Opinion filed August 21, 2014




                                      In The


        Eleventh Court of Appeals
                                   __________

                                No. 11-14-00156-CV
                                    __________

        IN THE MATTER OF A.W., A PROPOSED PATIENT


                    On Appeal from the County Court at Law
                           Midland County, Texas
                       Trial Court Cause No. MI 12,509


                                   OPINION
      Appellant, A.W., a minor, appeals from the trial court’s order committing
her to the San Angelo State Supported Living Center (SSLC) to receive care,
treatment, and training for a period of twelve months. We reverse and remand.
                                  Background Facts
      A.W. is sixteen years old. Her mother is deceased. The parental rights of
her father have been terminated. The Texas Department of Family and Protective
Services (the Department) is the sole managing conservator of A.W. In May 2013,
A.W. was diagnosed with an intellectual disability that is commonly referred to as
mental retardation. A.W.’s IQ scores placed her within the mild range of mental
retardation. Upon A.W.’s diagnosis, she became qualified to receive services from
Appellee, Permian Basin Community Centers for MHMR (PBCC).
      On October 4, 2013, A.W. was committed to the San Antonio State Hospital
(SASH) to receive inpatient psychiatric treatment.         A child psychiatrist, a
psychologist, and a social worker were on A.W.’s treatment team at SASH. In
March 2014, A.W.’s treatment team at SASH determined that A.W. had reached
the maximum benefit that she could receive from treatment at SASH, that A.W. no
longer needed inpatient psychiatric hospitalization, and that A.W. had met the
criteria for discharge. The treatment team recognized that, after her discharge,
A.W. would need to receive treatment in a facility that could provide her with a
structured and controlled environment.       A.W.’s discharge from SASH was
scheduled to occur on or before April 22, 2014.
      The Department could not find a placement for A.W. The Department
requested PBCC’s help in its efforts to find a placement. On April 24, 2014, Kelly
Dirden, the continuity care intake team leader for PBCC and acting on behalf of
PBCC, filed an application requesting the long-term placement of A.W. into a
residential facility. Specifically, PBCC requested the trial court to place A.W. in
the San Angelo State Supported Living Center (SSLC).             Dirden made the
following allegations, among others, in the application:
             4. The following is a short and plain statement of the facts to
      show that commitment to [a] residential care facility is necessary and
      appropriate[:] [A.W.] is diagnosed with Mild Intellectual Disability.
      She is currently at the San Antonio State Hospital where she has been
      for the past seven months. She continues to express the desire to hurt
      herself and others, both verbally and with action. [A.W.] will threaten
      to kill herself and others when she doesn’t get her way. She will
      destroy property and exhibit such extreme behavior that she has to be
      restrained in a restraint chair. Her behavior puts herself and others at
      risk for bodily harm. The Department of Family and Protective
      Services is unable to locate placement for [A.W.] because of her

                                         2
      continued behavior both in community placement and at the San
      Antonio State Hospital.        [A.W.] cannot be adequately and
      appropriately habilitated in an available, less restrictive setting. The
      San Angelo State Supported Living Center is able to provide for
      [A.W.]’s habilitative service, care, training, and treatment that is
      appropriate for [A.W.].

            5. The following is a short and plain statement explaining the
      inappropriateness of admission to less restrictive services: [A.W.] is
      inappropriate for other less restrictive services because her behavioral
      needs exceed what can be provided for in the community. She has
      multiple failed placements in residential treatment facilities. While at
      the San Antonio State Hospital[,] [A.W.] continues to exhibit
      aggressive and violent behavior. She threatens to harm herself and
      others.

Dirden stated in the application that “a copy of the summary report and
recommendations of the diagnosis and evaluation team” was attached to the
application.
      The report that Dirden attached to the application was a PBCC Individual
Service Record that related to A.W. Dirden prepared the report on April 14, 2014,
after she talked with Nancy Jacks, a Department employee, by telephone on the
same date. Dirden wrote the following progress note in the report:
             I received a call from Nancy Jacks, CPS DD Specialist about
      [A.W.]. Nancy stated that Providence is looking for placement, but
      feel that they will not be able to locate placement before April 22,
      2014 – the end of the 30 day referral from the San Antonio State
      Hospital. I told Nancy that I would finalize the SSLC application and
      submit it on behalf of [A.W.]. Nancy agreed to the placement. We
      discussed the multiple placements that have failed for [A.W.] and that
      the best course of action would be long[-]term placement in a State
      Supported Living Center to meet her needs. We also discussed that
      [A.W.] continues to represent a substantial risk to herself by
      threatening to harm herself, making suicidal jesters [sic], i.e.
      attempting to cut her arms with a card and tying pillow cases around
      her neck. [A.W.] is risking others[’] safety by threatening and making

                                         3
        physically aggressive moves against staff when they attempt to
        redirect her. Since [A.W.] is not able to be rehabilitated in a less
        restrictive environment and the SSLC is able to provide appropriate
        habilitative care, training and treatment the IDT makes a formal
        referral and recommendation to the SSLC.

As used in Dirden’s progress note, the term “IDT” was an abbreviation for
interdisciplinary team.
        The trial court appointed counsel to represent A.W. A.W.’s counsel filed a
motion to dismiss PBCC’s application on the grounds that the trial court lacked
jurisdiction to hear the case and that PBCC’s pleadings were deficient. The trial
court held a hearing on A.W.’s motion to dismiss. A.W.’s counsel argued that
PBCC had failed to file an interdisciplinary team report that satisfied the statutory
requirements for such a report and that, therefore, the trial court should dismiss the
case.    See TEX. HEALTH & SAFETY CODE ANN. § 593.013 (West 2010)
(Requirement of Interdisciplinary Team Recommendation); id. § 593.041
(Application for Placement; Jurisdiction).      The trial court concluded that the
“report” that was attached to PBCC’s application “[was] sufficient to comply with
the requirements for the interdisciplinary team report.” The trial court denied
A.W.’s motion to dismiss.
        The trial court held an evidentiary hearing on PBCC’s application. PBCC
and A.W. presented witnesses at the hearing. After the hearing, the trial court
entered its order committing A.W. to the SSLC for a period of twelve months. The
trial court further ordered that “[A.W.] shall be retained at [SASH] until such time
as the transition is made to the [SSLC].”
        The trial court entered findings of fact and conclusions of law. The trial
court made the following findings of fact, among others:
              4. [A.W.] was diagnosed with an intellectual disability in May
        2013 and is a person with mental retardation/intellectual disability;

                                            4
       5. [A.W.] has been in eight placements in the past two years
and five of those placements were following her diagnosis of
intellectual disability[;]

      6. [A.W.] has attempted to elope from placements prior to her
placement in the San Antonio State Hospital[;]

        7. [A.W.] has engaged in self-injurious behaviors within the
past month while at the San Antonio State Hospital, specifically she
tied objects and clothing around her neck with the intent of making
herself “pass out” or “go to sleep” and intervention was required by
staff to remove the objects or clothing[;]

      8. [A.W.] has been assaultive and aggressive toward staff at San
Antonio State Hospital within the past month resulting in injury to
both herself and the staff members[;]

      9. [A.W.]’s behaviors within the past month have required
hospital staff to apply physical restraint, mechanical restraint, and
chemical (medication) restraint[;]

      10. Because of her mental retardation/intellectual disability,
[A.W.] represents a substantial risk of physical injury to herself or
other[s] and is unable to provide for and is not providing for her most
basic personal physical needs as she requires guidance and direction
for physical hygiene and care;

       11. [A.W.] cannot be adequately and appropriately habilitated
in an available, less restrictive setting, specifically in the fact that the
Department of Family and Protective Services has been unable to
locate a foster home or residential treatment facility that is willing to
accept her or able to meet her need[s] despite contacting at least 25
different facilities within the State of Texas;

      12. After being unable to locate a residential treatment facility
to meet [A.W.]’s need[s], efforts were made to identify a Home and
Community Services (HCS) program for [A.W.]. The only HCS
home that was willing to consider [A.W.] is a program called
Chrysalis. The testimony of the director of the Chrysalis program was
                                     5
      that although the program is willing to accept [A.W.], it would be
      difficult to provide services to a client that has a habit of elopement
      from prior placements or a pattern of self-injurious behaviors.
      Additionally, the HCS program is limited in its ability to provide
      restraint if the client’s behavior became out of control. The HCS staff
      could not physically confine [A.W.] in the home if she chose to leave
      and they could only provide limited assistance if she attempted to
      harm herself or others. If [A.W.]’s behaviors could not be controlled
      or she was attempting to harm herself or others, law enforcement or
      emergency medical services would likely be called[;]

             13. The testimony from the Department of Family and
      Protective Services supervisor was that the program offered by the
      Chrysalis HCS home was not adequate to protect [A.W.] from herself,
      was not adequate to protect others from [A.W.]’s aggressive behavior,
      and could result in [A.W.] being returned to a psychiatric hospital or
      entering the criminal justice system[;]

            14. The San Angelo State Supported Living Center (residential
      care facility) provides habilitative services, care, training, and
      treatment appropriate to [A.W.]’s needs and will be able to provide a
      safe and stable placement for [A.W.]. The testimony of the Permian
      Basin Community Centers (MHMR) supervisor was that the State
      Supported Living Center would provide programs to allow [A.W.] to
      develop the skills needed so that she could eventually be considered
      for placement in a less restrictive environment and that regular
      reviews are conducted to assess a client’s progress toward this goal.

The trial court made the following conclusions of law:
             1. [A.W.] is a person with mental retardation/intellectual
      disability;

             2. [A.W.] represents a substantial risk of physical impairment
      or injury to herself or other[s] and is unable to provide for and is not
      providing for her most basic personal physical needs;

            3. [A.W.] cannot be adequately and appropriately habilitated in
      an available, less restrictive setting; and


                                         6
              4. The State Supported Living Center (residential care facility)
        provides habilitative services, care, training, and treatment appropriate
        to [A.W.’s] needs.

        A.W. presents four appellate issues for review. In her first issue, A.W.
contends that the trial court lacked jurisdiction to hear PBCC’s application for
long-term commitment because no interdisciplinary team report that complied with
statutory requirements was on file at the time of the hearing. In her second issue,
A.W. contends that the trial court erred when it ordered her to be committed to the
SSLC because no competent medical or psychiatric testimony supported the
commitment. In her third issue, A.W. challenges the legal and factual sufficiency
of the evidence to support her commitment to the SSLC. Specifically, A.W.
contends that the evidence presented was legally and factually insufficient to prove
beyond a reasonable doubt that she is a substantial risk of harm to herself or others,
that she cannot provide for her most basic personal needs, or that she cannot be
habilitated in a less restrictive environment. In her fourth issue, A.W. contends
that the trial court erred when it ordered her to be committed for a period of twelve
months because no statutory provision authorizes a trial court to impose a
minimum period of time for a long-term commitment.
        Section 593.041(c) of the Health and Safety Code provides that “[t]he
county court has original jurisdiction of all judicial proceedings 1 for commitment
of a person with mental retardation to residential care facilities.” HEALTH &
SAFETY § 593.041(c). Section 593.041(d) provides as follows:
              A person may not be committed to the department for
        placement in a residential care facility under this subchapter unless a

        1
         In this case, PBCC filed its application in the County Court at Law of Midland County, which is
a statutory county court. TEX. GOV’T CODE ANN. § 25.1671 (West 2004). Statutory county courts also
have jurisdiction in these commitment proceedings. Id. § 25.003(a) (West Supp. 2013) (“A statutory
county court has jurisdiction over all causes and proceedings, civil and criminal, original and appellate,
prescribed by law for county courts.”).

                                                    7
      report by an interdisciplinary team recommending the placement has
      been completed during the six months preceding the date of the court
      hearing on the application. If the report and recommendations have
      not been completed or revised during that period, the court shall order
      the report and recommendations on receiving the application.

Id. § 593.041(d).
      PBCC contends that, in this case, the interdisciplinary team consisted of
Dirden and Jacks and that Dirden’s April 14, 2014 report satisfied the substantive
requirements for an interdisciplinary team report. A.W. contends that Dirden’s
report failed to comply with the statutory requirements for an interdisciplinary
team report because the report lacked participation by required team members and
because the report failed to satisfy the substantive requirements of a team report.
      Section 591.003(8) defines “[i]nterdisciplinary team” as “a group of mental
retardation professionals and paraprofessionals who assess the treatment, training,
and habilitation needs of a person with mental retardation and make
recommendations for services for that person.” HEALTH & SAFETY § 591.003(8)
(West Supp. 2013). A detailed definition of “interdisciplinary team” is found in
the Texas Administrative Code:
             IDT (Interdisciplinary team)--Mental retardation professionals
      and paraprofessionals and other concerned persons, as appropriate,
      who assess an individual’s treatment, training, and habilitation needs
      and make recommendations for services, including recommendations
      of whether the individual is best served in a facility or in a community
      setting.

             (A) Team membership always includes:

                          (i) the individual;

                           (ii) the individual’s [legally autho-
                    rized representative], if any; and


                                          8
                          (iii) persons specified by [a mental
                   retardation authority] or a state MR facility,
                   as appropriate, who are professionally
                   qualified and/or certified or licensed with
                   special training and experience in the
                   diagnosis, management, needs, and treat-
                   ment of individuals with mental retardation.

            (B) Other participants in IDT meetings may include:

                          (i) other concerned persons whose
                   inclusion is requested by the individual or
                   the [legally authorized representative];

                          (ii) at the discretion of the [mental
                   retardation authority] or state MR facility,
                   persons who are directly involved in the
                   delivery of mental retardation services to the
                   individual; and

                          (iii) if the individual is school eligible,
                   representatives of the appropriate school
                   district.

40 TEX. ADMIN. CODE § 2.253(20) (Tex. Dep’t of Aging and Disability Servs.).
      In this case, Dirden and Jacks were the only team members. No medical
doctors, psychiatrists, or psychologists were included as team members. Dirden’s
report did not show that either Dirden or Jacks was a mental retardation
professional or paraprofessional as defined in Section 591.003(8) of the Health and
Safety Code.    Thus, the team apparently lacked the participation of “mental
retardation professionals and paraprofessionals who assess the treatment, training,
and habilitation needs of a person with mental retardation and make
recommendations for services for that person.”              See HEALTH & SAFETY
§ 591.003(8). Dirden acknowledged in her testimony that she was not qualified to
determine whether a person’s behavior is related to a psychiatric condition or,
                                           9
instead, to an intellectual disability and that she must rely on the recommendations
of doctors on these issues. Additionally, Dirden and Jacks failed to include A.W.
as a team member. We conclude that, in this case, the “team” failed to meet the
statutory definition of an interdisciplinary team and that, therefore, Dirden’s report
did not satisfy the statutory requirements for an interdisciplinary team report.
      Section 593.013(a) provides that “[a] person may not be admitted or
committed to a residential care facility unless an interdisciplinary team
recommends that placement.”        HEALTH & SAFETY § 593.013(a).           The other
subsections in Section 593.013 establish the duties of an interdisciplinary team:
             (b) An interdisciplinary team shall:

                   (1) interview the person with mental retardation,
             the person’s parent if the person is a minor, and the
             person’s guardian;

                   (2) review the person’s:

                          (A) social and medical history;

                         (B) medical assessment, which shall
                   include an audiological, neurological, and
                   vision screening;

                          (C)    psychological      and     social
                    assessment; and

                          (D) determination         of    adaptive
                    behavior level;

                   (3) determine the person’s need for additional
             assessments, including educational and vocational
             assessments;

                   (4) obtain any additional assessment necessary to
             plan services;

                                          10
                   (5) identify the person’s habilitation and service
             preferences and needs; and

                   (6) recommend services to address the person’s
             needs that consider the person’s preferences.

            (c) The interdisciplinary team shall give the person, the
      person’s parent if the person is a minor, and the person’s guardian an
      opportunity to participate in team meetings.

             (d) The interdisciplinary team may use a previous assessment,
      social history, or other relevant record from a school district, public or
      private agency, or appropriate professional if the interdisciplinary
      team determines that the assessment, social history, or record is valid.

             (e) The interdisciplinary team shall prepare a written report of
      its findings and recommendations that is signed by each team member
      and shall promptly send a copy of the report and recommendations to
      the person, the person’s parent if the person is a minor, and the
      person’s guardian.

            (f) If the court has ordered the interdisciplinary team report and
      recommendation under Section 593.041, the team shall promptly send
      a copy of the report and recommendations to the court, the person
      with mental retardation or the person’s legal representative, the
      person’s parent if the person is a minor, and the person’s guardian.

Id. § 593.013(b)–(f).
      Dirden’s report consisted of a brief summary of her telephone call with
Jacks. The report failed to comply with the requirements of Section 593.013 in
numerous respects. For example, the report did not show that Dirden and Jacks
interviewed A.W. or that Dirden and Jacks reviewed any medical, psychological,
or social assessment. See id. § 593.013(b)(1), (2). Nor did Dirden and Jacks
identify or recommend any medical, social, psychological, behavioral, or other
habilitative services for A.W. See id. § 593.013(b)(5), (6). Dirden’s report did not

                                         11
satisfy   the   requirements    for   an    interdisciplinary   team   report   under
Sections 593.013 or 593.041(d).
      Under Section 593.041(d), the trial court could not commit A.W. to the
SSLC because a sufficient interdisciplinary team report had not been completed.
Thus, the trial court erred when it entered its order committing A.W. to the SSLC.
See id. § 593.041(d). A.W. argues that the trial court lacked jurisdiction to hear the
case in the absence of a sufficient report. Based on the statutory language in
Section 593.041(d), we do not view the issue as jurisdictional.                 Under
Section 593.041(d), when an interdisciplinary team report has not been completed,
the trial court is required to “order the report and recommendations on receiving
the application.” Id. Thus, a trial court does not lack jurisdiction in a case when
no report has been filed. Instead, the trial court must order the report to be filed
before hearing the application. A.W. challenged the sufficiency of Dirden’s report
in the trial court. Because the report was insufficient, the trial court should have
ordered PBCC to file an interdisciplinary team report and recommendations before
proceeding to a hearing on the merits of PBCC’s application.
      A.W.’s first issue is sustained to the extent that she complains that the trial
court erred when it entered its order of commitment. The remainder of A.W.’s first
issue is overruled.
      A.W. argues in her second issue that expert medical or psychiatric testimony
is required to support a trial court’s commitment order under Section 593.052 of
the Health and Safety Code. Thus, A.W. contends that, because PBCC failed to
present such testimony in this case, the evidence was legally insufficient to support
the trial court’s order.   A.W. relies on Article I, section 15-a of the Texas
Constitution to support her argument. That section provides that “[n]o person shall
be committed as a person of unsound mind except on competent medical or
psychiatric testimony.” TEX. CONST. art. I, § 15-a.
                                           12
      Subtitle D of the Health and Safety Code is referred to as the “Persons with
Mental Retardation Act.” 2 We have examined the relevant provisions of the Act,
and we conclude that the commitment of a person with mental retardation to a
residential care facility is not a commitment of a person of unsound mind for the
purpose of Article I, Section 15-a of the Texas Constitution. The term “mental
retardation” is defined as “intellectual disability.”                 HEALTH & SAFETY
§ 591.003(13). The term “intellectual disability” means “significantly subaverage
general intellectual functioning that is concurrent with deficits in adaptive behavior
and originates during the developmental period.” Id. § 591.003(7-a). Based on the
language in these definitions, we conclude that the legislature did not intend for
“mental retardation” to be considered as being “of unsound mind.” Additionally,
the legislature provided in Section 593.054 of the Act that “[a]n order for
commitment [under Section 593.052] is not an adjudication of mental
incompetency.” Id. § 593.054.
      Section 593.052 establishes the elements that an applicant must prove to
obtain an order of commitment of a person with mental retardation to a residential
care facility. Section 593.050(e) provides that the applicant has “the burden to
prove beyond a reasonable doubt that long-term placement of the proposed resident
in a residential care facility is appropriate.” Id. § 593.050(e). Of importance, the
legislature did not include a requirement in either Section 593.050 or
Section 593.052, or in any other section, that the applicant must present expert
medical or psychiatric testimony or evidence to satisfy its burden of proof. We
find it significant that, on the other hand, the legislature has expressly provided that
a trial court’s order committing a mentally ill patient for court-ordered extended
inpatient mental health services must be supported by “competent medical or
psychiatric testimony.” Id. § 574.035(g). Because the legislature has not included
      2
          See TEX. HEALTH & SAFETY CODE ANN. §§ 591.001–597.054 (West 2010 & Supp. 2013).

                                               13
a requirement of competent medical or psychiatric testimony in Section 593.050 or
Section 593.052, we conclude that expert medical or psychiatric testimony or
evidence is not required to support a trial court’s commitment order under Section
593.052. However, a lack of medical or psychiatric testimony may be crucial to
the determination of a sufficiency challenge. A.W.’s second issue is overruled.
      In her third issue, A.W. challenges the legal and factual sufficiency of the
evidence to support the trial court’s commitment order. An applicant must prove
the following elements under Section 593.052(a) to obtain a commitment order:
             (1) the proposed resident is a person with mental retardation;

             (2) evidence is presented showing that because of retardation,
      the proposed resident:

                   (A) represents a substantial risk of physical
             impairment or injury to himself or others; or

                    (B) is unable to provide for and is not providing
             for the proposed resident’s most basic personal physical
             needs;

            (3) the proposed resident cannot be adequately and
      appropriately habilitated in an available, less restrictive setting; and

             (4) the residential care facility provides habilitative services,
      care, training, and treatment appropriate to the proposed resident’s
      needs.

Id. § 593.052(a).
      The party that files the application for long-term commitment has the burden
to prove beyond a reasonable doubt each of the elements set forth in
Section 593.052(a). Pratt v. State, 907 S.W.2d 38, 45 (Tex. App.—Dallas 1995,
writ denied); see also HEALTH & SAFETY § 593.050(e). Because the long-term
commitment statute employs a beyond-a-reasonable-doubt burden of proof, under

                                          14
a legal sufficiency review, we view all of the evidence in the light most favorable
to the verdict to determine whether any rational trier of fact could find, beyond a
reasonable doubt, the elements required for commitment to a residential care
facility. See In re Commitment of Mullens, 92 S.W.3d 881, 885 (Tex. App.—
Beaumont 2002, pet. denied). Under a factual sufficiency review of the evidence
in a civil case in which the burden of proof is beyond a reasonable doubt, we weigh
the evidence to determine whether a verdict that is supported by legally sufficient
evidence nevertheless reflects a risk of injustice that would compel ordering a new
trial. In re Commitment of Day, 342 S.W.3d 193, 213 (Tex. App.—Beaumont
2011, pet. denied).
      A.W. contends that the evidence was legally and factually insufficient to
support the trial court’s conclusions (1) that she represents a substantial risk of
physical impairment or injury to herself or others (Section 593.052(a)(2)(A)),
(2) that she is unable to provide for and is not providing for her most basic
personal physical needs (Section 593.052(a)(2)(B)), and (3) that she cannot be
adequately and appropriately habilitated in an available, less restrictive setting
(Section 593.052(a)(3)).
      An applicant satisfies its burden under Section 593.052(a)(2) if it proves,
because of retardation, the proposed resident either (A) represents a substantial risk
of physical impairment or injury to herself or others or (B) is unable to provide for
and is not providing for the proposed resident’s most basic physical needs. As
shown above, the trial court made numerous findings of fact related to its finding
that A.W. represents a substantial risk of physical impairment or injury to herself
or others. In this respect, the trial court found that A.W. had engaged in self-
injurious behaviors within the past month at SASH in which she had tied objects
and clothing around her neck with the intent of making herself “pass out” or “go to
sleep.” The trial court found that it had been necessary for the staff at SASH to
                                         15
intervene to remove the objects and clothing from A.W.’s neck and that, based on
A.W.’s behavior, the SASH staff had been required to physically restrain,
mechanically restrain, and chemically restrain A.W. The trial court also found that
A.W. had been assaultive and aggressive toward the staff at SASH.
      The record contains ample evidence, including records from SASH, to
support the trial court’s findings related to A.W.’s self-injurious behavior and the
necessity to restrain A.W. as a result of her behavior. One SASH record indicated
that A.W. wrapped items around her neck on a nightly basis. Based on the
evidence, a rational trier of fact could have found beyond a reasonable doubt that
A.W. represents a substantial risk of physical impairment or injury to herself or
others. We conclude that the evidence was legally and factually sufficient to
support the trial court’s finding on this issue. Because PBCC satisfied its burden
of proof under Section 593.052(a)(2)(A), we need not determine whether the
evidence was legally and factually sufficient to support the trial court’s finding
under Section 593.052(a)(2)(B).
      A.W. also challenges the legal and factual sufficiency of the evidence to
support the trial court’s finding under Section 593.052(a)(3) that she could not be
adequately and appropriately habilitated in an available, less restrictive setting. As
the trial court found, A.W. presented evidence that a program called Chrysalis was
willing to accept A.W. Chrysalis is a home- and community-based services (HCS)
program. Dirden testified that the SSLC is an Intermediate Care Facility (ICF) and
that an ICF is considered to be more restrictive than an HCS, such as Chrysalis.
Dirden acknowledged that PBCC had the duty to find the least restrictive
placement for A.W. Dirden and Barbara McDaniel, who was a Department
employee, both testified that they believed that A.W. could not be adequately and
appropriately habilitated at Chrysalis. McDaniel testified that the Department had
been unable to locate a placement for A.W. Dirden said that she did not know
                                         16
whether A.W. could be habilitated in a place other than the SSLC.                A.W.’s
treatment team at SASH believed that the Chrysalis program would be the most
appropriate placement for A.W. Chrysalis’s director testified that he believed that
Chrysalis could meet A.W.’s needs.          PBCC did not present any medical or
psychiatric testimony that Chrysalis could not adequately and appropriately
habilitate A.W.
      The parties presented conflicting evidence on the issue of whether A.W.
could be adequately and appropriately habilitated in an available, less restrictive
setting. Based on the evidence, we conclude that a rational trier of fact could have
found beyond a reasonable doubt that A.W. cannot be adequately and appropriately
habilitated in an available, less restrictive setting. Therefore, the evidence was
legally sufficient to support the finding.       However, given the nature of the
evidence, especially the lack of expert medical or psychiatric testimony supporting
the trial court’s finding, we conclude that the finding reflects a risk of injustice that
compels ordering a new trial. Accordingly, the evidence was factually insufficient
to support the trial court’s finding.
      A.W.’s third issue is sustained to the extent that she challenges the factual
sufficiency of the evidence to support the trial court’s finding that she could not be
adequately and appropriately habilitated in an available, less restrictive setting.
Otherwise, A.W.’s third issue is overruled. Based on our rulings on A.W.’s first
and third issues, we need not address her fourth issue. See TEX. R. APP. P. 47.1.
      We reverse the trial court’s order of commitment, and we remand this cause
to the trial court for further proceedings consistent with this opinion.


August 21, 2014                                              JOHN M. BAILEY
Panel consists of: Wright, C.J.,                             JUSTICE
Willson, J., and Bailey, J.

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