The State of Texas for the Best Interest and Protection of E.C.--Appeal from Probate Court No 1 of Bexar County

MEMORANDUM OPINION
No. 04-07-00358-CV
The STATE of Texas for the Best Interest and Protection of E.A.C.,
From the Probate Court No. 1, Bexar County, Texas
Trial Court No. 2007-MH-0849
Honorable Sandee Bryan Marion, Judge Presiding (1)

Opinion by: Steven C. Hilbig, Justice

 

Sitting: Catherine Stone, Justice

Phylis J. Speedlin, Justice

Steven C. Hilbig, Justice

 

Delivered and Filed: November 14, 2007

 

REVERSED AND RENDERED

E.A.C. appeals an order for temporary inpatient mental health services, arguing the evidence is legally and factually insufficient to support the order. We reverse and render.

Facts

On March 28, 2007, an application for temporary commitment for mental illness was filed requesting the court commit E.A.C. to a mental health facility for a period not to exceed ninety days. The application was supported by two physicians' certifications of medical examination for mental illness. A hearing on the application was held on April 3, 2007. In a somewhat disjointed presentation, Dr. Lilly Engles, a psychiatrist at the San Antonio State Hospital and one of the physicians who filed a certification, testified she examined and evaluated E.A.C. three times since March 29, including the morning of the hearing. The examinations took about two hours in total. Although E.A.C. gave Dr. Engles permission to obtain E.A.C.'s records pertaining to her treatment at Laurel Ridge hospital a few years earlier, Dr. Engles did not testify whether she obtained the records or, if so, what she learned from them.

Dr. Engles diagnosed E.A.C. with continued bipolar disorder manic with psychotic features. Dr. Engles based her diagnosis on E.A.C.'s rapid, pressured speech, tangential thinking, paranoid delusions, and apparent hallucinations. For example, E.A.C. believed that if she or the doctor were to call some of E.A.C.'s friends or family, the caller would actually speak to an impostor who was posing as the person called. E.A.C. was also convinced she saw a person at a grocery store in San Antonio who could not have been there, which caused Dr. Engles to believe E.A.C. was hallucinating.

Dr. Engles testified E.A.C. was not likely to cause serious harm to herself and, while Dr. Engles had "questions" about whether or not E.A.C. would likely cause serious harm to others, she did not personally observe or know of incidents where E.A.C. engaged in aggressive behavior toward hospital staff or exhibited any indication that she "had a propensity to do so." Dr. Engles referred to the application for temporary commitment, prepared by a licensed professional counselor, that stated E.A.C. was verbally abusive to her 88 year-old mother and made threats toward her. However, Dr. Engles did not speak with E.A.C.'s mother and E.A.C. denied threatening her mother.

Dr. Engles testified that E.A.C. was suffering severe abnormal, mental, emotional or physical distress and did not have the ability to make a rational and informed decision about whether or not to submit to treatment. Dr. Engles testified that E.A.C's illness substantially impaired E.A.C.'s thought perception of reality, emotional process, or judgment, but was not asked her opinion on whether E.A.C. was experiencing substantial mental or physical deterioration of her ability to function independently. She opined that E.A.C. should be temporarily committed because she was mentally ill; E.A.C. did not believe there is anything wrong with her and refused to take medication; her mental illness prevented her from holding a full-time job for the last two years and this in turn has caused her problems, such as being jailed for nonpayment of child support.

E.A.C. testified and denied she was ill and would not discuss taking medication. She stated that she loves her mother dearly and did not threaten her. She acknowledged that she and her mother do not agree about everything and that they had recently argued about whether her mother had information regarding E.A.C.'s birth parents; however, the arguments did not turn violent. E.A.C. testified others have been convincing her mother that E.A.C. was dangerous. For example, E.A.C. would offer to help mother by driving her on needed errands but her mother would refuse her help. E.A.C. also had a strained relationship with her father and had only a few short visits with him in the last few years. E.A.C. believed her family has been distancing themselves from her and stated there have been family gatherings she has been asked not to attend.

E.A.C. testified the reason Dr. Engles believed her to be delusional and hallucinating was because the doctor does not fully understand her situation. E.A.C. explained that she met some people who were supposed to be her birth parents, but she had recently come to the conclusion that the people she met are not her birth family because although she looks like them in pictures, pictures can be altered. Another reason she had doubts was because when she would speak to the woman she believed to be her birth mother on the phone, she would initially sound like the woman E.A.C. met twice, but by the end of the conversation, her voice had changed and she sounded like a completely different person but someone whose voice she had heard before. She also explained she did not hallucinate and Dr. Engles's testimony was based on the comment E.A.C. made that she saw a woman at the grocery store in San Antonio that looked exactly like the woman who claims to be her birth mother.

E.A.C. testified that if she were released she would call her mother and ask if she could stay with her a few days; however, E.A.C.'s ex-husband might have been telling her mother that E.A.C. is a bad person so she might not help E.A.C.

The trial court found that E.A.C. was mentally ill and that as a result of that mental illness, she was suffering severe and abnormal mental, emotional or physical distress; would experience substantial mental or physical deterioration of her ability to function independently, which was exhibited by E.A.C.'s inability, except for reasons of indigence, to provide for her 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 found that E.A.C. was not likely to cause serious harm to herself or others. The court ordered E.A.C. committed for temporary in-patient mental health services for a period not to exceed ninety days. (2)

E.A.C. timely appealed, arguing the evidence is not legally or factually sufficient to support the commitment order because the State did not prove by clear and convincing evidence that she was experiencing substantial mental or physical deterioration of her ability to function independently.

Scope and Standard of Review

In reviewing the legal sufficiency of the evidence to support a finding that must be proved by clear and convincing evidence, we must consider all of the evidence to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. Diamond Shamrock Refining Co., L.P. v. Hall, 168 S.W.3d 164, 170 (Tex. 2005). We are to look at the evidence in the light most favorable to the judgment and assume the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. Id. We disregard all evidence that a reasonable factfinder could have disbelieved. Id.

Applicable law

Where, as here, the trial court does not find the proposed patient is likely to cause serious harm to herself or others, the judge may nevertheless order temporary inpatient mental health services if the judge finds, from clear and convincing evidence,

(1) the proposed patient is mentally ill; and

 

(2) as a result of that mental illness the proposed patient:

 

. . .

 

(C) is:

 

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

 

(ii) experiencing substantial mental or physical deterioration of the proposed patient's ability 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, 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). The statute also provides that 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 proposed patient's distress and the deterioration of the proposed patient's ability to function." Id. 574.034(d).

Discussion

E.A.C. contends the State failed to produce any evidence of a recent overt act or a continuing pattern of behavior that tends to confirm her distress and the deterioration of her ability to function. She argues the State failed to establish by clear and convincing evidence that her ability to function independently is deteriorating or that she is unable to provide for her basic needs. We agree with E.A.C.

Evidence that merely reflects a patient's mental illness and need for hospitalization is insufficient to meet the State's burden when seeking involuntary temporary commitment. See K.T. v. State, 68 S.W.3d 887, 893-94 (Tex. App.-Houston [14th Dist.] 2002, no pet.). The State failed to provide any evidence about whether or not E.A.C. was experiencing substantial deterioration of her ability to function independently or her ability to provide for her basic needs, such as food, clothing, health, or safety. Other than her mental illness, the record contains no evidence E.A.C. is unhealthy. (3) The State offered no evidence of any recent overt act or pattern of behavior that confirms any deterioration of ability to function. The evidence of E.A.C.'s delusional and paranoid behavior, while supporting a finding of mental illness and mental distress, does not reflect any deterioration in her ability to function independently. See Broussard v. State, 827 S.W.2d 619, 622 (Tex. App.-Corpus Christi 1992, no pet.).

The State points to the evidence E.A.C.'s mother may not allow E.A.C. stay at her house and that E.A.C. has not held full-time employment for the last two years and infers that E.A.C. "has no place to live and no realistic way to provide for food or shelter." The State concludes this evidence shows E.A.C. is losing her ability to function independently. We disagree with both the inference and the conclusion. Dr. Engles testified that E.A.C. had been unable to maintain full-time employment since losing her job two years previous. While this might indicate an inability to function independently, the State did not pursue this issue or present any other evidence demonstrating that E.A.C.'s ability to gain or hold employment had changed, much less deteriorated, over the past two years. Furthermore, an event that occurred two years in the past can hardly be considered as "recent." See J.M. v. State, 178 S.W.3d 185, 194 n. 6 (Tex. App.-Houston [1st Dist.] 2005, no pet.) (stating that events that occurred six months prior to hearing could not be considered "recent"). There was no evidence about what sources of funds E.A.C. may have and E.A.C. was not asked whether she has any prospect for shelter other than her mother. It is not reasonable to infer that E.A.C. has no means of obtaining food or shelter from this record. Moreover, to justify involuntary commitment, the evidence must establish by clear and convincing evidence the proposed patient is unable, for reasons other than indigence, to provide for her basic needs. See Tex. Health & Safety Code Ann. 574.034(a)(2)(C)(ii).

"This is another of those cases where the necessary elements for commitment seem to 'lurk just beyond the proof presented.'" In re B.M., No. 04-99-00433-CV, 2000 WL 35874, at *3 (Tex. App.-San Antonio 2000, ) (not designated for publication) (quoting Parsons v. State, 677 S.W.2d 786, 789 (Tex. App.-San Antonio 1984, no writ)). We conclude the State failed to introduce any evidence of a recent overt act or a continuing pattern of behavior that tends to confirm the deterioration of E.A.C.'s ability to function and failed to prove by clear and convincing evidence that E.A.C. is 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. Accordingly, the evidence is legally insufficient to support the commitment order. Because we sustain E.A.C.'s legal insufficiency point we do not reach her factual insufficiency complaint. We reverse the trial court's order of commitment for temporary inpatient mental health services and render judgment denying the State's application for temporary commitment for mental illness.

 

Steven C. Hilbig, Justice

 

1. Sitting by assignment.

2. Although the ninety-day period has expired, E.A.C.'s challenge to the sufficiency of the evidence to support her commitment is not moot because the collateral consequences exception to the mootness doctrine applies to temporary mental health commitment orders. See Johnstone v. State, 22 S.W.3d 408, 409 n. 1 (Tex. 2000) (per curiam).

3. In her testimony, E.A.C. made reference to an assertion contained in the commitment application that she thought her food was poisoned. E.A.C. denied making such comment. The State never questioned Dr. Engles or E.A.C. on this topic.