State v. M. T. , 308 Or. App. 448 ( 2021 )

448
Submitted January 4, 2019, reversed January 6, 2021
In the Matter of M. T.,
a Person Alleged to have Mental Illness.
STATE OF OREGON,
Respondent,
v.
M. T.,
Appellant.
Marion County Circuit Court
17CC06975; A166509
479 P3d 541
Appellant challenges an Order of Disposition involuntarily committing her
to the custody of the Oregon Health Authority. Appellant argues that the trial
court erred when it concluded that her mental disorder caused her to be a danger
to herself and unable to provide for her basic needs. Appellant also argues that
the trial court erred when it indicated in the Order of Disposition that she was
subject to commitment based on the expanded criteria of ORS 426.005(1)(f)(C)
without giving prior notice to appellant of that possible ground for commitment.
The state abandons the argument that appellant is unable to provide for her
basic needs and concedes that the additional ground for commitment under ORS
426.005(1)(f)(C) was a mistake. The state maintains, however, that the trial court
correctly determined that appellant was a danger to herself. Held: The Court
of Appeals agrees that commitment was not appropriate under the two bases
that the state declines to defend on appeal. Further, the record is legally insuffi-
cient to establish that appellant was a danger to herself; therefore, the trial court
erred in committing her.
Reversed.
Susan M. Tripp, Judge.
Joseph R. DeBin and Multnomah Defenders, Inc., filed
the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jonathan N. Schildt, Assistant
Attorney General, filed the brief for respondent.
Before Tookey, Presiding Judge, and Shorr, Judge, and
Landau, Senior Judge.
LANDAU, S. J.
Reversed.
Cite as 308 Or App 448 (2021) 449
LANDAU, S. J.
Appellant challenges an Order of Disposition invol-
untarily committing her to the custody of the Oregon Health
Authority for up to 180 days. She argues that the evidence
was legally insufficient to establish that she suffered from
a mental disorder that makes her a danger to herself. We
agree with appellant that the evidence is insufficient and
therefore reverse.
Neither party requests de novo review. Accordingly,
we view the evidence in the light most favorable to the trial
court’s decision and assess whether, in that light, the record
is legally sufficient to support that decision. State v. M. J. F.,
306 Or App 544, 545, 473 P3d 1141 (2020).
Appellant suffers from bipolar disorder. She had
been hospitalized on previous occasions. At least one time,
she had been found in the community disrobed, wandering
the streets. During the year before her commitment, she
lived in a group home and, according to staff, did “really
well.” Sometimes she wandered the streets at night. She
thought of it as “like a neighborhood watch.” She also found
it “peaceful.”
About two weeks before the hearing she began
experiencing increasing agitation. She left the home on
occasion and ended up having “six or seven police contacts”
of an unspecified nature. She started to isolate and did not
come out of her room for meals. She began yelling at night,
expressing worry about “people getting murdered” and
“hearing gunshots.” She was fearful that staff was poison-
ing her and others and that staff was “raping people.”
One of the staff at the group home, Hoover, became
concerned about appellant’s behavior. Appellant accused
Hoover of stealing things from her and said that Hoover was
“doing drugs.” Appellant “cornered” Hoover “several times.”
By “cornering,” Hoover explained that appellant walked
around a large desk and came into her personal space, speak-
ing without making any sense. Appellant “never laid a hand
on [her]” and did not physically threaten her, but appellant’s
behavior made Hoover feel “intimidated” and “unsafe.” On
one occasion, Hoover observed appellant “pacing actively in
450 State v. M. T.
and out of her room,” saying to herself “I’m going to kill her.
I’m going to kill myself. I’m going to kill you.” Hoover did not
know to whom appellant was referring, however.
Appellant’s behavior led to her hospitalization. One
of appellant’s physicians, Costa, reported that she “can come
across as quite intimidating and threatening.” Costa noted
that, while at the hospital, appellant was observed “pacing
angrily down the hallway and deliberately bumping into”
a staff member and that she had poured water on another
staff member. On another occasion, appellant was observed
“slamming herself up against the wall.” Costa commented
that it was not apparent that appellant was targeting any-
one or that she intended to harm anyone.
The circuit court issued a citation ordering appel-
lant to appear for a commitment hearing. Attached to the
order was a precommitment investigation report, which
included check-the-box recommendations to the court. The
recommendations were that appellant had a mental illness
that caused her to be a danger to herself and to others and
that she could not provide for her basic needs. The recom-
mendations further indicated that appellant was not chron-
ically ill and subject to commitment based on the expanded
criteria of ORS 426.005(1)(f)(C), which provides that a per-
son also may be committed if the person has a chronic men-
tal illness, has previously been hospitalized under state
authority for substantially similar reasons, and will likely
deteriorate unless treated.
At the commitment hearing, Costa testified that
appellant posed a danger to herself because “[she] can get
into such a grossly disorganized state that she will inadver-
tently place herself in dangerous situations.” He could not
say whether, if released, appellant would engage in aggres-
sive behavior. His concern was based on reports of such
behavior as wandering the streets, suggesting that “she’ll
put herself in a—in a very dangerous situation because of
grossly disorganized lack of awareness.”
A civil commitment investigator, Stephens, was
also asked whether appellant posed a danger to herself.
Stephens replied that “I believe that she could be,” based on
Cite as 308 Or App 448 (2021) 451
the overheard statements that she was going to kill herself
and the fact that she had thrown herself against the walls.
And the mental health examiner, Anderson, con-
cluded that appellant suffers from a chronic mental disor-
der. He said that, because of that disorder, “I do believe that
she is dangerous to herself and that she will put herself in
harm’s way imminently, due her—due to her disorganiza-
tion, mania, and psychosis.”
The trial court concluded that appellant “is dan-
gerous to herself and unable to provide for her basic per-
sonal needs necessary to avoid serious physical harm in the
near future. And that * * * [r]eceiving that care is necessary
to avoid such harm.” In the Order of Disposition, the trial
court checked boxes indicating that appellant is a person
with a mental illness, is dangerous to herself, and is unable
to provide for her basic needs. Also checked is a box indi-
cating that appellant “meets the criteria set forth in ORS
426.005(1)(f)(C),” although the trial court’s oral findings did
not mention that ground and, as we have noted, the citation
expressly stated the contrary.
On appeal, appellant advances two assignments of
error. First, she argues that the trial court erred in conclud-
ing that her mental illness caused her to be dangerous to
herself and unable to provide for her basic needs. Second,
she argues that the trial court erred when it indicated in
the Order of Disposition that she was subject to commitment
based on the expanded criteria of ORS 426.005(1)(f)(C),
when she was not given prior notice of that possible ground
for commitment.
In response to the first assignment of error, the
state abandons the contention that appellant’s mental ill-
ness causes her to be unable to meet her basic needs. But
it does argue that the trial court correctly determined that
appellant is a danger to herself. According to the state,
“appellant engaged in intimidating and threatening con-
duct that was likely to provoke an assaultive response.” In
support, the state notes that appellant “cornered” a staff
worker at her group home, threw water on a hospital worker,
deliberately bumped into another worker, accused others of
452 State v. M. T.
stealing from her and “raping people,” and threatened to
kill herself and others. That behavior coupled with her ten-
dency to wander the streets, the state argues, is likely to put
appellant into harm’s way.
As for the second assignment of error, the state con-
cedes that the portion of the trial court’s Order of Disposition
indicating the additional ground of commitment for chronic
mental illness under ORS 426.005(1)(f)(C) “appears to be a
mistake.” We accept that concession.
We turn, then, to the issue of the sufficiency of the
evidence to demonstrate that appellant’s mental illness
causes her to be a danger to herself. Whether the evidence
is sufficient to support an order of involuntary commitment
is a question of law. State v. T. Y., 285 Or App 21, 24, 396 P3d
986 (2017).
The law permits an order of involuntary commit-
ment if the state proves, by clear and convincing evidence,
that a person has a “mental illness,” ORS 426.130(1)(a)(C),
that causes the person to be “[d]angerous to self,” ORS
426.005(1)(f)(A). To establish that a person is a danger to
herself, the state must establish that the mental illness
“would cause him or her to engage in behavior that is likely
to result in physical harm to himself or herself in the near
term.” State v. B. B., 240 Or App 75, 82, 245 P3d 697 (2010).
The threat of physical harm must be “serious”—that is, it
must be “ ‘life-threatening’ or involve some ‘inherently dan-
gerous’ activity.” Id. at 82-83; see also State v. Judd, 206 Or
App 146, 153, 135 P3d 397 (2006) (reviewing cases so hold-
ing). In addition, the threat of serious physical harm must
be “more than ‘speculative.’ ” State v. M. A., 276 Or App 624,
628, 371 P3d 495 (2016). That means that the evidence of
such a threat must be “particularized,” demonstrating a
“highly probable” risk of harm “in the near future.” Id. at
629.
That is not to say that the state must wait until
serious physical harm actually occurs before a person may
be considered a danger to herself. See, e.g., State v. C. C., 258
Or App 727, 735, 311 P3d 948 (2013) (“[G]rave physical harm
need not actually occur before a court may find a person to
Cite as 308 Or App 448 (2021) 453
be mentally ill who is dangerous to him or herself.”). But
the record must reflect some basis for determining that such
serious harm is highly likely to occur in the short term, id.,as for example, when there is evidence that a person “has
established a pattern in the past of taking certain actions
that lead to self-destructive conduct, and then he or she
begins to follow that pattern again,” State v. Roberts, 183 Or
App 520, 524, 52 P3d 1123 (2002).
In this case, the record does not reflect sufficient
evidence to support a danger-to-self commitment. There is
no evidence that appellant will engage in conduct creating
a highly probable risk of serious physical harm in the near
term. The state’s assertion to the contrary amounts to little
more than speculation.
At best, the evidence shows that appellant invaded
the personal space of a staff worker in a way that made the
worker feel “unsafe” and “intimidated.” Appellant made no
threats. Her behavior prompted no assaultive response. And
there is a complete absence of evidence that invading another
person’s personal space is likely to result in serious physical
harm. The record similarly shows that appellant “deliber-
ately bump[ed]” into one staff worker and threw water on
another. Again, however, there is no evidence that the sort
of conduct appellant engaged in prompted any assaultive
response or was of a nature that it would be highly likely
to do so. See Judd, 206 Or App at 153 (order of commit-
ment reversed when “there is no evidence that appellant’s
behavior has ever resulted in physical harm to him, life-
threatening or otherwise” or “that he was likely to provoke
violence”).
The state emphasizes that appellant’s physical acts
were accompanied by “provocative claims” that, for example,
others were stealing from her and that she had threatened
to kill them. The record does show that appellant accused
Hoover of stealing things from her. That, however, did not
result in any sort of assaultive response, much less one likely
to result in serious physical harm. Nor is there any basis
for determining that such an accusation is likely to do so.
Similarly, she expressed concern that staff had been poison-
ing and raping people. Again, however, there is nothing in
454 State v. M. T.
the record providing a basis for concluding that it is highly
likely that saying such things would lead to serious physical
harm.
As for the threats to herself and others, the record
shows that Hoover overheard appellant talking to herself
when she said “I’m going to kill her. I’m going to kill myself.
I’m going to kill you.” Hoover said that she did not know
to whom appellant was referring, and there is no other evi-
dence in the record that the threat was directed at anyone
in particular or that her mention of suicide had ever been
followed by any attempts to follow through on such a threat.
See, e.g., M. J. F., 306 Or App at 547 (“[O]ur cases frequently
identify a shortfall in the state’s evidence of dangerous-
ness when a person who expresses suicidal thoughts has not
recently attempted suicide.” (Emphases in original.)).
Finally, the state relies on evidence that, at some
unspecified time in the past, appellant had wandered in the
streets and that, more recently, her wandering had led to
six or seven unspecified police contacts. But without more,
there is no basis for concluding that such wanderings are
highly likely to result in serious physical harm. See, e.g.,
Roberts, 183 Or App at 525 (evidence that appellant wan-
dered the streets frequently held insufficient because “the
record contains no indication that this activity has ever led
to injury”).
In short, the record is legally insufficient to estab-
lish that appellant was a danger to herself. The trial court
therefore erred in committing her.
Reversed.