Opinion
No. 05-10-00021-CV
Opinion issued March 31, 2010.
On Appeal from the County Court at Law No. 2, Hunt County, Texas, Trial Court Cause No. M-09653.
Before Justices MORRIS, FITZGERALD, and FRANCIS.
MEMORANDUM OPINION
In this appeal, we must determine whether there is clear and convincing evidence to support the trial court's order committing S.E. to the Terrell State Hospital (Terrell) for a period of time not to exceed ninety days. Because we conclude there is not, we reverse the trial court's judgment and render judgment denying the State's petition for court ordered temporary mental health services.
The State filed its application for court ordered temporary mental health services on December 1, 2009. S.E. was admitted to Terrell three days later. On December 15, 2009, the trial court held a hearing on the State's motion. Dr. John Makowski, an expert in the field of psychiatry, testified for the State. According to Makowski, S.E. was suffering from a mental illness-"schizophrenia paranoid-type." In addition, he said she was quite paranoid, suffered from auditory hallucinations, and exhibited disorganized thoughts and thought blocking. Makowski testified S.E. was not likely to cause serious harm to herself but was "[p]otentially" likely to cause harm to others. Furthermore, in his opinion, she was going "to continue to suffer a severe and abnormal mental, emotional, or physical distress." At the conclusion of the hearing, the trial court ordered temporary inpatient services for S.E. for up ninety days.
In her second issue, S.E. argues there is legally insufficient evidence to support the trial court's order. Specifically, she claims the evidence is insufficient to establish by clear and convincing evidence a recent overt act by S.E. or a continuing pattern of behavior that tended to confirm (1) she would likely cause serious harm to others or (2) her distress and deterioration of her ability to function.
Before a proposed patient can be ordered confined to a hospital on a temporary basis, the State must establish by clear and convincing evidence the proposed patient is mentally ill and at least one of three criteria set forth in the mental health statute is met. See Tex. Health Safety Code Ann. § 574.034(a) (Vernon 2003); T.G. v. State, 7 S.W.3d 248, 251 (Tex. App-Dallas 1999, no pet.). In this case, the trial court found S.E. mentally ill and found two of the three criteria existed: (1) S.E. was likely to cause serious harm to others, and (2) would, if not treated, continue to suffer severe and abnormal mental, emotional, or physical distress, would continue to experience deterioration of the 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)(2)(B), (C)(i)-(iii).
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. Addington, 588 S.W.2d 569, 570 (Tex. 1979) (per curiam); D.M. v. State, 181 S.W.3d 903, 904 (Tex. App.-Dallas 2006, no pet.). To be clear and convincing under section 574.034(a), 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 (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). Expert testimony confirming mental illness, standing alone, is insufficient to support an involuntary inpatient commitment. D.J. v. State, 59 S.W.3d 352, 355 (Tex. App.-Dallas 2001, no pet.). In reviewing the legal sufficiency of the evidence when the burden of proof is clear and convincing evidence, we examine 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 finding was true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We assume the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so, and we disregard all contrary evidence unless a reasonable factfinder could not. Id.; see also City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).
Makowski's testimony on direct examination at the hearing on the State's motion encompasses approximately six written pages of the reporter's record. In one and one-half pages, Makowski gave his opinion that S.E. suffers from paranoid schizophrenia. He arrived at this diagnosis because S.E. suffers auditory hallucinations, is "quite paranoid," and "exhibits disorganized thoughts and thought blocking." Because section 574.034 requires a finding that the proposed patient is mentally ill, this evidence was relevant and necessary. See Tex. Health Safety Code Ann. § 574.034(a)(1). It does not, however, address the other criteria necessary for court ordered temporary inpatient mental health services.
The remaining four pages contain Makowski's testimony in support of the State's motion. According to Makowski, he believed S.E. was not likely to cause serious harm to herself but was "[p]otentially" likely to cause serious harm to others. He gave his reason for that belief:
Prior to hospitalization, [S.E.] was driving with her sister and was trying to get out of the car and her sister wanted to make sure that she was buckled in. And when she — when the sister was making sure that she was buckled in, she slapped her sister.
Although she has not threatened anyone at the hospital, she still feels significantly paranoid. And I am very concerned if she feels locked in or blocked in that she will lash out.
When asked whether, in his opinion, S.E. would, if not treated, continue to suffer a severe and abnormal mental, emotional, or physical distress, Makowski responded, "Yes." When asked to elaborate, he said S.E. was unable to speak when she first came to the hospital and that according to S.E.'s mother, she had not spoken, eaten, or slept for four to five days. Nevertheless, Makowski said S.E. was able to clothe, feed, and medicate herself but was unable to make a rational and informed decision as to whether to submit to treatment. He appeared to base the latter opinion on the fact that S.E. wanted to go home and be with her children. Makowski stated S.E. had been taking her medication, was fairly cooperative, and was getting better. Makowski spoke to S.E. twice during the eleven days she had been in the hospital, each time for "about 30 minutes."
During cross-examination, Makowski conceded S.E. had not fought with anyone at the hospital and had not attacked or physically abused anyone, including visitors. When asked about the incident with S.E.'s sister, Makowski admitted he did not know when the incident happened and conceded it could have occurred a day, a week, or a month before S.E. was taken to Terrell. He also did not know the severity of the slap and whether the sister sought any medical treatment. Makowski stated S.E.'s treatment consisted mainly of medication although she was "scheduled to go to classes about taking medication and about symptom recognition and — and information about her illness." When asked whether outpatient treatment was an option, he responded, "I don't think that it would — that it would be appropriate at this time, yet." He continued, "I — due to her continued severe paranoia, I think she still needs to be in the hospital." Makowski did not elaborate on why outpatient treatment was not appropriate or why he believed she needed to be hospitalized. According to Makowski, S.E.'s medications were in pill form; they are handed to her, and she takes them.
S.E. testified she knew she had an illness and had to treat it. She stated she was ready to go home and be with her kids. If released, she would live with her mother. She did not believe she would harm her mother, her children, or anyone else if released.
Although this evidence establishes S.E. suffers from an illness, likely a form of schizophrenia, it does not establish S.E. was likely to cause serious harm to others. See Tex. Health Safety Code Ann. § 574.034(a)(2)(B). The only evidence of an "overt act" was testimony that S.E. slapped her sister at some time before she was admitted at Terrell; nothing in Makowski's testimony established the slap was recent or that it or any other behavior exhibited by S.E. indicated a likelihood of serious harm to others. See Tex. Health Safety Code Ann. § 574.034(d); T.G., 7 S.W.3d at 251. After reviewing this record, we conclude the trial court could not have properly found by clear and convincing evidence that S.E. was likely to commit serious harm to others. We also conclude there was no evidence of a recent overt act or a continuing pattern of behavior that tended to confirm S.E. was likely to commit serious harm to others.
Nor does the evidence establish S.E. was (i) suffering abnormal mental, emotional, or physical distress; (ii) experiencing substantial mental or physical deterioration of her ability to function independently (which would be exhibited by S.E.'s 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. See Tex. Health Safety Code Ann. § 574.034(a)(2)(C)(i)-(iii). Makowski stated S.E. was "quite paranoid," and on one occasion, referred to "her continued severe paranoia." However, there is no evidence she suffered abnormal mental, emotional, or physical distress from the described paranoia.
We likewise conclude there is no evidence to show S.E. experienced substantial mental or physical deterioration of her ability to function independently or was unable to make a rational and informed decision as to whether to submit to treatment. "Expert opinions and recommendations must be supported by a showing of factual bases on which they are grounded." T.G., 7 S.W.3d at 251 (citing Mezick v. State, 920 S.W.2d 427, 730 (Tex. App.-Houston [1st Dist.] 1996, no writ.)). Here, Makowski did little more than testify to the conclusions required under section 574.034(a). He testified S.E. was able to clothe herself, feed herself, and take her medication, yet he answered "Yes" without further explanation when asked if she was likely to continue to experience a substantial mental or physical deterioration of her ability to function independently. While it is possible S.E. suffers abnormal distress, experiences mental or physical deterioration of her ability to function independently, or is unable to make a rational and informed decision regarding her treatment, the record before this Court presents no evidence to support these conclusions or show these statutory criteria have been met.
Under these facts and circumstances, we conclude the trial court could not have properly found by clear and convincing evidence that S.E. was in severe distress and deteriorating in her ability to function. We likewise conclude there was no evidence of a recent overt act or a continuing pattern of behavior that tended to confirm those findings.
We sustain S.E.'s second issue. In light of this, we need not address her first and third issues. Tex. R. App. P. 47.1. We reverse the trial court's judgment and render judgment denying the State's petition for court ordered temporary mental health services.