For The Best Interest and Protection of S.E.W.--Appeal from Probate Court of Galveston County

Affirmed and Opinion filed November 21, 2002

Affirmed and Opinion filed  November 21, 2002.

In The

Fourteenth Court of Appeals

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NOS. 14-02-00602-CV and

14-02-00603-CV

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FOR THE BEST INTEREST AND PROTECTION OF S.E.W.

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On Appeal from the Probate Court

Galveston County, Texas

Trial Court Cause Nos. 698 and 698A

O P I N I O N

Appellant S.E.W. was committed for temporary mental health services for a period not to exceed 90 days. The trial court also ordered the administration of psychoactive medications to S.E.W. while she was in custody. In four issues, S.E.W. asserts the evidence is legally and factually insufficient to support the orders and the evidence is insufficient to show she had been properly advised about the rights of persons apprehended or detained. We affirm.

Factual Background

On May 15, 2002, appellant was found in an incoherent state at the Bay Area Baptist Church in League City, Texas. The police officer who found her stated she was not aware of where she was, her age, how she entered the church, or her place of residence. She appeared at the business office of the church claiming her father was trying to kill her. The officer transported appellant to the Mainland Medical Center emergency room and she was subsequently admitted to the hospital.

While at the medical center, appellant was treated by Dr. Lee Evangeline Emory. At the commitment hearing, Dr. Emory testified that appellant suffers from schizophrenia, severe mental, emotional, and physical distress. Dr. Emory further testified that appellant is irrational and does not take her medication. She also testified that appellant is preoccupied with imaginary urinary tract infections. It was also noted that appellant believes her 85-year-old father, who is confined to a wheelchair, is trying to kill her. Dr. Emory testified that appellant is experiencing substantial mental or physical deterioration of her ability to function independently and cannot provide for her own basic needs such as food, clothing, health, or safety. During the hearing, appellant interrupted the doctor s testimony, the lawyer s arguments, and the court s pronouncement of commitment.

Lorraine Limero, a therapist at Mainland Medical Center, testified that she had participated in appellant s treatment. Limero suggested that the ACT team help monitor appellant s medication. Appellant told Limero she thought the ACT team were drug dealers and refused to cooperate with them. Andrea Henry, the mental health liaison for the Gulf Center, recommended that appellant be placed in Austin State Hospital.

At the conclusion of the hearing, the court ordered appellant committed for inpatient mental health services for a period not more than 90 days.[1] After signing the commitment order, the trial court held a hearing on a petition to administer psychoactive medication. At that hearing, Dr. Emory testified that appellant lacked the capacity to make a decision regarding the administration of psychotrophic medication because she believes all such medication is poisonous to her system. The trial court ordered authorities to administer medication even if appellant refused to take it. See Tex. Health & Safety Code 574.106.

Burden of Proof

On an application for court ordered inpatient mental health services, the State must prove the following by clear and convincing evidence:

(1) the proposed patient is mentally ill;

(2) as a result of that mental illness the proposed patient:

(a) is likely to cause serious harm to herself;

(b) is likely to cause serious harm to others; or

(c) is:

(I) suffering severe and abnormal mental, emotional, or physical distress;

(ii) experiencing substantial mental or physical deterioration of the proposed patient s ability to function independently, which is exhibited by the proposed patient s inability, except for reasons of indigence, to provide for the proposed patient s basic needs, including food, clothing, health, or safety; and

(iii) unable to make a rational and informed decision as to whether or not to submit to treatment.

Tex. Health & Safety Code 574.034(a). The trial court must specify which criterion forms the basis for the decision to grant the State s application. Id. 574.034(b).

Standard of Review

The clear and convincing standard is the degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be proved. State v. Addington, 588 S.W.2d 569, 570 (Tex.1979). In conducting a legal sufficiency review, we consider only the evidence and inferences tending to support the fact finding, and disregard all contrary evidence and inferences. Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 458 (Tex.1992). If any evidence of probative force exists to support the finding, we will uphold the decision. ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex.1997). In reviewing factual sufficiency complaints, we review all the evidence to determine if it was sufficient to produce, in the fact finder, a firm belief or conviction as to the truth of the allegations sought to be established. State v. Addington, 588 S.W.2d 569 570 (Tex.1979). See also T.G. v. State, 7 S.W.3d 248, 251 (Tex. App. Dallas 1999, no pet.). We will sustain a factual sufficiency challenge only if, after viewing all the evidence, we conclude the finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996). To constitute clear and convincing evidence under Mental Health Code subsection 574.034(a), the evidence must include expert testimony and, unless waived, evidence of a recent overt act or a continuing pattern of behavior that tends to confirm (1) the likelihood of serious harm to the proposed patient or others; or (2) the proposed patient s distress and the deterioration of the proposed patient s ability to function. Tex. Health & Safety Code 574.034(c).

Trial Court s Findings

In support of its order, the trial court found by clear and convincing evidence that appellant was mentally ill. The court also concluded that appellant is suffering from severe and abnormal mental, emotional or physical distress. Moreover, the court found that appellant is experiencing substantial mental or physical deterioration affecting her ability to function independently, which is exhibited by her inability to provide for her basic needs, including food, clothing, health, or safety. Finally, the court determined that appellant is unable to make a rational and informed decision regarding treatment.

 

Sufficiency of Evidence

In her first three issues, appellant challenges the legal and factual sufficiency of the evidence to support the trial court s order for temporary mental health services and to administer psychoactive medication. It is Dr. Emory s expert opinion that appellant suffers from schizophrenia. She explained that appellant is not fully oriented and often experiences delusions, such as believing that her disabled father intends to kill her or that she has been poisoned. In Dr. Emory s opinion, if not treated, appellant will continue to suffer severe distress and will continue to experience deterioration of her ability to function independently.

Dr. Emory testified that appellant does not accept her diagnosis and does not consistently take her medication. He stated that appellant is preoccupied with a bladder disfunction. Despite repeated tests, the doctors did not find physical evidence to document appellant s perceived physical problems.

Appellant testified she was not taking her medication because it gave her a bladder infection and she did not agree with the doctor s recommended dosage. She further testified that she was not afraid her father would kill her, but is scared he might hurt me or himself with his steak knives or handgun in the house or misuse and abuse the police. During Dr. Emory s testimony, appellant interrupted several times, asking that Dr. Emory s license be revoked and stating that Geodon, a psychotrophic medication, has hurt her bladder and has to come out.

With regard to recent overt acts, the medical records reflect that appellant was found wandering in a church and told the workers in the church office that her father was trying to kill her. The police officer who found appellant stated she was not aware of where she was, her age, who she lived with, or how she came to be in the church.

Based on the testimony and medical records admitted at trial, we find sufficient evidence of a continuing pattern of behavior or recent overt act as required under section 574.035(d) of the Health and Safety Code. Legally and factually sufficient evidence supports the court s findings with respect to severe distress and inability to function independently.

Dr. Emory and Ms. Limero testified that appellant was unable to make rational decisions about the administration of medication because she believes all such medication is poisonous. Further, when the ACT team attempted to aid appellant with her medication, she dismissed them as drug dealers.

Accordingly, we find there is legally and factually sufficient evidence to support the court s finding that appellant is unable to make a rational and informed decision regarding administration of psychoactive medication. See L.S. v. State, 867 S.W.2d 838, 843 (Tex. App. Austin 1993, no pet.). Appellant s first three issues are overruled.

Advice to Apprehended or Detained Persons

In her fourth issue, appellant challenges the sufficiency of the evidence regarding whether she was properly advised about the rights of persons apprehended or detained pursuant to Texas Health and Safety Code section 573.025. Section 573.025 provides:

(a) A person apprehended or detained under this chapter has the right:

(1) to be advised of the location of detention, the reasons for the detention, and the fact that the detention could result in a longer period of involuntary commitment;

(2) to a reasonable opportunity to communicate with and retain an attorney;

(3) to be transported to a location as provided by Section 573.024 if the person is not admitted for emergency detention, unless the person is arrested or objects;

(4) to be released from a facility as provided by Section 573.023;

(5) to be advised that communications with a mental health professional may be used in proceedings for further detention; and

 

(6) to be transported in accordance with Sections 573.026 and 574.045, if the person is detained under Section 573.022 or transported under an order of protective custody under Section 574.023.

(b) A person apprehended or detained under this subtitle shall be informed of the rights provided by this section:

 
(1) orally in simple, nontechnical terms, within 24 hours after the time the person is admitted to a facility, and in writing in the person s primary language if possible; or

(2) through the use of a means reasonably calculated to communicate with a hearing or visually impaired person, if applicable.
 

Upon her admission to Mainland Medical Center, appellant was advised of her rights including the right to contact counsel and that the information given by appellant could be used in a hearing that might result in her future detention. Appellant testified she had not been advised that she was in a psychiatric unit and that anything she said and the medical records could be used against her. The charge nurse for Mainland Medical Center, Alice Lovell, testified that the medical records reflected that appellant was read her rights at 10:30 p.m. on May 15, 2002. We find sufficient evidence to support the trial court s finding that appellant was advised of her rights under the Health and Safety Code. Appellant s fourth issue is overruled.

Accordingly, the judgment of the trial court is affirmed.

/s/ Charles W. Seymore

Justice

Judgment rendered and Opinion filed November 21, 2002.

Panel consists of Justices Edelman, Seymore, and Guzman.

Do Not Publish Tex. R. App. P. 47.3(b).

[1] Although appellant has been released from her temporary commitment, her appeal is not moot. See State v. Lodge, 608 S.W.2d 910, 911 12 (Tex. 1980).