Court of Appeals of Indiana | Opinion 27A02-1605-MH-987 | November 23, 2016 Page 1 of 15

ATTORNEY FOR APPELLANT

Joel M. Schumm

Appellate Clinic

Robert H. McKinney School of Law

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Josh J. Minkler

United States Attorney

Danielle Kalivoda

Special Assistant

United States Attorney

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

In the Matter of the 

Commitment of M.E.,

Appellant-Respondent,

v.

Department of Veterans Affairs,

Appellee-Petitioner

November 23, 2016

Court of Appeals Case No.

27A02-1605-MH-987

Appeal from the Grant Circuit 

Court

The Honorable Mark E. Spitzer, 

Judge

Trial Court Cause No.

27C01-9009-MH-567

Baker, Judge.
Court of Appeals of Indiana | Opinion 27A02-1605-MH-987 | November 23, 2016 Page 2 of 15

[1] The Veterans Affairs (VA) Hospital filed a petition to involuntarily commit 

M.E. by way of forcible medication after M.E. was brought there by local 

police. The trial court issued an Order of Regular Commitment, committing 

M.E. to the hospital until discharged, and granted an order to medicate M.E. 

unless he did not substantially benefit from the medications. M.E. now appeals 

his involuntary commitment. Finding that M.E. did not receive appropriate 

notice, that his waiver was invalid, and that the VA did not carry its burden of 

proof with respect to the elements of dangerousness and grave disability, we 

reverse and remand with instructions to vacate the order of involuntary 

commitment.

Facts1

[2] M.E. is an army veteran who lives in Marion and has a well-established 

diagnosis of paranoid schizophrenia. On March 31, 2016, M.E. was brought to 

the VA Hospital by the police.2 

[3] On April 4, 2016, the Department of Veterans Affairs Northern Indiana Health 

Care System (NIHCS) filed an Application for Emergency Detention of M.E.

 

1 We heard oral argument on October 27, 2016, at Lawrence North High School. We would like to thank 

the school’s administration, faculty, and students for their hospitality, and Lawrence North senior Bailey 

Hogan for serving as our bailiff. We also thank counsel for their informative and engaging oral advocacy and 

subsequent discussion with the students.

2 The record does not reveal the initial reason law enforcement became involved with M.E.
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with the trial court. That same day, the trial court approved the emergency 

detention. 

[4] On April 6, 2016, the NIHCS filed multiple documents with the trial court, 

including a Petition for Regular Commitment with a Physician’s Statement

attached. The VA did not serve these documents on M.E. or his counsel. Dr. 

Masood Khan completed the Physician’s Statement preprinted form, indicating 

that M.E. was in need of custody, care, or treatment in an appropriate facility; 

that commitment would not be necessary if M.E. was taking medication for his 

condition; and that M.E. cannot be relied upon to take medication as 

prescribed. On April 7, 2016, the trial court issued a Commitment Hearing 

Order, scheduling a hearing for April 12, 2016, a Notice of Rights and 

Procedures, and a Mental Illness Summons. The Sheriff was ordered to serve 

these documents on M.E. Also on April 7, 2016, M.E., who was still being 

involuntarily detained at the hospital, signed a Waiver of Right to be Present at

Commitment Hearing. The waiver provided:

[5] I waive my right to be present at the hearing set for 1:30 O’clock 

p.m. on 4/12/2016. I understand that, if I fail to appear at the 

hearing, I lose this opportunity to contest my commitment unless 

my representative contests the matter on my behalf. I wish to be 

represented by: __________ at the hearing. This waiver is given 

voluntarily. No person has encouraged or pressured me to sign 

this waiver.

Appellant’s App. Vol. 2 p. 26. 
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[6] M.E.’s counsel learned of the proceedings on April 8 when counsel for the VA 

called him. M.E.’s counsel had to ask for all of the documents to be sent to 

him. After speaking with M.E., M.E.’s counsel filed a motion to continue the 

hearing. His request was granted, and on April 20, 2016, the hearing took 

place. Meanwhile, on April 12, 2016, M.E. was discharged from the VA 

hospital.

[7] At the hearing, Dr. Masood Khan, a staff inpatient psychiatrist at the hospital, 

was the VA’s sole witness. Dr. Khan testified that when M.E. arrived at the 

acute mental health unit, M.E. was swearing loudly, presenting with 

disorganized thoughts and behavior, acting paranoid, and initially refusing 

medications. According to Dr. Khan, the commitment order was necessary 

because “the long history of non-compliance, is primary [sic] the issue, that’s 

why the order is being questioned.” Tr. p. 6. Dr. Khan testified that 

schizophrenia is categorized by delusions and hallucinations, and that when 

M.E. is in his delusional state, he thinks that people are discriminating against 

him because he is Black; when he is hallucinating, he responds loudly to unseen 

others and makes physical gestures. When asked to explain the nature of 

M.E.’s yelling or purported threats, Dr. Khan testified that M.E. yelled, “these 

white bitches get away from me. You did this to me, you did that to me.” Id.

at 15. Dr. Khan testified that M.E. has a long history of marijuana use, which 

will, in some cases, exacerbate schizophrenia. 

[8] Dr. Khan further testified that prior to the instant admission, M.E. had been 

admitted to the acute mental health unit of the VA Hospital in Marion at least 
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thirty-one times. He testified that when M.E. was part of the VA program for 

mental health intensive case management, he was compliant with his 

medication and was free of symptoms. Dr. Khan said that “[t]here has been no 

physical [aggression] from what I am remembering from the records,” id. at 10, 

and that the most recent time that M.E. was restrained was July 2013. Dr. 

Khan testified that although M.E. showed up for his appointment on April 19, 

2016, he declined the medication. Dr. Khan recommended a treatment plan 

that was a long-acting injectable. He testified that M.E. is an ideal candidate 

for this medication because he does not exhibit side effects from it and his 

“presentation turns around 180 degrees.” Id. at 12.

[9] M.E. testified on his own behalf. He testified that he did not know why he was 

taken to the hospital: “I got out there and they wouldn’t tell me, they never 

told me anything. To this day I still don’t know what was said that I did to 

except for what” he was told by counsel. Id. at 19. He stated that he wears an 

allergy bracelet for the medication that he was forced to take, and that he suffers 

side effects from it, including kidney and bladder problems. He testified that he 

lives by himself in an apartment, pays rent for his apartment every month, eats 

regularly, and dresses himself. He gets along well with his landlord. He said 

that he gets loud sometimes because “my voice does accelerate.” Id. at 20. He 

testified that one white patient “swore up and down and he went home” and 

another “threw his tray on the floor” and would probably go home. Id. at 21. 

As for his delusions, M.E. said that white people do not bother him, but that if 

something happened, their word would overrule his. 
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[10] On April 25, 2016, the trial court issued an Order of Regular Commitment, 

finding M.E. to be mentally ill, dangerous, and gravely disabled, and permitting 

him to be forcibly medicated. M.E. now appeals.

Discussion and Decision

[11] M.E. makes three arguments on appeal: (1) the VA failed to serve M.E. with 

the documents it filed with the trial court; (2) the Waiver of Right to Be Present 

at Commitment Hearing signed by M.E. was invalid; and (3) the involuntary 

civil commitment was not warranted because the VA failed to establish that 

M.E. exhibited a grave disability or dangerousness to self.3

I. Service of Pleadings

[12] M.E. first argues that a hospital in a civil commitment case is required to serve 

the patient or patient’s counsel with all documents it files with a trial court, 

including petitions for involuntary commitment.

[13] In civil proceedings, each party must be served with “every pleading subsequent 

to the original complaint.” Ind. Trial Rule 5(A)(2). The rule further provides 

that when “a party is represented by an attorney of record, service shall be made 

 

3 Because M.E. was eventually able to obtain the documents at issue and because he appeared at his hearing, 

the first two issues presented are moot. We generally do not discuss moot issues; however, a moot issue 

“may be decided on its merits when it involves questions of great public interest that are likely to recur.” 

Golub v. Giles, 814 N.E.2d 1034, 1036 n.1 (Ind. Ct. App. 2004). “The question of how persons subject to 

involuntary commitment are treated by our trial courts is one of great importance to society.” Id. Further, 

this case involves a question of whether an individual who is involuntarily committed is able to validly waive 

his rights. These are issues of great public importance and are likely to recur, so we will address them.
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upon such attorney unless service upon the party is ordered by the court.” T.R. 

5(B). Service upon the attorney or party can be made through a variety of 

methods, including through mail, e-mail, or fax. Id. Mental health proceedings 

are conducted like other civil proceedings according to the trial rules except as 

otherwise provided. Ind. Code § 12-26-1-6. An individual alleged to have a 

mental illness has the right to receive adequate notice of a hearing so that the 

individual or the individual’s attorney can prepare for the hearing; to receive a 

copy of a petition or an order relating to the individual; to be present at a 

hearing relating to the individual; and to be represented by counsel. Ind. Code 

§ 12-26-2-2. The Indiana Legislature extended these rights to the proceedings 

for temporary commitment and regular commitment, notice of discharge of an 

individual, and review of commitment, but not for emergency detentions. I.C. 

§ 12-26-2-2(a)(1)-(4). 

[14] On April 6, 2016, the VA filed a petition seeking to have M.E. involuntarily 

committed with an attached Physician’s Statement. Although M.E.’s counsel 

had entered an appearance on M.E.’s behalf in March of 2015, M.E.’s counsel 

was not served with these documents. He received notice when the VA’s 

counsel called him on April 8 to ask about the necessity of a commitment

hearing. M.E.’s counsel had to request the documents filed by the VA; on April 

11, the VA’s counsel faxed the pleadings to M.E.’s counsel. 

[15] M.E. argues that he was not served with any of these documents, evidenced by 

the fact that none contained a certificate of service, and he testified at the 

commitment hearing that he first learned of the allegations supporting his 
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emergency detention and the sought-after commitment from his counsel, 

despite the fact that M.E. was represented by counsel beginning in 2015 and 

was represented by counsel when he was involuntarily committed on March 31, 

2016. 

[16] The VA relies on Cheek v. State, in which this Court found that where “an 

individual appears with counsel, it is apparent that the notice was actually

received despite the fact that a sheriff’s return is not included in the trial 

record.” 567 N.E.2d 1192, 1195-96 (Ind. Ct. App. 1991) (emphasis original).

[17] We find that M.E. was never served with the pleadings related to the 

commitment petition. We decline to follow Cheek and find instead that service 

and proof of service is required for all civil commitment cases. The mere fact 

that an individual appeared at a hearing with counsel is insufficient to prove 

service—indeed, the individual and his counsel may have learned of the hearing 

through purely serendipitous circumstances, which is precisely what occurred in 

the present case. 

[18] For service to meet due process requirements, it must be “reasonably calculated 

to inform the person to be served that an action has been instituted against him, 

the name of the court, and the time within which he is required to respond.” 

T.R. 4.15(F). If service “is not ‘reasonably calculated to inform . . .,’ the mere 

fact that the party [served] has actual knowledge of the suit does not satisfy due 

process . . . .” Glennar Mercury-Lincoln, Inc. v. Riley, 167 Ind. App. 144, 152, 338 

N.E.2d 670, 675 (1975). Here, M.E. received notice only through his counsel; 
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M.E.’s counsel received notice only when the VA’s counsel called him to 

discuss a hearing, and M.E.’s counsel then had to request that the VA send him 

the documents that had been filed with the trial court. Even though the VA’s 

counsel ultimately sent M.E.’s counsel the documents, such action does not 

constitute effective service because it was not “reasonably calculated to inform” 

M.E. of the action instituted against him. Compare to Thomison v. IK Indy, Inc., 

658 N.E.2d 1052, 1059 (Ind. Ct. App. 2006) (finding that service was effective 

because the appellant-defendant conceded that the summons and complaint 

were delivered to her residence and she made no argument that she did not 

receive the complaint). Accordingly, despite the fact that M.E. appeared at the 

hearing with counsel, his appearance does not establish that actual service

occurred. 

[19] Fair notice requires that individuals who may be civilly committed and their 

counsel receive the petitions and documents supporting the requests for civil 

commitment. We find, therefore, that the VA’s failure to serve these 

documents on M.E. and his counsel violated Trial Rule 5’s requirement that 

each party must be served with every pleading, including and subsequent to the 

original complaint, and that service must be made upon an attorney of a 

represented party. 

II. Waiver

[20] Next, M.E. argues that the “Waiver of Right to be Present at Commitment 

Hearing” that the VA secured from him was invalid. We agree, finding that 
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any waiver presented to and signed by an individual who has been involuntarily

detained, and is alleged by the VA to be mentally ill, cannot be valid.

[21] In supporting its argument that M.E.’s waiver was valid, the VA relies on the 

fact that the waiver involved in this case was an express, written waiver, and 

that M.E.’s experience with commitment orders and the mental health unit of 

NIHCS over the course of fifteen years indicates that M.E. understood the 

waiver that he signed. This argument is unfathomable.

[22] It is difficult, if not impossible, to see how an individual who is involuntarily 

detained under an emergency detention order by a mental health institution can 

be considered able to exhibit the competency required to sign a valid waiver in 

which he relinquishes his rights. The VA cannot argue on one hand that 

someone is mentally ill and on the other hand that he is competent enough to 

sign a legal document. In other words, an individual cannot be considered so 

mentally ill that an emergency detention is ordered and a petition for regular 

commitment is filed but, simultaneously, competent enough that any waiver he 

may sign is validly obtained. Either an individual is competent, or he is not. 

[23] Accordingly, we hold that a waiver purporting to relinquish the rights of an 

involuntarily detained individual, or an individual at risk of being involuntarily 

committed, is not valid.

III. Sufficiency of the Evidence 

[24] M.E. argues that there was no clear and convincing evidence of dangerousness 

to self or grave disability that warranted his involuntary civil commitment.
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[25] In reviewing the sufficiency of the evidence to support a civil commitment, 

which requires clear and convincing evidence, “an appellate court will affirm if, 

‘considering only the probative evidence and the reasonable inferences 

supporting it, without weighing evidence or assessing witness credibility, a 

reasonable trier of fact could find [the necessary elements] proven by clear and 

convincing evidence.’” Civil Commitment of T.K. v. Dep’t of Veterans Affairs, 27 

N.E.3d 271, 273 (Ind. 2015) (quoting Bud Wolf Chevrolet, Inc. v. Robertson, 519 

N.E.2d 135, 137 (Ind.1988)).

[26] Indiana Code section 12-26-2-5(e) provides that the petitioner in a case 

involving the involuntary treatment of mentally ill individuals must prove by 

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

dangerous or gravely disabled; and 2) detention or commitment of that 

individual is appropriate. 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). “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. v. Midtown Mental Health Ctr., 581 N.E.2d 448, 

451 (Ind. Ct. App. 1991).

A. Evidence of Dangerousness 

[27] An individual is “dangerous” when, as a result of mental illness, the individual 

presents a substantial risk that he will harm himself or others. Ind. Code § 12-7-

2-53. When certain conduct is alleged to be dangerous, we must consider 
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whether “the conduct is an instance of everyday risk-taking behavior.” 

Commitment of J.B., 581 N.E.2d at 451. Dangerousness must be shown through 

behavior that would not occur but for the person’s mental illness. B.M. v. Ind. 

Univ. Health, 24 N.E.3d 969, 972 (Ind. Ct. App. 2015). A trial court need not 

wait until an individual commits a physical act before determining that the 

individual poses a substantial risk of harm to himself or others. Id. When 

determining future dangerousness, “the court must exercise extreme caution 

that it not utterly strip a person suffering from mental illness of the power to 

make an informed decision concerning risk-taking.” Commitment of J.B., 581 

N.E.2d at 451. 

[28] In J.B., J.B. suffered from alcohol abuse, and on three occasions, became so 

intoxicated that her mother had to retrieve her. Id. at 449. On two of those 

occasions, J.B. entered her mother’s car, but once the car was stopped at a busy 

intersection, J.B. jumped out and ran away through traffic; on the third 

occasion, J.B. did not enter her mother’s car but instead flagged down and got 

into a car with several young men. Id. The court found these three instances to 

be the only probative evidence of J.B.’s dangerousness, and that it was 

undisputed that each time, J.B. was at least partly motivated by her desire to 

escape her mother’s company. Id. at 452. Ultimately, the court held that 

“[w]hile J.B. may have made a choice that many members in our society would 

not think worth the risk, her conduct presents too slender a thread to support an 

involuntary commitment.” Id.
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[29] M.E. argues that, like in J.B., the evidence is “too slender a thread” to prove by 

clear and convincing evidence a substantial risk that M.E. would harm himself 

or others. We agree. First, Dr. Khan testified that three years had passed since 

M.E. had required physical restraint. Second, Dr. Khan’s evidence about 

M.E.’s dangerousness was conclusory without providing facts about how M.E. 

may be dangerous. Specifically, Dr. Khan testified, “[w]hen he presents, he is 

very intimidating, he’s very loud, he’s very threatening. And that creates 

potentially [sic] problems.” Tr. p. 10. When Dr. Khan was asked whether he 

had heard M.E. threaten any person in any way, he replied, “I have on the unit 

very loudly. . . . So in the morning my nurse would have to go multiple times 

because there is loudly screaming and to figure out as to who is it? And they 

would invariably come back, well this is [M.E.] again.” Id. at 14. When asked 

whether M.E. had threatened to harm another person, Dr. Khan stated that 

M.E. would say, “these white bitches get away from me. You did this to me, 

you did that to me.” Id. at 15. Thus, the most specific evidence that Dr. Khan 

could provide about M.E.’s dangerousness merely amounted to unpleasant 

comments that M.E. made about white women. Such behavior does not 

constitute a substantial risk that M.E. will harm himself or others, nor does it 

support an involuntary commitment.

B. Evidence of Grave Disability

[30] An individual is “gravely disabled” when, as a result of mental illness, the 

individual is in danger of coming to harm because he: 1) is unable to provide 

for his food, clothing, shelter, or other essential needs; or 2) has a substantial 
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impairment or an obvious deterioration of his judgment, reasoning, or behavior 

that results in his inability to function independently. I.C. § 12-7-2-96. 

[31] Regarding the first prong that must be proven to establish grave disability, M.E. 

argues that he is able to provide for his food, clothing, shelter, and other 

essential needs, and that there is no evidence that suggests otherwise. At the 

hearing, Dr. Khan testified that, upon M.E.’s arrival at the hospital, his staff 

“did not comment on [M.E.’s] poor condition.” Tr. p. 9. On crossexamination, Dr. Khan agreed that M.E. was “eating properly” in the unit, and 

he had no reason to believe M.E. was not eating appropriately prior to his 

admission. Id. at 14. When M.E. testified, he stated that he lives alone in an 

apartment for which he pays rent, that he eats regularly, and that he is able to 

clothe himself. Id. at 20. 

[32] Regarding the second prong, M.E. asserts that he was functioning 

independently and was not at risk of coming to harm because of any 

impairment or deterioration of judgment or behavior. Although the VA argues

that grave disability results from a person’s failure to recognize his own “mental 

illness and to take care of yourself by coming in and getting the medication that 

you need,” id. at 24, our Supreme Court explicitly stated in T.K. that “denial of 

illness and refusal to medicate, standing alone, are insufficient to establish grave 

disability because they do not establish, by clear and convincing evidence, that 

such behavior ‘results in the individual’s inability to function independently.’” 

27 N.E.3d at 276 (quoting I.C. § 12-7-2-96). Further, we do not believe that 

aggression or paranoia, alone, establish an inability to function independently.
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[33] We agree with M.E. that there is no clear and convincing evidence to establish 

a grave disability. The government did not offer any evidence that M.E. is 

unable to provide for his food, clothing, shelter, or other essential needs, nor did 

it offer evidence that M.E. suffered from a substantial impairment or obvious 

deterioration that affected his judgment or made him unable to function 

independently. In fact, the physician who completed the Physician’s Statement 

referenced by the Petition for Regular Commitment did not even check the box 

to indicate that M.E. was suffering from grave disability. Appellant’s App. Vol. 

2 p. 19-21. Moreover, the VA’s reliance on M.E.’s past behavior ignores the 

fact that the statutory language looks to the patient’s behavior at the time of the 

hearings, not to his history. M.E.’s aggression, paranoia, and confrontational 

attitude do not establish an inability to function independently under the law. 

[34] The judgment of the trial court is reversed and remanded with instructions to 

vacate the order of involuntary commitment.

Riley, J., and Robb, J., concur.