State v. T. Y. (In re T. Y.), A162258

• Decision Date: 26 April 2017
• Docket Number: A162258
• Citation: 285 Or.App. 21,396 P.3d 986
• Parties: In the Matter of T. Y., a Person Alleged to have a Mental Illness. STATE of Oregon, Respondent, v. T. Y., Appellant.
• Court: Oregon Court of Appeals

285 Or.App. 21

396 P.3d 986

In the Matter of T. Y., a Person Alleged to have a Mental Illness.STATE of Oregon, Respondent,

v.T. Y., Appellant.

A162258

Court of Appeals of Oregon.

Submitted March 21, 2017.

April 26, 2017

Joseph DeBin and Multnomah Defenders, Inc., filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Leigh A. Salmon, Assistant Attorney General, filed the brief for respondent.

Before Sercombe, Presiding Judge, and DeHoog, Judge, and Flynn, Judge pro tempore.

SERCOMBE, P. J.

Appellant seeks reversal of a judgment involuntarily committing him to the custody of the Mental Health Division based on a finding that, because of a mental disorder, appellant was a danger to himself. See ORS 426.005(1)(f) ; ORS 426.130. Appellant contends that the state failed to establish by clear and convincing evidence that he was a danger to himself.¹ As explained below, we agree and, accordingly, reverse.

When we review a challenge to a civil commitment judgment, unless we exercise our discretion to review the matter de novo , "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. M. A. , 276 Or.App. 624, 625, 371 P.3d 495 (2016) (internal quotation marks omitted). Here, the parties have not requested de novo review and, in any event, it is not a case in which we would conclude that de novo review is warranted. See ORAP 5.40(8). Accordingly, we state the facts in accordance with the trial court's express and implied findings and review the trial court's conclusion that the requirements for commitment were satisfied to determine if it is supported by legally sufficient evidence. M. A. , 276 Or.App. at 625, 371 P.3d 495.

Appellant has a psychotic disorder

that causes him to experience auditory command hallucinations. In April 2016, the voices that he hears instructed appellant to kill himself. As appellant saw it, those voices wanted him to believe that he was evil and to kill himself; how-ever, "it was really murder" that would be "perceived as a suicide." He believed that his GPS unit was also "directing [him] to suicide." Appellant sent text messages to his parents stating that he was going to kill himself and drove to a bridge in Washington. He got out of his car, walked to the edge of the bridge, and looked over it for 30 to 45 seconds. Deciding he did not want to die and that he had gone too far, appellant called a suicide hotline for help and, ultimately, with his parents' encouragement, sought help at a local hospital.

Immediately before his hospitalization, appellant was suffering from an internal hemorrhoid

that he believed was "nano-induced anal probing." According to appellant, the "probing" was one of the reasons he had gone to the bridge to kill himself. At the hospital, appellant received treatment for the hemorrhoid. At the hearing, appellant testified that, although he believed that the hemorrhoid had "nothing to do with the nano-induced anal probing," he nonetheless had "stopped being probed."

Appellant testified that the voices had also tried to kill him and make it look like suicide a couple of times in the past and, according to appellant's father, appellant had talked about suicide in emails in the months leading up to the incident in April. However, appellant had not attempted suicide in the past and, according to the doctor that had been treating him in the hospital, did not have ongoing suicidal ideation

. He did not suffer from depression and his disorder was not one of "chronic suicidality." Indeed, appellant testified that he wants to live. He stated that he does not want to hurt or kill himself and has no plans to do so, and, if the voices told him to jump off a bridge again, he would not do it.

According to appellant, some of the voices are "on [his] side" and others are not, and it can sometimes be difficult to tell "friend" from "foe." The voices are "pretty stubborn," and appellant believes that other people would not be able to handle them as he does. He explained that he had "been able to deal with the voices for going on 13 years now" but that it could "get pretty tough." Appellant has a history of impulsive behavior. On one occasion, without warning, he jumped up out of bed and grabbed his father. However, appellant did not injure his father and that was the only occasion on which he had acted in that way. Most recently, the voices had instructed appellant to move to Utah and, believing the voices instructing him to do so to be benign, he intended to follow that instruction.

Appellant believes that many of the problems he experiences are caused by nanotechnology, and that he can obtain a strong magnet that will resolve his symptoms. Appellant refuses to take medication, which he does not believe helps his symptoms. He testified that he has "always heard voices on every medication" he has taken in the past and that, at times when the voices were not an issue for him, "[i]t was their free will when they decided not to mess with [him], not having anything to do with the effect of the medication." In other words, medication was ineffective and, any-time in the past that people had thought that appellant was doing better on medication, it was only "because the voices had decided not to talk on that day."

The trial court found, by clear and convincing evidence, that appellant suffers from a mental disorder. The court further explained that, although appellant's expressed "suicide ideation" was of concern, it was

"quite frankly, more concerned about the voices and what they're telling him to do [because] I don't know what they're [going] to tell him to do next, whether it's going to be to jump off a bridge or if it's going to be get in his car and—and drive into a wall, or some of the things that we have heard, you know, in other cases, but it's—it's the totally unpredictable nature of the auditory hallucinations."

Thus, the trial court's focus was on appellant engaging in behavior that would put him "in harm's way." In light of the evidence, the court concluded that it was highly probable that appellant would place himself in harm's way in the near future and, accordingly, entered a judgment committing him to the custody of the Mental Health Division for a period not to exceed 180 days.

On appeal, appellant argues that there is insufficient evidence that, because of his mental disorder, he is a danger to himself. As noted, whether the evidence is sufficient to support a determination that appellant is a danger to himself is a question we review as a matter of law. See State v. S. R. J. , 281 Or.App. 741, 748-49, 386 P.3d 99 (2016). To establish that a person is dangerous to self, under ORS 426.005(1)(f), "the state must present evidence that the person's mental disorder would cause him or her to engage in behavior that is likely to result in physical harm to himself or herself in the near term." State v. B. B. , 240 Or.App. 75, 82, 245 P.3d 697 (2010) (internal quotation marks and brackets omitted). The threatened harm must, "at minimum, involve actual physical harm," and that physical harm must be serious. Id. (internal quotation marks omitted). "Indeed, a number of our cases have suggested that the potential harm must be life-threatening or involve some inherently dangerous activity." Id. at 82-83, 245 P.3d 697 (internal quotation marks omitted). Furthermore, "the potential harm must be more than speculative." M. A. , 276 Or.App. at 628, 371 P.3d 495 (internal quotation marks omitted). Rather, the evidence must be of a "particularized and highly probable threat to [the person's] safe survival, including a risk of substantial harm, in the near future." Id. at 629, 371 P.3d 495 (brackets in original; internal quotation marks omitted); see State v. T. R. O. , 208 Or.App. 686, 693, 145 P.3d 350 (2006) ("Evidence of delusions, general lack of judgment, and failure to plan for release * * * is simply not the kind of evidence of a particularized, near-term threat that is required to justify appellant's involuntary commitment on the ground that he is a danger to himself.").

As we discussed in B. B. , our "decisions addressing putative ‘danger to self’ commitments based on ‘harm's way’ concerns highlight the proper application of the foregoing legal principles." 240 Or.App. at 83, 245 P.3d 697. In T. R. O. , "we held that evidence that the appellant, who suffered from delusions, had ‘poor judgment,’ and had a tendency to ‘travel aimlessly’ and to ‘walk into people's...