December 28, 2018

Court Deals With Due Process And Involuntary Civil Commitment; A.A. v. Eskanazi Health/Midtown CMHC

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This case recognized the “vigorous due process protections” that those who are the subject of involuntary civil commitments are entitled. One of those protections is the right to appear at those proceedings. In this case, the Court “clarified uncertainty surrounding waiver of a respondent’s right to appear.”

A.A. lived with his mother, who filed an application for A.A.’s emergency detention. The trial court ordered A.A. detained and transported to Eskanazi Hospital. The hospital staff recommended regular involuntary commitment.

On September 12, 2016, the trial court held a commitment hearing, but A.A. was not present. A.A.’s appointed counsel (who had never spoken or met with A.A.) stated that A.A. was waiving his appearance at the hearing. The hearing proceeded and, after hearing testimony (although none from A.A.), the trial court ordered regular involuntary commitment.

A.A. appealed, arguing that he was denied due process and the Court of Appeals partly agreed. It concluded that while his waiver was invalid, the trial court had the statutory authority to waive a respondent’s right to be present. Based on A.A.’s circumstances, the Court affirmed. The Indiana Supreme Court then granted transfer.

In its opinion, the Court dropped an interesting and educational footnote. Both A.A. and Eskanazi sought transfer, even though Eskanazi won in the Court of Appeals. Even though Eskanazi won, it did not like the way that it won, because it saw “potential mischief in how [it] may have to conduct future commitment proceedings.” The Court said that it was “clear” that Eskanazi did not have standing to seek transfer. “To state it another way, what counts for standing purposes is the Court of Appeals’ judgment and not the reasons underlying it.” Nevertheless, standing is a jurisprudential doctrine that did not affect the Court’s jurisdiction, so the Court exercised its discretion to hear Eskanazi’s petition for transfer in this case.

The Court then moved to the merits of the appeal. First, the Court acknowledged that a mentally competent person could waive his right to attend a civil-commitment hearing. In doing so, the Court made clear that someone could suffer from a mental illness (for purposes of a civil-commitment proceeding) yet still be mentally competent for due process purposes. “A court may not assume that a civil-commitment respondent is mentally incompetent just because the person is facing a claim of mental illness.”

But the Court recognized that someone could waive their right to be present at the hearing, so it had to set the procedure a trial court must follow in order to accept such a waiver.

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. … 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. 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.

And a person’s attorney cannot make this waiver on his behalf, as the relevant statutes do not give any waiver authority to an attorney.

The relevant statutes do give the trial court the independent authority to waive a respondent’s appearance at a civil-commitment hearing if his “presence would be injurious to [his] mental health or well-being.” And Eskanazi argues that the trial court exercised that authority in this case. But the Court found that such a finding must be made at the beginning of the proceeding to be effective.

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.

The trial court did not follow those procedures in this case, so A.A.’s waiver was invalid. But this did not end the inquiry, for the Court found that the failure to make a proper waiver is subject to harmless-error review.

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. Second, the court determines whether the respondent is mentally ill and either dangerous or gravely disabled, as part of the commitment decision. 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.” 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.

This is not to say that the error is harmless because the evidence supports a civil commitment. Rather, it is harmless if the evidence shows that being present at the proceeding would be injurious to the respondent’s mental health or well-being.

The record in this case was silent on whether A.A.’s presence at the hearing would have been detrimental to him. So the Court reversed the trial court’s decision.


  1. Someone can be mentally ill for the purposes of civil commitment law but be mentally competent for due process purposes.
  2. A person must knowingly, voluntarily, and intelligently waive their right to appear for the waiver to be valid.
  3. A court may only accept a waiver after direct contact with the allegedly mentally ill person.
  4. The lack of a proper waiver is harmless if the record reflects that it the person’s presence would be injurious to his mental health or well-being.