient’s neck, before the staff person told him to stop.
He’s also had to have been given sedating medication several
times for his agitation. And just general menacing and threats
toward staff. And he’s also had to have been put in restraints as
well at times.
Tr. p. 8. Dr. Pollack further testified that A.A. was diagnosed with
schizophrenia, has been responding to internal stimuli, has been talking and
laughing to himself, and has delusions. He also stated that A.A. has been non-
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compliant and has resisted medication. A.A.’s mother testified that A.A.
refused to take his medications, that she called the police following a
threatening confrontation between A.A. and his brother, and that she feared for
her own safety after an incident during which A.A. threatened her and her
grandson with a fork in the kitchen. Absent from the record is evidence about
A.A.’s behavior when he is taking medication. In sum, the evidence presented
established that A.A.’s presence would have been injurious to his mental health
or well-being.
[13] The statute provides a practical way for a trial court to deal with a respondent
whose presence at the hearing would be injurious to himself3—but the statute
does not address the timing of the trial court’s right to waive the respondent’s
presence. As a matter of first impression, we hold that, in the future, if the
respondent is not present at the hearing, the trial court’s determination of
whether it should waive the respondent’s presence must be made at the outset
of the hearing. To make that determination, evidence must be presented to the
trial court establishing that the respondent’s presence would be injurious to his
mental health or well-being. In other words, evidence must address the specific
components of the statute. This evidence may incorporate by reference
3
The parties suggested in the candid oral argument that, if a respondent’s presence would be injurious to
himself at the hearing, a video conference might alleviate the problem, allowing the respondent to remain
under care while still participating in the hearing.
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documents such as the application for emergency detention, the report
following emergency detention, and the physician’s statement.
[14] We note that in civil commitment cases, a respondent’s presence is central to
the commitment hearing. By being present, a respondent has the opportunity to
share with the trial court any concerns he may have, whether it be about
specific medications, method of taking medications, or other special matters.
We therefore prompt trial courts, counsel, and caregivers to invoke Indiana
Code section 12-26-2-2(b) only when the waiver of the right to be present is
truly needed and supported by the evidence.
[15] In this case, the evidence established why A.A. should not have been present at
his commitment hearing as well as why he was not, in fact, present. To redo
the commitment hearing would not provide any real service to A.A.
[16] The judgment of the trial court is affirmed.
Robb, J., and Altice, J., concur.
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