Rush, C.J.
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.
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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 civil-commitment 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.
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.
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We agree with the parties that M.E. conflates mental illness and mental competency, when Indiana law distinguishes between them. For purposes 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).
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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.
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. [Footnote omitted.]
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…
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.
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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.
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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.
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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 civil-commitment hearing.
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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.
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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.
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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 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.
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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.