In the Best Interest and Protection of T.T.--Appeal from Probate Court No 1 of Bexar County

MEMORANDUM OPINION

No. 04-03-00507-CV

IN THE INTEREST AND PROTECTION OF T.T.

From the Probate Court Number One, Bexar County, Texas

Trial Court No. 2003-MH-1398

Honorable Polly Jackson Spencer, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: October 1, 2003

AFFIRMED

This is an appeal from a court-ordered temporary commitment for inpatient mental health services. Appellant challenges the sufficiency of the evidence in support of the court's order and asserts the court erred in committing him because a less restrictive means of treatment was available. We affirm.

DISCUSSION

Before court-ordered temporary mental health services can be ordered, the judge or jury must find that the proposed patient is mentally ill and at least one of the three criteria of Health and Safety Code section 574.034(a)(2) has been established by clear and convincing evidence. Tex. Health & Safety Code Ann. 574.034(a) (Vernon 2003). It is the State's burden to prove one of these statutory criteria. In re J.S.C., 812 S.W.2d 92, 94 (Tex. App.--San Antonio 1991, no writ). To be clear and convincing, 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 the likelihood of serious harm to the proposed patient or others, or the proposed patient's distress and the deterioration of ability to function. Tex. Health & Safety Code Ann. 574.034(d).

Following a hearing on the State's application for temporary commitment for mental health illness, the court ordered appellant committed for a period of ninety days on the grounds that appellant was mentally ill and likely to cause harm to others and he suffered from severe and abnormal mental, emotional or physical distress; was experiencing substantial physical or mental deterioration of his ability to function independently; and was unable to make a rational and informed decision as to whether he should submit to treatment.

The court's findings are sufficiently supported by the expert testimony of Dr. Iva Timmerman, staff psychiatrist at the VA Hospital. Timmerman stated appellant is mentally ill, suffering from "schizo-effective disorder, predominantly bipolar/manic type, cognitive disorder not specified, and alcohol abuse." Although appellant was not likely to harm himself, he was likely to harm others. On the morning of the hearing, appellant told Timmerman that if he saw "another gentleman again, who he last year punched in the mouth and broke two teeth, he would hit him again." Appellant has verbally threatened the hospital staff and other patients, and has had to be secluded. Timmerman said appellant has been progressing well while at the hospital, but he suffers severe abnormal mental, emotional, or physical distress; and he is irritable, impulsive, and becomes verbally abusive and assaultive when he disagrees with someone. Appellant cannot make appropriate decisions about living situations and he gets into altercations with others for no clear reason. Timmerman did not believe appellant could function independently outside the hospital because of his poor impulse control and because he makes bad decisions due to his cognitive disorder. Appellant has been in and out of hospitals and jail because he is unable "to handle things on his own." Timmerman said the hospital had inquired into placing appellant in a boarding home but it was difficult to find a home that would take him because he has assaulted so many people in the past. Timmerman did not believe appellant could make rational and informed decisions about his overall treatment, and inpatient commitment was the least restrictive treatment. At the hearing, appellant denied threatening anyone. When asked if he would take his medication while living in a boarding home, appellant responded, "Yeah. The landlady over there ought to be in jail, because she's pimping off girls for rent, she's selling drugs in Fort Worth. I used to work for Texas Industry. Because she was always on the phone calling my lawyer. She stole my furniture, she killed my dog, and I'm still not happy with the old fat thing. . . . But I didn't cuss her. I'm getting better at that." This evidence is legally and factually sufficient to support the trial court's findings.

This evidence also supports the court's determination that inpatient commitment was the least restrictive (1) means of treatment available. Also, we recognize that an experienced judge is able to observe a proposed patient's behavior and demeanor that is not readily discernable from the record. Showing deference to the court's ability to hear the testimony and view the proposed patient's behavior at a commitment hearing, we hold the trial court did not abuse its discretion in committing appellant to inpatient treatment.

For these reasons, we affirm the trial court's order.

Sandee Bryan Marion, Justice

1. "The least restrictive appropriate setting for the treatment of a patient is the treatment setting that: (1) is available; (2) provides the patient with the greatest probability of improvement or cure; and (3) is no more restrictive of the patient's physical or social liberties than is necessary to provide the patient with the most effective treatment and to protect adequately against any danger the patient poses to himself or others." Tex. Health & safety code Ann. 571.004 (Vernon 2003).