State v. T. M. (In re T. M.)

• Citation: 296 Or.App. 703,437 P.3d 1197
• Decision Date: 20 March 2019
• Docket Number: A165889
• Parties: In the MATTER OF T. M., a Person Alleged to have Mental Illness. STATE OF OREGON, Respondent, v. T. M., Appellant.
• Court: Oregon Court of Appeals

296 Or.App. 703

437 P.3d 1197

In the MATTER OF T. M., a Person Alleged to have Mental Illness.STATE OF OREGON, Respondent,

v.T. M., Appellant.

A165889

Court of Appeals of Oregon.

Submitted August 7, 2018.

March 20, 2019

Alexander C. Cambier and Multnomah Defenders, Inc., filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Robert M. Wilsey, Assistant Attorney General, filed the brief for respondent.

Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

AOYAGI, J.,

Appellant seeks reversal of an order committing her involuntarily to the Oregon Health Authority for up to 180 days. Appellant contends that the trial court erred because the evidence in the record was insufficient to establish that she was dangerous to others due to a mental disorder. See ORS 426.130(1)(a)(C) ; ORS 426.005(1)(f)(A). 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. L. R. , 283 Or. App. 618, 619, 391 P.3d 880 (2017) ; see also State v. S. R. J. , 281 Or. App. 741, 748-49, 386 P.3d 99 (2016) ("Whether the evidence of danger is legally sufficient to support a determination that appellant is ‘dangerous’ for purposes of ORS 426.005(1) is a determination that we review as a matter of law.") We state the facts in accordance with that standard of review.

Appellant suffers from bipolar disorder with psychotic features. Her primary caregiver and sole support is D, to whom she was married for 22 years until their divorce in 2007. Appellant has continued to live with D since their divorce.

Appellant stopped taking her medications in April 2017. Several months later, around August 1, D told appellant that she should go to bed. It was around 2:00 or 3:00 a.m., and appellant had been sitting in a chair for almost 24 hours. To facilitate her going to bed, D removed a number of religious statues from the top of appellant’s bed, wrapped them in a blanket, and threw them on the floor. When appellant went in the bedroom and saw what he had done, she "went bonkers." According to D, "[s]he told me I attacked St. Anthony and I was going to hell, and she was going to kill me, and she went up to the fireplace, grabbed a poker and raised it over her head like that and was actually coming after me." D was in a recliner, so he could not back up, and "[i]t was scary." Appellant was about four feet in front of him, and the poker was two-and-a-half to three feet long. D thought that appellant was actually going to hit him, but, "at the last minute," D grabbed a large brass lamp from the side table, and appellant backed off. Appellant calmed down after about five minutes and put the poker down. It was "pretty scary," and D thought about calling the police. He did not, because, within five minutes, appellant started laughing and was back to being "jovial, nice, [and] friendly."

Appellant was subsequently brought to the hospital for other reasons (not described in the admitted evidence), which led to a commitment hearing that took place on August 15. Appellant was verbally disruptive throughout the hearing, including constantly interrupting the witnesses, the attorneys, and the judge, and frequently insulting them.¹ Appellant, who has no children, repeatedly referenced her (delusional) belief that she had a "little boy" at home who was starving and needed her to bring him food and water. Early in the hearing, in the midst of appellant insisting that she needed to get home to feed her little boy, the court noted on the record that appellant (who was shackled) had attempted to leave the room in a "fairly aggressive" manner. Later, appellant’s fixation seemed to shift to Australia, and she repeatedly referenced the population of Australia in her outbursts.

The state called three witnesses: Gida, D, and McAlexander. Gida, a mental health therapist and the pre-commitment investigator, testified that appellant has a diagnosis of bipolar disorder with psychotic features. Gida met appellant once, on August 9, and tried to interview her with limited success. For her investigation, Gida reviewed past reports, met with appellant’s case manager, spoke with D, and spoke with nurses and the mental health therapist at the hospital where appellant was initially transported. Based on her investigation, Gida understood appellant’s presentation in court to be "how she’s been presenting all along." Gida described appellant’s symptoms as including elevated mood, agitation, lack of insight, lack of impulse control, response to internal stimuli, preoccupation, and a delusional belief that she has a little boy at home. After explaining in some detail why she believed that appellant was dangerous to herself, Gida was asked whether appellant was dangerous to others. Gida answered, "I believe so." When asked why, she cited, without elaboration, "the reports from [D]," appellant being "very unpredictable," and the "aggressiveness and the agitation" displayed at the hearing. Gida opined that any dangerousness to self or others was caused by appellant’s mental disorder.²

The next witness was D. D briefly described his relationship with appellant and explained that she was living with him before her hospitalization. She had her own bedroom and bathroom. D had been appellant’s "sole support," as her family lived in Australia. He had given appellant her medications and taken care of her food, clothing, and basic needs. Appellant was fine when taking medication and had gone as long as five and a half years without hospitalization. However, appellant had been refusing her medications since April. D had seen appellant go off her medications approximately 20 to 24 times in the past 20 years, and she had been hospitalized about the same number of times. When appellant was off her medications, she lost her appetite, hardly slept, talked to voices that were not there, and "[went] from very angry to laughing hysterically within less than a minute." She would be manic most of the time—happy and in a good mood—but then, "in a minute, she’[d] flash and just go angry," and whoever happened to be nearby would "get[ ] the brunt of it." Appellant’s recent behavior (relative to the hearing) was similar to prior times that she had been hospitalized. The only time that D had seen her worse was once when she had peeled the skin off her cheeks while hearing voices.

Asked whether appellant had "been violent towards [him] recently," D described the incident with the fireplace poker. According to D, that incident was "pretty scary" because "she just lost it there for a few minutes." D was not asked whether appellant had historically engaged in violence or threats towards him or anyone else, and he did not mention any other incidents of violence or threats.

The last witness was McAlexander, a psychiatric-mental health nurse practitioner, who testified that she had been working with appellant for a little under two years and saw her once a month. She testified that appellant has bipolar disorder with psychotic features. Her symptoms include elevated mood, lack of impulse control, elevated speech, inability to sleep, and at-risk behaviors. After explaining why she believed that appellant was dangerous to herself, McAlexander was asked about the likelihood of appellant being dangerous to others. She answered, "I think that’s also a high risk as well. I think past history, recent history..." McAlexander did not finish that sentence. McAlexander opined that any dangerousness was a direct result of appellant’s mental disorder.

At the conclusion of the testimony, the state said that it would like to make note of appellant’s behavior during the hearing, and the court stated for the record that it was apparent during the hearing that appellant was "responding to internal stimuli, as described by the witnesses," and that she had provided a running commentary throughout the hearing, as the transcript would reflect.

The trial court found that appellant had a mental disorder. It found that appellant was not dangerous to herself, nor was she unable to care for her basic needs.³ It found that she was dangerous to others, however, "based on the incident with the fire poker," in conjunction with her observed behavior in court, which the court described as "about as out of control as I’ve seen anyone." The court acknowledged that there was only the "one incident" and that it was a "closer call than someone might guess just by observing what occurred here in court today." It explained that, although "common sense says [appellant] needs some hospitalization," "[c]ommon sense isn’t the law, but I think the dangerous to others gets us there." The court therefore determined that appellant had mental illness, within the meaning of ORS 426.130(1)(a) and ORS 426.005(1)(f)(A), and committed her to the Oregon Health Authority for a period not to exceed 180 days.

Appellant appeals. In her sole assignment of error, she contends that the trial court erred in determining that she was a person with mental illness within the meaning of the civil commitment statutes, specifically that she was dangerous to others as a result of her mental disorder.

ORS 426.130(1)(a)(C) allows the trial court to commit a person to the Oregon Health Authority, for a period up to 180 days, if the court determines that the person has "mental illness" and is in need of treatment. The determination of mental illness must be "based upon clear and convincing evidence." ORS 426.130(1)(a). "That standard of proof is a rigorous one, requiring evidence that is of extraordinary persuasiveness, and which makes the fact in issue highly probable." State v. J. T. C. , 284 Or. App. 38, 39, ...