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

NO. 12-02-00217-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
APPEAL FROM THE

THE STATE OF TEXAS FOR THE

BEST INTEREST OF

 
COUNTY COURT OF

B.S.

 
CHEROKEE COUNTY, TEXAS
MEMORANDUM OPINION

Appellant B.S. appeals from an order of commitment for temporary inpatient mental health services. After a hearing without a jury, the trial court ordered B.S. committed to Terrell State Hospital for a period not to exceed ninety days. In five issues, B.S. asserts the evidence is legally and factually insufficient to support the order of commitment and his constitutional rights to due process and equal protection have been violated. We reverse and render.

 

Background

On July 17, 2002, an application for court-ordered temporary mental health services was filed requesting the court commit B.S. to Terrell State Hospital for a period not to exceed ninety days. The application was supported by a certificate of medical examination for mental illness, prepared by a physician, Dr. Wanda Michaels, who had examined B.S. on July 17. Dr. Michaels diagnosed B.S. as having Bipolar I Disorder. She found that B.S. is mentally ill and likely to cause serious harm to himself. She also found he is suffering severe and abnormal mental, emotional or physical distress, is experiencing substantial mental or physical deterioration of his ability to function independently, which is exhibited by his inability to provide for his basic needs, and is unable to make a rational and informed decision as to whether or not to submit to treatment. Dr. Michaels reached these conclusions because, on July 17, B.S. stated he would not take his medications because it is "taking the name of God in vain." B.S. shaves only once a year "on the Day of Atonement" because the "beard is sacred." On July 1, 2002, B.S. said that a "psychiatrist said I was crazy as I was fighting for God." On June 24, 2002, B.S. said bald people are homosexuals. Also on July 17, B.S. exhibited poor personal hygiene and had a very long beard. B.S. refused to take medications prescribed for his high blood pressure despite knowledge of the dangers of unchecked hypertension.

On July 12, 2002, B.S. was examined by Dr. Cira Jane De Leon who then also prepared a certificate of medical examination for mental illness. Dr. De Leon stated that B.S. is hyper-religious with grandiose and delusional thoughts. His behavior and attitude is at times hostile and bizarre, while at other times he is calm and appears somewhat disphoric with positive lability. His insight and judgment are poor and he has a history of aggressiveness. Dr. De Leon diagnosed B.S. with psychosis NOS and indicated that B.S. is mentally ill and likely to cause serious harm to himself and others. She further determined that B.S. is suffering severe and abnormal mental, emotional or physical distress, is experiencing substantial mental or physical deterioration of his ability to function independently, which is exhibited by his inability to provide for his basic needs, and he is unable to make a rational and informed decision as to whether to submit to treatment. She based these conclusions on B.S.'s statements and behavior. On or about June 19, 2002, June 21, 2002, and July 8, 2002, B.S. screamed and preached at others and made the following statements: "I refuse to share...God has hair but Satan doesn't." "I am not crazy...Jesus was strange too and accused of being mentally ill!" "I am a child of God...you all are followers of the Devil." On or about June 19, 2002 through July 12, 2002, B.S., who has a history of aggressiveness, demonstrated loud, pressured speech, anger, irritability, oppositional behavior, grandiose delusions and hyper-religiosity. His mood had been depressed, his affect had been anxious, and his insight and judgment had been impaired. He had grown his hair and beard and refused to shave or bathe.

Dr. Michaels testified at the hearing, first restating her diagnosis that B.S. is mentally ill and suffers from Bipolar I Disorder. She explained that, based on her examination of B.S. and a review of his medical records, she determined that as a result of his mental illness he 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, which is exhibited by his inability to provide for his basic needs, and is unable to make a rational, informed decision as to whether to submit to treatment. Dr. Michaels explained that B.S. was referred by another hospital on July 12, 2002. He had been hyper-religious, saying he had direct communications with God, staying up late at night preaching to other patients, meditating, and chanting loudly. He denied he is mentally ill. He was irritable and suspicious and refused to cut his hair or shave because the beard is sacred. He said he would only shave or cut his hair one day of the year, the Day of Atonement. He did not take medication because he believes that by taking medication you take the name of God in vain. The doctor explained that B.S. has very high blood pressure so it is dangerous for him if he does not take his medicine. She thought B.S. understood the danger. B.S. had very poor hygiene and had not been taking care of himself. Further, he was not able to make a rational and informed decision about his health care because of his delusional beliefs.

On cross-examination, Dr. Michaels indicated that B.S.'s refusal to take his medication was based on his religious beliefs and the failure to take his medication could kill him. She agreed that B.S.'s refusal to shave could fall within his religious beliefs and that being a preacher is not grounds for involuntary mental health treatment.

On redirect, Dr. Michaels testified that B.S. is delusional and his delusions, which are preventing him from taking his medications, are detrimental to his well-being. Therefore, he is likely to cause harm to himself. His refusal to accept medications evidences a continuing pattern of behavior that tends to confirm the likelihood that B.S. will cause serious harm to himself.

B.S. testified in his own behalf. He explained that he is a member of the Philadelphia Church of God which teaches that Jesus was the great physician. Therefore, by taking medication one breaks the third commandment by taking God's name in vain. People should turn to God, not to man. The only way to communicate with God is through his word, which is the Bible. He said it would violate his religious tenets if he harmed himself. However, even knowing he has hypertension and asthma, it is against his religion to take any kind of medication. He admitted to preaching to other patients because God tells us to speak only the word of God. God gave him a song to sing of every word of the Bible and he sings that song. B.S. explained that God said to let your every word be a praise to God. Appellant also testified that the beard is a sacred thing. The Day of Atonement is the day to humble yourself and to be at one with God. He explained that hurting himself or anyone else "would be totally against God" and it would be taking the name of God in vain. He said he had been dressing himself for seven years in prison and could take baths without assistance or prompting. He explained that he had not been well-groomed when he saw the doctor because prison officials transferred him without allowing him to take his comb and toothbrush with him. He said he speaks loudly, which sounds aggressive, because he was taught to do so as a child and because he is a little hard of hearing. B.S. said that if released he would go to Edmund, Oklahoma, where the headquarters of the Philadelphia Church of God is located. He also said he wanted to help take care of his elderly parents, who live near Dallas, Texas.

The trial court entered an order for temporary inpatient mental health services after determining that the evidence supports the allegations that B.S. is mentally ill and that he is likely to cause serious harm to himself, or will, if not treated, continue to suffer severe and abnormal mental, emotional, or physical distress, and will continue to experience 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. The court ordered B.S. committed to Terrell State Hospital for a period not to exceed ninety days.

 

Sufficiency of the Evidence

In his first issue, B.S. asserts there is no evidence, or in the alternative, factually insufficient evidence to support the order of commitment. He contends that Dr. Michaels' testimony must be disregarded because it failed to provide the necessary factual basis in support thereof. Therefore, he argues, the State failed to meet its evidentiary burden under the statute in order to justify involuntary commitment.

Applicable Law

In reviewing no evidence points of error, the reviewing court must consider only the evidence and inferences tending to support the trial court's finding, disregarding all contrary evidence and inferences. Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). If there is any evidence of probative force to support the finding, the no evidence issue must be overruled and the finding upheld. ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997). When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, no more than a scintilla of evidence exists and, in legal effect, is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). However, if the evidence supplies some reasonable basis for differing conclusions by reasonable minds as to the existence of a vital fact, some evidence or, in other words, more than a scintilla of evidence exists. Id.

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:

 

(1) the proposed patient is mentally ill; and

 

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

 

(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 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 Supp. 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 Supp. 2003). Clear and convincing evidence means the measure or degree of proof which 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).

 

Discussion

The trial court found that, in addition to being mentally ill, B.S. met two of the three possible criteria necessary for commitment as set out in Section 574.034(a)(2)(A) and (C). With regard to the court's finding that B.S. is likely to cause serious harm to himself, the State provided expert testimony explaining that B.S. is mentally ill and describing what the State presented as a recent overt act by B.S. Dr. Michaels explained that B.S. is delusional and his delusions, which prevent him from taking his medication, are detrimental to his well-being. The doctor testified that B.S. has very high blood pressure, "in the range of stroke or heart attack"; therefore, not taking his medicine is dangerous for him. Specifically, B.S. could have a stroke if he does not take his medications. The State argues that, because B.S. suffers from hypertension which requires medication, the doctor's expert testimony of his refusal to take his medication is some evidence tending to confirm the likelihood of serious harm to himself. We disagree.

Other courts have determined that an individual's refusal to take medication does not constitute an overt act as contemplated by the Health and Safety Code. See G.H. v. State, 96 S.W.3d 629, 635 (Tex. App.-Houston [1st Dist.] 2002, no pet.) (Mere evidence of a patient's mental illness and refusal to take medication is not sufficient to sustain the State's statutory burden.); Johnstone v. State, 961 S.W.2d 385, 389 (Tex. App.-Houston [1st Dist.] 1997, no writ) (Where patient refused to take medication, the State failed to prove evidence of overt act.); Broussard v. State, 827 S.W.2d 619, 621-22 (Tex. App.-Corpus Christi 1992, no pet.) (Patient's repeated refusal to take her medication did not constitute an overt act.). The statutory requirements for an involuntary commitment are strict because an involuntary commitment is a drastic measure. In re C.O., 65 S.W.3d 175, 182 (Tex. App.-Tyler 2001, no pet.). To justify depriving an individual of his liberty, more than potential harm is necessary. Id. Evidence that B.S. refuses to take medicine prescribed to control his hypertension and that he might have a stroke does not meet the State's burden to prove an overt act tending to confirm that B.S. is likely to cause serious harm to himself.

The trial court also found that, if not treated, B.S. will continue to suffer severe and abnormal mental, emotional, or physical distress, his ability to function independently will continue to deteriorate, and he is unable to make a rational and informed decision as to whether to submit to treatment. In support of these findings, the State relies on the doctors' testimony describing B.S.'s behavior. B.S. is delusional and exhibits symptoms of mania. While sometimes calm, B.S.'s behavior and attitude is at times hostile and bizarre and he has a history of aggressiveness. He is suspicious of others, screams at those around him, and exhibits anger, irritability and oppositional behavior. Prior to the trial, he had very poor hygiene and had not been taking care of himself. The State argues that this evidence indicates both an overt act and a continuing pattern of behavior evidencing severe and abnormal mental, emotional, or physical distress. We disagree. This is merely evidence of B.S.'s mental illness. While the doctors described B.S.'s state of mind, this does not constitute evidence of an overt act or continuing pattern of behavior that demonstrates distress or tends to confirm a substantial deterioration of B.S.'s ability to function independently to provide for his basic needs. See Tex. Health & Safety Code Ann. 574.034(d)(2); G.H., 96 S.W.3d at 634; In re Breeden, 4 S.W.3d 782, 788-89 (Tex. App.-San Antonio 1999, no pet.); Johnstone, 961 S.W.2d at 389-90; Broussard, 827 S.W.2d at 622. The evidence is not legally sufficient to support the trial court's order. See Kindred, 650 S.W.2d at 63. We sustain B.S.'s first issue.

 

Conclusion

The evidence is not legally sufficient to support the trial court's order for temporary inpatient mental health services. We need not reach B.S.'s factual insufficiency or constitutional complaints. See Tex. R. App. P. 47.1. We reverse the trial court's order and render judgment denying the State's application for temporary mental health services.

 

JAMES T. WORTHEN

Chief Justice

 

Opinion delivered May 30, 2003.

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

 
(PUBLISH)