State v. J. G. (In re J. G.)

• Decision Date: 29 January 2020
• Docket Number: A169916
• Citation: 302 Or.App. 97,458 P.3d 721
• Parties: In the MATTER OF J. G., a Person Alleged to have Mental Illness. State of Oregon, Respondent, v. J. G., Appellant.
• Court: Oregon Court of Appeals

302 Or.App. 97

458 P.3d 721

In the MATTER OF J. G., a Person Alleged to have Mental Illness.State of Oregon, Respondent,

v.J. G., Appellant.

A169916

Court of Appeals of Oregon.

Submitted November 18, 2019.

January 29, 2020

Lindsey Burrows and O’Connor Weber LLC filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and

Julia Glick, Assistant Attorney General, filed the brief for respondent.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.

AOYAGI, J.

Appellant seeks reversal of a judgment committing her to the Mental Health Division of the Oregon Health Authority for up to 180 days. She argues that the evidence was legally insufficient for the trial court to find her to be a person with a mental illness, specifically a person who is dangerous to others due to a mental disorder. See ORS 426.130 ; ORS 426.005(1)(f)(A). For the reasons that follow, we agree with appellant and, accordingly, reverse.

We state the facts in the light most favorable to the trial court’s disposition. State v. L. R. , 283 Or. App. 618, 619, 391 P.3d 880 (2017) (standard for non-de novo review). Our task is to determine whether the record, so viewed, is sufficient to meet the legal standard for involuntary commitment. Id . In this case, the record consists of appellant’s testimony; the testimony of Hicks, a psychiatric nurse practitioner who treated appellant during her hospitalization; and the precommitment report and its attachments, which were admitted at the hearing without objection. The precommitment investigator was present at the hearing but did not testify. See ORS 426.095(4)(d) (providing for admission of the precommitment report into evidence, subject to objection, but requiring that the investigator be present to be cross-examined unless the investigator’s presence is waived by the person alleged to have a mental illness or the person’s counsel).

Appellant has been diagnosed with bipolar disorder

with severe manic episodes and psychotic features. Appellant lacks insight into her condition and believes that her only mental health concern is post-traumatic stress disorder from her military service. At the time of the hearing, appellant was taking medication but did not intend to continue taking medication if released.

Appellant was brought to the hospital by police "due to worsening symptoms of mental illness," after she "had been showering for hours [one] day, flooded her apartment, and rubbed her skin raw in areas due to excessive cleansing and scrubbing." While in the hospital, appellant continued to believe that her skin was covered in "dirt and poop" and constantly washed it, although not to the point of causing serious physical harm. She was "dysphoric, irritable, suspicious, paranoid," and "minimizing or denying of the symptoms that led to her hospitalization." She believed that staff were unfair to her and that other patients mistreated her. Particularly relevant here, three days after admission (and four days before the hearing), appellant "punched" another patient, who was "a pretty big guy," once in the back with a closed fist, when he reached for a newspaper near her food tray. In Hicks’ view, appellant misinterpreted the other patient’s behavior as threatening, because of her irritability and paranoia. Hicks was not aware of any other incidents of violence. There is no reference to violence or threats in the precommitment report or its attachments, except that a chart note from the day after the punching incident includes a statement that, "[p]er staff report, patient is anxious, angry, demanded to be released, argumentative, speaking aggressively, threatening, dismissive, and agitated. Refusing scheduled medications."

At the conclusion of the hearing, the trial court found that appellant has a mental disorder and that, due to that mental disorder, she was dangerous to others.¹ See ORS 426.130 (providing for commitment of a "person with mental illness"); ORS 426.005(1)(f)(A) (defining "[p]erson with mental illness" to include "a person who, because of a mental disorder, is *** [d]angerous to self or others"). On appeal, appellant does not contest that she has a mental disorder, but she argues that the court erred in finding that it made her dangerous to others. She asserts that the "punching" incident was an isolated incident that was not predictive of future violence and notes, among other things, that there was no evidence that she harmed the other patient or intended to harm him.

" ORS 426.005 precludes a court from committing a person on the basis of a mental disorder alone." State v. Miller , 198 Or. App. 153, 161, 107 P.3d 683 (2005). Rather, as relevant here, the state had to prove by clear and convincing evidence that appellant’s mental disorder made her dangerous to others at the time of the hearing. ORS 426.130(1)(a) ; see also State v. J. T. C., 284 Or. App. 38, 39, 392 P.3d 754, rev. den. , 361 Or. 645, 398 P.3d 42 (2017) (clear and convincing evidence is a ‘rigorous’ standard of proof that requires ‘evidence that is of extraordinary persuasiveness, and which makes the fact in issue highly probable’ (citation omitted)). Specifically, the question is whether she was dangerous to others "as a result of [her] condition at the time of the hearing as understood in the context of [her] history." State v. M. R. , 225 Or. App. 569, 574, 202 P.3d 221 (2009) (internal quotation marks omitted).

"Although ‘dangerous’ is a common term that, in ordinary usage, may refer to a broad range of threats, the type of ‘danger’ necessary to justify an involuntary civil commitment is a narrow range of serious and highly probable threats of harm." State v. S. R. J. , 281 Or. App. 741, 749, 386 P.3d 99 (2016). Also, "actual future violence" must be "highly likely." State v. L. D. , 247 Or. App. 394, 400, 270 P.3d 324 (2011). "Conclusions based on conjecture as to whether appellant poses a danger to others are insufficient." State v. M. A. , 276 Or. App. 624, 629, 371 P.3d 495 (2016) (citation omitted).

This case involves a single known act of violence. Except for the "punching" incident, there was no evidence presented at the hearing of appellant having engaged in any other acts of violence in the past or during her hospitalization. There also was no evidence presented of appellant threatening to harm anyone in the past or during her hospitalization—except for a summary reference in a chart note to a "staff report" of appellant being "anxious, angry, demanded to be released, argumentative, speaking aggressively, threatening, dismissive, and agitated," which adds little to the analysis given the lack of further detail or explanation.²

A single violent act may be sufficient to establish that a person is dangerous to others, if the circumstances of the act, the person’s history, or other contextual evidence allows the court to rely on the act to predict future dangerousness. See L. R. , 283 Or. App. at 625, 391 P.3d 880. However, an "isolated" violent act, without more, is not enough.³ State v. A. M. R. , 236 Or. App. 186, 191, 235 P.3d 720 (2010). For example, in State v. T. M. , 296 Or. App. 703, 705-06, 437 P.3d 1197 (2019), we held that the evidence was insufficient to find that the appellant was dangerous to others, where she raised a fire poker over her head, advanced toward her ex-husband (who was also her roommate and caretaker), and said that she would kill him, precisely because of the isolated nature of that incident. Again, a single violent act may be enough, but only if the evidence is sufficient to establish that the act is predictive of future dangerousness of the type necessary to justify an involuntary civil commitment, rather than an isolated incident.

The state relies on State v. T. T. , 293 Or. App. 376, 385, 428 P.3d 921 (2018), to argue that the evidence here was sufficient to establish appellant’s dangerousness to others, where appellant’s single violent act was paired with "unabated symptoms that included psychosis

, lack of willingness to take medication, lack of insight into her condition, and impaired judgment." We disagree that T. T. is comparable to this case. Although fact-matching is of little utility in commitment cases, see

id. at 384, 428 P.3d 921, it is notable that, in T. T. , the appellant had stabbed her husband in the hand with a knife, she continued to believe at the time of the hearing that "the threat had been real and needed to be neutralized," and she gave various explanations for stabbing him, including because of "a...