in the Matter of P.O.C. ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00263-CV
IN THE MATTER OF P.O.C.
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FROM THE PROBATE COURT OF DENTON COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant P.O.C. appeals from a judgment for temporary court-ordered
inpatient mental-health services. In a single issue, P.O.C. challenges the factual
sufficiency of the evidence to support the jury’s findings. We will affirm.
II. BACKGROUND
On July 18, 2013, a jury found by clear and convincing evidence that
P.O.C. is mentally ill; that as a result of his mental illness, P.O.C. is likely to
1
See Tex. R. App. P. 47.4.
cause serious harm to himself; that as a result of his mental illness, P.O.C. is
suffering severe and abnormal mental, emotional, or physical distress; that as a
result of his mental illness, P.O.C. is 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 that as a result of his mental illness, P.O.C.
is unable to make a rational and informed decision as to whether or not to submit
to treatment. On the same day, the trial court ordered that P.O.C. be committed
for mental-health services at the North Texas State Hospital Wichita Falls
Campus (NTSH) for a period of time not to exceed ninety days. This appeal
followed.2
III. TEMPORARY MENTAL-HEALTH COMMITMENT JUDGMENT
In his sole issue, P.O.C. argues that the evidence is factually insufficient to
support the trial court’s findings that protective custody is necessary.
Specifically, P.O.C. argues that his testimony demonstrates he is competent and
his behavior is justified based on his cultural influences from his upbringing in
India.
2
By separate order after hearing testimony on a later date, the trial court
also authorized treatment of P.O.C. with psychoactive medication during his
temporary hospitalization.
2
A. Statutory Requirements
A trial court may order a proposed patient to receive temporary inpatient
mental-health services only if the factfinder concludes from clear and convincing
evidence that the proposed patient is mentally ill and also satisfies at least one of
the subparagraphs under Texas Health and Safety Code section 574.034(a)(2):
(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)(1)–(2) (West 2010). Here, in
addition to finding that P.O.C. is mentally ill, the trial court’s written order states
that the jury affirmatively found the State’s allegations under (A) and (C) to be
true.
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B. The State’s Burden
The evidentiary standards for involuntary commitment are high. State ex
rel. E.E., 224 S.W.3d 791, 794 (Tex. App.—Texarkana 2007, no pet.) (citing
Harris v. State, 615 S.W.2d 330, 333 (Tex. Civ. App.—Fort Worth 1981, writ ref’d
n.r.e.)). The State has the burden of establishing by clear and convincing
evidence that the proposed patient meets at least one of the subparagraphs
listed under section 574.034(a)(2). See Mezick v. State, 920 S.W.2d 427, 430
(Tex. App.—Houston [1st Dist.] 1996, no writ). Clear and convincing evidence is
―that 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. K.E.W., 315 S.W.3d 16, 20 (Tex. 2010). When court-
ordered temporary mental-health services are sought under section 574.034(a),
specific requirements for clear and convincing evidence are imposed: 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).
An expert’s diagnosis, without more, is not sufficient to confine a patient for
compulsory treatment. See E.E., 224 S.W.3d at 794 (citing Mezick, 920 S.W.2d
at 430). The State cannot meet its burden of proof without presenting evidence
of the behavior of the proposed patient that provides the factual basis for the
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expert opinion. See id. The recent overt act or continuing pattern of behavior
shown by the State must also relate to the criterion on which the judgment is
based. See T.G. v. State, 7 S.W.3d 248, 252 (Tex. App.—Dallas 1999, no pet.).
C. Standard of Review
Because the State has a heightened burden of proof in commitment cases,
this court applies a heightened standard of review. State ex rel. F.S., No. 05-13-
00413-CV, 2013 WL 3488023, at *1 (Tex. App.—Dallas July 10, 2013, no pet.)
(citing In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). In reviewing factual sufficiency
challenges, we review all the evidence in the record, both supporting and
opposing the trial court’s findings. C.H., 89 S.W.3d at 27–29. We must give due
consideration to evidence the trier of fact could reasonably have found to be
clear and convincing. Id. at 25. Under the clear and convincing standard, we
determine whether the evidence is such that the factfinder could reasonably form
―a firm belief or conviction‖ as to the truth of the allegations sought to be
established by the State. Id. We must consider whether disputed evidence is
such that a reasonable factfinder could not have reconciled that disputed
evidence in favor of its finding. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).
The trial court as the factfinder is the exclusive judge of the credibility of the
witnesses and the weight to be given their testimony. In re Estate of Canales,
837 S.W.2d 662, 669 (Tex. App.—San Antonio 1992, no writ).
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D. Sufficiency of the Evidence
Because P.O.C. does not challenge any specific individual jury finding
related to the temporary mental-health commitment judgment, we set forth a
summary of the testimony and exhibits presented at trial.
1. Dr. Shupe’s Testimony
Dr. James Shupe testified that he had examined P.O.C. twice in ten days,
including the day of the trial; that there was no difference between the first
meeting and the second meeting as far as the underlying facts; and that he had
reviewed the medical records of psychiatrist Neil Jacobsen, a certificate of
medical examination by psychiatrist Diana Isachievici, the physicians’ progress
notes from NTSH, and the nursing observations on P.O.C. from the hospital. Dr.
Shupe, Dr. Jacobsen, and psychiatrist Isachievici diagnosed P.O.C. with
schizophrenia.
P.O.C. had exhibited symptoms of schizophrenia for approximately five or
six years. Dr. Shupe agreed that P.O.C. had previously been to Terrell State
Hospital as an inpatient and that there have been cycles when P.O.C. has had to
be hospitalized to be medicated in order to regain his ability to function and live in
a community. Dr. Shupe said that in the past, P.O.C. has been successfully
treated and has functioned well for extended periods of time when he takes his
medications. But because P.O.C. had not been on medication for three or four
months, he had gone from functioning well at home, even helping his father and
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sisters with different activities, to not functioning at all and not taking care of
himself.
P.O.C. had not shown aggression toward others, but in the months before
the trial, he had harmed himself by hitting his head on objects, by picking up
objects and hitting his head with them, and by refusing to eat or drink for days or
weeks at a time. Dr. Shupe testified that P.O.C.’s body mass index is at
seventeen, which is more than twenty percent below where it should be; he is at
the point where his body will start eating away his muscles and other organs to
get nutrition in order to survive. Dr. Shupe testified that P.O.C. had to be
transported to the hospital to be given intravenous fluids because of his refusal to
eat or drink.3
While in NTSH, P.O.C. had refused to take medication. P.O.C. had
engaged in conversation, but Dr. Shupe noted that P.O.C.’s conversations
became unproductive when the topics of medication and treatment were
discussed. P.O.C. used real words and communicated in sentences, but his
sentences did not relate to the questions that he had been asked.
Dr. Shupe opined that P.O.C. was severely and persistently mentally ill at
the time of trial. Dr. Shupe further opined that, if left untreated, P.O.C.’s
psychosis will continue to worsen, and he will not perform the activities of daily
3
On July 14, 2013, P.O.C. was taken from NTSH to the United Regional
Health Care System for not urinating in the previous sixteen hours and concern
that his kidneys were shutting down. All of P.O.C.’s lab work was within normal
limits, but he was given 1,000 liters of fluid to ―get ahead of the game.‖
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living that he needs to perform in order to remain healthy. Dr. Shupe testified
that P.O.C. could be described as having a severe, abnormal mental, emotional,
or physical distress; that P.O.C. was not functioning independently at the time of
trial; and that P.O.C. was exhibiting an inability to live safely in his home.
Dr. Shupe opined that P.O.C.’s prognosis would be poor if he were
released on the day of the hearing because he was not taking medicine while in
the hospital, would not take medication on his own, was angry with his family,
and was not planning to return home. Dr. Shupe testified that it was in P.O.C.’s
best interest to get back on his medication so that he could begin functioning
again. Dr. Shupe recommended that P.O.C. remain in court-ordered inpatient
treatment and receive court-ordered medication. According to Dr. Shupe, no less
restrictive means existed to treat P.O.C. at the time of trial because P.O.C. was
not eligible for outpatient treatment as a result of his past conduct in refusing
fluids.
2. P.O.C.’s Sister’s Testimony
S.C. testified that her father, her sister, and her brother P.O.C. live with
her. S.C. testified that she runs a real estate business and that P.O.C. had
worked with her.
S.C. testified that P.O.C.’s mental illness started six years ago when their
mother passed away. S.C. testified that P.O.C. had previously been treated at
Green Oaks and at Terrell. P.O.C. was last treated at Terrell one and a half or
two years ago; when he came home, he took his medication. When P.O.C. takes
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his medications, he goes about his normal activities like everyone else. When he
quits taking his medications, he acts ―very bizarre, very irrational‖ and does not
make sense when he communicates. S.C. said that P.O.C. had not taken his
medication in four or five months.
When P.O.C. stopped taking his medications, he started copying the FBI
and the IRS on business emails, he emailed the IRS and the FBI and copied S.C.
on the emails, and he emailed the White House. P.O.C. also started calling the
CIA and the FBI, saying, ―I’m going to complain to them, and we’ll see. We’ll see
what happens.‖ S.C. asked P.O.C. to tell her what the problem was, but she did
not understand his answer. P.O.C. eventually closed their business bank
account and emailed the real estate agents that they employed to tell them that
their checks would bounce. P.O.C. thereafter put a message on S.C.’s Twitter
and Facebook accounts, as well as his cell phone, saying, ―Bank of Texas is
filing a case against me.‖
S.C. testified that prior to his recent hospitalization, P.O.C. had called the
police eleven times to tell them to take S.C. away because he believed she
posed a danger to him. P.O.C. posted big signs around the interior of the house
stating, ―Close the door gently,‖ and he posted three signs on his bedroom door
saying, ―Do not knock, do not call my name. If you need to talk to me, take an
appointment.‖ P.O.C. also posted a sign outside on the exterior door of the
house that said: ―Nobody should enter this house. If you need to meet my dad,
call him and meet him at Starbucks.‖ S.C. testified that P.O.C. had locked his
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bedroom door and had refused to come out for several days, that he would not
eat, and that he had gone to the neighbors’ houses at random and had started
rambling. S.C. was afraid of what the neighbors might do to P.O.C. if he did not
leave when asked.
S.C. testified that she was present when the police removed P.O.C. from
her home. S.C. said that P.O.C. had not eaten in at least ten days when the
police took him to NTSH.
S.C. tried to communicate with the social workers and the doctors at
NTSH, but they would not speak with her because P.O.C. had told them not to
speak with his family. When S.C.’s sister and dad went to visit P.O.C., he
refused to see them. S.C. said that she would allow P.O.C. to return to her home
but that it was not safe for him to return home at the time of trial because he was
a danger to himself and did not currently have the ability to make independent
decisions regarding his medical treatment.
3. P.O.C.’s Testimony
P.O.C. testified that he is originally from India and that he moved to the
United States at age nineteen. He received his bachelor’s degree in economics
from the University of Texas at Austin.
P.O.C. explained that he closed the business bank account because he
and S.C. had been having disagreements regarding the profitability of her
company for a few months and because he was authorized to close the account.
P.O.C. testified that the disagreements over the business centered on S.C. not
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being organized; he is ―quite organized‖ and plans his days and does his work.
P.O.C. believed that more organization was needed for the business to be
successful.
P.O.C. said that he had been taking a few fluids, that he had not been
eating for a few days, but that he had been eating a few weeks prior to the trial.
He explained that he was trying to adjust his diet to eliminate processed foods.4
He testified that he wants fresh food, preferably organic or grown naturally,
because he is from India where most food is unprocessed. He said that he feels
like eating unprocessed foods is more healthy in the long run. P.O.C. said that
Mahatma Ghandi and Potti Sri fasted for more than fifty days in the sun without
air conditioning, ―and nothing happened to them.‖ But he said that he did not
want to fast like they did; he wants to fast ―where I know that I can take care of
my health and my nutritional values are stable and such.‖
P.O.C. testified that there is no reason for S.C. to be afraid of him because
he is not a harmful person and is not harming himself by denying his body certain
4
The exhibits admitted at trial reveal that P.O.C. gave a variety of reasons
for not eating. Dr. Isachievici’s progress notes from June 25, 2013, state that
P.O.C. said that he had stopped eating to help his sister lose weight. The
nurse’s progress note on July 5, 2013, states that P.O.C. said, ―My God does not
want me to eat.‖ Dr. Olayemi’s progress notes from July 10, 2013, state that
P.O.C. admitted that he was starving and explained that he was not eating to
prove to his sister that she can lose weight by eating less. Dr. Olayemi’s
progress notes from July 12, 2013, state that P.O.C. told the dietician that he was
refusing to eat because he was upset with an undisclosed staff member at
NTSH. He would not disclose what he was upset about. Nurse Comstock’s
notes from July 12, 2013, state that P.O.C. said he was refusing to eat because
the psychiatrist, the social worker, and the staff of NTSH have lied to him.
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foods. P.O.C. said that if S.C. is afraid, it might be a good idea for him to stay
away.
P.O.C. acknowledged that his medical records indicate he does not have
as much social interaction as the doctors want him to; he explained that he is
contesting being in a mental hospital and that is why he is not communicating
with patients in the hospital who have issues.
P.O.C. testified that he did not feel like he was mentally ill because he
does not hit his head, does not hear voices, and does not have illogical thinking;
thus, he did not need to take medication on the date of the trial. He did not
intend to return to the hospital and does not want to live with his family anymore;
he said that he would go to a hotel.
4. Sufficiency Analysis
Although P.O.C. argues that ―his behavior is within stable ranges‖ and that
―his present ideas and behaviors are consistent with his cultural pas[t], his
conceptualizations, and projections for his future,‖ the testimony from the trial,
which is set forth above, proves otherwise. Here, P.O.C. testified that he was not
mentally ill, but the jury also heard testimony from Dr. Shupe and S.C. about
P.O.C.’s history of mental illness and heard Dr. Shupe testify that three medical
professionals had diagnosed P.O.C. with the mental illness schizophrenia. And
although P.O.C. testified that his ―fasting‖ was in line with other cultural icons, the
evidence revealed that he is causing serious harm to himself because his body
mass index is more than twenty percent below where it should be, which will
12
cause his body to start eating away his muscles and other organs to get nutrition
in order to survive. The record thus contains clear and convincing evidence: Dr.
Shupe’s expert testimony about P.O.C.’s mental illness is supported by testimony
from S.C. and the medical records, as well as P.O.C.’s own testimony, and the
record as a whole demonstrates that P.O.C. is exhibiting a continuing pattern of
behavior that tends to confirm the likelihood of serious harm to P.O.C. See Tex.
Health & Safety Code Ann. § 574.034(d).
Having reviewed the evidence in a neutral light, we cannot conclude that
the disputed evidence, including P.O.C.’s testimony that he does not feel
mentally ill and that his ―fasting‖ is culturally acceptable, is so significant that the
jury could not have reasonably formed the firm conviction or belief that P.O.C. is
mentally ill and that as a result of his mental illness, he is likely to cause serious
harm to himself. See C.H., 89 S.W.3d at 25, 27–29; E.E., 224 S.W.3d at 795
(holding evidence factually sufficient to support findings that proposed patient
was mentally ill and that as a result of the mental illness was likely to cause
serious harm to herself by fasting).5 We overrule the portion of P.O.C.’s sole
5
Because we have held the evidence factually sufficient to support the
jury’s finding under 574.034(a)(2)(A) and because only one subparagraph under
section 574.034(a)(2) is needed to support a temporary commitment, see Tex.
Health & Safety Code Ann. § 574.034(a); Mezick, 920 S.W.2d at 430, we need
not determine whether the evidence is also factually sufficient to support the
jury’s finding under section 574.034(a)(2)(C). See Tex. R. App. P. 47.1 (stating
that appellate court need only address every issue necessary to final disposition
of appeal).
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issue challenging the factual sufficiency of the evidence to support the judgment
committing him to NTSH for temporary inpatient mental-health services.
IV. ORDER AUTHORIZING ADMINISTRATION OF PSYCHOACTIVE MEDICATIONS
P.O.C. requested an eleven-day extension to file his brief so that the court
reporter could prepare the supplemental record of the subsequent hearing
concerning the psychoactive medication order. P.O.C.’s sole issue challenges
the factual sufficiency of the evidence to support the trial court’s findings in
―ordering involuntary commitment to North Texas State Hospital of 90-days with
medication.‖ But P.O.C.’s brief does not set forth any argument or analysis
challenging the psychoactive medication order. Therefore, to the extent that
P.O.C.’s sole issue may be construed as including a challenge to the factual
sufficiency of the evidence to support the psychoactive medication order, we
overrule this contention as inadequately briefed. See Tex. R. App. P. 38.1;
Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994).
V. CONCLUSION
Having overruled P.O.C.’s sole issue, we affirm the trial court’s judgment
committing him to NTSH for inpatient mental-health services and, to the extent
that it is before us, the order to administer psychoactive medication.
PER CURIAM
PANEL: WALKER, GARDNER, and MCCOY, JJ.
DELIVERED: October 3, 2013
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