State v. G.L.

• Decision Date: 10 November 2010
• Docket Number: 09118MC; A141782.
• Citation: 243 P.3d 469,238 Or.App. 546
• Parties: In the Matter of G.L., Alleged to be a Mentally Ill Person. STATE of Oregon, Respondent, v. G.L., Appellant.
• Court: Oregon Court of Appeals

243 P.3d 469

238 Or.App. 546

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

v.G.L., Appellant.

09118MC; A141782.

Court of Appeals of Oregon.

Submitted on Aug. 13, 2010.

Decided Nov. 10, 2010.

Charles Kochlacs filed the brief for appellant.

John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, andMichael R. Washington, Senior Assistant Attorney General, filed the brief for respondent.

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

DUNCAN, J.

This is a civil commitment case in which appellant seeks reversal of the trial court's judgment adjudicating her to be mentally ill and committing her to the Mental Health Division. ORS 426.130(1)(b)(C) (2007). ¹ Appellant asserts there was insufficient evidence to support the trial court's decision that, because of a mental disorder, she was "[u]nable to provide for basic personal needs and [was] not receiving such care as is necessary for health or safety." ORS 426.005(1)(d)(B). On de novo review, ORS 19.415 (2007),² we agree that there was insufficient evidence that appellant was unable to provide for her basic needs and, therefore, reverse.³

The relevant facts are as follows. At the beginning of March 2009, appellant was a 25-year-old university student. She and her two-year-old daughter lived together in an apartment in Ashland. They had lived in the apartment for over a year. Appellant received food stamps and student loans. Appellant's parents lived nearby and helped care for appellant's daughter.

Appellant was diagnosed with bipolar disorder in November 2007. She received treatment from a psychiatric nurse, Nielsen, who prescribed her Lithium. According to Nielsen, appellant was "very stable" when she was on her medication; appellant was an excellent student and was able to successfully manage work and parenting duties while in school. According to appellant's father, appellant had always been a very organized person and had always done well in school. Appellant's father noticed changes in appellant'sbehavior in the beginning of March 2009. According to appellant's father, appellant became "vulgar, accusatory, and * * * unfocused."

On the night of March 15, 2009, Officer Cromwell came to appellant's apartment to investigate a case of telephonic harassment between appellant and her ex-husband. Cromwell arrived between 9:30 and 10:00 p.m., and appellant's daughter was asleep in bed. Appellant stepped outside to speak with Cromwell, and the apartment door locked behind her. Cromwell questioned appellant about the telephonic harassment and found her answers nonresponsive. According to Cromwell, appellant giggled and laughed inappropriately. Cromwell thought appellant might have been intoxicated.

Cromwell decided to arrest appellant for telephonic harassment. Cromwell told appellant she was going to be taken to jail and she needed to find someone to care for her daughter. Appellant had trouble focusing and was uncooperative. She would not say whether there was anyone else who had a key to the apartment or who could care for her daughter. Cromwell had the apartment manager unlock the apartment. Inside, Cromwell found appellant's daughter asleep in bed. She also found a phone number for appellant's mother, who came to care for appellant's daughter. Cromwell took appellant to jail.

Appellant was released from jail the next day, March 16. She and her father went to see Nielsen. Appellant told Nielsen that she had stopped taking her medication. According to Nielsen, appellant seemed "a little argumentative" and "a little bit obstinate." She also laughed inappropriately at times.

The following week, appellant's parents initiated a civil commitment proceeding. ORS 426.070(1)(a). On March 25, a mental health investigator, Ortiz, interviewed appellant and found her "very pressured and labile, angry." According to Ortiz, appellant was rude and sarcastic; she refused to answer some of Ortiz's questions, saying Ortiz already had the information she was asking for. Appellant told Ortiz that she did not want to take her medication because it "slowed her down." Ortiz asked appellant if she was suicidal, andappellant replied she was not suicidal, but she was "homicidal." She said her ex-husband had threatened her with a knife and she wanted to kill him.

Later that day, appellant drove to Mt. Shasta, left her car on the side of the interstate with the keys inside, and walked a quarter mile to a highway patrol station. An officer called appellant's parents, and appellant's father came to pick up appellant.

The following day, March 26, Ortiz filed a report recommending that the trial court issue an order to hold appellant at a hospital pending a civil commitment hearing. ORS 426.070(4), (6). The report stated that appellant had a mental disorder, was dangerous to herself and others, and was unable to provide for her basic needs. Later that day, a sheriff's deputy took appellant into custody and transported her to a hospital.

On March 29, Genack, a psychiatrist serving as the mental health examiner for the commitment proceeding, met with appellant at the hospital. He concluded that appellant had a mental disorder, but that she was not a danger to herself or others and that she was able to provide for her basic needs. In a written report, Genack stated that, when he met with appellant, she was "alert and cooperative, * * * oriented to time, place, person and situation." "Her mood [was] midrange, her thinking [was] linear." Appellant believed she would "benefit from psychological counseling," and her "insight [was] fair, judgment [was] intact, and [there was] no evidence of cognitive impairment." Genack further reported that appellant's behavior in the hospital indicated that she was not a danger to herself or others. According to Genack, appellant "exhibited adequate frustration tolerance in a frustrating environment."

On March 30, the trial court held a commitment hearing. Appellant's father testified about how appellant's behavior had changed since the beginning of March. In addition, appellant's father reported that appellant had gone to Boston for a student conference, but had walked around the city instead of attending the conference and had incurred a large bill at her hotel. When appellant returned from the trip, she failed to take her final examinations. After her arrest, appellant was particularly disorganized; she lost her purse,phone, and car keys. Appellant's father expressed concern about appellant's ability to care for herself; he testified that, when he picked up appellant after she drove to Mt. Shasta, "She did not smell very good. I don't know when the last time she had a shower." Appellant's father testified that, to his knowledge, appellant had never threatened harm to herself or anyone else and she had never attempted to cause anyone physical harm. Appellant's father also testified that he and appellant's mother had been taking care of appellant's daughter since appellant's arrest, with the involvement and approval of the state's child welfare agency.

Nielsen, appellant's treatment provider, testified that appellant had not expressed suicidal thoughts and that she was not a danger to others. Nielsen explained that, when she saw appellant after she had stopped taking her medication, appellant was "argumentative, but that's not a danger to others."

Genack, the mental health examiner, testified that, although appellant had a mental disorder and possibly an alcohol abuse issue, she did not meet the statutory criteria for commitment. He explained:

"[S]he does have ongoing mental problems that do need care including counseling and follow-up—psychiatric follow-up. I just don't feel that she meets the criteria—I don't feel that she's an acute danger to herself or others based on her—the level of stability that she's had here on the unit."

Genack further testified that appellant was able to provide for her basic needs.

Ortiz, the mental health investigator, testified that appellant probably would not be able to meet her basic needs without support from her parents:

"I think on her own she probably wouldn't be able to meet her needs. I mean, her parents are helping her. But without that support * * * I think she would decompensate further, especially with her * * * continuation to refuse medication."

Ortiz also testified that appellant would not be able to care for her daughter, stating:

"From the * * * reports of what I've heard, I don't think she would be able to care for her two-year-old daughter. Andthat would be the danger to others. You know, locking her two-year-old inside the house and not being cooperative with the police."

Further, Ortiz testified that

"on two occasions at her house I did offer her * * * some help with getting started on her medications, or kind of coordinating that, and also in the hospital I did offer her that and she refused. She said she did not want to take her Lithium or any other medication because it slows her down."

The trial court held that appellant was not a danger to herself or others, but that she was unable to provide for her basic needs. The court explained:

"I don't find that the Petitioners have proven by clear and convincing evidence that [appellant] either presents a danger to herself or presents a danger to others.

"However, I do find that it has been proven that [appellant] is unable to care for her basic personal needs to the extent not likely to survive in the near future. Certainly it seems that she is not really cognizant of her natural surroundings, her natural schooling, her responsibilities.

"I heard some—some testimony about hygiene, and I consider basic personal needs to also include * * * taking medication as prescribed, which she doesn't—did not appear to be doing. And certainly the testimony is pretty overwhelming that when she is on her medication, she seems to be doing quite well. But as of late, and she has self admitted she has not been taking the

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