In re E. J. J., 012121 ORCA, A164507

Docket Nº:A164507
Opinion Judge:DeHOOG, P. J.
Party Name:In the Matter of E. J. J., a Person Alleged to have Mental Illness. v. E. J. J., Appellant. STATE OF OREGON, Respondent,
Attorney:Alexander C. Cambier and Multnomah Defenders, Inc., fled the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jeff J. Payne, Assistant Attorney General, fled the brief for respondent.
Judge Panel:Before DeHoog, Presiding Judge, and DeVore, Judge, and Aoyagi, Judge.
Case Date:January 21, 2021
Court:Court of Appeals of Oregon

308 Or.App. 603

In the Matter of E. J. J., a Person Alleged to have Mental Illness.

STATE OF OREGON, Respondent,

v.

E. J. J., Appellant.

A164507

Court of Appeals of Oregon

January 21, 2021

Submitted October 5, 2018

Marion County Circuit Court 17CC01358; Rafael A Caso, Judge pro tempore.

Alexander C. Cambier and Multnomah Defenders, Inc., fled the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jeff J. Payne, Assistant Attorney General, fled the brief for respondent.

Before DeHoog, Presiding Judge, and DeVore, Judge, and Aoyagi, Judge.

[308 Or.App. 604] DeHOOG, P. J.

Appellant seeks reversal of an order committing him to the custody of the Oregon Health Authority for a period not to exceed 180 days. He argues that the evidence was insufficient to support the trial court's findings that, due to a mental disorder, he was a danger to others and was unable to provide for his basic personal needs. See ORS 426.130; ORS 426.005(lXf)(A) and (B).1 For the reasons set forth below, we agree with appellant and, accordingly, reverse.

When reviewing a civil commitment, "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. M. A., 276 Or.App. 624, 625, 371 P.3d 495 (2016) (standard for non-de novo review) (internal quotation marks omitted); see also State v. J. G., 302 Or.App. 97, 98, 458 P.3d 721 (2020) ("Our task is to determine whether the record, so viewed, is sufficient to meet the legal standard for involuntary commitment."). We state the facts in accordance with that standard.

Appellant was diagnosed with schizophrenia in 2000, but that diagnosis was later modified to schizoaffective disorder, bipolar type. Since his initial diagnosis, appellant has had a history of hospitalizations and civil commitments due to mental illness. Following a commitment or hospitalization, appellant generally does well for a year or two until for some reason he stops taking his prescribed medications, which leads to his decompensation. Appellant's most recent commitment ended in October 2013, at which time he was prescribed an oral medication, Zyprexa, and an injectable medication, Invega Sustenna. Appellant stopped taking Zyprexa in 2015, but he continued on Invega Sustenna until October 2016.

In February 2017, appellant's mother and stepfather filed a Notification of Mental Illness regarding [308 Or.App. 605] appellant after seeing him once again decompensate. At the commitment hearing that followed, appellant's mother testified that appellant had begun to exhibit changes when he stopped taking the Zyprexa in 2015, after which his condition deteriorated over the course of a year and a half, most dramatically beginning in October 2016, when he stopped getting Invega Sustenna injections and "just went right off of the side of that cliff."

According to appellant's mother, this was a familiar pattern that she had seen repeatedly over the last 15 years. She described appellant's initial symptoms as paranoia and delusions. As an example of appellant's delusional thinking, his mother explained that, as appellant's representative payee, she managed his money, including his monthly $850 Social Security payments. But, when appellant stopped taking his medications, he began to pull away from his mother and, as he had done in the past, accused her of stealing his Social Security benefits. She testified that, in October, after appellant had stopped getting his injections, he had gone to the Social Security office and changed the payee designation for his benefits from an account that she managed to a personal account that only he could access.

Sometime thereafter, appellant's mother received notice that he had not paid his internet bill. She also learned that appellant had lost his cell phone and his food stamp card. In order to ensure that appellant had a means of communicating with others, his mother paid his internet bill. She also filled out the necessary paperwork so that appellant could replace his food stamp card, but appellant refused to sign it and never turned it in. During that time, appellant told his mother that he had nothing to eat. Because appellant lived near a Subway sandwich shop, his mother gave him a Subway gift card and would replenish it when its balance ran low. Nonetheless, appellant's mother testified that appellant looked gaunt and pasty and had lost a lot of weight as of the time of the hearing.

When asked whether appellant had ever been physically violent with her, his mother responded, "Not that I can recall, no. There's been episodes where he's spat at me and things like that, and [was] very verbally aggressive, but [308 Or.App. 606] not physically." She added, "I have never known [appellant] to be violent. That doesn't mean that he would not be in the future."

Paxton, the property manager at appellant's apartment complex, testified that, in the months leading up to the commitment hearing, appellant's apartment had become "very dirty." Paxton described appellant's living circumstances in some detail: "There's a twin-size box spring that [appellant has] propped up against the door; food stuck to the counters; stove and oven [are] really dirty; food everywhere. Items strewn all over the counters and floor; garbage sometimes in the middle of the floor; boxes and dressers shoved up against the closet doors. * * * Regulator for the window was taken off, which keeps the window from opening farther because it's a prop open window, * * * stains on the carpet, things like that."

Due to the condition of appellant's apartment, Paxton served a notice of lease violation on appellant. The notice gave appellant 14 days to clean up his unit to avoid eviction proceedings, but appellant was unable to meet that timeline. Rather than pursue an eviction, however, Paxton gave appellant an additional 15 days to comply, but again, appellant could not bring his apartment into compliance. Paxton testified that appellant "needs to be able to correct [the condition of the apartment], and in the situation that he's in it's obvious that that's not going to happen."

Paxton also testified that, on multiple occasions, she had observed appellant carrying a sword and a large bowie knife around in public. On two of those occasions, Paxton had called the police because she had been concerned for appellant's welfare. However, Paxton also testified that she had never seen appellant threaten anyone with the weapons or otherwise behave violently.

Budlong, who had been appellant's friend since early high school, well before appellant's symptoms first arose, also testified. Like appellant's mother, Budlong had seen appellant both when he was adhering to his medical regimen and when he was not. In explaining the difference between the two, Budlong explained: [308 Or.App. 607] "[Appellant] is a wonderful, wonderful person; a fantastic friend; true and will do anything for you. He's amazing. But when-as he comes off his medication, that goes away and the person that replaces it is angry and then sad; very aggressive. And *** if you mix anything else with it, alcohol or-specifically alcohol, things get real aggressive real fast."

Budlong said that he had noticed a dramatic change in appellant's behavior starting in December 2016, when appellant's "behavior that had been suspect became full blown, crisis level," where it remained.

In February 2017, appellant showed up at Budlong's workplace, wearing only a light coat and soaking wet from the rain, and told Budlong that he was out of money and that he needed Budlong's help with his computers. Budlong agreed to meet at appellant's apartment that evening. When Budlong arrived, he found appellant outside, trying to persuade a neighbor to share his beer. Appellant became aggressive, which seemed to intimidate the other man, who retreated. Budlong and appellant then entered appellant's apartment. According to Budlong, a "giant mattress" blocked the entrance and had to be lifted out of the way before they could enter the apartment, which Budlong described as "in disarray." Appellant first showed Budlong a two-foot long sword and an ornamented knife that he had recently acquired. Appellant then asked about his computers, and, when Budlong asked what was wrong with them, appellant responded that "the government had infiltrated them all and that they were spying on him through them," and that he wanted Budlong to fix that. Budlong told appellant that the government was not spying on him and that he could not "fix" the computers like appellant wanted. Appellant became "agitated for a minute," telling Budlong that he knew that Budlong worked for the government and that he was keeping track of appellant on the government's behalf, but then, Budlong said, became "unconcerned."

Appellant turned on some music and the two chatted briefly. Appellant asked Budlong if he wanted something to eat, but then said that he only had rice and sugar and went to the kitchen to prepare that. Despite their social [308 Or.App. 608] interactions, Budlong described the atmosphere as "really tense" and appellant as "very tense" and "very agitated," which made Budlong "very uncomfortable." When appellant then asked whether Budlong would get some marijuana for him, 2 Budlong agreed, but conditioned that on appellant "answer[ing] two questions to [Budlong's] satisfaction."

Budlong then asked appellant, who was at the opposite end of the apartment at the time, whether "now that he's pushed everyone in his life away and he's so sad he's angry, is he...

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