Olivia Covington for www.theindianalawyer.com

A man whose attorney waived his right to be present at his mental health civil commitment hearing will be released from involuntary commitment after the Indiana Supreme Court ruled that attorneys may not waive a client’s right to be present at those hearings. The court also found that trial courts can independently waive a respondent’s presence but must do so at the beginning of a civil commitment proceeding.

The court reached that unanimous decision Thursday in A.A. v. Eskenzai Health/Midtown CMHC, 49S02-1711-MH-688. The case began when 36-year-old A.A.’s mother filed an application for emergency detention of her son, who had been diagnosed with schizophrenia and previously had been hospitalized for his mental illness. After being admitted to Eskenazi, A.A. was recommended for involuntary commitment and was scheduled for a committee hearing in September 2016.

A.A. did not appear at that hearing, with his counsel informing the Marion Superior Court that he was waiving A.A.’s presence because A.A. was “agitated” and would not answer the phone. The attorney then called Dr. David Pollock as a witness, and Pollock testified that A.A.’s “menacing” and “aggressive” behavior made him dangerous to others and gravely disabled.

The court subsequently ordered A.A.’s involuntary commitment, and the case proceeded to the Indiana Court of Appeals, where attorneys asked the court to provide guidance on an area of law that was not well developed. The appellate court determined that civil commitment respondents could not voluntarily waive their presence at a commitment hearing, but neither could their attorneys.

The Court of Appeals also determined that trial courts have statutory authority to waive a respondent’s right to be present when their “presence would be injurious to the individual’s mental health or well-being.” That was the case here, the panel ruled, so A.A. did not suffer a due process violation. However, the court also found that trial courts must make waiver determinations at the outset of civil commitment hearings.

The appellate court ultimately affirmed A.A.’s involuntary commitment, and the case proceeded to the Indiana Supreme Court in December, where attorneys once again urged the court to provide guidance on the waiver of a right to be present at a commitment hearing. In providing that guidance on Thursday, Chief Justice Loretta Rush first wrote that a respondent who is mentally competent can make a knowing, voluntary and intelligent waiver of their right to be present.

“A court may not assume that a civil-commitment respondent is mentally incompetent just because the person is facing a claim of mental illness,” Rush wrote, noting the court disapproved of a contrary holding in In re Commitment of M.E., 64 N.E.3d 855, 860-61 (Ind. Ct. App. 2016).

Rush went on to write that trial courts must expressly find that respondents are capable of making knowing, voluntary and intelligent waivers on the record, an inquiry she said would be case-sensitive.

“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 commitment, and the applicable burden of proof,” she said.

Turning to the applicable statute, Indiana Code section 12-26-2-2, the court then found that respondents and trial courts are given the right to waive their presence, but attorneys are not considered by the statute. Thus, A.A.’s attorney could not legally waive his right to be present, the court found.

Finally, the justices agreed with the Court of Appeals that trial courts must waive a respondent’s right to be at a hearing at the outset of the hearing. The court based that holding on the structure of the statute, which lists three due process rights: the right to notice of a hearing, copy of the petition and counsel.

“We believe that this grouping of certain due process rights in Indiana Code section 12-26-2-2(b) was deliberate,” Rush wrote. “They share a common temporal characteristic — they attach before a commitment hearing, and their utility decreases or even disappears if a respondent cannot exercise them in a timely manner.”

“… 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,” she continued.

If a trial court fails to make a proper statutory waiver, the court determined that error is subject to harmless-error review. The court stressed that harmlessness does not depend on whether the evidence supports commitment, but whether it supports waiver, which addresses whether being present at a hearing would be injurious to the respondent.

In this case, the court determined the waiver of A.A.’s presence was not harmless because the court did not know why A.A. was agitated and, thus, whether his presence would have been injurious. The justices remanded the case to vacate A.A.’s commitment order.