Argued: December 19, 2017
from the Marion Superior Court, No. 49D08-1609-MH-31348 The
Honorable Steven R. Eichholtz, Judge
Petition to Transfer from the Indiana Court of Appeals, No.
ATTORNEYS FOR APPELLANT Ruth A. Johnson Deborah B. Markisohn
Marion County Public Defender Agency Appellate Division
ATTORNEYS FOR APPELLEE Bryan H. Babb Bose McKinney &
Evans LLP Indianapolis, Indiana Jessica Proctor Barth Julie
M. Conrad Eskenazi Health Legal Services Department
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.
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 Indiana Code section
12-26-2-2(b), which also gives the trial court authority to
waive the individual's presence if appearing at the
hearing would be injurious to the person's mental health
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.
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
independently waives a respondent's presence at a
commitment hearing, it must do so at the outset of the
proceeding. And, finally, an improper waiver determination is
subject to harmless-error review.
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.
and Procedural History
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.
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.
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.
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.
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
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."
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.
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
appealed, challenging his commitment order. He argued that
the trial court accepted an invalid waiver of his right to
appear, denying him due process.
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 to be present at a
commitment hearing." A.A. v. Eskenazi Health/Midtown
CMHC, 81 N.E.3d 629, 632 (Ind.Ct.App. 2017) (citing
M.E. v. Dep't of Veterans Affairs (In re Commitment
of M.E.), 64 N.E.3d 855, 860-61 (Ind.Ct.App. 2016)). The
panel also decided that A.A.'s counsel could not waive
A.A.'s presence and that the trial court "was too
readily disposed to agree to waiver." Id. at
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 Ind. Code § 12-26-2-2(b)(3)(B)). The panel
credited evidence in the record that A.A.'s presence
would have been injurious to himself, but stressed that in
future cases a trial court must make a statutory waiver
determination at the outset of a civil-commitment hearing.
Id. at 633-34. Explaining that a new hearing
"would not provide any real service to A.A., " the
Court of Appeals affirmed the regular involuntary-commitment
order. Id. at 634.
granted transfer,  vacating the Court of Appeals opinion.
Ind. Appellate Rule 58(A).
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 questions of law de novo.
See Hines v. State, 30 N.E.3d 1216, 1219 (Ind.
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 ...