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

NO. 12-05-00401-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

APPEAL FROM THE

THE STATE OF TEXAS FOR THE

BEST INTEREST AND PROTECTION COUNTY COURT AT LAW OF

OF B.L.

CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION

Appellant B.L. appeals from an order for temporary inpatient mental health services and an order to administer psychoactive medication. In two issues, B.L. asserts the evidence is legally and factually insufficient to support the order for temporary inpatient mental health services and that the trial court erred in granting the State s application for an order to administer psychoactive medication because the order for temporary inpatient mental health services is invalid. We reverse and render.

Background

On November 30, 2005, an application for court ordered temporary mental health services was filed requesting the trial court to commit B.L. to the Rusk State Hospital (the Hospital ) for a period not to exceed ninety days. At the time the application was filed, B.L. was a patient at the Hospital. The application was supported by two physician s certificates of medical examination for mental illness. The first certificate stated that, on November 29, Dr. R. H. Rodriguez evaluated and examined B.L. and diagnosed him with bipolar I disorder, most recent episode mixed, severe with psychotic features. Rodriguez stated that B.L. has been hospitalized since March 9, has been under his care since July 5, and has been receiving medications, including antipsychotics and mood stabilizers. According to Rodriguez, B.L. is mentally ill and is likely to cause serious harm to himself; 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. According to the certificate, B.L. stated that he gave Rodriguez and his social worker some money, that he gave $500 to the foundation, that his company gave him a credit receipt for over $7,000, and that he has paid a trillion dollars to social security. According to Rodriguez, B.L. stated that he had not spoken to his mother because of a communication problem and that the Burke Center1 was harassing her. Rodriguez observed that B.L. exhibited an irritable mood, was argumentative and confrontational, and spoke spontaneously with the pressure of speed. According to Rodriguez, B.L. s thought associations were loose and his conversation difficult to follow. B.L. expressed a variety of grandiose and paranoid delusional beliefs, had no insight into his illness, and exhibited impaired judgment. Rodriguez s opinion is based upon the specific behaviors described above.

On November 30, Dr. Sethurama Srinivasan evaluated and examined B.L. and diagnosed him with bipolar I disorder. Srinivasan found that B.L. is mentally ill 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. According to the certificate, B.L. was hyperactive, overtalkative, delusional, and grandiose. B.L. s mood was quite labile, he was easily agitated, and he became aggressive. Srinivasan s opinion is based upon the specific behaviors described above.

The hearing on the application was held on December 6. At trial, Rodriguez stated that he examined B.L. on November 29 and found that he suffered from bipolar I disorder, mixed, severe, with psychotic features. He opined that B.L. is likely to cause serious harm to himself and suffers severe and abnormal mental, emotional, or physical distress. According to Rodriguez, B.L. continues to experience grandiose and paranoid beliefs, particularly his beliefs that he is very wealthy, that he has large sums of money, and that he has enough money that signing up for social security is unnecessary until next summer. B.L. does not believe he has a mental illness and has a pattern of noncompliance with outpatient treatment. When Rodriguez attempts to engage B.L. in conversation, he is extremely disorganized in his thinking and he talks continuously, making it difficult to have a conversation with him. Rodriguez stated that B.L. has no insight into his illness and his judgment is impaired.

Rodriguez noted that B.L. would not accept any placement in the community except a return to a house next to his mother s. According to Rodriguez, this house is not B.L. s property and is not habitable. Further, on the two occasions when an outpatient commitment was attempted, no placement was found for him. Rodriguez is concerned that B.L. is so delusional that he will not have an adequate place to stay when released. According to Rodriguez, B.L. has been ill for many years, but will not consider another kind of medication. B.L. also has hypertension, but refuses to go to the medical clinic because he does not believe he needs treatment.

According to Rodriguez, in the Hospital s structured setting, B.L. is very compliant and cooperative. However, when they talk about B.L. s beliefs and how they interfere with his ability to function independently, B.L. becomes very irritable, but never threatening towards him. Rodriguez noted that B.L. has a history of decompensation in the past that has escalated. Rodriguez stated that if B.L. is not treated, his mental condition will deteriorate. According to Rodriguez, B.L. is a harm to himself because he refuses to take medication for his physical illness and believes that he owns part of the Burke Center and can stay there. Rodriguez opined that B.L. s beliefs will seriously impair his ability to function on his own because, although he believes he has large sums of money, he has none. According to Rodriguez, his diagnosis is based on his personal examination of B.L., a review of his medical history, and reasonable medical probability. In Rodriguez s opinion, B.L. s chronic mental illness is partially refractory to available therapies. Although Rodriguez s goal is a less restrictive environment, at this time, the Hospital is the least restrictive available treatment option for B.L.

Rodriguez admitted that B.L. has improved considerably since March. B.L. is no longer verbally aggressive or combative, but still exhibits disorganized, delusional thinking and no improved insight. Rodriguez admitted that B.L. has committed no recent overt act that could cause him harm. According to Rodriguez, B.L. has the capacity to feed and clothe himself without assistance or prompting, has the capacity to go to a restaurant and order food, and has the ability to provide for his own safety. However, Rodriguez is unsure how B.L. would pay for his food. B.L. can initiate conversation although Rodriguez stated that B.L. was difficult to follow because he tends to talk continuously and loosely.

According to Rodriguez, B.L. understands the need for medications and is taking an injectable medication every two weeks. Rodriguez admitted that the medication B.L. is taking is appropriate for treatment, but that this medication is causing some side effects. Although Rodriguez would like to try different medications, they are oral medications and B.L. refuses. Rodriguez observed that B.L. has high blood pressure, but B.L. stated that he does not need treatment. In Rodriguez s opinion, B.L. s refusal to be treated for high blood pressure is caused by his mental illness. Rodriguez believes that B.L. s refusal to accept treatment is a continuing pattern and could harm him because he is at risk for cardiac problems, considering his age, general health, and a bad EKG. A recent EKG was better.

B.L. testified that he has been shaking and trembling for almost twenty-five years because of a medication that he took, is taking, and feels that he needs. According to B.L., Rodriguez stated that he would watch for a week and a half when the last court came together. B.L. testified that it has been about seven and a half weeks. He noted that it probably took that long because he did not take medication for high blood pressure. According to B.L., he works small jobs and lives without taking this medication. In fact, it has been over a year since he was told about that, presumably regarding his high blood pressure. B.L. stated that he is a farmer. He wants his daughter and her counsel to take over the case in Cherokee County. B.L. stated that, for several years, he has taken a rest period in the middle of the day because he was working extremely hard before coming to the Hospital. Then, B.L. testified that he was diagnosed after being at the Hospital and, after about four and a half months, it was determined that he suffers from high blood pressure.

On December 6, the trial court found that B.L. is mentally ill, is likely to cause serious harm to himself, and is suffering severe and abnormal mental, emotional or physical distress; is experiencing substantial mental or physical deterioration of his ability to function independently, that is exhibited by his inability, except for reasons of indigence, to provide for his basic needs, including food, clothing, health or safety; and is unable to make a rational and informed decision as to whether or not to submit to treatment. The trial court entered an order for temporary inpatient mental health services, committing B.L. to the Hospital for a period not to exceed ninety days. In a separate order signed the same day, the trial court authorized the Texas Department of Mental Health and Mental Retardation (the Department ) to treat B.L. with psychoactive medications, including antipsychotics, mood stabilizers, and anxiolytics/sedatives/hypnotics. This appeal followed.

Sufficiency of the Evidence

In his first issue, B.L. argues that the evidence is neither legally nor factually sufficient to support the order of commitment. B.L. contends that the testimony fails to show clear and convincing evidence of a recent overt act or continuing pattern of behavior tending to confirm the likelihood of his causing serious harm to himself or his distress and deterioration of his ability to function.

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.

Involuntary Commitment Order

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, he is likely to cause serious harm to himself, 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 his ability to function independently, which is exhibited by his inability, except for reasons of indigence, to provide for his 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 his 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). 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.).

The State provided expert testimony from two doctors who examined B.L. and diagnosed him with bipolar I disorder. However, expert testimony confirming mental illness, standing alone, will not support an involuntary commitment. T.G. v. State, 7 S.W.3d 248, 252 (Tex. App. Dallas 1999, no pet.). Both doctors provided evidence showing that B.L. is mentally ill. Rodriguez described B.L. as irritable, argumentative, and confrontational. He said that B.L. spoke spontaneously with the pressure of speed, exhibited loose thought associations and impaired judgment, expressed a variety of grandiose and paranoid delusional beliefs, had no insight into his illness, and engaged in conversations that were difficult to follow. Srinivasan stated that B.L. was hyperactive, overtalkative, delusional, grandiose, easily agitated; became aggressive; and exhibited a quite labile mood. Evidence of continuing delusional or paranoid behavior merely reflects that an individual is mentally ill and in need of hospitalization, but does not provide the continuing pattern of behavior necessary to support a commitment. See In re C.O., 65 S.W.3d at 182; Broussard v. State, 827 S.W.2d 619, 622 (Tex. App. Corpus Christi 1992, no writ). An expert opinion recommending commitment must be supported by the factual bases on which it is grounded and not simply recite the statutory criteria. See J.M. v. State, 178 S.W.3d 185, 193 (Tex. App. Houston [1st Dist.] 2005, no pet.). What is necessary is the expert s description of the patient s specific behaviors on which his or her opinion is based. See id.

Because Rodriguez admitted that B.L. had not committed a recent overt act and there is no evidence of a recent overt act, we must examine the record to determine whether there is clear and convincing evidence showing a continuing pattern of behavior that tends to confirm either the likelihood of serious harm to B.L. or his distress and deterioration of his ability to function. See Tex. Health & Safety Code Ann. 574.034(d). Rodriguez stated that B.L. has a pattern of noncompliance with outpatient treatment. However, Rodriguez offered no specific evidence to support his statement. According to Rodriguez, he was concerned that B.L. was so delusional he would not have an adequate place to stay when released. As part of this concern, Rodriguez opined that B.L. s belief that he has large sums of money will seriously impair his ability to function on his own. B.L. also believes that he can stay at the Burke Center. However, Rodriguez admitted that B.L. has the capacity to clothe and feed himself and has the ability to provide for his own safety. Moreover, B.L. can initiate conversations, even though he is difficult to follow. Rodriguez offered no specific evidence of a continuing pattern of behavior of the likelihood of serious harm to B.L. or that would generally affect his ability to function independently on a daily basis without the imposition of inpatient mental health services. See Broussard, 827 S.W.2d at 622. To the contrary, Rodriguez testified that B.L. is capable of meeting his daily physical needs without assistance or prompting. The State must show more than delusions or other facts that merely confirm B.L. s mental illness to meet the evidentiary standard for a temporary commitment. See In re C.O., 65 S.W.3d at 182.

Rodriguez testified that B.L. understands the need for medication for his mental illness and is taking an injectable medication as treatment. However, he refuses different oral medications that Rodriguez would like him to try. Additionally, Rodriguez stated that B.L. refuses treatment for high blood pressure. Rodriguez believes that B.L. s refusal is a result of his mental illness and is a continuing pattern of behavior that could harm him. B.L. does not believe he needs treatment. According to Rodriguez, B.L. is at risk for cardiac problems, considering his age, general health, and recent EKGs. Although there may be some evidence of possible serious harm to B.L. because of his refusal to be treated for high blood pressure, we cannot say that this evidence would lead a reasonable trier of fact to have formed a firm belief or conviction of a continuing pattern tending to confirm the likelihood of serious harm to B.L. See Tex. Health & Safety Code Ann. 574.034(d); In re J.F.C., 96 S.W.3d at 266. Moreover, the State offers no evidence or legally insufficient evidence to show that B.L. was unable to function independently because of his refusal to take medication for his high blood pressure or that his pattern of behavior demonstrates his distress and deterioration of his ability to function. See Armstrong v. State, No. 01-04-00587-CV, 2006 WL 66465 at *5 (Tex. App. Houston [1st Dist.] Jan. 12, 2006, no pet.); In re J.M., 178 S.W.3d at 194-95.

In summary, the State failed to introduce clear and convincing evidence of an overt act or continuing pattern of behavior that tended to confirm either the likelihood of serious harm to B.L. or his distress and deterioration of his ability to function. Therefore, viewing the evidence in the light most favorable to the finding, we conclude that a reasonable trier of fact could not have formed a firm belief or conviction that this finding was true. See In re J.F.C., 96 S.W.3d at 266. Consequently, the evidence is legally insufficient to support the trial court s finding based upon section 574.034(d) of the Texas Health and Safety Code. Having determined that the evidence is legally insufficient, it is unnecessary for us to address B.M. s argument that the evidence is factually insufficient to support the trial court s finding. See Tex. R. App. P. 47.1.

Psychoactive Medication Order

In his second issue, B.L. contends that the trial court erred in granting the State s application for an order to administer psychoactive medication because the order for temporary inpatient mental health services is invalid. A trial court may issue an order authorizing the administration of one or more classes of psychoactive medications to a patient who is under a court order to receive inpatient mental health services. Tex. Health & Safety Code Ann. 574.106(a) (Vernon Supp. 2005). The trial court may issue an order only if the trial court finds by clear and convincing evidence after the hearing that the patient lacks the capacity to make a decision regarding the administration of the proposed medication and treatment with the proposed medication is in the best interest of the patient. Tex. Health & Safety Code Ann. 574.106(a-1) (Vernon Supp. 2005). Having found the evidence legally insufficient to support the trial court s order of commitment, we have held that the trial court s order for temporary inpatient mental health services is invalid. Therefore, the order authorizing administration of psychoactive medication is also invalid. See Tex. Health & Safety Code Ann. 574.106(a). We sustain B.L. s second issue.

Conclusion

Based upon our review of the record, we conclude that the evidence is legally insufficient to support the trial court s order of commitment for temporary inpatient mental health services. Therefore, the order for administration of psychoactive medication is invalid.

We reverse the trial court s order of commitment for temporary inpatient mental health services and for administration of psychoactive medication. We render judgment denying the State s applications for court ordered temporary mental health services and for an order to administer psychoactive medication.

JAMES T. WORTHEN

Chief Justice

Opinion delivered May 24, 2006.

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

(PUBLISH)

1 Neither Rodriguez s certificate of medical examination nor his testimony at the hearing on the application provided any information about the location or the purpose of the Burke Center.