Commitment of G H

• Court: Indiana Court of Appeals
• Decided: August 4, 2023
• Docket: 23A-MH-00490
• Status: Published

Opinion

FILED Aug 04 2023, 9:13 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Valerie K. Boots Chadwick C. Duran Darren Bedwell Special Assistant United States Marion County Public Defender Attorney Agency Department of Veterans Affairs Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Civil August 4, 2023 Commitment of Court of Appeals Case No. 23A-MH-490 G.H., Appeal from the Marion County Appellant, Superior Court v. The Honorable David J. Certo, Judge Richard L. Roudebush Veterans Trial Court Cause No. Affairs Medical Center, 49D08-2302-MH-5374

Appellee.

Opinion by Judge Bailey Judges Kenworthy concurs. Judge Tavitas concurs in part and dissents in part with opinion.

Bailey, Judge.

Court of Appeals of Indiana | Opinion 23A-MH-490 | August 4, 2024 Page 1 of 12 Case Summary [1] G.H. appeals an involuntary commitment order which expired on May 13,

2023, and Richard L. Roudebush Veterans Affairs Medical Center (“the

Hospital”) contends the appeal should be dismissed as moot. However,

because we find the case presents an opportunity to develop case law on an

issue that is likely to recur in this and other cases—i.e., the proof necessary to

impose special conditions on a commitment—we choose to address it on the

merits.

[2] We affirm in part, reverse in part, and remand with instructions.

Issues [3] We address the following three issues:

I. Whether this appeal should be dismissed as moot.

II. Whether there was sufficient evidence to support the trial court’s finding that G.H. was gravely disabled.

III. Whether there was sufficient evidence to support the trial court’s imposition of a special condition that G.H. refrain from the use of alcohol and non-prescribed drugs during his commitment.

Facts and Procedural History

Court of Appeals of Indiana | Opinion 23A-MH-490 | August 4, 2024 Page 2 of 12 [4] G.H. is a sixty-two-year-old Air Force veteran. On February 6, 2023, Dr. Hugo

M. Espinosa at the Veterans’ Affairs (“VA”) NIHCS Acute Mental Health Unit

in Marion, Indiana applied for the emergency detention of G.H. In the

application, Dr. Espinosa stated that G.H. had not been taking his psychotropic

medications and observed that G.H. reported, “I’m delusional. I feel like

monkey pox…I’m having psychosis…delusional thoughts…irrational

behaviors…I don’t sleep.” App. v. II at 18. G.H. also reported suicidal and

homicidal ideation. Id. G.H. was admitted to the Hospital in Indianapolis on

the afternoon of February 6, 2023.

[5] Two days later, the Hospital filed a Report Following Emergency Detention

and requested a temporary, involuntary commitment. The Physician’s

Statement, prepared by Dr. Andrew Filipowicz, identified G.H.’s mental health

diagnosis as schizoaffective disorder and stated that G.H. was suffering from “a

substantial impairment or obvious deterioration in judgment or reasoning, or

behavior that resulted in his inability to function independently.” Id. at 23. Dr.

Filipowicz also noted that G.H. was refusing insulin and antipsychotic

medications, refusing housing, and not eating, the latter of which had resulted

in weight loss. Id.

[6] The trial court held a final evidentiary hearing on February 13, 2023. At the

hearing, Dr. Filipowicz testified that, “[o]n some days,” G.H. acknowledged a

history of mental health diagnoses, including a history of visual and auditory

hallucinations. Id. at 14. G.H. had taken antipsychotic medications in the past

but discontinued taking the medication in 2018. He was initially admitted to

Court of Appeals of Indiana | Opinion 23A-MH-490 | August 4, 2024 Page 3 of 12 the Marion VA hospital accompanied by his apartment manager, who

expressed concern that G.H. was having visual hallucinations and was making

repeated calls to the police regarding property that was allegedly missing from

his apartment. G.H. was also expressing suicidal ideations.

[7] Dr. Filipowicz first examined G.H. on February 8, 2023, and diagnosed G.H.

with schizoaffective disorder, bi-polar type. Consistent with that diagnosis,

G.H. exhibited symptoms that included delusional beliefs that residents were

entering his room at night, impulsivity, and irritability. G.H. was also observed

speaking in long strings of numbers, and he refused to provide context for those

numbers. G.H. was exhibiting disorganized speech patterns, including punning

speech. The following day, February 9th, a “Code Orange” was called to

summon a disruptive behavior team when G.H. became upset and was

slamming things down. Tr. Vol II, p. 12. When the disruptive behavior team

appeared, G.H. stated that he did not believe the team could subdue him, and

he refused to cooperate. He was then placed in seclusion and threw a

chessboard against the wall, began punching the walls, and “tried to charge the

door, at which point staff had to help subdue him.” Id. Staff administered

antipsychotic medication to G.H. in order to calm his “aggression.” Id.

[8] As a result of G.H.’s mental health diagnosis, Dr. Filipowicz prescribed him a

twice daily dose of oral Risperidone, which G.H. initially refused but then

began to take voluntarily. G.H. began to show improvement after he began

taking the medication. Although he was voluntarily taking medications while

he was an inpatient, Dr. Filipowicz testified that he believed G.H. had only

Court of Appeals of Indiana | Opinion 23A-MH-490 | August 4, 2024 Page 4 of 12 limited insight into his mental illness. Indeed, G.H. testified that he did not

have schizoaffective disorder, only symptoms he characterized as “depression.”

Id. at 41. G.H. had taken Invega Sustenna “for forty years” but had not taken it

since 2018. Id. at 38-39. G.H. was willing to continue taking the Risperidone

that had been prescribed for him but did not wish to take Invega Sustenna,

which he called a “test drug.” Id. at 39. G.H. testified that, upon release from

commitment, he had an affordable VA apartment in which to live, which he

described as a “wet facility.”1 Id. at 37.

[9] At the time of the hearing, the Hospital had placed G.H. on “escape and assault

precautions.” Id. at 17. Dr. Filipowicz testified that he was concerned that

G.H. was gravely disabled. He noted that, if G.H.’s irritable and aggressive

behaviors were to manifest, G.H. could cause harm to others or himself. Based

on G.H.’s behavior while in inpatient treatment, Dr. Filipowicz was also

concerned that G.H. would not be able to function independently in daily

activities such as shopping, preparing food, and managing his finances without

proper ongoing therapies. Dr. Filipowicz also had concerns about G.H.’s

ability to follow up on his medical issues, and Dr. Filipowicz believed that it

would be unlikely that G.H. would continue to take his psychiatric medication

without a temporary commitment.

1 Neither the parties nor the trial court defined the term “wet facility;” however, we infer from the context of its use in this case and its common meaning that the term means a facility that does not restrict residents’ ability to consume alcohol.

Court of Appeals of Indiana | Opinion 23A-MH-490 | August 4, 2024 Page 5 of 12 [10] Dr. Filipowicz stated that early and consistent use of medication was the best

way to prevent the worsening of G.H.’s symptoms and to preserve independent

functioning. The preferred course of treatment for G.H. was to transition him

from the oral Risperidone, which he had tolerated well, to Invega Sustenna, a

long-acting injectable antipsychotic. Once that transition was completed, Dr.

Filipowicz anticipated that G.H. could be discharged to an outpatient setting

within four to five days. Regarding a potential commitment order prohibiting

G.H. from use of alcohol and drugs, Dr. Filipowicz testified that he didn’t

“know that substance use has been a [precipitating] factor” or an issue in G.H.’s

life. Tr. at 23. However, Dr. Filipowicz stated, “[C]ertainly, I would

encourage anyone who is on a medication like Invega, or frankly, any human

being, to avoid taking illicit drugs or, you know, overindulging in alcohol.” Id.

[11] Following the hearing, the trial court entered an order for the temporary

commitment of G.H. until May 13, 2023. In so ordering, the court noted in

part that “[t]he record … reflects by [G.H.]’s own testimony, that his thought

remains disorganized, that he continues to play word games in alliteration as

Dr. Filipowicz indicated he had previously, which is symptomatic of the

diagnosis of schizoaffective disorder, [and] that our Respondent, [G.H.], denies

he suffers from schizoaffective disorder.” Id. at 46. The court found that G.H.

suffered from mental illness and was gravely disabled. The court further found

that G.H. “is unlikely to continue to take medication without commitment and

needs case management to function on his own.” Appealed Order at 1. As a

special condition of the temporary commitment, the court ordered that, “[i]f

Court of Appeals of Indiana | Opinion 23A-MH-490 | August 4, 2024 Page 6 of 12 G.H. is discharged to a ‘wet shelter,’ he shall not consume alcohol or drugs

except as prescribed.” Id. at 2. This appeal ensued.

Discussion and Decision Standard of Review [12] A civil commitment is warranted when the petitioner proves, by clear and

convincing evidence, that the 1) 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; T.K. v. Department of Veterans Affairs, 27

N.E.3d 271, 273 (Ind. 2015). An appellate court should affirm a civil

commitment if based on the “probative evidence and 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.

Mootness [13] G.H. appeals a temporary commitment that expired on May 13, 2023; thus, the

Hospital asserts that his appeal should be dismissed as moot. “A case is moot

when the controversy at issue has been ended, settled, or otherwise disposed of

so that the court can give the parties no effective relief.” E.F. v. St. Vincent Hosp.

and Health Care Ctr., Inc., 188 N.E.3d 464, 466 (Ind. 2022). However, under

Indiana common law, the appellate courts have discretion to decide moot cases

that present issues of great public importance that are likely to recur. Id. In the

Court of Appeals of Indiana | Opinion 23A-MH-490 | August 4, 2024 Page 7 of 12 context of temporary mental health commitments, this Court “routinely

consider[s] the merits” of moot cases where the appeal addresses a novel issue,

presents a “close case,” or presents an opportunity to develop case law on a

complicated topic. Id. at 467. We do so because a “[c]ivil commitment for any

purpose has a very significant impact on the individual and constitutes a

significant deprivation of liberty that requires due process protection.” Id.

(quotations and citation omitted). However, “because one of the hallmarks of a

moot case is the court’s inability to provide effective relief, appellate courts are

not required to issue an opinion in every moot case.” Id. (citations omitted).

Rather, we apply the mootness exception “on a case-by-case basis.” Id. at 465.

[14] Despite the expiration of the temporary commitment, we chose to address the

merits of this case because it presents an opportunity to develop case law on a

topic that is relatively undeveloped but likely to recur in this case and others:

the proof necessary to impose special conditions upon attaining outpatient

status.

Sufficiency of Evidence of Grave Disability [15] G.H. does not dispute that he has a mental illness; however, he maintains there

was insufficient evidence that he was gravely disabled at the time of the hearing.

Grave disability in the context of a commitment is:

a condition in which an individual, as a result of mental illness, is in danger of coming to harm because the individual:

Court of Appeals of Indiana | Opinion 23A-MH-490 | August 4, 2024 Page 8 of 12 (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.

I.C. § 12-7-2-96.

[16] The record discloses that, only a week prior to the hearing, G.H. was

delusional, hallucinating, and expressing suicidal and homicidal ideations. At

that time, G.H. was not taking his psychotropic medication. Only two days

before the hearing, G.H. became so disruptive in inpatient treatment that he

had to be secluded and sedated. And the trial court noted that G.H.’s

testimony at the hearing indicated G.H. still had disorganized thinking and

showed other symptoms of an obvious deterioration of judgment, such as a

refusal to acknowledge his mental health diagnosis or the necessity of

transitioning from Risperidone to the medication Invega Sustenna. That

evidence, in addition to the testimony of Dr. Filipowicz that G.H. was gravely

disabled—i.e., that his schizoaffective disorder so impaired his ability to

function independently and so deteriorated his judgment that he could come to

harm without continued treatment in a temporary involuntary commitment—

provided ample, clear, and convincing evidence supporting the commitment.

G.H.’s contentions to the contrary are requests that we reweigh the evidence

and judge witness credibility, which we may not do. See T.K., 27 N.E.3d at 273

Court of Appeals of Indiana | Opinion 23A-MH-490 | August 4, 2024 Page 9 of 12 Special Condition of Commitment [17] G.H. asserts that the trial court abused its discretion when it imposed upon him

the special condition that he “shall not consume alcohol or drugs except as

prescribed” if he is discharged on outpatient therapy to a “wet shelter.”

Appealed Order at 2. Indiana law allows a court to impose special conditions

when ordering an individual to enter outpatient therapy. Ind. Code § 12-26-14-

3. However, there must be sufficient evidence in the record for the trial court to

conclude that such a “special condition” bears a reasonable relationship to the

treatment of the individual and the protection of the individual and the public.

M.L. v. Eskenazi Health/Midtown Mental Health CMHC, 80 N.E.3d 219, 223 (Ind.

Ct. App. 2017) (citing Golub v. Giles, 814 N.E.2d 1034, 1041 (Ind. Ct. App.

2004), trans. denied). Thus, we have struck down a special condition prohibiting

the use of alcohol and drugs where a doctor requested that condition without

any evidence that the individual had ever used or abused such substances. Id. at

224; see also M.M. v. Clarian Health Partners, 826 N.E.2d 90, 99 (Ind. Ct. App.

2005), trans. denied.

[18] In this case, there was no evidence that G.H. had ever abused alcohol or drugs

in the past or that he was likely to do so in the future. Rather, Dr. Filipowicz

stated that he did not know that “substance use” was ever an issue in G.H.’s

life. Tr. at 23. The doctor did opine that he “would encourage anyone” who is

on medications such as those prescribed for G.H. to “avoid taking illicit drugs

or, you know, overindulging in alcohol.” Id. (emphasis added). However, the

doctor never stated that G.H. should refrain from all alcohol and drug use, such

Court of Appeals of Indiana | Opinion 23A-MH-490 | August 4, 2024 Page 10 of 12 as use of over-the-counter drugs. Because there was insufficient evidence in the

record showing a reasonable relationship between the prohibition on the use of

alcohol and drugs and G.H.’s treatment and safety or that of the general public,

the special condition should not have been imposed. The trial court abused its

discretion in doing so.

Conclusion [19] We address the merits of G.H.’s temporary commitment, despite its expiration,

in order to develop the case law on the issue of the proof necessary to impose a

special condition on an involuntary commitment to outpatient therapy. While

we find clear and convincing evidence supporting the involuntary commitment,

we find insufficient evidence to support the special condition imposed on

G.H.’s outpatient treatment. We affirm the involuntary commitment order in

part but reverse in part and remand with instructions to strike the special

condition prohibiting G.H. from consuming alcohol and drugs during his

outpatient treatment.

[20] Affirmed in part, reversed in part, and remanded with instructions.

Judge Kenworthy concurs.

Judge Tavitas concur in part and dissents in part with opinion.

Court of Appeals of Indiana | Opinion 23A-MH-490 | August 4, 2024 Page 11 of 12 Judge Tavitas, concurring in part and dissenting in part.

[21] I concur that the evidence was sufficient to find G.H. gravely disabled. I

dissent, however, from the majority’s determination that the evidence was

insufficient to support the imposition of a special condition. G.H. anticipated

returning to an apartment at a “wet facility” for veterans upon his release

from inpatient care. Tr. Vol. II p. 37. When discussing the order to avoid

using alcohol and non-prescribed drugs, Dr. Flipowicz testified that avoiding

“illicit drugs” and “overindulging in alcohol” is encouraged when taking “a

medication like Invega.” Id. at 23. Given the need to avoid non-prescribed

drugs and alcohol during treatment with Invega and the implicit reduction in

supervision after G.H.’s release from inpatient care, I conclude that the trial

court did not abuse its discretion by imposing the special condition of

avoiding the consumption of non-prescribed drugs or alcohol.

Court of Appeals of Indiana | Opinion 23A-MH-490 | August 4, 2024 Page 12 of 12