A.A., Appellant (Respondent) v. Eskenazi Health/Midtown CMHC, Appellee (Petitioner)
Supreme Court Case No. 49S02-1711-MH-688
Indiana Supreme Court
May 17, 2018
Chief Justice Rush
Argued: December 19, 2017 | Decided: May 17, 2018; Appeal from the Marion Superior Court, No. 49D08-1609-MH-31348, The Honorable Steven R. Eichholtz, Judge;
Opinion by Chief Justice Rush
Justices David, Massa, Slaughter, and Goff concur.
Rush, Chief Justice.
Involuntary civil commitment, no less than imprisonment, is a tremendous intrusion on personal liberty and autonomy. Individuals under commitment may be confined against their will, restrained, forcibly medicated, and even kept in seclusion.
A person at risk of commitment, whose very liberty is at stake, is therefore entitled to vigorous due process protections—including the right to appear in person at a proceeding. That right is codified in
Here, A.A.‘s attorney waived A.A.‘s right to personally appear. The hearing proceeded without him, and the trial court ultimately ordered involuntary civil commitment. A.A. appealed, arguing that the waiver violated his due process rights. To clarify uncertainty surrounding waiver of a respondent‘s right to appear, we reach several holdings.
First, a mentally competent civil-commitment respondent may relinquish the right to appear with a knowing, voluntary, and intelligent waiver; but an attorney may not waive the right on the respondent‘s behalf. Second, if the trial court
Because A.A.‘s presence was improperly waived and because that error was not harmless, we reverse and remand for the trial court to vacate the regular involuntary-commitment order.
Facts and Procedural History
In August 2016, thirty-six-year-old A.A. lived with his mother, who grew concerned with his behavior and filed an application for emergency detention. The application stated that A.A. suffered from a psychiatric disorder and that A.A. wasn‘t sleeping, was going outside and making disruptive noises, and wanted to fight family members.
Two days later, the trial court ordered A.A. detained and transported to Eskenazi Hospital. Eskenazi then filed the required report following emergency detention. In the attached physician‘s statement, Dr. David Pollock recommended regular involuntary commitment.
The trial court held a commitment hearing on September 12, 2016. At the beginning of the hearing, the trial court asked A.A.‘s appointed counsel why A.A. wasn‘t there. A.A.‘s counsel replied,
I have been informed that [A.A.] is agitated. I have tried to call him before today‘s hearing to talk to him about his case. He would not answer the phone. I was informed this morning that he was not brought over due to him being agitated. So we are waiving his appearance today.
After Eskenazi‘s counsel confirmed that A.A. had received a summons, the trial court stated, “So, [A.A.] does have notice of the proceedings and he has chosen to waive his right to be present.” The hearing proceeded without A.A.
Eskenazi‘s first witness was Dr. Pollock, who had last seen A.A. three days prior to the hearing. Dr. Pollock opined that A.A. suffered from schizophrenia and that because of his mental illness, A.A. was dangerous to others and gravely disabled. Dr. Pollock also described A.A.‘s behavior since being detained—A.A. had been “menacing” and “aggressive” toward staff and had required restraints or sedatives at times. The doctor explained the side effects of recommended medication for A.A. and found it “highly doubtful” that A.A. would take the medicine voluntarily.
Dr. Pollock then testified about A.A.‘s feelings regarding commitment. Dr. Pollock was aware that A.A. “had been talking about court,” but did not know whether A.A. had “given an opinion one way or another” about being committed—just that A.A. had claimed “he doesn‘t need to be in a hospital.”
Eskenazi next called A.A.‘s mother to testify. She described her son‘s recent behavior, stating that she feared for her own safety. She also explained what could be “agitating” her son: A.A.‘s father had recently died, and A.A. wouldn‘t be able to attend the funeral.
A.A.‘s counsel, who had never met with or spoken to A.A., presented no evidence. At the end of the hearing, the trial court found that A.A. was a danger to others and gravely disabled by his schizophrenia. The court ordered regular involuntary commitment.
A.A. appealed, challenging his commitment order. He argued that the trial court accepted an invalid waiver of his right to appear, denying him due process.
The Court of Appeals partly agreed with A.A. Relying on its recent precedent, the panel held that, for competency reasons, “[a] respondent for a civil commitment hearing cannot voluntarily waive his right
But the Court of Appeals found no due process violation. Id. at 632-34. It noted that a trial court has statutory authority to waive a respondent‘s right to be present in certain situations—such as when the respondent‘s “presence would be injurious to the individual‘s mental health or well-being.” Id. at 633 (quoting
We granted transfer,1 vacating the Court of Appeals opinion.
Standard of Review
The parties collectively raise three issues about a respondent‘s right to be present at a commitment hearing. Specifically, we address (1) who can waive a civil-commitment respondent‘s due process right to appear; (2) whether a trial court exercising its independent statutory authority to waive a respondent‘s presence must do so at the outset of the commitment hearing; and (3) whether a failure to make a proper waiver determination is subject to harmless-error review. We evaluate these pure
Discussion and Decision
Involuntary civil commitment is a significant deprivation of liberty—one that “goes beyond a loss of one‘s physical freedom” and engenders “serious stigma and adverse social consequences.” T.K. v. Dep‘t of Veterans Affairs (In re Civil Commitment of T.K.), 27 N.E.3d 271, 273 (Ind. 2015). Involuntary-commitment respondents thus enjoy due process protections, id., including notice of the commitment proceeding and an opportunity to be heard, see Haegert v. Univ. of Evansville, 977 N.E.2d 924, 950 (Ind. 2012).
The questions here center on A.A.‘s due process right to be present and whether it was violated when his attorney waived his presence and the trial court agreed to the waiver. Though the issues seem straightforward at first glance, that impression hides an underlying web of constitutional and statutory matters. We address these interwoven matters in turn, beginning with whether a civil-commitment respondent can personally waive his right to appear at the commitment hearing.
I. A mentally competent respondent may give up the right to appear at a civil-commitment hearing through a knowing, voluntary, and intelligent waiver; however, the respondent‘s attorney may not waive the right.
A respondent has a due process right to be present at a civil-commitment hearing—a hearing that will address, in part, whether the individual suffers from a mental illness that requires involuntary commitment. This does not mean, though, that a respondent can never exhibit the mental competency to waive the right. Rather, appropriate safeguards can ensure a personal waiver was made knowingly, voluntarily, and intelligently.
Yet, a respondent‘s attorney may not waive the respondent‘s right to appear. The statute that codifies a respondent‘s due process right to appear gives the trial court independent authority to waive a respondent‘s appearance but bestows no waiver authority on an attorney.
A. “Mental illness” and “mental competency” are not equivalent.
Eskenazi and A.A. both argue that the Court of Appeals below announced an overly broad rule: that a respondent, who necessarily faces a claim of mental illness as defined by statute, can never be competent to waive his right to be present at an involuntary-commitment hearing. See A.A., 81 N.E.3d at 632. They contend that this rule perpetuates the wrong presumption that “mental illness” is always equivalent to “mental incompetency.”
The broad holding stems from M.E., in which another panel addressed in dicta whether an individual‘s written waiver validly forfeited his right to be present at his civil-commitment hearing:
It is difficult, if not impossible, to see how an individual who is involuntarily detained under an emergency detention order by a mental health institution can be considered able to exhibit the competency required to sign a valid waiver in which he relinquishes his rights. The [hospital] cannot argue on one hand that someone is mentally ill and on the other hand that he is competent enough to sign a legal document. In other words, an individual cannot be considered so mentally ill that an emergency detention is ordered and a petition for regular commitment is filed but, simultaneously, competent enough that any waiver he may sign is validly obtained. Either an individual is competent, or he is not.
We agree with the parties that M.E. conflates mental illness and mental competency,
Indiana courts have likewise distinguished between mental illness and mental competency. For instance, in Anderson v. State, 699 N.E.2d 257, 260-61 (Ind. 1998), this Court rejected an argument that counsel was ineffective for failing to request a competency hearing for a defendant suffering from schizophrenia. In doing so, we refused to assume that evidence of mental illness would automatically lead to a determination of mental incompetency. Id.; see also Hutchison v. State, 82 N.E.3d 305, 312 (Ind. Ct. App. 2017) (distinguishing between mental illness and mental competency and citing several cases in support).
Because both the legislature and caselaw have distinguished mental illness from mental competency, we disapprove of M.E. to the extent it equates these terms. A court may not assume that a civil-commitment respondent is mentally incompetent just because the person is facing a claim of mental illness. What does this mean, though, for mentally competent respondents who want to waive their right to appear? It means that they may waive that right if certain conditions are met.
B. Involuntary-commitment respondents may waive the right to appear if they are capable of voluntarily, knowingly, and intelligently making that decision.
We arrive at this conclusion by first turning to the statute codifying the due process right to appear at a civil-commitment hearing.
This silence, though, does not mean that a trial court must refuse a mentally competent respondent‘s personal waiver of his presence at a commitment hearing. If it did, then the statutory right to be present
hearing when the statute recognized the right but was silent on personal waiver), trans. denied.
But recognizing a mentally competent respondent‘s ability to personally waive his appearance in a civil-commitment proceeding resolves just the first facet of the inquiry. The next question remains: what procedure must a trial court follow before accepting such a waiver? To answer this, we acknowledge certain realities of a civil-commitment proceeding—that the mental status of a respondent is necessarily at issue and that the State is exercising its parens patriae power.
As stated above, a civil-commitment respondent could exhibit the necessary competency to personally waive an appearance. Yet we are mindful that once an individual is at risk of commitment, that person‘s mental condition is necessarily at issue. See
Safeguards also bolster the State‘s ability to protect and care for a respondent. The Supreme Court of the United States has recognized that “[t]he state has a legitimate interest under its parens patriae powers in providing care to its citizens who are unable because of emotional disorders to care for themselves.” Addington v. Texas, 441 U.S. 418, 426 (1979). If a commitment hearing proceeds without the respondent, the State‘s ability to exercise this power is hindered, as an individual‘s presence will often yield vital information on the most appropriate treatment plan.
Of course, these concerns are also implicated when a civil-commitment respondent wishes to personally waive other due process rights, such as the right to counsel. The Court of Appeals has addressed personal waiver in the right-to-counsel context, explaining that “a principal concern must be whether the patient is capable of making such a decision” and that the waiver must be made “knowingly, voluntarily, and intelligently.” GPH, 578 N.E.2d at 737.
We likewise conclude that before a trial court accepts a respondent‘s personal waiver of the right to appear, it must ensure that the individual is capable of knowingly, voluntarily, and intelligently making that decision. This requires the trial court to expressly find those prerequisites on the record—though how that is done will depend on the particular circumstances of the case. In some cases, mental competency may be more doubtful, and the court may need to diligently observe and question the respondent in person. Other cases may not require such a deep inquiry. Regardless, before accepting a personal waiver of appearance, the trial court must find, through direct contact with the individual, that the respondent understands the nature and importance of the right, the consequences of waiving the right, the elements required to obtain an involuntary
C. An attorney may not waive an involuntary-commitment respondent‘s right to appear.
Nor can a respondent‘s attorney validly waive the respondent‘s right to appear. To be sure, inherent in the respondent‘s right is the personal ability to choose whether to exercise it. But we will not infer another‘s ability to waive the right—to do so would undermine the right itself.
Indeed, the legislature did not intend for waiver by attorney.
(b) The individual alleged to have a mental illness has the . . . right[]:
(3) To be present at a hearing relating to the individual. The individual‘s right under this subdivision is subject to the court‘s right to do the following:
. . .
(B) Waive the individual‘s presence at a hearing if the individual‘s presence would be injurious to the individual‘s mental health or well-being.3
Notably missing is any provision giving waiver authority to an attorney, leaving us to conclude that waiver by attorney is not permitted. Two well-established rules of statutory construction inform our analysis.
Under the doctrine of expressio unius est exclusio alterius, “[w]hen certain items or words are specified or enumerated in a statute then, by implication, other items or words not so specified or enumerated are excluded.” State v. Willits, 773 N.E.2d 808, 813 (Ind. 2002) (quoting Connerwood Healthcare, Inc. v. Forte, 745 N.E.2d 796, 800 (Ind. 2001)). The legislature specifically allowed the trial court to waive a respondent‘s right to appear under narrow circumstances but provided no mechanism for an attorney to do the same. We thus infer that attorney waiver in the civil-commitment context is not permitted. And to ignore this implication and judicially construct an attorney-waiver standard would contravene another statutory-interpretation canon—that courts may not engraft additional or new words onto a statute. See Kitchell v. Franklin, 997 N.E.2d 1020, 1026 (Ind. 2013). Sidestepping these interpretive doctrines would trample on the role of the legislature and erode principles that uphold the separation of powers.
To reiterate, the right to appear is a respondent‘s right. Limiting when that right can be waived by another—in this case, the trial court judge—ensures that those facing involuntary commitment are afforded their day in court. After all, these are some of the most vulnerable members of our society—those who are facing significant deprivations of liberty, such as confinement and forced medication orders. See generally In re Mental Commitment of M.P., 510 N.E.2d 645, 646 (Ind. 1987) (recognizing that forced medication interferes with an individual‘s liberty interest). And stringently safeguarding the right to
In sum,
Here, the record is clear—A.A. did not personally waive his appearance, and the statute does not permit waiver by A.A.‘s attorney. Still, Eskenazi argues there was no due process violation, pointing to the trial court‘s independent statutory authority to waive a respondent‘s appearance if his “presence would be injurious to [his] mental health or well-being.”
II. A trial court must make a statutory waiver determination under Indiana Code section 12-26-2-2(b)(3)(B) at the beginning of a civil-commitment hearing.
Both parties recognize that the trial court can waive a respondent‘s right to appear at a commitment hearing if the respondent‘s presence would be injurious to his mental health or well-being. The parties dispute, however, when the trial court must make this statutory determination. A.A. believes it must be made at the outset of a civil-commitment hearing, while Eskenazi contends that a trial court should be allowed to listen to all relevant evidence before making a waiver decision.
Although
In addition to a respondent‘s right to appear at a commitment hearing,
When viewed as a whole,
We believe that this grouping of certain due process rights in
Eskenazi doesn‘t dispute that a respondent‘s right to appear applies from the beginning of the hearing, but argues that no limitation should be imposed on when waiver must occur. It reasons that placing the waiver determination at the outset of a hearing would be unduly restrictive and would fail to recognize that evidence presented later in the proceeding could inform a waiver analysis.
This position, though, compromises the statute‘s objective, which is to protect civil-commitment respondents by codifying some of their due process rights. A respondent‘s right to appear—which is implicated before the proceeding begins—would not be adequately protected if the trial court conducted the entire hearing before waiving the individual‘s presence. Furthermore, waiver at the end of the hearing would lead to a significant waste of judicial resources. A trial court could conduct a commitment hearing only to conclude that the “injurious” waiver standard wasn‘t met. In that situation, the trial court would have to redo the entire proceeding with the respondent present. We must “presume[] that the legislature intended for the statutory language to be applied in a logical manner consistent with the statute‘s underlying policy and goals.” Prewitt v. State, 878 N.E.2d 184, 186 (Ind. 2007). And accepting Eskenazi‘s argument would run afoul of that presumption. Accordingly, a trial court‘s waiver determination under
Eskenazi is right, of course, that the same evidence may be relevant to both the statutory waiver decision and the ultimate involuntary-commitment decision. When that happens, a trial court can hear evidence about waiver at the beginning of the hearing and then incorporate it into its later decision on commitment.4 This procedure not only conserves judicial resources but also stringently protects a respondent‘s due process right to appear at a commitment hearing.
Still, in some instances a trial court may fail to make a proper statutory waiver determination and the hearing nevertheless proceeds without the respondent. Below, we address how to analyze such an error and then apply that framework to the specific facts of this case.
In the criminal context, the Supreme Court of the United States has classified certain constitutional errors as “structural” because they “affect[] the framework within which the trial proceeds.” Arizona v. Fulminante, 499 U.S. 279, 310 (1991). Since structural errors affect “[t]he entire conduct of the trial from beginning to end,” they cannot be deemed harmless. Id. at 309-10. Many other constitutional errors, however, are
subject to harmless-error review, because they can be “assessed in the context of other evidence presented” to determine if they are “immaterial.” Id. at 308.
A.A. argues that the failure to make a proper waiver determination under
As explained above, when the trial court exercises its waiver authority in involuntary-commitment cases, it makes two determinations. First, at the outset of the hearing, the court determines whether the respondent‘s presence would be injurious to the respondent‘s mental health or well-being.
When the evidence does overlap, an erroneous waiver can be “assessed in the context of other evidence presented,” Fulminante, 499 U.S. at 308. In other words, it‘s possible that a trial court could improperly waive a respondent‘s presence, but then hear evidence that both supports a commitment order and satisfies the “injurious” waiver standard. In such a case, the error would not affect the commitment proceeding from beginning to end—rather, had the trial court followed the proper procedure at the outset of the hearing, there would have been evidence to support waiver of the respondent‘s presence. That is to say, the error would ultimately be harmless.
To be clear though, harmlessness depends not on whether evidence supports commitment, but on the extent of record evidence supporting waiver. And waiver focuses on why being present at the proceeding would be injurious to the respondent‘s mental health or well-being. Often, evidence on mental illness or dangerousness or grave disability—which
are relevant to the main issue of commitment, see
That is precisely what happened here. A.A. has never challenged the evidence supporting his commitment. Rather, he has maintained that the evidence that could point to dangerousness fails to show that his presence in court would have been injurious to his mental health or well-being. For its part, Eskenazi asserts that additional evidence does support waiver, since bringing A.A. to court “against his will” and possibly having to physically suppress him due to his violent tendencies would be injurious to A.A.‘s mental health or well-being. We agree with A.A.
This highlights the importance of a respondent‘s right to appear at an involuntary-commitment proceeding. If present, A.A. could have voiced concerns on issues like adverse side effects of forced medications; assisted his counsel in cross-examining witnesses, such as family members; and offered mitigating evidence. These possibilities bolster our conclusion that
the failure to make a proper waiver determination was not harmless. For that reason, we remand to the trial court to vacate the commitment order.5
Conclusion
This case highlights the importance of due process protections—particularly the right to appear—for those at risk of involuntary commitment. Today, we hold that a respondent can personally waive the right to appear if the waiver is knowing, intelligent, and voluntary; but the respondent‘s attorney cannot waive the right by proxy. Further, if a trial court independently waives a respondent‘s presence, it must do so at the beginning of the proceeding. And, finally, an improper waiver determination is subject to harmless-error review.
Here, the trial court did not make a proper waiver finding at the outset of A.A.‘s involuntary civil-commitment hearing. We conclude the error was not harmless, given the lack of evidence on whether A.A.‘s appearance would have been injurious to his mental health or well-being. For that reason, we reverse and remand to the trial court to vacate the commitment order.
David, Massa, Slaughter, and Goff, JJ., concur.
ATTORNEYS FOR APPELLANT
Ruth A. Johnson
Deborah B. Markisohn
Marion County Public Defender Agency
Appellate Division
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Bryan H. Babb
Bose McKinney & Evans LLP
Indianapolis, Indiana
Jessica Proctor Barth
Julie M. Conrad
Eskenazi Health Legal Services Department
Indianapolis, Indiana
Rush, Chief Justice.
Notes
[E]vidence must be presented to the trial court establishing that the respondent‘s presence would be injurious to his mental health or well-being. In other words, evidence must address the specific components of the statute. This evidence may incorporate by reference documents such as the application for emergency detention, the report following emergency detention, and the physician‘s statement.A.A., 81 N.E.3d at 634. Eskenazi disagrees, arguing that the panel simply recognized that if a party wished to use a pretrial filing, it would need “foundational, admissible evidence to incorporate those filings.” We agree that Eskenazi‘s reading reflects proper evidentiary procedure.