Court of Appeals of Indiana | Memorandum Decision 18A-MH-635 | September 19, 2018 Page 1 of 7

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.

ATTORNEYS FOR APPELLANT

Victoria L. Bailey

Valerie K. Boots

Marion County Public Defender Agency

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

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-Respondent,

v.

Eskenazi Health/Midtown 

Mental Health CMHC,

Appellee-Petitioner.

September 19, 2018

Court of Appeals Case No.

18A-MH-635

Appeal from the 

Marion Superior Court

The Honorable 

Steven R. Eichholtz, Judge

The Honorable

Kelly M. Scanlan, Commissioner

Trial Court Cause No.

49D08-1712-MH-44331

Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-MH-635 | September 19, 2018 Page 2 of 7

[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 because it 

is defective.

[2] We affirm.

Facts and Procedural History

[3] D.H. suffers from schizophrenia and diabetes, and prior to 2009, she was on a 

regular commitment for “a couple of years” or “a few years.” Tr. Vol. II at 9. 

Psychiatrist 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 to treat refractory patients with schizophrenia, who have not responded to 

anti-psychotics. Id. at 10-11. 

[4] At some point during the fall 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 talking 
Court of Appeals of Indiana | Memorandum Decision 18A-MH-635 | September 19, 2018 Page 3 of 7

to herself and was “internally preoccupied.” Id. at 12. She was refusing 

everything, including medications and was at risk of dying from arrhythmia as a 

result of not eating or drinking. Id. at 12, 14. 

[5] A hearing was held on December 6, 2017, and D.H. was ordered to be on a 

temporary commitment and began receiving treatment. Appellant’s App. Vol. II

at 60-61. D.H. began taking Clozaril again and improved, getting “back on 

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 

(“Eskenazi”) formally requested 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 (“Commissioner 

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. does 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 taking treatment and that she had stated multiple times that she 

would only continue treatment if she is under commitment. Id. at 10, 12-13, 18.
Court of Appeals of Indiana | Memorandum Decision 18A-MH-635 | September 19, 2018 Page 4 of 7

[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 disabled in 

that she demonstrated a substantial impairment and obvious 

deterioration in her judgment and behavior that negatively 

affected her ability to function independently. The Court 

therefore grants the order of Regular commitment and orders the 

attending physical [sic] to submit a periodic report no later than 

March 1st, 2018 and orders that upon obtaining outpatient status, 

or while on outpatient status, the respondent shall take all 

medications as prescribed, attend all clinic sessions as scheduled 

and maintain her address and phone number with the court and 

the facility. 

Id. at 28-29. On the same date, Commissioner Scanlan signed the “Order on 

Extension of a Temporary Commitment to a Regular Commitment,” on a

signature line titled, “Judge, Steven R. Eichholtz, Marion County Superior 

Court” (“Judge Eichholtz”). Appellant’s App. Vol. II at 6-7. Nothing in the 

record indicated that Commissioner 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.], suffers from a mental illness that is; schizophrenia and is gravely 

disabled. REGULAR Commitment is GRANTED to Eskenazi

Health/Midtown Community Mental Health. Standard outpatient 

conditions.” Id. at 11-12. There was also an entry that the “Order Granting 

Extension of Mental Health Commitment” was signed on March 1, 2018, with 
Court of Appeals of Indiana | Memorandum Decision 18A-MH-635 | September 19, 2018 Page 5 of 7

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 have 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. Ind. Code § 33-23-5-8.1 Those 

exceptions are criminal matters and other matters not relevant to the present 

appeal. Ind. Code §§ 33-23-5-5; 33-23-5-9. Otherwise, the magistrate shall 

report findings, but “[t]he court shall enter the order.” Ind. Code § 33-23-5-9(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 of regular commitment to be defective where it was signed 

only by a magistrate and not by a judge). 

 

1

Indiana Code section 33-23-5-8 was amended, effective July 1, 2018. This amendment changed the 

wording of the statute to: “Except as provided under sections 5(14) and 9(b) [Indiana Code section 33-23-5-

5(14) and Indiana Code section 33-23-5-9(b)] of this chapter, a magistrate does not have the power of judicial 

mandate.” 
Court of Appeals of Indiana | Memorandum Decision 18A-MH-635 | September 19, 2018 Page 6 of 7

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

challenge 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 jurisdiction 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 failure 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. App. 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 commitment 

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 was 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. Therefore, D.H. had at least twenty-five
Court of Appeals of Indiana | Memorandum Decision 18A-MH-635 | September 19, 2018 Page 7 of 7

[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.