Olivis Covington for www.theindianalaawyer.com

For the second time in little more than one month, the Indiana Court of Appeals has addressed the issue of the Marion Superior Court ordering civil commitments by the judge summarily approving commitment orders signed by commissioners or magistrates without signing the orders. But unlike a prior ruling, a majority of the Indiana Court of Appeals on Wednesday found that issue waived, though a dissenting judge argued litigants cannot waive the issue of a judge’s failure to perform a statutory duty.

The issue of possibly defective commitment orders came before the court again in In the Matter of the Civil Commitment of T.W. v. St. Vincent Hospital and Health Care Center, Inc., 18A-MH-1148. After being diagnosed with schizophrenia in 2013, T.W. began participating in treatment and taking anti-psychotic medication at times despite rejecting his diagnosis. When he was on medication, T.W. was “very friendly, very engaging, [and] amiable,” but during a time when he was not taking his medication, T.W. physically attacked his mother, according to the record.

T.W. was not charged after the attack, but he was ordered take medication and began living with his paternal grandmother. But in December 2017, T.W. unilaterally decided to go off of his medication, which resulted in increased paranoia and multiple reports to the FBI, including a report claiming his friend was a member of ISIS.

The FBI responded to the reports by threatening to file criminal charges against T.W., prompting his father to set up an emergency appointment at the Aspire treatment center. T.W. was aggressive toward the Aspire staff, so he was recommended for emergency detention and was admitted to Community North Behavioral Health.

After being transferred to the St. Vincent Stress Center, Dr. Erika Cornett opined that T.W. presented a substantial risk to others and recommended that he be temporarily committed. Marion Superior Commissioner Kelly M. Scanlan presided over the commitment hearing and ordered T.W.’s commitment after finding clear and convincing evidence that T.W. was a danger to others and was gravely disabled. Scanlan signed the commitment order, but Marion Superior Court probate judge Steven R. Eichholtz did not.

On appeal, T.W. argued first that his commitment order was defective because only Scanlan had signed it. However, the majority of the appellate court — judges Robert Altice and Elaine Brown — found that issue was waived because he “failed to timely object to the order… .”

But in a dissenting opinion, Judge Elizabeth Tavitas relied on last month’s decision in In Re Civil Commitment of L.J., No. 18A-MH-152, slip op. at pp. 4-6, 8 (Ind. Ct. App. Oct. 18, 2018), to find that T.W.’s commitment order was defective and was not a final appealable order.

In L.J., the appellate court ruled that “the trial judge’s entry of a blanket business record order summarily approving all of the commissioner’s recommendations without review by the trial court warranted dismissal of the respondent’s appeal and remand to the trial court judge to review the matter and enter a final order.” Because there was no evidence the judge had specifically referenced L.J.’s civil commitment, the court was “left without any assurance that the trial court fulfilled its obligation to review and enter to final order.”

“Here, the trial court judge was required to enter a ‘decision’ pursuant to Indiana Code section 33-33-49-16(a) and failed to do so,” Tavitas wrote. “The waiver analysis employed by the majority falls short under these unique circumstances because the respondent is penalized for failing to ‘timely’ urge the trial court judge to perform his or her statutory duty. A litigant cannot waive a trial court judge’s exercise of statutory responsibility.”

“… I suspect that clarification, by statute or trial rule, of a litigant’s risk of waiver under circumstances such as these may be necessary,” Tavitas continued. “… A trial rule or statute that discusses waiver and prescribes a time frame for raising the issue before the trial court would put such a litigant on notice in cases in which the underlying order was not duly approved and counter-signed by the trial court judge.”

In a footnote, Altice responded to Tavitas’ argument by saying that despite the majority’s understanding of “the strong desire to address the clear impropriety of the trial court’s handling of the matter, which appears to be a pattern,” the majority disagreed with the decision in L.J. to dismiss the appeal.

The court also found sufficient evidence to support the finding that T.W. is dangerous, with Altice pointing to evidence that “when unmedicated, T.W.’s schizophrenia takes over and he becomes aggressive, paranoid, delusional, and dangerous.”