State v. D.R.

• Decision Date: 15 December 2010
• Docket Number: 090666080; A142708.
• Citation: 239 Or.App. 576,244 P.3d 916
• Parties: In the Matter of D.R., Alleged to be a Mentally Ill Person. STATE of Oregon, Respondent, v. D.R., Appellant.
• Court: Oregon Court of Appeals

244 P.3d 916

239 Or.App. 576

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

v.D.R., Appellant.

090666080; A142708.

Court of Appeals of Oregon.

Submitted Sept. 28, 2010.

Decided Dec. 15, 2010.

Rebecca Carter filed the brief for appellant.

John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Karla H. Ferrall, Assistant Attorney General, filed the brief for respondent.

Before LANDAU, Presiding Judge, and ORTEGA, Judge, and SERCOMBE, Judge.

SERCOMBE, J.

Appellant seeks reversal of an order adjudicating her to be mentally ill and committing her to the Oregon Health Authority under ORS 426.130(1)(b)(C).¹ Appellant contends that the state failed to prove by clear and convincing evidence that she was a danger to herself. ORS 426.005(1)(e).² Appellant also argues that the evidence established that she was amenable to voluntary treatment and therefore commitment was inappropriate. ORS 426.130(1)(b)(A). Because the facts, as found by the trial court, were sufficient to establish that appellant was a danger to herself, we affirm the judgment of commitment.

Although historically civil commitment orders have been reviewed de novo, we no longer review those orders under that standard. ORS 19.415.³ Instead, we review civil

[244 P.3d 918, 239 Or.App. 579]

commitment orders de novo only if we exercise our discretion to do so under ORS 19.415(3)(b).⁴ ORAP 5.40, the rule of appellate procedure concerning the exercise of our discretion to review a case de novo, requires an appellant to state the reasons why de novo review is appropriate in his or her case. Because appellant did not specify the grounds that make de novo review appropriate in this case, we decline to exercise our discretion to review this case under that standard.

We review the trial court's legal conclusions for errors of law, but are bound by its findings of historical fact unless there is no evidence to support them. See State v. S.T.S., 236 Or.App. 646, 654-55, 238 P.3d 53 (2010) (applying that standard of review to a juvenile dependency judgment where the court declined to exercise de novo review under ORS 19.415); DHS v. Three Affiliated Tribes of Fort Berthold, 236 Or.App. 535, 538-41, 552, 238 P.3d 40 (2010) (same); Dept. of Human Services v. C. Z., 236 Or.App. 436, 442, 236 P.3d 791 (2010) (same). "Where findings on disputed issues of fact are not made but there is evidence supporting more than one possible factual conclusion, we presume that the [trial] court decided the facts consistently with its ultimate legal conclusion." C. Z., 236 Or.App. at 442, 236 P.3d 791. We state the facts, then, consistently with the trial court's express and implied findings.

Appellant was hospitalized based on the events of a single day. On the morning of that day, as her son-in-law, Swanson, was driving home, he encountered appellant crossing a busy four-lane street with her head down. She was not walking in a crosswalk; Swanson and another driver had to stop abruptly to let her cross. Swanson stopped his car beside appellant, and she told him that her car had run out of gas. Appellant asked Swanson to accompany her to a nearby gas station.

At the gas station, appellant misidentified another white car as her own. When Swanson informed appellant that the vehicle was not her car, she confronted the gas station attendant, asking why he had towed her car. Swanson then located appellant's car a block and a half down the street. Appellant and Swanson put gas in the car, and each went about their day.

Later that afternoon, Swanson received a phone call from a church pastor and family friend who was concerned about appellant. Swanson drove to the church and met appellant there. Her speech and behavior were frenetic and disorganized. Swanson testified, "She was just all over with conversations and movements, pleasant but all over the place."

Appellant told Swanson that she needed to drive to an automotive store to purchase some parts for her car. Swanson agreed to follow her in his own car. Shortly thereafter, appellant ran a red light and stopped in a merging lane for a period of time before proceeding. Other cars were forced to merge around her. At a subsequent right turn, appellant cut off an approaching car and later ran three stop signs, although she observed the speed limit and her driving was otherwise unremarkable. At the second of those stop signs, appellant went through the intersection a few seconds ahead of Swanson. When Swanson stopped at the sign, he observed an approaching semi-truck a few car lengths down the road.

Eventually appellant parked her car near a daycare facility. Swanson parked across the street to observe. Appellant briefly entered the facility and came back out and began uprooting plants in a flower bed near an adjacent apartment building. The property manager of the apartment building arrived and had a heated exchange of words with appellant. Appellant walked away from the apartment manager. Swanson called the police, who found appellant a short distance away. Her commitment to a local hospital followed, as did the hearing in this case.

At the time of the hearing, appellant had difficulty focusing, was disorganized, and exhibited poor insight into her mental condition. The record showed that she was inconsistent in taking her medications. Both examiners concludedthat appellant suffered from bipolar disorder, and one examiner opined that commitment was appropriate. The examiner who advocated commitment explained:

"Because her thoughts are so scattered and she's so distracted, she can't focus on any given situation. She's unable to recognize that it's dangerous to cross a four-lane street looking down * * *.

" * * * * *

"And given her inability to even answer a question today without extreme redirection I can't see her on the road in any degree of safety. And I don't think she would take Tri-Met. She did say, 'Oh, I could take Tri-Met.' But she's got many places to go and a lot of things to do, and she has a car. So I felt that because of that, because she doesn't recognize her—she's impaired enough that she can't comprehend her disorganization. And I don't see her as capable of making adequate judgments for the road."

The trial court found that the state had proved by clear and convincing evidence that appellant suffered from a mental disorder and that that mental disorder made her a danger to herself. The court further concluded that appellant was not able to follow through on voluntary treatment due to her disorganization. The court explained its rationale for commitment:

"She was walking in traffic without paying attention to what was going on around her. Now, maybe that in and of itself is not a basis for commitment.

"I'm very concerned about the driving. I'm very, very concerned about the driving. I absolutely believe her son-in-law's testimony that she drove through red lights and stop signs. She absolutely does not acknowledge doing it. And I think the basis of her distractibility, her inability to focus, her tangential thoughts all fit into her behavior on that day. And although I see some improvement in it, I don't see it gone.

" * * * * *

"And I have been trying to figure out a way to not have her be in her car. But it's her car, and if she demands the keys she has a right to the keys. And there's gas in it. And Idon't see that she is thinking clearly enough to get behind the wheel of a car.

" * * * * *

"I have just grave concerns about her continuing to drive when she continues to be very distracted and disorganized in her thinking and in her surroundings around her.

"I'm not going to necessarily say what I think exactly is going to happen because I think that's asking me to speculate. But I think she is going to get behind the wheel of the car, and I think she is going to drive, and I think that places herself and potentially other people at risk by doing so.

"Whether she walks out in traffic again is part of her destructibility that I cannot * * * predict. But I can predict that she's going to continue to act in a disorganized and destructive manner. And, therefore, I will do the commitment based on danger to self. I'm going to do it for a very much shorter period of time though because I don't think [appellant] need[s] to be in a hospital a really long time. And so it's going to be for a period not to exceed 60 days."

On appeal, appellant does not dispute that she suffered from a mental disorder. Instead, appellant argues that she is not a danger to herself "because of [that] mental disorder" under ORS 426.005(1)(e). Specifically, she argues that there was no proven nexus between her mental disorder and her driving and that there was insufficient proof of a pattern of behavior on which to base a conclusion of likely future harm. For the following reasons, we conclude that a rational trier of fact could have found that there was clear and convincing evidence that appellantwas a danger to herself. ⁵Cf. State v. Cervantes, 319 Or. 121, 125, 873 P.2d 316 (1994) (stating an analogous standard of review for factual sufficiency in criminal cases).

Given the serious deprivation of liberty and social stigma that are attendant to a civil commitment, and the factthat such a preventive confinement is predicated on a prediction of future behavior, our cases have articulated certain minimum evidentiary standards for commitment. See State v. Lott, 202 Or.App. 329, 354, 122 P.3d 97 (2005), rev den, 340 Or. 308, 132 P.3d 28 (2006) (Edmonds, P.J., dissenting) ("The tension between the protection of personal liberties and the provision of medical help to persons with mental disorders can be relieved if courts strictly adhere to the statutory requirements for involuntary commitment and ensure that there is an evidentiary basis that satisfies each of those requirements."); State v. Simon, 180 Or.App. 255, 263, 42 P.3d 374 (2002) ("Predicting future human behavior is an inherently speculative endeavor."). In order...