In the Matter of D.M. v. D.M., 100160166; A144549.

• Court: Court of Appeals of Oregon
• Writing for the Court: Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and DUNCAN, Judge.
• Citation: 263 P.3d 1086,245 Or.App. 466
• Parties: In the Matter of D.M., Alleged to be a Mentally Ill Person.STATE of Oregon, Respondent,v.D.M., Appellant.
• Docket Number: 100160166; A144549.
• Decision Date: 08 September 2011

245 Or.App. 466
263 P.3d 1086

In the Matter of D.M., Alleged to be a Mentally Ill Person.STATE of Oregon, Respondent,
v.
D.M., Appellant.

100160166; A144549.

Court of Appeals of Oregon.

Submitted March 8, 2011.Decided Sept. 8, 2011.

[263 P.3d 1087]

Rebecca Carter filed the brief for appellant.John R. Kroger, Attorney General, David B. Thompson, Interim Solicitor General, and Christina M. Hutchins, Senior Assistant Attorney General, filed the brief for respondent.Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and DUNCAN, Judge.DUNCAN, J.

[245 Or.App. 468] In this civil commitment case, the trial court entered a judgment committing appellant to the Oregon Health Authority, pursuant to ORS 426.130(1)(b)(C), on the ground that appellant “suffer[ed] from a mental disorder” and was “[u]nable to provide for basic personal needs and [was] not receiving such care as [was] necessary for health or safety,” ORS 426.005(1)(e)(B). Appellant seeks reversal of the judgment, arguing, inter alia, that the state failed to prove, by clear and convincing evidence, that he was unable to provide for his basic needs. We agree and, therefore, reverse.

Whether the state presented sufficient evidence to support a civil commitment is a question of law, which we review for errors of law. State v. B. B., 240 Or.App. 75, 77, 245 P.3d 697 (2010) (“[U]nless we exercise our discretion to review [a civil commitment] matter de novo,¹ we are bound by the trial court's findings of historical fact that are supported by any evidence in the record; we further review the court's dispositional conclusions, predicated on those findings, for errors of law.”).

We begin with the facts, which we state consistently with the trial court's express and implied factual findings. B. B., 240 Or.App. at 82, 245 P.3d 697. At appellant's commitment hearing on January 12, 2010, the state presented evidence of two encounters appellant had with police officers and health professionals. The first encounter occurred on December 20, 2009. On that date, police officers responded to a report that appellant was sleeping in a post office. The officers transported appellant from the post office to an apartment, where they believed he lived. Appellant was either unable or unwilling to enter the apartment. The officers called mental health professionals for assistance.

[263 P.3d 1088]

One of the two mental health professionals who responded, Daigneault, testified at the commitment hearing [245 Or.App. 469] that, when she met with appellant outside the apartment, he was dressed appropriately for the December weather; he was wearing layers of clothing. But, according to Daigneault, appellant's hygiene was poor; he was “extremely malodorous.” He was also “extremely unresponsive.” He did not make eye contact or answer questions. His body was rigid, and Daigneault thought he might be exhibiting symptoms of early catatonia. Daigneault and her colleague had appellant transported to a hospital for an evaluation. Although the record is not entirely clear, it appears that appellant stayed in the hospital for about a week before being discharged.

The second encounter occurred on January 5, 2010. On that date, two police officers responding to a call went to a bar and found appellant seated in a booth with a man who was trying to keep him calm. The officers escorted appellant outside. According to one of the officers, Fleming, who testified at the commitment hearing, appellant was disheveled and his clothing was wet “all the way through.” Fleming testified that it was cold out, but not freezing. Fleming had difficulty communicating with appellant. When asked, appellant told Fleming his name, but did not answer Fleming's other questions. Appellant identified himself as God, said that he had supernatural powers, and threatened Fleming with “double damnation.” Appellant's body was rigid, but he allowed the officers to physically direct him. The officers transported appellant to a hospital. At the hospital, appellant was verbally aggressive. He again declared that he was God, and he threatened hospital staff members with damnation. He did, however, comply with their requests.

Two mental health examiners participated in the commitment hearing and wrote reports for the trial court. Both examiners reported that they believed appellant suffered from paranoid schizophrenia. One examiner believed that appellant was unable to provide for his basic needs and recommended commitment. The other believed that appellant was able to provide for his basic needs and recommended discharge.

The trial court was concerned that appellant had not been caring for himself, as established by the evidence that he had been malodorous, disheveled, and wet. The court [245 Or.App. 470] believed that, if appellant was released and the weather became cold, appellant would be at risk. The court explained:

“I don't believe [appellant] is going to perish when he walks out the door here today, because it is not cold enough, not wet enough yet that he would die of hypothermia, because he would disregard his need to provide for his body—care for his body. He simply didn't care for his body both when [the mental health professionals from] Project Respond saw him and also when the officers saw him, his body was not cared for. And it would quickly deteriorate to the point where he would be wet once the weather changes, and it could even be this evening. If there are sub-zero temperatures, I don't think [appellant] has the ability to find someplace warm and dry to stay and to take care of his basic personal needs. And he would not be able to safely survive in the community for very long.”

The trial court entered a judgment, concluding that appellant “suffer[ed] from a mental disorder,” “[was] unable to provide for basic personal needs and [was] not receiving such care as [was] necessary for health or safety,” and “[was] unwilling, unable or unlikely to participate in treatment on a voluntary basis,” and committing appellant to the Oregon Health Authority for a period not to exceed 180 days.

On appeal, appellant makes two assignments of error. First, he assigns error to the trial court's conclusion that the state proved, by clear and convincing evidence, that he was unable to provide for his basic needs. ORS 426.130(1)(b)(C); ORS 426.005(1)(e)(B). Second, he assigns error to the trial court's conclusion that he had failed to prove that he was willing, able, and likely to participate in treatment on a voluntary basis. ORS 426.130(1)(b)(A). For the reasons explained below, we agree with appellant's

[263 P.3d 1089]

first assignment of error and, therefore, do not reach his second.

In order to civilly commit a person, the state must prove, by clear and convincing evidence, that the person is mentally ill. ORS 426.130(1)(b)(C). The clear and convincing standard of proof is a rigorous one. State v. M. R., 225 Or.App. 569, 574, 202 P.3d 221 (2009). It requires evidence that is of “extraordinary persuasiveness.” State v. Hambleton, 202 Or.App. 526, 533, 123 P.3d 370 (2005) (quoting State v. Howell, 53 Or.App. 611, 617, 633 P.2d 14 (1981)). It applies in civil [245 Or.App. 471] commitment hearings in order to protect the strong personal and liberty interests at stake. Id. at 534, 123 P.3d 370. In other words, the standard is “not merely abstract or precatory. Rather, [it is] the product of a fundamental recognition of ‘the priority of preserving personal liberties in [civil commitment]...