Peo in Interest of Houle

21CA1333 Peo in Interest of Houle 11-24-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA1333

Jefferson County District Court No. 20MH69

Honorable Meegan A. Miloud, Magistrate

The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of Stephany Houle, a/k/a Angelica Penny Royal,

Respondent-Appellant.

ORDER REVERSED

Division IV

Opinion by JUDGE FREYRE

J. Jones and Tow, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced November 24, 2021

Kimberly S. Sorrells, County Attorney, Joan S. Heller, Assistant County

Attorney, Golden, Colorado, for Petitioner-Appellee

The Law Firm of John L. Rice, John L. Rice, Pueblo, Colorado, for Respondent-

Appellant

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¶ 1 Respondent, Stephany Houle, a/k/a Angelica Penny Royal,

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appeals the district court’s order authorizing the involuntary

administration of (1) the antipsychotic medications Clozaril and

Zyprexa; (2) the anti-anxiety medication Ativan; (3) the mood

stabilizers lithium and Depakote; and (4) the side effect medications

Inderal and Benadryl.

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We reverse the order authorizing the

involuntary administration of these medications.

I. Background

¶ 2 In February 2021, Ms. Penny Royal was admitted to the

Colorado Mental Health Institute at Fort Logan (CMHI-FL). Dr.

Ryan Moroze, a staff psychiatrist at CMHI-FL, began treating Ms.

Penny Royal shortly thereafter, and in July, the People petitioned

for an order authorizing the involuntary administration of

antipsychotic, anti-anxiety, mood stabilizing, and side effect

medications.

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The respondent testified that her full name is Angelica Penny-

Romanoff-Royal-Rafael. Because she does not identify as Stephany

Houle and she has declined to complete paperwork using her legal

name, we identify the respondent as Ms. Penny Royal in this

opinion. This is also consistent with the parties’ briefs.

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Ms. Penny Royal does not appeal the portion of the district court’s

order extending certification for short-term treatment.

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¶ 3 The district court held an evidentiary hearing at which Dr.

Moroze and Ms. Penny Royal testified. Dr. Moroze was qualified

and accepted as an expert witness in the field of psychiatric

medication by stipulation. At the time of the hearing, Ms. Penny

Royal agreed to take nine of the requested medications, but she

objected to Clozaril, Zyprexa, Ativan, lithium, Depakote, Inderal,

and Benadryl.

¶ 4 Dr. Moroze testified that Ms. Penny Royal suffers from Bipolar

I disorder, current episode manic, with psychotic features. Ms.

Penny Royal’s symptoms include difficulty sleeping, distractibility,

pressured speech, mood dysregulation, occasional aggressive

behavior, grandiose and paranoid delusions, and auditory

hallucinations.

¶ 5 Dr. Moroze said that while some of Ms. Penny Royal’s

symptoms have modestly improved under the voluntary medication

regimen, many persist, and the medications she currently takes

have provided limited benefit or are not available in a therapeutic

dose sufficient to promote her discharge. He characterized her as

“stably unwell,” said she remains gravely disabled, and opined that

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without the involuntary medications, her prognosis is very poor

because she would likely be subject to a long-term hospital stay.

¶ 6 Additionally, Dr. Moroze explained that if Ms. Penny Royal is

released without the involuntary medications, she will likely be re-

hospitalized as has happened several times previously. He noted

that her previous failures to medicate while in the community

resulted in lengthier hospitalizations to stabilize her and said that

the longer her delusions persist, the more difficult it becomes to

obtain a positive outcome. Dr. Moroze also testified that he has no

records of Ms. Penny Royal’s claimed side effects to the involuntary

medications. Even so, he articulated an existing plan to mitigate

and monitor potential known side effects.

¶ 7 For her part, Ms. Penny Royal denied being “very sick,” as Dr.

Moroze described. She believes her symptoms stem from

“menstrual dysphoria.” She said that she has numerous side

effects from the involuntary medications including dental issues,

mucus in her lungs, excessive drowsiness, seizures, hives, and

nightmares based on her grandpa’s death.

¶ 8 At the end of the hearing, the district court found Dr. Moroze

both credible and persuasive. As relevant here, it found, by clear

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and convincing evidence, that Ms. Penny Royal suffers from a

mental illness and is not competent to effectively participate in

treatment decisions. It concluded that treatment is necessary to

prevent significant and long-term deterioration of Ms. Penny Royal’s

condition and that Ms. Penny Royal’s reported side effects can be

managed by CMHI-FL’s medical staff. Finally, the court found the

need for treatment is sufficiently compelling and overrides any

legitimate interest Ms. Penny Royal has in refusing the medications.

And it found that a less intrusive treatment alternative is not

available. The court granted the petition and entered an order

authorizing the involuntary administration of Clozaril, Zyprexa,

Ativan, lithium, Depakote, Inderal, and Benadryl. Ms. Penny Royal

challenges the sufficiency of the evidence supporting the court’s

order.

II. Legal Authority and Standard of Review

¶ 9 An involuntarily committed person retains the right to refuse

treatment. See People v. Medina, 705 P.2d 961, 971 (Colo. 1985).

Even so, a district court may authorize the involuntary

administration of medication to a patient if the People establish

each of the following elements by clear and convincing evidence: (1)

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the patient is incompetent to effectively participate in the treatment

decision; (2) treatment by antipsychotic medication is necessary to

prevent a significant and likely long-term deterioration in the

patient’s mental condition or to prevent the likelihood of the

patient’s causing serious harm to herself or others in the

institution; (3) a less intrusive treatment alternative is not available;

and (4) the patient’s need for treatment by antipsychotic medication

is sufficiently compelling to override the patient’s bona fide and

legitimate interest in refusing treatment. Id. at 973; People in

Interest of Strodtman, 293 P.3d 123, 131 (Colo. App. 2011). A

physician’s testimony alone may constitute clear and convincing

evidence sufficient to sustain an involuntary medication order. See

People v. Pflugbeil, 834 P.2d 843, 846-47 (Colo. App. 1992).

¶ 10 When, as here, a patient challenges the sufficiency of the

evidence supporting the district court’s findings on any of these

elements, we review the court’s conclusions of law de novo and

defer to its findings of fact if supported by record evidence. People

v. Marquardt, 2016 CO 4, ¶ 8. We view the record in the light most

favorable to the People, leaving the resolution of conflicts in the

testimony and determination of the credibility of the witnesses

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solely to the province of the fact finder. People v. Fuentes, 258 P.3d

320, 326 (Colo. App. 2011).

III. Analysis

¶ 11 Ms. Penny Royal challenges the sufficiency of the evidence for

the second and third Medina factors. Concerning factor two, she

argues that the evidence does not support the district court’s

findings that involuntary medication is necessary to prevent a

significant and long-term deterioration in her mental condition.

Because we agree with this contention, we need not address her

arguments concerning factor three.

¶ 12 The second Medina factor requires the court to consider one of

two alternative factors: if the proposed treatment is necessary either

(1) “to prevent a significant and likely long-term deterioration in the

patient’s mental condition” or (2) “to prevent the likelihood of the

patient’s causing serious harm to himself or others in the

institution.” 705 P.2d at 973. Here, the district court based its

order on the deterioration alternative. This alternative considers

“the patient’s actual need for the medication.” Id. Medina directs

courts to consider “the nature and gravity of the patient’s illness,

the extent to which the medication is essential to effective

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treatment, the prognosis without the medication, and whether the

failure to medicate will be more harmful to the patient than any

risks posed by the medication.” Id. But, as our supreme court

explained in Marquardt, ¶ 23, these considerations must all be

viewed through the lens of preventing deterioration, rather than

attaining improvement, of a respondent’s condition. The

deterioration factor cannot be met simply with evidence that

medication would have a positive impact on the patient’s condition

and potentially lead to a patient’s release from confinement. Id. at

¶¶ 25-26.

¶ 13 The district court found that the requested medications “are

necessary to prevent a significant and likely long-term

deterioration” in Ms. Penny Royal’s mental condition. It considered

the holding in Marquardt, but it distinguished this case by finding

that Ms. Penny Royal was unstable. The record, however, does not

support the district court’s finding on this issue.

¶ 14 While Dr. Moroze’s petition stated that involuntary

medications were necessary to “prevent further psychiatric

decompensation,” his testimony never connected the requested

medications to the prevention of Ms. Penny Royal’s long-term

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deterioration. Indeed, when asked on cross-examination whether

Ms. Penny Royal’s current medical condition was deteriorating, Dr.

Moroze stated, “It is not deteriorating from that point; however, it’s

not improving where she has that.” (Emphasis added.)

¶ 15 Nor does the evidence demonstrate that Ms. Penny Royal’s

condition was deteriorating. Dr. Moroze testified that Ms. Penny

Royal was tolerating the voluntary medications well and that she

had experienced modest improvement under the current medication

regimen. When Ms. Penny Royal was transferred to CMHI-FL, “she

used fewer racial slurs, her speech ha[d] been slightly less

pressured and more interruptible, and she . . . needed less

redirection from staff in order to follow the policies and procedures.”

She also needed less supervision when completing hygiene

activities. Although she continues to suffer delusions and is unable

to connect the need for medication to her mental illness, Dr. Moroze

testified that Ms. Penny Royal is “stably unwell.” In light of this

testimony, Ms. Penny Royal’s history of mental illness alone is not

enough to support the district court’s finding that she is unstable.

See id. at ¶ 21 (“A patient’s history of mental illness is insufficient

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to support an assumption that his condition will deteriorate further

when he is, in fact, stable.”).

¶ 16 As in Marquardt, the record here does not show a significant

risk that Ms. Penny Royal’s condition would deteriorate without the

requested medication, but instead shows that Ms. Penny Royal

would not improve to the point of justifying discharge. Dr. Moroze

testified that the involuntary medications are necessary to improve

Ms. Penny Royal’s mental condition and to promote her discharge.

In particular, he prescribed Clozaril and Zyprexa (antipsychotics)

because Loxitane does not provide “a significant benefit in terms of

promoting her discharge and alleviating symptoms.” He also

prescribed Depakote because Ms. Penny Royal had been previously

discharged while taking Depakote in combination with Zyprexa.

¶ 17 Additionally, Ms. Penny Royal agreed to take and was taking

the mood stabilizers Lamictal and Trileptal. Dr. Moroze requested

lithium and Depakote because the Lamictal and Trileptal are “not

enough to affect in terms of decreasing her mood dysregulation and

alleviating manic symptoms.” (Emphasis added.) Finally, although

Ms. Penny Royal agreed to take and was taking Clorazepam

(Klonopin), a benzodiazepine antianxiety medication similar to

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Ativan, Dr. Moroze requested Ativan because it is available in a

shorter acting, injectable form that can be administered if Ms.

Penny Royal refuses to take Clorazepam or “in an emergent period

of mood dysregulation or aggressive behavior, which she has

demonstrated in the past.” Overall, Dr. Moroze opined that Ms.

Penny Royal’s prognosis in the absence of the involuntary

medications was “very poor” because, without significant

improvement in her delusions and symptoms, Ms. Penny Royal

would “likely be relegated to a longer stay at the hospital.”

¶ 18 The district court was “pleased to hear that there ha[d] been

some improvement,” but it ordered the involuntary medication “to

make sure [Ms. Penny Royal] can be healthy enough to discharge.”

However, the court does not have the authority “to order medication

solely to improve or expedite a patient’s participation in treatment

or likelihood of release.” People in Interest of Marquardt, 2014 COA

57, ¶ 20, aff’d, 2016 CO 4. And, “[f]orcing patients to accept

medication based on an abstract, future possibility would render

their right to bodily integrity illusory,” even where the patient has a

history of violent actions. Marquardt, 2016 CO 4, ¶¶ 19, 21.

Because insufficient evidence supports the involuntary

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administration of Depakote and lithium, insufficient evidence

necessarily exists to support the involuntary administration of

Inderal and Benadryl, medications designed to counteract the side

effects of Depakote and lithium.

¶ 19 We conclude that the district court applied an incorrect legal

standard and, therefore, erred by ordering the involuntary

administration of medication to Ms. Penny Royal. See id. at ¶¶ 25-

26.

IV. Conclusion

¶ 20 The district court’s order authorizing the involuntary

administration of Clozaril, Zyprexa, Ativan, lithium, Depakote,

Inderal, and Benadryl is reversed.

JUDGE J. JONES and JUDGE TOW concur.