State v. M. B. (In re M. B.)
| Decision Date | 14 November 2019 |
| Docket Number | A165589 |
| Citation | 452 P.3d 1006,300 Or.App. 522 |
| Parties | In the MATTER OF M. B., a Person Alleged to have Mental Illness. State of Oregon, Respondent, v. M. B., Appellant. |
| Court | Oregon Court of Appeals |
Jed Peterson and O’Connor Weber LLC filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Judy C. Lucas, Assistant Attorney General, filed the brief for respondent.
Before DeHoog, Presiding Judge, and Aoyagi, Judge, and Hadlock, Judge pro tempore.
Appellant seeks reversal of a judgment committing her to the Oregon Health Authority for a period not to exceed 180 days. She argues that the evidence was insufficient to support the trial court’s finding that she was unable to provide for her basic personal needs, which is a basis for commitment under ORS 426.130(1)(a)(C) and ORS 426.005 (1)(f)(B). We agree with appellant and, accordingly, reverse.
Unless we exercise our discretion to review de novo —which we do not in this case—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." State v. T. W. W. , 289 Or. App. 724, 726, 410 P.3d 1032 (2018) (internal quotation marks omitted). We describe the facts in accordance with that standard.
Officer Ibrahim was dispatched to a local bar after the police received multiple calls that a woman was harassing customers outside the bar. It was mid-July and around 8:00 p.m. Upon arrival, Ibrahim observed appellant standing fully naked on the side of the street. When he got out of his car, appellant put her shirt on, although she later took it off again (and then put it on again at his request). A woman standing next to appellant told Ibrahim that she knew appellant from high school and that appellant was "not being herself." Ibrahim observed that appellant was dirty, "basically didn’t have any hair," and had minor cuts on her head. Appellant appeared not to know exactly where she was. She talked about "an invisible dog that was not there" and pointed at things that were not there. Appellant told Ibrahim that she had taken Xanax. Believing her to be at risk, Ibrahim called an ambulance to take appellant to the hospital. He thought, based on her appearance and behavior, that she was suffering from some sort of mental health issue and was a danger to herself and not able to "care for herself."
Appellant was hospitalized. On her first night at the hospital, she told the precommitment investigator that she had not been eating well, had been hungry, and had lost weight. She explained that she had been unable to get food stamps because she lost her identification. She also said that she had no current income. The next day, the investigator found appellant to be "significantly worse." Appellant made many "nonsensical statements" and engaged in "flight of ideas." She acknowledged to the investigator that she had defecated on the floor of her hospital room because she "had to go" and the bathroom smelled bad. She also acknowledged having put medication up her rear end and in her vagina and then offered it to the security guard, and she acted as if that was "perfectly reasonable" conduct. Appellant told the investigator that she was sorry about having shaved her head and wanted to grow her hair long again; she said that her head hurt from a sunburn, and the investigator noted that it was quite red.1
A civil commitment hearing was held in July 2017. The state sought civil commitment under ORS 426.130 (1)(a)(C) and ORS 426.005(1)(f)(B), based on appellant being unable to provide for her basic personal needs. No other bases for commitment were asserted.
Ibrahim testified about the circumstances of appellant’s hospitalization, as described above, and then appellant testified. Appellant testified that she "[didn’t] really know" why she was in the hospital. She said that she must have been "dehydrated" or had "a bug." Asked how she would obtain money if released, appellant said that she could be a Playboy Bunny for Hugh Hefner. Shortly thereafter, appellant spontaneously said—seemingly not in response to the pending question—that she was "tired of people beating [her] ass" and that, while she was "walk[ing] down the street one day to get [her] shoes back," a man once threw her down and severely hurt her back and, when she woke up, a woman was "beat[ing] the bug out of [her]" and "cracked [her] in the head." Later, appellant said that she thought she had border-line personality disorder but "[didn’t] even know what any of that stuff is really." She said that she did not want to be in a psychiatric hospital, preferred to be outside, and was "not a psychopath." Asked where she would go if released, appellant said that she would "march right over there to Tyler’s house," or, "could go to John’s house if somebody would call him." During the hearing, appellant was drinking from a water bottle with a banana peel in it, which she explained was for extra potassium. Appellant made many nonsensical statements throughout her testimony. She could not recall why she had been naked outside the bar.
Examiner Edelson gave her report to the court, which contained diagnostic impressions of psychosis
not otherwise specified and methamphetamine-induced psychosis. (Appellant had tested positive for amphetamines when she arrived at the hospital.) Edelson listed appellant’s symptoms as "visual hallucinations, tangential, flight of ideas, delusions, grandiose." She reported that appellant "[c]annot answer direct questions in a meaningful way" and that "her only organized statement" was her "clear" statement that she wanted to be released. Edelson found that appellant had "no insight into being naked downtown [and] no explanation for her behavior" and that she "is too disorganized to plan and follow through [with outpatient] care or even shelter." As for Rogers, he noted that appellant "had no realistic or rational plan should she be released." Rogers opined that appellant was "clearly still psychotic to the point that she would be at a grave risk if discharged due to being unable to care for her basic needs."
At the end of the hearing, the trial court determined that appellant had a mental disorder that made her unable to provide for her basic personal needs. On that basis, the court civilly committed her for a period not to exceed 180 days. On appeal, appellant challenges the sufficiency of the evidence to support the commitment.
Under ORS 426.130(1)(a)(C), if, after hearing all the evidence at a civil commitment hearing and reviewing the findings of the examiners, the court finds, based on clear and convincing evidence, that a person is "a person with mental illness," and release or conditional release is not in the person’s best interest, the court may order the person to be committed. ORS 426.005(1)(f)(B) defines a "[p]erson with mental illness" to include a person who, because of a mental disorder, is "[u]nable to provide for basic personal needs that are necessary to avoid serious physical harm in the near future , and is not receiving such care as is necessary to avoid such harm." (Emphasis added.) See also State v. M. A. , 276 Or. App. 624, 631, 371 P.3d 495 (2016) ().
As we recently discussed in State v. M. A. E. , 299 Or. App. 231, 232, 237, 448 P.3d 656 (2019), the legislature amended ORS 426.005(1)(f)(B) in 2015, resulting in the current standard for a basic-needs commitment, which became effective on January 1, 2016. Under the current standard, "serious physical harm" means a nonspeculative threat that the person will not safely survive without treatment, and "in the near future" means something less immediate than "imminent" but not so attenuated from present circumstances as to render it speculative. Id. at 239-40, 448 P.3d 656.
"Whether the evidence presented by the state is legally sufficient to support a civil commitment is a question of law." State v. A. D. S. , 258 Or. App. 44, 45, 308 P.3d 365 (2013). In this case, appellant does not contest that she has a mental disorder, but she argues that there was insufficient evidence that her mental disorder makes her unable to provide for her basic personal needs. The state defends the commitment, emphasizing that appellant was dirty, hungry, and thin when she arrived at the hospital and that she lacked any organized post-release plan.
As relevant to the issue before us, the record contains evidence that appellant had lost weight over an unspecified time period, lacked a current source of income, was presently unable to obtain food stamps due to having lost her identification, had a sunburn and minor cuts on her head, had been found naked on a public street, and lacked a clear post-release housing plan. We address each of those pieces of evidence in turn, while emphasizing that we ultimately must look at the record as a whole to determine whether the evidence was sufficient for commitment. See M. A. E. , 299 Or. App. at 241, 448 P.3d 656 (); M. A. , 276 Or. App. at 632, 371 P.3d 495 ().
With respect to the evidence related to food, the record shows that appellant had struggled, at least recently, with obtaining adequate food, but it does not establish that appellant’s challenges in obtaining food had reached the point of putting her at risk of serious physical harm in the near future. For example, there was no evidence that appellant was at a medically dangerous weight when she arrived at the hospital, that she did not have access to shelters or soup kitchens, or that she would be unable to replace her identification so that she could obtain food stamps. Cf. ...
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