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

NO. 12-04-00303-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

THE STATE OF TEXAS FOR APPEAL FROM THE

THE BEST INTEREST AND COUNTY COURT AT LAW

PROTECTION OF S.S. CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION

Appellant S.S. appeals from an order authorizing the Texas Department of Mental Health and Mental Retardation ( MHMR ) to administer psychoactive medications. Appellant s counsel filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). S.S. also filed a response pro se. We affirm.

Background

On September 15, 2004, the State filed an application for an order to administer psychoactive medication, which was signed by Dr. Sethurama Srinivasan. In the application, Srinivasan stated that S.S. was subject to an order dated September 10 for temporary inpatient mental health services under Section 574.034 of the Texas Health and Safety Code. Srinivasan stated that S.S. had been diagnosed with bipolar I disorder and requested the trial court to compel S.S. to take four psychoactive medications: an antidepressant, an anxoilytic/sedative/hypnotic, an antipsychotic, and a mood stabilizer. Srinivasan stated that S.S. refused to take the medications voluntarily and that he believed S.S. lacked the capacity to make a decision regarding administration of psychoactive medications because he is psychotic. Srinivasan determined that these medications are the proper course of treatment for S.S. and that, if he were treated with the medications, his prognosis would be fair. However, Srinivasan believed that, if S.S. is not administered the medications, his mental health will deteriorate. Srinivasan considered other medical alternatives to psychoactive medication, but determined that those alternatives would not be as effective. Moreover, Srinivasan believed that the benefits of the psychoactive medications outweighed the risks in relation to present medical treatment and S.S. s best interest.

On September 17, the trial court held a hearing on the application. Dr. Charles Plyler testified that he was S.S. s treating physician and had reviewed the State s application. He also stated that he agreed with the contents of that application. Plyler understood that S.S. is currently under an order dated September 10 for court-ordered inpatient treatment and believed that S.S. lacks the capacity to make a decision regarding administration of psychoactive medications. Further, Plyler stated that the application for court-ordered medications was prepared because S.S. is mentally ill and suffers from bipolar disorder. According to Plyler, the four classes of medications listed in the application s exhibit are the proper course of treatment for S.S. If Plyler were allowed to use these medications, S.S. would likely benefit and the benefits of using these medications outweigh the risks. Finally, Plyler stated that, if he was allowed to use these medications, S.S. s hospital stay would likely be shortened. On cross-examination, Plyler stated that these medications would work to alleviate S.S. s symptoms of manic excitability, grandiosity, and reality testing. According to Plyler, he had not talked with S.S. at any length about these medications because S.S. was not interested in taking them. Plyler stated that there is no less invasive means of treating S.S. that would yield the same results. Plyler believed that, if S.S. responds to the medications, he would need to stay at the hospital a minimum of a couple of weeks. However, if S.S. does not take these medications, Plyler could not predict how long S.S. would have to stay in the hospital and that it was very unlikely that his condition would improve.

S.S. testified that the length of his stay in the hospital pertained to his insurance and that he would be happy for his insurance to cover any amount. S.S. did not believe that bipolar disorder could be proven, unlike hyperactivity. In fact, S.S. stated that he did not want a stimulant or an A.I.D.S. inhibitor because he did not have A.I.D.S. According to S.S., he had people willing to help him, ladies who agreed to a plutonic[sic], celibate union, and that he would be happy to support them with the work that they are willing to provide. S.S. stated that he came to court a little edgy because he did not want drugs and that he drank a little alcohol. At that time, S.S. began a discourse on numerous topics stating (1) that he would like to see priests get married again, (2) that his freedom of religion dictated that the truth shall set [him] free, (3) that he endorsed changes in the protocol of psychology in this state to get people off checks, not on medication, (4) that he had Cherokee blood, but that he was white, not racist, and (5) that he was going to vote for George W. Bush, but he would forgive you if you were a Democrat.

S.S. testified that he needed more time because he could prove his competency to practice law in the State of Texas with the Texas Health and Safety Code. He stated that he wanted to express the protocol of getting them off the checks, getting them off the drugs. He testified that he was not on the street and that [n]obody said anything [he s] doing against anybody. Further, S.S. claimed that he did not get a chance to consult with his attorney nor had he been given a chance to read the exhibit to the application. S.S. testified that these medications were not in his best interest, that he never had violence or a violent history, and that he did not have bipolar disorder. According to S.S., he has read the DSM-IV and that Freud s philosophy was that everyone must have a problem because he, Freud, had a problem with cocaine. However, S.S. stated that he has never done cocaine. S.S. quoted scripture and testified that he had purity. S.S. began another discourse stating that his wife was pregnant, but not by him although he would accept responsibility, that both he and his wife were twenty-one on the day of the hearing, and that he was ready to shed blood for his country in Iraq.

At the close of evidence, the trial court granted the application. On September 17, after considering all the evidence, including the application and the expert testimony, the trial court found that the allegations in the application are true and correct and supported by clear and convincing evidence. Further, the trial court found that treatment with the proposed medication is in the best interest of S.S. and that S.S. lacks the capacity to make a decision regarding administration of the medication. The trial court authorized MHMR to administer to S.S. psychoactive medications, including antidepressants, antipsychotics, mood stabilizers, and anxiolytics/sedatives/hypnotics. This appeal followed.

Appellant s counsel has filed what purports to be an Anders brief stating that the appeal is wholly frivolous and without merit. Counsel s brief contains a professional evaluation of the record demonstrating why, under the controlling authorities, there is no error in the court s judgment. See High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978). Counsel served a copy of his brief on S.S. who filed a pro se response. However, we are hesitant to presume that an Anders analysis is appropriate for reviewing a trial court s order authorizing the administration of psychoactive medications, so we will review the case on its merits before considering counsel s motion to withdraw.

Sufficiency of the Evidence

Although counsel for S.S. could not find any issues of merit for an appeal, he did include a discussion of the controlling authorities regarding a sufficiency challenge to 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. In re 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.

Order to Administer Psychoactive Medication

A trial court may issue an order authorizing the administration of one or more classes of psychoactive medications only if the trial court finds by clear and convincing evidence after the hearing that (1) the patient is under an order for temporary or extended mental health services, (2) the patient lacks the capacity to make a decision regarding the administration of the proposed medication, and (3) treatment with the proposed medication is in the best interest of the patient. Tex. Health & Safety Code Ann. 574.106(a) (Vernon 2003). Capacity means a patient s ability to (1) understand the nature and consequence of a proposed treatment, including the benefits, risks, and alternatives to the proposed treatment, and (2) make a decision whether to undergo the proposed treatment. Tex. Health & Safety Code Ann. 574.101(1) (Vernon 2003). In making its findings, the trial court shall consider (1) the patient s expressed preferences regarding treatment with psychoactive medication, (2) the patient s religious beliefs, (3) the risks and benefits, from the perspective of the patient, of taking psychoactive medication, (4) the consequences to the patient if the psychoactive medication is not administered, (5) the prognosis for the patient if the patient is treated with psychoactive medication, and (6) alternatives to treatment with psychoactive medication. Tex. Health & Safety Code Ann. 574.106(b) (Vernon 2003).

Analysis

In the application, Srinivasan stated that S.S. was subject to an order for temporary mental health services, that he believed S.S. lacked the capacity to make a decision regarding administration of psychoactive medications because he is psychotic, and that these medications are in his best interest. Further, Srinivasan determined that, if S.S. were not administered these medications, his mental health would deteriorate. Although Srinivasan considered other medical alternatives to psychoactive medication, he concluded these alternatives would not be as effective and further determined that the benefits of these medications outweighed the risks. At the hearing, Plyler testified that S.S. was subject to an order for temporary mental health services, that he believed S.S. lacked the capacity to make a decision regarding administration of psychoactive medications, and that S.S. was mentally ill and suffered from bipolar disorder. Plyler testified that S.S. would benefit from use of these medications, likely resulting in a shorter hospital stay, and that these benefits outweighed the risks. According to Plyler, if S.S. did not take these medications, it was very unlikely that his condition would improve. Further, Plyler testified that there was no less invasive means of treating S.S. that would yield the same results. Considering all the evidence in the light most favorable to the findings, we conclude a reasonable trier of fact could have formed a firm belief or conviction that S.S. lacked the capacity to make a decision regarding administration of the proposed medications, and that treatment with the proposed medications was in his best interest. See Tex. Health & Safety Code Ann. 574.106(a); In re J.F.C., 96 S.W.3d at 266. Therefore, the evidence is legally sufficient to support the trial court s order. See In re J.F.C., 96 S.W.3d at 266.

Having determined that the evidence is legally sufficient to support the finding, we address factual sufficiency and consider all of the evidence, both that in support of and contrary to the trial court s findings. See In re C.H., 89 S.W.3d at 25. According to Plyler, S.S. was not interested in taking these medications. S.S. testified that he did not want a stimulant or an A.I.D.S. inhibitor. According to S.S., these medications were not in his best interest, he was not violent nor did he have a violent history, and he did not have bipolar disorder. The trial court was entitled to disbelieve S.S. and disregard the evidence contrary to the State s position. See id. Based upon our review of the record as a whole, we conclude that, although there is some disputed evidence, this evidence is not so significant that a reasonable trier of fact could not have reconciled this evidence in favor of its finding and formed a firm belief or conviction that S.S. lacked the capacity to make a decision regarding administration of the proposed medications, and that treatment with the proposed medications was in his best interest. See Tex. Health & Safety Code Ann. 574.106(a), (b); In re C.H., 89 S.W.3d at 25. Therefore, the evidence is factually sufficient to support the trial court s order. See In re C.H., 89 S.W.3d at 25. Accordingly, we conclude that the trial court met the obligations imposed by Section 574.106 of the Texas Health & Safety Code and overrule S.S. s first issue.

Constitutional Claim

In his pro se response, S.S. contends that the trial court erred in ordering psychoactive medications forcibly administered to him in violation of his freedom of religion protected by the First Amendment to the United States Constitution. More specifically, S.S. argues that part of his religion is Christian Science in which the strictest adherents, including himself, subscribe to no treatment other than the Christian Science treatment nor do they take any medications. He also asserts that the trial court s order violates his constitutional right to privacy. However, S.S. did not properly raise either issue in the trial court. See Tex. R. App. P. 33.1(a). A constitutional claim must have been asserted in the trial court to be raised on appeal. Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993). Therefore, S.S. has not preserved this complaint for review. Accordingly, we overrule S.S. s constitutional issues.

Disposition

The judgment of the trial court is affirmed. Because we decided the appeal on its merits rather than considering counsel s Anders brief, we overrule counsel s motion to withdraw.

SAM GRIFFITH

Justice

Opinion delivered May 18, 2005.

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

(PUBLISH)