Commitment of Gerke, Matter of

• Decision Date: 17 June 1998
• Docket Number: No. 01A02-9711-CV-769,01A02-9711-CV-769
• Citation: 696 N.E.2d 416
• Parties: In the Matter of the COMMITMENT OF Patrick T. GERKE.
• Court: Indiana Appellate Court

Page 416

696 N.E.2d 416

In the Matter of the COMMITMENT OF Patrick T. GERKE.

No. 01A02-9711-CV-769.

Court of Appeals of Indiana.

June 17, 1998.

Jeremy W. Brown, Miller, Scott & Brown, P.C., Decatur, for Appellant.

OPINION

SULLIVAN, Judge.

Appellant, Patrick Gerke (Gerke), appeals the trial court's order of involuntary commitment for a period to exceed ninety days. Such commitments are referred to as "regular" commitments (I.C. 12-26-7) as distinguished from "temporary" commitments for ninety days or less (I.C. 12-26-6).

We affirm.

Gerke presents two issues upon appeal, which we restate as follows:

(1) Whether sufficient evidence supported the trial court's determination that, as a result of his mental illness, there was a substantial risk Gerke would harm others.

(2) Whether the trial court erred in permitting the deputy prosecutor to represent the petitioner in a private commitment proceeding.

Gerke receives governmental assistance due to a disability determination that he suffers from a form of schizophrenia. His sister, Peggy Huntley (Huntley), is the representative payee, and manages his finances by paying his monthly bills and giving him a weekly allowance for spending money. Gerke's mother often assists him by purchasing groceries and laundering his clothes.

In early 1996, Gerke was committed to the Richmond State Hospital, and was subsequently released in July, 1996. After his release, Gerke was prescribed Prolixin to control his behavior. Gerke continued to take the medication until some time in February of 1997, when he unilaterally decided to stop.

On or about July 29, 1997, Gerke called his mother and requested that she bring his checkbook to his apartment because he needed to purchase some pop and milk. Although he expected the trip would take only fifteen to twenty minutes, his mother did not arrive for over one hour. Upon her arrival, Gerke discovered his mother had already purchased the soft drinks and milk. He then asked his mother either to do his laundry, or give him money so that he could do it. His mother refused both requests. Gerke became angry and kicked in the side of his stepfather's car which had been used by Gerke's mother to drive to the apartment.

On July 30, 1997, Huntley filed an Application for Emergency Detention. In the Application, Huntley alleged that Gerke was: "mentally ill, dangerous and in need of immediate restraint for the following reasons: [t]hreatening his mother, damaging property, very [violent] & out of reality." Record at 22. Cameron Nelson, a physician at the Lindenview Hospital (Lindenview) in Fort Wayne, also alleged in the detention application that Gerke was "delusional with violent acts towards others." Record at 22. Based upon the application, the trial court signed an Order for Emergency Detention on July 30, 1997, and Gerke was detained at Lindenview. Al Hackman (Hackman), Gerke's stepfather, filed a Petition for Involuntary Commitment on August 4, 1997.

During his detention at Lindenview, between July 30 and August 8, Dr. Larry P. Lambertson (Lambertson), the medical director of Park Center Hospital in Fort Wayne, examined Gerke daily. The examinations would last between fifteen to twenty minutes on days when Gerke was communicative, but only a few minutes on days when Gerke refused to talk. As a result of his examinations, Lambertson diagnosed Gerke with Intermittent Explosive Disorder. Lambertson stated that he could not disagree with a previous diagnosis of Schizo-Affective disorder, but he had not observed the presence of that condition at the time of Gerke's detention.

At the hearing, Lambertson testified that a regular commitment (one lasting longer than 90 days) was necessary because he did not believe Gerke would maintain consistency with his medication. Lambertson concluded that without medication, Gerke was a danger to others. The trial court ordered that Gerke be committed to the Richmond State Hospital for a period to exceed ninety days.

At the hearing, Zane R. Zwick (Zwick), Deputy Prosecuting Attorney of Adams County, represented Hackman, although the commitment proceedings were initiated by Hackman, a private citizen. Gerke never objected to Zwick's representation of Hackman.

In order to support an involuntary regular commitment, a petitioner must prove, by clear and convincing evidence, that the individual in question is: "(1) ... mentally ill and either dangerous or gravely disabled; and (2) [d]etention or commitment of that individual is appropriate." I.C. 12-26-2-5(e) (Burns Code Ed.Repl.1997). Gerke does not challenge the trial court's determination that he is mentally ill; rather, he contests its determination that he is "dangerous".

"Dangerous", for purposes of I.C. 12-26, is defined as: "a condition in which an individual as a result of mental illness, presents a substantial risk that the individual will harm the individual or others." I.C. 12-7-2-53 (Burns Code Ed.Repl.1997). "[t]he statutory standard can be met only with clear and convincing evidence indicating that the behavior used as an index of a person's dangerousness would not occur but for that person's mental illness." Commitment of J.B. v. Midtown Mental Health Center (1991) Ind.App., 581 N.E.2d 448, 452, trans. denied.

In this instance, Gerke does not contest that the behavior used as evidence of Gerke's dangerousness would not have occurred "but for" his mental illness. ¹ Rather, he maintains the trial court erred in its determination "that unless there is medication administered and taken that [Gerke] does present a substantial risk of harming others...." Record at 110-11. As support for his position, Gerke notes the absence of any evidence that he ever harmed another person. He claims the only evidence supporting a finding that he presented a danger to others was Dr. Lambertson's testimony: "I feel he is a danger to other people without treatment." Record at 37.

The record corroborates Gerke's contention that he has never, as a result of his mental illness, harmed another person. Although Gerke has a long history of making violent threats to family, there has never been a single episode in which those threats elevated into any type of physical attack. ² Gerke contends that, because he has only made threats, but has never harmed another person, the court's commitment determination was based upon a mere unsupported perception that Gerke "could" be dangerous, and as such, was improper.

This court recognizes the extraordinary curtailment of liberty involved with a commitment to a mental hospital. Recognizing that the loss of liberty produced by an involuntary commitment involves even more than a loss of freedom as a result of confinement, the court in Commitment of J.B., supra, 581 N.E.2d at 451, cautioned that, in cases where a court contemplates commitment premised upon a prediction of future dangerousness:

"[T]he court must exercise extreme caution that it not utterly strip a person suffering from mental illness of the power to make an informed decision concerning risk-taking.... If every idiosyncratic decision entailing some risk of harm made by a mentally ill person exposed him to the possibility of involuntary commitment, there would be an unacceptable risk that the individual is losing his liberty solely because he is afflicted with a mental illness requiring treatment. This is an impermissible result." (Citation omitted).

In Addington v. Texas (1979) 441 U.S. 418, 427, 99 S.Ct. 1804, 1810, 60 L.Ed.2d 323, the United States Supreme Court expressed a strong concern that involuntary commitments might be made on the basis of a few isolated instances of unusual conduct which were otherwise generally acceptable. "[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.' " Commitment of J.B., supra, 581 N.E.2d at 450, quoting Addington, supra, 441 U.S. at 427, 99 S.Ct. at 1810. This concern applies equally to the inherently problematic determination of future dangerousness. Id.

In Commitment of J.B., supra, this court reversed the involuntary commitment of a thirty-one year old female, J.B., who suffered from alcoholism. On three occasions, J.B. was so intoxicated that her mother had to go out to retrieve her. On the first two occasions, J.B. initially went along with her mother, but when her mother's car was stopped at a busy intersection, she got out of the car and ran away through traffic. On the third occasion, J.B. did not get into her mother's car, she instead flagged down a car containing several young men and left in the car with them. The physician who examined J.B. during her emergency detention testified that J.B. was a danger to herself.

In reversing the trial court's decision, this court held the evidence presented fell short of the clear and convincing standard. Specifically, the court determined that, despite the "risky" nature of J.B.'s conduct, there was "no inherent showing in [her] conduct that it would not occur but for her mental illness." Id. at 452.

The court was unable to determine that clear and convincing evidence supported the conclusion that J.B.'s conduct would not have occurred but for her mental illness because her conduct was motivated, at least in part, by her desire to escape from her mother. While recognizing that exiting an automobile in the middle of a crowded intersection is not a choice most members of society would make, the court nevertheless held that something more than a mere showing that a mentally ill person has taken a risk is needed to justify an involuntary commitment. Id. at 451.

Gerke contends that his conduct is precisely the type of idiosyncratic behavior that was inadequate to warrant commitment in Commitment of J.B. However, his reliance on the result in that case is misplaced in that the instant case differs from the situation...