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

NO. 12-06-00043-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 H.S.

CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION

H.S. appeals from an order for extended inpatient mental health services and an order to administer psychoactive medication. In two issues, H.S. asserts the evidence is legally and factually insufficient to support the orders. We reverse and render.

Background

On January 31, 2006, an application for court ordered extended mental health services was filed requesting the trial court to commit H.S. to the Rusk State Hospital (the Hospital ) for a period not to exceed twelve months. At the time the application was filed, H.S. 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 January 30, 2006, Dr. Harry Thompson evaluated and examined H.S. and diagnosed him with schizophrenia, paranoid type, continuous, with prominent negative symptoms, and antisocial personality disorder. On February 6, 2006, Dr. Satyajeet Lahiri evaluated and examined H.S. and diagnosed him with schizoaffective disorder and seizure disorder. According to Thompson and Lahiri, H.S. was mentally ill, was likely to cause serious harm to others, was suffering severe and abnormal mental, emotional, or physical distress, was experiencing substantial mental or physical deterioration of his ability to function independently, and was unable to make a rational and informed decision as to whether or not to submit to treatment.

The hearing on the application was held on February 7. After the hearing, the trial court found that H.S. was mentally ill, 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 his ability to function independently, that was exhibited by his inability, except for reasons of indigence, to provide for his basic needs, including food, clothing, health, or safety, and was unable to make a rational and informed decision as to whether or not to submit to treatment. The trial court entered an order for extended inpatient mental health services, committing H.S. to the Hospital for a period not to exceed twelve months. 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 H.S. with psychoactive medications, including antipsychotics, mood stabilizers, and anxiolytics/sedatives/hypnotics. This appeal followed.

Sufficiency of the Evidence

In his first and second issues, H.S. argues that the evidence is neither legally nor factually sufficient to support the order of commitment or the order to administer psychoactive medication.

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.

Extended Involuntary Commitment Order

The trial judge may order a proposed patient to receive court ordered extended inpatient mental health services only if the jury, or the judge if the right to a jury is waived, finds, from clear and convincing evidence, that (1) the proposed patient is mentally ill; (2) as a result of the mental illness, he (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 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; (3) his condition is expected to continue for more than ninety days; and (4) he has received court ordered inpatient mental health services under Subtitle C, Texas Mental Health Code, or under Chapter 46B, Code of Criminal Procedure, for at least sixty consecutive days during the preceding twelve months. Tex. Health & Safety Code Ann. 574.035(a) (Vernon Supp. 2005).

To be clear and convincing under this statute, the evidence must include expert testimony and 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. 574.035(e) (Vernon Supp. 2005). 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 order for extended inpatient mental health services states that the trial court found, by clear and convincing evidence, that H.S. was mentally ill, was likely to cause serious harm to others, was suffering severe and abnormal mental, emotional, or physical distress, was experiencing substantial mental or physical deterioration of his ability to function independently, and was unable to make a rational and informed decision as to whether or not to submit to treatment. Further, the order authorized treatment for a period of time not to exceed twelve months. See Tex. Health & Safety Code Ann. 574.035(h) (Vernon Supp. 2005). However, the trial court failed to find, by clear and convincing evidence, two criteria necessary to commit H.S., namely, that his condition was expected to continue for more than ninety days and that he received court ordered inpatient mental health services under Subtitle C, Texas Mental Health Code, or under Chapter 46B, Code of Criminal Procedure, for at least sixty consecutive days during the preceding twelve months. See Tex. Health & Safety Code Ann. 574.035(a)(3), (4) (Vernon Supp. 2005). A finding under subsection (4) was also required because the order did not state that H.S. had already been subject to an order for extended mental health services. See Tex. Health & Safety Code Ann. 574.035(d) (Vernon Supp. 2005). Because the trial court failed to find that H.S. s condition was expected to continue for more than ninety days1 and that he had received court ordered inpatient mental health services for at least sixty consecutive days during the preceding twelve months, we conclude that the trial court failed, by clear and convincing evidence, to find the commitment criteria necessary for an order for extended inpatient mental health services. See Tex. Health & Safety Code Ann. 574.035(a)(3), (4). Consequently, the evidence is legally insufficient to support the trial court s order based upon section 574.035(a) of the Texas Health and Safety Code. Having determined that the evidence is legally insufficient, it is unnecessary for us to address H.S. s argument that the evidence is factually insufficient to support the trial court s order. See Tex. R. App. P. 47.1.

Psychoactive Medication Order

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)(1) (Vernon Supp. 2005). Having determined the evidence is legally insufficient to support the trial court s order of commitment, we have held that the trial court s order for extended 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). Accordingly, we sustain H.S. s first and second issues.

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 extended inpatient mental health services. Therefore, the order for administration of psychoactive medication is invalid.

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

JAMES T. WORTHEN

Chief Justice

Opinion delivered June 30, 2006.

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

(PUBLISH)

1 Although the trial court authorized treatment of H.S. for a period not to exceed twelve months, this authorization does not provide the required finding that H.S. s condition was expected to continue for more than ninety days because his condition could continue for less than ninety days and still not exceed the authorized treatment period. See Tex. Health & Safety Code Ann. 574.035(a)(3), (h).