Commitment of M.E. v. Dep't of Veterans Affairs

• Decision Date: 23 November 2016
• Docket Number: No. 27A02–1605–MH–987.,27A02–1605–MH–987.
• Citation: 64 N.E.3d 855
• Parties: In the Matter of the COMMITMENT OF M.E., Appellant–Respondent, v. DEPARTMENT OF VETERANS AFFAIRS, Appellee–Petitioner.
• Court: Indiana Appellate Court

64 N.E.3d 855

In the Matter of the COMMITMENT OF M.E., Appellant–Respondent,

v.DEPARTMENT OF VETERANS AFFAIRS, Appellee–Petitioner.

No. 27A02–1605–MH–987.

Court of Appeals of Indiana.

Nov. 23, 2016.

Joel M. Schumm, Appellate Clinic, Robert H. McKinney School of Law, Indianapolis, IN, Attorney for Appellant.

Josh J. Minkler, United States Attorney, Danielle Kalivoda, Special Assistant, United States Attorney, Indianapolis, IN, Attorneys for Appellee.

BAKER, Judge.

[1] The Veterans Affairs (VA) Hospital filed a petition to involuntarily commit M.E. by way of forcible medication after M.E. was brought there by local police. The trial court issued an Order of Regular Commitment, committing M.E. to the hospital until discharged, and granted an order to medicate M.E. unless he did not substantially benefit from the medications. M.E. now appeals his involuntary commitment. Finding that M.E. did not receive appropriate notice, that his waiver was invalid, and that the VA did not carry its burden of proof with respect to the elements of dangerousness and grave disability, we reverse and remand with instructions to vacate the order of involuntary commitment.

Facts¹

[2] M.E. is an army veteran who lives in Marion and has a well-established diagnosis of paranoid schizophrenia

. On March 31, 2016, M.E. was brought to the VA Hospital by the police.²

[3] On April 4, 2016, the Department of Veterans Affairs Northern Indiana Health Care System (NIHCS) filed an Application for Emergency Detention of M.E. with the trial court. That same day, the trial court approved the emergency detention.

[4] On April 6, 2016, the NIHCS filed multiple documents with the trial court, including a Petition for Regular Commitment with a Physician's Statement attached. The VA did not serve these documents on M.E. or his counsel. Dr. Masood Khan completed the Physician's Statement preprinted form, indicating that M.E. was in need of custody, care, or treatment in an appropriate facility; that commitment would not be necessary if M.E. was taking medication for his condition; and that M.E. cannot be relied upon to take medication as prescribed. On April 7, 2016, the trial court issued a Commitment Hearing Order, scheduling a hearing for April 12, 2016, a Notice of Rights and Procedures, and a Mental Illness Summons. The Sheriff was ordered to serve these documents on M.E. Also on April 7, 2016, M.E., who was still being involuntarily detained at the hospital, signed a Waiver of Right to be Present at Commitment Hearing. The waiver provided:

[5] I waive my right to be present at the hearing set for 1:30 O'clock p.m. on 4/12/2016. I understand that, if I fail to appear at the hearing, I lose this opportunity to contest my commitment unless my representative contests the matter on my behalf. I wish to be represented by: __________ at the hearing. This waiver is given voluntarily. No person has encouraged or pressured me to sign this waiver.

Appellant's App. Vol. 2 p. 26.

[6] M.E.'s counsel learned of the proceedings on April 8 when counsel for the VA called him. M.E.'s counsel had to ask for all of the documents to be sent to him. After speaking with M.E., M.E.'s counsel filed a motion to continue the hearing. His request was granted, and on April 20, 2016, the hearing took place. Meanwhile, on April 12, 2016, M.E. was discharged from the VA hospital.

[7] At the hearing, Dr. Masood Khan, a staff inpatient psychiatrist at the hospital, was the VA's sole witness. Dr. Khan testified that when M.E. arrived at the acute mental health unit, M.E. was swearing loudly, presenting with disorganized thoughts and behavior, acting paranoid, and initially refusing medications. According to Dr. Khan, the commitment order was necessary because "the long history of non-compliance, is primary [sic] the issue, that's why the order is being questioned." Tr. p. 6. Dr. Khan testified that schizophrenia

is categorized by delusions and hallucinations, and that when M.E. is in his delusional state, he thinks that people are discriminating against him because he is Black; when he is hallucinating, he responds loudly to unseen others and makes physical gestures. When asked to explain the nature of M.E.'s yelling or purported threats, Dr. Khan testified that M.E. yelled, "these white bitches get away from me. You did this to me, you did that to me." Id. at 15. Dr. Khan testified that M.E. has a long history of marijuana use, which will, in some cases, exacerbate schizophrenia.

[8] Dr. Khan further testified that prior to the instant admission, M.E. had been admitted to the acute mental health unit of the VA Hospital in Marion at least thirty-one times. He testified that when M.E. was part of the VA program for mental health intensive case management, he was compliant with his medication and was free of symptoms. Dr. Khan said that "[t]here has been no physical [aggression] from what I am remembering from the records," id. at 10, and that the most recent time that M.E. was restrained was July 2013. Dr. Khan testified that although M.E. showed up for his appointment on April 19, 2016, he declined the medication. Dr. Khan recommended a treatment plan that was a long-acting injectable. He testified that M.E. is an ideal candidate for this medication because he does not exhibit side effects from it and his "presentation turns around 180 degrees." Id. at 12.

[9] M.E. testified on his own behalf. He testified that he did not know why he was taken to the hospital: "I got out there and they wouldn't tell me, they never told me anything. To this day I still don't know what was said that I did to except for what" he was told by counsel. Id. at 19. He stated that he wears an allergy bracelet for the medication that he was forced to take, and that he suffers side effects from it, including kidney and bladder problems. He testified that he lives by himself in an apartment, pays rent for his apartment every month, eats regularly, and dresses himself. He gets along well with his landlord. He said that he gets loud sometimes because "my voice does accelerate." Id. at 20. He testified that one white patient "swore up and down and he went home" and another "threw his tray on the floor" and would probably go home. Id. at 21. As for his delusions, M.E. said that white people do not bother him, but that if something happened, their word would overrule his.

[10] On April 25, 2016, the trial court issued an Order of Regular Commitment, finding M.E. to be mentally ill, dangerous, and gravely disabled, and permitting him to be forcibly medicated. M.E. now appeals.

Discussion and Decision

[11] M.E. makes three arguments on appeal: (1) the VA failed to serve M.E. with the documents it filed with the trial court; (2) the Waiver of Right to Be Present at Commitment Hearing signed by M.E. was invalid; and (3) the involuntary civil commitment was not warranted because the VA failed to establish that M.E. exhibited a grave disability or dangerousness to self.³

I. Service of Pleadings

[12] M.E. first argues that a hospital in a civil commitment case is required to serve the patient or patient's counsel with all documents it files with a trial court, including petitions for involuntary commitment.

[13] In civil proceedings, each party must be served with "every pleading subsequent to the original complaint." Ind. Trial Rule 5(A)(2). The rule further provides that when "a party is represented by an attorney of record, service shall be made upon such attorney unless service upon the party is ordered by the court." T.R. 5(B). Service upon the attorney or party can be made through a variety of methods, including through mail, e-mail, or fax. Id. Mental health proceedings are conducted like other civil proceedings according to the trial rules except as otherwise provided. Ind.Code § 12–26–1–6. An individual alleged to have a mental illness has the right to receive adequate notice of a hearing so that the individual or the individual's attorney can prepare for the hearing; to receive a copy of a petition or an order relating to the individual; to be present at a hearing relating to the individual; and to be represented by counsel. Ind.Code § 12–26–2–2. The Indiana Legislature extended these rights to the proceedings for temporary commitment and regular commitment, notice of discharge of an individual, and review of commitment, but not for emergency detentions. I.C. § 12–26–2–2(a)(1)–(4).

[14] On April 6, 2016, the VA filed a petition seeking to have M.E. involuntarily committed with an attached Physician's Statement. Although M.E.'s counsel had entered an appearance on M.E.'s behalf in March of 2015, M.E.'s counsel was not served with these documents. He received notice when the VA's counsel called him on April 8 to ask about the necessity of a commitment hearing. M.E.'s counsel had to request the documents filed by the VA; on April 11, the VA's counsel faxed the pleadings to M.E.'s counsel.

[15] M.E. argues that he was not served with any of these documents, evidenced by the fact that none contained a certificate of service, and he testified at the commitment hearing that he first learned of the allegations supporting his emergency detention and the sought-after commitment from his counsel, despite the fact that M.E. was represented by counsel beginning in 2015 and was represented by counsel when he was involuntarily committed on March 31, 2016.

[16] The VA relies on Cheek v. State, in which this Court found that where "an individual appears with counsel, it is apparent that the notice was actually received despite the fact that a sheriff's return is not included in the trial record." 567 N.E.2d 1192, 1195–96 (Ind.Ct.App.1991) (emphasis original).

[17] We find that M.E. was never served with the pleadings related to the commitment petition. We decline to follow Cheek and find instead that service and proof of service is required for all civil commitment cases. The mere fact that an individual appeared at a hearing with counsel is...