Court of Appeals of Indiana | Memorandum Decision 19A-MH-953 | January 15, 2020 Page 1 of 16

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Michael C. Keating 

Law Offices of Steven K. Deig, LLC 

Evansville, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr. 

Attorney General of Indiana

Frances Barrow

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In the Matter of the 

Commitment of K.K.,

K.K.

Appellant-Respondent,

v.

State of Indiana,

Appellee-Petitioner.

January 15, 2020

Court of Appeals Case No.

19A-MH-953

Appeal from the Vanderburgh 

Superior Court

The Honorable Mary Margaret 

Lloyd, Judge

The Honorable Donald R. Vowels, 

Magistrate

Trial Court Cause No.

82D05-1903-MH-1355

Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-MH-953 | January 15, 2020 Page 2 of 16

[1] K.K. was involuntarily committed to the Evansville State Hospital on April 3, 

2019, by an order of the Vanderburgh Superior Court. K.K. raises two issues for 

our review: (1) whether there is sufficient evidence to support his involuntary 

commitment; and (2) whether he received proper notice of the petition for 

involuntary commitment. 

[2] We reverse.

Facts and Procedural History

[3] K.K. was admitted to practice law in Indiana in 1988. He is a veteran of the 

Marines and served four tours in Iraq and one in Afghanistan. K.K. was also 

stationed for a time in Djibouti, in northern Africa, where he suffered a noncombat medical emergency. In the years before the events giving rise to this 

case, K.K. cared for an ailing parent, which caused him to incur significant 

financial losses that at one point jeopardized his home ownership.

[4] In 2016, K.K. was charged with two counts of Class A misdemeanor resisting 

law enforcement and one count of Class A misdemeanor criminal trespass. In 

2017, K.K. was charged with one count of Class A misdemeanor intimidation. 

The filing of these charges, all in Marion County, led to a disciplinary action 

against K.K. before the Indiana Supreme Court Disciplinary Commission. His 

law license was subject to an “emergency interim suspension” during the 

pendency of the disciplinary action. Meanwhile, the Marion Superior Court 

presiding over the misdemeanor charges ordered that K.K. undergo a 
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competency evaluation; K.K.’s court-appointed counsel stipulated to K.K.’s 

incompetence and agreed to waive a competency hearing over K.K.’s objection. 

[5] On May 15, 2018, the trial court entered an order committing K.K. to the care 

and custody of the Indiana Family and Social Services Administration, 

Division of Mental Health and Addiction (“DMHA”). The trial court 

concluded that K.K. “has insufficient comprehension to understand the nature 

of the criminal action against him and to assist in preparing a defense,” which is 

also referred to as insufficient comprehension to stand trial (“ICST”). Ex. Vol., 

p. 90. The order directed that:

[I]f [K.K.] is unable to understand the proceedings and assist in 

the preparation of his defense within six (6) months after the date 

of his admission to a psychiatric institution, the [DMHA] shall 

institute regular commitment proceedings under [Ind. Code] 16-

14-9.1.1

Ex. Vol., p. 91.

[6] Evansville State Hospital (“the hospital”) in Vanderburgh County was 

designated as the appropriate institution for K.K.’s confinement, evaluation, 

and treatment; K.K. was admitted to the hospital in August 2018. 

[7] Approximately six months later, on March 13, 2019, the hospital filed a petition 

for K.K.’s involuntary commitment, which was supported by a physician’s 

 

1 Effective July 1, 2018, the relevant Title 16 provisions were replaced by new sections under Title 12; see I.C. 

§ 12-26-7-5.
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emergency statement authored by psychiatrist Dr. David Gray. The trial court 

held a hearing on the petition on April 3, 2019, at which time Dr. Gray and the 

hospital’s associate director of nursing testified for the State; K.K. and his 

cousin Diane Gordon (“Gordon”) testified for K.K. 

[8] Dr. Gray had treated K.K. since his August 2018 admission to the hospital and 

had diagnosed K.K. with delusional disorder, persecutory type. K.K. initially 

refused medication at the hospital but did comply with taking the prescribed 

medication after the hospital received an order to treat in November 2018. Dr. 

Gray testified that K.K.’s behavior at the hospital had been both cooperative 

and uncooperative: K.K. was willing to participate in normal activities in his 

unit and in group treatments but was less willing or refused to undergo 

individual testing and treatment. Dr. Gray explained that he did not find K.K. 

to pose a danger to himself or others. Dr. Gray did believe K.K. was gravely 

disabled as a result of his mental illness. K.K.’s delusions were often related to 

courts and local events and included legal conspiracies. He exhibited distrust 

with the staff and processes of the hospital, including doubt about Dr. Gray’s 

own qualifications as a psychiatrist. Dr. Gray thought K.K.’s reluctance to 

address the pending misdemeanor criminal charges against him—and the 

events giving rise to the charges themselves—indicated severe impairment of 

K.K.’s judgment and processing. The hospital’s associate director of nursing, 

who regularly interacted with K.K., also testified and explained that K.K.’s 

therapeutic relationships were strained by his distrust and his threats of legal 

action. 
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[9] Dr. Gray testified that K.K. had not been restored to competency in the time he 

had been treated at the hospital, but that if K.K. cooperated with treatment, Dr. 

Gray believed his competency could be restored. Accordingly, Dr. Gray 

recommended that K.K. be involuntarily committed, continue taking 

medication as prescribed, and reassess his willingness to engage in therapy and 

testing. The trial court entered an order of involuntary regular commitment the 

same day as the hearing on the State’s petition. Its order read, in relevant part: 

1. Respondent is suffering from Delusional, Persecutory Type, 

which is a mental illness as defined in Ind. Code § 12-7-2-130.

2. . . . Respondent is gravely disabled as defined in Ind. Code § 

12-7-2-96.

3. Respondent is in need of custody, care and treatment [in] 

Evansville State Hospital or an appropriate facility for a 

period expected to exceed ninety (90) days. 

* * *

IT IS THEREFORE ORDERED, ADJUDGED AND 

DECREED that the Respondent is accordingly committed to the 

designated facility until discharged or until the Court terminates 

the commitment. 

Appellant’s App. pp. 6–7. 

[10] The court also ordered for a periodic report to be submitted by September 30, 

2019. K.K. now appeals the order of involuntary commitment. Additional facts 

will be provided where appropriate.
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Standard of Review

[11] Our supreme court has explained involuntary commitment proceedings as 

follows:

The purpose of civil commitment proceedings is dual: to protect 

the public and to ensure the rights of the person whose liberty is 

at stake. The liberty interest at stake . . . goes beyond a loss of 

one’s physical freedom, and given the serious stigma and adverse 

social consequences that accompany such physical confinement, 

a proceeding for an involuntary civil commitment is subject to 

due process requirements. To satisfy the requirements of due 

process, the facts justifying an involuntary commitment must be 

shown “by clear and convincing evidence . . . [which] not only 

communicates the relative importance our legal system attaches 

to a decision ordering an involuntary commitment, but . . . also 

has the function of reducing the chance of inappropriate 

commitments.”

Civil Commitment of T.K. v. Dep’t of Veterans Affairs, 27 N.E.3d 271, 273 (Ind. 

2015) (quoting Commitment of J.B. v. Midtown Mental Health Ctr., 581 N.E.2d 

448, 450 (Ind. Ct. App. 1991), trans. denied) (additional quotes and citations 

omitted). 

[12] Thus, an order of involuntary commitment is warranted only if clear and 

convincing evidence establishes that (1) the individual is mentally ill and either 

dangerous or gravely disabled, and (2) the commitment of that individual is 

appropriate. I.C. § 12-26-2-5. Clear and convincing evidence requires proof that 

the existence of a fact is “highly probable.” Lazarus Dep’t Store v. Sutherlin, 544 

N.E.2d 513, 527 (Ind. Ct. App. 1989), trans. denied. For purposes of involuntary 
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commitment, mental illness is defined by law as a psychiatric disorder that (A) 

substantially disturbs an individual’s thinking, feeling, or behavior; and (B) 

impairs the individual’s ability to function. I.C. § 12-7-2-130. 

[13] When we review the sufficiency of the evidence with respect to involuntary 

commitment proceedings, we look only to the evidence most favorable to the 

trial court’s decision and all reasonable inferences to be drawn therefrom. Golub 

v. Giles, 814 N.E.2d 1034, 1038 (Ind. Ct. App. 2004), trans. denied. We will not 

reweigh the evidence or judge witness credibility. Id. The judgment of the lower 

court will be affirmed if, after considering the probative evidence and 

reasonable inferences therefrom, a reasonable trier of fact could have found the 

necessary elements proven by clear and convincing evidence. Civil Commitment 

of T.K., 27 N.E.3d at 273–74. “There is no constitutional basis for confining a 

mentally ill person who is not dangerous and can live safely in freedom.” 

Commitment of J.B., 581 N.E.2d at 451.

[14] The issues presented in this case are whether, considering the probative 

evidence and reasonable inferences favorable to judgment, the trial court could 

have found by clear and convincing evidence that (1) K.K. meets the statutory 

definition of mental illness; (2) as a result of that mental illness, K.K. is gravely 

disabled such that involuntary commitment is warranted; and (3) whether 

untimely notice of the hearing on the State’s petition denied K.K. due process.
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I. Mental Illness

[15] Dr. Gray testified that K.K. suffers from delusional disorder, persecutory type, 

and that two other forensic assessors at the hospital had also reached the same 

diagnosis. K.K. does not challenge this diagnosis on appeal, but he does 

challenge whether it meets the statutory definition of mental illness which 

requires, among other thing, that the disorder impairs K.K.’s ability to function. 

See I.C. § 12-7-2-130. Dr. Gray’s testimony regarding K.K.’s mental illness was 

based on his knowledge that K.K. was admitted “as an ICST” and on the 

observations he made during the six months of K.K.’s emergency commitment. 

Tr. p. 11. For the first three months of his commitment, K.K. refused to take 

medication or otherwise engage in treatment. K.K. had delusional thought 

processes about his own role in “uncovering corruption in Marion County” and 

about judges lacking legal authority to hear cases in the county. Tr. p. 13. 

During K.K.’s testimony, he noted that his law license was under an interim 

suspension because of a pending disciplinary action, due to four misdemeanor 

charges brought against K.K. in relation to which he spent time in Marion 

County Jail. 

[16] Evaluating this evidence and the inferences that can reasonably be drawn 

therefrom in the light most favorable to the trial court’s judgment, we disagree 

with K.K. that his disorder does not impair his ability to function. That K.K., 

an attorney, was charged with several misdemeanor offenses, declared ICST 

and admitted to the hospital impaired his ability to function professionally, at 

the least. See In re D.W.H., 411 N.E.2d 721 (Ind. Ct. App. 1980) (reversing 
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finding of mental illness where appellant maintained regular work schedule 

despite diagnosed disorder and no other evidence indicated impairment of his 

ability to function). While hospitalized, K.K. was diagnosed with a psychiatric 

disorder by a trained psychiatrist yet refused treatment for that disorder until the 

hospital sought and received an Order to Treat. A reasonable person could 

conclude from this evidence that K.K.’s ability to function was impaired as a 

result of his diagnosed psychiatric disorder, and thus the State established by 

clear and convincing evidence that K.K. was mentally ill under Indiana Code 

section 12-7-2-130. 

II. Gravely Disabled

[17] K.K. challenges the trial court’s order of involuntary commitment, arguing that 

neither prong of the applicable standard for proving grave disability was 

established by clear and convincing evidence, as is required before an individual 

may be involuntarily committed. Specifically, K.K. contends that the trial court 

erred in finding him gravely disabled because he was functioning independently 

and was not at risk of coming to harm because of any impairment in his 

judgment, reasoning, or behavior. Grave disability is defined as:

[A] condition in which an individual, as a result of mental illness, 

is in danger of coming to harm because the individual:

(1) is unable to provide for that individual’s food, clothing, 

shelter, or other essential human needs; or

(2) has a substantial impairment or an obvious deterioration 

of that individual’s judgment, reasoning, or behavior that 
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results in the individual’s inability to function 

independently.

I.C. § 12-7-2-96 (emphasis added).

[18] Dr. Gray testified that K.K.’s ability to provide for his food, clothing, shelter, 

and other essential needs was “marginal” based on K.K.’s home having been in 

foreclosure and the suspension of his law license. Tr. pp. 15–16. K.K. testified 

that prior to his incarceration and hospitalization, he was living independently 

and meeting his essential needs. K.K. also explained the reasons for his 

mortgage payment delinquency and how he ultimately avoided foreclosure with 

a loan from his cousin, Diane Gordon, and with assistance from a Wounded 

Warriors group. Gordon testified that she was maintaining K.K.’s home while 

he was hospitalized, and that the home was available for him to live in upon his 

release. No evidence was presented to dispute K.K.’s ability to provide food or 

clothing for himself. Because the State did not demonstrate with this testimony 

that K.K. was in danger of coming to any harm based on an inability to shelter 

himself, the majority of the parties’ testimony focused on evidence of the 

second prong, to which we now turn.

[19] Dr. Gray’s testimony included several reasons why he believed that K.K.’s 

judgment and processing were severely impaired. K.K. believes there is 

corruption in Marion County and that the specific judge presiding over his 

charges lacks authority to do so, beliefs that he promoted at one point on his 

own website. Dr. Gray, however, was most concerned with K.K.’s 

unwillingness to engage in treatment to restore his competency and address his 
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status as ICST. In Dr. Gray’s experience, professional individuals facing similar 

circumstances to K.K.’s “want to get those [charges] resolved and to move on 

in their professional career.” Tr. p. 50. That K.K. was not highly motivated to 

address the pending misdemeanor charges against him and had retained and 

rejected the services of several attorneys was cited as evidence of substantial 

impairment of K.K.’s reasoning. Furthermore, Dr. Gray’s review of the records 

of K.K.’s misdemeanor charges and the ICST finding led him to report that 

they contained further evidence of poor judgment in processing.

[20] On cross examination, Dr. Gray expanded on his concerns about K.K.’s 

judgment in the context of K.K.’s participation in his legal strategy and the 

restoration of K.K.’s competency: 

A: I think [K.K.’s] greatest challenge is to have a continuing 

relationship [with an attorney]. Because he presents well initially, 

but then after a couple of visits things don’t go so well.

Q: On what do you base that statement? What facts do you base 

that statement on? 

A: Part of it is my interactions with [K.K.]. And part of it—and 

I’ve tried to review this with [K.K.]—he’s got misdemeanor 

charges that have not been taken care of for about two years. 

And that’s what I had trouble understanding, why have they not 

been addressed or dismissed, and why are we meeting here today 

for something that happened two and three years ago.

Q: Well we’re here today because you filed a petition asking that 

[K.K.] be involuntarily committed, which you’re required to do 
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by statute since he did not regain competence within six months. 

That’s why we’re here, right? . . .

A: Yes.

Q: And you’re not a lawyer.

A: No.

Q: So [you’re] extrapolating from your experience with how he 

has interacted with you to how he might interact with lawyers.

A: Yes.

Tr. pp. 41–42. 

[21] Also demonstrating impaired judgment, reasoning, or behavior was K.K.’s 

skepticism of Dr. Gray and the rest of the treatment team. Dr. Gray explained 

that K.K. did not believe he was board certified or licensed and that he was 

himself delusional. K.K. also declined to sign release forms that required his 

signature and believed his mail that passed through the hospital’s system had 

been tampered with. Nurse McCall testified that K.K. was “adamantly 

opposed” to medication, to his diagnosis, and to testing. Tr. p. 54. She said that 

K.K. often threatened to sue the staff such that Nurse McCall “put an 

intervention in his treatment plan that we would cease conversation with him 

when he threatened [] litigation.” Tr. p. 54. K.K.’s level of distrust of the staff 

interfered with the therapeutic relationship and treatment. 
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[22] Dr. Gray also cited “unusual circumstances” as evidence of K.K.’s impaired 

judgment, reasoning, or behavior. Tr. pp. 16–17. On one occasion, K.K., a 

vegetarian, suspected the hospital cafeteria served him sheep testicles. K.K. 

once mentioned the cloning of patients at the hospital. Hospital staff also 

observed K.K. saving condiment packets but refusing to explain why. 

[23] Thus, Dr. Gray’s conclusion that K.K. was gravely disabled was based on 

K.K.’s distrust of his treatment at the hospital, which for a time included 

refusing medication, and isolated instances of bizarre behavior. However, 

paranoia, alone, does not establish an inability to function independently. 

Commitment of M.E. v. Dep’t of Veterans Affairs, 64 N.E.3d 855 (Ind. Ct. App. 

2016), disapproved of on other grounds. Our supreme court has clarified that refusal 

to accept medication, standing alone, is insufficient to establish grave disability 

because it does not establish, by clear and convincing evidence, that such 

behavior inhibits the individual from functioning independently. See I.C. § 12-7-

2-96(2); see, e.g., J.S. v. Ctr. For Behavioral Health, 846 N.E.2d 1106, 1112–13 

(Ind. Ct. App. 2006) (where commitment because of grave disability was 

affirmed on appeal because committed person refused medication and had lost 

a lot of weight because she refused to eat for fear of being poisoned), disapproved 

of on other grounds, trans. denied; Golub, 814 N.E.2d at 1037–39 (where 

commitment because of grave disability was affirmed on appeal because 

committed person refused to take medication and destroyed property, made 

threats, and lunged at another person). 
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[24] K.K. declined individual therapy and treatment but participated in group 

activities and therapies and was not otherwise disruptive during his emergency 

commitment at the hospital. We note, too, that although K.K. refused 

medication for half of the time of his commitment, he complied when the 

hospital received an Order to Treat. In addition, Dr. Gray pointed to several 

examples of K.K.’s unusual behavior at the hospital. However, we have 

previously cautioned against orders of involuntary commitment being based on 

“a few isolated instances of unusual conduct which occurred within a range of 

conduct which is generally acceptable.” Commitment of J.P. v. Midtown Mental 

Health Center, 581 N.E.2d 448, 450 (Ind. Ct. App. 1991), trans. denied. On this 

point, the United States Supreme Court has explained, and we have cited 

approvingly, that “[l]oss of liberty calls for a showing that the individual suffers 

from something more serious than is demonstrated by idiosyncratic behavior.” 

Addington v. Texas, 441 U.S. 418, 427 (1979). The evidence in this case has not 

clearly and convincingly shown that K.K.’s refusal to take medication and 

participate in all aspects of his psychiatric treatment, plus isolated instances of 

behavior based on delusional beliefs, constitute grave disability by resulting in 

substantial impairment such that K.K. is unable to function independently. 

[25] Dr. Gray’s conclusion that K.K. was gravely disabled was also based on 

evidence of K.K.’s deluded beliefs about Marion County courts and the 

perceived tardiness with which K.K. was addressing his pending criminal 

charges. At best, the evidence suggests that K.K.’s beliefs about the legal 

professionals around him complicates his own legal situation, slows the 
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resolution of his pending criminal charges, and slows the restoration of his 

competency and thus also his status as ICST. The evidence of K.K.’s impaired 

judgment or behavior based on paranoia does not indicate that K.K. is unable 

to function independently under the law. Accordingly, the evidence is not 

sufficient to support his involuntary commitment on the grounds of grave 

disability. 

[26] Importantly, even if we agree that the State proved K.K.’s judgment, reasoning, 

and behavior was substantially impaired to the extent that he was unable to 

function independently, which we do not, the State failed to present evidence 

identifying how that impairment made K.K. in danger of coming to harm. I.C. 

§ 12-7-2-96. That the individual alleged to be gravely disabled be in danger of 

coming to harm as a result of his inability to function independently is what the 

statute requires. Having failed to present evidence thereof, the trial court’s 

judgment that K.K. was gravely disabled as a result of mental illness cannot be 

supported. Thus, in light of the statutory prerequisite that the necessary 

elements for an involuntary commitment be established by clear and convincing 

evidence, we hold that the evidence presented was insufficient to establish that 

K.K. was gravely disabled. I.C. § 12-26-2-5(e)(1). 

III. Waiver

[27] Finally, K.K. argues for the first time on appeal that his due process rights were 

violated because he did not receive timely notice of the hearing on the petition 

for his involuntary commitment. Appellant’s Br. at 18; see I.C. § 12-26-7-4(b). 

An issue—particularly with a trial court’s procedure—that is raised for the first 
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time on appeal is waived. Mitchell v. Stevenson, 677 N.E.2d 551, 558 (Ind. Ct. 

App. 1997), trans. denied. K.K.’s counsel did not object to the alleged 

untimeliness of the notice of hearing on the petition, and thus the argument is 

waived. 

[28] Notwithstanding waiver, to prevail on his claim that his due process rights were 

violated, K.K. would have had to demonstrate that the lack of timely notice 

caused him prejudice, which K.K. has not done. At the hearing on the State’s 

petition for involuntary commitment, K.K. was ably represented by counsel. 

Counsel succeeded in excluding from evidence documents pertaining to the 

disciplinary complaint and to the criminal charges against K.K. Tr. pp. 89, 93. 

Thus, to the extent K.K. argues he was prejudiced by the untimeliness of the 

notice provided, the argument is belied by the record of the proceedings. 

Conclusion

[29] Clear and convincing evidence was not presented at K.K.’s involuntary 

commitment hearing to establish that he was gravely disabled as a result of 

mental illness, and we thus hold that K.K.’s involuntary commitment was 

improper and the judgment of the trial court is reversed. 

[30] Reversed.

Robb, J., and Pyle, J., concur.