State ( 2007 )

                                                NO. 12-07-00140-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

THE STATE OF TEXAS FOR        §                      APPEAL FROM THE

THE BEST INTEREST AND          §                      COUNTY COURT AT LAW

PROTECTION OF S.D.       §                      CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION

            S.D. appeals from an order for temporary inpatient mental health services and an order to administer psychoactive medication.  In two issues, S.D. asserts the evidence is legally and factually insufficient to support the order for temporary inpatient mental health services and that the trial court erred in ordering the administration of psychoative medication because the order for temporary inpatient mental health services is invalid.  We reverse and render.

Background

            On March 28, 2007, an application for court ordered temporary mental health services was filed requesting the trial court to commit S.D. to the Rusk State Hospital (the “Hospital”) for a period not to exceed ninety days.  At the time the application was filed, S.D. 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 29, 2007,  Dr. Sethurama Srinivasan evaluated and examined S.D. and diagnosed her with bipolar I disorder.  According to Srinivasan, S.D. was mentally ill, was likely to cause serious harm to herself, and was suffering severe and abnormal mental, emotional, or physical distress, was experiencing substantial mental or physical deterioration of her 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, Srinivasan reported that S.D. was delusional, depressed, hyperactive, and over talkative.  Also, he stated that she felt she was going to hurt her baby or herself.

            On April 5, 2007, Dr. Charles Plyler evaluated and examined S.D. and diagnosed her with schizophrenia, undifferentiated. According to Plyler, S.D. was mentally ill and was suffering severe and abnormal mental, emotional, or physical distress, was experiencing substantial mental or physical deterioration of her ability to function independently, and was unable to make a rational and informed decision as to whether or not to submit to treatment.  As his basis for this opinion, Plyler stated that S.D. told him that she did not know where her two year old daughter was and that she might be dead.  He stated that S.D.’s judgment was impaired by “faulty reality appreciation.” Further, Plyler stated that S.D. believed she was pregnant despite evidence to the contrary. He stated that S.D. was not able to attend to her own biological needs for survival.

            The hearing on the application for court ordered temporary mental health services was held on April 10.  After a hearing, the trial court found, by clear and convincing evidence, that S.D. was mentally ill and was suffering severe and abnormal mental, emotional, or physical distress, was experiencing substantial mental or physical deterioration of her ability to function independently, exhibited by S.D.’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 entered an order for temporary inpatient mental health services, committing S.D. to the Hospital for a period not to exceed ninety days.  In a separate order signed the same day, the trial court authorized the Texas Department of Mental Health and Mental Retardation (the “Department”) to treat S.D. with psychoactive medications, including antidepressants, antipsychotics, mood stabilizers, and anxiolytics/sedatives/hypnotics.  This appeal followed.

Sufficiency of the Evidence

            In her first issue, S.D. argues that the evidence is legally and factually insufficient to support the order of commitment.  S.D. contends that the evidence did not establish an overt act or a continuing pattern of behavior by clear and convincing evidence.  Further, she argues that the State failed to establish a continued deterioration of her ability to function.

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, she is likely to cause serious harm to herself, 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 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, 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 her 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 Srinivasan, Plyler, and Dr. Satyajeet Lahiri. Srinivasan examined S.D. and diagnosed her with bipolar I disorder. Plyler examined S.D. and diagnosed her with schizophrenia, undifferentiated.  At trial, Lahiri testified that he reviewed the medical certificates prepared by Srinivasan and Plyler and agreed with Srinivasan’s finding that S.D. suffered from bipolar I disorder.  All three doctors provided evidence showing that S.D. was mentally ill. Srinivasan stated that S.D. was delusional, depressed, hyperactive, and over talkative. He reported that S.D. felt that she was going to hurt her baby or herself. Plyler stated that S.D. told him that she did not know where her two year old daughter was and that she might be dead.  Further, S.D. believed that she was pregnant despite evidence to the contrary.  Plyler reported that S.D.’s judgment was impaired by “faulty reality appreciation.”  At trial, Lahiri testified that S.D. had “bizarre” somatic delusions, including believing that she had two hearts, one sitting on top of the other, that she had delivered four babies while at the Hospital even though exams revealed that she had not, and that she was carrying twins.¹

            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.). 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 overt act or 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.  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 the likelihood of her distress and the deterioration of her ability to function. See Tex. Health & Safety Code Ann. § 574.034(d).

            Plyler stated that S.D. was not able to attend to her own biological needs for survival.  At trial, Lahiri testified that S.D. had very eccentric ideas about food and was unpredictable.  He stated that S.D. believed food was poison and that her obsession could interfere with her ability to provide for her basic needs.  He believed it was “questionable” whether S.D. could provide adequate nutrition for herself although he admitted that she could probably eat basic meals. However, Lahiri admitted that S.D. was able to feed  and dress herself without assistance or prompting, and that S.D.’s beliefs about food had not interfered with her ability to eat at the Hospital.  He also admitted that S.D.’s ability to take care of basic meals was sufficient to sustain life.  At trial, S.D. testified that she believed that two to three meals a day was appropriate, that she prepared snacks and took vitamins, and that she ate “anything,” including pizza, hamburger, and bread.  S.D. stated that she went on diets, but that she did not “starve” herself.  Regarding her health and safety, Lahiri admitted that S.D. had the ability and knowledge to seek medical treatment if she had a broken arm and to understand that she needed to leave a burning building.  S.D. testified that she would go to the hospital if she had a broken arm or a stomach ache that would not go away.

            Lahiri offered no specific evidence of a continuing pattern of behavior that would generally affect S.D.’s ability to function independently on a daily basis without the imposition of mental health services.  See Broussard, 827 S.W.2d at 622.  To the contrary, Lahiri testified that S.D. was capable of meeting her daily physical needs without assistance or prompting, that her beliefs had not prevented her from eating at the Hospital, and that her ability to take care of basic meals was adequate to sustain life.  Moreover, there was no testimony or evidence that S.D. was refusing to eat or was unable to provide for her basic needs, including food, clothing, health, or safety.  See Tex. Health & Safety Code Ann. § 574.034(a)(2)(C)(ii). The State must show more than delusions or other facts that merely confirm S.D.’s mental illness to meet the evidentiary standard for a temporary commitment.  See In re C.O., 65 S.W.3d at 182.

            Lahiri points out, however, that S.D. could encounter dangerous situations.  Lahiri also believed that complex actions, such as going to a restaurant, ordering food, or preparing meals, could be a problem for S.D.  But these opinions were not supported by a factual basis or by a description of specific behaviors by S.D. on which his opinions were based. Therefore, we cannot say that the evidence would lead a reasonable trier of fact to form a firm belief or conviction that S.D. had engaged in a continuing pattern of behavior tending to confirm her distress and the deterioration of her 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 that a reasonable trier of fact could not have formed a firm belief or conviction that S.D. was suffering severe and abnormal mental, emotional, or physical distress, was experiencing substantial mental or physical deterioration of her 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 S.D.’s argument that the evidence is factually insufficient to support the trial court’s finding.  See Tex. R. App. P. 47.1.  We sustain S.D.’s first issue.

Psychoactive Medication Order

            In her second issue, S.D. argues that the trial court erred in ordering the administration of psychoactive medication. A trial court may issue an order authorizing the administration of one or more classes of psychoactive medication to a patient who is under a court order to receive inpatient mental health services.  Tex. Health & Safety Code Ann. § 574.106(a) (Vernon Supp. 2007).  The trial court may issue an order only if the trial court finds by clear and convincing evidence after the hearing that the patient lacks the capacity to make a decision regarding the administration of the proposed medication and treatment with the proposed medication is in the best interest of the patient.  Tex. Health & Safety Code Ann. § 574.106(a-1) (Vernon Supp. 2007).  Having found the evidence legally insufficient to support the trial court’s order of commitment, we have held that the trial court’s order for temporary inpatient mental health services is invalid.  Therefore, the order authorizing administration of psychoactive medication is also invalid.  See Tex. Health & Safety Code Ann. § 574.106(a).  We sustain S.D.’s second issue.

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. Therefore, the order for administration of psychoactive medication is invalid.

            We reverse the trial court’s order of commitment for temporary inpatient mental health services and for administration of psychoactive medication.  We render judgment denying the State’s application for court ordered temporary mental health services and for an order to administer psychoactive medication.

                                                                                                    SAM GRIFFITH  

                                                                                                               Justice

Opinion delivered November 30, 2007.

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

(PUBLISH)

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¹ We are unable to confirm from the record whether S.D. in fact has a two year old daughter.  We are also unable to determine whether S.D.’s feeling that she would hurt her baby relates to the two year old, one of the babies she believes she has delivered while at the Hospital, or one of the unborn twins she believes she is carrying.