State v. B.B., 091070858; A143818.

• Decision Date: 29 December 2010
• Docket Number: 091070858; A143818.
• Citation: 240 Or.App. 75,245 P.3d 697
• Court: Oregon Court of Appeals
• Parties: In the Matter of B.B., Alleged to be a Mentally Ill Person. STATE of Oregon, Respondent, v. B.B., Appellant.

245 P.3d 697

240 Or.App. 75

In the Matter of B.B., Alleged to be a Mentally Ill Person.

STATE of Oregon, Respondent,

v.B.B., Appellant.

091070858; A143818.

Court of Appeals of Oregon.

Submitted Nov. 23, 2010.

Decided Dec. 29, 2010.

Rebecca Carter filed the brief for appellant.

John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Harry B. Wilson, Assistant Attorney General, filed the brief for respondent.

Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and DUNCAN, Judge.

HASELTON, P.J.

Appellant appeals from a judgment of involuntary civil commitment, contending that the record is insufficient to support the trial court's determination that she was a danger to herself as a result of her mental disorder. ORS 426.005(1)(e)(A). Pursuant to ORS 19.415(3), unless we exercise our discretion to review the matter de novo, 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. State v. D.R., 239 Or.App. 576, 578, 244 P.3d 916 (2010).¹ In this case, we do not exercise our discretion to engage in de novo review; ² nevertheless, as explained below,we conclude that the evidence is legally insufficient to support the trial court's determination that appellant was a danger to herself. Accordingly, we reverse.

We state the facts "consistently with the trial court's express and implied findings," D.R., 239 Or.App. at 579, 244 P.3d 916, as supplemented with uncontroverted contextual information from the record. At the time of the hearing, appellant was a 31-year-old woman. Symptoms of her mental illness included psychosis, paranoia, auditory "command hallucinations," and visual hallucinations.

The incidents triggering appellant's commitment proceeding took place in October 2009. On October 7, appellant was brought to Providence Hospital in Portland after an incident in which she fell while running with her nine-month-old child in her arms. As a result of her fall, appellant incurred "cuts, abrasions and discolored swelling * * * on her left che[e]k and above her left eye." Appellant told Monaco, a precommitment investigator who interviewed her two days later (on October 9), that she had been running because she was frightened and that the baby did not get hurt during the fall. Appellant told Monaco that she was afraid of B., her boyfriend and the father of her child, who she believed wanted to "get rid" of her because, according to appellant, he had another girlfriend.³ Although she denied having a mental illness and also denied having any thoughts of harm towards herself or others, appellant was held on a psychiatric hold.

Later that same day, on October 9, Port of Portland Police Officer Hemsworth received a call regarding appellant, who was inside the airport, at a security checkpoint, wearing hospital scrubs and no shoes. Hemsworth had difficulty communicating with appellant because "[t]here was clearly some form of a language barrier" and because appellant appeared confused and disorganized in her thinking. Appellant told Hemsworth that she was attempting to fly to Arizona to get her baby, but she was not carrying any identification, a plane ticket, or any means to procure a plane ticket. Appellant was also not able to answer Hemsworth's questions about what day it was, where she was, her address, her date of birth, or when she had last eaten, and "had no plan to get anywhere other than to Arizona." Appellant did tell Hemsworth that she did not want to go back to the hospital because "she believed that she would die or they would kill her there."

Eventually, Hemsworth was able to identify appellant based on the hospital bracelet she was wearing. Hemsworth ultimately determined that appellant wasunable to care for herself and was a danger to herself, and he took her to Portland Adventist hospital in Portland.

Monaco interviewed appellant again at the hospital a few days later. Appellant indicated that she had fled to the airport because "it wasn't safe" for her to be at Providence and that she had believed that her child and B. had moved to Minnesota—in fact, they were still living in Portland—that she was supposed to follow them there, and that the "voices told her that she wouldn't need identification or money to board a plane."

At the commitment hearing, the state presented the testimony of Hemsworth and admitted the nonhearsay portions of Monaco's precommitment report, which recounted the facts above. B. and Goss, a Department of Human Services (DHS) worker, also testified for the state.

B., who spoke through a translator, testified that he and appellant lived together and that appellant's behavior had started to change about three months before the commitment hearing and had appeared to become progressively worse in the weeks before the hearing. B. explained that appellant would accuse him of making statements when he had not, in fact, said anything and that she thought she could hear other people talking about her when they were in a separate car or when she was in their home.⁴

B. also testified that appellant had abruptly quit her job a few weeks before the commitment hearing. When B. asked appellant about why she had quit her job, she responded, in part, that she planned to go to another state because "[e]verybody is after me."

On October 2, B. took appellant to see a doctor because he was concerned about her hearing voices and was afraid that she might harm their child. However, after they had checked in and were waiting, appellant ran out to the hospital parking lot. She told B. that she had run awaybecause she "need[ed] to go to another state" and that she did not want to talk to the doctor or nursing staff. Afterwards, appellant and B. returned home.

On October 7, B. returned home from work to find that appellant and their child were missing and that they had been taken to Providence. B. testified that, when he first saw appellant at Providence that evening, she did not want to see him or her father and that she seemed confused. After appellant was hospitalized at Portland Adventist two days later, on October 9, she still seemed angry and confused and held B. and her father responsible for her being "in jail" at the hospital.

Goss, the DHS worker, interviewed appellant the day before the commitment hearing. Goss reported that appellant admitted that she had always heard voices, but claimed that they had only become "negative" since she and B. had gotten involved. She also denied having a mental illness and indicated her desire to be released from the hospital.

Appellant testified regarding the events of October 7 and October 9. With respect to the former, she stated that she was running away from her father—who, she said, was pressuring her to stay with B, when she fell on October 7—but later stated that she ran away because it "smelled like a dead body just left the house" and that her "child [was] wearing clothes all full of blood." As to the incident on October 9, appellant stated that a "voice," perhaps belonging to "the devil," had told her that "[s]omebody will kill you, and you better leave this state and go somewhere else." Appellant denied having a mental illness and claimed that her plan, upon release, was to pray and "live through God."

Both of the mental health examiners testified. Dr. McCubbin rendered the opinion that appellant suffered from a mental disorder and that she was a danger to herself and unable to provide for her basic needs. McCubbin testified that appellant was a danger to herself "only in the sense of putting yourself in difficult situations like going to the airport to fly out someplace * * * and not fully clothed, and expect to get on an airplane, which is unreasonable." Dr. O'Malia agreed that appellant suffered from a mental disorder (schizophrenia) and that the disorder causeddelusions and hallucinations that appellant "responds to * * * very strongly, very impulsively, unpredictably and irrationally." O'Malia also concluded that that disorder rendered appellant unable to provide for her basic needs, but determined that appellant was only a danger to others, and not a danger to herself.

The trial court determined that appellant had a mental disorder and, because of that disorder, was a danger to herself. The trial court explained:

"[W]hat concerns me most about her circumstances in this case is the command hallucinations and her response to them. And I have in the record at least three times in which she's responded to the voices in her head, such that have placed herself in what I consider harm's way * * *.

"Once was when she * * * became frightened by the voices and took off running and fell. She was injured at that point.

"She heard voices when she was at the hospital on the [9]th of October, voices telling her that she wasn't safe at Providence, that she should flee, and she fled.

"She then heard voices to tell her that the father was taking the child to another state and she needed to go and follow and get the child. And so she got herself on MAX * * * got on without paying for aticket, and took it out to the airport, at which point she's stymied because she can't go any further.

"But I find [that] placed her at risk. She's out there, confused, disorganized, unable to provide any identifying information to people wanting to help her.

"And so I believe that these three—at least these three incidents, there's also the fleeing from the doctor's office. I don't know what was going on at that point, there was not enough information to know if that was based on voices. But I believe * * * at this point in time she responds very unpredictably and impulsively to the * * * command hallucinations and she's established a pattern of doing so, and that I believe that untreated she'll likely follow that pattern again and will again place herself in harm's way."

The trial court committed appellant to the Oregon...