in the Best Interest of J. L. v. State

Affirmed and Memorandum Opinion filed January 12, 2006 Affirmed and Memorandum Opinion filed January 12, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-05-00360-CV NO. 14-05-00361-CV ____________ FOR THE BEST INTEREST AND PROTECTION OF J.L. ______________________________________________________________ On Appeal from the Probate Court Galveston County, Texas Trial Court Cause Nos. 2495 & 2495A ______________________________________________________________ M E M O R A N D U M   O P I N I O N In these accelerated appeals, appellant, J.L., challenges the probate court=s order of commitment for temporary inpatient mental health services and its order to administer psychoactive medication. In three issues, J.L. contends the evidence is legally or factually insufficient to support the probate court=s orders. We affirm. I. Factual and Procedural Background J.L. is a 39 year old female with a history of schizoaffective disorder of the bipolar type. She had been in and out of hospitals and had been treated with several different medications including Zoloft and Risperadal, but decided to stop taking her medications. Shortly before the proceedings the subject of this appeal, J.L. had engaged in verbal altercations with customers in the aisles of a Blockbuster video store. The authorities were called, and she was arrested and taken to the Texas City jail. From there, J.L. was taken to the emergency room at Rebecca Sealey Hospital in Galveston, Texas. On February 23, 2005, she was admitted to the hospital on a voluntary basis. At the hospital, an examination revealed that J.L. was psychotic with loud, pressured speech, and auditory hallucinations. J.L.=s status became involuntary approximately one week after she was admitted and an application for court-ordered temporary mental health services was filed. Because J.L. refused to take medications while in the hospital, an application to administer psychoactive medications was also filed. A hearing was held on March 7, 2005, on both applications. At the hearing on the application for court-ordered temporary mental health services, the State requested that the probate court order J.L. committed to the Austin State Hospital for a period not to exceed ninety days. Dr. Michael Stone, an expert witness for the State, testified that J.L.=s mental condition and recent behavior warranted involuntary commitment. He supported his conclusions with recent overt acts and continuing patterns of behavior. In an order dated March 16, 2005, the probate court found that J.L. was mentally ill and met the statutory criteria for court-ordered temporary inpatient mental health services. In its order, the probate court stated two bases for its decision: (1) that J.L. is likely to cause serious harm to herself, and (2) that J.L. is suffering severe and abnormal mental, emotional, or physical distress; is 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, is unable to make a rational and informed decision as to whether or not to submit to treatment. Based on these findings, the probate court ordered J.L. committed to the Austin State Hospital for a period not to exceed 90 days.[1] On March 7, 2005, immediately following the hearing on the temporary commitment of J.L., a hearing on court-ordered administration of psychoactive medications was held. On March 16, 2005, by separate order, the probate court ordered the administration of antipsychotics, mood stabilizers, antiolytics/sedatives/hypnotics, and antidepressants during J.L.=s temporary commitment. J.L. appeals both orders. II. Analysis In three issues, J.L. contends there is legally[2] or factually insufficient evidence to support the probate court=s order of commitment for temporary inpatient mental health services and order to administer psychoactive medication. A. Burden of Proof The trial court may order a mentally ill patient to receive court-ordered temporary inpatient mental health services only if the State proves by clear and convincing evidence: (1) the proposed patient is 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 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). A trial court must specify the criteria forming the basis for its decision to grant the State=s application. Id. ' 574.034(c) (Vernon 2003). To constitute clear and convincing evidence under ' 574.034(a) of the Mental Health Code, 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(c) (Vernon 2003). A medical expert=s diagnosis of mental illness is not alone sufficient to commit a person for compulsory treatment. K.T. v. State, 68 S.W.3d 887, 892 (Tex. App.CHouston [1st Dist.] 2002, no pet.). The State=s expert opinions and recommendations must be supported by a showing of the factual basis on which they are grounded. In re. J.S.C., 812 S.W.2d 92, 95 (Tex. App.CSan Antonio 1991, no writ). B. Standard of Review In a legal sufficiency review where the burden of proof is clear and convincing evidence, we consider all of 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 resolved disputed facts in favor of its finding if a reasonable fact finder could do so, and must disregard all evidence that a reasonable fact finder could have disbelieved or found to be incredible. Id. In reviewing factual sufficiency challenges, we review all the evidence in the record, both that in support of and contrary to the trial court=s findings. In re. C.H., 89 S.W.3d 17, 27B29 (Tex. 2002). We must give due consideration to evidence the fact finder could reasonably have found to be clear and convincing. Id. at 25. Under the clear and convincing standard this Court must determine whether the evidence is such that the trier of fact 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 trier of fact could not have reconciled that disputed evidence in favor of its finding. In re. J.F.C., 96 S.W.3d at 266. The court as the factfinder is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. In re Estate of Canales, 837 S.W.2d 662, 669 (Tex. App.CSan Antonio 1992, no writ). C. Involuntary Commitment Order Appellant maintains that she was committed for merely refusing to take her medication and being mentally ill. She argues that these reasons alone do not support an involuntary commitment because neither event standing alone constitutes overt acts and continuing patterns of behavior. We agree. See Broussard v. State, 827 S.W.2d 619, 622 (Tex. App.CCorpus Christi 1992, no writ). But, the record in this case reflects there is sufficient evidence of recent overt acts and continuing patterns of behavior that confirm the likelihood of serious harm to appellant. See Tex. Health & Safety Code Ann. ' 574.034(c) (Vernon 2003). In support of J.L.=s contention that the alleged behavior is either insufficient or no evidence of overt acts and continuing patterns of behavior supporting her commitment, she directs us to several cases. First, she refers us to Broussard, where the court held that Apotential danger@ is insufficient to support commitment. Id. at 622. In Broussard, however, the appellant had never harmed herself or others and the experts agreed it was not likely. Id. at 622. In another case, the appellant refused to take medication and ate three well balanced vegetarian meals a day out of deference to animals. In re Breeden, 4 S.W.3d 782, 788B89 (Tex. App.CSan Antonio 1999, no pet.). There, the court held that being thin but eating sufficiently was the only overt act or continuing pattern of behavior and therefore was insufficient evidence of distress or deterioration of ability to function. Id. at 790. The other cases cited by appellant are similar to these in that there are virtually no overt acts or continuing patterns of behavior indicating the mentally ill person was likely to cause harm to herself or others or to show the deterioration of her ability to function. In re Interest and Protection of C.O., 65 S.W.3d 175, 181B82 (Tex. App.CTyler 2001, no pet.) (making provocative statements and writing a letter that did not threaten harm to others is insufficient to support involuntary commitment); In re Interest and Protection of K.D.C., 78 S.W.3d 543, 551 (Tex. App.CAmarillo 2002, no pet.) (no history of harm to self or others and no overt acts or continuing patterns of behavior constituted insufficient evidence to support involuntary commitment); D.J. v. State, 59 S.W.3d 352, 357 (Tex. App.CDallas 2001, no pet.) (appellant who had no recent overt acts and who required neither physical restraint nor seclusion was not likely to cause harm to herself); T.G. v. State, 7 S.W.3d 248, 251 (Tex. App.CDallas 1999, no pet.) (a single possible incident of leaving gas burners on was not evidence of a recent overt act or of a continuing pattern of behavior). Unlike the cases cited by appellant, the record before us shows numerous overt acts and continuing patterns of behavior by J.L. that meet the statutory requirement for involuntary commitment including several altercations, assault of a police officer, possible threats to her children, overt acts at home sufficient to cause J.L.=s family to contact Adult Protective Services, and the requirement of a restraint in the hospital. At the hearing for court-ordered temporary mental health services, J.L. stipulated as to the State=s expert, Dr. Michael Stone=s qualifications in psychiatry as well as the admissibility of J.L.=s medical records from the University of Texas Medical Branch. Dr. Stone personally met with and evaluated J.L. He also reviewed her medical records. Dr. Stone diagnosed J.L. as suffering from bipolar disorder with manic episodes and psychotic features. He explained that J.L. demonstrated pressured (or rapid) speech, disorganized thoughts, and had difficulty getting all of her words out. He opined that these conditions were consistent with mania. Dr. Stone also testified that J.L. was likely to cause harm to herself and recommended that she be committed for temporary mental health services. Dr. Stone further testified that J.L. was refusing medications and was insisting on taking St. John=s Wort. He explained that St. John=s Wort is an herbal supplement that would accentuate J.L.=s mania and thus was contraindicated. By taking it, J.L. would do harm to herself. Dr. Stone then discussed J.L.=s medical records and several altercations delineated in her records. Dr. Stone supported his opinions and recommendations with recent overt acts and continuing patterns of behavior. He gave several examples from his examination of J.L. and review of her medical records. J.L.=s medical records reflect that she is confused, disorganized, and paranoid. J.L. indicated to the attending physician that people were plotting to harm her. For example, she felt that people were following her and that they altered her vehicle=s brake lines. On March 9, 2005, J.L. screamed at a male peer accusing him of coming after her. While in the hospital, J.L. stated repeatedly that she felt her family members were against her. She did not want anyone at the hospital to contact her family and did not want to return to live with her father. J.L.=s family indicated that since J.L. had stopped taking her medications, J.L. was increasingly aggressive. Thus, J.L.=s family had filed a complaint with Adult Protective Services prior to her admission to the hospital. J.L.=s medical records also reflect that she had auditory hallucinations and bizarre delusions. J.L. was monitored every ten minutes and was on assault, elopement, and suicide precautions. For example, on February 21, 2005, the attending physician noted that J.L. made veiled statements in the emergency room such as, AI=m taking my kids and me to heaven.@ Also, on March 3, 2005, the medical records contained a notation that J.L. Amakes comparison of her children being taken away to Jacob in the old Testament being [ordered] to sacrifice Isaac.@ Because of J.L.=s history of violent behavior, irritable mood, and lack of cooperation, she was determined to be at high risk for aggression and was monitored closely for escalation in her behavior. The medical records as well as Dr. Stone=s testimony document verbal altercations that occurred in the hospital. For example, on February 28, 2005, J.L. Abecame loud, argumentative, and confrontational with a male peer,@ and the hospital staff had to intervene. Several days later, on March 3, 2005, J.L. was agitated, disruptive, threatening, and speaking loudly in unintelligible speech inciting her peers to have the unit doors opened. J.L. would not listen to redirection from the hospital staff and began beating on a table, cursing and threatening the staff. The campus police were called and a chemical restraint was administered for the safety of J.L. and others. J.L. testified on her own behalf that she does not have a mental illness, but may have had one in the past. She explained that she had been hospitalized several times in the past and had taken several different medications, but they made her feel like a zombie. She wanted to take St. John=s Wort. She then held a discussion with the judge regarding taking St. John=s Wort. J.L. could have endangered herself by her recent verbal altercations in Blockbuster and at the hospital, which could have provoked other people into committing violent acts towards her. The police were sufficiently concerned about J.L.=s safety to remove her from Blockbuster. J.L.=s medical records reflect that she has a history of violent episodes when in a manic period including an assault on a police officer. ATexas law does not require relatives or physicians of the mentally ill (or the courts) to stand idly by until serious harm occurs . . . . [T]he purpose of temporary commitment is to avoid just such harm.@ In re G.H. v. State, 94 S.W.3d 115, 117 (Tex. App.CHouston [14th Dist.] 2002, no pet.). Dr. Stone=s and J.L.=s testimony along with the medical records establish a continuing pattern of behavior and recent overt acts that confirm J.L.=s likelihood of causing serious harm to herself. See id. at 115B16 (disruptive overt acts in the emergency room and at home sufficient to cause family to contact mental health deputy satisfies statutory requirement for involuntary commitment); Goldwait v. State, 961 S.W.2d 432, 435 (Tex. App.CHouston [1st Dist.] 1977, no writ) (selling belongings, sleeping in driveway one night, desiring to purchase suction device to let blood, and having people close to him fear for his well being is sufficient to involuntarily commit appellant); In the Interest of R.M., 90 S.W.3d 909, 911 (Tex. App.CSan Antonio 2002, no pet.) (leaving lit candles unattended, walking at night, riding with strangers, and being so provocative that she could provoke people into violence towards her is sufficient to warrant involuntary commitment for mental illness). After reviewing the entire record, we find that the trier of fact could have reasonably formed the firm belief or conviction of that J.L. was mentally ill and likely to cause serious harm to herself. Reviewing the same evidence in the light most favorable to the court=s finding, we conclude that a reasonable factfinder could have formed a firm belief or conviction that the State=s allegations were true. We therefore conclude that the evidence is both factually and legally sufficient to support the probate court=s findings.[3] Because only one criterion must be met under section 574.034(a)(2) to form the basis of the probate court=s order for temporary mental health services, we need not determine whether there was sufficient evidence to satisfy additional criterion under the section. In re R.M., 90 S.W.3d at 912. We affirm the involuntary commitment order. D. Order to Administer Psychoactive Medication J.L. contends that the probate court erred in ordering the administration of psychoactive medication because the court could issue an order authorizing the administration of psychoactive medication only if J.L. was under a valid order for temporary or extended mental health services under Section 574.034. See Tex. Health & Safety Code Ann. ' 574.106 (Vernon 2003). Thus, J.L. based the success of this issue solely upon the success of her involuntary commitment issue. Because we overruled her involuntary commitment issue, there is no foundation underlying her psychoactive medication issue. Accordingly, we affirm the order to administer psychoactive medication as well. Having overruled the issues raised by J.L., we affirm the probate court=s order of commitment for temporary inpatient mental health services and order to administer psychoactive medication. /s/ Eva M. Guzman Justice Judgment rendered and Memorandum Opinion filed January 12, 2006. Panel consists of Justices Fowler, Edelman, and Guzman. [1] Although the ninety-day period has expired, the mootness doctrine does not apply to appeals from involuntary commitments for temporary hospitalization such as this appeal. State v. Lodge, 608 S.W.2d 910, 912 (Tex. 1980). [2] In her third issue, J.L. contends there is no evidence to support the orders. Legally insufficient evidence is a Ano evidence@ assertion. In re. R.S.C., 921 S.W.2d 506, 511 (Tex. App.CFort Worth 1996, no writ). [3] As has been previously pointed out, A[t]he distinction between legal and factual sufficiency when the burden of proof is clear and convincing evidence may be a fine one in some cases, but there is a distinction in how the evidence is reviewed.@ In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).