A.A. v. CMHC

• Decision Date: 17 May 2018
• Docket Number: Supreme Court Case No. 49S02–1711–MH–688
• Citation: 97 N.E.3d 606
• Parties: A.A., Appellant (Respondent) v. ESKENAZI HEALTH/MIDTOWN CMHC, Appellee (Petitioner)
• Court: Indiana Supreme Court

97 N.E.3d 606

A.A., Appellant (Respondent)

v.ESKENAZI HEALTH/MIDTOWN CMHC, Appellee (Petitioner)

Supreme Court Case No. 49S02–1711–MH–688

Supreme Court of Indiana.

Filed May 17, 2018

Attorneys for Appellant: Ruth A. Johnson, Deborah B. Markisohn, Marion County Public Defender Agency, Appellate Division, Indianapolis, Indiana

Attorneys for Appellee: Bryan H. Babb, Bose McKinney & Evans LLP, Indianapolis, Indiana, Jessica Proctor Barth, Julie M. Conrad, Eskenazi Health Legal Services Department, Indianapolis, Indiana

On Petition to Transfer from the Indiana Court of Appeals, No. 49A02–1610–MH–2286

Rush, Chief Justice.

Involuntary civil commitment, no less than imprisonment, is a tremendous intrusion on personal liberty and autonomy. Individuals under commitment may be confined against their will, restrained, forcibly medicated, and even kept in seclusion.

A person at risk of commitment, whose very liberty is at stake, is therefore entitled to vigorous due process protections—including the right to appear in person at a proceeding. That right is codified in Indiana Code section 12–26–2–2(b), which also gives the trial court authority to waive the individual's presence if appearing at the hearing would be injurious to the person's mental health or well-being.

Here, A.A.'s attorney waived A.A.'s right to personally appear. The hearing proceeded without him, and the trial court ultimately ordered involuntary civil commitment. A.A. appealed, arguing that the waiver violated his due process rights. To clarify uncertainty surrounding waiver of a respondent's right to appear, we reach several holdings.

First, a mentally competent civil-commitment respondent may relinquish the right to appear with a knowing, voluntary, and intelligent waiver; but an attorney may not waive the right on the respondent's behalf. Second, if the trial court independently waives a respondent's presence at a commitment hearing, it must do so at the outset of the proceeding. And, finally, an improper waiver determination is subject to harmless-error review.

Because A.A.'s presence was improperly waived and because that error was not harmless, we reverse and remand for the trial court to vacate the regular involuntary-commitment order.

Facts and Procedural History

In August 2016, thirty-six-year-old A.A. lived with his mother, who grew concerned with his behavior and filed an application for emergency detention. The application stated that A.A. suffered from a psychiatric disorder and that A.A. wasn't sleeping, was going outside and making disruptive noises, and wanted to fight family members.

Two days later, the trial court ordered A.A. detained and transported to Eskenazi Hospital. Eskenazi then filed the required report following emergency detention. In the attached physician's statement, Dr. David Pollock recommended regular involuntary commitment.

The trial court held a commitment hearing on September 12, 2016. At the beginning of the hearing, the trial court asked A.A.'s appointed counsel why A.A. wasn't there. A.A.'s counsel replied,

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.

After Eskenazi's counsel confirmed that A.A. had received a summons, the trial court stated, "So, [A.A.] does have notice of the proceedings and he has chosen to waive his right to be present." The hearing proceeded without A.A.

Eskenazi's first witness was Dr. Pollock, who had last seen A.A. three days prior to the hearing. Dr. Pollock opined that A.A. suffered from schizophrenia and that because of his mental illness, A.A. was dangerous to others and gravely disabled. Dr. Pollock also described A.A.'s behavior since being detained—A.A. had been "menacing" and "aggressive" toward staff and had required restraints or sedatives at times. The doctor explained the side effects of recommended medication for A.A. and found it "highly doubtful" that A.A. would take the medicine voluntarily.

Dr. Pollock then testified about A.A.'s feelings regarding commitment. Dr. Pollock was aware that A.A. "had been talking about court," but did not know whether A.A. had "given an opinion one way or another" about being committed—just that A.A. had claimed "he doesn't need to be in a hospital."

Eskenazi next called A.A.'s mother to testify. She described her son's recent behavior, stating that she feared for her own safety. She also explained what could be "agitating" her son: A.A.'s father had recently died, and A.A. wouldn't be able to attend the funeral.

A.A.'s counsel, who had never met with or spoken to A.A., presented no evidence. At the end of the hearing, the trial court found that A.A. was a danger to others and gravely disabled by his schizophrenia. The court ordered regular involuntary commitment.

A.A. appealed, challenging his commitment order. He argued that the trial court accepted an invalid waiver of his right to appear, denying him due process.

The Court of Appeals partly agreed with A.A. Relying on its recent precedent, the panel held that, for competency reasons, "[a] respondent for a civil commitment hearing cannot voluntarily waive his right to be present at a commitment hearing." A.A. v. Eskenazi Health/Midtown CMHC , 81 N.E.3d 629, 632 (Ind. Ct. App. 2017) (citing M.E. v. Dep't of Veterans Affairs (In re Commitment of M.E.) , 64 N.E.3d 855, 860–61 (Ind. Ct. App. 2016) ). The panel also decided that A.A.'s counsel could not waive A.A.'s presence and that the trial court "was too readily disposed to agree to waiver." Id. at 633.

But the Court of Appeals found no due process violation. Id. at 632–34. It noted that a trial court has statutory authority to waive a respondent's right to be present in certain situations—such as when the respondent's "presence would be injurious to the individual's mental health or well-being." Id. at 633 (quoting Ind. Code § 12–26–2–2(b)(3)(B) ). The panel credited evidence in the record that A.A.'s presence would have been injurious to himself, but stressed that in future cases a trial court must make a statutory waiver determination at the outset of a civil-commitment hearing. Id. at 633–34. Explaining that a new hearing "would not provide any real service to A.A.," the Court of Appeals affirmed the regular involuntary-commitment order. Id. at 634.

We granted transfer,¹ vacating the Court of Appeals opinion. Ind. Appellate Rule 58(A).

Standard of Review

The parties collectively raise three issues about a respondent's right to be present at a commitment hearing. Specifically, we address (1) who can waive a civil-commitment respondent's due process right to appear; (2) whether a trial court exercising its independent statutory authority to waive a respondent's presence must do so at the outset of the commitment hearing; and (3) whether a failure to make a proper waiver determination is subject to harmless-error review. We evaluate these pure questions of law de novo. See Hines v. State , 30 N.E.3d 1216, 1219 (Ind. 2015).

Discussion and Decision

Involuntary civil commitment is a significant deprivation of liberty—one that "goes beyond a loss of one's physical freedom" and engenders "serious stigma and adverse social consequences." T.K. v. Dep't of Veterans Affairs (In re Civil Commitment of T.K.) , 27 N.E.3d 271, 273 (Ind. 2015). Involuntary-commitment respondents thus enjoy due process protections, id. , including notice of the commitment proceeding and an opportunity to be heard, see Haegert v. Univ. of Evansville , 977 N.E.2d 924, 950 (Ind. 2012).

The questions here center on A.A.'s due process right to be present and whether it was violated when his attorney waived his presence and the trial court agreed to the waiver. Though the issues seem straightforward at first glance, that impression hides an underlying web of constitutional and statutory matters. We address these interwoven matters in turn, beginning with whether a civil-commitment respondent can personally waive his right to appear at the commitment hearing.

I. A mentally competent respondent may give up the right to appear at a civil-commitment hearing through a knowing, voluntary, and intelligent waiver; however, the respondent's attorney may not waive the right.

A respondent has a due process right to be present at a civil-commitment hearing—a hearing that will address, in part, whether the individual suffers from a mental illness that requires involuntary commitment. This does not mean, though, that a respondent can never exhibit the mental competency to waive the right. Rather, appropriate safeguards can ensure a personal waiver was made knowingly, voluntarily, and intelligently.

Yet, a respondent's attorney may not waive the respondent's right to appear. The statute that codifies a respondent's due process right to appear gives the trial court independent authority to waive a respondent's appearance but bestows no waiver authority on an attorney.

A. "Mental illness" and "mental competency" are not equivalent.

Eskenazi and A.A. both argue that the Court of Appeals below announced an overly broad rule: that a respondent, who necessarily faces a claim of mental illness as defined by statute, can never be competent to waive his right to be present at an involuntary-commitment hearing. See A.A. , 81 N.E.3d at 632. They contend that this rule perpetuates the wrong presumption that "mental illness" is always equivalent to "mental incompetency."

The broad holding stems from M.E. , in which another panel addressed in dicta whether an individual's written waiver validly forfeited his right to be present at his civil-commitment hearing:

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

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