In the Matter of the Commitment of Z.P., Z.P. v. Memorial Hospital (mem. dec.)

MEMORANDUM DECISION Mar 25 2015, 9:25 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT Steven E. Ripstra Jacob P. Wahl Ripstra Law Office Jasper, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Commitment March 25, 2015 of Z.P., Court of Appeals Case No. 19A04-1410-MH-500 Z.P., Appeal from the Dubois Circuit Appellant-Respondent, Court. The Honorable William E. Weikert, v. Judge. Cause No. 19C01-1409-MH-155

Memorial Hospital, Appellee-Petitioner.

Barteau, Senior Judge

Statement of the Case [1] Z.P. appeals from the trial court’s judgment, which directed that he must be

involuntarily committed for outpatient mental health treatment. We affirm.

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Issue [2] Z.P. argues that there is insufficient evidence to sustain the trial court’s

judgment. The dispositive issue is whether Z.P. invited error, but we also

consider whether there is sufficient evidence to support the judgment.

Facts and Procedural History [3] Z.P. is a veteran and served our country in Iraq in 2007. He received mental

health services through the Veterans’ Health Administration (VA) after

returning home. [4] In September and December 2011, Z.P. was detained at Memorial Hospital in

Jasper, Indiana, for mental health issues. Each time, he was detained for

several days. Next, he was detained at Memorial Hospital for mental health

issues twice in May 2014: from May 13 through May 15, and May 17 through

May 21. Dr. Robert White, a psychiatrist at Memorial Hospital, treated Z.P. at

that time. Dr. White was “very concerned” about Z.P.’s poor prognosis, which

posed a “risk to not only [Z.P.] but the police force.” Tr. p. 6. Dr. White was

also concerned about Z.P.’s noncompliance with treatment. Dr. White told

Z.P. that if he came back to Memorial Hospital and was not complying with

treatment, Dr. White would seek to have him involuntarily committed for

further treatment. Dr. White concluded that Z.P. needed more intensive

services and discussed Z.P.’s case with the VA. [5] Z.P. continued to receive treatment from the VA. The VA “flagged him as high

risk,” indicating he was to see a therapist on a weekly basis. Id. at 3. His

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therapist went on maternity leave in July 2014, and Z.P. refused to see other

therapists. Furthermore, prior to going on leave, Z.P.’s therapist reported that

Z.P. had only partially complied with recommendations and was “minimally

engaged in treatment.” Id. [6] In the fall of 2014, Z.P. applied for a treatment program through the VA, but he

failed to appear for three interviews and was deemed to be unsuitable for the

program. In addition, the VA offered Z.P. intensive outpatient programs or

partial hospitalization, and he rejected those options. [7] On September 11, 2014, police officers brought Z.P. to Memorial Hospital.

Z.P. had expressed thoughts of suicide, and when officers arrived at his

location, he brandished knives with the intent to commit “suicide by cop.” Id.

Z.P. dropped the knives and surrendered only after an officer threatened to use

a Taser. Later that same day, a Memorial Hospital employee contacted the

trial court and requested an emergency detention order for Z.P. The court

granted the hospital’s request. [8] Next, a Memorial Hospital employee asked the trial court to order a longer

commitment for Z.P. The court scheduled an evidentiary hearing and

appointed counsel to represent Z.P. [9] During Z.P.’s hospitalization, Dr. White diagnosed him with “alcohol use

disorder, antisocial personality disorder, unspecified depressive disorder, and

probable PTSD.” Id. at 2. These diagnoses were “essentially the same as what

had been there” during Z.P.’s prior hospitalizations at Memorial Hospital. Id.

Court of Appeals of Indiana | Memorandum Decision 19A04-1410-MH-500 | March 25, 2015 Page 3 of 11 [10] The court held an evidentiary hearing on September 25, 2014. Dr. White

testified that in his opinion, Z.P. was “dangerous to self and others.” Id. at 2.

Z.P. did not dispute that he needed additional treatment, testifying as follows:

With regards to the treatment from the VA, I 100% agree that I do need treatment. I know I need to get better and I am willing to go to the VA and see a therapist while my current therapist is on maternity leave. I’m willing to do that. I know I need to get better and I need to get fixed and I need to take my medicine. Id. at 4.

[11] Z.P. further stated, “I will abstain from alcohol. I’m going to have to with my

legal issue. I will take random drug screens. I will do all that, but I want to see

the VA instead of Southern Hills.” Id. at 5. He agreed that he needed help

“with the PTSD.” Id. Finally, Z.P. told the court:

[I]npatient care is probably the best option for me right now, and I was made aware that Heather had discussed a facility in Marion, Indiana. And they are looking into that as an option for me. The VA. I’ll have to wait for what they have to say. Id.

[12] After hearing the evidence, the court determined:

I’m going to find that there is sufficient proof for regular commitment, finding that [Z.P.] is suffering from illnesses described by Dr. White, that he has been dangerous to himself and others[,] that the best facility where he can receive treatment and care at this point is Southern Hills which is the least restrictive environment suitable for the necessary care, treatment and protection of [Z.P.] And the conditions are they [sic] will hopefully provide the right treatment for you and allow you to be

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in an environment where you can succeed rather than keep coming back to the hospital as you have been in the past. Id. at 6.

[13] The court rejected Z.P.’s request for services through the VA rather than

Southern Hills, stating “that’s not working” and “I don’t see anything that the

VA has to offer that is going to make it any different than it has been.” Id. at 6-

7. The court noted that Southern Hills provided only outpatient services, but if

Southern Hills’ staff determined that an inpatient VA program would help Z.P.,

the court would not object. This appeal followed.

Discussion and Decision [14] Z.P. argues that there is insufficient evidence to support the trial court’s

decision that he is in need of an involuntary commitment for medical care.

Memorial Hospital, the health care provider that sought Z.P.’s involuntary

commitment, has not filed an Appellee’s Brief. When the appellee fails to

submit a brief, we will not undertake the burden of developing an argument on

its behalf. Geico Ins. Co. v. Graham, 14 N.E.3d 854, 857 (Ind. Ct. App. 2014).

Instead, we will reverse the trial court’s judgment if the appellant’s brief

presents a case of prima facie error. Id. In this context, prima facie error is

defined as at first sight, on first appearance, or on the face of it. Id. Even under

the prima facie error rule, we are obligated to correctly apply the law to the facts

in the record in order to determine whether reversal is required. Id. If the

appellant is unable to meet the burden of establishing prima facie error, we will

affirm. Id.

Court of Appeals of Indiana | Memorandum Decision 19A04-1410-MH-500 | March 25, 2015 Page 5 of 11 [15] Before addressing the merits of Z.P.’s claim of insufficient evidence, we

conclude that he invited any error. The doctrine of invited error, which is

grounded in principles of estoppel, states that a party may not take advantage of

an error that he or she commits, invites, or which is the natural consequence of

his or her own neglect or misconduct. Witte v. Mundy, 820 N.E.2d 128, 133

(Ind. 2005). [16] During the evidentiary hearing in this case, Z.P. conceded that he “need[ed]

treatment.” Tr. p. 4. He agreed that he “need[ed] help with the PTSD.” Id. at

5. Z.P. further expressed a willingness to see a therapist or participate in an

inpatient treatment program. He disagreed with the proposal to receive

treatment through Southern Hills, arguing that he would prefer to get treatment

from “the VA instead of Southern Hills,” but he did not dispute the need for 1 some form of court-ordered treatment. Id. Having conceded that he is

mentally ill and having agreed to receive court-ordered treatment, Z.P. invited

any error arising from an alleged lack of evidence to support the trial court’s

determination that a commitment for mental health treatment was appropriate.

See Beeching v. Levee, 764 N.E.2d 669, 674 (Ind. Ct. App. 2002) (appellant

invited any error arising from the admission of evidence because he asked the

trial court to admit the evidence).

1 Z.P. does not claim on appeal that the trial court erred by committing him to the care of Southern Hills rather than the VA.

Court of Appeals of Indiana | Memorandum Decision 19A04-1410-MH-500 | March 25, 2015 Page 6 of 11 [17] Waiver notwithstanding, we address Z.P.’s claim. An individual who is shown

to be mentally ill and either dangerous or gravely disabled may be involuntarily

detained or committed for different periods of time specified by statute,

including as an immediate detention, an emergency detention, a temporary

commitment, or a regular commitment. Ind. Code § 12-26-1-1 (1992). This

case concerns a regular commitment, the most extensive form of commitment.

A regular commitment is a commitment that is “reasonably expected to require

custody, care, or treatment in a facility for more than ninety (90) days.” Ind.

Code § 12-26-7-1 (1992). It applies to individuals who appear to be suffering

from chronic mental illnesses. Ind. Code § 12-26-7-2 (2004). [18] Upon receiving a petition or a report requesting involuntary treatment of an

individual for more than ninety days, the trial court must schedule a hearing.

Ind. Code § 12-26-7-4 (1992). A petitioner seeking an involuntary, regular

commitment must prove at the hearing “by clear and convincing evidence” that

the individual is mentally ill and either dangerous or gravely disabled, and that

commitment of the individual is appropriate. Ind. Code § 12-26-2-5 (2007). If,

at the completion of the hearing and upon consideration of the record, a trial

court determines that an individual is mentally ill and either dangerous or

gravely disabled, the court may enter an order:

(1) For the individual’s custody, care, or treatment, or continued custody, care, or treatment in an appropriate facility. (2) For the individual to enter an outpatient therapy program under IC 12-26-14. Ind. Code § 12-26-7-5 (2009).

Court of Appeals of Indiana | Memorandum Decision 19A04-1410-MH-500 | March 25, 2015 Page 7 of 11 [19] When reviewing a challenge to the sufficiency of the evidence with respect to

commitment proceedings, we look to the evidence most favorable to the trial

court’s decision and draw all reasonable inferences from that decision.

Commitment of M.M. v. Clarian Health Partners, 826 N.E.2d 90, 96 (Ind. Ct. App.

2005), trans. denied. We may not reweigh the evidence or judge the credibility

of witnesses. In re Involuntary Commitment of A.M., 959 N.E.2d 832, 835 (Ind.

Ct. App. 2011). If the trial court’s decision represents a conclusion that a

reasonable person could have drawn, we will affirm even if other reasonable

conclusions are possible. G.Q. v. Branam, 917 N.E.2d 703, 707 (Ind. Ct. App.

2009). [20] Z.P. does not dispute the trial court’s determination that he is mentally ill.

Instead, Z.P. claims there is insufficient evidence to support the trial court’s

determination that he is “dangerous to himself and others.” Tr. p. 6. [21] For the purpose of an involuntary civil commitment, “dangerous” 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.” Ind.

Code § 12-7-2-53 (1992). We consider three factors in determining whether the

evidence supports the involuntary commitment: the gravity of the behavior

leading to the hospital admission, behavior in the hospital, and the relationship

between problematic behaviors and the person’s mental illness. In re

Commitment of T.K., 993 N.E.2d 245, 248 (Ind. Ct. App. 2013), trans. denied.

Court of Appeals of Indiana | Memorandum Decision 19A04-1410-MH-500 | March 25, 2015 Page 8 of 11 [22] In this case, Z.P.’s behavior prior to his hospital admission strongly supports

the trial court’s decision. He threatened police officers with knives in an

attempt to provoke the officers to kill him. He thus endangered himself and the

officers. Dr. White had expressed concerns about Z.P.’s safety in May 2014.

In addition, despite repeated hospitalizations for mental health treatment, Z.P.

did not cooperate with his treatment providers prior to the detention at issue

here. His VA therapist reported that he was noncompliant and disengaged

from treatment. After she went on maternity leave, Z.P. refused to see a

different therapist, resulting in him failing to participate in therapy from July

2014 until his detention in September 2014. He also rejected the VA’s

recommendations for intense outpatient or partial hospitalization programs. [23] The record also reflects a strong relationship between Z.P.’s mental illnesses

and his dangerous behavior. Z.P. concedes that his “behavior would not have

occurred but for his mental illness.” Appellant’s Br. p. 8. In addition, Dr.

White treated Z.P. at Memorial Hospital in May 2014, and he was concerned

at that time that Z.P.’s “poor prognosis” would put Z.P. and police officers at

risk. Tr. p. 6. Dr. White further stated that Z.P. had failed to follow through

on the “many types of treatment” that had been offered to him and had warned

Z.P. in May 2014 that further failure to comply with treatment would cause

Memorial Hospital to seek a regular commitment. Id. The VA had classified

Z.P. as “high risk,” and as a result Z.P. was required to appear for weekly

counseling sessions. Id. at 3.

Court of Appeals of Indiana | Memorandum Decision 19A04-1410-MH-500 | March 25, 2015 Page 9 of 11 [24] This evidence is sufficient to establish a prima facie case of dangerousness,

which is the basis for the trial court’s order of involuntary regular commitment.

See Commitment of S.T. v. Cmty. Hosp. North, 930 N.E.2d 684, 692 (Ind. Ct. App.

2010) (evidence sufficient to establish dangerousness where patient was

hospitalized after attempting suicide, and her destructive behavior was caused

or exacerbated by her mental illness). [25] Z.P. notes that the record is silent as to whether he behaved well at Memorial

Hospital following his detention. Lack of disruptive behavior while

hospitalized is a valid consideration, but more troubling is Z.P.’s history of

repeated, short-term hospitalizations, which did not cause Z.P. to correct his

behavior or to comply with treatment recommendations after the

hospitalizations ended. [26] Z.P. cites to In the Matter of the Commitment of L.W. v. Midtown Community Health

Center, 823 N.E.2d 702 (Ind. Ct. App. 2005), in support of his appeal, but that

case is distinguishable. There, police brought L.W. to a hospital because he

was found holding an “iron object” when they came to his apartment. Id. at

704. No other facts were provided about that encounter, and a panel of this

Court deemed the evidence insufficient to support the order of commitment. Id.

By contrast, in this case the record demonstrates that the police confronted Z.P.

because he had made references to suicide, and when they arrived he threatened

them with knives in an attempt to provoke them into killing him. This case

presents more specific evidence of dangerousness. Also, in L.W.’s case the

evidence showed that he had cooperated with his treatment providers. By

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contrast, the record in this case reflects that Z.P. largely failed to cooperate with

the VA’s treatment plans, even after Dr. White advised him that further

noncompliance coupled with misbehavior could result in Memorial Hospital

seeking an involuntary regular commitment. Z.P. has failed to establish prima

facie error.

Conclusion [27] Z.P. invited any error with respect to the sufficiency of the evidence supporting

his involuntary regular commitment. In any event, the evidence is sufficient to

support the trial court’s judgment. For the foregoing reasons, we affirm the

judgment of the trial court. [28] Affirmed.

Vaidik, C.J., and Barnes, J., concur.

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