CRONE, Judge.
After A.J. was charged with two counts of class A felony child molestation, he was found incompetent to stand trial and was committed to Logansport State Hospital ("Logansport") for competency restoration services. After six months, A.J. had not attained competency, and Logansport initiated regular commitment proceedings as required by statute. Following a hearing, the trial court found A.J. mentally ill and dangerous and granted the commitment petition.
A.J. appeals, presenting several arguments: (1) that Logansport failed to comply with the statutory rule requiring that the commitment proceedings contain a report from a community mental health center; (2) that the trial court erred in admitting
The pertinent facts stem from three different causes involving A.J.: the instant civil commitment case, cause number 66C01-0910-MH-16 ("MH-16"), the criminal case giving rise to this civil commitment case, cause number 66C01-0808-FA-2 ("FA-2"); and a previous criminal case, cause number unknown. The facts provided herein are taken solely from the record of this civil commitment case, which is the only record before us.
A.J. was born prematurely at twenty-two weeks' gestation in December 1986. He suffered a stroke in utero causing deafness, partial blindness, a seizure disorder, and porencephaly (an area involving a cyst or cavity), which continues to enlarge, in the left side of his brain. His IQ is 65, which is in the mild mental retardation range. He also has hypothyroidism. He attended the Indiana School for the Deaf in Indianapolis from preschool until age twenty, and uses sign language to communicate.
In 2007, while still at the School for the Deaf, A.J. was involved in an incident that gave rise to his first criminal conviction. The facts are sparse and uncertain. The State presents the facts as testified to by A.J.'s mother ("Mother"). She testified that A.J. and another boy carried a girl down some stairs. The other boy got on top of the girl. When the girl cried and screamed, A.J. left to find a teacher and brought the teacher back to help the girl. A.J. was charged with sexual battery and pled guilty to criminal confinement.
In August 2008, A.J. was on probation for his criminal confinement conviction and living with his mother in Pulaski County, when the State filed FA-2, the criminal case leading to the civil commitment in issue here. In FA-2, the State charged A.J. with two counts of class A felony child molestation. Specifically, the State alleged that between December 2007 and July 2008, A.J. molested his niece and nephew, ages three and five. Again, the facts are sparse. According to the June 3, 2010, psychological testing report ("State's Exhibit 1") prepared by Judy Gilbert, a master's-level behavioral clinician at Logansport, A.J. "reported" that he touched
After his arrest in FA-2, from October 2008 through April 2009, A.J. was on in-home detention. During that time, "he was compliant in all aspects of the program. . . . There was [sic] no issues of him being out of range. He was always in the presence of either his mother or his stepfather the entire time." Tr. at 16.
At some point in FA-2, the trial court determined that there were reasonable grounds for believing that A.J. was not competent to stand trial and ordered that he be evaluated by two psychiatrists, Dr. Ned P. Masbaum and Dr. Steven H. Berger. On January 12, 2009, Dr. Masbaum submitted his report opining that "it is unlikely that [A.J.] can ever be restored to competence to stand trial." Respondent's Ex. at 9.
The trial court held a hearing on A.J.'s competency, found that A.J. was not competent to stand trial, and ordered him committed to the Division of Mental Health and Addiction ("DMHA") of the Indiana Family and Social Services Administration ("FSSA") to receive competency restoration services. Competency restoration services in Indiana are offered only in DMHA-operated state hospitals, of which there are six. A.J. was ordered to receive those services at Logansport State Hospital and was admitted there on April 30, 2009.
In July 2009, Dr. Douglas R. Morris, a staff psychiatrist at Logansport, evaluated A.J.'s competency to stand trial.
On October 7, 2009, Logansport, through its designee Dr. Thompson, filed a petition for the involuntary commitment of A.J., thereby initiating MH-16. The petition alleged that A.J. was suffering from a psychiatric disorder and a developmental disability. The petition averred that A.J. was "gravely disabled" and "not able to provide for his essential human needs secondary to his mental illness and his developmental disability." Appellant's App. at 12. The petition indicated that there were no "recent harmful acts or significant threats of harmful acts." Id. at 11.
On September 29, 2010, the trial court held a hearing on the commitment petition. At the time of the hearing, A.J. had been at Logansport seventeen months. Dr. Morris testified as an expert witness for Logansport. A.J. stipulated to Dr. Morris's credentials as an expert. Logansport submitted State's Exhibit 1, the psychological testing report completed by Judy Gilbert, through Dr. Morris. A.J. objected on grounds that it was not his complete medical record, that it did not have a certificate of authentication, and that Gilbert was not present at the hearing. Tr. at 30-31. The trial court admitted State's Exhibit 1 over A.J.'s objection. In State's Exhibit 1, Gilbert concluded that A.J.'s sexual risk assessment indicated that he was at a high risk to sexually reoffend.
On December 3, 2010, the trial court entered its amended order
Appellant's App. at 20. The trial court ordered A.J. committed to Logansport for a program of rehabilitative services to address pedophilia and restoration services to establish competency to stand trial and for Logansport to submit a report on A.J. within ninety days of the court order.
A.J. appeals. Additional facts will be provided as necessary.
Our standard of review for an order of civil commitment is well settled.
In re Commitment of Bradbury, 845 N.E.2d 1063, 1065 (Ind.Ct.App.2006) (citations and quotation marks omitted).
In this case, part of our task is to decipher the interplay among several statutes. Competency of criminal defendants to stand trial is governed by Indiana Code Chapter 35-36-3; regular commitment of mentally ill individuals is governed by Indiana Code Chapter 12-26-7,
In re J.J., 912 N.E.2d 909, 910 (Ind.Ct. App.2009) (quoting Nash v. State, 881 N.E.2d 1060, 1063 (Ind.Ct.App.2008), trans. denied). In addition, where "statutes address the same subject, they are in pari materia, and we harmonize them if possible." Saintignon v. State, 749 N.E.2d 1134, 1137 (Ind.2001) (citation and quotation marks omitted).
If a trial court has "reasonable grounds to believe that a [criminal] defendant lacks the ability to understand the proceedings and assist in the preparation of a defense," the trial court must appoint two or three competent, disinterested psychiatrists, psychologists, or physicians to examine the defendant and testify at a hearing as to whether the defendant is competent to stand trial. Ind.Code § 35-36-3-1(a). If, following a hearing, the trial court finds that the defendant does not have the ability to understand the proceedings and assist in the preparation of the defendant's defense, the court "shall delay or continue the trial and order the defendant committed to the [DMHA]," and the DMHA shall provide competency restoration services or contract with a third party to provide those services. Ind.Code § 35-36-3-1(b). Here, on April 30, 2009, A.J. was admitted to Logansport for competency restoration services pursuant to Indiana Code Section 35-36-3-1.
Within ninety days after a defendant's admission to a state institution, such as Logansport,
Like other civil proceedings, commitment proceedings are conducted according to the Indiana Rules of Trial Procedure. Ind.Code § 12-26-1-6. The petitioner seeking involuntary commitment, here Logansport,
If after the hearing, the trial court finds that the individual is mentally ill and either dangerous or gravely disabled, the court may either enter an order for "the individual's custody, care, or treatment, or continued custody, care, or treatment in an appropriate facility" or enter an order for "the individual to enter an outpatient therapy program under IC 12-26-14." Ind. Code § 12-26-7-5. Such an order continues until the individual has been discharged from the facility or the court enters an order terminating the commitment. Id.
At least annually, and more often if the court so directs, the superintendent of the facility or the attending physician must file with the court a review of the individual's care and treatment, which must include statements concerning the mental condition of the individual, whether the individual is dangerous or gravely disabled, and whether the individual needs to remain in the facility or may be cared for under a guardianship. Ind.Code § 12-26-15-1.
We now address the issues raised by A.J.
A.J. argues that Logansport failed to follow the requirements of Indiana Code Section 12-26-7-3, which provides in relevant part as follows:
(Emphasis added.)
Specifically, A.J. contends that the record of his commitment proceedings does not include a report from a community mental health center ("CMHC") stating that the CMHC has evaluated the individual and commitment to a state institution is appropriate as required by Section 12-26-7-3(b). He argues that Logansport is a state institution and not a CMHC.
"State institution" is defined by Indiana Code Section 12-7-2-184, which provides,
(Emphases added.)
A "CMHC" is defined by Indiana Code Section 12-7-2-38 as follows:
(Emphases added).
Some additional explanation regarding the role of a CMHC is helpful to the resolution of the issue. In general, "[i]ndividuals are admitted to a state hospital
In the case at bar, regular commitment proceedings were not initiated by a friend, relative, or law enforcement representative but by Logansport, a state institution, that filed the petition for A.J.'s regular commitment as required by Indiana Code Section 35-36-3-4. In addition, when the petition for regular commitment was filed, A.J. had already been committed to Logansport pursuant to Section 35-36-3-1(b) because he had been found incompetent to stand trial. We believe that in A.J.'s circumstances, a state institution may be considered a CMHC for the purpose of providing the report required by Section 12-26-7-3(b).
Logansport is a state institution operated for the "observation, care, treatment, or detention of an individual." Ind. Code § 12-7-2-184. Similarly, a CMHC is "organized for the purpose of providing multiple services for persons with mental illness or a chronic addictive disorder." Ind.Code § 12-7-2-38. The requirement that a CMHC "provid[e] multiple service for persons with mental illness" falls within the state institution's broader purpose "for the observation, care, treatment, or detention of an individual." Considering the respective purposes of a state institution and a CMHC, a state institution can reasonably be considered a CMHC. Also, a state institution must be owned or operated by the state, and by definition, a CMHC includes a hospital operated by a state agency. Logansport is operated by a division of the FSSA, a state agency. Finally, where an individual has already been committed to a state institution due to incompetency to stand trial, a report offered by that state institution ensures that regular commitment is appropriate equally as well as a report offered by a CMHC when a petition for regular commitment is brought by a friend, relative, or law enforcement representative. As such, we conclude that when a defendant has been previously committed to a state institution due to incompetency to stand trial, a state institution may be considered a CMHC for purposes of the report required by Section 12-26-7-3(b). See B.K.C. v. State, 781 N.E.2d 1157, 1167 (Ind.Ct.App.2003) ("A fundamental principle of construction is to construe the statute in accordance with the purpose of the statute and the statutory scheme of which it is a part.").
Because we have concluded that Logansport may be considered a CMHC under the circumstances present here, Section 12-26-7-3(b) will be satisfied if the record contains a report from Logansport stating that (1) A.J. has been evaluated and (2) his commitment to a state institution administered by the DMHA is appropriate. The record before us includes Dr. Thompson's physician's statement indicating that A.J. was evaluated and concluding that commitment to Logansport is "suitable for the necessary care, treatment, and protection of the patient and others" and that it offers "the least restrictive environment" that will meet A.J.'s needs. Appellant's App. at 15. Thus, commitment to
A.J. asserts that the trial court erred in admitting State's Exhibit 1, the psychological testing report prepared by Judy Gilbert, a master's-level behavioral clinician at Logansport, to whom A.J. was referred for sexual risk assessment. On appeal, A.J. states that he "objected to the admission of the exhibit on grounds that it was not the full record of [A.J.'s] from Logansport State Hospital, did not have a certificate of authentication, and the preparer of said document was unavailable for cross examination." Appellant's Br. at 10. He later asserts that Dr. Morris's testimony was based on hearsay, referring to State's Exhibit 1, and that it was "harmful error for the Court to find that [A.J.] had engaged in inappropriate sexual contact based upon hearsay evidence." Id. at 11. That is the full extent of his argument that State's Exhibit 1 was inadmissible. Due to the lack of cogent reasoning, A.J. has waived this argument. See Ind. Appellate Rule 46(A)(8)(a) ("The argument must contain the contentions of the appellant on the issues presented, supported by cogent reasoning."); Romine v. Gagle, 782 N.E.2d 369, 386 (Ind.Ct.App.2003) ("A party generally waives any issue for which it fails to develop a cogent argument or support with adequate citation to authority and portions of the record."), trans. denied.
Waiver notwithstanding, A.J.'s argument is unavailing. "We review decisions concerning the admissibility of evidence for an abuse of discretion." Walker v. Cuppett, 808 N.E.2d 85, 92 (Ind.Ct.App. 2004). An abuse of discretion occurs if the trial court's action is clearly erroneous and against the logic and effect of the facts and circumstances before the court. In re Estate of Holt, 870 N.E.2d 511, 514-15 (Ind. Ct.App.2007), trans. denied (2008).
A.J. argues that State's Exhibit 1 did not have a certificate of authentication. Pursuant to Indiana Evidence Rule 901, evidence is properly authenticated or identified by "[t]estimony of a witness with knowledge that a matter is what it is claimed to be." Dr. Morris's credentials as an expert witness were stipulated to by A.J., and Dr. Morris testified that he was generally familiar with the charts and records that are kept in the course of business at Logansport. Tr. at 29. Dr. Morris identified State's Exhibit 1 as a psychological testing report preformed at Logansport for the purpose of assessing A.J.'s risk of sexual recidivism. Id. Therefore, State's Exhibit 1 was properly authenticated.
A.J. also argues that State's Exhibit 1 is inadmissible hearsay. "`Hearsay' is a statement, other than one made by the declarant while testifying at the trial or
We reject A.J.'s argument that State's Exhibit 1 was inadmissible hearsay. Evidence Rule 803 sets forth categories of evidence that are not excluded by the hearsay rule even though the declarant is available as a witness. Evidence Rule 803(4) provides for the admissibility of "[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment." Evidence Rule 803(6) permits the admission of
Dr. Morris identified State's Exhibit 1 as a psychological testing report performed at Logansport. Tr. at 29. He testified that the purpose of the report was to assess the risk of A.J.'s sexual recidivism, which is done routinely in the course of business for patients at Logansport. Id. He further testified that the report "is certainly, as with all psychological testing reports performed at Logansport—a part of [A.J.'s] treatment record for his hospitalization at Logansport State Hospital." Id. at 35. Therefore, the psychological testing report was both a statement made for the purposes of medical treatment pursuant to Evidence Rule 803(4) and a record of regularly conducted business activity pursuant to Evidence Rule 803(6), and accordingly was not excluded by the hearsay rule. Accordingly, the trial court did not abuse its discretion in admitting State's Exhibit 1.
A.J. contends that there is insufficient evidence to support the trial court's finding that he is dangerous.
Here, State's Exhibit 1 indicated that A.J. was at high risk to sexually reoffend.
Id. Dr. Morris further testified that A.J. understands that inappropriate sexual behavior is wrong but that he does it anyway and that A.J. had "admitted his willingness to break hospital rules to engage in sexual activity with others." Id. at 28-29. Finally, Dr. Morris testified that A.J. has "impaired judgment specifically related to his ability to engage in appropriate interactions with others, especially ... his tendency to engage in inappropriate sexual behaviors with others in an inappropriate environment." Id. at 38.
Although there is something decidedly Kafkaesque to the fact that the unproven child molestation charges against A.J. serve as a basis for Dr. Morris's and Gilbert's opinions that A.J. is dangerous when A.J. is in a state institution because he cannot stand trial for those charges, that is not the only basis for the trial court's finding that A.J. is dangerous. A.J. suffers from pedophilia, and evidence was presented regarding A.J.'s inappropriate sexual behavior at Logansport, impaired judgment, and willingness to break hospital rules. We cannot reweigh evidence or judge witness credibility. Bradbury, 845 N.E.2d at 1065. We must affirm the commitment order if the evidence supports a conclusion that a reasonable person could have drawn even if other reasonable conclusions are possible. Id. Accordingly, we conclude that the evidence is sufficient to support the trial court's finding that A.J. is dangerous.
A.J.'s due process argument conflates two questions that we will address separately. First, A.J. asserts that the commitment petition was governed solely by Indiana Code Chapter 12-26-7, and therefore his Fourteenth Amendment due process rights were violated because the trial court also considered Chapter 35-36-3, which requires the DMHA to provide A.J. with competency restoration services, in determining whether to grant the petition. Put another way, are a patient's due process rights violated where an alternative placement otherwise available to a civilly committed patient is foreclosed to a patient against whom criminal charges are pending because competency restoration
The Fourteenth Amendment to the United States Constitution provides that no State shall "deprive any person of life, liberty, or property, without due process of law." It is well established that "[d]ue process precludes placing a defendant on trial while she is incompetent." State v. Davis, 898 N.E.2d 281, 284 (Ind. 2008). On the other hand, involuntary commitment to a hospital for the mentally ill is a "massive curtailment of liberty" and must be "accomplished by a state in strict observation of requirements of due process." Id. at 288 (citation omitted).
Id. at 284 (citations and quotation marks omitted).
With these considerations in mind, we turn to A.J.'s first argument regarding the trial court's decision to commit him not just because it found A.J. mentally ill and dangerous but also because it found that he needed competency restoration services that are provided only in state institutions.
Our supreme court has recently explained,
After six months of competency restoration services at Logansport, A.J. still had not attained competency. Therefore, pursuant to Section 35-36-3-4, Logansport was required to petition for regular commitment under Chapter 12-26-7. "In the civil commitment context, justification is predicated on the State's interest in the protection of the public under the police power and the protection of the mentally ill person under the parens patriae doctrine." Davis, 898 N.E.2d at 284. In accordance with these interests, the trial court was required to find, and did so find, that A.J. was mentally ill and either dangerous or gravely disabled. However, the trial court did not ignore the fact that the commitment petition was initiated pursuant to Section 35-36-3-4. Thus, the trial court considered all the interests involved: A.J.'s liberty interest, the State's interests in protecting A.J. and the public, and the State's interest in restoring A.J. to competency as well as in protecting A.J. from having to answer to charges that he lacks the capacity to understand. This seems fair to us under the circumstances. We conclude that in determining whether regular commitment to a state institution is appropriate for a patient against whom criminal charges are pending, a trial court's mere consideration of the State's interest in restoring a patient's competency to stand trial does not per se violate the patient's due process rights.
However, to avoid depriving a patient of his due process rights, the State's interest in providing restoration services must be legitimate. See Curtis, 948 N.E.2d at 1154 ("Of course the State's interests cannot be realized if there is a finding that a defendant cannot be restored to competency."); Davis, 898 N.E.2d at 289 ("Commitment of an accused thus focuses on the State's interest in the accused's restoration to competency and necessarily entails a finding of probability that the accused can be so restored."). This leads us directly to A.J.'s second argument, that his due process rights were violated because he cannot be restored to competency.
To support his contention that his competency cannot be restored, A.J. cites Dr. Berger's opinion that A.J. "never has had and never will have the cognitive ability to achieve competence to stand trial." Respondent's Ex. B. at 22. A.J. likens his case to Thomas ex rel. Thomas v. Murphy, 918 N.E.2d 656 (Ind.Ct.App.2009), trans. denied (2010). Thomas involved the appeals of two individuals, Steven Thomas and Derrick Dausman, both of whom had been initially committed because they were found incompetent to stand trial under Section 35-36-3-1(b). A.J. says that his case is akin to Dausman's, but we disagree. The issue addressed in Thomas was ripeness; specifically, whether Dausman's "request for a preliminary injunction preventing the DMHA from placing criminal defendants lacking sufficient comprehension to stand trial in a state institution `when the medical and psychiatric treatment professionals recommend placement in a less restrictive setting'" was ripe for review. Id. at 663 (quoting appellants' appendix). It is true that like A.J., Dausman
Id. at 664-65 (quoting Stropes by Taylor v. Heritage House Childrens Ctr. of Shelbyville, Inc., 547 N.E.2d 244, 247 (Ind.1989)).
Although the Thomas court concluded that Dausman's failure to attain competency within the six-month period set forth in Section 35-36-3-4 meant that competency restoration services were useless, we do not think that this statement amounts to a hard and fast rule that must be applied in every case. Whether competency restoration services will benefit a defendant must be based on the particular circumstances of each case. Here, Dr. Morris testified at the commitment hearing that A.J. was continuing to receive competency restoration services and that "the staff on [A.J.'s] unit are doing an excellent job with his—especially given his underlying intellectual and communication deficits, um, tailoring a program specifically for him with which he has shown progress." Tr. at 38. Dr. Morris opined that there is a "very good possibility" that A.J. can be restored to competency. Id. at 38-39. Thus, there is evidence at this time that A.J. can be restored to competency, and therefore the trial court did not violate A.J.'s due process rights by granting the commitment petition based in part on the State's interest in providing him with competency restoration services.
Appellee's Br. at 20. We observe that in neither Salyers nor Danks were the courts asked to address a due process issue stemming from the defendant's commitment to a state institution. In an ordinary civil commitment, a patient who is no longer dangerous or gravely disabled is eligible for release from custody. Ind.Code § 12-26-7-5(b). Although Chapter 35-36-3 does not provide a definite time period after which competency restoration services are considered futile and therefore unnecessary, an indefinite time period is not equivalent to an unlimited time period. The legislature has suggested a limitation to the time period for restoration services in Section 35-36-3-3, which requires the superintendent of the state institution holding a defendant to "certify to the proper court whether the defendant has a substantial probability of attaining the ability to understand the proceedings and assist in the preparation of the defendant's defense within the foreseeable future." (Emphasis added.) Foreseeable means "being such as may be reasonably anticipated" or "lying within the range for which forecasts are possible." MERRIAM-WEBSTER DICTIONARY, http://www.merriam-webster.com/dictionary/foreseeable (last visited Aug. 2, 2011).
In Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), the United States Supreme Court stated that "even if it is determined that the defendant probably soon will be able to stand trial, his continued commitment must be justified by progress toward that goal." The Supreme Court concluded that Jackson had been "confined for three and one-half years on a record that sufficiently establishes the lack of a substantial probability that he will ever be able to participate fully in a trial." Id. at 738-39, 92 S.Ct. 1845. Although Jackson involved a previous version of Indiana's statutes for pre-trial commitment of a criminal defendant, we think that the reasoning is relevant here because in A.J.'s case, the trial court rejected placement of A.J. under Mother's guardianship because A.J. could receive competency restoration services only in a state institution. Therefore, the State's interest in providing competency services must continue to be demonstrated by reasonable progress toward A.J.'s attainment of competency.
In conclusion, A.J. may not be held perpetually at Logansport solely for competency rehabilitation services if he is not expected to attain competency in the foreseeable future. The trial court is required to review A.J.'s care and treatment on an annual basis, or more often if it so orders. See Ind.Code § 12-26-15-1. Each year, Logansport's superintendent or A.J.'s attending physician must file a report with the trial court, which must convey A.J.'s mental condition, whether he is dangerous or gravely disabled, and whether he needs to remain institutionalized or may be cared for under a guardianship. See id. When the trial court reviews the appropriateness of A.J.'s placement, it must consider the care and treatment A.J. needs for his mental illnesses, as well as the need to protect A.J. and the public. See Davis, 898 N.E.2d at 284. In addition, as there may be alternative options for A.J. that do not offer competency restoration services but are otherwise appropriate for A.J., it will be incumbent upon the court to assess A.J.'s progress toward attaining competency and to determine whether there is a substantial probability that A.J. will attain competency in the foreseeable future. See Jackson, 406 U.S. at 738-39, 92 S.Ct. 1845.
Affirmed.
MATHIAS, J., concurs with separate opinion.
BAILEY, J., concurs.
MATHIAS, Judge, concurring.
I concur fully in the resolution of the issues presented in this appeal. I write separately to express the same concerns I raised in my concurring opinion in Habibzadah v. State, 904 N.E.2d 367, 369 (Ind. Ct.App.2009), trans. denied, and additional concerns raised by A.J.'s circumstances regarding the adequacy of our current criminal justice procedures to resolve the issues presented by defendants suffering from chronic mental illness.
Here, like in Habibzadah, all of the psychiatrists who have examined A.J. during the course of the proceedings culminating in the involuntary commitment at issue here, a period spanning approximately two years, have consistently agreed that he has not been and is not currently competent to assist in his defense. The private psychiatrists appointed to conduct A.J.'s initial competency evaluation in 2009 opined that A.J. would never be restored to competency. Specifically, Dr. Masbaum, a forensic psychiatrist certified by the American Board of Psychiatry and Neurology, concluded that "it is unlikely that [A.J.] can ever be restored to competence to stand trial." Respondent's Ex. at 9 (emphasis added). Similarly, Dr. Berger, another board-certified forensic psychiatrist, concluded that "[A.J.] will never be restored or habilitated to competence to stand trial. He ha[s] the mind of a 5 year old. He never has had and never will have the cognitive ability to achieve competence to stand trial." Id. at 22 (emphasis added). Despite these conclusions reached by Dr. Masbaum and Dr. Berger, A.J. was found only to be incompetent to stand trial and ordered committed to Logansport State Hospital ("Logansport") to receive competency restoration services pursuant to Indiana Code section 35-36-3-1.
One year later, at the September 29, 2010 hearing on Logansport's petition for involuntary commitment, Dr. Morris opined that there is a "very good possibility" that A.J. will attain competency. Tr. pp. 38-39. There was no independent psychological evaluation of A.J. obtained for this hearing, only the evaluation of Dr. Morris. Thus, aside from Dr. Masbaum's and Dr. Berger's initial competency evaluations, the only evidence available to the trial court and to us regarding the likelihood that A.J. will ever attain competency is Dr. Morris's evaluation of A.J. after he began receiving competency restoration services.
Assuming that A.J. ever attains competency, the resolution of the pending criminal charges will likely turn on whether, at the time of the alleged acts of molestation, A.J.'s mental disease was such that he cannot be held criminally responsible for his actions. This is where defendants like A.J. fall into Indiana's twin "black holes" of incompetency to assist defense counsel and competency restoration services. As I explained in my concurring opinion in Habibzadah,
904 N.E.2d at 370-71
All of these concerns are compounded in a case where, despite the earliest expert opinions received closest to the time of the alleged criminal act, evidence which then established that A.J. will never attain competency, A.J. has been shunted off to competency restoration services at Logansport and held there for over two years. A.J.'s family has worked hard to try and create a safe, community-based alternative for his treatment, but in the face of the position of Logansport's physician that Logansport is the only suitable facility for A.J., A.J. will likely remain there for years, if not for a lifetime.
There are no simple answers in the treatment of chronic mental illness, whether in a criminal or civil context, but A.J.'s case is an example of an area where the law must do better.
