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In re K. J. B.

Supreme Court of Oregon

April 19, 2018

In the Matter of K. J. B., a Person Alleged to have a Mental Illness.
v.
K. J. B., Petitioner on Review. STATE OF OREGON, Respondent on Review,

          Argued and submitted September 18, 2017

          On review from the Court of Appeals CC 15CC06361, CA A160841. [*]

          Joseph R. DeBin, Portland, Multnomah Defenders, Inc., argued the cause and fled the briefs for petitioner on review.

          Inge D. Wells, Assistant Attorney General, Salem, argued the cause and fled the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Crystal Maloney, Portland, fled the brief for amicus curiae Oregon Justice Resource Center.

          Before Balmer, Chief Justice, and Kistler, Walters, Nakamoto, and Flynn, Justices, and Landau, Senior Justice pro tempore, and DeVore, Judge of the Court of Appeals, Justice pro tempore.

         [362 Or. 778] Case Summary: Petitioner, who had been arrested and jailed for setting a free near an apartment complex, was referred for a civil commitment investigation when he exhibited symptoms of mental illness. In the ensuing proceeding, the state asserted that petitioner should be committed to the care of the state on three separate grounds: He was dangerous to himself, he was dangerous to others, and he was unable to provide for his own basic needs. The trial court ultimately concluded that the state had established the requirements for commitment on all three grounds and ordered petitioner to be committed for up to 180 days. On appeal, petitioner challenged the trial court's findings on all three grounds. With respect to the trial court's finding that he was unable to provide for his own basic needs, petitioner argued that, because he was in jail at the time of the commitment proceeding and there was no evidence that his release from jail was imminent, it must be presumed that his basic needs were being met and would be in the immediately future. The Court of Appeals found that that argument was not preserved and declined to consider it. It thereafter affirmed the trial court's determination that petitioner should be committed on the ground that he was unable to meet his own basic needs - and declined to consider petitioner's arguments with respect to the other grounds. The Supreme Court granted petitioner's petition for review, but the 180-day period of commitment expired before the case was heard, and the state moved to dismiss the appeal as moot.

         Held: Given that the state failed to establish that the continuing stigma that purportedly resulted from the expired order of commitment did not exist or was legally insufficient, the case is not moot; petitioner's argument that his basic needs necessarily were being met in jail was not preserved and Court would not consider it; Court therefore would affirm the commitment order on the ground that petitioner was unable to meet his basic needs. The state's motion to dismiss is denied.

         The decision of the Court of Appeals is affirmed. The order of commitment of the circuit court is affirmed. [**]

          [362 Or. 779] LANDAU, S. J.

         Petitioner was civilly committed on the ground that he was dangerous to himself, dangerous to others, and unable to provide for his basic needs. At the time of his commitment, he was held in county jail. On appeal, he challenged his commitment on all three grounds. Concerning his ability to provide for his basic needs, petitioner argued that, because he had been in jail at the time of the commitment hearing, it must be presumed that he was receiving adequate care, and the state failed to establish that he would be released from incarceration any time in the near future. The Court of Appeals concluded that petitioner had failed to preserve that argument. State v. K. J. B., 282 Or.App. 862, 867-69, 387 P.3d 467 (2016). And, because his inability to provide for his basic needs established sufficient grounds to support the commitment order, it declined to address the sufficiency of the evidence as to the other grounds for the order. Id. at 869-70.

         On review, petitioner does not dispute that he did not present to the trial court precisely the same argument that he advances on appeal. He nevertheless contends that he raised the sufficiency of the evidence to support his commitment on the ground that he could not provide for his basic needs and that such a general objection was adequate to preserve the more particular argument he now asserts. The state, meanwhile, argues that the case is now moot because the underlying order of commitment has long since expired. In the alternative, it argues that petitioner did not preserve the argument that, to establish a basic-needs commitment when an individual is currently incarcerated, the state must prove the date when an individual will be released.

         We conclude that the case is not moot, given the collateral consequences of an order of civil commitment. We also conclude, however, that petitioner failed to preserve his contention that the state was obliged to establish the expected date of his release from custody to establish the elements of a basic-needs commitment. We therefore affirm the decision of the Court of Appeals.

         [362 Or. 780] I. FACTS

         The relevant facts are not in dispute. Petitioner has suffered from schizoaffective disorder for more than 30 years and is intermittently homeless. He was arrested in October 2015 for setting a fire near an apartment complex and thereafter held in county jail. While in jail, petitioner blocked the toilet in his cell and urinated on his sleeping mat and clothes. He refused to go to court and demonstrated bizarre and disorganized behavior during a video arraignment on another, unrelated, charge. At that point, the trial judge entered a notice of mental illness, triggering the civil commitment process under ORS 426.070 to ORS 426.415.

         At the civil commitment hearing, the state asserted that petitioner should be committed on the grounds that he was dangerous to himself, dangerous to others, and unable to provide for his basic needs. A precommitment investigator who had met with petitioner in jail testified that petitioner exhibited disorganized speech and appeared to be quite paranoid. She stated that, although she did not believe him to be a danger to himself or others, she did believe him unable to meet his basic needs "because of the level of psychosis that I was seeing within the jail setting" and because of the fire incident. She reported that petitioner had explained that he had set the fire in order to keep warm. She also reported he refused medication for his mental disorder. On cross-examination, the investigator testified that she was not aware of any report that petitioner had not been eating or drinking while in jail.

         Petitioner's case manager and therapist also testified. She stated that, over the previous year, petitioner had experienced trouble finding a place to live and finding access to food. She said that problems with medications "ha[d] been an ongoing thing" and that, when he does not take his medications, he becomes highly disorganized and delusional. She said that her understanding from jail staff was that he was continuing to refuse medication and that, when released from jail, he has a difficult time obtaining necessary resources. On cross-examination, she said that she had no reason to think that petitioner was not eating or drinking while in jail, but she noted that she had observed [362 Or. 781] that petitioner had lost about ten pounds while in jail. When asked about his resources outside of jail, she reported that she was aware of the existence of family members, but that petitioner was hesitant to rely on them for assistance.

         A criminal justice behavioral health specialist testified as well. She stated that, although petitioner had not given jail staff much trouble, "he's not taking very good care of himself in the fact that he's urinating all over everything, and his mat and his clothes and-and he just is very incoherent, [and] disorganized." She said that petitioner had refused psychiatric care while incarcerated. On cross-examination, she said that she had reports that petitioner had occasionally refused to eat while in jail, but that he was generally eating enough to remain healthy.

         Finally, petitioner's probation officer testified concerning the circumstances leading to his most recent arrest. On cross-examination, she testified that, during the previous six months, she had no reason to believe that petitioner was not taking care of himself, not feeding himself, or not drinking water.

         At the close of the evidence, counsel for petitioner argued that the state had not met its burden of establishing any of the grounds for an involuntary civil commitment:

"[T]his is one of those very difficult cases where I-I do think that the state has met its burden to show that [petitioner] suffers from a mental illness, * * * but I don't believe that they have sufficient evidence to allow the court to find by clear and convincing evidence that he is unable to provide for ...

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