The State of Texas for the Best Interest and Protection of F. F.--Appeal from County Court at Law of Cherokee County

NO. 12-04-00155-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

APPEAL FROM THE

THE STATE OF TEXAS FOR THE

BEST INTEREST COUNTY COURT AT LAW OF

AND PROTECTION OF F.F.

CHEROKEE COUNTY

MEMORANDUM OPINION

Appellant F.F. appeals from an order of commitment for temporary inpatient mental health services. After a hearing without a jury, the trial court ordered F.F. committed to Rusk State Hospital for a period not to exceed ninety days. In five issues, F.F. challenges the legal and factual sufficiency of the evidence and also asserts federal and state due process and equal protection violations. We reverse and render.

Background

On April 19, 2004, an application for court-ordered temporary mental health services was filed requesting the court commit F.F. to Rusk State Hospital (the Hospital ) for a period not to exceed ninety days. The application was supported by two physician s certificates of medical examination for mental illness.

One of the physician s certificates was prepared by a Dr. Cuellar who examined F.F. on April 16, 2004. In Dr. Cuellar s opinion, F.F. suffered from schizoaffective disorder; was likely to cause serious harm to others and was suffering severe and abnormal mental, emotional, or physical distress; was experiencing substantial mental or physical deterioration of her ability to function independently as exhibited by her inability, for reasons other than indigence, to provide for her basic needs, including food, clothing, health, or safety; and was unable to make a rational and informed decision about whether to submit to treatment. As the basis for his opinion, the doctor stated that F.F. had threatened family members, was hallucinating, and was out of touch with reality. He further noted that on the date of the examination, F.F. talked nonsense and was giggling to herself.

The second certificate was completed by Dr. Charles Plyler. He examined F.F. on April 23, 2004 and concurred in Dr. Cuellar s diagnosis. Dr. Plyler concluded that F.F. was likely to cause serious harm to herself or others. As the basis for his opinion, Dr. Plyler cited F.F. s threats against family members, her irrational verbalizations, and her conversations with invisible entities.

On April 27, 2004, a hearing without a jury was conducted on the application. At the conclusion of the hearing, the court granted the application for temporary inpatient mental health services. The court also signed an order including findings that F.F. was mentally ill and that as a result of that mental illness, F.F. met at least one of the following specified additional criteria:

______is likely to cause serious to himself/herself; or

______ is likely to cause serious harm to others; or

______ is :

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

______(ii) experiencing substantial mental or physical deterioration of the proposed patient s inability 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, and safety; and is unable to make a rational and informed decision as to whether or not to submit to treatment.

In the order, an X appears in the blank preceding each of the additional criteria.

Sufficiency of the Evidence

In her first issue, F.F. contends that the evidence is legally and factually insufficient to support the commitment order. F.F. does not challenge the trial court s finding that she was mentally ill. She contends that the State did not prove an overt act or continuing pattern of behavior as required by Section 574.034 of the Texas Health and Safety Code. Therefore, F.F. concludes, the State s evidence amounts only to a showing that she is mentally ill, which is insufficient to support the trial court s order. //

Standard of Review

In a legal sufficiency review where the burden of proof is 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 its findings were true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We must assume that the fact finder settled disputed facts in favor of its finding if a reasonable fact finder could do so and disregard all evidence that a reasonable fact finder could have disbelieved or found incredible. Id. This does not mean that we are required to ignore all evidence not supporting the finding because that might bias a clear and convincing analysis. Id.

The appropriate standard for reviewing a factual sufficiency challenge is whether the evidence is such that a fact finder could reasonably form a firm belief or conviction about the truth of the petitioner s allegations. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). In determining whether the fact finder has met this standard, we consider all the evidence in the record, both that in support of and contrary to the trial court s findings. Id. at 27-29. Further, we must consider whether disputed evidence is such that a reasonable fact finder could not have reconciled that disputed evidence in favor of its finding. J.F.C., 96 S.W.3d at 266. If the disputed evidence is so significant that a fact finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. Id.

Applicable Law

The trial judge may order a proposed patient to receive court-ordered temporary inpatient mental health services if the judge or jury finds, from clear and convincing evidence, that the proposed patient is mentally ill and, as a result of the mental illness, she is likely to cause serious harm to herself; is likely to cause serious harm to others; or is (i) suffering severe and abnormal mental, emotional, or physical distress; (ii) experiencing substantial mental or physical deterioration of her ability to function independently, which is exhibited by her inability, except for reasons of indigence, to provide for her 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).

To be clear and convincing under this statute, 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 her ability to function. Tex. Health & Safety Code Ann. 574.034(d) (Vernon 2003). Clear and convincing evidence means the measure or 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 established. State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979). While the State s proof must weigh heavier than merely the greater weight of the credible evidence, there is no requirement that the evidence be unequivocal or undisputed. Id. The statutory requirements for an involuntary commitment are strict because it is a drastic measure. In re C.O., 65 S.W.3d 175, 182 (Tex. App. Tyler 2001, no pet.).

Evidence that merely reflects a patient s mental illness and need for hospitalization is not sufficient to meet the State s burden under section 574.034. See, e.g., In re G.S.F., No. 12-03-00061-CV, 2003 WL 22047990, at *4 (Tex. App. Tyler Aug. 29, 2003, no pet.); K.T. v. State, 68 S.W.3d 887, 892 (Tex. App. Houston [1st Dist.] 2002, no pet.). Additionally, an expert diagnosis of mental illness, standing alone, is not sufficient to confine a patient for treatment. G.S.F., 2003 WL 22047990, at *4; In re G.H., 96 S.W.3d 629, 634 (Tex. App. Houston [1st Dist.] 2002, no pet.). The expert opinion and recommendations must be supported by a showing of the factual bases on which the opinion is based. G.S.F., 2003 WL 22047990, at *4; In re K.D.C., 78 S.W.3d 543, 547 (Tex. App. Amarillo 2002, no pet.). In other words, the expert should describe the specific behaviors on which the opinion is based. G.S.F., 2003 WL 22047990, at *4. A threat of harm to the patient or others must be substantial and based on actual dangerous behavior manifested by some overt act or threats in the recent past. K.D.C., 78 S.W.3d at 547.

As we have previously noted, F.F. does not challenge the trial court s finding that she was mentally ill. Instead, she asserts that the State did not prove a recent overt act or a continuing pattern of behavior as required by section 574.034(d). To support an involuntary commitment order, the trial court must find that the proposed patient is mentally ill and must also find the existence of at least one of the additional criteria set out in section 574.034(a). See In re R.M., 90 S.W.3d 909, 912 (Tex. App. San Antonio 2002, no pet.). The order in the instant case does not specify which of the additional statutory criteria F.F. met, but includes a finding that F.F. met at least one of the additional criteria. Accordingly, we review the record to determine whether there was sufficient evidence to support a finding that F.F. met any one of the three additional criteria.

The Evidence

The record in this case includes the two physician s statements that were attached to the application for court-ordered temporary mental health services. Although each certificate contains a statement that F.F. had threatened family members, neither doctor provides facts relating to the nature of the threats, the circumstances under which the alleged threats were made, or the identity of any family member who was threatened. Dr. Cuellar noted that F.F. talked nonsense and giggled to herself. Dr. Plyler observed irrational verbalizations and conversations with invisible entities.

At the hearing, the State presented the testimony of Dr. Vasantha Orocofsky, F.F. s treating physician. Dr. Orocofsky testified that she reviewed the two physician s certificates prior to her testimony and agreed that F.F. suffered from schizoaffective disorder. When asked whether she agreed that F.F. is likely to cause serious harm to herself, Dr. Orocofsky answered, Not at this time, but to others maybe. When asked about the basis for her opinion, she stated that F.F. had scratched one of the staff and they had to put her in personal restraints. In addition, F.F. threatened staff and peers on April 25 and needed PRN medication.

On cross-examination, Dr. Orocofsky testified that F.F. can eat, dress herself, take care of personal hygiene without assistance or prompting, and take care of her personal safety with supervision. The doctor expressed concern about the effect of F.F. s mental status on her ability to take care of her personal safety without assistance. However, she admitted that F.F. would get out of a burning house, but stated, I don t know what she would do at that point. She also stated that F.F. would maybe defend herself instead of leave if people were threatening to attack her.

According to Dr. Orocofsky, F.F. refused medication initially, but later relented and signed a written consent. She also testified that on the morning of the hearing, F.F. got quite agitated and almost got in my face. She did not require personal restraints, but was still irritable. The doctor described F.F. as dangerous and said that she cannot live safely in freedom, even with the help of family members or friends. When asked about her testimony that F.F. had scratched staff, she replied that she was not aware of the circumstances surrounding that incident or the incident in which F.F. was alleged to have threatened staff and peers. She also admitted that neither incident was documented in F.F. s records. When asked whether she knew if F.F. physically assaulted anyone, Dr. Orocofsky responded that [t]hey said she hit and scratched the staff, but that F.F. was not her patient at the time. She admitted, however, that F.F. could have been defending herself in these two situations. On redirect examination, Dr. Orocofsky testified that she believed it was likely that F.F. s behavior would incite others to harm her.

F.F. testified that she had been arrested and taken to a facility called Spindletop on at least three occasions, but did not state the reasons for the arrests. She did not recall scratching a staff member or threatening staff members or peers. She related an incident in which she was dragged off a couch by a tech, but stated that her response was to call Client s Rights in Beaumont. She testified that she would go to her mother s home if she were released and that her brother lived about ten blocks from her mother. F.F. said that she had no problem with medication unless it affected her physically. She stopped taking a prior medication because of the side effects. When she and her mother have lived together in the past, her mother did the shopping, and F.F. did the cooking. She denied having any current intent to harm herself or others and asked that the court release her.

Legal Sufficiency

Although both Dr. Cuellar and Dr. Plyler noted that F.F. had threatened family members, neither the nature of the alleged threats nor the identity of any threatened family member can be determined from the record. Dr. Orocofsky was not present during either incident that allegedly occurred at the Hospital and therefore was unable to relate the details of either incident. She testified that on another recent occasion, F.F. got in her face and that F.F. remained irritable as a result of the incident. However, she did not relate any acts by F.F. during the incident that suggested F.F. was dangerous. Moreover, none of the experts explained how the alleged acts they cited indicated probable future dangerous behavior. Consequently, these references to F.F. s conduct do not provide sufficient factual support for either the expert opinions or the trial court s finding that F.F. met at least one of the three additional statutory criteria. Further, talk[ing] nonsense, irrational verbalizations, giggling to herself, conversations with invisible entities and other similar behavior merely reflect F.F. s mental illness and need for hospitalization, but are insufficient to meet the State s burden to establish one of the additional criteria by clear and convincing evidence. See M.S. v. State, 137 S.W.3d 131, 136 (Tex. App. Houston [1st Dist.] 2004, no pet.).

Based upon our review of the record, we hold that the trial court could not have properly made the findings required by section 574.034(a) by clear and convincing evidence because there was no evidence of a recent overt act or continuing pattern of behavior that tends to confirm the likelihood of serious harm to F.F. or others or a substantial deterioration of F.F. s ability to function independently to provide for her basic needs. Accordingly, we sustain F.F. s first issue insofar as it pertains to the legal sufficiency of the evidence. Because we have sustained F.F. s legal sufficiency issue, we need not review the factual sufficiency of the evidence or address F.F. s issues two through five asserting due process and equal protection violations.

Disposition

Having held that the evidence is legally insufficient to support the trial court s order of commitment for temporary mental health services, we reverse the trial court s order and render judgment denying the State s application for court-ordered temporary mental health services.

JAMES T. WORTHEN

Chief Justice

Opinion delivered October 29, 2004.

Panel consisted of Worthen, C.J., Griffith, J. and DeVasto, J.

(PUBLISH)