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IN RE: COMMITMENT OF C.H.
This case involves an involuntary civil commitment for mental health services. C.H.'s son applied for temporary mental health services for his mother. The trial court ordered C.H. to be committed for inpatient treatment and to receive psychoactive medication. The trial court denied C.H.'s request to be present at the commitment hearing over her objection that denying this request would violate her federal and state constitutional rights to confrontation of the witnesses against her. At the hearing on the forced administration of medication, the trial court denied C.H.'s request to testify based on her right to be heard under article I, section 10 of the Texas Constitution.
C.H. now challenges the trial court's denial of these requests. She contends that the trial court violated her federal and state constitutional rights to confrontation and her right to be heard under the state constitution. See U.S. Const. amend. VI; Tex. Const. art. I, § 10. These constitutional grounds are the sole basis for her complaints. Because these constitutional rights apply only to criminal prosecutions and this case involves a civil proceeding, we find no merit in C.H.'s issues and affirm. The dissent would address whether the trial court violated C.H.'s procedural due process rights. While we agree that C.H. was entitled to procedural due process, unfortunately we cannot address this constitutional ground for reversal because C.H. did not raise a due process complaint in the trial court or on appeal.
In his application for temporary mental health services for C.H., C.H.'s son alleged, among other things, that C.H. was (1) “suffering severe and abnormal mental, emotional, or physical distress”; (2) “experiencing substantial mental or physical deterioration of [her] ability to function independently, except for reasons of indigence, to provide for [her] basic needs[,] including food, clothing, health, or safety”; and (3) “not able to make a rational and informed decision as to whether to submit to treatment.” A “Certificate of Medical Examination” signed by a physician was filed along with the application. The physician stated that C.H. “has been physically aggressive and is at risk of harming others,” “bit a constable on his hand and broke his skin,” “displays florid psychosis including delusions that impair ability to function safely,” “[b]elieves people are trying to kill her, threatening people,” and “[n]eeds inpatient stabilization.” Six days later, the physician filed a petition for a court order to administer psychoactive medication.
The trial court ordered C.H. into protective custody, set a hearing to determine whether probable cause existed for C.H.'s immediate restraint, and set a hearing on the application for mental health services and petition to administer medication. At the probable cause hearing, the trial court found there was probable cause to believe that C.H. “present[ed] a substantial risk of serious harm to [herself] or others” and that she should remain in the hospital pending the final hearing.
The trial court conducted a hearing on the application for mental health services and a hearing on the petition to administer medication on the same day, addressing mental health services first. C.H.'s attorney requested that C.H. be present. The court constable told the trial court that C.H. “was very aggressive” and had bitten one of the constables and broken his skin, and as a result, the constable was off duty to recover from his injury. The psychiatrist who was there to testify at the hearing stated, “They will not give her a roommate because of the violence.” The trial court stated that it would not be in C.H.'s best interest or the best interest of other people in the courtroom for C.H. to be present. C.H.'s attorney objected as follows: “specifically for purposes of the appeal, [C.H.] is entitled to confrontation of the witnesses against her. That is a constitutional right under both State and Federal [C]onstitutions.”
At the end of the commitment hearing, the trial court signed a judgment committing C.H. for court ordered mental health services. The court then began the hearing on the petition to administer medication. The State of Texas presented its case-in-chief and rested. At that point, C.H.'s attorney asked for C.H. to be allowed to testify under “Article I, Section 10 [of the Texas Constitution], the right to be heard.” The trial court asked if C.H. could appear by telephone and asked if she would “get violent” if “she gets frustrated or I cut her off because she's talking for 20 minutes on the same point, how will she take it? Will she throw the phone at somebody?” The psychiatrist told the trial court that C.H. did not respond to his redirection that morning or to staff redirection, which was part of the reason C.H. was not allowed to have a roommate. The trial court denied the request, stating, “I'm not too sure that giving her a hard, plastic telephone receiver, which would be in her control obviously, or putting her near a phone which is on a speaker, ․ would be consonant with safety of the people on the unit who are also there who also have rights.”
In two issues, C.H. contends the trial court erred in (1) denying her request to be present in the courtroom so that she could confront the witnesses against her based on her rights under the Sixth Amendment to the United States Constitution and article I, section 10 of the Texas Constitution, and (2) refusing to allow her to testify telephonically on the basis that she has a right to be heard under article I, section 10 of the Texas Constitution.
We review questions raising constitutional concerns de novo. State v. Hodges, 92 S.W.3d 489, 494 (Tex. 2002); In re K.C., 563 S.W.3d 391, 396 (Tex. App.—Houston [1st Dist.] 2018, no pet.). When the trial court may grant or deny relief based on its factual determinations, we apply an abuse of discretion standard of review. In re Doe, 19 S.W.3d 249, 253 (Tex. 2000); In re K.C., 563 S.W.3d at 396. In this connection, we typically apply an abuse of discretion standard of review to procedural rulings or “other trial management determinations.” In re Doe, 19 S.W.3d at 253; In re J.B., No. 01-19-00037-CV, 605 S.W.3d 650, 653 (Tex. App.—Houston [1st Dist.] Mar. 12, 2020, no pet.). We turn to C.H.'s constitutional challenges.
I. Right to Confrontation
In her first issue, C.H. asserts that the trial court erred in waiving C.H.'s appearance “over her objection.” The Sixth Amendment to the United States Constitution provides, “In all criminal prosecutions, the accused shall enjoy the right ․ to be confronted with the witnesses against him.” U.S. Const. amend. VI (emphasis added). Similarly, article I, section 10 of the Texas Constitution provides, “In all criminal prosecutions the accused ․ shall be confronted by the witnesses against him.” Tex. Const. art. I, § 10 (emphasis added). The right to confrontation includes the right to “face-to-face confrontation.” Coronado v. State, 351 S.W.3d 315, 325 (Tex. Crim. App. 2011); see also California v. Green, 399 U.S. 149, 157, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) (“[I]t is this literal right to ‘confront’ [a] witness at the time of trial that forms the core of the values furthered by the Confrontation Clause[.]”).
C.H. acknowledges that commitment proceedings are civil, but she contends that these proceedings implicate a loss of liberty and so she should be entitled to the right to confrontation. But the express language of the federal and state constitutions compels us to conclude otherwise. The right to confrontation under both the United States and Texas Constitutions is expressly limited to criminal prosecutions. In re J.B., 605 S.W.3d 650, 654 (citing Austin v. United States, 509 U.S. 602, 608, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) (“The protections provided by the Sixth Amendment are explicitly confined to criminal prosecutions.”)). Texas courts have repeatedly held that there is no constitutional right to confrontation in civil proceedings, including civil commitment proceedings. Id. (citing In re K.C., 563 S.W.3d at 397, In re S.A.G., 403 S.W.3d 907, 912 (Tex. App.—Texarkana 2013, pet. denied) (holding confrontation clause did not apply in suit affecting parent-child relationship), and Cheng v. Wang, 315 S.W.3d 668, 669-72 (Tex. App.—Dallas 2010, no pet.) (holding confrontation clause did not apply in partnership dispute)); In re Polk, 187 S.W.3d 550, 555–56 (Tex. App.—Beaumont 2006, no pet.) (holding confrontation clause did not apply in civil proceeding to commit sexually violent predator).
Involuntary mental health commitment proceedings are civil, not criminal, in nature. Campbell v. State, 85 S.W.3d 176, 180 (Tex. 2002); State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979). We cannot ignore the plain text of each constitutional provision stating that each provision applies to “criminal prosecutions.” See U.S. Const. amend. VI; Tex. Const. art. I, § 10. Thus, C.H.'s constitutional confrontation rights under the United States Constitution and the Texas Constitution do not apply in this civil commitment proceeding. See In re J.B., 605 S.W.3d 650, 653–55; In re K.C., 563 S.W.3d at 397; In re Polk, 187 S.W.3d at 555–56. We overrule C.H.'s first issue.
II. Right to Be Heard
In her second issue, C.H. contends the trial court erred in refusing to allow her to testify telephonically at the hearing on the petition to administer psychoactive medications on the basis that this refusal violated her right to be heard under article I, section 10 of the Texas Constitution. Article I, section 10 provides, “In all criminal prosecutions the accused ․ shall have the right of being heard by himself or counsel, or both.” Tex. Const. art. I, § 10 (emphasis added). So, by its express terms, the right to be heard articulated in article I, section 10 applies only to “criminal prosecutions.” In re J.B., 605 S.W.3d 650, 654–55.
A hearing on a petition for an order to administer psychoactive medications—is a civil proceeding, not a criminal prosecution. In re J.B., 605 S.W.3d 650, 653–55; In re K.C., 563 S.W.3d at 397. We cannot equate a petition to administer psychoactive medications with a criminal prosecution. See Addington v. Texas, 441 U.S. 418, 428, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) (holding civil commitment proceedings are not punitive and cannot be equated to criminal prosecutions). We cannot ignore article I, section 10's plain text stating that the provision applies to “criminal prosecutions.” See Tex. Const. art. I, § 10. C.H.'s right to be heard under article I, section 10 of the Texas Constitution does not apply to the hearing on the petition to administer psychoactive medications. See In re J.B., 605 S.W.3d 650, 654–55; In re K.C., 563 S.W.3d at 397. C.H. did not have a right under article I, section 10 of the Texas Constitution allowing her to be heard telephonically at the hearing on the petition. See In re J.B., 605 S.W.3d 650, 654–55; In re K.C., 563 S.W.3d at 397. We overrule C.H.'s second issue.
III. Due Process
The dissenting justice would reverse the trial court's judgment in each appeal based on her conclusion that the trial court violated C.H.'s procedural due process rights when the trial court did not make accommodations to allow C.H. to appear or to testify by phone. C.H.'s attorney did not object on this basis in the trial court. He objected on the following grounds: “she is entitled to confrontation of the witnesses against her. That is a constitutional right under both State and Federal constitutions, and that is what we are dealing with right now.” During the second hearing, C.H.'s attorney requested that C.H. be brought down to testify based on “Article I, Section 10, the right to be heard.” He further stated, “We are requesting that she be present for the hearing.” The trial court responded, “I can't redo the hearing.” After commenting that it might not be safe for C.H. to appear by telephone and noting, “If the Court of Appeals wants to overturn it, they can go for it,” the trial court denied the request.
C.H. never mentioned due process in the trial court or complained of any due process violation. C.H. did not preserve error in the trial court as to any alleged due process violation. See In re L.M.I., 119 S.W.3d 707, 710–11 (Tex. 2003) (addressing failure to preserve error as to alleged due-process violation); In re J.B., 605 S.W.3d 650, 655–56 (addressing failure to preserve error as to alleged right to be present at hearing on petition to administer psychoactive medication). On appeal, similarly, C.H. has not asserted or briefed any alleged due process violation. The term “due process” does not appear in C.H.'s appellate briefing. Instead, C.H. states in her appellate brief that “[t]he rights claimed by [C.H.] are the Sixth Amendment to the United States Constitution and Article One[,] Section Ten of the State Constitution, that provides the right to face one's accusers.”
The dissent relies on a recent opinion issued by this court to support the proposition that we can address due process for the first time on appeal. See In re L.N.C., 573 S.W.3d 309 (Tex. App.—Houston [14th Dist.] 2019, pet. denied). In that case, the appellant argued on appeal that his right to due process was violated. Id. at 319. The majority in that case did not address whether the appellant raised his due process complaint in the trial court or for the first time on appeal. See id. at 320–24.
Here, C.H. does not raise due process in her appellate briefing. Likewise, her counsel did not object in the trial court on the basis that her right to procedural due process was violated. See In re L.M.I., 119 S.W.3d at 710–11 (holding party asserting due process violation complaint was required to preserve error in the trial court); Levy v. CACH, L.L.C., No. 14-12-00905-CV, 2013 WL 6237273, at *4 (Tex. App.—Houston [14th Dist.] Dec. 3, 2013, pet. denied) (rejecting appellant's complaint that the trial court violated his due-process rights because he did not preserve error in the trial court) (mem. op.). Nothing in this record leads us to believe that the issue of due process is before this court.
The dissent would hold that C.H.'s appellate issues “are broad enough to encompass the issue as was counsel's objection below on the right to be present.” We do not agree that C.H.'s articulation of the issues on appeal is broad enough to encompass a due process challenge. We cannot reverse a case based on unassigned error. See Pat Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998); see also El Paso Healthcare Sys., Ltd. v. Murphy, 518 S.W.3d 412, 420 (Tex. 2017). A party's brief must contain a succinct, clear, and accurate statement of the argument in the argument portion of the brief, and the parties must provide a discussion of the facts and the authorities relied upon as may be requisite to maintain the issue. Tex. R. App. P. 38.1(i); see also Karaali v. ExxonMobil Corp., No. 14-16-00118-CV, 2017 WL 1334589, at *1 (Tex. App.—Houston [14th Dist.] Apr. 11, 2017, no pet.) (mem. op.); Lakeside Vill. Homeowners Ass'n v. Belanger, 545 S.W.3d 15, 44 (Tex. App.—El Paso 2017, pet. denied); Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex. App.—Houston [1st Dist.] 2002, pet. denied); Franklin v. Enserch, Inc., 961 S.W.2d 704, 711 (Tex. App.—Amarillo, 1998, no pet.). A broad statement of the issues does not raise an issue on appeal that is not addressed in the body of the brief. See Karaali, 2017 WL 1334589, at *1. C.H. does not discuss due process on appeal, she does not cite the due process clauses of the federal or state constitutions, and her arguments are specifically tied to the rights to confront witnesses and to be heard under the Sixth Amendment and article I, section 10 of the Texas Constitution.
We agree that involuntary civil commitment proceedings implicate liberty interests protected by federal and state due process. See U.S. Const. amend. XIV; Tex. Const. art. I, § 19. But on this record and these briefs, no issue of due process is before us. We affirm the trial court's commitment judgment and order for C.H. to receive psychoactive medication.
C.H. was entitled to procedural due process in these hearings. She did not receive it. Her attorney objected in the trial court that C.H. wanted to be present and wanted to testify. The trial court refused to make any accommodations to allow her to view the proceedings remotely or to testify remotely. In doing so, the trial court erred.
A. Procedural Due Process is Required
The majority correctly states that these two proceedings, involuntary commitment and forced medication, are civil and not criminal proceedings. However, that does not end the constitutional inquiry. An involuntary civil commitment implicates a liberty interest that is protected by the due process clause of our state and federal constitutions. See Vitek v. Jones, 445 U.S. 480, 492–93, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980); In re T.B., 594 S.W.3d 773, 776 (Tex. App.—Waco 2019, no pet.); U.S. Const. amend. XIV; Tex. Const. art. I, § 19.
Generally, procedural due process requires a person to be present with counsel, have an opportunity to be heard, be confronted with witnesses against her, have the right to cross-examine witnesses and to offer evidence of her own. In re T.B., 594 S.W.3d at 777. But the due process right of a party to be present at trial is not absolute. In re M-I L.L.C., 505 S.W.3d 569, 576 (Tex. 2016) (orig. proceeding).
What process is due depends on a consideration of three factors: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. U.S. Gov't v. Marks, 949 S.W.2d 320, 326 (Tex. 1997).
B. C.H. Did Not Receive Procedural Due Process
Involuntary commitment and forced medication affect liberty interests. The Mental Health Code recognizes that a person has the right to counsel and the right to be present at these hearings. See Tex. Health & Safety Code §§ 574.031, 574.105. Counsel for C.H. met with her before trial and told the trial court that C.H. wanted to be present and testify: “I am ready, but I would request that my client be present․ I spoke with her about 30 minutes ago. She requested the opportunity to be here.” The attorney representing the State of Texas informed the court that the bailiffs would not bring C.H. to court because she recently bit a bailiff on the hand and broke through the skin. The bailiff recounted the situation and then said to the court, “It's up to you.” Dr. Samuels reported that “they will not give her a roommate because of the violence.”1 The trial court then said it is not in the best interests of the people in the courtroom to bring her to trial.
Counsel for C.H. responded, “Specifically for purposes of the appeal, she is entitled to confrontation of the witnesses against her. That is a constitutional right under both State and Federal constitutions.” Counsel for the State of Texas said “the appellate court didn't feel that way when they just ruled against you,” probably referring to the First Court of Appeals opinion of In re K.C., 563 S.W.3d 391, 396 (Tex. App.—Houston [1st Dist.] 2018, no pet.), which had just issued. In re K.C. did not address procedural due process. The trial court proceeded to trial and did not make any accommodations for C.H. to watch the trial remotely. After reviewing affidavit evidence, the trial court signed the judgment of commitment and proceeded to the forced medication hearing.
After the State presented evidence, counsel for C.H. again asked for his client to be brought down to testify.2 “That would be Article 1, section 10, the right to be heard.” The court briefly discussed allowing her to testify by phone.
The Court: You think she can behave on the phone, or will she -- I mean, will she get violent? I mean, we're here. But if she gets frustrated or I cut her off because she's talking for 20 minutes on the same point, how will she take it? Will she throw the phone at somebody?
Defense: I don't think so.
The Court: Well, geez, you're not up on the unit.
Dr. Samuels, what do you think?
Samuels: She did not respond to any of my redirection this morning.
The Court: Okay.
Samuels: She does not respond to staff redirection. That's part of the reason why she's not allowed to have a roommate.
The Court: [Defense counsel], I'm going to deny it, and it's purely -- I'm not too sure that giving her a hard, plastic telephone receiver, which would be in her control obviously, or putting her near a phone which is on a speaker, I'm not sure that that would be consonant with safety of the people on the unit who are also there who also have rights. If the Court of Appeals wants to overturn it, they can go for it.
Simply put, this court should accept the trial court's invitation and reverse this case. There was simply no evidence presented—other than the trial court's own suppositions—that C.H. could not be trusted to testify by phone in her own trial. Nor was there any attempt made to allow C.H. to view the trial by computer—which we have discovered in 2020—is not difficult or expensive to accomplish.3
C.H. had a right to be present and to testify—at least in a remote manner. Because the trial court failed to make any effort to accommodate those rights, the case should be reversed.
C. Preservation of Error
The majority faults C.H. because her counsel did not invoke the due process clause in his objections before the trial court and in his brief on appeal. The majority thus contends that C.H. has waived the issue. However, C.H.'s points of error on appeal are broad enough to encompass the issue as was counsel's objection below on the right to be present.4 Our own court has reversed a parental termination case because a parent's due process right to appear for a termination hearing was violated. See In re L.N.C., 573 S.W.3d 309, 322 (Tex. App.—Houston [14th Dist.] 2019, pet. denied). I dissented in that case, arguing that error was not preserved. Not once in the trial court did counsel in that case argue that the client had a constitutional right to appear for trial, yet the Supreme Court denied the petition for review. In the present case, however, counsel twice argued that C.H. had a constitutional right to be present and to testify.
The trial judge knew that C.H. was making a constitutional argument and invited us to reverse him. We should accept that invitation. Because the majority does not, I respectfully dissent.
1. The antecedent of “they” is unclear from the record.
2. C.H. was on the third floor of the building where the court held the trial.
3. Zoom was founded in 2011 and has been used by courts all over Texas to hold hearings and trials in 2020.
4. C.H.'s two points are: The Trial Court erred in waiving the appearance of Appellant over her objection. The Trial Court erred in refusing to allow Appellant to testify telephonically at her forced medication hearing.
Frances Bourliot, Justice
(Christopher, J., dissenting).
Response sent, thank you
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Docket No: NO. 14-19-00040-CV, NO. 14-19-00041-CV
Decided: July 30, 2020
Court: Court of Appeals of Texas, Houston (14th Dist.).
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