MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Feb 12 2020, 6:02 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Joel M. Schumm Jenny R. Buchheit Indianapolis, Indiana Stephen E. Reynolds Sean T. Dewey Ice Miller LLP Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
In the Matter of the Civil February 12, 2020 Commitment of L.S., Court of Appeals Case No. Appellant-Respondent, 19A-MH-1610 Appeal from the Marion Superior v. Court The Honorable Melanie Kendrick, Community Health Network, Judge Pro Tempore Inc., Trial Court Cause No. Appellee-Petitioner 49D08-1906-MH-23002
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-MH-1610 | February 12, 2020 Page 1 of 15 Case Summary [1] L.S. appeals his temporary involuntary commitment. He argues that the trial
court’s commitment order is not supported by clear and convincing evidence
that he is gravely disabled. Concluding that the evidence is sufficient, we
affirm.
Facts and Procedural History [2] L.S. is a sixty-eight-year-old man, a Vietnam veteran, a former police officer,
and a practicing attorney. He has been practicing law for thirty-two years. He
and his wife “maintain a home” that they have lived in for forty-two years. Tr.
Vol. 2 at 38. L.S. has owned guns all his life. Id. at 24.
[3] On June 5, 2019, L.S.’s wife P.S., in consultation with L.S.’s primary care
physician, contacted police for immediate detention of L.S. L.S. was
transported to Community Hospital North (“Community”), where he was
admitted pursuant to an application for emergency detention. Dr. Shilpa Puri
examined L.S. and filed with the trial court a “Report Following Emergency
Detention” and “Physician’s Statement” stating that in her professional
opinion, L.S. was suffering from a psychiatric disorder, namely, “unspecified
schizophrenia spectrum and other related disorder[,]” was dangerous and
gravely disabled, and was in need of an involuntary commitment not to exceed
ninety days. Appellant’s App. Vol. 2 at 17.
[4] On June 13, 2019, the trial court held an evidentiary hearing to determine
whether L.S. is mentally ill and either dangerous or gravely disabled. To
Court of Appeals of Indiana | Memorandum Decision 19A-MH-1610 | February 12, 2020 Page 2 of 15 support temporary involuntary commitment, Community presented the
testimony of Dr. Jacob Mulinix, L.S.’s wife P.S., L.S.’s legal assistant K.R.,
and L.S.’s daughter E.A. Dr. Mulinix, a resident physician of Community,
provided the following testimony. During L.S.’s emergency detention, Dr.
Mulinix saw L.S. six times as part of the residency team and acted as L.S.’s
“full provider” for the two days prior to the hearing. Tr. Vol. 2 at 6. Dr.
Mulinix conducted his first one-on-one interview with L.S. the day before the
hearing and last examined L.S. the morning of the hearing. Based on L.S.’s
heightened sense of paranoia and delusions, Dr. Mulinix diagnosed L.S. with
unspecified schizophrenia spectrum or other psychotic disorder. Id. at 7. L.S.
believes that the FBI wants to kill him and that “the entire hospitalization is the
result of (inaudible) by the federal government that has trickled down to the
state government law enforcement.” Id. at 8. L.S. also believes that he is
playing a part in a “script” and “goes through this set of events yearly … or
recurrently in order to be testified for memory and cognitive ability based on the
federal government accidentally overdosing him on medications in the past.”
Id. Additionally, L.S. believes that “there is a group that is going around
Johnson County that is targeting veterans and trying to strip them from their
arms and so he is having to (inaudible) his firearms and get them to a safe
place.” Id. L.S. has no insight into his mental illness, his lack of insight affects
his ability to seek care and take medication, and L.S. is suffering a substantial
impairment or obvious deterioration of his judgment, reasoning or behavior
that results in his inability to function independently. Id. at 8-9.
Court of Appeals of Indiana | Memorandum Decision 19A-MH-1610 | February 12, 2020 Page 3 of 15 [5] When asked how L.S.’s medical condition affected his ability to function
independently, Dr. Mulinix answered as follows:
In his case it is different than most patients because [L.S.] has such a higher level of education. He is extremely intelligent and has a high premorbid intellectual functioning that in his case, his ability to function independently are [sic] measured more relative. He is not going to be able to perform at his job as a high functioning lawyer and also his role as a family member (inaudible) could also be in jeopardy due to being consumed by these delusions and a hyper-paranoid state. As well as having access to firearms[.]
Id. at 9. Dr. Mulinix also opined that L.S. was in danger of coming to harm
because of his inability to function independently. Specifically, Dr. Mulinix
testified that
[L.S.] is in danger of coming to harm because … in his paranoid state he … is more paranoid than normal and hypervigilant with his history of PTSD and he may mistake threats or he may mistake something as a threat that is really not and that could lead him to harm.
Id. at 10. While at Community, L.S. was given a low dose of medication that
would be slowly increased, but even the low dose helped L.S. in that he was no
longer focusing exclusively on his delusions like he had when he was first
admitted. Id. at 13-14. L.S. could not be relied upon to take his medication
without supervision.
[6] P.S. testified that she was scared for L.S. and that he needs help. She explained
that L.S.’s paranoia and delusions first appeared about six months prior to the Court of Appeals of Indiana | Memorandum Decision 19A-MH-1610 | February 12, 2020 Page 4 of 15 hearing and had progressively worsened. Id. at 25. L.S. “is afraid the
government is going to take something from us” and believes that spies are
driving cars down their street, and when the phone company put flags in their
yard, L.S. “kept insisting they were tapping into their phone.” Id. at 22. In
mid-May 2019, L.S. was up all night going in and out of the house with his
guns, moving his guns, and telling P.S. that they needed to go to McDonald’s,
that that was their “plan.” Id. at 20-21. Also that night, L.S. had “two really
bad episodes of crying and going on and on about things that did not happen
but he believed happened.” Id. at 20. L.S. “constantly [says] things that are not
true that he thinks are true.” Id. at 23. According to P.S., L.S. has always been
a loving husband, but he is not like that anymore, and L.S. did not “really seem
to think [she was] even around.” Id. at 22. P.S. further testified, “[L.S.] is
someone I do not know. He does not know what is reality. He thinks all of this
is true. That they have erased my memory and he is the only one that knows
what is going on. It is everybody else that is wrong.” Id. at 23. P.S. believed
that L.S.’s paranoia and delusions have made it “impossible for him to function
normally as he normally would.” Id. at 25.
[7] K.R. testified that she had been L.S.’s legal assistant for three years, had
previously worked for L.S., and had known him since 1999. At the office, L.S.
thinks that he is being watched, walks around looking for cameras, and says
that if he does not do certain things, “it is a trigger.” Id. at 29. L.S. tells her
things that have never happened. For example, L.S. told her that she should
remember when an FBI agent was at the office and that L.S. had worn an ankle
Court of Appeals of Indiana | Memorandum Decision 19A-MH-1610 | February 12, 2020 Page 5 of 15 bracelet, but neither of those things had happened. Id. Recently L.S.’s
delusions had expanded to include his clients. Id. at 27.
[8] E.A. testified regarding her encounter with her father when she and her mother
visited him in the hospital:
[L.S.] started acting very aggressively. … He was saying, “Do you not trust me? Do you not believe me? You know, the government is after me. The courts are after me. There is poison in the pills.” My mom asked him, “Are you going to – we have to continue this. We have to get better.” We – you know – he goes I am not going to take this medication anymore. It is poison. I am only taking it because they are forcing me to. He said he would not see a psychiatrist or seek help.
Id. at 33. E.A. also testified that the thoughts and behaviors stemming from
L.S.’s mental illness affected his ability to function independently because in his
paranoid state L.S. “gets more agitated[,]” and all he can focus on is his
delusions, which consume him. Id. at 34.
[9] L.S. testified that he did not need to be temporarily committed. The trial court
asked L.S. whether he felt that he is in harm’s way or that there is a threat of
harm coming to him from anybody, and L.S. responded,
Well, I am – I am not sure. And I will tell you because some of this stuff has been contracted out. Once the – the FBI they start something then they filter it down so they do not always have agents for every position. They will contract it out to certain – certain security companies to do things. And then they have what they call ‘practices’. To see if they can – and because there is a scenario already in place, they will use it again in order to test the
Court of Appeals of Indiana | Memorandum Decision 19A-MH-1610 | February 12, 2020 Page 6 of 15 quality of the security company to keep them in good standing with the FBI so when they need a new – they have a new project they can look to these people for that kind of work. And so they practice that. The difficulty is that when they practice that, it does raise concern because in the past, I have been the object of attempts to take my life. By rogue law enforcement members.
Id. at 48.
[10] At the conclusion of the hearing, the trial court entered a temporary
commitment order, finding that Community had proven by clear and
convincing evidence that L.S. was “suffering from a psychiatric disorder,
unspecified schizophrenia spectrum and other related disorder, which is a
mental illness,” was gravely disabled, and was in need of custody, care, and
treatment at Community for a period not to exceed ninety days. Appealed
Order at 1-2. Although Community had also alleged that L.S. was dangerous,
the trial court did not make a finding regarding that allegation. This appeal
ensued.
Discussion and Decision [11] L.S. argues that the evidence is insufficient to support his temporary
involuntary commitment. As a preliminary matter, we observe that L.S.’s
appeal is arguably moot because ninety days have elapsed since the trial court
issued its order and L.S. has likely been released from his 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
Court of Appeals of Indiana | Memorandum Decision 19A-MH-1610 | February 12, 2020 Page 7 of 15 (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. Indiana Univ. Health Bloomington Hosp., 121
N.E.3d 1044, 1048 (Ind. Ct. App. 2019).
[12] Civil commitment proceedings have two purposes: to protect the public and to
ensure the rights of the person whose liberty is at stake. P.B. v. Evansville State
Hosp., 90 N.E.3d 1199, 1202 (Ind. Ct. App. 2017). “[S]ince everyone exhibits
some abnormal conduct at one time or another, loss of liberty calls for a
showing that the individual suffers from something more serious than is
demonstrated by idiosyncratic behavior.” T.D. v. Eskenazi Health Midtown Cmty.
Mental Health Ctr., 40 N.E.3d 507, 511 (Ind. Ct. App. 2015) (quoting In re
Commitment of G.M., 743 N.E.2d 1148, 1151 (Ind. Ct. App. 2001)). “Given the
liberty interest at stake, the serious stigma involved, and the adverse social
consequences that accompany such physical confinement, a proceeding for an
involuntary civil commitment is subject to due process requirements.” B.D.,
121 N.E.3d at 1049. To satisfy due process requirements, the petitioner is
required to prove the facts justifying involuntary commitment by clear and
convincing evidence. Id.
Court of Appeals of Indiana | Memorandum Decision 19A-MH-1610 | February 12, 2020 Page 8 of 15 [13] “Clear and convincing evidence requires proof that the existence of a fact is
‘highly probable.’” Matter of Commitment of C.N., 116 N.E.3d 544, 547 (Ind. Ct.
App. 2019) (quoting Commitment of M.E. v. Dep’t of Veteran’s Affairs, 64 N.E.3d
855, 861 (Ind. Ct. App. 2016)). Requiring this standard of proof reflects “the
relative importance our legal system attaches to a decision ordering an
involuntary commitment” and reduces the “chance of inappropriate
involuntary commitments.” Civil Commitment of J.B. v. Cmty. Hosp. N., 88
N.E.3d 792, 795 (Ind. Ct. App. 2017). When we review the sufficiency of the
evidence supporting an involuntary civil commitment, we will affirm if,
“considering only the probative evidence and reasonable inferences supporting
the decision, without weighing evidence or assessing witness credibility, a
reasonable trier of fact could find the necessary elements proven by clear and
convincing evidence.” Civil Commitment of T.K. v. Dep’t of Veterans Affairs, 27
N.E.3d 271, 273 (Ind. 2015) (quoting Bud Wolf Chevrolet, Inc. v. Robertson, 519
N.E.2d 135, 137 (Ind. 1988)).
[14] In Indiana, a court may order a temporary commitment of not more than
ninety days for an individual who is mentally ill and either dangerous or
gravely disabled. Ind. Code § 12-26-6-1. “There is no constitutional basis for
confining a mentally ill person who is not dangerous and can live safely in
freedom.” C.N., 116 N.E.3d at 547 (quoting M.E., 64 N.E.3d at 861).
[15] L.S. does not challenge the trial court’s finding that he suffers from mental
illness. See Ind. Code § 12-7-2-130 (defining mental illness as a psychiatric
disorder that substantially disturbs an individual’s thinking, feeling, or behavior
Court of Appeals of Indiana | Memorandum Decision 19A-MH-1610 | February 12, 2020 Page 9 of 15 and impairs the individual’s ability to function). Instead, L.S. contends that
Community failed to present sufficient evidence to support the trial court’s
finding that he is gravely disabled. “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. There seems to be no dispute that L.S. is able to provide
for his food, clothing, shelter, or other essential human needs, and therefore we
turn our consideration to whether Community presented clear and convincing
evidence that L.S., as a result of mental illness, is in danger of coming to harm
because he has a substantial impairment or an obvious deterioration of
judgment, reasoning, or behavior that results in his inability to function
independently.
[16] L.S. likens his case to T.K., 27 N.E.3d 271, in which our supreme court
concluded that the evidence was insufficient to support the trial court’s finding
that T.K. was gravely disabled. T.K. suffered from paranoid schizophrenia and
paranoid personality disorder and had a previous history of hospitalization. He
had been living on his own for six months when he was admitted to a hospital
on an emergency detention after he put flyers on car windshields that detailed Court of Appeals of Indiana | Memorandum Decision 19A-MH-1610 | February 12, 2020 Page 10 of 15 the sex offender criminal history of his ex-wife’s husband and went into a clinic
and started to scream at the staff. The Department of Veterans Affairs sought
an involuntary regular commitment for T.K. At T.K.’s commitment hearing,
the only evidence presented by the Department was the testimony of Dr. Joseph
Bishara. Dr. Bishara testified that T.K. believed that a wide range of
institutions were persecuting him. T.K. was also skeptical of the medical
establishment and believed that people were diagnosed with mental disorders
for the purpose of making money, and therefore he often did not comply with
taking medication. Dr. Bishara also testified that T.K. was aggressive and
disruptive at the hospital and other patients were fearful of him. T.K. was
estranged from all family support, but his son had communicated with Dr.
Bishara to express concern that T.K. was an ex-Marine who had knowledge of
weapons and had mentioned the use of violence in emails and on Facebook.
Dr. Bishara opined that T.K. was gravely disabled “because he has
continuously refused treatment, has denied that he has any problem, and has
been an aggressor in several areas of his life.” Id. at 275. T.K. testified that he
had been working in his current job for five months, received disability
payments for injuries he had sustained while in military service, maintained a
clean home that he had been renting for six months, owned three vehicles, went
to the gym every morning, did his own laundry, and had not taken medication
for his mental illnesses for the last six months. The trial court found that T.K.
was both dangerous and gravely disabled, but our supreme court concluded that
neither finding was supported by sufficient evidence.
Court of Appeals of Indiana | Memorandum Decision 19A-MH-1610 | February 12, 2020 Page 11 of 15 [17] As for whether T.K. was gravely disabled, the court noted that “Dr. Bishara’s
opinion that T.K. was gravely disabled was based on T.K.’s refusal of
treatment, T.K.’s denial that he had any mental illness problem, and reports
that T.K. had been aggressive in several areas of his life.” Id. at 276. The court
then reasoned as follows:
In this case, at the time of the commitment hearing in October, T.K. had not been on medication since April, and in that six months T.K. had secured full-time employment and started renting a home. We do not weigh into the efficacy of whether medication is appropriate for T.K., but the evidence in this case has not clearly and convincingly shown that T.K.’s refusal to take medication and recognize his illness constitutes grave disability by resulting in such a “substantial impairment or an obvious deterioration of [T.K.’s] judgment, reasoning, or behavior that ... [he is unable] to function independently.” Ind. Code § 12-7-2- 96(2). The most favorable testimony to the trial court’s decision is that T.K. was aggressive, loud, talked in a coarse manner that was inappropriate, and proactively sought to shame someone by placing flyers on people’s windshields. While we certainly do not condone such behavior and would like to see cooperation between T.K. and medical professionals, the evidence put forth by the Department does not clearly and convincingly support the proposition that T.K. is gravely disabled. T.K. made no physical outbursts, destroyed no property, did not put himself or others in actual danger with idiosyncratic behavior, and was not at risk of suffering a lack of food, clothing, or shelter. Instead, at best, the evidence suggests that T.K.’s loud, boisterous, and rude public behavior harmed his reputation and made others not want to be around him. That is not sufficient evidence to support a civil commitment on grounds of grave disability.
Id. at 277.
Court of Appeals of Indiana | Memorandum Decision 19A-MH-1610 | February 12, 2020 Page 12 of 15 [18] This case is distinguishable from T.K. The evidence and reasonable inferences
supporting L.S.’s civil commitment order show that L.S. began expressing
delusions and paranoia about six months before the commitment hearing. Tr.
Vol. 2 at 25. Since then, his delusions and paranoia have become progressively
worse. Id. By the time of the hearing, he believed that the FBI was trying to
kill him, a group of people was going to take his guns from him, he was being
spied on at home and at the office, and his clients were part of the plans against
him. He constantly told his wife and legal assistant things that had not
happened. His paranoia and delusions have become all he can focus on, and
they consume him. Id. at 34. His paranoia and delusions have changed his
behavior and personality. L.S. is no longer the loving husband he once was.
Id. at 22. He has changed so much that he is a person that his wife does not
know; he is like a stranger to her. Id. at 23. He stayed up all night carrying his
guns in and out of the house and moving them around and crying about things
that never happened. Thus, in stark contrast to T.K., there is clear and
convincing evidence that L.S.’s mental illness has caused a substantial
impairment and obvious deterioration in his judgment, reasoning, and
behavior.
[19] Further, the evidence shows that L.S.’s paranoia and delusions have affected
his ability to “function independently” because all he can focus on is his
delusions, which “consumes” him. Id. at 34. His paranoia and delusions have
made it impossible “for him to function normally as he would.” Id. at 25. L.S.
has no insight into his mental illness and will refuse to take medication to treat
Court of Appeals of Indiana | Memorandum Decision 19A-MH-1610 | February 12, 2020 Page 13 of 15 it. Without treatment for his mental illness, L.S. is “in danger of coming to
harm” because “he may mistake something as a threat that is really not and that
could lead him to harm.” Id. at 10.
[20] Although here, as in T.K., L.S. experiences paranoia, does not recognize that
he is suffering from a mental illness, and is uncooperative in taking medication,
that is where the similarities end. Thus, we do not find T.K. controlling. 1 We
conclude that the above evidence shows, clearly and convincingly, that L.S., as
a result of his mental illness, is in danger of coming to harm because he has
undergone a substantial impairment or obvious deterioration of his judgment,
reasoning, and behavior that has left him unable to function independently.
[21] L.S. maintains that the trial court applied the wrong standard and that it found
him gravely disabled simply because he may be unable to do his job. He points
to the trial court’s phrasing of the standard at the hearing. See Tr. Vol. 2 at 54
(trial court stating that it would find “[L.S.] is gravely disabled due to a
substantial impairment in judgement [sic] or reasoning that is affecting his
ability to function.”). L.S. also argues that Dr. Mulinix seemed to be holding
L.S. to a higher standard. See id. at 9 (Dr. Mulinix testifying that L.S. is
extremely intelligent and “his ability to function independently are [sic]
1 L.S. also cites Commitment of M.E. v. Department of Veterans Affairs, 64 N.E.3d 855, 862 (Ind. Ct. App. 2016), disapproved of on other grounds by A.A. v. Eskenazi Health/Midtown CMHC, 97 N.E.3d 606 (Ind. 2018). M.E. is also distinguishable. In that case, another panel of this Court found insufficient evidence of grave disability where the physician’s statement had not indicated that M.E. was suffering from a grave disability, and the Department of Veterans Affairs relied on M.E.’s past behavior rather than his behavior at the time of the hearing. Id. at 863.
Court of Appeals of Indiana | Memorandum Decision 19A-MH-1610 | February 12, 2020 Page 14 of 15 measured more relative. He is not going to be able to perform at his job as a
high functioning lawyer.”). However, we note that the trial court said it found
L.S. gravely disabled based on “the testimony [as] shown today.” Id. at 54.
One statement of Dr. Mulinix does not reflect a complete picture of his
testimony, and L.S.’s wife, legal assistant, and daughter also provided evidence,
which cannot be ignored. Further, in the commitment order, the trial court
found that L.S. was gravely disabled “as defined in I.C. 12-7-2-96.” Appealed
Order at 1. Therefore, we are unpersuaded that the trial court applied the wrong
standard. See Heiligenstein v. Matney, 691 N.E.2d 1297, 1301 (Ind. Ct. App.
1998) (“Our determination of whether a proper legal standard was utilized is …
guided by an examination of the final decision which is contained in the trial
court’s Judgment.”); see also A.C. v. N.J., 1 N.E.3d 685, 693 (Ind. Ct. App. 2013)
(concluding that trial court applied the correct legal standard based on final
written order).
[22] Based on the foregoing, we affirm L.S.’s temporary involuntary commitment.
[23] Affirmed.
May, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-MH-1610 | February 12, 2020 Page 15 of 15