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State Best Interest and Protection of K.S.

Court of Appeals of Texas, Fourteenth District

June 25, 2019


          On Appeal from Probate Court No. 3 Harris County, Texas Trial Court Cause No. I253315

          Panel consists of Justices Wise, Jewell and Poissant.



         Appellant, K.S., appeals an order for temporary inpatient mental health services and an order authorizing administration of psychoactive medication. See Tex. Health & Safety Code §§ 574.034; 574.106(a)(1). Appellant contends the evidence is legally and factually insufficient to support both orders.[1] We affirm.

         Factual and Procedural Background

         Appellant's records reflect this proceeding arises from appellant's second admission to Harris County Psychiatric Center ("HCPC"). Following appellant's release after his first admission to HCPC, appellant was not compliant with his aftercare treatment.

         Appellant's is a 30-year-old male from Nepal. He attended college in the United States and graduated with a degree in engineering. Appellant was working as a design engineer until the company told him "to take time off." Prior to that, appellant had been continuously and successfully employed. Appellant is indigent, with no income or savings or insurance benefits. Appellant has a past psychiatric history of bipolar disorder with psychotic features. He has a previous diagnosis of anxiety disorder and depression. Appellant has made grandiose statements. Appellant approached a security guard at a Walmart store and asked him to call the police. At that time, appellant was non-compliant with his medication and was noted to be internally preoccupied. Appellant's delusions consisted of being harassed by others and making nonsensical remarks.

         After the Walmart guard called the police, an officer arrived and spoke to appellant. Appellant told the HPD officer he was hearing voices and had not been taking his medication. Appellant was taken to the Neuropsychiatric Center ("NPC") in Houston, Texas. The State sought court orders to commit appellant for temporary inpatient mental health services and to administer psychoactive medication. See Tex. Health & Safety Code §§ 574.034; 574.106(a)(1). Angela Williams, on behalf of the State, filed an application for temporary or extended mental health services for appellant. According to her affidavit, appellant was off his medication and hearing voices. Williams averred that appellant was "psychotic with internal stimuli" and "unable to care for himself at this time."

         The HPD officer who took appellant to NPC filed a Notification of Emergency Detention in the probate court. In his notification of emergency detention for appellant, the officer stated that he had reason to believe appellant evidenced a substantial risk of serious harm to himself or others based upon the fact that appellant told the officer "that he was hearing voices to hurt himself. He stated has not been taking his medication. He stated he has been in and out of mental hospital." The officer had reason to believe the risk of harm was imminent unless appellant was immediately restrained and stated his belief was based upon the fact that appellant "appears to be danger to self/others." The officer reported that appellant asked a Walmart security guard for help calling the police.

         Appellant was assessed by Dr. Chris Johnson. Johnson's diagnosis of appellant was "psychosis" and he stated that as a result of appellant's mental illness, he (1) is likely to cause serious harm to himself; or (2) is suffering severe and abnormal mental, emotional, or physical distress; (3) is experiencing substantial mental or physical deterioration of his ability to function independently, except for reasons of indigence, to provide for his basic needs, including food, clothing, health or safety; and (4) is not able to make a rational and informed decision as to whether to submit to treatment. As the factual basis of his opinion, Dr. Johnson stated, "[appellant] has been off treatment. He approached a guard at Wal-Mart reporting suicidal thoughts. He appears grossly psychotic at PES/actively responding to internal stimuli." Dr. Johnson's opinion was that, based on these same facts, appellant presented a substantial risk of serious harm to himself or others if not immediately restrained. According to Dr. Johnson, emergency detention was the least restrictive means to affect the necessary restraint because of the risk of injury.

         Appellant was transferred to HCPC. Dr. Tyler Kimm examined appellant on May 1, 2018. Dr. Kimm diagnosed appellant with bipolar disorder and opined that appellant was likely to cause serious harm to himself. The factual basis of Dr. Kimm's opinion was that appellant was brought in "after allegedly making suicidal statements at a Walmart." Dr. Kimm was of the opinion that because of appellant's mental illness, he presented a substantial risk of serious harm to himself, as evidenced by the following:

"At HCPC [appellant] has been lewd, intrusive, hypersexual, [with] poor boundaries. [Appellant] has low sleep hours with only partial medication adherence. [Appellant] remains grandiose & accelerated in thought, speech."

         Dr. Kimm stated that emergency detention was the least restrictive means to effect necessary restraint. He further stated in his report that the basis for his opinion of appellant's imminent risk of harm to himself, unless restrained, was the need for patient stabilization.

         In his petition for an order to administer psychoactive medication, Dr. Kimm stated that he diagnosed appellant with bipolar disorder and determined that the proper course of treatment, in the best interest of the appellant, was the administration of certain classes of psychoactive medications. Further, Dr. Kimm believed appellant lacked capacity to make a decision regarding administration of psychoactive medication because appellant was refusing all medications but lurasidone, which despite several days of treatment failed to alleviate the symptoms of appellant's mental illness as evidenced by appellant's "continued poor boundaries, intrusiveness, grandiosity." Dr. Kimm also stated that appellant's past outpatient treatment with lurasidone failed, as evidenced by his recent re-admission.[2]Dr. Kimm's prognosis for appellant, if treated with the recommended psychoactive medications, was guarded but optimistic. Dr. Kimm opined that if the recommended psychoactive medications were not administered, the consequences to appellant would be a further decline in his ability to function. Dr. Kimm stated that he had considered prolonged hospitalization in a therapeutic environment as an alternative, but determined it would be unlikely to fully resolve appellant's current symptoms.

         At the hearing, Dr. Douglas Samuels, a licensed psychiatrist at HCPC, and Michael Helminiak, a psychiatric core nurse who treated appellant at HCPC, testified for the State. Appellant stipulated to Dr. Samuels's qualifications as an expert in the field of psychiatry.

         The probate court first heard testimony on the issue of commitment. Dr. Samuels, testified that he had the opportunity to observe appellant and appellant was cooperative. Dr. Samuels believed appellant understood the proceeding. He testified that appellant was diagnosed with bipolar disorder and agreed with the diagnosis. Dr. Samuels recognized that Dr. Kimm was operating under a diagnosis of psychotic disorder NOS, but stated appellant "has a standing diagnosis here of bipolar."

         Dr. Samuels testified that in the past appellant benefitted from medications for the symptoms of bipolar disorder. He stated that when appellant "has taken the medicine episodically here, he has benefited also," and noted that appellant was offered several medications during his current stay, but was reluctant to take them.

         Dr. Samuels testified appellant's behavior before his current treatment was "one of self-reported disorganization and hallucinations while essentially living at Wal-Mart." Although appellant had an apartment in the Galleria area, "he had really taken up residence in Wal-Mart." It was reported that appellant was using Walmart's wi-fi and facilities. Appellant felt he was being harassed by people and asked for help from security, which led to his being taken to NPC.

         Dr. Samuels testified that he checks with the staff on a daily basis and the consistent feedback is, "quote, he is awful, he is terrible." Dr. Samuels explained:

He [ appellant] has engaged in sexually provocative behavior, sexually aggressive behavior, towards females, female staff, racist behavior, very provocative behavior; a clear, consistent picture of agitation, irritation, provocative confrontation which is very consistent with the diagnosis of bipolar.

         Dr. Samuels agreed that those types of behaviors are the basis of Dr. Kimm's opinion that appellant has very poor or no boundaries with regard to staff and patients. Dr. Samuels noted that appellant "has received intramuscular injections associated with a significant show of force by both female staff members, and the use of restraints on - roughly in every other day basis in this facility." Dr. Samuels further agreed that appellant's response to the intramuscular medications indicated "they are on the right track with medication."

         Dr. Samuels' recommendation for appellant was to remain at that hospital under the care of Dr. Kimm and the treatment team, and further, if a commitment was granted, for appellant to receive a forced-medication hearing. Without further treatment and intervention, Dr. Samuels believed appellant would be likely to cause serious harm to himself or to others, either directly or indirectly as a result of his illness, "as demonstrated by the need for restraints and intramuscular medication. He believed that if appellant were released without intervention, appellant would suffer severe and abnormal mental, emotional, or physical distress; experience substantial mental or physical deterioration of his ability to function independently; would not be able to make the necessary decisions for daily living, (in particular, health and safety decisions); and would not be able to make a rational informed decision about whether to submit to outpatient care.

         On cross-examination, Dr. Samuels testified that he was under the impression appellant was eating while at the hospital. Dr. Samuels was asked whether appellant was tending to his personal hygiene. He stated:

This is the neatest and cleanest he has looked. I've seen him on the unit where he has a towel wrapped around his waist and he's wearing his jeans outside of that. It looks a little bizarre, but there's nothing that looks like he's unable to take care of himself. I have not seen that.

         Dr. Samuels testified that to his knowledge, appellant has not indicated having any thoughts of harming himself since he has been in the hospital. Appellant voluntarily took medications other than intramuscular injections. Appellant took Lithium on occasion, but stopped for approximately the three days before the hearing. Appellant took a medication that was not very helpful, and the staff wanted to change it, and appellant indicated that he wanted to take it, "but he wants to negotiate when to take it." Appellant wanted to take it at night because appellant said it made him sleepy. Dr. Samuels told appellant he "needs to follow the doctor's orders to take it when the doctor wishes for him to do that." Dr. Samuels observed appellant "at the nurse's station with the medicine, and there was a lot of bargaining and negotiating going on that was being reported." Dr. Samuels testified that "if you look at the overall picture from start to finish today, that he has taken some doses and he hasn't - if you just look at the total of all the doses, we would say it's slanted more heavily towards non-compliance."

         Michael Helminiak testified that during the past weekend appellant required emergency intramuscular injections both days, because appellant was consistently testing limits, pushing boundaries with staff, not following staff attempts at redirection, and punching and kicking at the empty air in the day area. Further, Helminiak testified:

I've also caught him a couple of times in the seclusion room where he was sleeping because he refused to sleep in the room with someone else. And he was self-talking and swinging a towel around in the air, brandishing it as a weapon like he was trying to strike something that wasn't there.
When we tried to get him to deescalate, he tried to bargain with medications, tried to put them off. And then when we told him he couldn't take them out of his scheduled times, he refused them outright.
He has a tendency to become antagonistic with the staff, making racially inappropriate remarks towards me specifically. He called me an idiot cowboy, white trash, a few other names. And becoming -- using a lot of profanity when he gets agitated and worked up as well.
He also threatened to get me fired a few times, claiming he had the ability to do that.

         Helminiak stated that appellant intermittently participated in the groups or sessions offered to him and "sometimes has been inappropriate for it." Helminiak explained:

And you have to watch him when he's in these groups because of the sexually inappropriate behavior towards the females.
He will do things like try to inappropriately touch them in their midsections when ...

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