In the Best Interest of K.A.K.--Appeal from Probate Court No 2 of Bexar County

No. 04-99-00375-CV
In the Interest of K. A. K., A Mental Health Patient
From the Probate Court No. 2, Bexar County, Texas
Trial Court No. 99-MH-0902
Honorable Sandee Bryan Marion, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Tom Rickhoff, Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: October 27, 1999

AFFIRMED

K.A.K. appeals from an order committing him to the San Antonio State Hospital for in-patient care for a period not to exceed ninety days.(1) On appeal, K.A.K. complains about the trial court's noncompliance with the statutory time requirements for involuntary commitment hearings. K.A.K. also challenges the legal and factual sufficiency of the evidence to support the order of involuntary commitment. For the following reasons, we affirm the trial court's order.

Continuance For Commitment Hearing

Under chapter 574 of the Health and Safety Code, commitment proceedings are initiated by the filing of an application for court-ordered mental health services with the county clerk. Id. at 574.001. A hearing to determine whether involuntary commitment is warranted must be held within fourteen days after an application is filed. Id. at 574.005(a). One or more continuances of the hearing may be granted on the motion by a party and for good cause shown or on agreement of the parties. Id. at 574.005(c).

The application for court-ordered mental health services for K.A.K., sworn to and accompanied by one certificate of medical examination, was filed on May 12, 1999. A hearing on the application was initially set for May 19, 1999. On May 14, 1999, Josie Lara, the commitment coordinator for the San Antonio State Hospital, sent a written request to Judge Al Alonso to reset the May 19 hearing to May 25, indicating that further evaluation of K.A.K. was necessary. On Lara's request, the hearing on K.A.K.'s application was reset for May 25, 1999; the State did not file a motion on Lara's request and the parties had not agreed to a reset. On May 20, 1999, the parties were notified of the reset date for the hearing. On May 24, 1999, Lara sent a second written request to Judge Alonso to reset the May 25 hearing to June 1. On that same day, however, K.A.K. escaped from the hospital. When he returned the following day, the commitment hearing was conducted with Judge Sandee Marion Byran presiding.

As a preliminary matter to the hearing, counsel for K.A.K. motioned the court to dismiss the application, arguing that Judge Alonso improperly continued the May 19, 1999 hearing without a motion from the State or an agreement by the parties. The motion was denied and the hearing went forward.

In his first point of error, K.A.K. complains that the trial court erred in denying his motion to dismiss, arguing that because the statutory requirements of section 574.005(c) were not complied with when the May 19th hearing was reset, the application should have been dismissed. We disagree.

The record in the instant case shows that the trial court reset K.A.K.'s original hearing after receiving a request from the hospital. The resetting appears to ignore the requirements of section 574.005(c). As previously noted, continuances of a hearing may be granted on motion by a party and for good cause shown or on agreement of the parties. Id. at 574.005(c). In the instant case, it is undisputed that the parties did not agree to the May 25th reset and a motion with good cause shown was not filed. The coordinator for the San Antonio State Hospital, while perhaps a participant in the commitment hearing, is not a party to the commitment proceeding.

Despite the apparent noncompliance with subsection (c) of section 574.005, the hearing on K.A.K.'s application was conducted within fourteen days after its filing. See id. at 574.005(a). The record thus shows compliance with section 574.005's requirement for prompt action on commitment applications. Because the statute's overarching goal for prompt action on commitment applications was not seemingly frustrated by the reset, we are unable to conclude that the statute mandates dismissal in the instant case. Cf. In re Gill, 680 S.W.2d 41, 43 (Tex. App.-Amarillo 1984, no writ) (reversing order of commitment where hearing on application not held within fourteen days, even though parties received notice of hearing within fourteen-day period). To hold otherwise, we would depart from the sound rule that strict compliance regarding the scheduling of hearings is not required when it would frustrate the purpose of this statute, which is to ensure that mentally ill individuals receive proper medical attention. See In re Ellenwood, 567 S.W.2d 251, 253 (Tex. Civ. App.-Amarillo 1978, no writ) (opining that purposes of statute should not be defeated by strict insistence on hearing within fourteen days). Our disagreement with K.A.K.'s position, however, should not be mistaken or interpreted as this court's tacit approval of the irregular activity surrounding the resetting of K.A.K.'s hearing. The need for further evaluation, the reason noted in Lara's request, would seemingly qualify as good cause, which the State could have explained in a motion properly presented to both the court and K.A.K.'s counsel. Point of error number one is overruled.

Involuntary Commitment

K.A.K. next argues that there is no evidence, or alternatively insufficient evidence, to support the necessary findings for involuntary commitment by clear and convincing evidence.

In Texas, a judge may not order temporary in-patient mental health services unless the judge 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 Supp. 1999). In the instant case, the trial court determined that K.A.K. was mentally ill and that he should be involuntarily hospitalized because he is likely to cause serious harm to others and he is suffering severe and abnormal mental, emotional, or physical distress; is experiencing substantial mental or physical deterioration of his ability to function independently; and is unable to make a rational and informed decision as to whether or not to submit to treatment.

To be clear and convincing under section 574.034, 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 either the likelihood of serious harm to the proposed patient or others, or the proposed patient's distress and the deterioration of the proposed patient's ability to function. Id. at 574.034(d)(1), (2). Expert opinion recommending involuntary temporary commitment must be supported by a factual basis. In re J.S.C., 812 S.W.2d 92, 95 (Tex. App.--San Antonio 1991, no writ). A bald diagnosis alone is insufficient to support commitment. See id.

Clear and convincing evidence is that measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction about the truth of the allegations sought to be established. State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979). The proof must be more than merely the greater weight of the credible evidence, but there is no requirement that the evidence be unequivocal or undisputed. Id.

In considering K.A.K.'s no evidence challenges, we review all the evidence in the light most favorable to the trial court's findings, indulging every reasonable inference in favor of those findings, see Associated Indem. Corp. v. Cat Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex. 1998), to determine whether more than a scintilla of evidence supports the challenged findings. See Formosa Plastics Corp. v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998). In the context of the State's heightened burden of proof, we will sustain a no evidence challenge if the evidence is insufficient to produce in the mind of the fact-finder a firm belief or conviction as to the truth of the facts. Johnstone v. State, 961 S.W.2d 385, 388 (Tex. App.--Houston [1st Dist.] 1997, no writ).

In considering K.A.K.'s insufficient evidence challenges, we may set aside the findings only if a review of all the evidence demonstrates that the evidence which supports the findings is so weak as to be clearly wrong and manifestly unjust. See Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).

Witness Testimony

Dr. Lily Engles, K.A.K.'s treating physician at San Antonio State Hospital, was the State's sole witness at the commitment hearing. Dr. Engles testified that K.A.K. suffers from a bipolar disorder -- an emotional disorder that substantially impairs his thoughts and perception of reality. He has suffered from this disease for quite some time; K.A.K. had previously been admitted to the hospital eleven times. Dr. Engles characterized K.A.K. as manic; K.A.K's speech was rapid and his thought-pattern was disorganized. Dr. Engles stated that K.A.K. exhibits "psychotic features," and noted that he abuses controlled substances and alcohol. Dr. Engles further indicated K.A.K. lacks good judgment and has poor impulse control. Due to his poor impulse control, Dr. Engles opined that K.A.K. is likely to cause serious harm to others. She explained that K.A.K. is easily agitated and becomes threatening and aggressive when his desires are not met immediately. That point was illustrated on May 19, 1999, when Dr. Engles observed K.A.K. run through the door of the secure unit, a unit in which he was placed due to his aggressive behavior, threatening to kill and harm staff members. In her opinion, K.A.K.'s emotional outbursts evidence the severe, abnormal, mental, or emotional distress he is suffering.

The medical certificates filed with the court indicates that K.A.K. was admitted to the hospital after he attempted to commit suicide by overdose. An altercation with his girlfriend apparently precipitated the attempt. See K.L.M. v. State, 735 S.W.2d 324, 325 (Tex. App.-Fort Worth 1987, no writ) (court may consider medical certificates even though they have not been admitted into evidence).

In her testimony, Dr. Engles also expressed the opinion that K.A.K. is unable to function independently and make a rational, informed decision about whether to submit to treatment. Although she stated that K.A.K.'s condition improved with medication, Dr. Engles indicated that K.A.K was not stable. On cross examination, Dr. Engles expressed concern about K.A.K.'s ability to self-medicate on an out-patient basis. She indicated that K.A.K. has experienced difficulty timely refilling his prescriptions. In Dr. Engles's opinion, in-patient treatment was the most effective environment for K.A.K.

During Dr. Engles' testimony, K.A.K. repeatedly interrupted Dr. Engles' questioning. The trial court instructed K.A.K. not to interject responses either to questions posed to Dr. Engles or to Dr. Engles' answers, and explained to K.A.K. that he would have an opportunity to testify on his own behalf. At one point in the proceeding, K.A.K. demanded to proceed pro se, claiming that his attorney was unaware of important issues, which he wanted to bring to the court's attention.

On his own behalf, K.A.K. presented several issues. He first explained to the trial court that he was a member of a prominent Texas family; he was not "a typical psychiatric patient that comes through here on a daily basis." K.A.K. acknowledged that he has suffered from a bipolar disorder for some time, but he explained that he routinely takes his medication because doing so is a condition of his probation. He explained that he is employed and he cannot afford to lose his job. Finally, in asking the trial court to rule against commitment, K.A.K. reminded the court that he voluntarily returned to the hospital. In his opinion, that voluntary gesture indicates he possesses the ability to make intelligent, informed decisions regarding his treatment.

Application of Law to Facts

As previously noted, the trial court's order of commitment was based upon findings that K.A.K. is mentally ill and should be involuntarily hospitalized because he is likely to cause serious harm to others; and is suffering severe and abnormal mental, emotional, or physical distress; is experiencing substantial mental or physical deterioration of his ability to function independently; and is unable to make a rational and informed decision as to whether or not to submit to treatment.

1. Mentally Ill

The record in the instant case contains evidence sufficient to produce in the mind of the fact-finder a firm belief or conviction that K.A.K. is mentally ill. Dr. Engles diagnosed K.A.K. as suffering from a bipolar mood disorder, a diagnosis which K.A.K. confirmed through his own testimony.

2. Poses Threat to Others

Dr. Engles also expressed the opinion that if left untreated, K.A.K. was likely to cause serious harm to others. This opinion was based on the fact that K.A.K. is manic and lacks poor impulse control. Dr. Engles characterized K.A.K. as emotional, aggressive, and threatening when he is angered. To properly monitor his aggression, K.A.K. was placed in a secure unit in the hospital. Dr. Engles personally observed K.A.K. during an emotional episode in which he kicked open a door, ran through it, threatening to kill and harm hospital staff. K.A.K.'s outburst is sufficient evidence of a recent act that tends to confirm the assertion that K.A.K. poses a threat to others in an unsupervised, untreated manic state. See Tex. Health & Safety Code Ann. 574.034(d)(1), (2) (Vernon Supp. 1999). On this record, we conclude that the trial court could have found, by clear and convincing evidence, that K.A.K. is likely to cause serious harm to others, and thus that the statutory criteria for commitment had been satisfied. See id. at 574.034. Because the trial court's order of commitment must be supported by only one statutory criterion under section 574.034(a)(2), we need not review of the sufficiency of the evidence supporting the other commitment criteria. See Mezick v. State, 920 S.W.2d 431, 430 (Tex. App.-Houston [1st Dist.] 1996, no writ); L.S. v. State, 867 S.W.2d 838, 844 (Tex. App.-Austin 1993, no writ).

Viewing the evidence in the light most favorable to the trial court's finding, and indulging every reasonable inference in favor of that finding, we find there is more than a scintilla of evidence to support the challenged finding and, therefore, we overrule K.A.K.'s legal sufficiency challenge. See Formosa, 960 S.W.2d at 48. Because we are unable to conclude that the evidence supporting the finding is so weak as to be clearly wrong and manifestly unjust, we also overrule K.A.K.'s factual sufficiency challenge. See Garza, 395 S.W.2d at 823.

The order of the trial court is affirmed.

Catherine Stone, Justice

DO NOT PUBLISH

1. By its terms, the order of commitment from which K.A.K. appeals expired Monday, August 23, 1999. This appeal, however, is not moot. See Lodge v. State, 608 S.W.2d 910, 911 (Tex. 1980). In Lodge, the supreme court held that the doctrine of mootness does not apply to appeals from involuntary commitments for temporary hospitalization. Lodge, 608 S.W.2d at 911-12. This conclusion was based, in part, on the observation that "commitment to a mental hospital 'can engender adverse social consequences to the individual' whether it is labeled a 'stigma' or if it is called something else." Id. at 912.