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

NO. 12-06-00112-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

THE STATE OF TEXAS APPEAL FROM THE

FOR THE BEST INTEREST COUNTY COURT AT LAW

AND PROTECTION OF E.B. CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION

E.B. appeals from an order for temporary inpatient mental health services. In his sole issue on appeal, E.B. asserts the evidence is legally and factually insufficient to support the order. We reverse and render.

Background

On March 29, 2006, an application for court ordered temporary mental health services was filed requesting the trial court to commit E.B. to the Rusk State Hospital (the Hospital ) for a period not to exceed ninety days. At the time the application was filed, E.B. 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 March 24, 2006, Dr. Rodolfo H. Rodriguez evaluated and examined E.B. and diagnosed him with schizoaffective disorder, bipolar type. Rodriguez stated that E.B. was supposed to be taking Geodon and Antivan, but he suspected that E.B. was not taking his medication. According to Rodriguez, E.B. was mentally ill and 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.

As the basis for this opinion, Rodriguez reported that E.B. stated that he thought Rodriguez was incompetent for suggesting that he was mentally ill just because he talked fast. E.B. stated that he was a fast person, an athlete, a genius, and royalty. E.B. denied being manic and stated that he was going to fight Rodriguez at every turn. Further, E.B. informed Rodriguez that he was going to win his lawsuit and that Rodriguez would lose his job. Rodriguez also reported that E.B. was hypertalkative and his speech was rapid and pressured. According to Rodriguez, E.B. exhibited flight of ideas, looseness of association, and grandiose as well as paranoid delusional beliefs. Rodriguez noted that E.B. was verbally aggressive and threatening.

On March 29, 2006, Dr. Harry Thompson evaluated and examined E.B. and diagnosed him with schizoaffective disorder, bipolar type. According to Thompson, E.B. was mentally ill and 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. As the basis for this opinion, Thompson reported that E.B. immediately began speaking loudly and rapidly and constantly talked with rapid shift of topics. E.B. also stated that he had filed many lawsuits. According to Thompson, E.B. bowed as he entered and left and had coated himself with an excessive amount of a greasy substance.

The hearing on the application was held on April 4. Rodriguez testified that he diagnosed E.B. with schizoaffective disorder, bipolar type, and that he was suffering severe and abnormal mental, emotional, or physical distress, was experiencing substantial mental or physical deterioration of his ability to function independently, exhibited by E.B. s 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. According to Rodriguez, he had been working with E.B. for several weeks, and his disorder tended to be cyclic, or bipolar. Although Rodriguez could not recall the exact details of what happened at E.B. s home, he believed there was verbal aggression. When E.B. arrived at the Hospital, he was hypertalkative with rapid, pressured speech, expressed a variety of grandiose delusional beliefs, and exhibited flight of ideas and loose thought associations. Within a few days of taking medication, E.B. began to calm down. However, Rodriguez stated that, a few days later, E.B. began to exhibit the same symptoms that precipitated his admission. Even though Rodriguez suspected that E.B. was not taking his medication, E.B. denied it, and the behavior continued. E.B. exhibited some verbal aggression, but no physical aggression or threats to harm himself or others. E.B. was usually cordial, but argumentative. Rodriguez stated that, two weeks before the hearing, E.B. became, for the first time, verbally aggressive towards him.

According to Rodriguez, on the Thursday before the hearing, E.B. walked by his office and stated that he was willing to take another medication. Rodriguez admitted that E.B. made this decision on his own and that he believed E.B. was able to make an informed decision as to whether or not to submit to treatment. From E.B. s more recent behavior, Rodriguez believed that his clinical condition was changing and improving, although not completely remitted. Rodriguez was convinced that E.B. was taking his medication because he acted as if he felt better and stated that the medicine was good. At the time of trial, Rodriguez stated that E.B. was already responding to the medication even though he was still very hypertalkative with rapid pressured speech and expressed a lot of delusional beliefs. According to Rodriguez, E.B. s behavior caused a lot of attention in the community, people began to believe that there was something wrong with him and, as a result, he was brought back to the Hospital. Rodriguez stated that E.B. s situation had become a revolving door. Rodriguez believed that medication would help E.B. In Rodriguez s opinion, E.B. would need to remain at the Hospital for approximately two more weeks.

E.B. stated that he was argumentative and a little verbally aggressive because he had a lawsuit. According to E.B., a lawyer informed him that he had to get the lawsuit taken care of inside the Hospital. However, he did not appreciate the fact that he had not received any assistance or cooperation as far as the lawsuit was concerned. E.B. stated that he had a lawsuit against the Hospital that he was going to file as soon as he left. He was appealing, but because he was recommitted, he would have to file again.

E.B. stated that he knew a mistake had been made about his situation. He knew the rights and wrongs of taking medication and knew if something was wrong, he needed medication. He stated that if nothing was wrong, he did not need medication. According to E.B., ten years ago he took a legal test that stated he was not mentally ill and did not need to be medicated. If Rodriguez wanted to keep him another two weeks, he was ready to worship on Passover and was ready to get out before the ninth. E.B. stated that he was happy because he knew that he was going to win the lawsuit. E.B. stated that everything was okay and that he was not trying to hurt Rodriguez. According to E.B., the other doctors were incompetent and he had something against them. E.B. stated that Rodriguez was not incompetent and was the best doctor he had had since being at the Hospital.

On April 4, the trial court found, by clear and convincing evidence, that E.B. was mentally ill and was suffering severe and abnormal mental, emotional, or physical distress, was experiencing substantial mental or physical deterioration of his ability to function independently, exhibited by E.B. s 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 temporary inpatient mental health services, committing E.B. to the Hospital for a period not to exceed ninety days. This appeal followed.

Sufficiency of the Evidence

In his sole issue, E.B. argues that the evidence is neither legally nor factually sufficient to support the order of commitment. E.B. contends that the testimony fails to show an overt act or a continuing pattern of behavior that tends to confirm his distress and deterioration of his ability to function. The State disagrees.

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 Rodriguez and Thompson who examined E.B. and diagnosed him with schizoaffective disorder, bipolar type. 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 E.B. was mentally ill. Rodriguez stated that E.B. told him he was an athlete, a genius, and royalty. According to Rodriguez, E.B. was hypertalkative and his speech was rapid and pressured. Rodriguez reported that E.B. exhibited flight of ideas, looseness of association, grandiose as well as paranoid delusional beliefs, and was verbally aggressive and threatening. Thompson stated that E.B. talked loudly, rapidly, and constantly, with rapid shift of topics. According to Thompson, E.B. bowed as he entered and left and had coated himself with an excessive amount of greasy substance. 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. No doctor provided evidence of an overt act and there is no evidence in the record of an overt act. In fact, Rodriguez pointed out that, while E.B. had expressed some verbal aggression, he never exhibited physical aggression or threatened to harm himself or others. As such, we must examine the record to determine where there is clear and convincing evidence showing a continuing pattern of behavior that tended to confirm his distress and the deterioration of his ability to function. See Tex. Health & Safety Code Ann. 574.034(d).

Rodriguez admitted that E.B. s disorder tended to be cyclic, or bipolar. He also suspected that E.B. did not take his medication at some point during his treatment at the Hospital. At that time, E.B. became verbally aggressive. However, on the Thursday before the hearing, Rodriguez admitted that E.B. made an informed decision to take a different medication. As a result, E.B. acted as though he felt better and remarked that the medicine was good. Rodriguez admitted that E.B. s clinical condition was changing and improving, although not completely remitted. Rodriguez offered no evidence that, at the time of trial, E.B. exhibited a continuing pattern of behavior that tended to confirm his distress and a deterioration of his ability to function. See Tex. Health & Safety Code Ann. 574.034(d). In fact, from this evidence, E.B. s behavior and actions showed that he was able to make a rational and informed decision as to whether or not to submit to treatment. See Tex. Health & Safety Code Ann. 574.034(a)(2)(C)(iii).

Regarding E.B. s ability to succeed outside the Hospital, Rodriguez was concerned about E.B. s behavior. However, his testimony was about how the community viewed E.B. s behavior and its results, not whether E.B. s behavior indicated his distress or a deterioration of his ability to function. Rodriguez offered no evidence to show that E.B. was unable to function independently because of his behavior in the community or that his pattern of behavior demonstrated his distress and a deterioration of his ability to function. See Tex. Health & Safety Code Ann. 574.034(d). As such, there was no testimony or evidence that E.B. was unable to provide for his basic needs, including food, clothing, health, or safety. See Tex. Health & Safety Code Ann. 574.034(a)(2)(C)(ii).

In summary, the State failed to introduce clear and convincing evidence of a continuing pattern of behavior that tended to confirm E.B. s distress and the deterioration of his ability to function. See Tex. Health & Safety Code Ann. 574.034(d). Therefore, viewing the evidence in the light most favorable to the findings, we conclude a reasonable trier of fact could not have formed a firm belief or conviction that E.B. 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. See Tex. Health & Safety Code Ann. 574.034(a), (d); 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 & Safety Code. Having determined that the evidence is legally insufficient, it is unnecessary for us to address E.B. s argument that the evidence is factually insufficient to support the trial court s finding. See Tex. R. App. P. 47.1.

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. We reverse the trial court s order of commitment for temporary inpatient mental health services and render judgment denying the State s application for court ordered temporary mental health services.

SAM GRIFFITH

Justice

Opinion delivered August 16, 2006.

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

(PUBLISH)