State

Opinion

                                                NO. 12-07-00029-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

THE STATE OF TEXAS     §                      APPEAL FROM THE

FOR THE BEST INTEREST          §                      COUNTY COURT OF

AND PROTECTION OF B.G.         §                      CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION

            B.G. appeals from an order of commitment for temporary inpatient mental health treatment.  After a hearing without a jury, the trial court ordered B.G. committed to Rusk State Hospital for a period not to exceed ninety days.  In five issues, B.G. asserts that the evidence is legally and factually insufficient to support the order of commitment and the trial court violated her rights to due process and equal protection.  We reverse and render.

Background

            On December 21, 2006, an application for court ordered temporary mental health services was filed requesting the court commit B.G. to Rusk State Hospital for a period not to exceed ninety days.  The application was supported by a certificate of medical examination for mental illness, prepared by a physician, Dr. Canton Cuellar, who had examined B.G. on December 19.  Dr. Cuellar diagnosed B.G. as suffering from Bipolar I disorder and dementia.  He found that B.G. is mentally ill, likely to cause serious harm to herself, and is suffering severe and abnormal mental, emotional, or physical distress, is experiencing substantial mental or physical deterioration of her ability to function independently, and is unable to make a rational and informed decision as to whether to submit to treatment.

            Dr. Cuellar reached these conclusions because B.G. was loud and verbally abusive.  He reported that she was out of touch with reality, hostile, unable to take care of herself, and had a history of assaulting caregivers.  For those same reasons, he also found that B.G. presents a substantial risk of serious harm to herself or others if not immediately restrained, which is demonstrated by her behavior.

            On December 29, 2006, B.G. was examined by Dr. Sethurama Srinivasan who then also prepared a certificate of medical examination for mental illness.  Dr. Srinivasan diagnosed B.G. with schizophrenia.  He indicated that B.G. is mentally ill and is suffering severe and abnormal mental, emotional, or physical distress, is experiencing substantial mental or physical deterioration of her ability to function independently, and is unable to make a rational and informed decision as to whether to submit to treatment.  The doctor came to these conclusions because B.G. was confused, delusional, agitated, and disoriented and her mood was labile. 

            Dr. Cuellar testified at the trial, first restating his diagnosis that B.G. is suffering from Bipolar I disorder and dementia, not otherwise specified.  He explained that B.G. has been deteriorating for several years.  She would fight with her caregivers and insists on living in a house that is uninhabitable.  B.G. refuses to move to Colorado where her guardian has arranged for her to be cared for by local mental health authorities.  Her contact with reality is poor and she gets easily agitated.  She is not able to communicate effectively for basic needs because of her aggression.  Her prior stay in a nursing home was a “disaster.”  Her behaviors are caused by a combination of her mental illness and advancing age.  Dr. Cuellar’s diagnosis was based on personal examination, a review of the medical history, and on reasonable medical probabilities.  Rusk State Hospital is the least restrictive environment appropriate for B.G.

            On cross examination, Dr. Cuellar explained that the guardian in Colorado is B.G.’s daughter and that there are no family members in Houston, where B.G. lives.  Through a social worker, they checked out the house she lives in and found it to be uninhabitable and condemnable.  Dr. Cuellar testified that he did not think B.G. is capable of cleaning her house or paying her bills due to her mental condition.  He explained that her contact with reality is very poor, as though she is living in a dream.

            The trial court found that B.G. is mentally ill and that, as a result of her mental illness, she is likely to cause serious harm to herself and is suffering severe and abnormal mental, emotional, or physical distress, is experiencing substantial mental or physical deterioration of her ability to function independently, and is unable to make a rational and informed decision as to whether to submit to treatment.  In accordance with those findings, the trial court entered an order requiring B.G. to submit to temporary inpatient mental health services for a period not to exceed ninety days.

Commitment Order

            In her first issue, B.G. asserts the evidence is neither legally nor factually sufficient to support the order of commitment.  She contends that the evidence does not show an overt act or continuing pattern of behavior tending to confirm that she is likely to harm herself or is unable to care for herself.

Standard of Review

            In a legal sufficiency review where the burden of proof is clear and convincing evidence, the reviewing court must 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 finding was true.  In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).  The reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so.  Id.  A court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible.  Id.

Applicable Law

            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 the 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).

Discussion

            The State provided expert testimony explaining that B.G. is mentally ill and describing her behavior.  The evidence shows that B.G. was loud, verbally abusive, hostile, agitated, exhibited an unstable mood, and had a history of assaulting caregivers.  She could not effectively communicate her needs because of her aggression.  Further, she was confused, delusional, disoriented, and out of touch with reality to the point that she could not take care of herself.  Her medical history showed that her mental condition has been deteriorating for years.

            The doctor spoke in generalities to describe a woman who apparently is unable to care for herself.  However, Texas law requires more to deprive an individual of her liberty.  To satisfy the statute, the expert opinion must be supported by a factual basis.  See K.T. v. State, 68 S.W.3d 887, 893-94 (Tex. App.–Houston [1st Dist.] 2002, no pet.).  Evidence that merely reflects a patient’s mental illness and need for hospitalization is not enough to meet the State’s burden of proof.  Id. at 892.  This record contains no evidence of an overt act or a specific, factually based, continuing pattern of behavior as required by Texas Health and Safety Code Section 574.034(d).  See House v. State, 222 S.W.3d 497 (Tex. App.–Houston [14th Dist.] 2007, pet. filed) (Appellant, tried for the 1996 murder of his mother, had been found not guilty by reason of insanity and committed to a state hospital.  A divided panel of the Fourteenth Court of Appeals reluctantly held that the record did not present evidence of an identifiable overt act or continuing pattern of behavior tending to show Appellant will cause harm to himself or others, allowing him to be eligible for outpatient treatment.).

            We conclude there is no evidence of an overt act or continuing pattern of behavior that tends to confirm the deterioration of B.G.’s ability to function or that she is likely to cause serious harm to herself.  The evidence presented does not satisfy the statutory requirement for clear and convincing evidence in support of the order for temporary inpatient mental health services because no details of specific acts or behavior patterns were described.  See Tex. Health & Safety Code Ann. § 574.034(d).  Therefore, although B.G. is mentally ill, the evidence is nonetheless legally insufficient to support the trial court’s order.  See In re J.F.C., 96 S.W.3d at 266.  We sustain B.G.’s first issue to the extent she complains of the legal sufficiency of the evidence.  We need not reach her factual sufficiency complaint.  See Tex. R. App. P. 47.1.

Conclusion

            The evidence is legally insufficient to support the trial court’s order of commitment for temporary inpatient mental health services.  We need not reach B.G.’s remaining issues.  See Tex. R. App. P. 47.1.

            We reverse the trial court’s order of commitment for temporary inpatient mental health services.  We render judgment denying the State’s application for court ordered temporary mental health services.

                                                                                                    SAM GRIFFITH   

                                                                                                               Justice

Opinion delivered August 30, 2007.

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

(PUBLISH)