*1 In the of the Matter Civil Commitment M.L., Appellant-Respondent,

of:

ESKENAZI HEALTH MIDTOWN / CMHC,

MENTAL HEALTH

Appellee-Petitioner. Appeals No.

Court Case

49A02-1612-MH-2823 Appeals of Indiana.

June *2 por Attorney Appellant: K. exposed during Valerie recent hospitaliza- his Boots, Defender, left, County In- tion. M.L. but Marion Public returned on November 28, 2016, again dianapolis, requesting to speak with Dr. Patel. Dr. Patel observed M.L. to be Barth, Attorney Appellee: Jessica *3 “very disorganized, pressured, paranoid. Health, Indianapolis, Eskenazi Speaking be[ing] spy about a and record- ing everything. Weeding a of list all [And] Riley, Judge. exposures.” (Transcript chemical p. She became peti- concerned and filed another THE OF CASE STATEMENT tion, seeking emergency of detention M.L., Appellant-Respondent, appeals The application M.L. physician’s included a grant'of Appellee-Petition the trial court’s statement, emergency was signed which on er’s, Hofepital Health Corporation The and the date. same Dr. re-admitted M.L. of County- Marion Eskenazi d/b/a/ inpatient to psychiatric the unit. The hos- Mental Health CMHC Health/Midtown pital Report a Following Emergency filed (Eskenazi), request temporary for commit 30, on 2016, Detention November which ment. a physician’s included statement. in part, part, We affirm reverse re-admission, Upon M.L.’s Dr. Patel with instructions. remand having very determined that a [wa]s “[h]e episode bi-polar clear of mania. Which has ISSUES very impaired thought led process. [a] review, M.L. raises one for our issue quite paranoid, delusional, He quite [wa]s which we restate Eskenazi as: Whether 7).- (Tr. very pressured.”' p. given M.L. was presented to support sufficient evidence emergency agitation medication for several special condition of commitment. hospital at the times but refused all of issue, presents one which Eskenazi “placed in fered medications. was M.L. Eskenazi as: Whether is enti restate safety. restraints for He had a num made attorney’s appellate pursuant tled to fees about—actually ber of statements about 66(E), Appellate to Indiana Rule (Tr. killing p. He made himself[.]” threatening gestures to statements AND FACTS PROCEDURAL people ward other on the unit and of spoke HISTORY purchasing gun a for protection. 14, 2016, thirty-year- On November 2016, 6, On December court trial inpatient old M.L. was admitted to the unit evidentiary During hearing. conducted ’ hospital emergency Eskenazi on an de proceedings, Dr. Patel testified petition tention. Eskenazi filed a for invol dangerous M.L. both was himself and untary day, that same commitment which others, gravely by his mental disabled by

was the trial court. M.L. was denied in that he not to provide illness was able hospital from the on released November food, shelter, clothing, his basic own 22, 2016. Dr. requested Patel also that the needs. 24, 2016, impose special re On M.L. certain condi November hospital speak turned to the part tions M.L. as the Order (Dr. Commitment,- Patel), attending psy including “not use Aimee Patel he .other, pre or drugs, chiatrist. he that Dr. Patel alcohol than When learned those (Tr. day, by M.L. was there asked scribed medical doctor.” certified 18-19). evidence, staff At pp. for a the chemicals he been list had close J.B., involuntarily 766 N.E.2d Commitment M.L. be trial court ordered 2002)). statutory “Indiana hospital on a tem- to Eskenazi committed affirm that value and period not and case law porary basis exceed facing dignity commit- Am'ong conditions ninety days. individual con- great ment treatment is societal of the Commitment Order part made (citing In Re cern.” Mental Commit- “upon the trial court’s mandate was M.P., status,” ment “shall attaining outpatient 1987)). proof instant case involves the The drugs, other than those not use impose necessary conditions a certified medical doctor.” II, 7).' attaining outpatient Because upon status. (Appellant’s App. Vol. great, public importance an issue *4 appeals. facts M.L. now Additional recur and for likely is to which that provided necessary. as will be practically is undevel- Indiana law case it oped, here. we will address AND DECISION DISCUSSION I. Mootness and Waiver B. Waiver entirely appellate brief is Eskenazi’s Next, that Eskenazi advances legal devising to not as devoted avenues so to as he appeal, M.L. this failed waived to address the merits M.L.’s appeal. object imposition of to “the the However, all of contentions faü due these 8). Finding p. Br. (Appellee’s condition.” misunderstanding to apparent an the replete opportuni “the M.L.’s record legal of objection mechanics and waiver. imposition spe to the object ties to of the Mootness A. condition,” Eskenazi our cial reiterates respective appellate their

In may party “[a] that well-known doctrine briefs, advocates Eskenazi and M.L. con argument or an to an present not issue the case moot the that is cedes because party the that appellate court unless raised 5, expired Order of Commitment March argument (Ap- or to the trial court.” issue Therefore, court render 2017. this (reference cannot 9) omitted); see, pellee’s-Br. p. to See re effective relief M.L. In Commit Ross, e.g., Carson v. T.K., Ct. ment 993 N.E.2d 1987), denied, App. reh’g trans. 2013), court a denied. “When trans. Eskenazi Consequently, denied. maintains to

is a to render effective relief unable to that issue to a “[t]o choose advance usually deemed moot party, the case of the appeal a scarce re full is waste However, although moot Id. dismissed.” governmental sources of three different' cases, dismissed, courts usually defender, are [Eskenazi], public the entities: may recognized a case long have- be (Appellee’s this Court.” course Br. exception on merits under an decided its 9)p. general to rule when the case involves the Eskenazi It is clear that a harbors “great public Id. questions interest.” misunderstanding of what constitutes falling in Typically, “great public the cases a represents what meritorious waiver and contain exception” that are issues

interest claims the first appeal. Eskenazi to waiver likely recur. Id. to object to present M.L. failed be when testimony as Dr. direct question

“The Patel’s which persons how she -involuntary special condition particular was re subject commitment are impose. Then, court to great questing the trial trial courts is one of by our treated that M.L. to ask argues In Re Eskenazi failed importance society.” (quoting “why requesting Dr. Patel she was trial court When mandated any way” imposition condition or refer to it in of the special during condition during hearing, cross-examination. trial (Appellee’s judg Br. court issued its time, ment. At that p. hospital proper The contends legal M.L. ave “[i]f to challenge nue a concern trial particular had a about condi- court’s decision is by raising not imposed -court, objection—as by tion trial no evi presented—but by dence is filing either hearing, have it which should raised motion to correct error filing notice explain have would allowed Clearly, latter, of appeal. M.L. choose the in why it was best interest not appeal we find his has merit. drugs during drink use his acute episode bi-polar (Appellee’s mania.” Br. Special II. Condition lastly, And issue with Eskenazi takes M.L. contends the trial M.L.’s counsel’s silence when' trial court its abused discretion when it includ in favor during ruled Eskenazi ed the special condition its Order proceedings imposed “[a]s conditions (cid:127) therefore, Commitment and the condition commitment, if placed outpatient, of the be stricken. should Indiana Codé section alcohol or drugs use [M.L.].... [shall] permits court to order 12-26-14-3 *5 than prescribed by-a physi- other those special conditions when individual (Tr. cian.” involuntarily outpatient committed to care: may The require or- individual Because civil commitment is a outpatient to enter an therapy dered significant deprivation liberty that re to program following: do the ][ quires the process due burden protections, (1) the therapy Follow the program indi- Texas, petitioner. Addington falls on the v. n vidual enters. 441 99 60 L.Ed.2d U.S. S.Ct. 323 (2) psychiatric Attend each medical and (1979). Accordingly, the burden rested for appointment made the individual. present with to sufficient evi Eskenazi (3) at by Reside a location determined imposition of support dence to the the the court.. However, special rather than ac condition. (4) with other conditions deter- Comply knowledging that it carried burden of the by mined the court. establishing proof the by necessary evi dence, Eskenazi now transfers this burden special Such conditions “must be reason squarely places and it M.L. charac ably designed the protect to as individual it to terizing object as failure to the Giles, general public.” well as Golub v. the the In imposition special' condition. oth 1034, 1041(Ind. 2004), App. 814 Ct. N.E.2d words, failing er Eskenazi M.L. faults trans. denied. There must be “sufficient it, to During-Dr. make the case for Patel’s evidence in the record for the trial court to testimony upon it Eskenazi was incumbent special conclude” the “bears condition respect to. elicit sufficient with' relationship” evidence to the commit reasonable its particularities request pro the and its ted and to the individual’s treatment impose challenged special reason the tection of others. we Id. When review nothing sufficiency There for M.L. to challenge condition. was to the this evi M.L, to, dence, object a bur to the favor and was under we look most evidence present special as to able to den to the court’s decision draw evidence and from deci necessity. condition’s all inferences Silence indeed reasonable was reweigh Id. 1040. neither may best sion. at We strategy here. 224 any is devoid credibility of observe judge nor we record

the evidence showing or abused Id. used the witnesses. evidence M.M. alcohol drugs. subject or alcohol The appellate chal propriety The of an during the drug use was or never raised commitment lenge special to a condition in is no hearing. Because there evidence previously: only twice has been considered prohi- Giles, suggest that such a the record Ct. v. Golub denied, 2004), any relationship M.M. v. M.M.’s trans. and bition bears App. Partners, pub- N.E.2d 90 Health or the protection Clarian treatment 2005), In denied. both that the lic, agree parties trans. we condi we struck the precedents, imposed. improperly condition was tion. M.M., 826 N.E.2d 99. Golub, imposed In the trial court here, record is barren Likewise from “harass prohibiting Golub conditions drugs use of alcohol or as to M.L.’s or oth assaulting family or members ing suggestion is no there drugs ers,” from “using alcohol M.L,’s any relationship to bears condition aby those certified other than protection public. or the of the Golub, treatment N.E.2d at medical doctor.” During requested testimony, her appealed argued that 1040. Golub prohibit to abuse they were not trial court improper conditions were as they were not requested by physician, drugs or to other than any alcohol use physician’s on the assessment Go- prescribed by based a certified medical those lub, relationship examination, they no bore asked on When direct doctor. for his reasons commitment. Because substances; any he use “[d]oes Golub found evidence the record (Tr. p. responded, drugs?” Dr. Patel *6 members, con we family had threatened 10). (Tr. footnote, Eskenazi p. In a “No.” prevent that the condition special cluded obvious that that “[i]t claims should be relation ing harassment bore a reasonable have drugs of or would use alcohol M.L.’s ship properly to his treatment and was grave disabil his conditions exacerbated However, finding Id. at 1041. imposed. dangerousness.” Br. ity (Appellee’s and any that ] “the record devoid evidence [ 2). But, Golub, 14, fn. as in Eskenazi did drugs,” or alcohol or used abused Golub any this present supporting not evidence condition im special concluded that we Accordingly, as there statement. ‘obvious’ “Although imposed. [Golub’s Id. properly im support the is insufficient evidence to it suggests appeal that was physician] on condition, affirm of this position we judi trial court to take permissible part the trial order in but reverse court’s is notice of that alcohol a cial the fact spe in instruction to strike part with ‘could interact depressant’ ‘known from con prohibiting M.L. cial condition unpredictable in with Golub’s treatment suming drugs, prescribed not alcohol sugges no ways,’ there is this evidence doctor, from the by a certified medical tion in the record.” of Commitment. Order than our year Less a after decision Fees Appellate Attorney’s III. Golub, again in con considered involuntary out it is part ditions ordered as that Eskenazi contends treatment in patient attorney’s pursu fees appellate M.M. entitled 66(E), claim Appellate Rule ant Indiana respect prohibiting the condition With drugs, or consuming ing M.M. from alcohol

[b]ringing appeal, on rights narrow based tional on based Eskenazi’s own mis- single argument clearly- understanding was legal mechanics the failure to raise that objection waived—with and waiver is remarkable. We actually creating issue below the ostensi- deny request. Eskenazi’s (he., appeal basis ble for the a lack condition)—cannot evidence about a be CONCLUSION of acceptable within the bounds advoca- Based the foregoing, we affirm cy. the trial court’s in part order but reverse

(Appellee’s p.Br. part in with instruction to strike the spe Appellate Indiana Rule cial prohibiting M.L. from condition con 66(E) provides, pertinent part, suming alcohol drugs, may assess if an damages doctor, “[t]he a certified medical from the ... appeal is or in faith. deny frivolous bad Order of Commitment. We Eskena- Damages shall be in the request Court’s discretion zi’s for appellate attorney’s fees may attorney’s dis pursuant 66(E). include fees.” Our Appellate Indiana Rule attorney’s cretion to award fees under in' part, Affirmed in part, reversed 66(E) limited, Appellate Indiana Rule is and remanded with instructions. however, to when an is appeal instances meritlessness, permeated faith, with bad Najam, J. concurs harassment, vexatiousness, frivolity, Bradford, J. with Wentzel, separate dissents purpose delay. Thacker v. opinion Addi tionally, Appellate while Rule Bradford, Judge, dissenting. 66(E) provides this with discretion respectfully I disagree with the ma ary authority damages on appeal, award jority’s conclusion that adequately we must use exer extreme restraint when preserved his present claim that Eskenazi cising power potential because support spe ed evidence to insufficient chilling upon effect the exercise of the commitment, cial of his specifi condition right appeal. Id. cally, he using refrain from being permeated than Rather drugs outpa unauthorized he attain should faith, meritlessness or appeal bad *7 I Consequently, tient respectfully status. entirely proper exercise of his constitu dissent. rights process tional appellate due “ review, precedent based on ‘A party generally appel established waives Moreover, this argument court. we aback of an are taken late review issue unless with for request appellate party argument Eskenazi’s at issue raised torney’s against fees to Cty. be assessed anoth before the trial court.’” Benton Rem Zoning Appeals er arm of the v. County govern same Marion onstrators Bd. of County Cty., The Marion 905 1096 ment. Public Benton Defender N.E.2d 2009) and Eskenazi App. (quoting serve a similar clientele—the Ct. GKC Ind. The atres, Inv’rs, LLC, indigent most com vulnerable our v. Elk Inc. Retail munity—and 2002)). part both of that are vital N.E.2d public same for safety County. opportunity object net ample Marion had To imposition seek retribution financial from the condition but did Agency protecting Public at If Defender in so the trial court level. M.L. do voluntarily individuals’ I is near objected, committed constitu- had believe it certain simply have asked Eskenazi would drugs’or if inter could medications,

fere with have answered in the affir

and she would Cty. Remonstrators, Benton

mative. See (“Had the Remon- 1096-97 issue at

strators raised

level, parties had an then would have pro develop

opportunity record and to when

vide the court evidence as panel. mailed clerk The Remon- fact-sensi

strators cannot now raise such a raising it

tive without first before the issue giving parties

trial court other fully

opportunity the issue and address Therefore,

develop appeal. a record for have

conclude the Remonstrators I this'argument.”). would

waived Because chal any M.L. has waived

conclude that

lenge might imposition he have had condition, I would affirm

judgment of the trial court. CALVIN,

Darryl Appellant- L.

Defendant,

v. Indiana, Appellee-Plaintiff.

STATE of Appeals No. Case

02A03-1701-CR-93 *8 Appeals Indiana.

June July

Publication ordered