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

• Decision Date: 04 January 2018
• Docket Number: A159166
• Citation: 410 P.3d 1032,289 Or.App. 724
• Parties: In the Matter of T. W. W., a Person Alleged to have a Mental Illness. STATE of Oregon, Respondent, v. T. W. W., Appellant.
• Court: Oregon Court of Appeals

289 Or.App. 724

410 P.3d 1032

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

v.T. W. W., Appellant.

A159166

Court of Appeals of Oregon.

Argued and submitted May 11, 2016.

January 4, 2018

Kenneth A. Kreuscher, Portland, argued the cause and filed the brief for appellant.

Keith L. Kutler, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

Before Ortega, Presiding Judge, and Lagesen, Judge, and Garrett, Judge.

GARRETT, J.

Appellant seeks reversal of a judgment authorizing his involuntary commitment to the Oregon Health Authority for up to 180 days under ORS 426.130. The trial court ordered that appellant be committed for involuntary mental-health treatment based on findings that appellant, as a result of his mental illness, is unable to meet his own basic health and safety needs and is a danger to others. We conclude that neither finding is supported by legally sufficient evidence, and we reverse the judgment of commitment.

Appellant requests that we review the matter de novo . We conclude that this is not an exceptional case warranting such review, and we decline appellant's request. See ORAP 5.40(8)(c) (providing that the court will exercise its discretion to review de novo "only in exceptional cases"). Accordingly, "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. Y. , 285 Or.App. 21, 22, 396 P.3d 986 (2017) (internal quotation marks omitted).

Appellant has been diagnosed with paranoid schizophrenia

. For approximately one year prior to the commitment hearing, as a result of pending criminal charges, appellant was in custody both at Multnomah County Detention Center (MCDC) and the Oregon State Hospital (OSH). For the first month in custody, appellant was housed at MCDC, and then he was transferred to OSH for a mental-health evaluation, which ultimately resulted in a determination that appellant was unable to aid and assist in his defense and would remain so for the foreseeable future. Appellant then returned to MCDC, and his criminal charges were dismissed. A magistrate judge initiated the civil-commitment process, and, after remaining at MCDC for approximately one month, appellant was moved to a hospital for the week prior to the commitment hearing under a warrant of detention. See generally ORS 426.070 (outlining the procedures for initiation of the civil-commitment process and the detention of persons facing commitment).

At a commitment hearing in March 2015, appellant was "highly agitated" and in restraints.¹ At the beginning of the hearing, he repeatedly interrupted the trial judge by making statements such as "I plead the fifth," and, "Statutes of limitations apply." He then proceeded to interrupt the proceedings by shouting statements, such as "You are condemned!" and "Vengeance is the Lord[']s!", and he continued to yell despite instructions to stop. When the examiners attempted to question him, appellant shouted statements such as "Murderer!" and "Don't talk to me!" The trial court eventually observed that it was unclear whether appellant could "tolerate" being present, and appellant apologized, stating that he had "overstepped the line." The court then removed appellant from the courtroom without objection from either counsel, and the court continued the hearing outside of appellant's presence.

The principal witness for the state was a nurse from MCDC who had worked with appellant during both of his stays there. The nurse testified that, during appellant's first stay on MCDC, he made statements "about being entitled to have multiple women in his cell to do whatever he pleased with," but he "[w]asn't ever really * * * aggressive," "[j]ust very delusional."

The nurse testified that, when appellant returned to MCDC in the month prior to the commitment hearing, he informed the staff that he would not take medications or eat, but he was "never aggressive about it." He made statements about "being poisoned," and, at one point, he explained to MCDC staff that he would not eat while in the jail because of the "[a]ir quality." He stated that he would eat if he were hospitalized and that if he were released from jail, he "needed berries and bottled water." The nurse testified that, during the first two weeks after his return to MCDC, appellant ate only one apple and drank one meal supplement. Because of appellant's refusal to eat, MCDC sent him to the emergency room to be evaluated for dehydration and malnutrition, but test results indicated that "everything was within normal limits." Just before being moved to the hospital in the week before the hearing, appellant ate several pieces of fruit and drank another meal supplement. The nurse testified that there was no indication that appellant had not been eating while at OSH, and she opined that appellant must have been drinking water from the faucet in his cell at MCDC or he would have shown signs of dehydration. She testified that she did not know whether appellant had lost any weight, but during his last few days at MCDC, "his cheeks started to look more sunken in[,] and he was starting to look [paler], less energetic, [and] more lethargic."

The nurse also described appellant's conduct during his most recent stay at MCDC as "generally very calm," "mostly polite," and "pretty passive." Appellant had been avoiding interaction with others, but when he did speak to staff, his speech was "fairly disorganized." As far as the nurse was aware, appellant had not made "any physical moves" toward other people at MCDC, nor any sexually related statements to MCDC staff as he had in his first stay there a year earlier. She testified that appellant's mental condition had remained "about the same" throughout his most recent stay at MCDC but that appellant's "affect and presentation" at the hearing seemed much worse than it had the last time she observed him, one week earlier.

A mental-health consultant also testified at the hearing. She stated that she had interacted with appellant one time after he returned to MCDC from OSH. According to the consultant, appellant refused to speak to her about planning for his release, and, in her opinion, appellant was unable to "develop a plan and execute a plan for meeting his basic needs."

The state also offered portions of a precommitment report reflecting that appellant had refused to discuss with the investigator the reasons that appellant was being held in the hospital. When asked why he had refused to eat while at MCDC, appellant stated, "I eat a little," but when hospital staff offered him lunch, he declined.

Both examiners opined that appellant was unable to meet his basic needs and was a danger to others. One stated that, based on appellant's conduct during the hearing, "if he weren't handcuffed, I'm not sure if he wouldn't also have been physically aggressive." The other stated that, although appellant was in restraints, he was "still quite intimidating," observing that "the volume of his voice could be heard" from the other room.

Appellant's counsel argued that the state had not presented sufficient evidence to justify commitment based either on appellant's dangerousness or his inability to meet basic health and safety needs.

In support of civil commitment, the state pointed to appellant's conduct during the hearing as evidence that appellant posed a danger to others, arguing that, "if he were released today, someone could find his conduct very threatening and respond in kind." With respect to appellant's basic needs, the state relied on the fact that appellant was unable to "articulate a reasonable and credible plan for how [he] would care for [his] basic needs," as well as appellant's refusal to eat while in jail.

The trial court ruled for the state, concluding that, due to his mental illness, appellant is a danger to others and is unable to meet his own basic needs. With respect to appellant's dangerousness, the court reasoned as follows:

"Because [appellant] was so highly, highly agitated today, he was brought back to the hospital a while ago and that's why he's not been present. Everybody agreed that [it] was in his best interest to be brought back to the hospital. It seemed that * * * the hearing was * * * increasing his agitation[,] and it was not fair to him to have him in this environment and become more out of control. * * * [Appellant's] presentation here today in court was very, very agitated. He remained in cuffs due to his agitation. He yelled, cursed, was unable, we were unable to really conduct the examination today and he simply couldn't, could not tolerate being in our presence. He yelled at me over and over again as he also yelled at the examiners. So, today in court he had a very difficult time controlling his behavior. He was very verbally aggressive, very hostile[,] and it is that behavior that causes me concern. I think that the behavior is a direct result of his mental disorder, his untreated mental disorder when he was, the testimony was when he as, arrived back at the jail on the (inaudible) is he was more calm and appropriate. Now off his medication for a couple weeks he's back to being very aggressive, agitated, out of control, and responding to * * * internal stimuli * * *. In any event, * * * the State has proved to me by clear and convincing evidence that due to his mental disorder, he is unable to control his behavior at this point in time such that he poses a danger to others. I don't know much about the underlying criminal activity so I really can't rely upon that as, as part of being a danger to others, but simply by his presentation in Court here today I think was sufficient for me to have, to meet the State's burden."

Although the...