State v. C. H. (In re C. H.)

306 Or.App. 63

473 P.3d 60

In the MATTER OF C. H., a Person Alleged to have Mental Illness.

State of Oregon, Respondent,

v.C. H., Appellant.

A163450

Court of Appeals of Oregon.

Submitted October 31, 2018.

August 19, 2020

Joseph DeBin and Multnomah Defenders, Inc., filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Keith L. Kutler, Assistant Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.

POWERS, J.

Appellant challenges an order committing her to the custody of the Oregon Health Authority (OHA) for a period of time not to exceed 180 days on the ground that she has a mental illness. ORS 426.130. Appellant argues that the evidence is insufficient to support the trial court's ruling that, due to her mental disorder, she was unable to provide for her basic needs, which is a basis for commitment under ORS 426.005(1)(f)(B). We agree and reverse.

Neither party has requested that we review the record de novo , and we conclude that this is not an "exceptional" case that warrants de novo review. See ORAP 5.40 (8)(c) (providing that the court will exercise its discretion to review de novo "only in exceptional cases"). Thus, we "view the evidence, as supplemented and buttressed by permissible derivative inferences, in the light most favorable to the trial court's disposition and assess whether, when so viewed, the record was legally sufficient to permit that outcome." State v. T. W. W ., 289 Or. App. 724, 726, 410 P.3d 1032 (2018) (citation omitted).

In October 2016, appellant, who was 68 years old at the time, called police to take her to the hospital after being denied entry to the Union Gospel Mission of Salem. Appellant's clothes were wet, she was cold and hungry, had no shoes, no money, and no place to get dry and warm. Appellant has bipolar disorder and had been placed in psychiatric hospitals for short-term stays in the past.

Police brought appellant to the hospital, where doctors discovered that appellant had a fractured wrist, which could require surgery if not cared for properly. Doctors also prescribed appellant medication for her bipolar disorder, which she willingly took, and she willingly ate the food that the hospital provided. However, appellant was unruly at the hospital: she wandered into other patient's rooms, pinched people on their bottoms, and yelled obscenities at hospital staff. Prior to this hospitalization, appellant was referred to the Adult Behavioral Health Clinic (ABH) for two appointments but did not attend either appointment.

Based on the recommendation of medical professionals, the state requested that a commitment hearing be held to determine whether appellant had a mental disorder that made her incapable of providing for her basic needs. Appellant, her adult daughter, and Anderson, a mental health examiner, all testified at the hearing.

Anderson interviewed appellant and reviewed her records. He testified at the hearing that he did not believe appellant was a danger to herself or to others, but that she was incapable of providing for her basic needs. Specifically, Anderson testified that he believed that appellant was "making potentially life-threatening decisions," and listed the threats that appellant faced: she was unable to keep herself dry in cold weather; she was wandering barefoot; she had multiple contacts with law enforcement and psychiatric hospitals; she was aggressive at the hospital; she refused care for her injured wrist ; and she was disorganized. Because Anderson believed that appellant's mental illness made her unable to provide for her basic needs, he recommended that appellant be committed to the custody of OHA.

During the hearing, appellant often interrupted and made contradictory statements. For example, appellant initially stated that her daughter provided her with money, but later stated that her daughter was lying and that her daughter stole appellant's money. Appellant also testified that she lived with her husband but could not find him; however, appellant's daughter testified that she did not believe that appellant was married.

Appellant testified that, if released from the hospital, she wanted to go home with her daughter. If she could not stay with her daughter, appellant told the court that she would get a motel for one night and later rent an apartment. Appellant stated that she had a bank account with money and that her daughter gave her money. Appellant testified that she could buy new clothes when she needed, she would attend future appointments with ABH, she would continue taking her prescribed medication, and that she could obtain food by visiting the store across the street from the motel where she had rented a room in the past. Appellant's daughter testified that appellant could not stay with her and that appellant received income through disability. Her daughter testified that appellant did not "have the ability to take care of herself if she's on the streets."

The state argued that, if appellant did not have money for food at the time of her hospitalization, then she will not have money for a hotel, clothes, or food if she is released. After noting that appellant had been trespassed from the Mission, the state argued that, if appellant were released, the state "is concerned that the same events would happen."

The trial court concluded that appellant was a person with a mental disorder and that appellant was unable to provide for her own basic needs. After recognizing that houselessness¹ or homelessness is insufficient on its own to support a basic-needs commitment, the trial court explained:

"I do find we have homelessness, plus a lack of insight, plus [appellant]’s own statements that she had not been eating, was hungry, was not able to provide for her own food. Regardless of her belief where she would get some food, she—she doesn't adequately express how she would do that to this Court. She's disorganized.

"And so based on that, I do find by clear and convincing evidence [that appellant is] a person with a mental illness."²

Accordingly, the court committed appellant to the custody of OHA for a period not to exceed 180 days.

On appeal, appellant does not dispute that she has a mental disorder; rather, she asserts that the evidence was insufficient to support the trial court's determination that her mental disorder rendered her unable to provide for her basic needs. For instance, appellant argues that the record showed several examples of appellant caring for her basic needs: she took her medication; she was willing to continue taking her medication; she called police to obtain shelter and food; she had disability income and bought clothes when she needed; she had a plan to stay in a motel and then rent an apartment; she was willing to attend future appointments with ABH; and she was eating at the hospital. Further, appellant argues that there was no nexus between her mental disorder and the basic needs criteria. That is, witnesses did not, in appellant's view, describe how her mental disorder and its associated symptoms caused her to be unable to provide for her basic needs.

The trial court may involuntarily commit an individual if it determines by clear and convincing evidence that the person has a "mental illness" and is in need of treatment. ORS 426.130(1)(C). A person may not be civilly committed on the basis of a mental disorder alone. State v. S. D. M. , 198 Or. App. 153, 161, 107 P.3d 683 (2005). Generally stated, a person has a mental illness for the purposes of the statutory framework for civil commitments if the person, because of a mental disorder, is a danger to self, danger to others, unable to provide for basic personal needs, or meets the expanded criteria for mental illness. ORS 426.005(1)(f). Specific to this case, a "person with a mental illness" is defined as "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 necessary to avoid such harm." ORS 426.005 (1)(f)(B). For a basic-needs commitment, the state must prove a causal connection between appellant's mental disorder and her inability to provide for her basic needs. State v. M. G. , 147 Or. App. 187, 192, 935 P.2d 1224 (1997).

In 2015, the legislature amended the "basic needs" definition of ORS 426.005(1)(f)(B). As we discussed in State v. M. A. E. , 299 Or. App. 231, 237, 448 P.3d 656 (2019), the amended statute changed the "basic needs" commitment or recommitment standard in two major ways.³ First, where the old standard for commitment required a "risk of death," the standard under the 2015 amendment focuses on avoiding "serious physical harm." Id . at 238, 448 P.3d 656. Second, where the old statute required that the risk be "immediate" or "imminent," the amended statute permits commitment when the risk is "in the near future," even if that risk is not imminent or immediate. Id . at 240, 448 P.3d 656. Therefore, the amended statute altered both the type of risk and the timeframe in which that risk manifests itself, where the risk to appellant need not be imminent death, but rather, serious physical harm in the near future. We have further explained that "serious physical harm" is "a nonspeculative threat that the person will not safely survive without treatment." State v. M. B. , 300 Or. App. 522, 526, 452 P.3d 1006 (2019).

In this case, viewing the facts in the light most favorable to the trial court's disposition, there was insufficient evidence that appellant faced serious physical harm in the near...