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In re S. F.

Court of Appeals of Oregon

April 11, 2018

In the Matter of S. F., a Person Alleged to have a Mental Illness.
v.
S. F., Appellant. STATE OF OREGON, Respondent,

          Submitted February 5, 2018.

          Benton County Circuit Court 17CC01646; Daniel Joseph Ahern, Judge.

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

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Cecil A. Reniche-Smith, Assistant Attorney General, fled the brief for respondent.

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

         Case Summary: Appellant challenges a judgment of involuntary commitment, assigning error to the trial court's ruling that she was "a person with mental illness." ORS 426.130(1)(a). She asserts that the state did not prove by clear and convincing evidence that, because of her mental disorder, she is "[d]angerous to self or others." ORS 426.005(1)(f)(A). The state concedes that there was insufficient evidence to support a fending that appellant is a danger to herself but argues that appellant's involuntary commitment was justified because she is a danger to others. Held: The trial court erred in concluding that appellant was a person with mental illness as defined in ORS 426.005(1)(f)(A). The Court of Appeals accepted the state's concession and further concluded that the evidence was not legally sufficient to support the trial court's conclusion that appellant was a danger to others.

         [291 Or.App. 262] ORTEGA, P. J.

         Appellant challenges a judgment of involuntary commitment, assigning error to the trial court's ruling that she was "a person with mental illness." ORS 426.130(1)(a). She asserts that the state did not prove by clear and convincing evidence that, because of her mental disorder, she is "dangerous to [her] self or others." ORS 426.005(1)(f)(A). The state concedes that there is insufficient evidence of danger to self, but argues that commitment of appellant was justified because she was a danger to others. We conclude that the evidence was not legally sufficient to support commitment based on danger to others and, because we also accept the state's concession as to the lack of legally sufficient evidence that appellant was a danger to herself, we reverse.

         Neither party requests de novo review and, because this is not an exceptional case, we decline to review based on that standard. See ORAP 5.40(8)(c) (providing that the court will exercise its discretion to review de novo "only in exceptional cases."). Therefore, we review whether the state presented sufficient evidence to support an involuntary civil commitment for legal error. State v. R. E., 248 Or.App. 481, 483, 273 P.3d 341 (2012). In reviewing the trial court's judgment, "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 [commitment]." State v. S. R. J, 281 Or.App. 741, 743, 386 P.3d 99 (2016) (internal quotation marks omitted).

         Appellant was diagnosed with bipolar mania by Dr. Eliason, a psychiatrist in Bend. Eliason treated appellant while she was in the hospital and made that diagnosis after a few days of observation. He observed that appellant had lost the need for sleep and exhibited increased energy, fluctuating moods, impulsive behavior, and reality distortion. While at the hospital, appellant made "physical threats" such as "clapping in a menacing manner." She had to be sedated on a couple of occasions because of her impulsive behavior, agitation, and the potential threat to staff, but she was never placed in physical restraints.

         [291 Or.App. 263] One of the more troubling issues was appellant's intense response related to her inability to be with her son, who has lived with her parents since she lost custody of him a few years ago. Appellant's mother testified that appellant is fixated on being with her son and that, when she is not allowed to see him, she "gets very violent" and "very upset, " but that it does not escalate to physical contact. According to appellant's mother, the most that occurs is that appellant screams and shouts in her face that she wishes her mother were dead. However, appellant has never made a direct threat to kill her mother nor has she ever struck her. On one occasion, about four years before the commitment hearing, appellant hit her father, but since then, appellant's anger had not manifested in physical contact.

         Appellant's behavior escalated several months before her commitment when she began calling the Crook County Sheriffs Office numerous times a day to report that her son was being abused by her parents and to request welfare checks. As time passed, the calls became more intense with stating to Sergeant Seaney that she had "the right to shoot anyone that [got] between her and [her son], " although she never threatened him or anyone else in the sheriffs office. Seaney was not exactly sure to whom appellant was referring but knew that she had often described her parents as "being in the way." Seaney heard over dispatch one evening that appellant was in the area of her parents' property and, knowing that he had warned her that going to her parents' property would be trespassing, he went out to stop her. Seaney went to the parents' property, but turned around at the gate because neither appellant nor her parents or son were there. As Seaney was leaving, he encountered appellant in the driveway. He attempted to detain and then search appellant for weapons because of the threatening calls, but she resisted, and he handcuffed her. After the arrest, appellant stated that all she wanted was to see her son. Seaney testified that he confronted appellant about a revoked concealed handgun license permit and whether she had any weapons on her. Appellant responded that she did not "need" a concealed handgun license and that she did not know whether she had any weapons. Seaney conducted a patdown of appellant [291 Or.App. 264] and searched her car, finding a pocket knife on the floor but no firearm. While Seaney transported appellant to the hospital, she was recorded saying that she wanted to take Seaney's gun and shoot the officers with it, although Seaney did not hear her say that at the time.

         In concluding that appellant was a danger to others at the time of the hearing, the court credited the testimony of Eliason, the psychiatrist, and Beachler, an investigator who interviewed appellant at the hospital. They both testified that they believed appellant was a danger to others due to her fixation on reuniting with her son. In keeping with their testimony, the court found that appellant's fixation on getting her son back was affecting her ability to be rational about what was in his best interest, and that her mental disorder was her leading to believe that the people caring for her son were harming him. The court found that, "unless [appellant's] mental illness is kept under control, " those caring for her son" are at risk of [her] acting on [her] belief that [they] are harming" him, and it also concluded that appellant was a danger to herself and others.

         To justify an involuntary commitment, the state must prove, by clear and convincing evidence, that the individual is "a person with mental illness." ORS 426.130(1)(a). "The clear and convincing evidence standard is a rigorous one, requiring evidence that is of extraordinary persuasiveness, and which makes the fact in issue highly probable." State v. M. R.,225 Or.App. 569, 574, 202 P.3d 221 (2009) (internal quotation marks omitted). As defined in the statute, a "person with mental illness" is one who, "because of a mental disorder, " is "[d] angerous to self or others." ORS 426.005(1)(f)(A). Dangerousness "is determined by [appellant's] condition at the ...


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