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In re Best Interest and Protection of J.A.

Court of Appeals of Texas, Fifth District, Dallas

August 28, 2019

IN THE BEST INTEREST AND PROTECTION OF J.A., A MINOR CHILD

          On Appeal from the County Court at Law No. 2 Kaufman County, Texas Trial Court Cause No. 19M-091

          Before Chief Justice Burns and Justices Molberg and Nowell

          MEMORANDUM OPINION

          ROBERT D. BURNS, III CHIEF JUSTICE.

         J.A. appeals from a judgment committing her to temporary inpatient mental health services. Appellant contends her medical records should not have been included in the clerk's record, the health and safety code prohibits the involuntary commitment of minors, she received ineffective assistance of counsel, a recommendation for treatment was not filed, the two medical certificates on file did not comply with the requirements of the health and safety code, and the trial court's findings are not supported by legally and factually sufficient evidence. We reverse and render.

         Background

         Appellant is a fourteen-year-old female with a history of psychiatric issues. During a Child Protective Services case, Lou Autrey, appellant's great aunt, was appointed as appellant's sole managing conservator. On June 25, 2017, Autry voluntarily admitted appellant to Terrell State Hospital (TSH). Appellant was discharged from TSH briefly, but then Autry readmitted her on August 11, 2018 after she was aggressive toward Autry and appellant's sister. During the brief time she was home, appellant was allegedly sexually assaulted by her brother. During her second stay at TSH, her treating psychiatrist, Dr. Poul Sobin, diagnosed her with disruptive mood dysregulation disorder (DMDD). On September 10, 2018, TSH discharged appellant and she was admitted to the Waco Center for Youth. Appellant was transferred back to TSH on January 11, 2019, after she allegedly assaulted a staff member at the Waco center. An agreed order was entered to administer psychoactive medication during her commitment.

         On April 29, 2019, the current application for court-ordered temporary mental health services was filed seeking to commit appellant to TSH for ninety days. The application was supported by the medical certificates of appellant's new treating psychiatrist, Dr. Mohammed El-Awady, and Dr. Sobin. Autrey supported the treatment plan that involved appellant's involuntary admission.

         On May 2, 2019, the trial court conducted a commitment hearing. El-Awady testified as the State's sole witness. El-Awady testified appellant was suffering from DMDD and has additional symptoms indicative of bipolar disorder, post-traumatic stress disorder, and conduct disorder. He testified DMDD causes appellant to have "mood swings, anger outbursts, usually out of proportion to any provocative kind of indictment. She continues to have anger mood in between these episodes. It's been chronic. It's been lasting for at least years." El-Awady testified about three specific incidents in which appellant had engaged in disruptive behavior. El-Awady's testimony would establish the necessary predicate for involuntary admission.

         The defense called Sobin, social worker Shannon Jordan, Autrey, and appellant to testify. Sobin testified appellant's incidents were mostly oppositional rather than violent and opined appellant was not a suicide risk. Jordan testified appellant has periods where she does well and episodes where she becomes aggressive to others or to objects. Jordan testified there had been discussions in appellant's previous stint in TSH about ways to do less restrictive treatment for appellant in the Waco Center for Youth, but current discussions were only about treatment in TSH.

         Autrey testified she is the conservator who has the right to make medical and psychological decisions for appellant. She testified appellant has been "in and out" of TSH since June 2017 and she readmitted appellant in August 2018 because appellant had been aggressive toward her and toward appellant's sister. Autrey's understanding was that appellant was going to be sent to a treatment program in Wichita Falls and that "Wichita Falls" did not take patients who had been voluntarily admitted. Autrey denied that appellant had a lesser restrictive option or that appellant could receive care on an outpatient basis, explaining appellant had been placed at Andrew's Center in Canton but she had refused to participate in the program or follow instructions. Eventually, Autrey wants appellant to be able to rejoin the family. Appellant took the stand briefly, but did not testify after the trial court refused to hear testimony about the incident with her brother.

         After hearing the testimony, the trial court ordered appellant be committed for inpatient treatment at TSH for ninety days. As part of its order, the trial court found appellant is mentally ill and as a result of her mental illness, appellant is likely to cause serious harm to herself and to others; she will, if not treated, continue to suffer severe and abnormal mental, emotional, or physical distress; she will continue to experience deterioration of her ability to function independently; and she is unable to make a rational and informed decision as to whether or not to submit to treatment. On June 17, 2019, while this appeal was pending, the trial court signed an order for TSH to transfer appellant to a maximum security unit at "Vernon State Hospital."[1]

         Analysis

         In her brief, appellant objects to the use of her medical records, raises five "jurisdictional and constitutional arguments," and raises four appellate issues. Because her argument that the trial court lacked jurisdiction to involuntarily commit her is conclusive, we will address that issue.

         Appellant contends the trial court lacked jurisdiction over her because the Texas Health and Safety Code prohibits the involuntary commitment of minors. Appellant contends there is no authority under chapter 572 of the code that would allow her involuntary commitment.

         Although Chapter 572 is entitled "Voluntary Mental Health Services," it provides for a mix of voluntary and involuntary admissions depending upon a person's age and who is entitled to make decisions for them. See Tex. Health & Safety Code Ann. § 572.001. Under section 572.001(a), a person sixteen years of age or older may request admission to an inpatient mental health facility. See id. § 572.001(a). For persons under eighteen years of age, however, the statute also provides for their commitment even without their consent:

The parent, managing conservator, or guardian of a person younger than 18 years of age may request the admission of the person to an inpatient mental health facility or for outpatient mental health services by filing a request with the administrator of the ...

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