State v. K.J.B. (In re K.J.B.)

• Citation: 416 P.3d 291,362 Or. 777
• Decision Date: 19 April 2018
• Docket Number: CC 15CC06361,SC S064607
• Parties: In the Matter of K.J.B., a Person Alleged to have a Mental Illness. STATE of Oregon, Respondent on Review, v. K.J.B., Petitioner on Review.
• Court: Supreme Court of Oregon

362 Or. 777
416 P.3d 291

In the Matter of K.J.B., a Person Alleged to have a Mental Illness.

STATE of Oregon, Respondent on Review,
v.
K.J.B., Petitioner on Review.

CC 15CC06361
SC S064607

Supreme Court of Oregon.

Argued and submitted September 18, 2017.
April 19, 2018

Joseph R. DeBin, Portland, Multnomah Defenders, Inc., argued the cause and filed the briefs for petitioner on review.

Inge D. Wells, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Crystal Maloney, Portland, filed the brief for amicus curiae Oregon Justice Resource Center.

Before Balmer, Chief Justice, and Kistler, Walters, Nakamoto, and Flynn, Justices, and Landau, Senior Justice pro tempore, and DeVore, Judge of the Court of Appeals, Justice pro tempore.^**

LANDAU, S.J.

362 Or. 779

Petitioner was civilly committed on the ground that he was dangerous to himself, dangerous to others, and unable to provide for his basic needs. At the time of his commitment, he was held in county jail. On appeal, he challenged his commitment on all three grounds. Concerning his ability to provide for his basic needs, petitioner argued that, because he had been in jail at the time of the commitment hearing, it must be presumed that he was receiving adequate care, and the state failed to establish that he would be released from incarceration any time in the near future. The Court of Appeals concluded that petitioner had failed to preserve that argument. State v. K. J. B. , 282 Or. App. 862, 867-69, 387 P.3d 467 (2016). And, because his inability to provide for his basic

416 P.3d 293

needs established sufficient grounds to support the commitment order, it declined to address the sufficiency of the evidence as to the other grounds for the order. Id. at 869-70, 387 P.3d 467.

On review, petitioner does not dispute that he did not present to the trial court precisely the same argument that he advances on appeal. He nevertheless contends that he raised the sufficiency of the evidence to support his commitment on the ground that he could not provide for his basic needs and that such a general objection was adequate to preserve the more particular argument he now asserts. The state, meanwhile, argues that the case is now moot because the underlying order of commitment has long since expired. In the alternative, it argues that petitioner did not preserve the argument that, to establish a basic-needs commitment when an individual is currently incarcerated, the state must prove the date when an individual will be released.

We conclude that the case is not moot, given the collateral consequences of an order of civil commitment. We also conclude, however, that petitioner failed to preserve his contention that the state was obliged to establish the expected date of his release from custody to establish the elements of a basic-needs commitment. We therefore affirm the decision of the Court of Appeals.

362 Or. 780

I. FACTS

The relevant facts are not in dispute. Petitioner has suffered from schizoaffective disorder for more than 30 years and is intermittently homeless. He was arrested in October 2015 for setting a fire near an apartment complex and thereafter held in county jail. While in jail, petitioner blocked the toilet in his cell and urinated on his sleeping mat and clothes. He refused to go to court and demonstrated bizarre and disorganized behavior during a video arraignment on another, unrelated, charge. At that point, the trial judge entered a notice of mental illness, triggering the civil commitment process under ORS 426.070 to ORS 426.415.

At the civil commitment hearing, the state asserted that petitioner should be committed on the grounds that he was dangerous to himself, dangerous to others, and unable to provide for his basic needs. A precommitment investigator who had met with petitioner in jail testified that petitioner exhibited disorganized speech and appeared to be quite paranoid. She stated that, although she did not believe him to be a danger to himself or others, she did believe him unable to meet his basic needs "because of the level of psychosis that I was seeing within the jail setting" and because of the fire incident. She reported that petitioner had explained that he had set the fire in order to keep warm. She also reported he refused medication for his mental disorder. On cross-examination, the investigator testified that she was not aware of any report that petitioner had not been eating or drinking while in jail.

Petitioner's case manager and therapist also testified. She stated that, over the previous year, petitioner had experienced trouble finding a place to live and finding access to food. She said that problems with medications "ha[d] been an ongoing thing" and that, when he does not take his medications, he becomes highly disorganized and delusional. She said that her understanding from jail staff was that he was continuing to refuse medication and that, when released from jail, he has a difficult time obtaining necessary resources. On cross-examination, she said that she had no reason to think that petitioner was not eating or drinking while in jail, but she noted that she had observed

362 Or. 781

that petitioner had lost about ten pounds while in jail. When asked about his resources outside of jail, she reported that she was aware of the existence of family members, but that petitioner was hesitant to rely on them for assistance.

A criminal justice behavioral health specialist testified as well. She stated that, although petitioner had not given jail staff much trouble, "he's not taking very good care of himself in the fact that he's urinating all over everything, and his mat and his clothes and—and he just is very incoherent, [and] disorganized." She said that petitioner had refused psychiatric care while incarcerated. On cross-examination, she said that she had reports that petitioner had occasionally

416 P.3d 294

refused to eat while in jail, but that he was generally eating enough to remain healthy.

Finally, petitioner's probation officer testified concerning the circumstances leading to his most recent arrest. On cross-examination, she testified that, during the previous six months, she had no reason to believe that petitioner was not taking care of himself, not feeding himself, or not drinking water.

At the close of the evidence, counsel for petitioner argued that the state had not met its burden of establishing any of the grounds for an involuntary civil commitment:

"[T]his is one of those very difficult cases where I—I do think that the state has met its burden to show that [petitioner] 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.

"* * * * *

"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—that [petitioner] 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

362 Or. 782

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 [petitioner] is unable to meet his basic needs."

The trial court concluded that the state had met its burden of establishing the requirements for commitment on all three grounds—dangerous to himself, dangerous to others, and unable to provide for his basic needs. As to the basic-needs showing, the court explained:

"[I]f [petitioner] 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 known what month it is *** 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, what I've heard, *** I do find that the high threshold is *** met as far as his inability to *** meet his basic needs. *** I was particularly troubled by [the jail liaison's] description of the occurrences in the jail with the plugging of the *** toilets and walking through the sewage and with a toe that may or may not need continued medical attention. And covering your personal belongings in

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