Petition for Writ of Mandamus Denied and Plurality and Dissenting Opinions filed January 16, 2009.
In The
Fourteenth Court of Appeals
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NO. 14-08-00548-CV
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IN RE MICHAEL G. BROWN, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
D I S S E N T I N G O P I N I O N
Because the plurality determines that the trial court=s failure to comply with the rules of civil procedure governing a trial court=s order for a psychiatric evaluation does not constitute an abuse of discretion, I respectfully dissent.
I agree that, notwithstanding Michael=s non-suit of his claims for affirmative relief, his mental condition may remain at issue because the trial court ultimately must craft a possession-and-access order that is in the children=s best interests. But although a party=s mental condition often is at issue when a trial court must decide conservatorship matters, a psychiatric evaluation is not always necessary or justified.
Texas Rule of Civil Procedure 204.1 prescribes certain requirements and procedural safeguards which must be met for a trial court to compel a litigant to submit to the extremely invasive measure of an involuntary psychiatric evaluation. Here, the mandamus record before us is not only devoid of evidence that the trial court complied with Rule 204.1=s requirements, but establishes instead that the trial court disregarded them. Inasmuch as the trial court has no discretion to incorrectly determine or apply the law, I would conclude that the order as written presents a clear abuse of discretion for which there is no adequate remedy on appeal.[1] I therefore would grant mandamus relief.
Under our rules of civil procedure, a psychiatric evaluation may not be compelled absent good cause. Tex. R. Civ. P. 204.1(c). AGood cause@ is established if (a) the examination will produce or lead to relevant evidence, (b) there is a reasonable nexus between the conditions in controversy and the examination sought, and (c) it is not possible to obtain the information desired through less invasive means. Coates v. Whittington, 758 S.W.2d 749, 752 (Tex. 1988). Here, the trial court failed to adequately consider these factors before compelling Michael to undergo a psychiatric evaluation. To the contrary, the trial court expressly stated that, without hearing any evidence,[2] it would appoint an amicus attorney, require Michael to undergo instanter drug testing, and order him to submit to a psychiatric evaluation.[3] Michael then non-suited all of his requests for affirmative relief and stipulated to Darlina=s request for restricted access, and although the trial court was still required to determine whether such restrictions were in the children=s best interest,[4] the court=s need for information must be met through the least intrusive means.
Due consideration of less intrusive means also may affect the scope of the evaluation. APsychiatric evaluations vary according to their purpose.@ Michael J. Vergare et al., Practice Guideline for the Psychiatric Evaluation of Adults, in Practice Guidelines for the Treatment of Psychiatric Disorders, at 1, 6 (Am. Psychiatric Ass=n, Compendium 2006). Here, however, no purpose, scope, or conditions were specified in the order at issue. Cf. Tex. R. Civ. P. 204.1(d) (requiring an order for a mental examination to Aspecify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made@); Coates, 758 S.W.2d at 752. Because it contains no limitations on the scope, the examiner may probe any aspect of Michael=s thoughts, behavior, abilities, beliefs, health, or history that could fall under the rubric of a psychiatric evaluation. See generally Dana Baerger et al, Methodology for Reviewing the Reliability and Relevance of Child Custody Evaluations, 18 J. Am. Acad. Matrim. Law. 35, 50B52 (2002) (recognizing the pitfalls inherent in a general order for a psychiatric evaluation, such as the likelihood that Aevaluators will address irrelevant issues that confuse the litigation and increase the cost of the evaluation@).[5] The result is that the examiner is permitted to conduct a maximally-intrusive evaluation despite the absence of any record evidence that less-intrusive means are unavailable.
I agree that psychiatric or psychological evaluations have a place in conservatorship determinations. Indeed, a psychiatric evaluation might be a very useful tool in this case. But, it is only one of the tools available to a trial court in crafting a conservatorship order and should not be ordered without consideration of the factors and evidence justifying its use. Given the inherently invasive nature of a psychiatric evaluation, it is not within the trial court=s discretion to disregard the safeguards set forth in the Rules of Civil Procedure and in binding precedent governing its application. The requirements of Rule 204.1(c) are not satisfied by conclusory allegations in pleadings and a nineteen-month old affidavit, neither of which addressed the possibility of obtaining the relevant information through less invasive means, and the order fails to specify the conditions and scope of the evaluation as required by Rule 204.1(d). Under these circumstances, I would hold that the trial court abused its discretion in issuing this order, and given the impossibility of an adequate remedy by appeal, mandamus relief is appropriate. I therefore respectfully dissent.
/s/ Eva M. Guzman
Justice
Panel consists of Justices Frost, Seymore, and Guzman (Seymore, J., concurring without opinion) (Frost., J., plurality).
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[1] See In re Dep=t of Family & Protective Servs., 52 Tex. Sup. Ct. J. 277, 2009 WL 51579, at *3 (Tex. Jan. 9, 2009)(AIf the trial court fails to properly interpret the law or applies the law incorrectly, it abuses its discretion.@); In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (per curiam).
[2] The trial court explicitly stated at the first hearing on Darlina=s requested modification, AOkay. Well, without hearing any evidence, I=m going to appoint an Amicus to represent these children. And I=m going to order an instanter drug test of Dr. Brown. . . . I=m ordering Dr. Brown for a psychiatric eval with Dr. Buschong.@ Further, the order requires the psychiatrist to provide Aa detailed written report of his psychiatric evaluation of [Michael] setting out his findings, including the results of all tests made, diagnoses, and conclusions@ and to provide copies of the report to the court and the attorneys.
[3] The plurality incorrectly characterizes both the record and the basis for my dissent. Regarding the former, the record speaks for itself: the trial court stated that it was acting Awithout hearing any evidence@; it in fact did not hear any evidence; and the documentary evidence, i.e., the affidavit of Michael=s current wife, does not address all of the factors necessary to establish good cause. In particular, no evidence was ever offered to suggest that the evaluation ordered, without limitation as to its manner or scope, was the least intrusive means of obtaining the desired information. The plurality=s statement that the trial court did not prevent any party from presenting evidence and did not refuse to hear evidence misses the mark. In the absence of an affirmative showing of good causeCwhich requires evidence that it is not possible to obtain the information through less intrusive meansCMichael bore no evidentiary burden at all. Because there is no evidence that less intrusive means would not suffice, the record does not affirmatively show good cause. See Coates, 758 S.W.2d at 751; see also Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660B61 (Tex. 1995) (stating that pleadings generally are not evidence); McCain v. NME Hosps., Inc., 856 S.W.2d 751, 757 (Tex. App.CDallas 1993, no writ) (AMotions and arguments of counsel are not evidence.@). In the absence of such evidence, the trial court had no discretion to compel Michael to submit to a psychiatric evaluation. See id.; Tex. R. Civ. P. 204.1(c). Thus, the plurality=s observation that the trial court did not refuse to hear evidence suggests only that Darlina could have offered evidence justifying the trial court=s order despite the fact that the court already had ruled. Even assuming that such post-ruling evidence would have cured the trial court=s error, none was offered here.
[4] Although the plurality holds that Michael did not stipulate to all of the relief Darlina sought, the plurality reads the record too narrowly. Michael=s counsel stated to the trial court that Ahe knows of no other way, than to essentially come in here and fall on the proverbial sword and agree with [Darlina] in her pleading, Page 8 of 9, of her petition. . . .@ The plurality also ignores counsel=s next statement that begins, AAnd, finally, with those matters out of issue, . . .@ (emphasis added).
[5] In a detailed discussion, the plurality holds that Michael is not entitled to mandamus relief because he failed to satisfy the requirement of a Apredicate request and refusal by the trial court@ regarding his complaint that the trial court=s order fails to specify the conditions and scope of the evaluation. Ante at 13B14. First, the record reflects that the trial court was aware that Michael was complaining about the scope of the psychiatric evaluation. For example, Michael=s attorney argued to the trial court both that there was no Areasonable nexus@ between Michael=s condition and the examination sought and that it was Apossible to obtain the desired information through less invasive means than a compelled psychiatric examination.@ Although these arguments relate to a good-cause determination under subsection (c) of Rule 204.1, they also reflect a complaint about the scope of the evaluation itself. A party should not lose his right to relief due to an unduly technical application of procedural rules. Willis v. Donnelly, 199 S.W.3d 262, 270 (Tex. 2006). Further, as noted by the plurality, the requirement of a predicate request and adverse ruling is excused when such a request would have been futile. Here, the trial court made it abundantly clear that it expected Michael to comply with its verbal order, notwithstanding the fact that the order did not comply with the required procedural safeguards:
[Darlina=s Counsel]: [T]here is an order we=re requesting. We just need a start date. . . . But I was looking to be able to give the Court an idea when he might be able to begin the evaluation of Dr. Brown.
The Court: And what=s y=all=s problem with that?
[Michael=s Counsel]: Dr. Brown is not seeking visitation right now. That=s not in issue. And Dr. Brown is objecting to being ordered to go to a psychologist - -
The Court: Thank you. Denied.
. . .
The Court: I ordered this [psychiatric evaluation] over a month ago and he was supposed to have it done immediately and he has not. I would suggest you might want to tell [Michael] he shouldn=t mess around with this Court. When I give an order and I want something done, he needs to do it right away.
(emphasis added). The order Aover a month ago@ referred to by the trial court is nothing more than the verbal statement that Awithout hearing any evidence, . . . I=m ordering Dr. Brown for a psychiatric eval with Dr. Buschong.@ See supra, n.2. Thus, any further request by Michael to limit the scope of the evaluation was likely futile.