Court of Appeals of Indiana | Memorandum Decision 18A

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### 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.

A TTORNEY S FOR A PPELLANT Victoria L. Bailey Valerie K. Boots Marion County Public Defender Agency Indianapolis, Indiana A TTORNEY S FOR A PPELLEE Bryan H. Babb Sarah C. Thompson Bose McKinney & Evans LLP Indianapolis, Indiana Anna Kirkman Eskenazi Health Legal Services Department Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

In the Matter of the Civil Commitment of: D.H. , Appellant

- Responden t,

v.


### Eskenazi Health /Midtown Mental Health CMHC , Appellee

- Petitioner

. September 19 , 2018 Court of Appeals Ca se No. 18A

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- 635 Appeal from the Marion Superior Court The Honorable Steven R. Eichholtz, Judge The Honorable Kelly M. Scanlan, Commissioner Trial Co urt Cause No. 49D08

- 1712

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- 44331

Kirsch , Judge
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[1] D.H. appeals the trial court’s order extending her temporary involuntary commitment to a regular involuntary commitment. D.H. raises the following restated issue for our review: whether the order should be remanded bec ause it is defective.

[2] We affirm. 

### Facts and Procedural History

[3] D.H. suffers from schizophrenia and diabetes , and p rior to 2009, she was on a regular commitment for “a couple of years” or “a few years.” Tr. Vol. II at 9.
P sychiatrist Dr. Hector Diez (“Dr. Diez”) , who works for Eskenazi Health Midtown Community Mental Health (“Midtown”) , began working with D.H. in March of 2017, around one year before the hearing in this case. Id

. at 5

- 6.
D.H. was not on an involuntary commitment at that time, but had “an established diagnosis and treatment for several years with Midtown.” Id

. at 9. She was taking daily oral doses of Clozaril, a strong anti

- psychotic medication, used t o treat refractory patie nts w ith schizophrenia , who have not responded to anti

- psychotic s

. Id

. at 10

- 11.

[4] At some point during the f all of 2017, D.H. decompensated. Id

. at 11. In November 2017 , she stopped going to her appointments at Midtown and stopped taking her medication. Id

. at 9. She stopped eating and drinking, lost her job, and became homeless. Id

. at 11

- 12. Dr. Diez received reports that D.H. was not taking care of herself , and he initiated an emergency detention. Id

. at 8. When she was hospitalized on November 30 , 2017 , D.H . was talkingCourt of Appeals of Indiana | Memorandum Decision 18A

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to herself and was “ internally preoccupied. ” Id

. at 12. She was refusing everything, including medications and was at risk o f dying from arrhythmia as a result of not eating o r drinking. Id

. at 12, 14.

[5] A hearing was held o n December 6, 2 017, and D.H. was ordered t o be on a temporary commitment and began receiving treatment. Appellant’s App. Vol. II

at 60

- 61

. D.H. began taking C lozaril again and improved , getting “back o n track.” Tr. Vol. II at 11

- 12, 13. In February 2018 , Dr. Diez wrote a Physician’s Statement expressing his opinion that D.H. should be under a regular commitment to “ achieve improvement in [ D.H.’s ] condition

. ” Appellant’s App.
Vol. II at 66

- 68. Eskenazi Health /Midtown Mental Health CMHC (“Es k e nazi”) formally reques ted an extension of the temporary commitment to a regular commitment and attached Dr. Diez’s statement

. Id . at 64

- 68.

[6] On March 1, 2018, a hearing was held on Eskenazi’s request for the regular commitment of D.H. Commissioner Kelly M. Scanlan (“Commissi oner Scanlan”) presided over the hearing

. Id . at 11

- 12. Dr. Diez testified that he believed that D.H. is gravely disabled due to her impaired reasoning and judgment that caused her not to understand the risks of stopping her treatment

. Tr. Vol. II at 16 , 18. Dr. Diez stated that D.H. d oes not have “ the insight [ into
her illness ] to understand the implications of not being in treatment for her schizophrenia or diabetes. ” Id

. at 16. Dr. Diez further noted that D.H. is opposed to taki ng treatment and tha t she had stated multiple times that she would only continue treatment if she is under commitment. Id

. at 10, 12

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[7] After considering the evidence, Commissioner Scanlan stated:

[B] ased on all of the evidence, the Court finds that by clear and convincing evidence the respondent does have a mental illness, specifically schizophrenia. And that she is gravely disable d in that she demonstrated a substantial impair ment and obvious deterioration in her judgment and behavior that negatively affec ted h er ability to function independentl y. The Court therefore grants the order of Regular commitment and orders the attending physical [sic] to submit a periodic report no later than M arch 1st , 2018 and orders that upon obtaining o ut patient status, or while o n outpatient status, the respondent shall take all medications as prescribed, attend all clinic sessions as scheduled
an d maintain her address and phone number with the court an d the facility.

Id . at 28

- 29. On the same date, Commissioner Scanlan signed t he “Order on Extension of a Temporary Commitment to a Regular Commitment,” on a signature line titled, “Judge, Steven R. Eichholt z, Marion County Superior
Court ” (“Judge Eichholtz”). Appellant’s App. Vol. II at 6

- 7. Nothing in the record indicate d that C ommissioner Scanlan was appointed special judge or judge pro tempore in the present matter. The entries in the CCS for March 1, 2018 reflected that the hearing was held, with Commissioner Scanlan presiding , and that: “ Court finds by clear and convincing evidence that the Respondent, [ D

. H .] , suff

ers from a mental illness that is; schizophrenia and is gravely disabled. REGULAR Commitment is GRANTED to Eskenaz i Health/Midtown Community Mental Health. Standard outpatient condit ions. ” Id . at 11

- 12. There was also an entry that the “Order Granting Extension of Mental Health Commitment” was signed on March 1, 2018, withCourt of Appeals of Indiana | Memorandum Decision 18A

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the Judicial Officer listed as Commissioner Scanlan. Id. at 12. There were no further entries that reflected that Judge Eichholtz signed the order, and his signature does not appear anywhere on the order. D.H. now appeals.



### Discussion and Decision

[8] D.H. argues that the court’s order for regular commitment is defective because it lacks a judge’s signature and only contains the signature of Commissioner Scanlan. A magistrate does not hav e the power of judicial mandate and may not enter a final appealable order unless sitting as a judge pro tempore or a special judge, or in certain other exceptions. I nd

. C ode § 33

- 2 3

- 5

- 8. 1 Those exceptions are criminal matters and other matters not relevant to the present appeal. I nd

. C ode § § 33

- 23

- 5

- 5 ; 33

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- 9. Otherwise, the magistrate shall report findings, but “[t]he court shall enter the order.” I nd

. C ode § 33

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- 9 (a)

. This case involves an involuntary commitment and not a criminal matter or any of the other exceptions. Therefore, because the order for regular commitment lacks a judge’s signature, we agree with D.H. that it is defective. See In re the Involuntary Commitment of A.M. , 959 N.E.2d 832, 834 n.1 (Ind. Ct. App. 2011) (finding an order o f regular commitment to be defective where it was signed only by a magistrate and not by a judge).

1 Indiana Code section 33

- 23

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- 8 was amended, effective July 1, 2018 . This amendment change d the wording of the statute to: “Except as provided under sections 5(14) and 9(b) [I ndiana Code section 3 3

- 23

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- 5(14) and I ndiana C ode section 3 3

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- 9(b )] of this chapter, a magistrate does not have the power of judicial mandate.”Court of Appeals of Indiana | Memorandum Decision 18A

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[9] However, defect notwithstanding, we conclude that D.H. has waived any

c hallenge to the validity of the order for regular commitment because she failed

to raise an objection to the order at any point prior to appeal. “Our [S] upreme [C] ourt has long held that defects in the authority of a court officer, as opposed to the juris diction of the trial court itself, to enter a final order will be waived if not raised through timely objection.” City of Indianapolis v. Hicks, 932 N.E.2d 227, 231 (Ind. Ct. App. 2010) (citing Floyd v. State, 650 N.E.2d 28, 33 (Ind. 1994) (holding “the f

ailure of a defendant to object at the original trial to the jurisdiction of a court officer to enter a final appealable order operates as waiver of the issue both on appeal . . . and on collateral attack . . . . ” ) ) , trans. denied. “[A]ny objection to the authority of an adjudicative officer must be raised at the first instance the irregularity occurs, or at least within such time as the tribunal is able to remedy the defect.” Id. (citing Sullivan v. City of Evansville, 728 N.E.2d 182, 188

- 90 (Ind. Ct. Ap p. 2000)). In Hicks, this court held that a party waived a claim to error for failing to timely object to an order on a motion to correct error signed by a magistrate but not a judge. Id . Here, D.H. likewise failed to timely object to the order for regular commitment that was signed by Commissioner Scanlan only. We, therefore, conclude that she has waived the issue for our review. 2

2 D.H. argues that she had no realistic opportunity to address the defect in the order for regular comm itment and could not be presumed to have known that the trial judge would fail to sign the order and give his judicial approval to the findings of Commissioner Scanlan. However, Commissioner Scanlan signed the order for regular commitment and the order wa s entered in the CCS on March 1, 2018. Appellant’s App. Vol. II at 12. D.H. filed her notice of appeal on March 26, 2018. Id . Therefo re, D.H. had at least twenty

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[10] Affirmed.

Vaidik , C. J., and Riley , J., concur.

days between the date the order for regular commitment was signed and the date she filed her notice of appeal where she could have filed an objection to the fact that the order of regular commitment lacked a judge’ s signature. We, therefore, reject D.H.’ s contention that she did not have a realistic opportunity to object to the defect in the order of regular commitment.