F. J. v. State

• Decision Date: 29 September 1980
• Docket Number: No. 2-677A220,2-677A220
• Citation: 411 N.E.2d 372
• Parties: F. J., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 372

411 N.E.2d 372

F. J., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 2-677A220.

Court of Appeals of Indiana, Fourth District.

Sept. 29, 1980.

John Blumenthal and Jonathan E. Butterfield, Indianapolis, for appellant-defendant.

Theodore L. Sendak, Atty. Gen., Indianapolis, for appellee-plaintiff.

MILLER, Judge.

This action consolidates appeals from a temporary civil commitment of respondent F. J., a 29-year old physician, to Larue D. Carter Memorial Hospital and from the subsequent extension of such commitment.

Both proceedings were brought pursuant to Ind.Code 16-14-9.1-1 et seq., an act pertaining generally to the care and treatment of mentally ill persons. With respect to her initial temporary commitment F.J. challenges the sufficiency of the evidence supporting her commitment and the constitutionality of the commitment statute. Additionally, she contends there were various procedural irregularities in her commitment hearing. Her further appeal-from the extension of such commitment-challenges only the constitutionality of the appropriate statute.

Although our decision determines the relevant statute is not constitutionally defective, and thus that the second commitment must stand, we further conclude the initial temporary commitment was in error. More specifically, we hold that the evidence presented at such hearing did not rise to a level even approaching "clear and convincing" proof, in part because the evidence in support of such commitment failed to reveal the testimony of at least one physician who had "personally examined" F.J. to determine her mental condition within the meaning of IC 16-14-9.1-7(e)(3). Accordingly, we affirm in part and reverse in part.

Our discussion of the facts relevant to the background of this case first observes that the appropriate statutory procedure concerning treatment of mentally ill persons prescribes three types of involuntary commitment or detention, all of which are pertinent to the procedures employed with respect to F.J. See IC 16-14-9.1-3. These three types are emergency detention, which may not exceed 72 hours; temporary commitment, which may be for 90 days and is renewable upon appropriate procedures for up to an additional 90 days and regular commitment, which may be for an indefinite period. See IC 16-14-9.1-7 et seq.

The record reveals F.J. was initially committed in 1977 to the Regional Mental Health Center in Kokomo pursuant to an application for 72-hour emergency detention filed January 26 in the Miami Circuit Court by her parents. That petition, which appears to have complied with the appropriate statute requiring a physician's statement based on examination or on information given such physician, ¹ recited that one Dr. D. C. Reyes of Miami, Indiana had examined F.J. on January 26 and found she might endanger someone if she drove an automobile and that based on information supplied to him he was also of the opinion F.J. was mentally ill and dangerous. ² No error has been raised with respect to the emergency detention of F.J.

As noted above, F.J.'s two appeals concern her later temporary commitment and the 60-day extension of that commitment. Pursuant to IC 16-14-9.1-8, commencement of a temporary commitment may be accomplished either voluntarily, as provided in subsection (a) of that statute, or as follows:

"(b) By an order of the court having jurisdiction over the person alleged to be mentally ill and either dangerous or gravely disabled following emergency detention.

(c) By the filing with a court having jurisdiction in the county of residence of the person or in the county where the person may be found of a written petition by a person eighteen (18) years of age or older. The petition must include a physician's written statement which states that:

(1) he has examined the person within the past thirty (30) days; and

(2) he is of the opinion that the person is mentally ill and either dangerous or gravely disabled and in need of custody, care, or treatment in an appropriate facility." (Emphasis added)

We note that where a commitment is initiated by court order pursuant to subsection (b), provision is made that a hearing date may not be later than 10 days from the order, presumably because the person alleged to be mentally ill is already being detained under an emergency detention. IC 16-14-9.1-9(b). By contrast, where a petition is employed under subsection (c) to commit an individual who is not then under detention the hearing may not be held in less than 10 days from the date of an appropriate notice. Id.

It is of some significance that F.J.'s temporary commitment was not commenced under subsection (b) by a court order based on a probable cause report from the facility where she was detained for 72 hours and indeed there was no such report in the record, although a probable cause report is clearly mandatory where an emergency detainee is temporarily committed. In particular, the appropriate statute requires a superintendent's report which asserts either probable cause for a maximum 90-day detention, or the lack of such probable cause, in which case discharge is appropriate. IC 16-14-9.1-7(b)-(e). It may well be that the Legislature contemplated such a probable cause report should be the exclusive initiating procedure for a temporary commitment where there has been a previous emergency detention, although the parties to this appeal do not raise this issue concerning the commencement of F.J.'s temporary commitment.

In the instant case, such commitment of F.J. was commenced when her parents filed, pursuant to subsection (c), a petition on February 3, 1977, this time seeking a commitment for up to 90 days and alleging she was mentally ill and might come to harm on account of her inability to provide herself with food, clothing, shelter or other essential needs. That petition was supported by a statement from a Donald L. Roegner, M.D., otherwise unidentified as to specialty, who stated he had examined F.J. on February 2 and found her mentally ill and "dangerous and gravely disabled." See IC 16-14-9.1-8(c)(2).

A hearing on such petition was set for February 4, the next day, at 10 a.m., and was apparently commenced at that time. ³ The record shows notices of that hearing were served by the sheriff on the day of the hearing "by reading (them) within the hearing" of F.J., her father, and James A. Grund, prosecuting attorney for Miami County. The evidentiary portion of the hearing began in the afternoon on February 4, at which F.J. was apparently represented by a deputy prosecuting attorney James H. Grund. There was testimony by F.J. herself, Dr. Reyes, Mrs. Linda Rusie, F.J.'s father and her mother. Based on such testimony, F.J. was found to be mentally ill and gravely disabled and ordered committed to Laure D. Carter Memorial Hospital for a period not to exceed 90 days. As noted above, she initially appeals that commitment order.

Her second appeal considered herein follows from the later extension of the original 90-day temporary commitment. On April 26 Dr. Donald F. Moore, medical director at Larue D. Carter, filed with the circuit court pursuant to IC 16-14-9.1-9(i) a petition for extension of the temporary commitment, stating F.J. was mentally ill, dangerous and gravely disabled, and that it Of the various arguments employed by F.J. to attack her initial temporary commitment on February 4, we need only consider one: whether there was sufficient evidence at the hearing under an appropriate standard for the court to conclude, pursuant to IC 16-14-9.1-9(g)(2), she was "mentally ill and gravely disabled." We conclude there was not.

was in her best interest to continue receiving treatment. At about the same time he filed with the court a certificate recommending the regular commitment of F.J. pursuant to IC 16-14-9.1-10. Following a hearing on May 18, 1977, the temporary commitment of F.J. was extended for a period not to exceed 60 days. ⁴

We first summarize the evidence which was presented at that hearing. Thus, there was testimony from F.J. herself that as a medical doctor she had completed her internship and four months of a residency in family medicine in Florida. She also stated that at various times she had traveled from Florida back to her home town in Indiana, most recently to get advice from her parents, the petitioners in the instant action, whether to practice in her home town or elsewhere. During at least one of those trips to Indiana she worked with Dr. Reyes. Her father, a petitioner in this action, stated F.J. had not otherwise worked since 1975, when she failed to renew a position when her contract ran out, and that "the main reason for this whole thing was to keep her here so she wouldn't go back to Florida, and then we realized that we had to have somebody help us to get her some treatment, ...." He generally asserted that F.J. was unable to properly take care of herself, in that she would eat too little and had a phobia regarding eating, and that she "stays up all night till 2 o'clock in the morning and sleeps all day the next day." He also stated F.J. was not violent, although she would become angry with her parents for "no reason whatsoever." F.J.'s mother contributed no evidence of substance, stating in essence she would go along with whatever the doctors found.

The testimony of Dr. Reyes may be taken to corroborate the conclusion F.J. did not eat sufficient food, since he testified that at 92 pounds she was perhaps twenty pounds below a "normal" or "good" weight for her of 110 to 112 pounds. It is not clear there was any sudden weight loss, nor was there any testimony she had ever weighed more than about 102 to 106 pounds, which F.J. stated was her weight in high school. Also significant is the caveat attached to Dr. Reyes' conclusion that F.J. "should be hospitalized to the extent that we should give the psychiatrist ... a free hand, to determine how much hospitalization is necessary":...