                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-14-00118-CV


IN THE MATTER OF G.M.S.




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          FROM COUNTY COURT AT LAW NO. 2 OF WICHITA COUNTY

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                        MEMORANDUM OPINION1

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      Appellant G.M.S. appeals from a judgment for temporary court-ordered

inpatient mental health services. In a single issue, G.M.S. challenges the legal

and factual sufficiency of the evidence to support the trial court’s findings. We

reverse and render.




      1
       See Tex. R. App. P. 47.4.
                                  I. Background

      On April 2, 2014, the trial court found that G.M.S. was mentally ill and that

as a result of his mental illness, G.M.S. will, if not treated, continue to suffer

severe and abnormal mental, emotional, or physical distress; continue to

experience deterioration of his ability to function independently, which is

exhibited by G.M.S.’s inability, except for reasons of indigence, to provide for his

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. The

trial court ordered that G.M.S. be committed for court-ordered temporary mental

health services at the North Texas State Hospital (NTSH) in Wichita Falls, Texas,

for a period of time not to exceed ninety days. This appeal followed.

                                    II. Analysis

      In his sole issue, G.M.S. argues that the evidence is legally and factually

insufficient to support the trial court’s findings that he, as a result of his mental

illness, was experiencing a deterioration of his ability to function independently

and was unable to make a rational and informed decision whether to submit to

treatment. See Tex. Health & Safety Code Ann. § 574.034(a)(2)(C)(ii), (iii) (West

Supp. 2013).

A. Health and Safety Code Section 574.034

      A court may order a proposed patient to receive temporary inpatient

mental health services only if the factfinder concludes from clear and convincing



                                         2
evidence that the proposed patient is mentally ill and also meets at least one of

the additional criteria set forth in 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. Here, in addition to finding that

G.M.S. is mentally ill, the trial court’s order affirmatively found the State’s

allegations under subsection (2)(C) to be true.

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 additional criteria


                                           3
listed in section 574.034(a)(2).   Mezick v. State, 920 S.W.2d 427, 430 (Tex.

App.—Houston [1st Dist.] 1996, no writ). Clear and convincing evidence is that

“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).

      As a general rule, when court-ordered temporary mental health services

are sought under subsection (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 diagnosis of mental illness, without more, is not

sufficient to confine a patient for compulsory treatment. 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 expert

opinion. See id. Moreover, 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. J.M. v. State, 178 S.W.3d 185, 193 (Tex. App.—Houston [1st Dist.] 2005,

no pet.).




                                         4
C. Standards of Review

      To review the legal sufficiency of the evidence 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 factfinder 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 factfinder resolved

disputed facts in favor of its finding if a reasonable factfinder could do so, and

must disregard all evidence that a reasonable factfinder could have disbelieved

or found to be incredible. Id.

      In reviewing factual sufficiency challenges, we review all the evidence in

the record, both in support of and contrary to the trial court’s findings. In re C.H.,

89 S.W.3d 17, 27–29 (Tex. 2002). We must give due consideration to evidence

the factfinder 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.        J.F.C., 96

S.W.3d at 266. 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).



                                          5
D. Sufficiency of the Evidence

      G.M.S. contends that the State failed to show by clear and convincing

evidence that he was “experiencing substantial mental or physical deterioration

of [his] ability to function independently, which is exhibited by [his] inability . . . to

provide for [his] basic needs, including food, clothing, health, or safety” and that

he was “unable to make a rational and informed decision as to whether or not to

submit    to   treatment.”2       See     Tex.    Health    &    Safety    Code     Ann.

§ 574.034(a)(2)(C)(ii), (iii).   In order to meet its evidentiary burden under

subsection (C)(ii), the State was required to bring forth expert testimony of either

a recent overt act or a continuing pattern of behavior that tends to confirm the

deterioration of his ability to function. See id. § 574.034(d)(2); J.M., 178 S.W.3d

at 193 (“[T]he recent overt act or continuing pattern of behavior proven by the

State must relate to the criterion on which the judgment is based.”).

      1. The State’s Evidence

      Dr. Diana Isachievici, M.D., the State’s expert witness and G.M.S.’s

treating psychiatrist at NTSH, was the only witness to testify at the hearing. Dr.

Isachievici was the admitting physician on March 17, 2014, when G.M.S.

presented himself for treatment.3 At that time, G.M.S. reported that he had been


      2
       G.M.S. does not challenge the evidence supporting the trial court’s finding
that he was suffering severe and abnormal mental, emotional, or physical
distress. See Tex. Health & Safety Code Ann. § 574.034(a)(2)(C)(i).
      3
       The trial court’s file contains numerous documents detailing the events
that led to these commitment proceedings after G.M.S. presented himself for
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depressed and suicidal for several months. He also reported that he had been

isolating himself, was having difficulty sleeping, had low energy levels, had

feelings of guilt, and had lost a lot of weight. Dr. Isachievici diagnosed G.M.S.

with major depressive disorder, which she defined as a form of mental illness

characterized by depressed mood, low energy levels, difficulty sleeping, difficulty

concentrating, memory problems, poor appetite, and suicidal ideations.           Dr.

Isachievici recommended mood-stabilizer and antidepressant medications and

group and individual therapy for G.M.S.

      Dr. Isachievici testified that G.M.S. was cooperating with his treatment, but

he initially refused to take the medications. G.M.S. reluctantly began taking the

medications two days before the hearing, but he was currently compliant in

taking them.    Dr. Isachievici expected the medications to reach maximum

therapeutic levels in four to eight weeks. She stated that before he began taking

the medications, G.M.S.’s affect had improved and he denied having any

depressive symptoms or suicidal ideations. However, Dr. Isachievici thought that

G.M.S. was trying to minimize his depressive symptoms so that he could be

discharged.


treatment. Even though the trial court took judicial notice of the contents of its
own file, it could not take judicial notice of the truth of any allegations contained
in the file. See State ex rel. K.H., No. 02-02-00301-CV, 2003 WL 21404821, at
*2 (Tex. App.—Fort Worth June 19, 2003, no pet.) (mem. op.). Thus, we may
consider only the evidence presented at the hearing in our review. In re P.E.J.,
Nos. 02-13-00099-CV, 02-13-00100-CV, 2013 WL 4121081, at *3 n.3 (Tex.
App.—Fort Worth Aug. 15, 2013, no pet.) (mem. op.) (citing K.H., 2003 WL
21404821, at *2).
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      Dr. Isachievici believed G.M.S. had limited insight into his mental illness

because when G.M.S. met with Dr. Charlene Shero, M.D. to complete a second

certificate of medical examination for mental illness,4 G.M.S. told Dr. Shero that

there was no point in taking medications and that it was a person’s right to decide

whether to live or die. According to Dr. Isachievici, when she discussed these

comments with G.M.S., he denied ever speaking with Dr. Shero. Even though

G.M.S. made these statements to Dr. Shero, he denied having suicidal ideations,

which caused Dr. Isachievici to think he was minimizing his symptoms. Based on

this belief, Dr. Isachievici stated that it was a possibility that G.M.S. was likely to

cause serious harm to himself.

      When asked if G.M.S. had experienced any mental or physical

deterioration of his ability to function independently and care for himself because

of his depression, Dr. Isachievici responded: “Yes. He became very depressed

and lost several pounds before the admission.          He was also—so compliant

with—on treatment for his diabetes which, of course, contributed to some of his

mood symptoms, and he had those suicidal ideations with a plan to kill himself.”

Dr. Isachievici was also asked whether G.M.S. could make a rational and


      4
        “A hearing on an application for court-ordered mental health services may
not be held unless there are on file with the court at least two certificates of
medical examination for mental illness completed by different physicians each of
whom has examined the proposed patient during the preceding 30 days.” Tex.
Health & Safety Code Ann. § 574.009 (West 2010). Dr. Isachievici issued the
first certificate of medical examination for mental illness on March 18, 2014. Dr.
Shero issued the second on March 26, 2014.

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informed decision about whether to submit to treatment. In response, she stated:

“He’s—he signed a consent for the medications and he started taking them. It is

a like hood [sic] that he might not be compliant to the psychiatric medications,

although he said I will do whatever but—but now he signed [a] consent and he’s

taking them.” Dr. Isachievici thinks G.M.S.’s understanding as to why he needs

to take the medications for his illness is limited, but she conceded that he signed

a consent and was currently taking the medications.

      Dr. Isachievici recommended that G.M.S. be temporarily committed for a

period not to exceed ninety days, but she did not think he would be there for the

entire ninety days. She admitted that G.M.S. could continue his treatment on an

outpatient basis, but she was concerned that beginning antidepressant treatment

might cause his suicidal ideations to increase. Because G.M.S. had only been

on medication for two days, Dr. Isachievici stated that it was difficult to determine

if G.M.S.’s suicidal ideations had increased. Dr. Isachievici further stated that

she did not think outpatient treatment would be suitable for G.M.S. because she

believed that he was minimizing his symptoms so that he could be discharged

and that he did not have a stable family environment to which to return.

      Without elaboration, Dr. Isachievici testified that it would not benefit G.M.S.

to return to his family because “he doesn’t have a stable environment he can

return to. There is a lot of stress going on in the family right now.” She also

testified that there was a “higher level of dispute and distress” in G.M.S.’s family

than in a typical family. Dr. Isachievici initially planned to discharge G.M.S. to

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live with his father, but according to Dr. Isachievici, G.M.S.’s father did not want

G.M.S. living in his home because of G.M.S.’s medical problems.

      Dr. Isachievici admitted that she had planned to release G.M.S. two days

prior to the hearing, but she decided against it after discussions with G.M.S.’s

family members and because of Dr. Shero’s certificate of medical examination.

Dr. Isachievici conceded that even though G.M.S. might not be able to live with

his father, G.M.S. was able to work and provide for himself financially. She also

conceded that G.M.S. was not required to return to his family and that as an

adult, G.M.S. was responsible for finding a place to live. However, according to

Dr. Isachievici, it was NTSH’s responsibility to know where a patient is going after

discharge.

      2. Sufficiency Analysis

      G.M.S. does not challenge the trial court’s finding that he is mentally ill.

See Tex. Health & Safety Code Ann. § 574.034(a)(1). However, evidence of

G.M.S.’s mental illness alone does not establish that he was experiencing

substantial mental or physical deterioration of his ability to function independently

exhibited by his failure to provide for his basic needs. See Armstrong v. State,

190 S.W.3d 246, 252 (Tex. App.—Houston [1st Dist.] 2006, no pet.). In addition

to proof by clear and convincing evidence that the proposed patient is mentally ill,

the health and safety code requires proof by clear and convincing evidence that

the proposed patient’s mental illness caused him to experience a substantial

mental or physical deterioration in his ability to function independently, which is

                                         10
shown by the proposed patient’s inability, except for reasons of indigence, to

provide for his basic needs.          See Tex. Health & Safety Code Ann.

§ 574.034(a)(1), (a)(2)(C)(ii). “Moreover, evidence of the effects of mental illness

does not necessarily establish evidence of substantial mental or physical

deterioration unless the effects impair a person’s ability to function independently

to provide for basic needs.” Armstrong, 190 S.W.3d at 252.

      Even though G.M.S. initially refused to take his medication, his refusal to

take his medication is legally insufficient evidence of an overt act or continuing

pattern that demonstrates his distress or a deterioration of his ability to function.

See State ex rel. E.R., 287 S.W.3d 297, 306 (Tex. App.—Texarkana 2009, no

pet.) (“Evidence of refusal to take medication, alone, is not an overt act or

continuing pattern of behavior tending to confirm a proposed patient’s distress or

a deterioration of the ability to function.”). Dr. Isachievici pointed to G.M.S.’s

suicidal thoughts, depressed mood, and weight loss as evidence of deterioration

of G.M.S.’s ability to function independently and care for himself.            These

behaviors may be symptoms of mental illness, as are self-isolation, difficulty

sleeping, low energy levels, and feelings of guilt, but the State did not present

any evidence showing how these symptoms tended to confirm the deterioration

of G.M.S.’s ability to function independently as exhibited by his inability to provide

for his own needs.       There was no testimony that G.M.S.’s mental illness

prevented him from providing for his basic needs, including food, clothing, health,

or safety.

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      We note that G.M.S.’s suicidal ideations are concerning.               But Dr.

Isachievici offered no testimony regarding a specific plan to commit suicide or a

suicide threat or attempt by G.M.S. to establish a recent overt act or continuing

pattern of behavior that tended to confirm a deterioration in G.M.S.’s ability to

function. Moreover, as the trial court did not find that G.M.S. was likely to cause

harm to himself, this evidence does not support the order of commitment.

      In summary, the State failed to introduce clear and convincing evidence of

an overt act or continuing pattern of behavior that tended to confirm a

deterioration of G.M.S.’s ability to function. Therefore, viewing the evidence in

the light most favorable to the finding, we conclude that a reasonable trier of fact

could not have formed a firm belief or conviction that this finding was true. See

J.F.C., 96 S.W.3d at 266. Consequently, the evidence is legally insufficient to

support the trial court’s finding under health and safety code section

574.034(a)(2)(C)(ii). See Tex. Health & Safety Code Ann. § 574.034(a)(2)(C)(ii),

(d). Because the evidence is legally insufficient to support the trial court’s finding

under section 574.034(a)(2)(C)(ii), we need not address the remainder of

G.M.S.’s legal sufficiency complaint or his factual sufficiency complaints. See

Tex. R. App. P. 47.1. Accordingly, we sustain G.M.S.’s sole issue.




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                                III. Conclusion

      Having sustained G.M.S.’s only issue, we reverse the trial court’s judgment

and render judgment denying the State’s application for temporary court-ordered

mental health services. See Tex. R. App. P. 43.2(c).


                                                  /s/ Anne Gardner
                                                  ANNE GARDNER
                                                  JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and MCCOY, JJ.

DELIVERED: June 12, 2014




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