Baker, J.
A.A. was involuntarily committed to Eskenazi Health/Midtown Community Mental Health Clinic (“Eskenazi”). He was not present at the commitment hearing. A.A. appeals, arguing that he did not validly waive his right to personally appear at his commitment hearing, and that he had a due process and a statutory right to be present. Eskenazi Health argues that the trial court had independent statutory authority to waive A.A.’s right to be present at the commitment hearing, and that A.A.’s presence at the commitment hearing would have been dangerous to A.A. and others at the hearing. We find that neither A.A. nor his counsel could validly waive his right to appear, but that the trial court had a statutory right to waive A.A.’s presence. Accordingly, we affirm.
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Here, A.A. could not have knowingly, voluntarily, and intelligently waived his right to personally appear because he was being involuntarily detained in a psychiatric ward pending his commitment hearing. A.A. was diagnosed with schizophrenia, and Dr. David Pollack, the psychiatry resident intern who treated A.A., testified that A.A. “has currently been responding to internal stimuli.” Tr. p. 9. A.A. was observed to be talking to himself and laughing, being aggressive and impulsive, and having delusions. Like in M.E., we conclude that A.A. could not have validly waived his right to appear at his commitment hearing.
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Initially, we hold that it was error for A.A.’s counsel to waive A.A.’s right to be present at the hearing. Counsel had no right, statutory or otherwise, to waive this right, and such action goes against the principles of due process. We also find that the trial court was too readily disposed to agree to waiver of A.A.’s right to be present without seeking more information about A.A.’s current mental and physical state.
Nonetheless, Indiana Code section 12-26-2-2(b) does give trial courts the ability to waive a respondent’s right to be present at a hearing. This provision of the statute has not previously been addressed by our appellate courts. The statute provides in relevant part that an individual alleged to have a mental illness has the following rights:
(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:
(A) Remove the individual if the individual is disruptive to the proceedings.
(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.
Because the statute allows a trial court to waive a respondent’s right to be present, we disagree with A.A. that error occurred, let alone fundamental error. The information required to establish that A.A.’s presence would be injurious to himself entered the record…..
The statute provides a practical way for a trial court to deal with a respondent whose presence at the hearing would be injurious to himself—but the statute does not address the timing of the trial court’s right to waive the respondent’s presence. [Footnote omitted.] As a matter of first impression, we hold that, in the future, if the respondent is not present at the hearing, the trial court’s determination of whether it should waive the respondent’s presence must be made at the outset of the hearing. To make that determination, evidence 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.
We note that in civil commitment cases, a respondent’s presence is central to the commitment hearing. By being present, a respondent has the opportunity to share with the trial court any concerns he may have, whether it be about specific medications, method of taking medications, or other special matters. We therefore prompt trial courts, counsel, and caregivers to invoke Indiana Code section 12-26-2-2(b) only when the waiver of the right to be present is truly needed and supported by the evidence.
In this case, the evidence established why A.A. should not have been present at his commitment hearing as well as why he was not, in fact, present. To redo the commitment hearing would not provide any real service to A.A.
The judgment of the trial court is affirmed.
Robb, J., and Altice, J., concur.