A.J. v. Logansport State Hosp.

• Decision Date: 19 September 2011
• Docket Number: No. 66A05–1012–MH–805.,66A05–1012–MH–805.
• Citation: 956 N.E.2d 96
• Parties: A.J., Appellant,v.LOGANSPORT STATE HOSPITAL, Appellee.
• Court: Indiana Appellate Court

956 N.E.2d 96

A.J., Appellant,

v.LOGANSPORT STATE HOSPITAL, Appellee.

No. 66A05–1012–MH–805.

Court of Appeals of Indiana.

Sept. 19, 2011.

Craig A. Dechert, Kokomo, IN, Attorney for Appellant.Gregory F. Zoeller, Attorney General of Indiana, Frances Barrow, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

CRONE, Judge.

Case Summary

After A.J. was charged with two counts of class A felony child molestation, he was found incompetent to stand trial and was committed to Logansport State Hospital (“Logansport”) for competency restoration services. After six months, A.J. had not attained competency, and Logansport initiated regular commitment proceedings as required by statute. Following a hearing, the trial court found A.J. mentally ill and dangerous and granted the commitment petition.

A.J. appeals, presenting several arguments: (1) that Logansport failed to comply with the statutory rule requiring that the commitment proceedings contain a report from a community mental health center; (2) that the trial court erred in admitting State's Exhibit 1, a psychological testing report completed by a Logansport employee for the purpose of assessing A.J.'s risk of sexual recidivism; (3) that there was insufficient evidence that he was dangerous; and (4) that he was denied due process because the trial court took into account that competency restoration services are offered only in state institutions and because he cannot be restored to competency. We conclude as follows: (1) that Logansport may be considered a community mental health center for the purpose of satisfying the statutory report requirement; (2) that State's Exhibit 1 was admissible as it constituted both a statement made for purposes of medical diagnosis and a report made in the course of a regularly conducted business activity; (3) that there was sufficient evidence that A.J. is dangerous; and (4) that the trial court's consideration of competency restoration services and the probability that he will attain competency did not violate his due process rights. Accordingly, we affirm.

Facts and Procedural History

The pertinent facts stem from three different causes involving A.J.: the instant civil commitment case, cause number 66C01–0910–MH–16 (“MH–16”), the criminal case giving rise to this civil commitment case, cause number 66C01–0808–FA–2 (“FA–2”); and a previous criminal case, cause number unknown. The facts provided herein are taken solely from the record of this civil commitment case, which is the only record before us.

A.J. was born prematurely at twenty-two weeks' gestation in December 1986. He suffered a stroke in utero causing deafness, partial blindness, a seizure disorder, and porencephaly (an area involving a cyst or cavity), which continues to enlarge, in the left side of his brain. His IQ is 65, which is in the mild mental retardation range. He also has hypothyroidism. He attended the Indiana School for the Deaf in Indianapolis from preschool until age twenty, and uses sign language to communicate.

In 2007, while still at the School for the Deaf, A.J. was involved in an incident that gave rise to his first criminal conviction. The facts are sparse and uncertain. The State presents the facts as testified to by A.J.'s mother (“Mother”). She testified that A.J. and another boy carried a girl down some stairs. The other boy got on top of the girl. When the girl cried and screamed, A.J. left to find a teacher and brought the teacher back to help the girl. A.J. was charged with sexual battery and pled guilty to criminal confinement.¹

In August 2008, A.J. was on probation for his criminal confinement conviction and living with his mother in Pulaski County, when the State filed FA–2, the criminal case leading to the civil commitment in issue here. In FA–2, the State charged A.J. with two counts of class A felony child molestation. Specifically, the State alleged that between December 2007 and July 2008, A.J. molested his niece and nephew, ages three and five. Again, the facts are sparse. According to the June 3, 2010, psychological testing report (“State's Exhibit 1”) prepared by Judy Gilbert, a master's-level behavioral clinician at Logansport, A.J. “reported” that he touched his nephew's penis once and that he had vaginal intercourse with his niece twice as she sat on his lap. State's Ex. 1. Gilbert states, “It is unclear how the matter was investigated and how this resulted in his charges.” Id.

After his arrest in FA–2, from October 2008 through April 2009, A.J. was on in-home detention. During that time, “he was compliant in all aspects of the program.... There was [sic] no issues of him being out of range. He was always in the presence of either his mother or his stepfather the entire time.” Tr. at 16.

At some point in FA–2, the trial court determined that there were reasonable grounds for believing that A.J. was not competent to stand trial and ordered that he be evaluated by two psychiatrists, Dr. Ned P. Masbaum and Dr. Steven H. Berger. On January 12, 2009, Dr. Masbaum submitted his report opining that “it is unlikely that [A.J.] can ever be restored to competence to stand trial.” Respondent's Ex. at 9.² On January 24, 2009, Dr. Berger submitted his report, in which he stated, “[A.J.] will never be restored or habilitated to competence to stand trial. He ha[s] the mind of a 5 year old. He never has had and never will have the cognitive ability to achieve competence to stand trial.” Id. at 22.

The trial court held a hearing on A.J.'s competency, found that A.J. was not competent to stand trial, and ordered him committed to the Division of Mental Health and Addiction (“DMHA”) of the Indiana Family and Social Services Administration (“FSSA”) to receive competency restoration services. Competency restoration services in Indiana are offered only in DMHA-operated state hospitals, of which there are six. A.J. was ordered to receive those services at Logansport State Hospital and was admitted there on April 30, 2009.

In July 2009, Dr. Douglas R. Morris, a staff psychiatrist at Logansport, evaluated A.J.'s competency to stand trial.³ At that time, Dr. John R. Thompson was A.J.'s treating psychiatrist. At no time relevant to this appeal has Dr. Morris been A.J.'s treating psychiatrist. In September 2009, Dr. Morris again evaluated A.J.'s competency. In the September 2009 competency evaluation, Dr. Morris concluded that “[A.J.] is not currently capable of understanding the nature and objectives of the legal proceedings against him,” and “is not currently capable of assisting counsel in his defense.” Respondent's Ex. B. at 5. Dr. Morris recommended that A.J. remain at Logansport “for further treatment and evaluation, continued competency restoration efforts, an[d] initiation of Regular Commitment proceedings.” Id. at 6.

On October 7, 2009, Logansport, through its designee Dr. Thompson, filed a petition for the involuntary commitment of A.J., thereby initiating MH–16. The petition alleged that A.J. was suffering from a psychiatric disorder and a developmental disability. The petition averred that A.J. was “gravely disabled” and “not able to provide for his essential human needs secondary to his mental illness and his developmental disability.” Appellant's App. at 12. The petition indicated that there were no “recent harmful acts or significant threats of harmful acts.” Id. at 11.

Along with the petition, Dr. Thompson filed a “Physician's Statement.” Id. at 13. Dr. Thompson indicated that A.J. was suffering from a psychiatric disorder, “Pedophilia,” and a developmental disability, “Mild Mental Retardation.” Id. Dr. Thompson stated that A.J. was gravely disabled, rather than dangerous, as a result of these conditions. Dr. Thompson stated that in his opinion, A.J. was in need of “custody, care, or treatment in an appropriate facility,” that voluntary treatment was not appropriate because A.J.'s “developmental disabilities and lack of insight prevent his being able to invest himself in voluntary treatment,” that Logansport was “suitable for the necessary care, treatment and protection” of A.J. and others, and that Logansport was “the least restrictive environment.” Id. at 14–15.

On September 29, 2010, the trial court held a hearing on the commitment petition. At the time of the hearing, A.J. had been at Logansport seventeen months. Dr. Morris testified as an expert witness for Logansport. A.J. stipulated to Dr. Morris's credentials as an expert. Logansport submitted State's Exhibit 1, the psychological testing report completed by Judy Gilbert, through Dr. Morris. A.J. objected on grounds that it was not his complete medical record, that it did not have a certificate of authentication, and that Gilbert was not present at the hearing. Tr. at 30–31. The trial court admitted State's Exhibit 1 over A.J.'s objection. In State's Exhibit 1, Gilbert concluded that A.J.'s sexual risk assessment indicated that he was at a high risk to sexually reoffend.

On December 3, 2010, the trial court entered its amended order ⁴ granting Logansport's petition for involuntary commitment, which reads in relevant part as follows:

7. [A.J.] was convicted of criminal confinement in Marion County, Indiana, for an act that occurred while he was at the Indiana School for the Deaf, and was subsequently placed on probation.

....

9. [A.J.] was charged with child molesting while residing with [Mother] and on probation.

....

12. [Mother] obtained a guardianship over the person and estate of [A.J.] subsequent to his placement at Logansport State Hospital.

13. [Mother], with the assistance of several other adults, has developed a plan to assist [A.J.] with his personal care, in what might be characterized as assisted living.

14. [Mother], with the assistance of several other adults, has developed a safety plan to insure that [A.J.] commits no criminal acts while under her care.

15. The Cass/Pulaski Community Corrections Program has approved that plan [an...