State v. K. B. ( 2023 )

No. 600 November 15, 2023 201
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
In the Matter of K. B.,
a Person Alleged to have Mental Illness.
STATE OF OREGON,
Respondent,
v.
K. B.,
Appellant.
Washington County Circuit Court
21CC07209; A177733
Thomas A. Goldman, Judge pro tempore.
Submitted September 1, 2022.
Joseph R. DeBin and Multnomah Defenders, Inc., filed
the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin
Gutman, Solicitor General, and Erica L. Herb, Assistant
Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
POWERS, J.
Affirmed.
202 State v. K. B.
POWERS, J.
In this civil commitment proceeding, appellant
seeks reversal of a judgment committing her to the Oregon
Health Authority for a period not to exceed 180 days.
Appellant does not dispute that she has a mental disorder;
rather, she argues in a single assignment of error that the
record was insufficient to conclude that she had a mental ill-
ness such that she was unable to provide for her basic needs.
See ORS 426.130(1)(a)(C) (providing the conditions under
which a court may order civil commitment of a “person with
mental illness”); ORS 426.005(1)(f)(B) (defining a “[p]erson
with mental illness” to include a person who, because of a
“mental disorder,” is “[u]nable to provide for basic personal
needs that are necessary to avoid serious physical harm in
the near future, and is not receiving such care as is neces-
sary to avoid such harm”). A person risks “serious physical
harm” if there is a “nonspeculative threat that the person’s
inability to provide for basic needs means that the person
will not safely survive without treatment.” State v. M. A.
E., 299 Or App 231, 239, 448 P3d 656 (2019). As explained
below, we conclude that there is sufficient evidence in the
record to support the trial court’s determination that appel-
lant, if released on the day of the hearing, would have pre-
sented a nonspeculative risk of serious physical harm in the
near future. Accordingly, we affirm.
Neither party has requested de novo review, and
we conclude that this is not an “exceptional” case that war-
rants de novo review. See ORAP 5.40(8)(c) (“The Court of
Appeals will exercise its discretion to try the cause anew on
the record or to make one or more factual findings anew on
the record only in exceptional cases.”). Thus, we review the
evidence in the record, as supplemented and buttressed by
permissible derivative inferences, in the light most favor-
able to the trial court’s disposition and assess whether the
record was legally sufficient to permit that outcome. State v.
S. S., 309 Or App 131, 132, 480 P3d 321 (2021). Because the
parties are familiar with the factual and procedural back-
ground, we do not set out those facts for this nonpreceden-
tial memorandum opinion.
Nonprecedential Memo Op: 329 Or App 201 (2023) 203
We have reviewed the record and conclude that
there is sufficient evidence to support the trial court’s deter-
mination that, due to appellant’s delusions and the weather
conditions at the time of the hearing, “it is not speculation
that she would not be able to seek appropriate shelter for
herself in these weather conditions. And it does create an
[imminent] threat.” Briefly stated, the record contains evi-
dence that appellant suffered from delusions that caused
her to believe that she lived in a house in Hood River with
a husband who was a doctor; however, appellant was not
married and lived in an apartment in The Dalles. On the
day of the hearing, the temperature was below freezing and
there was snow and ice on the ground. Douglas, the treat-
ing psychiatrist, testified that appellant could get hypother-
mia in a matter of hours or less if appellant were to fail
to seek shelter after her release because the weather was
“life-threateningly” cold. Douglas, based on prior interac-
tions with appellant, further testified, “And that’s what I’m
worried would be a danger to her, she would walk off into
cold snowy weather, absolutely convinced that [her imagi-
nary husband] was about to pick her up and take her to this
home that she thinks they’re going to live in, in Hood River.”
Douglas believed that appellant would not take steps to pre-
vent hypothermia because “she would think that her hus-
band, the doctor, was there. And if he wasn’t within sight,
he was going to be there in seconds. She’s expecting him to
drive up and pick her up and take her away.” Although some
of appellant’s delusions improved after taking antipsychotic
medications, on the day of the hearing she continued to have
delusions about her imaginary husband picking her up to
take her to a house in Hood River. In addition, appellant
continued to tell Douglas that upon release she would refuse
to go back to the apartment in The Dalles, claiming that the
apartment burned down because of termites.
In short, there is sufficient evidence in the record
for the trial court to have found that appellant, if released on
the day of the hearing, would have been at a nonspeculative
risk of serious physical harm in the near future. See M. A. E.,
299 Or App at 240 (recognizing that the risk of serious phys-
ical harm need not be immediate to support an involuntary
commitment; rather, it is sufficient that the person’s mental
204 State v. K. B.
disorder and the resulting lack of ability to provide for his,
her, or their basic needs puts the person at risk of such harm
in the near future).
Affirmed.