IN THE

Indiana Supreme Court

Supreme Court Case No. 49S02-1711-MH-688

A.A.,

Appellant (Respondent)

–v–

Eskenazi Health/Midtown CMHC,

Appellee (Petitioner)

Argued: December 19, 2017 | Decided: May 17, 2018

Appeal from the Marion Superior Court, No. 49D08-1609-MH-31348

The Honorable Steven R. Eichholtz, Judge

On Petition to Transfer from the Indiana Court of Appeals,

No. 49A02-1610-MH-2286

Opinion by Chief Justice Rush

Justices David, Massa, Slaughter, and Goff concur.
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Rush, Chief Justice.

Involuntary 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. 

A 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 or well-being.

Here, 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.

First, 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. 

Because 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.

Facts and Procedural History

In 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 
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disorder and that A.A. wasn’t sleeping, was going outside and making 

disruptive noises, and wanted to fight family members.

Two 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.

The 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.

After 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.

Eskenazi’s 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 voluntarily.

Dr. 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.”
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Eskenazi 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.

A.A.’s 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 commitment.

A.A. appealed, challenging his commitment order. He argued that the 

trial court accepted an invalid waiver of his right to appear, denying him 

due process.

The 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 633.

But the 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 wellbeing.” 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.
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We granted transfer,1 vacating the Court of Appeals opinion. Ind. 

Appellate Rule 58(A).

Standard of Review

The 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 

 1 Both A.A. and Eskenazi sought transfer, and we granted both petitions. As explained below, 

while Eskenazi had no basis for seeking transfer under our appellate rules, we exercised our 

broad jurisdiction to consider its petition.

Our appellate rules authorize parties aggrieved by an “adverse decision” from the Court of 

Appeals to seek transfer to our Court. Ind. Appellate Rule 56(B). Here, though, Eskenazi 

prevailed in both the trial and appellate courts. The trial court ordered A.A.’s civil 

commitment, and the Court of Appeals affirmed that judgment in full. Still, Eskenazi believes 

the appellate decision is adverse because its rationale creates potential mischief in how 

Eskenazi may have to conduct future commitment proceedings. In other words, although 

Eskenazi completely won, it didn’t like the way it won.

Our rule of appellate standing from a trial court is clear. “A party cannot appeal from a 

judgment favorable to him.” Clark v. Stout, 105 N.E. 569, 569 (Ind. 1914), abrogated on other 

grounds by Clark v. Stout, 183 Ind. 329, 108 N.E. 770 (1915). This same standing rule applies to 

appellate litigants seeking transfer to this Court. To state it another way, what counts for 

standing purposes is the Court of Appeals’ judgment and not the reasons underlying it. The 

appellate decision was thus not adverse to Eskenazi.

Of course, Appellate Rule 56(B) does not limit the Court’s jurisdiction to entertain Eskenazi’s 

petition. We have “broad constitutional authority to exercise appellate review and oversight,” 

Tyson v. State, 593 N.E.2d 175, 180 (Ind. 1992), in discharging our inherent “duty to act as the 

final and ultimate authority” in pronouncing Indiana law, Troue v. Marker, 253 Ind. 284, 288, 

252 N.E.2d 800, 803 (1969). Transfer is merely the process by which the Court fulfills its lawgiving function, and the Court may choose to exercise that function even in cases that do not 

comply strictly with the letter of the appellate rules for seeking transfer. See Tyson, 593 N.E.2d 

at 180. Compare Ind. Const. art. 7, § 4 (“The Supreme Court shall exercise appellate jurisdiction 

under such terms and conditions as specified by rules . . . .”), with App. R. 1 (“The Court may, 

upon the motion of a party or the Court’s own motion, permit deviation from these Rules.”).
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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. 2015).

Discussion and Decision

Involuntary 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 an opportunity to 

be heard, see Haegert v. Univ. of Evansville, 977 N.E.2d 924, 950 (Ind. 2012).

The questions here center on A.A.’s due process right to be present and 

whether it was violated when his attorney waived his presence and the 

trial court agreed to the waiver. Though the issues seem straightforward 

at first glance, that impression hides an underlying web of constitutional 

and statutory matters. We address these interwoven matters in turn, 

beginning with whether a civil-commitment respondent can personally 

waive his right to appear at the commitment hearing. 

I. A mentally competent respondent may give up 

the right to appear at a civil-commitment hearing

through a knowing, voluntary, and intelligent 

waiver; however, the respondent’s attorney may 

not waive the right.

A respondent has a due process right to be present at a civilcommitment hearing—a hearing that will address, in part, whether the 

individual suffers from a mental illness that requires involuntary 

commitment. This does not mean, though, that a respondent can never 

exhibit the mental competency to waive the right. Rather, appropriate 

safeguards can ensure a personal waiver was made knowingly, 

voluntarily, and intelligently. 
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Yet, a respondent’s attorney may not waive the respondent’s right to 

appear. The statute that codifies a respondent’s due process right to 

appear gives the trial court independent authority to waive a respondent’s 

appearance but bestows no waiver authority on an attorney. 

A. “Mental illness” and “mental competency” are not 

equivalent.

Eskenazi and A.A. both argue that the Court of Appeals below 

announced an overly broad rule: that a respondent, who necessarily faces 

a claim of mental illness as defined by statute, can never be competent to 

waive his right to be present at an involuntary-commitment hearing. See

A.A., 81 N.E.3d at 632. They contend that this rule perpetuates the wrong 

presumption that “mental illness” is always equivalent to “mental 

incompetency.”

The broad holding stems from M.E., in which another panel addressed 

in dicta whether an individual’s written waiver validly forfeited his right 

to be present at his civil-commitment hearing:

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 [hospital] 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.

M.E., 64 N.E.3d at 860–61.

We agree with the parties that M.E. conflates mental illness and mental 

competency, when Indiana law distinguishes between them. For purposes 
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of involuntary commitment, mental illness is defined as “a psychiatric 

disorder” that “substantially disturbs an individual’s thinking, feeling, or 

behavior” and “impairs the individual’s ability to function.” Ind. Code § 

12-7-2-130 (2017). Yet Indiana Code section 12-26-2-8(a) explicitly states 

that detention or commitment for a person with mental illness “does not 

deprive the individual” of the rights to, among other things, dispose of 

property, execute instruments, enter into contracts, and give testimony in 

a court of law. This statute shows that even when someone suffering from

mental illness is under a commitment order, that person may still have 

the mental competency to perform important legal acts. See generally

Nichols v. Estate of Tyler, 910 N.E.2d 221, 227 (Ind. Ct. App. 2009) 

(discussing the mental-capacity standard for entering into a contract for 

the sale of real property).

Indiana courts have likewise distinguished between mental illness and 

mental competency. For instance, in Anderson v. State, 699 N.E.2d 257, 260–

61 (Ind. 1998), this Court rejected an argument that counsel was ineffective 

for failing to request a competency hearing for a defendant suffering from 

schizophrenia. In doing so, we refused to assume that evidence of mental 

illness would automatically lead to a determination of mental 

incompetency. Id.; see also Hutchison v. State, 82 N.E.3d 305, 312 (Ind. Ct. 

App. 2017) (distinguishing between mental illness and mental competency 

and citing several cases in support).

Because both the legislature and caselaw have distinguished mental 

illness from mental competency, we disapprove of M.E. to the extent it 

equates these terms. A court may not assume that a civil-commitment 

respondent is mentally incompetent just because the person is facing a 

claim of mental illness. What does this mean, though, for mentally 

competent respondents who want to waive their right to appear? It means 

that they may waive that right if certain conditions are met.
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B. Involuntary-commitment respondents may waive the 

right to appear if they are capable of voluntarily, 

knowingly, and intelligently making that decision.

We arrive at this conclusion by first turning to the statute codifying the 

due process right to appear at a civil-commitment hearing. Indiana Code 

section 12-26-2-2(b) recognizes the civil-commitment respondent’s right 

“[t]o be present at a hearing relating to the individual,” but the statute is 

silent on personal waiver of that right.2

This silence, though, does not mean that a trial court must refuse a 

mentally competent respondent’s personal waiver of his presence at a 

commitment hearing. If it did, then the statutory right to be present would 

become a requirement to be present—a conclusion unsupported by the 

statute’s plain language. See Ind. Alcohol & Tobacco Comm’n v. Spirited Sales, 

LLC, 79 N.E.3d 371, 376 (Ind. 2017) (explaining that a court starts with the 

plain language of the statute and “may not add new words” to it). Rather, 

the nature of a “right” dictates that, as a general rule, the right to appear at 

a commitment hearing allows the respondent to decide that he does not, 

in fact, wish to appear. Cf. GPH v. Giles (In re Commitment of GPH), 578 

N.E.2d 729, 736–38 (Ind. Ct. App. 1991) (clarifying waiver of a 

respondent’s codified due process right to counsel at a commitment 

 2 We note that Indiana Code section 12-26-2-2 does not directly refer to the emergency 

detention statutes. The commitment statutes as a whole, however, make clear that the rights 

listed in that section do apply to preliminary and final hearings for respondents in emergency 

detention.

Once an individual is in emergency detention, and once the detaining facility files its required 

report, the trial court must quickly either order the individual released or set a preliminary or 

final hearing. I.C. §§ 12-26-5-8, -9. Both types of hearings involve determining whether 

temporary or regular commitment is appropriate. I.C. § 12-26-5-9(a)(2)(B), (a)(3)(B). And 

section 12-26-2-2’s rights explicitly apply in both temporary and regular commitment 

proceedings—including ones that begin with emergency detention. I.C. §§ 12-26-2-2(a), -6-2,

-7-1. So, once a preliminary or final hearing has been set for an individual in emergency 

detention, that individual is afforded the statutory rights in Indiana Code section 12-26-2-2, 

including the right to be present.
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hearing when the statute recognized the right but was silent on personal 

waiver), trans. denied. 

But recognizing a mentally competent respondent’s ability to 

personally waive his appearance in a civil-commitment proceeding 

resolves just the first facet of the inquiry. The next question remains: what 

procedure must a trial court follow before accepting such a waiver? To 

answer this, we acknowledge certain realities of a civil-commitment 

proceeding—that the mental status of a respondent is necessarily at issue 

and that the State is exercising its parens patriae power.

As stated above, a civil-commitment respondent could exhibit the 

necessary competency to personally waive an appearance. Yet we are 

mindful that once an individual is at risk of commitment, that person’s 

mental condition is necessarily at issue. See I.C. § 12-26-1-1. And, a 

respondent may suffer from both mental illness and mental 

incompetency. Accordingly, stringent safeguards are critical to guarantee 

that a respondent is capable of personally waiving the right to appear and,

in turn, to guarantee the integrity of the proceeding as a whole.

Safeguards also bolster the State’s ability to protect and care for a 

respondent. The Supreme Court of the United States has recognized that 

“[t]he state has a legitimate interest under its parens patriae powers in 

providing care to its citizens who are unable because of emotional 

disorders to care for themselves.” Addington v. Texas, 441 U.S. 418, 426 

(1979). If a commitment hearing proceeds without the respondent, the 

State’s ability to exercise this power is hindered, as an individual’s 

presence will often yield vital information on the most appropriate 

treatment plan.

Of course, these concerns are also implicated when a civil-commitment 

respondent wishes to personally waive other due process rights, such as

the right to counsel. The Court of Appeals has addressed personal waiver 

in the right-to-counsel context, explaining that “a principal concern must 

be whether the patient is capable of making such a decision” and that the 

waiver must be made “knowingly, voluntarily, and intelligently.” GPH, 

578 N.E.2d at 737. 
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We likewise conclude that before a trial court accepts a respondent’s 

personal waiver of the right to appear, it must ensure that the individual 

is capable of knowingly, voluntarily, and intelligently making that 

decision. This requires the trial court to expressly find those prerequisites 

on the record—though how that is done will depend on the particular 

circumstances of the case. In some cases, mental competency may be more 

doubtful, and the court may need to diligently observe and question the 

respondent in person. Other cases may not require such a deep inquiry. 

Regardless, before accepting a personal waiver of appearance, the trial 

court must find, through direct contact with the individual, that the 

respondent understands the nature and importance of the right, the 

consequences of waiving the right, the elements required to obtain an 

involuntary commitment, and the applicable burden of proof. Cf. id. at 

736–38. Direct contact may include, but is not limited to, contact made in

person, by telephone, or via video call. However, a signed waiver of the 

right to appear, standing alone, will not suffice.

C. An attorney may not waive an involuntary-commitment 

respondent’s right to appear.

Nor can a respondent’s attorney validly waive the respondent’s right to 

appear. To be sure, inherent in the respondent’s right is the personal 

ability to choose whether to exercise it. But we will not infer another’s 

ability to waive the right—to do so would undermine the right itself. 

Indeed, the legislature did not intend for waiver by attorney. Indiana 

Code section 12-26-2-2, which sets forth a civil-commitment respondent’s 

right to appear at a hearing, does give the trial court independent 

authority to waive an individual’s appearance:

(b) The individual alleged to have a mental illness has the . . . 

right[]:

. . .
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(3) To be present at a hearing relating to the individual. 

The individual’s right under this subdivision is subject 

to the court’s right to do the following:

. . .

(B) Waive the individual’s presence at a hearing if the 

individual’s presence would be injurious to the 

individual’s mental health or well-being.3

Notably missing is any provision giving waiver authority to an 

attorney, leaving us to conclude that waiver by attorney is not permitted. 

Two well-established rules of statutory construction inform our analysis. 

Under the doctrine of expressio unius est exclusio alterius, “[w]hen certain 

items or words are specified or enumerated in a statute then, by 

implication, other items or words not so specified or enumerated are 

excluded.” State v. Willits, 773 N.E.2d 808, 813 (Ind. 2002) (quoting Forte v. 

Connerwood Healthcare, Inc., 745 N.E.2d 796, 800 (Ind. 2001)). The 

legislature specifically allowed the trial court to waive a respondent’s 

right to appear under narrow circumstances but provided no mechanism 

for an attorney to do the same. We thus infer that attorney waiver in the 

civil-commitment context is not permitted. And to ignore this implication 

and judicially construct an attorney-waiver standard would contravene 

another statutory-interpretation canon—that courts may not engraft 

additional or new words onto a statute. See Kitchell v. Franklin, 997 N.E.2d 

1020, 1026 (Ind. 2013). Sidestepping these interpretive doctrines would 

trample on the role of the legislature and erode principles that uphold the 

separation of powers. 

 3 The statute also gives the trial court the right to remove a respondent who “is disruptive to 

the proceedings.” I.C. § 12-26-2-2(b)(3)(A). This provision recognizes the court’s need to 

manage its courtroom and does not address waiver of an individual’s appearance. In other 

words, it does not affect this case.
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To reiterate, the right to appear is a respondent’s right. Limiting when 

that right can be waived by another—in this case, the trial court judge—

ensures that those facing involuntary commitment are afforded their day 

in court. After all, these are some of the most vulnerable members of our 

society—those who are facing significant deprivations of liberty, such as 

confinement and forced medication orders. See generally In re Mental 

Commitment of M.P., 510 N.E.2d 645, 646 (Ind. 1987) (recognizing that 

forced medication interferes with an individual’s liberty interest). And 

stringently safeguarding the right to appear at a commitment hearing 

surely “has the function of reducing the chance of inappropriate 

commitments.” T.K., 27 N.E.3d at 273 (quoting J.B. v. Midtown Mental 

Health Ctr. (In re Commitment of J.B.), 581 N.E.2d 448, 450 (Ind. Ct. App. 

1991), trans. denied).

In sum, Indiana Code section 12-26-2-2(b) recognizes that the

respondent has a due process right to appear at a civil-commitment 

hearing; it does not force the respondent to exercise that right. Because the 

respondent’s appearance is a right and not a requirement, a mentally 

competent respondent may choose to relinquish the right through a 

knowing, voluntary, and intelligent personal waiver. The respondent’s 

attorney, however, may not waive the right.

Here, the record is clear—A.A. did not personally waive his 

appearance, and the statute does not permit waiver by A.A.’s attorney. 

Still, Eskenazi argues there was no due process violation, pointing to the 

trial court’s independent statutory authority to waive a respondent’s 

appearance if his “presence would be injurious to [his] mental health or 

well-being.” I.C. § 12-26-2-2(b)(3). A.A. recognizes this authority but 

contends that the trial court never exercised it. The parties’ disagreement 

on the issue partially rests on the timing of a statutory waiver 

determination, which we address next.
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II. A trial court must make a statutory waiver 

determination under Indiana Code section 12-26-

2-2(b)(3)(B) at the beginning of a civilcommitment hearing.

Both parties recognize that the trial court can waive a respondent’s 

right to appear at a commitment hearing if the respondent’s presence 

would be injurious to his mental health or well-being. The parties dispute, 

however, when the trial court must make this statutory determination. 

A.A. believes it must be made at the outset of a civil-commitment hearing, 

while Eskenazi contends that a trial court should be allowed to listen to all 

relevant evidence before making a waiver decision.

Although Indiana Code section 12-26-2-2(b)(3)(B) plainly lists the 

“injurious” waiver standard, the statute is silent on timing. Again guided 

by statutory-construction principles, we conclude that the court must 

exercise its independent waiver authority at the beginning of the 

proceeding. 

In addition to a respondent’s right to appear at a commitment hearing, 

Indiana Code section 12-26-2-2(b) codifies three due process rights: the 

right to notice of a hearing, the right to a copy of the petition, and the right 

to counsel. I.C. § 12-26-2-2(b)(1), (2), (4). The organization of these rights is 

significant and leads to an oft-cited canon of statutory interpretation: to 

determine the legislature’s intent in drafting a statute, we must consider 

the “structure of the statute as a whole.” Spirited Sales, 79 N.E.3d at 376. 

When viewed as a whole, Indiana Code section 12-26-2-2(b) lists some, 

but not all, due process rights applicable to commitment proceedings. See

In re Commitment of Turner, 439 N.E.2d 201, 203 (Ind. Ct. App. 1982) 

(referencing Indiana Code section 12-26-2-2’s predecessor and listing the 

“procedural due process rights” it codifies). For example, the rights to 

present evidence and cross-examine witnesses are listed in the next 

section, Indiana Code section 12-26-2-3. And the “clear and convincing” 

standard of proof for civil-commitment proceedings—the standard 

required to satisfy due process—is found in Indiana Code section 12-26-2-

5(e). T.K., 27 N.E.3d at 273.
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We believe that this grouping of certain due process rights in Indiana 

Code section 12-26-2-2(b) was deliberate. They share a common temporal 

characteristic—they attach before a commitment hearing, and their utility 

decreases or even disappears if a respondent cannot exercise them in a 

timely manner. The rights to notice of the hearing and to a copy of the 

petition are futile unless they apply before the proceeding. The right to 

counsel likewise has limited worth if a respondent cannot exercise it 

before a hearing begins. And the right to appear obviously loses its value 

as a proceeding continues in a respondent’s absence. In other words, these 

rights are triggered before the trial court hears substantive evidence on 

whether commitment is necessary.

Eskenazi doesn’t dispute that a respondent’s right to appear applies 

from the beginning of the hearing, but argues that no limitation should be 

imposed on when waiver must occur. It reasons that placing the waiver 

determination at the outset of a hearing would be unduly restrictive and 

would fail to recognize that evidence presented later in the proceeding 

could inform a waiver analysis. 

This position, though, compromises the statute’s objective, which is to 

protect civil-commitment respondents by codifying some of their due 

process rights. A respondent’s right to appear—which is implicated before 

the proceeding begins—would not be adequately protected if the trial 

court conducted the entire hearing before waiving the individual’s 

presence. Furthermore, waiver at the end of the hearing would lead to a 

significant waste of judicial resources. A trial court could conduct a 

commitment hearing only to conclude that the “injurious” waiver 

standard wasn’t met. In that situation, the trial court would have to redo 

the entire proceeding with the respondent present. We must “presume[] 

that the legislature intended for the statutory language to be applied in a 

logical manner consistent with the statute’s underlying policy and goals.” 

Prewitt v. State, 878 N.E.2d 184, 186 (Ind. 2007). And accepting Eskenazi’s 

argument would run afoul of that presumption. Accordingly, a trial 

court’s waiver determination under Indiana Code section 12-26-2-

2(b)(3)(B) must be made at the outset of the proceeding.
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Eskenazi is right, of course, that the same evidence may be relevant to 

both the statutory waiver decision and the ultimate involuntarycommitment decision. When that happens, a trial court can hear evidence 

about waiver at the beginning of the hearing and then incorporate it into 

its later decision on commitment.4 This procedure not only conserves 

judicial resources but also stringently protects a respondent’s due process 

right to appear at a commitment hearing.

Still, in some instances a trial court may fail to make a proper statutory 

waiver determination and the hearing nevertheless proceeds without the 

respondent. Below, we address how to analyze such an error and then 

apply that framework to the specific facts of this case.

III. Failure to make a proper statutory waiver 

determination under Indiana Code section 12-26-

2-2(b)(3)(B) is subject to harmless-error review.

In the criminal context, the Supreme Court of the United States has 

classified certain constitutional errors as “structural” because they 

“affect[] the framework within which the trial proceeds.” Arizona v. 

Fulminante, 499 U.S. 279, 310 (1991). Since structural errors affect “[t]he 

entire conduct of the trial from beginning to end,” they cannot be deemed 

harmless. Id. at 309–10. Many other constitutional errors, however, are 

 4 A.A. contends that the Court of Appeals authorized the use of “unverified” pretrial filings 

for the waiver determination, since the opinion provided,

[E]vidence must be presented to the trial court establishing that the respondent’s 

presence would be injurious to his mental health or well-being. In other words, 

evidence must address the specific components of the statute. This evidence may 

incorporate by reference documents such as the application for emergency detention, 

the report following emergency detention, and the physician’s statement. 

A.A., 81 N.E.3d at 634. Eskenazi disagrees, arguing that the panel simply recognized that if a 

party wished to use a pretrial filing, it would need “foundational, admissible evidence to 

incorporate those filings.” We agree that Eskenazi’s reading reflects proper evidentiary 

procedure.
Indiana Supreme Court | Case No. 49S02-1711-MH-688 | May 17, 2018 Page 17 of 20

subject to harmless-error review, because they can be “assessed in the 

context of other evidence presented” to determine if they are 

“immaterial.” Id. at 308.

A.A. argues that the failure to make a proper waiver determination 

under Indiana Code section 12-26-2-2(b)(3)(B) is structural error, and thus 

not subject to harmless-error review. He contends that this type of due 

process deprivation—conducting a commitment hearing in a respondent’s 

absence without first finding that his presence would be injurious to his 

mental health or well-being—affects the entire framework of the 

proceeding. While we agree that such a constitutional error is significant, 

it is not structural. 

As explained above, when the trial court exercises its waiver authority

in involuntary-commitment cases, it makes two determinations. First, at 

the outset of the hearing, the court determines whether the respondent’s 

presence would be injurious to the respondent’s mental health or wellbeing. I.C. § 12-26-2-2(b)(3)(B). Second, the court determines whether the 

respondent is mentally ill and either dangerous or gravely disabled, as 

part of the commitment decision. I.C. § 12-26-2-5(e). The same evidence 

could be relevant to both determinations.

When the evidence does overlap, an erroneous waiver can be “assessed 

in the context of other evidence presented,” Fulminante, 499 U.S. at 308. In 

other words, it’s possible that a trial court could improperly waive a 

respondent’s presence, but then hear evidence that both supports a 

commitment order and satisfies the “injurious” waiver standard. In such a 

case, the error would not affect the commitment proceeding from 

beginning to end—rather, had the trial court followed the proper 

procedure at the outset of the hearing, there would have been evidence to 

support waiver of the respondent’s presence. That is to say, the error 

would ultimately be harmless.

To be clear though, harmlessness depends not on whether evidence 

supports commitment, but on the extent of record evidence supporting 

waiver. And waiver focuses on why being present at the proceeding

would be injurious to the respondent’s mental health or well-being. Often, 

evidence on mental illness or dangerousness or grave disability—which 
Indiana Supreme Court | Case No. 49S02-1711-MH-688 | May 17, 2018 Page 18 of 20

are relevant to the main issue of commitment, see I.C. § 12-26-2-5(e)—will 

inadequately address how appearing at the hearing would affect a 

respondent. 

That is precisely what happened here. A.A. has never challenged the 

evidence supporting his commitment. Rather, he has maintained that the 

evidence that could point to dangerousness fails to show that his presence 

in court would have been injurious to his mental health or well-being. For 

its part, Eskenazi asserts that additional evidence does support waiver, 

since bringing A.A. to court “against his will” and possibly having to 

physically suppress him due to his violent tendencies would be injurious 

to A.A.’s mental health or well-being. We agree with A.A.

The only evidence about why A.A. wasn’t present at his involuntarycommitment proceeding was his attorney saying, “I was informed this 

morning that [A.A.] was not brought over due to him being agitated.” 

After hearing this, the trial court found A.A.’s presence waived and heard 

substantive evidence on commitment. That evidence included testimony 

on A.A.’s intimidating actions towards staff (on days prior to the hearing) 

and his inability to take care of his own needs. Contrary to Eskenazi’s 

argument, we simply do not know why A.A. was agitated that day or 

what it would have taken to bring him to court. Missing from the record, 

then, is any evidence that A.A.’s presence at his own commitment hearing 

would have been detrimental to him. Rather, we know only that A.A. was 

aware of his hearing and did not want to be committed—an opinion he 

couldn’t express to the court because he wasn’t there.

This highlights the importance of a respondent’s right to appear at an 

involuntary-commitment proceeding. If present, A.A. could have voiced 

concerns on issues like adverse side effects of forced medications; assisted 

his counsel in cross-examining witnesses, such as family members; and 

offered mitigating evidence. These possibilities bolster our conclusion that 
Indiana Supreme Court | Case No. 49S02-1711-MH-688 | May 17, 2018 Page 19 of 20

the failure to make a proper waiver determination was not harmless. For 

that reason, we remand to the trial court to vacate the commitment order.5

Conclusion

This case highlights the importance of due process protections—

particularly the right to appear—for those at risk of involuntary

commitment. Today, we hold that a respondent can personally waive the 

right to appear if the waiver is knowing, intelligent, and voluntary; but 

the respondent’s attorney cannot waive the right by proxy. Further, if a 

trial court independently waives a respondent’s presence, it must do so at 

the beginning of the proceeding. And, finally, an improper waiver 

determination is subject to harmless-error review.

Here, the trial court did not make a proper waiver finding at the outset 

of A.A.’s involuntary civil-commitment hearing. We conclude the error 

was not harmless, given the lack of evidence on whether A.A.’s 

appearance would have been injurious to his mental health or well-being. 

For that reason, we reverse and remand to the trial court to vacate the 

commitment order.

David, Massa, Slaughter, and Goff, JJ., concur.

 5 The record does not reveal A.A.’s current situation. If A.A. is under a regular involuntarycommitment order stemming from his mother’s August 2016 application for emergency 

detention, then he will no longer be subject to that order. However, the parties are reminded 

not to take any action in reliance upon this opinion until its certification. App. R. 65(E).
Indiana Supreme Court | Case No. 49S02-1711-MH-688 | May 17, 2018 Page 20 of 20

ATTORNEYS FOR APPELLANT

Ruth A. Johnson

Deborah B. Markisohn

Marion County Public Defender Agency

Appellate Division

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Bryan H. Babb

Bose McKinney & Evans LLP

Indianapolis, Indiana

Jessica Proctor Barth

Julie M. Conrad

Eskenazi Health Legal Services Department

Indianapolis, Indiana