In the Matter of the Civil Commitment of: D.W. v. Indiana University Health Methodist (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 11 2018, 9:00 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Joel M. Schumm Jenny R. Buchheit Indianapolis, Indiana Gregory W. Pottorff Ice Miller LLP Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

In the Matter of the Civil May 11, 2018 Commitment of: Court of Appeals Case No. 49A02-1710-MH-2343 D.W., Appeal from the Marion Superior Appellant-Respondent, Court v. The Honorable Steven R. Eichholtz, Judge Indiana University Health Trial Court Cause No. Methodist, 49D08-1709-MH-34676

Appellee-Petitioner. Brown, Judge. Court of Appeals of Indiana | Memorandum Decision 49A02-1710-MH-2343 | May 11, 2018 Page 1 of 14 [1] D.W. appeals the trial court’s September 22, 2017 Order of Regular

Commitment of D.W. We affirm.

Facts and Procedural History [2] On September 12, 2017, Indiana University Health Methodist (“Methodist”)

filed a petition for involuntary commitment of D.W. which alleged that D.W.

was born in June of 1958, is suffering from a psychiatric disorder, and is gravely

disabled. The petition listed the following tasks which D.W. does not perform

independently: “attend treatment (ECT. Outpatient therapy),” “comply with

medication regimen,” and “take care of self and ADLs, daily functioning.”

Appellant’s Appendix Volume II at 13. A physician’s statement by Dr. Michael

Metrick dated September 12, 2017, was also filed in which Dr. Metrick stated

that he examined D.W. on that date and that in his opinion she is suffering

from schizoaffective disorder with recurring catatonia, is gravely disabled, and

is in need of custody, care, or treatment in an appropriate facility. On

September 21, 2017, the court held a commitment hearing at which it heard

testimony from Dr. Metrick and Erin Robertson, who worked for The Center

for At-Risk Elders (“CARE”) which provided services for D.W. [3] On September 22, 2017, the court issued an Order of Regular Commitment

stating that it found, by clear and convincing evidence, that D.W. “is suffering

from a psychiatric disorder, specifically schizoaffective disorder with recurrent

catatonia, which is a mental illness,” is “gravely disabled, as defined in I.C. 12-

7-2-96,” and “is in need of custody, care, and treatment at Indiana University

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Health Methodist, Psychiatry / Behavioral Health Unit for a period expected to

exceed ninety (90) days.” Id. at 9. The court ordered that D.W. be committed

to the designated facility until discharged or until the court terminates the

commitment and that the facility submit a periodic report no later than

September 21, 2018, at which time the treatment plan will be reevaluated.

Discussion [4] D.W. requests that this Court vacate her involuntary commitment and argues

that the trial court’s decision is not supported by sufficient clear and convincing

evidence of grave disability. In order for a trial court to order a regular

commitment, there must be clear and convincing evidence that an individual is:

(1) mentally ill; and (2) either dangerous or gravely disabled. T.D. v. Eskenazi

Health Midtown Cmty. Mental Health Ctr., 40 N.E.3d 507, 510 (Ind. Ct. App.

2015) (citing Ind. Code § 12-26-7-1); Ind. Code § 12-26-2-5(e) (setting forth the

clear and convincing standard). The clear and convincing evidence standard is

an intermediate standard of proof greater than a preponderance of the evidence

and less than proof beyond a reasonable doubt. T.D., 40 N.E.3d at 510. In

order to be clear and convincing, the existence of a fact must be highly

probable. Id. In reviewing the sufficiency of the evidence, we will consider

only the evidence favorable to the judgment and the reasonable inferences

supporting the judgment, and we will not reweigh the evidence or assess the

credibility of witnesses. Id.

Court of Appeals of Indiana | Memorandum Decision 49A02-1710-MH-2343 | May 11, 2018 Page 3 of 14 [5] D.W. does not challenge the trial court’s finding that she is mentally ill.

Instead, she argues that the evidence does not support the court’s determination

that she is “gravely disabled.” Ind. Code § 12-7-2-96 provides:

“Gravely disabled”, for purposes of IC 12-26, means a condition in which an individual, as a result of mental illness, is in danger of coming to harm because the individual:

(1) is unable to provide for that individual’s food, clothing, shelter, or other essential human needs; or

(2) has a substantial impairment or an obvious deterioration of that individual’s judgment, reasoning, or behavior that results in the individual’s inability to function independently.

The statutory language looks to the patient’s behavior at the time of the

hearings, not to the patient’s history. See Commitment of M.E. v. Dep’t of Veterans

Affairs, 64 N.E.3d 855, 863 (Ind. Ct. App. 2016). [6] D.W. argues that the trial court’s finding that she is gravely disabled is not

supported by the requisite proof of clear and convincing evidence. She argues

there is no evidence that she was in danger of coming to harm at the time of the

hearing because of an inability to provide food or shelter, and that Dr. Metrick

testified she was not malnourished and had been living on her own in an

apartment for at least a few months before her hospitalization. She also

contends that she was not at risk of coming to harm because of any impairment

or deterioration of judgment or behavior and was sufficiently capable of

functioning independently.

Court of Appeals of Indiana | Memorandum Decision 49A02-1710-MH-2343 | May 11, 2018 Page 4 of 14 [7] Methodist responds that D.W.’s arguments that she can provide herself with

food and shelter amount to a request to reweigh the evidence. It states that Dr.

Metrick explained that D.W. is unable to meet her essential human needs when

her catatonia takes hold and there was a rapid increase in recurrence of

symptoms and decompensation after D.W. transferred to an apartment, that

Robertson confirmed that D.W. can feed herself appropriately when

hospitalized, and that there was no evidence D.W. can provide herself with

food when she is not medicated. It argues that Dr. Metrick testified and

Robertson confirmed that D.W. will not take her medication without

supervision, that Dr. Metrick noted that D.W.’s recurrent hospitalization was

occasioned in part by her non-adherence to treatment, that Dr. Metrick testified

that, without treatment, catatonia can be a terminal condition, and that

Robertson testified that D.W. was not functioning independently at the time of

the hearing. [8] At the commitment hearing, Dr. Metrick testified that he is a staff psychiatrist

with Methodist and his opinion of D.W.’s condition has not changed since he

filed his physician’s statement. He testified that D.W. “was referred to us from

another hospital where she was taken secondary to decompensation for her

mental concerns,” “[t]here was concern regarding recurrence of catatonia and

some worry about suicideality,” “Community Hospital has assessed her, knew

our familiarity with her and asked if we would be willing to hospitalize her,”

“[w]e’ve had [D.W.] under our care periodically over the last year and a half,”

“[s]pecifically in the last year alone, from September 2016 to know [sic] this is

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the fifth in-patient hospitalization we’ve had with her and we’ve cared for her,”

and “I have personally been involved with those admissions as well.”

Transcript Volume II at 7. He estimated that he examined D.W. ten to twelve

times during the latest admission, and stated that a temporary civil commitment

had been granted in September 2016. [9] Dr. Metrick testified that D.W.’s condition is consistent with schizoaffective

disorder, which has been her long-term diagnosis, that “she carries a very

specific sub-set of symptoms that we term catatonia,” and that schizoaffective

disorder with recurrent catatonia is a mental illness. Id. at 8. When asked to

explain the reason for his diagnosis, Dr. Metrick testified:

It’s the catatonia portion that has been most prominent and the one that we have observed most first-hand. When [D.W.] has fallen ill, she has exhibited a multitude of features. Most of it is extreme negativism. That includes basic difficulties communicating her needs, her caring for herself, prolonged periods of immobility and lack of speech. Inability to attend to ADL’s. Severe brakenesia; slow movements. The admission just prior to this, there has been a duration of immobility for nearly a full day and emergency services were called to her aid at that point in time. The basic difference[s] include difficulty feeding self, caring for herself. Thought blocking where there’s a significant poverty of content and difficulty, you know, engaging in any type of dialogue.

Id. at 8-9. He indicated that D.W.’s lack of insight with regard to catatonia is

one of the reasons for the recurrence of her in-patient stays.

Court of Appeals of Indiana | Memorandum Decision 49A02-1710-MH-2343 | May 11, 2018 Page 6 of 14 [10] When asked if D.W. is unable to provide herself with essential human needs

such as food, clothing, shelter, Dr. Metrick testified:

She requires assistance with those, essentially with – when we first were made familiar with her she was living independently and had an apartment. But unfortunately, over the last year and a half, with these recurrent bouts of catatonia she did lose that apartment ultimately and needed to be placed in a nursing facility. A skilled nursing facility where she has a period of time of doing a little bit better with some recurrence. Since transitioning out, she has had the CARE organization advocating for her and assisting her getting back into some sort of apartment situation. Over the last few months unfortunately, we’ve seen a rapid increase in recurrence of symptoms and decompensation since being back in an apartment. She has required definitely supervision with those basic daily needs, including medication.

Id. at 10. When asked if D.W. has “any difficulty feeding herself appropriately

at this time,” he answered “[w]e’ve observed that – well, I would not say today,

no. But when – during the highest impairment points certainly.” Id. When

asked “is she unable to meet those needs as a result of her mental illness,” he

replied “[y]es, when catatonia takes a hold, certainly she would be unable to

meet those needs.” Id. at 11. [11] When asked “does [D.W.] also suffer substantial impairment or obvious

deterioration of her judgment, reasoning or behavior that results in her inability

to function independently,” Dr. Metrick replied “Yes. And with the catatonia,

it is very difficult to have any conversation regarding treatment or needs. And

at that point in time, the capacity for informed decision making is certainly lost.

Necessitating historically of course, the previous commitment and the Court of Appeals of Indiana | Memorandum Decision 49A02-1710-MH-2343 | May 11, 2018 Page 7 of 14

appointment of a guardian.” Id. He indicated that D.W.’s mental illness affects

her ability to take her medications. He also testified that, based on his

treatment of D.W., she is gravely disabled. Dr. Metrick further testified “we

have not experienced any direct self-threats or any violent behaviors,” “[o]ur

primary concern is for safety towards herself is a more indirect effect of

decompensation,” “[c]atatonia in its most extreme form is also – can become

what we call malignant or lethal catatonia requiring even ICU stays,” “[o]ur

idea is to maintain enough stability to prevent that from occurring,” and

“without treatment, it can be actually a terminal condition.” Id. at 11-12. [12] Dr. Metrick further testified “[a]lternate plans have unfortunately failed to

maintain stability including a previous temporary commitment, and

appointment of guardianship,” “[w]e continue to find barriers and get lapses in

treatment that have led to chronic recurrence of the illness,” “[w]e believe that

she needs a long maintenance plan,” and “[w]e are considering a long-term

plan, either in some structured environment with staff supervision and even

state hospital is being considered.” Id. at 12. When asked if D.W. responded

well to the medications when taken, Dr. Metrick replied “[y]es, we see a

dramatic improvement.” Id. at 14. When asked if he believed D.W. can be

relied upon to take her medications without supervision, he responded “[n]o, at

this point she will take them with supervision, but unfortunately her recurrence

of hospitalization has been led to partly by non-adherence with treatment.” Id.

He stated:

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[D.W.’s] prognosis is . . . good. We’ve seen a quite a big improvement with [D.W]. Prior to the last year and a half. When she was able to work independently. Or live independently, I’m sorry. She used to be employed at one point in the past. We do see a big change in her when she gets treatment regularly. Unfortunately, we think that there is enough gaps in the treatment that the back slide prevents maintaining that stability. Our hope is with more stabilized treatment she will restore well and be able to return to independent living and function well.

Id. at 16. He testified that her prognosis without treatment is very poor. [13] On cross-examination, when asked if D.W. improved during the last one and

one-half years, Dr. Metrick answered “[w]ell . . . it’s been up and down. She’s

better today than when she came into the hospital, but with each admission she

ends up back where we started. So it’s definitely been a sawtooth.” Id. at 18.

He indicated that D.W. was not malnourished. When asked “and since she has

been on the unit she has been eating,” he answered “[s]he has . . . it’s always

slow at the beginning but it does improve as her treatment takes hold.” Id. at

20. [14] Robertson testified that she is a client advocate for CARE and she discusses

medical care with physicians, arranges appointments and transportation, and

sets up services in the community. She indicated that her relationship to D.W.

is that she is “her team lead,” that the role is similar to a guardian, and that

“[w]e became permanent guardian on 3-2 of 17, but we received a referral from

Methodist on October 12th of ’16.” Id. at 24. She testified that, when CARE

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received a referral from Methodist, D.W. was ready for discharge but was

deemed incapacitated, that her family at that time was refusing to make

decisions on her behalf, and she needed a guardian to make discharge plans. [15] Robertson testified that when D.W. is taking her prescribed medications, she is

able to communicate with people that she trusts, can engage in her care and

treatment, and can complete her ADL’s on her own with minimal assistance.

She testified that when D.W. is not taking her medication as prescribed, “[h]er

thought processes has [sic] slowed way down,” “[s]he’s unable to communicate

or carry on a conversation regarding treatment,” “[s]he is very distrusting and

paranoid,” and she “[i]solates.” Id. at 26. Robertson indicated she did not

believe D.W. can be relied upon to take her prescribed medications

independently. When asked about other treatment options, she testified that

CARE has tried to connect D.W. with services with Adult and Child, that

during the intake she became very paranoid and distrusting and refused to

continue, and she did not want to commit to group therapies or their intensive

outpatient services in the community where they would visit her at her

apartment. [16] Robertson indicated that she did not believe D.W. can function independently

at this time. She testified “when [D.W.] is in the community on her own she

doesn’t function independently,” “[s]he needs assistance with medication

management,” and “[s]he needs twenty-four hour observation, transportation to

treatments. Things that – services that don’t exist for what is appropriate for

[D.W.].” Id. at 27. When asked if she believed D.W. has difficulty feeding

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herself appropriately, Robertson testified: “When [D.W.] is in the hospital, I

believe she can feed herself appropriately because they serve meals. When she

is in her apartment, she can walk to the store and by [sic] microwave meals.

And feed herself that way, but do I think that it is adequate? No.” Id. On

cross-examination, Robertson indicated that D.W. can eat microwave meals

and walk to the store on her own when taking medications. [17] D.W.’s counsel argued that D.W. “should be committed to temporary instead

of a regular.” Id. at 39. The court stated:

Well, in this matter there’s no doubt that [D.W.] suffers from schizoaffective disorder . . . catatonic type. . . . The guardianship is not sufficient because she still is becoming catatonic. Still having to go to the hospital because even under the provisions of the guardianship, and a substitute caregiver for lack of a better term; decision maker. She is still lapsing into stages of catatonia. . . . Which, by the Doctor’s testimony if that continues it could be lethal. The Court therefore will grant a regular commitment to . . . Methodist. . . .

Id. [18] Although Dr. Metrick indicated D.W. was not malnourished and Robertson

indicated D.W. could microwave meals and walk to the store when on her

medications, Methodist elicited testimony that D.W. cannot be relied upon to

take her medications without supervision and her recurrent hospitalization was

occasioned in part by her non-adherence to treatment, that she needs assistance

with medication management and twenty-four hour observation, that there was

a rapid increase in recurrence of symptoms and decompensation after she

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moved to an apartment, and that, when catatonia symptoms occur, she is

unable to meet her needs. Dr. Metrick testified at length regarding D.W.’s

prognosis and the symptoms she presents, and he testified that catatonia in its

most extreme form can become malignant or lethal and that, without treatment,

can be a terminal condition. Based upon the record, we conclude that clear and

convincing evidence supports the trial court’s finding that D.W. is gravely

disabled for purposes of her involuntary commitment. [19] To the extent D.W. asserts that the court erred in admitting certain hearsay

testimony and the error was not harmless, we note that at one point during the

commitment hearing Robertson began to testify “[t]he hospitalization before

the current hospitalization, we received a phone call that . . . ,” D.W. then

objected on hearsay grounds, and the court sustained D.W.’s objection.

Transcript Volume II at 28. According to the hearing transcript, immediately

after the court sustained D.W.’s objection, Robertson testified: “CARE received

a phone call from Methodist Hospital that [D.W.] was brought in by the police

early in the morning. She was found on a bench outside of the convention

center, catatonic. And had got lost on the bus through the night.” Id. at 29.

D.W. did not request the court to strike Robertson’s testimony. We presume

that the court, consistent with its own ruling, did not consider the challenged

statements of Robertson and did not consider inadmissible evidence. See Morfin

v. Estate of Martinez, 831 N.E.2d 791, 800 n.5 (Ind. Ct. App. 2005) (noting that

we presume that a trial court in a bench trial rendered its judgment solely on the

basis of admissible evidence); see also Shanks v. State, 640 N.E.2d 734, 736 (Ind.

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Ct. App. 1994) (noting that, in a trial without a jury, it may be presumed that

the judge will disregard inadmissible and irrelevant evidence). The trial court

did not reference the challenged statements in either its comments at the

commitment hearing or in its commitment order. Further, the other testimony

elicited from Robertson and from Dr. Metrick as set forth above and in the

record is sufficient to support the court’s determination that D.W. is gravely

disabled. See Commitment of M.M. v. Clarian Health Partners, 826 N.E.2d 90, 96

(Ind. Ct. App. 2005) (finding the improper admission of certain third-party

statements was harmless as a doctor’s testimony regarding his personal

observations of M.M. during her detention adequately supported the

commitment order). In light of the trial court’s evidentiary ruling, the fact

D.W. did not move to strike the challenged statements, the presumption the

court did not consider inadmissible evidence, and the other unchallenged

testimony elicited from Robertson and Dr. Metrick, we conclude that the fact

the trial court did not interrupt and prohibit Robertson from making the

challenged statements or explicitly strike the statements does not necessitate

reversal.

Conclusion [20] The evidence supports the trial court’s determination that D.W. is gravely

disabled and its order of involuntary commitment. For the foregoing reasons,

we affirm the trial court’s September 22, 2017 Order of Regular Commitment of

D.W.

Court of Appeals of Indiana | Memorandum Decision 49A02-1710-MH-2343 | May 11, 2018 Page 13 of 14 [21] Affirmed.

Bailey, J., and Crone, J., concur.

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