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In re H. H. J.

Court of Appeals of Oregon

February 21, 2019

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

          Submitted October 23, 2018

          Multnomah County Circuit Court 16CC06581 Monica M. Smith-Herranz, Judge pro tempore.

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

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jona J. Maukonen, Assistant Attorney General, fled the brief for respondent.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary:

         Appellant appeals a judgment continuing her commitment, arguing that the trial court plainly erred by failing to advise her of all of the possible results of the proceeding. Specifcally, she contends that the court erred by failing to inform her of the possibilities of voluntary treatment and conditional release. Held: It is not plain that the possible results of recommitment proceedings include voluntary treatment or conditional release. The trial court did not plainly err.

         [296 Or.App. 200] LAGESEN, P. J.

         Appellant appeals a judgment continuing her commitment for mental illness for an additional period of up to 180 days. She argues that the trial court plainly erred by failing to provide the advice of rights and information specified in ORS 426.100(1). The state disputes that the court erred at all, or that the error could qualify as plain. We affirm.

         At appellant's recommitment hearing, the trial court informed appellant at the outset of the hearing that, if the court found by clear and convincing evidence that appellant was a person with mental illness, it could continue appellant's commitment for up to 180 days, and that, if the state failed to prove that, then "you'd be free to leave."

         Citing State v. M. M, 288 Or App 111, 115, 405 P3d 192 (2017), appellant argues that the trial court plainly erred when it failed to inform her as required by ORS 426.lOO(1)(c) of all of the possible results of the proceeding, including the possibilities of voluntary treatment and conditional release.[1]The state responds that it is not plain that ORS 426.100(1) even applies in this circumstance, but that, even if it does, the trial court did not err at all because neither conditional release nor voluntary treatment is a possible outcome of the recommitment proceedings, under the applicable statutes.[2] [296 Or.App. 201] For the reasons that follow, we conclude that the trial court did not plainly err.

         Assuming without deciding that it is plain that ORS 426.100(1) applies to recommitment proceedings, the question remains whether the possible results of those proceedings include voluntary treatment or conditional release. Three statutes provide the framework for the continuation of a person's existing period of commitment. State v. T. Z., 287 Or App 8,12, 401 P3d 1265 (2017). ORS 426.301(1) provides:

"At the end of the 180-day period of commitment, any person whose status has not been changed to voluntary shall be released unless the Oregon Health Authority certifies to the court in the county where the treating facility is located that the person is still a person with mental illness and is in need of further treatment. * * * If the certification is made, the person will not be released, but the director of the treating facility shall immediately issue a copy of the certification to the person and to the community mental health program director of the county of residence."

         If the certification is made, ORS 426.301(2) and (3) require that it be served on the person and that the certification advise the person of certain rights and information.[3] Next, [296 Or.App. 202] ORS 426.303 provides ...


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