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In re T. W. W.

Court of Appeals of Oregon

January 4, 2018

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

          Argued and submitted May 11, 2016

         Multnomah County Circuit Court 15CC01238 Connie L. Isgro, Judge pro tempore.

          Kenneth A. Kreuscher argued the cause and fled 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.

         Case Summary: Appellant seeks reversal of a judgment authorizing his involuntary commitment for mental-health treatment for up to 180 days based on the trial court's conclusion that appellant was a "person with mental illness" within the meaning of former ORS 426.005(1)(e) (2014), amended by Or Laws 2015, ch 433, § 1, renumbered as ORS 426.005(1)(f) (2015). The trial court so concluded based on findings that, as a result of a mental disorder, appellant was a danger to others and was unable to meet his own basic health and safety needs. On appeal, appellant argues that neither of those findings is supported by legally sufficient evidence. Held: The trial court erred by authorizing appellant's involuntary commitment because the record is insufficient to support either of its underlying findings. The record lacks information sufficient to permit a finding by clear and convincing evidence that appellant was a danger to others. There was no evidence of previous violence or threats of violence at any time relevant [289 Or.App. 725] to the hearing, and the trial court's description of appellant's demeanor as "agitated" was insufficient to provide the necessary foundation to predict that actual violence by appellant was highly likely. With respect to appellant's health and safety needs, the fact that appellant ate and drank sporadically did not permit an inference that his near-term survival was imminently threatened. Medical testing revealed that he was neither malnourished nor dehydrated, and no other evidence supported a non speculative inference that appellant's delusions about food and water posed an imminent threat to his survival. Further, appellant's inability to accept assistance or discuss a plan for his release, without more, was insufficient to establish that he was unlikely to survive in the near term.


         [289 Or.App. 726] 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).

         [289 Or.App. 727] 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 [289 Or.App. 728] 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 ...

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