State v. K. J. B. (In re K. J. B.)
| Decision Date | 14 December 2016 |
| Docket Number | A160841 |
| Citation | 282 Or.App. 862,387 P.3d 467 |
| Parties | In the Matter of K. J. B., A Person Alleged to have a Mental Illness. State of Oregon, Respondent, v. K. J. B., Appellant. |
| Court | Oregon Court of Appeals |
282 Or.App. 862
387 P.3d 467
In the Matter of K. J. B., A Person Alleged to have a Mental Illness.
State of Oregon, Respondent,
v.
K. J. B., Appellant.
A160841
Court of Appeals of Oregon.
Submitted September 15, 2016.
December 14, 2016
Eric J. Deitrick and Multnomah Defenders, Inc., filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jona J. Maukonen, Assistant Attorney General, filed the brief for respondent.
Before Duncan, Presiding Judge, and Garrett, Judge, and Wollheim, Senior Judge.
GARRETT, J.
In this civil commitment case, appellant seeks reversal of an order committing him to the Oregon Health Authority on the ground that appellant suffered from a mental disorder that made him dangerous to himself, dangerous to others, and unable to provide for his basic needs. ORS 426.130 ; ORS 426.005(1)(e) (2013).1 We conclude that appellant failed to preserve the argument that he makes on appeal and, accordingly, we affirm the judgment of commitment.
Appellant has not requested that we exercise our discretion to review de novo , and we decline to do so in this case. Instead, "we view the evidence, as supplemented and buttressed by permissible derivative inferences, in the light most favorable to the trial court's disposition and assess whether, when so viewed, the record was legally sufficient to permit that outcome." Dept. of Human Services v. N. P. , 257 Or.App. 633, 639, 307 P.3d 444 (2013).
Appellant has been diagnosed with schizoaffective disorder since 1986. Appellant's disorder causes him to become highly disorganized and experience delusions. Those symptoms worsen when appellant is not taking his medication. Appellant has experienced periods of homelessness and substance abuse and has struggled to take advantage of resources available to obtain food, shelter, and medical treatment.
In October 2015, appellant was arrested for setting a fire in public, and then held at Yamhill County Jail. At a subsequent arraignment on unrelated charges, he exhibited gross disorganization and bizarre behavior, which led to the initiation of this civil commitment proceeding.
At the civil commitment hearing, the state presented evidence regarding appellant's fire setting, his medical history, and his behavior in jail. Regarding the fire setting, the
state's precommitment investigator testified that, when she questioned appellant about the October 2015 fire, he told her that he had set the fire because he was trying to get warm. Appellant's mental health caseworker, who had worked with appellant for approximately a year, testified that she had received an earlier report from appellant's family that he had set fires at their property.
As to appellant's medical history, a county social worker testified about an earlier occasion, in July 2015, when appellant had been brought to jail with an infected toe. Appellant had failed to sufficiently care for a foot injury, leading to the infection, which required amputation of the toe. After the amputation, appellant initially refused to take antibiotics and to care for his foot. But, once appellant was stabilized on his psychiatric medications, he began taking the antibiotics and, according to the social worker, appeared to "clear up pretty good before he left jail."
Finally, regarding appellant's behavior during his current incarceration, the state presented witnesses who testified that appellant had created unsanitary conditions in his cell by causing his toilet to overflow and urinating on his belongings and mattress. He also had refused to meet with the jail's psychiatric nurse practitioner and to take psychiatric medications.
At the close of the evidentiary portion of the hearing, appellant's counsel argued that the state's evidence was insufficient to support an involuntary commitment, based on the following rationale:
"[T]his is one of those very difficult cases where I—I do think that the state has met its burden to show that [appellant] suffers from a mental illness, * * * but I don't believe that they have * * * sufficient evidence to allow the court to find by clear and convincing evidence that he is unable to provide for his basic needs, or that he poses a risk to himself or to other people.
"* * * * *
"As for the basic needs, the law—case law is very clear on this. Basic needs, of course, refers to accessing food, accessing water, accessing necessary medical care to prevent imminent physical—well, a serious harm to the individual.
And I don't think that the state has shown that today. All of the witnesses today have testified that [appellant] has experience as a homeless individual, that he has struggled in getting into shelters, that he has struggled maintaining his housing for sure, but at the same time he's been resourceful. He has located food, he has located water, he has not refused food, not refused water. And he has shown himself capable of locating sufficient shelter when needed.
"As far as medical care, there's been a lot of talk about an amputated toe from July, but there's been no evidence that that continues to—to be an ongoing medical concern that he is ignoring. * * *
"So your honor, I just don't think we have enough here for the court to conclude that [appellant] is unable to meet his basic needs. * * *
"So your honor, we'd ask that you find yes that he—[appellant] suffers from a mental illness, but no he does not pose a risk to himself, he does not pose a risk to others, and he is not unable to meet his basic needs. [T]here's just * * * not enough evidence to conclude that here your honor."
The trial court disagreed, concluding that the state had established the requirements for commitment on three different grounds. The court found that appellant was a danger to himself because he created unsanitary conditions in his cell despite having recently had a toe amputated due to infection. The court also found that appellant posed a risk of danger to others based on the evidence that appellant had started fires outside of jail to keep warm. Finally, the trial court found that appellant was unable to meet his basic needs, based on a finding that appellant's survival would be jeopardized if he were released from jail at that time:
"[I]f [appellant] were released right now he would find himself in a life threatening condition because although he's experienced as a homeless person, right now he doesn't know what month it is and is riding on busses looking for an underground surveillance sewer system * * * and has dropped some weight and is refusing to take medications, is clearly delusional, not able to do what it takes to get into the shelters, even though he knows where they are. And under these circumstances * * * I do find that that high threshold * * * is met as far as his inability to * * * meet his basic needs."
On appeal, appellant contends that the record is insufficient to establish that he was a danger to himself, a danger to others, or unable to provide for his basic needs. We address only the "basic needs" issue, because it is dispositive.
Appellant argues that, because he was incarcerated at the time of the hearing, and because no evidence was presented that his release was imminent, our decision in State v. Jensen , 141 Or.App. 391, 917 P.2d 541 (1996), precludes his commitment. In Jensen , we relied on the fact of the appellant's incarceration to conclude that the trial court erred in committing him on a "basic needs" basis.2 Id. at 394–95, 917 P.2d 541. We observed that local correctional facilities are statutorily required to provide for the health and safety of the prisoners in their custody. Id . (citing ORS 169.076 and ORS 169.140 ). Because there was no evidence of the appellant's release date, and because the state did not demonstrate that the appellant probably would not survive while incarcerated , we concluded in Jensen that the evidence was insufficient to support the appellant's commitment. Id . Similarly, here, appellant argues that the state failed to present any evidence that he was about to be released from jail; thus, he reasons, in light of Jensen , the court could not have concluded that his near-term survival was jeopardized.
The state responds that appellant's claim of error was not preserved. The state acknowledges that, at the hearing, appellant made a general argument challenging the sufficiency of the evidence to support commitment on any of the three statutory grounds. In the state's view, that general contention was inadequate to preserve the argument that appellant now makes on appeal, i.e. , that the evidence was insufficient to support a commitment under Jensen because the record is silent regarding when appellant was to be released from jail. We agree with the state.
A well-settled principle of our jurisprudence is that, before an issue can be considered on appeal, it must...
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