State v. Stephens

• Decision Date: 14 November 2001
• Citation: 178 Or. App. 31,35 P.3d 1061
• Parties: In the Matter of Andrew Stephens, Alleged to be a Mentally Ill Person. STATE of Oregon, Respondent, v. Andrew STEPHENS, Appellant.
• Court: Oregon Court of Appeals

35 P.3d 1061

178 Or. App. 31

In the Matter of Andrew Stephens, Alleged to be a Mentally Ill Person.

STATE of Oregon, Respondent, v. Andrew STEPHENS, Appellant.

0003-63052; A109849

Court of Appeals of Oregon.

Argued and Submitted July 3, 2001.

Decided November 14, 2001.

Paul L. Breed, Portland, argued the cause and filed the brief for appellant.

Katherine H. Waldo, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before EDMONDS, Presiding Judge, and ARMSTRONG and KISTLER, Judges.

EDMONDS, P.J.

Appellant appeals from an involuntary mental commitment order. ORS 426.130. He makes two assignments of error, one of which has already been decided adversely to him in State v. Cach, 172 Or.App. 745, 19 P.3d 992 (2001). In his other assignment, appellant contends that the evidence is insufficient to show that he is unable to meet his own basic needs. We agree and reverse.

Appellant is a 21-year-old who was brought before the court in March 2000 for an involuntary civil commitment hearing after having voluntarily sought treatment at a medical center. During his voluntary hospitalization, appellant was found hiding in another patient's room. He was very agitated and as a result a "hold" was placed on him. Appellant has been diagnosed in the last year with a schizoaffective bipolar disorder. He has been prescribed two medications that appear to control the worst of his symptoms, including "manic phases." During those phases, he suffers from abnormal fear and reactions in ordinary social and public settings. At some time in the months before the hearing, appellant decided to stop taking his medications as an "experiment," because he believed he was able to be more "sane" without them. At the hearing, evidence was adduced that appellant had made one suicide attempt, more than a year before the hearing. He had been living with family members during the year after his diagnosis. He has not held a job in recent months and was not receiving public benefits other than unemployment benefits that had expired before the hearing date. In the past, appellant had worked at various jobs, some lasting less than a week, for brief periods of time. He had completed one year of community college and had attended one class at Portland State University. In the recent past, he continued to maintain friendships with acquaintances from high school and was able to use the telephone, the bus system and other forms of public transportation. Appellant testified that if he were released immediately following the hearing, his plan was to contact one of two specific friends, Ian or Charlie, and make a request to stay with either of them. He explained that Charlie had already offered to let appellant stay with him. He also said he would be able to find shelters in Portland where he could stay, and that he would try to find the "quickest" job that was available to begin making money to support himself. He expressed a strong desire to have an independent lifestyle, and although he wanted to return to his father's home to live, he recognized that that option was not available to him.

At the hearing, appellant was able to converse fairly articulately about his beliefs, perceptions, and diagnosis, as well as his need to continue taking medications. He repeatedly assured the court that his "experiment" with refusing to take his medications was a one-time lapse in judgment that would not occur again. He also assured the court that he was sleeping and eating adequately and that he was physically healthy. He was able to recite the name of his nurse practitioner who prescribes his medications, his case manager at the clinic, and the locations of pharmacies where he would be able to refill his prescriptions. He also acknowledged that he would have to get financial assistance, possibly from Social Security.

Appellant's parents testified at the hearing, as did Greg Monaco, the precommitment investigator. Monaco testified that appellant has expressed beliefs over a period of time that he is being subjected to surveillance by satellite and that he receives personal messages through television broadcasts. His fear for appellant was that the "every-second TV surveillance that could be God's voice that [appellant] described, if that resumes for him, I'm concerned about a downward spiral." Monaco testified that appellant had expressed to him a desire to return to either his mother's or father's home to live and that he had not mentioned staying with his friends. Monaco stated that, if released that day, another fear about appellant would be that,

"if he had experience being homeless, living in shelters, this kind of thing, I might be—if he was more street smart, I might be less concerned. But that will be so stressful for him, I think, that I do—I am concerned that he just wouldn't be organized enough to follow through."

Monaco indicated that he did not believe that there was an imminent threat of suicidal behavior, only of a "spiraling down" into depression and a lower level of functioning. He concluded, "I'm not suggesting that [appellant] needs to stay in the hospital for six months or five months or even one month. And that's why I felt like it would have been in his best judgment to take a—well, I was thinking a set-over."

Appellant's mother testified that appellant "is able to behave in such a way that he might try to appear like he's doing better than he really is." She believed that he still has delusional thoughts and that his plans for living with a friend were unrealistic because the friend did not understand how serious appellant's illness is and would not be able to supervise appellant as closely as is needed. She said that appellant had asked her to buy him a condominium in the KOIN tower in Portland so that he would have a place to stay upon his release that would be located near his family and friends. She testified that when she reminded appellant that he did not have any money with which to meet his needs, he told her that he would be able to get a job immediately. She also testified that appellant believes that he is engaged to be married to a high school classmate, whom appellant has not seen for years. When asked, "If he was released and he did have to stay on the streets, [do] you think he'd be able to get to a shelter and find nourishment and be able to feed himself?" mother responded:

"I think he would be able to find a shelter, but I think it would be-like [Monaco] said, it would be very stressful for him. He's never been in that situation. He's always lived with people. I would be very concerned for him to be out there. He's not completely rational at this point in time. And I can't say that I would feel that he would use good judgment out on the street."

When asked what kind of poor judgment appellant might exercise, mother testified, "The thing that is the scariest to me is that I don't know what he would do. He may think he's doing something rational, but he's not quite there yet." She also stated, that "[appellant] can get by day-to-day" but that "he relies heavily on other people to help him get by."

Appellant's father also testified as to appellant's current condition and recent history. He explained that appellant had been living with him, along with sibling's family, and that, while appellant had not threatened to harm or actually harmed anyone, father was concerned that appellant did not know how to play gently and safely with the nine-month-old child in the home. When asked, "Do you have any opinion about your son's ability to meet his basic needs if he's doing so independently? Do you think he's able to do that?", father responded, "He has no source of income. If he had some income, I would be more inclined to say he might be able to survive. But he's relied on me for food and shelter for close to a year." Father also said that he did know Charlie, with whom appellant intended to stay, that he believed friends might provide immediate shelter to appellant, and that appellant could qualify for food stamps and other public assistance benefits. Father also testified that appellant has done some independent shopping for food and that he often buys non-nutritious food. He stated that he believed appellant might continue to take his medication if he had a "good enough scare into him with this hospitalization."

The record also contains the reports of two mental health examiners, Erickson and Mohler, who were present at the hearing and who observed appellant firsthand. In their reports to the court, they summarized the testimony that they heard from mother, father, Monaco and appellant, and then offered their conclusions as to his ability to care for himself. Erickson checked a box on the form to indicate that in his opinion, appellant was not dangerous to others, might be dangerous to himself, and was unable to provide for his basic needs. The written portion of his report states:

"20-year-old Caucasion male who presents in a neat, casual manner. He admits to mental illness and the need for medication. He describes his mental state and the need for medication. He describe his mental state prior to being hospitalized as fearful that, `I was going to be killed.' He denies any current paranoia or need to protect self. He is somewhat delusional about family members. He does understand he cannot return home but states he will stay with friends, although he has not made any arrangements for housing. Insight is minimal with some poor judgment. He has no financial resources. He has never lived independently or been homeless. Denies any internal stimuli. Reports no disturbance in sleep or eating habits. There [are] no known medical conditions. He does endorse beliefs that satellites are monitoring his behavior as well as everyone else. Admits to receiving messages from God, the TV or radio but they only give him

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