in the Best Interest and Protection of M. R. ( 2006 )

                             NUMBER 13-04-00423-CV

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

M. R.,                                                                                                  Appellant,

                                                             v.

THE STATE OF TEXAS,                                                                    Appellee.

       On appeal from the Probate Court of Hidalgo County, Texas.

                       MEMORANDUM OPINION

               Before Justices Hinojosa, Rodriguez, and Garza

                         Memorandum Opinion by Justice Hinojosa

Appellant, M. R., appeals from the probate court=s judgment temporarily committing him to the Rio Grande State Center (Athe Center@), a mental health facility, for ninety days.  In his sole issue, M. R. claims the evidence is legally insufficient to support the court=s finding that he needed temporary mental health services.  We affirm.^[1]

                                                   A.  Factual Background

The probate court held an evidentiary hearing to determine whether appellant should be temporarily committed.  The following three witnesses testified at the hearing:  (1) Dr. Diego Rodriguez, a psychiatrist at the Center, (2) appellant, and (3) appellant=s mother, G. R.

                                                         1.  Dr. Diego Rodriguez

Dr. Rodriguez testified that appellant suffered from schizophrenia disorganized. He interviewed appellant on one occasion, reviewed appellant=s medical records from a previous doctor, and met with nurses and other staff members who had regular contact with appellant during his detention in the Center.

Dr. Rodriguez related what Dr. Weathers, the doctor who initially interviewed appellant prior to his commitment, found.  Dr. Weather=s records showed that appellant:  (1) had called his mother the devil, and his mother had to lock herself in a closet; (2) had rambled incoherently when speaking with Dr. Weathers; (3) had cigarette burns on his arms; (4) had broken into a neighbor=s house and car; and (5) after locking himself in the neighbor=s car, was unable to get out.

Dr. Rodriguez testified that appellant had attempted to escape from the Center.  Dr. Rodriguez found that appellant (1) was at a substantial risk of causing serious harm to himself or others if not treated, (2) suffered from severe and abnormal mental, emotional and physical distress, (3) would not be able to function independently if he was released from the Center, (4) suffered from hallucinations, and (5) could not make a rational and informed decision about whether to submit to treatment.

                                                                   2.  Appellant

Immediately following Dr. Rodriguez=s testimony, appellant testified on his own behalf.  Appellant said he did not know why he was placed in the mental health facility.  He admitted to breaking into the neighbor=s home, but said he broke the window Ato wake them up . . . because they were sleeping.@ Appellant admitted he had burned himself A[j]ust to see if it hurts.@  He also displayed several burn marks on his forearm to the court.  Appellant also admitted he had previously cut his wrists with a razor blade to Asee if it would hurt.@ 

                                                           3.  Appellant=s Mother

Appellant=s mother, testified that she had filed the application for emergency detention and apprehension of appellant because he had not slept in five or six days and would talk to himself.  Appellant=s mother was Aafraid for [appellant].@  She testified that prior to his detention, appellant Awas like hallucinating and he said that [she] was a demon.@ Appellant=s mother also testified that in November 2003, appellant had written a letter saying he wanted to kill himself.

                                                     4.  Probate Court=s Findings

After hearing the testimony of these three witnesses, the probate court found that appellant was not currently a danger to himself or others but that appellant Ameets the deterioration standard.@  See Tex. Health & Safety Code Ann. ' 574.034(a)(2)(C) (Vernon 2003).

                                                     B.  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.  See In the Interest of 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.  See 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.  See id.

                                                          C.  Applicable Law

Under Texas law, a trial court can order temporary in‑patient mental health services if the court finds from clear and convincing evidence that the proposed patient is:

(1)       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 from 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 rational and informed decisions as to whether or not to submit to treatment.

Tex. Health & Safety Code Ann. ' 574.034(a).

The health and safety code also provides that to meet the Aclear and convincing@ standard of proof, the evidence must Ainclude expert testimony and, unless waived, evidence of a recent overt act or a continuing pattern of behavior that tends to confirm (1) the likelihood of serious harm to the proposed patient or others, or (2) the proposed patient=s distress and the deterioration of the proposed patient=s ability to function.@  See id. ' 574.034(d). A medical diagnosis alone is not sufficient to confine a patient for compulsory treatment.  See Mezick v. State, 920 S.W.2d 427, 430 (Tex. App.BHouston [1st Dist.] 1996, no writ) (citing Lodge v. State, 597 S.W.2d 773, 779 (Tex. Civ. App.BSan Antonio), aff=d, 608 S.W.2d 910 (Tex. 1980)).  Expert opinions recommending involuntary commitment must be supported by a showing of the factual basis on which they are grounded.  See id. at 430.

                                                                  D.  Analysis

Appellant asserts there is no evidence in the record of a recent overt act or continuing pattern of behavior that tended to confirm appellant=s distress and deterioration as required by statute. See Tex. Health & Safety Code Ann. ' 574.034(d).^[2]  

In L.S. v. State, the Austin Court of Appeals found a continuing pattern of behavior or a recent overt act.  L.S. v. State, 867 S.W.2d 838, 840-43 (Tex. App.BAustin 1993, no writ).  In L.S., the court wrestled with the renewal of an order for extended mental health services for a period not to exceed twelve months.^[3]  Id. at 840.  The doctor testified the patient was mentally retarded and schizophrenic.  Id. at 842.  The doctor also testified that if the patient was not treated, he would deteriorate.  Id. The doctor then referred to the following three patterns of behavior of the patient to illustrate the need for hospitalization:  (1) burning his skin with cigarettes; (2) drinking excessive amounts of water, causing him to gain ten pounds in an eight‑hour period; and (3) an unauthorized departure from the psychiatric facility for six days.  Id.  The court found the testimony provided sufficient evidence of a continuing pattern of behavior or recent overt acts.  Id. at 843.

Similar cases have further explained what may constitute clear and convincing evidence under section 574.034(d).  See State ex rel L.H., 183 S.W.3d 905, 911‑12 (Tex. App.BTexarkana 2006, no pet. h.) (concluding that clear and convincing evidence found the proposed patient had previously harmed herself with a razor and had acquired another razor while in the health service facility, though she did not harm herself with the second razor); D.M. v. State, 181 S.W.3d 903, 904-05 (Tex. App.BDallas 2006, no pet. h.) (concluding that clear and convincing evidence showed proposed patient had put herself into situations where she was at risk of being assaulted and that she had a previous suicide attempt); G.H. v. State, 94 S.W.3d 115, 116‑17 (Tex. App.BHouston [14th District] 2002, no pet.) (concluding that the proposed patient=s refusal to take medication, actions at home that caused her family to contact a mental health deputy, and her behavior in an emergency room were all recent overt acts that tended to confirm her distress and deteriorating ability to function).  ATexas law does not require relatives or physicians of the mentally ill (or the courts) to stand idly by until serious harm occurs. . . .  The purpose of temporary commitment is to avoid just such harm.@  See G.H. v. State, 94 S.W.3d 115, 117 (Tex. App.BHouston [14th Dist.] 2002, no pet.).

After considering the evidence in the light most favorable to the probate court=s finding, we conclude the evidence is more than sufficient to support the court=s conclusion that (1) appellant was likely to suffer a substantially deteriorated ability to function independently due to his severe mental distress, and (2) he was unable to take the steps needed to remedy it.  See Tex. Health & Safety Code Ann. ' 574.034(a)(2)(C).  Further, we conclude the probate court could have formed a firm belief that its findings were true and justified commitment.  See In the Interest of J.F.C., 96 S.W.3d at 266. Accordingly, we hold the evidence is legally sufficient to support the probate court=s order of commitment under section 574.034(a)(2)(C).  See id.  Appellant=s sole issue is overruled.

The judgment of the probate court is affirmed.

FEDERICO G. HINOJOSA

Justice

Memorandum Opinion delivered and filed this

the 22nd day of June, 2006.

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^[1] Although appellant was discharged soon after the probate court=s commitment order was signed, the mootness doctrine does not apply to appeals of mental health commitments such as this.  See State v. Lodge, 608 S.W.2d 910, 912 (Tex. 1980).

^[2] Appellant also contends the commitment order omits subsection 574.034(a)(2)(C)(ii) of the Texas Health and Safety Code, thereby proving the probate court implicitly found insufficient evidence to meet the second prong of the three-prong test.  See Tex. Health & Safety Code Ann. ' 574.034(a)(2)(C).  However, a review of the record indicates the probate court did not omit subsection 574.034(a)(2)(C)(ii) from the commitment order.  The court simply paraphrased the subsection; the order did not include a word-for-word recitation.  Therefore, this argument is without merit. 

^[3] We note the court applies the same standard of clear and convincing evidence in an extended mental health services case as in a temporary mental health services case.  Tex. Health & Safety Code Ann. ' 574.035 (Vernon Supp. 2005).