in the Interest L.M. ( 2007 )

Affirmed and Memorandum Opinion filed January 30, 2007

Affirmed and Memorandum Opinion filed January 30, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00709-CV

        14-06-00710-CV

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IN THE INTEREST OF L.M.

On Appeal from the Probate Court

Galveston County, Texas

Trial Court Cause No. 2887 and 2887A

M E M O R A N D U M   O P I N I O N

Appellant, L.M., appeals from an order of commitment for temporary inpatient mental-health services and an order to administer psychoactive medication.  In three issues, L. M. challenges the legal and factual sufficiency of the evidence to support the trial court=s orders.  We affirm. 

I.  Background

Appellant is a sixty-six-year old, divorced woman.  On July 6, 2006, four or five weeks after having a pacemaker installed, she was admitted to Clear Lake Regional Medical Center for respiratory failure.  Her condition required intubation and mechanical ventilation.  While there, her breathing improved but her mental status deteriorated, and she experienced auditory hallucinations and aggressive behavior.  On July 11, 2006, she was admitted to senior care at Mainland Medical Center in Texas City.   On July 19, 2006, Dr. Altaf Loya filed a request with the trial court seeking a commitment and medication hearing regarding appellant.  Following the July 26, 2006, hearing the trial court ordered that appellant be committed to Mainland Medical Center for inpatient care not to exceed 90 days.^[1]  Also on July 26, 2006, following a separate hearing, the trial court signed an order authorizing Mainland Medical Center to administer to appellant the following classes of psychoactive medication: antidepressants, antipsychotics, anxiolytics/sedatives/hypnotics, and mood stabilizers.  Appellant appeals from both orders. 

II.  Statutory Requirements for Commitment

Pursuant to the Texas Mental Health Code, a trial court may order a person to receive court-ordered temporary inpatient mental-health services if the State proves, by clear and convincing evidence, that the proposed patient is mentally ill, and as a result of that mental illness:

(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 2003).

The Mental Health Code further provides:

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:

(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. 

Tex. Health & Safety Code Ann. ' 574.034(d) (Vernon 2003) (emphasis added).

The judge or jury must specify which criterion under the Texas Health and Safety Code forms the basis for the commitment order.  Tex. Health & Safety Code Ann. ' 574.034(c) (Vernon 2003).  In addition, the overt act or continuing pattern of behavior Amust relate to the criterion on which the judgment is based.@  See J.M. v. State, 178 S.W.3d 185, 193 (Tex. App.CHouston [1st Dist.] 2005, no pet.) (citing In re C.O., 65 S.W.3d 175, 181 (Tex. App.CTyler 2001, no pet.)). 

In this case, the trial court found appellant is mentally ill, and as a result of that mental illness, the following two statutory criteria were satisfied: (1) appellant was likely to cause serious harm to herself; and (2) appellant is suffering severe and abnormal mental, emotional, or physical distress; substantial deterioration of her ability to function independently; and is unable to make a rational and informed decision about whether to submit to treatment.  See ' 574.034(a)(2)(A),(C).

III.  Legal and Factual Sufficiency

In three issues, appellant challenges the legal and factual sufficiency of the evidence to support the trial court=s orders for temporary mental health services and to administer psychoactive medication. 

A.  Standard of Review

Clear and convincing evidence is Athat 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) (per curiam).  When the burden of proof is heightened to a clear and convincing standard, the standard of review for legal sufficiency of the evidence is also heightened.  City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005).  We must consider all evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a belief or conviction that its findings were true.  In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).  We must also assume that the fact-finder resolved 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 to be incredible. Id.

In reviewing the evidence for factual sufficiency under the clear and convincing standard, we inquire Awhether the evidence is such that a fact-finder could reasonably form a firm belief or conviction about the truth of the State=s allegations.@  In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).  We must give due consideration to evidence that the fact-finder reasonably could have found to be clear and convincing.  Id. If, in light of the entire record, the disputed evidence that a reasonable fact-finder could not have credited in favor of the finding is so significant that a fact-finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient.  In re J.F.C., 96 S.W.3d at 264B65.

B.      Order for Temporary Mental-Health Services

Appellant does not challenge the finding that she is mentally ill, but contends the evidence is legally and factually insufficient to support the finding that she meets either of the two additional criteria necessary for court-ordered temporary mental-health services.  Specifically, she contends the State failed to show a recent overt act or continuing pattern of behavior that tends to confirm either (1) the likelihood of serious harm to herself, or (2) her distress and the deterioration of her ability to function.  See Tex. Health & Safety Code Ann. ' 574.034(d).

At the hearing, Dr. Atlaf Loya, testified as follows regarding appellant=s condition based on her current hospitalization and his treatment of appellant during previous hospitalizations.  Appellant has a schizoaffective disorder. She has a Along history@ of psychiatric problems although she denies any such problems.  She arrives at the hospital usually in a Adecompensated form,@ very paranoid, very delusional, and psychotic.  The medical personnel are able to stabilize her with medication.  However, as soon as she leaves, she does not take the medications. She was taking her medication Aoff and on@ during her current hospitalization.  For instance, she took all the medication the day before the hearing but rejected the medication that same night and two days before the hearing.^[2] Further, she initially denied that she needed to take any medication.  She agreed to take the medication only so that she could be discharged.  However, Dr. Loya doubted she will take the medication after discharge.

Dr. Loya also explained that appellant=s mental illness affects her ability to take care of herself physically by interfering with her multiple physical medical conditions which are life-threatening and serious.  Significantly, he opined that she constitutes a serious harm to herself because, when she does not take her medication, Ait interferes with her overall care B physical as well as psychiatric.  She ends up in the hospital with shortness of breath, exhibition of C.H.F. [congestive heart failure] and all of the medical problems to the form that she ends up in the I.C.U. [intensive care unit]. . . . That=s because of her medical condition.  She=s dangerous because she won=t take her medication.@

 Appellant contends the evidence shows that she is suffering from mental illness, but that it does not amount to a recent overt act or continuing pattern of behavior.  Texas courts of appeals have recognized that evidence of mental illness alone does not meet the clear and convincing standard requiring evidence of a recent overt act or continuing pattern of behavior.  See Broussard v. State, 827 S.W.2d 619, 622 (Tex. App.CCorpus Christi 1992, no pet.) (holding appellant=s continuing delusional behavior both before and during hospitalization proved she suffered a mental illness but was not sufficient to meet additional statutory standard); see also In re K.D.C., 78 S.W.3d 543, 551 (Tex. App.CAmarillo 2002, no pet.) (holding rapid pressure speech and religious ideations were only evidence of patient=s mental illness and not sufficient to satisfy additional statutory standard);  Johnstone v. State, 961 S.W.2d 385, 389, 90 (Tex. App.CHouston [1st Dist.] 1997, no writ) (holding Airritable@ and Auncooperative@ behavior and hostility towards staff was evidence regarding mental health only and did not satisfy additional statutory requirements).  However, in this case, we find the evidence shows more than mental illness alone and demonstrates a recent overt act or continuing pattern of behavior confirming appellant is likely to harm herself. 

Recently in In re F.M., we held that refusal to take medication without more is not evidence of an overt act or a continuing pattern of behavior tending to confirm one of the relevant criterion for commitment under the Mental Health Code.  183 S.W.3d 489, 494 (Tex. App.CHouston [14th Dist.] 2005, no pet.).^[3] In In re F.M., the patient refused to take psychiatric medication and one radiation treatment for breast cancer.  Id. at 496B97.  We found that this refusal was insufficient evidence of an overt act or continuing pattern of behavior tending to show the likelihood of her causing serious harm to herself.  Further, we found that her refusal was not evidence of a recent overt act or continuing pattern of behavior tending to confirm her distress and deterioration in her ability to function.  Id. at 499.  We noted that there was no evidence of a Asubstantial deterioration@ in her Aability to function independently.@  Id.  The only evidence suggesting that she was impeded in everyday functioning was her own complaints of insomnia and urinary incontinence caused by her medication.  Id.  The evidence of her delusional thoughts only confirmed that she was mentally ill, but they did not rise to the level of an overt act or continuing pattern of behavior necessary to support a commitment order.  Id. 

Here, we find more exigent circumstances.  The evidence shows more than just the refusal to take psycho tropic or cardiac medication.  In particular, Dr. Loya testified appellant=s refusal to take her medications renders her a danger to herself by causing her to neglect to take her health medications resulting in symptoms of congestive heart failureCa life-threatening illnessCand frequent hospitalization. Cf. Armstrong v. State, 190 S.W.3d 246, 253 (Tex. App.CHouston [1st Dist.] 2006, no pet denied) (holding refusal of treatment for hypertension and diabetes was not an overt act or continuing pattern of behavior because patient did not refuse treatment for any Aemergent, imminent, life-threatening illness@). 

We recognize that questions of commitment can be fact-specific and that not all circumstances are the same.  In this case, we find that the evidence satisfies the clear-and-convincing standard because it reflects a continuing pattern of behavior or recent overt act tending to confirm the likelihood of serious harm to herself.  See Tex. Health & Safety Code Ann. ' 574.034(d).  Accordingly, the evidence is legally and factually sufficient to support the trial court=s order for temporary mental-health services. 

C.  Order To Administer Psychoactive Medication

Appellant also contends that the evidence is legally and factually insufficient to support the trial court=s order to administer psychoactive medication.  A trial court may issue an order authorizing the administration of psychoactive medication only if the proposed patient is under a valid order for temporary or involuntary mental health services.  Tex. Health & Safety Code Ann. ' 574.106(a)(1) (Vernon Supp. 2006).  Because we find the evidence legally and factually sufficient to support the trial court=s order for temporary mental-health services, we also find the evidence legally and factually sufficient to support the order to administer psychoactive medications.  See In re F.M., 183 S.W.3d 489, 500 (Tex. App.CHouston [14th Dist.] 2005, no pet.) (citing K.T. v. State, 68 S.W.3d 887, 894 (Tex. App.CHouston [1st Dist.] 2002, no pet.)).  We overrule appellant=s three issues.  

Accordingly, we affirm the trial court=s Order for Temporary Inpatient Mental Health Services and the Order to Administer Psychoactive Medication.

/s/      Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed January 30, 2007.

Panel consists of Chief Justice Hedges and Justices Yates and Seymore.

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^[1]  Although the ninety-day period has expired, appellant=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 commitment orders.  See Johnstone v. State, 22 S.W.3d 408, 409 n.1 (Tex. 2000) (per curiam); Armstrong v. State, 190 S.W.3d 246, 247 n.1 (Tex. App.CHouston [1st Dist.] 2006, no pet.) (citing J.M. v. State, 178 S.W.3d 185, 188 (Tex. App.CHouston [1st Dist.] 2005, no pet.)).

Appellant asserts that Dr. Loya=s testimony regarding appellant=s behavior was inconsistent.  Appellant notes that Dr. Loya testified that appellant posed harm to herself because she did not take her medication, but later testified appellant was compliant in taking her medication and became more and more compliant each day.  However, we have found no such discrepancy. 

^[3]  In In re F.M., we noted that several other courts of appeals had also found that refusal to take medication was not an overt act or continuing pattern of behavior sufficient to meet the clear and convincing standard under the Mental Health Code. See J.M. v. State, 178 S.W.3d 185, 194 (Tex. App.CHouston [1st Dist.] 2005, no pet. (holding that the refusal to take medication is not evidence of an overt act or continuing pattern of behavior); In re Breeden, 4 S.W.3d 782, 789,90 (Tex. App.CSan Antonio  1999, no pet.) (finding refusal to take psychiatric medication was not evidence of an overt act under the third criterion, but not addressing whether the refusal to take medication was evidence of an overt act under the first criterion); Broussard v. State, 827 S.W.2d 619, 622 (Tex. App.CCorpus Christi 1992, no writ) (finding repeated refusal to take psychiatric medication was evidence that patient could not make a rational and informed decision regarding treatment, but was not evidence showing an overt act or continuing pattern of behavior); In re B.S., No. 12-02-00217-CV, 2003 WL 21260028, at *5 (Tex. App.CTyler May 30, 2003, no pet.) (not designated for publication) (finding patient=s refusal to take medication for hypertension was not an overt act as contemplated by the Mental Health Code.)