For the Best Interest and Protection of J.J.K.--Appeal from Probate Court of Galveston County

Reversed and Rendered and Memorandum Opinion filed December 23, 2003

Reversed and Rendered and Memorandum Opinion filed December 23, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-03-00379-CV

NO. 14-03-00380-CV

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FOR THE BEST INTEREST AND PROTECTION OF J.J.K., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the Probate Court

Galveston  County, Texas

Trial Court Cause Nos. 925 & 925A

M E M O R A N D U M O P I N I O N

In appellate cause number 14-03-00379-CV (trial cause number 925), following a hearing before the bench, the probate court granted an application to commit appellant J.J.K. for court ordered temporary mental health services. In appellate cause number 14-03-00380-CV (trial cause number 925A), the trial court granted an application to administer psychoactive medications to appellant. Concluding the evidence is legally insufficient to support the trial court=s commitment order, we reverse both orders of the trial court and render judgment denying the applications.

FACTUAL AND PROCEDURAL BACKGROUND

On March 16, 2003, appellant was found wandering the streets in Alvin, Texas. EMS was called, determined appellant was hypoglycemic, and transported her to the emergency room at the University of Texas Medical Branch of Galveston. In the emergency room, appellant reportedly had Aflight of ideas, rapid speech and required sedation.@

On March 19, 2003, a physician filed an application for court-ordered temporary mental health services, requesting the court to commit appellant to the Austin State Hospital for inpatient psychiatric treatment. On March 24, 2003, a hearing officer found probable cause to hold appellant pending a final hearing.

On March 26, 2003, the probate court held a bench trial to determine whether to grant the application for court ordered temporary mental health services. The State called two witnesses: Michael Fields, Program Director at Gulf Coast Center where appellant was detained pending trial, and Dr. John Bryan, a licenced physician, board eligible in psychiatry, who evaluated appellant. Both recommended that appellant be treated at Austin State Hospital.

Based on his examination, Bryan diagnosed appellant as mentally ill, suffering from bipolar disorder in manic state with psychotic features. Bryan testified that during appellant=s recent hospital stay, she was becoming more and more agitated and had to be physically restrained and locked in a seclusion room. While locked in the room, she knocked the door off the hinges and had to be placed in a different seclusion room. Bryan also testified appellant had verbal altercations with her peers, but had not been Aphysically grabby.@ He stated that as a result of these situations and his evaluation, he believed that she could end up causing harm to others or herself by hitting herself or by making another person angry to the point where they would cause harm to her. He admitted, however, appellant had not physically struck anyone and had not hurt herself or anyone else while she was hospitalized.

Bryan also testified appellant exhibits continuing patterns of behavior, such as becoming agitated and angry. She continues to relapse Aquickly and seriously,@ requiring hospitalization on two previous occasions, and returning to the hospital within a week both times.

Bryan further testified he believed appellant was (1) suffering severe abnormal mental, emotional, or physical distress; (2) experiencing substantial mental or physical deterioration[1] of her ability to function independently and that the deterioration is exhibited by her inability, except for reasons of indigence, to provide for the proposed patient=s basic needs, including food, clothing, health, or safety;[2] and (3) that she was unable to make rational and informed decisions as to whether or not to submit to the treatment. Additional evidence indicated appellant (1) told Bryan she was half vulcan or an elf; (2) said that if she were sent to Austin State Hospital there would be a lot of dead bodies; (3) told another physician she had her baby taken away from her at the hospital while she was raped; (4) said she hates her doctor and he is from outer space; (5) believed one of the hospital residents was her husband; and (6) believed she was pregnant with 22 kids.

Appellant testified on her own behalf, stating she is sensitive to drugs and the wrong medications cause her to be delusional. She further testified she is currently on the right medications and responding to them correctly. On direct examination appellant testified (1) she does not believe she is an elf or a vulcan and that she invents these stories as protection so people will not know her; (2) she knows she is not married to the doctor; (3) she knows her address; (3) she wants to live in her apartment; and (4) she is willing to take the medicine prescribed by the doctor.

After evaluating the testimony, the court found appellant was suffering from a mental illness and as a result of the mental illness was likely to cause serious harm to herself and others and was suffering severe and abnormal mental, emotional, or physical distress; experiencing substantial mental or physical deterioration of her ability to function independently, which was exhibited by her inability, except for reasons of indigence, to provide for her basic needs, including food, clothing, health, or safety; and unable to make rational and informed decisions as to whether or not to submit to the treatment.[3] The court ordered appellant committed to Austin State Hospital for a period not to exceed ninety days. The court then conducted a bench trial on the application to administer psychoactive medication. Bryan testified appellant lacked the capacity to make the decision regarding the administration of psychiatric medication because of her mental illness. He recommended antipsychotics, mood stabilizers, anxiolytics, sedatives, hypnotics and antidepressants. Bryan stated appellant=s prognosis is fair if she takes the medication, but without it, he believes she would continue to suffer from mental illness, possibly killing herself or someone else if she did not take the medications. Bryan, however, acknowledged appellant had never directly threatened anyone. At the conclusion of the testimony, the court ordered that the Texas Department of Mental Health was authorized to administer the psychoactive medication.

DISCUSSION

Legal Standards, Burden of Proof, and Standards of Review

In issue one, appellant argues the evidences was legally insufficient to support the Order for Temporary Inpatient Mental Health Services and the Order to Administer Psychoactive Medication. In issue two, she argues the evidence was factually insufficient to support these orders.[4]

A trial court may order the commitment of a person to a temporary inpatient mental health service for ninety days if it finds from clear and convincing evidence that:

(1) the proposed patient is mentally ill; and

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

(A) is likely to cause serious harm to himself;

(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 Ann. ' 574.034(a) (Vernon 2003). The trial court found appellant was mentally ill as required by subsection 574.034(a)(1), and also found the existence of all three conditions under subsection 574.034(a)(2). Appellant challenges only the sufficiency of the evidence supporting the findings under subsection (a)(2).

The clear and convincing standard is the degree of proof that will produce in the mind of the trier of fact Aa firm belief or conviction@ as to the truth of the allegations sought to be proved. See State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979). In a proceeding for temporary inpatient mental health services, the evidence, to be clear and convincing, 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 deterioration of her ability to function. Tex. Health & Safety Code Ann. ' 574.034(d) (Vernon 2003).

When reviewing the legal sufficiency of evidence to support a finding that the United States Constitution requires the State to prove by clear and convincing evidence, we must look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that the alleged fact is true. See In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).[5] In doing so, we must assume the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. Id. The reviewing court should disregard all evidence a reasonable factfinder could have disbelieved or found to have been incredible. Id. This last caution, however, does not mean we must disregard all evidence that does not support the finding; disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence. Id. When conducting a factual sufficiency review, we review all the evidence to determine whether it was sufficient to produce a firm belief or conviction in the minds of the factfinder of the allegations pleaded. See G.H. v. State, 96 S.W.3d 629, 633 (Tex. App.CHouston [1st Dist.] 2002, no pet.); see also In re C.H., 89 S.W.3d 17, 18B19 (Tex. 2002) (stating same in context of parental rights termination case).

Analysis: Evidence Supporting Commitment Order

Although the trial court needed to find only one of the statutory factors, the trial court in the present case found all three: (1) appellant is likely to cause serious harm to herself, (2) is likely to cause serious harm to others, and (3) is suffering severe and abnormal mental, emotional, or physical distress; experiencing substantial mental or physical deterioration of her ability to function independently (as shown by her inability, except for reasons of indigence, to provide her basic needs, including food, clothing, health, or safety); and is unable to make a rational and informed decision about whether to submit to treatment. See Tex. Health & Safety Code Ann. ' 574.034(a)(2). Accordingly we review the record to determine whether there was sufficient evidence to support any one of the three. See In re R.M., 90 S.W.3d 909, 912 (Tex. App.CSan Antonio 2002, no pet.) (terminating the analysis after finding evidence sufficient to satisfy one of the subsections)

As set forth above, the State presented expert evidence appellant was delusional, had disorganized thought patterns, and suffered from bipolar disorder in manic state with psychotic features. Expert diagnosis alone, however, is not sufficient to confine a patient for compulsory treatment. In re J.S.C., 812 S.W.2d 92, 95 (Tex. App.CSan Antonio 1991, no writ). Instead, the expert opinion must be supported by a factual basis. Id. Additionally, evidence that merely reflects a patient=s mental illness and need for hospitalization is not enough to meet the State=s burden of proof. See, e.g., K.T. v. State, 68 S.W.3d 887, 893B94 (Tex. App.CHouston [1st Dist.] 2002, no pet.) (holding evidence legally insufficient despite testimony appellant had delusions she was pregnant, had sutures in her vagina, and staff was putting poison or medication in her food, and testimony appellant refused to leave the examining room, refused to eat, was verbally abusive, and attempted to escape); D.J. v. State, 59 S.W.3d 352, 357 (Tex. App.CDallas 2001, no pet.) (holding evidence of patient=s psychotic behavior, delusions she had undergone surgery by satellite and had electronics implanted in her not sufficient to meet required statutory burden); Broussard v. State, 827 S.W.2d 619, 622B23 (Tex. App.CCorpus Christi 1992, no writ) (reversing commitment order on no evidence challenge despite evidence that patient had delusions, had been previously hospitalized for her mental illness, and was described as hostile and provocative). Cf. Mezick v. State, 920 S.W.2d 427, 430 (Tex. App.CHouston [1st Dist.] 1996, no writ) (holding evidence sufficient when State established patient had history of threatening suicide, refused medication, and lost 30 pounds in three months); L.S. v. State, 867 S.W.2d 838, 842B43 (Tex. App.CAustin 1993, no writ) (affirming commitment for patient when evidence showed that patient deliberately gained 10 pounds in one day by drinking excessive water, was attacked by another patient for being intrusive, and habitually walked into traffic without looking).

Here, the State presented evidence appellant engaged in verbal altercations with others and knocked a door off of its hinges while locked in a seclusion room. These two overt acts, however, do not tend to confirm appellant will cause Aserious harm@ to herself or others. See Tex. Health & Safety Code Ann. ' 574.034(a)(2)(A),(B), (d)(1); see also In re K.D.C., 78 S.W.3d 543, 550B51 (Tex. App.CAmarillo 2002, no pet.) (holding no overt act or pattern to support (2)(A), (B),or (C) despite evidence appellant walked long distances to other cities; was picked up by police; and, when admitted to the hospital; exhibited rapid, pressured speech and religious ideations, and had previously been in another hospital for unknown reasons); In re P.W., 801 S.W.2d 1, 3 (Tex. AppCFort Worth 1990, writ denied) (reversing and vacating commitment order despite evidence appellant believed everyone was an agent for her ex-husband and he was tapping her phone, she called her cousin asking the best place to hold a pistol to kill herself without causing a lot of pain, she broke her car window with a steel bar, burned clothes and picture frames, and attempted to throw away valuable items).

There was also no evidence of a recent overt act or a continuing pattern of behavior tending to confirm a substantial deterioration of appellant=s ability to function independently as exhibited by an inability to provide for her own basic needs, including food clothing, health, or safety. See Tex. Health & Safety Code Ann. ' 574.034(a)(2)(C)(ii), (d). Although Bryan testified he believes appellant is Adisorganized, to the point where I don=t think she would necessarily know when she=s hungry she has to go to the kitchen and . . . pop something in the microwave,@ he provided no factual basis for this opinion. Instead, the evidence shows only that appellant suffers from obesity and was hypoglycemic when admitted to the emergency room. Although one medical report indicates appellant said she did not need her medications because she was Asane,@ there is no evidence she was refusing necessary medication. Cf. In re G.H., 94 S.W.3d 115B16 (Tex. App.CHouston [14th Dist.] 2002, no pet.) (divided panel holding evidence legally and factually sufficient to establish elements of criterion C under section 574.034(a)(2) when there purportedly was evidence appellant refused any medication to treat her condition). Similarly, Bryan=s testimony appellant would relapse if she was discharged from the hospital was not sufficient to satisfy the evidentiary burden of a recent overt act or a continuing pattern of behavior that tends to confirm Athe proposed patient=s distress and the deterioration of the proposed patient=s ability to function.@ See Broussard, 827 S.W.2d at 620, 622 (holding evidence of six or seven prior hospitalizations, psychotic and hostile behavior, and repeated refusals to take medication insufficient).

We hold the evidence was legally insufficient to support the trial court=s findings under Texas Health and Safety Code section 574.034(a)(2)(A),(B), or (C).

Analysis: The Order to Administer Psychoative Medication

Appellant also argues the trial court erred in entering the Order to Administer Psychoactive Medication because the evidence at trial was legally insufficient to support that order. A trial court may issue an order authorizing the administration of psychotic medications only if the proposed patient is under an order for involuntary mental health services. Tex. Health & Safety Code Ann. ' 574.106(a)(1) (Vernon 2003). Therefore, because we reverse the trial court=s commitment, we must also reverse its order to administer psychotic medications. See K.T., 68 S.W.3d at 894.

CONCLUSION

We are reluctant to deny court-ordered treatment for anyone who is ill. However, within the fifteen pages of testimony and the exhibits before us, we do not find the State proved its case by clear and convincing evidence as it is required to do. Accordingly, we sustain appellant=s issue one, reverse the orders of the probate court, and render judgment denying the applications (1) for court ordered mental health services and (2) to administer psychoactive medications. Having sustained appellant=s issue one, we need not address issue two.

/s/ John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed December 23, 2003.

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

[1] Bryan testified that the last time appellant was discharged from the hospital she was able to have a relatively normal conversation and talk about her medications, but she was back in two days, having deteriorated to the point that she was delusional and disorganized.

[2] Bryan testified that prior to appellant=s hospital commitment, an ACT Team monitored her at her apartment to no avail, and that he believes that she is so delusional she would not know what to do when she is hungry.

[3] The trial court=s written order sets forth all three statutory grounds for commitment. In its ruling from the bench, the court set forth only harm to self and others.

[4] Although appellant has begun and may already be released from her temporary commitment, her legal and factual sufficiency challenges are not moot. See Johnstone v. State, 22 S.W.3d 408, 409 n. 1 (Tex. 2000) (per curiam).

[5] The United States Constitution requires that the findings necessary to support involuntary commitment for an indefinite period be made by clear and convincing evidence. Addington v. Texas, 441 U.S. 418, 433, 99 S. Ct. 1804, 1813 (1979). The burden of proof required by due process is less clear when the commitment is for a definite period, but the reasoning in Addington suggests the clear and convincing standard of proof is constitutionally required in all involuntary commitments extending beyond a short observational period. See Addington, 441 U.S. 425B33, 99 S. Ct. 1809B13.