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In re S. E. R.

Court of Appeals of Oregon

April 17, 2019

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

          Argued and Submitted March 15, 2019

          Lane County Circuit Court 18CC02426 Valeri L. Love, Judge.

          Alexander C. Cambier argued the cause for appellant. Also on the brief was Multnomah Defenders, Inc.

          Erika Hamilton, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and Sercombe, Senior Judge.

         Case Summary:

         Appellant appeals a judgment civilly committing her to the custody of the Oregon Health Authority for up to 180 days on the ground that she has a mental disorder that makes her dangerous to herself and others. Appellant argues that the evidence is insufficient to demonstrate that, because of her mental disorder, she presents the sort of danger to herself or others that permits commitment under ORS 426.130(1)(a)(C) and (2).

         Held:

         The trial court erred. The incidents of violence and self-harm that took place in the hospital did not permit the inference that appellant posed a risk of near-term harm to herself or others, were she not committed, because the state presented no evidence that would allow for the rational conclusion that appellant was at risk of behaving the same way were she not involuntarily hospitalized.

         [297 Or.App. 122] LAGESEN, P. J.

         Appellant appeals a judgment civilly committing her to the custody of the Oregon Health Authority for up to 180 days on the ground that she has a mental disorder that makes her dangerous to herself and others. ORS 426.130; ORS 426.005. She contends that the evidence is insufficient to demonstrate that, because of her mental disorder, she presents the sort of danger to herself or others that permits commitment under ORS 426.130(1)(a)(C) and (2).[1] We agree and, therefore, reverse.

         The issue is whether the evidence is sufficient to permit appellant's commitment on the ground that her metal disorder, at the time of the hearing, made her "[d]angerous to self or others" within the meaning of ORS 426.005 (1)(f)(A). We review by "view[ing] 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. M. A., 276 Or.App. 624, 625, 371 P.3d 495 (2016) (quoting Dept. of Human Services v. N. P., 257 Or.App. 633, 639, 307 P.3d 444 (2013)). A person is "dangerous to self" for those purposes if the person's mental disorder puts her at a nonspeculative risk of serious physical harm or death in the near future, absent commitment. State v. S. R. J., 281 Or.App. 741, 749-50, 755, 386 P.3d 99 (2016). A person is "dangerous to others" for those purposes if her mental disorder makes her highly likely to engage in future violence toward others, absent commitment. Id. at 755. Because the standard of proof in a civil commitment case is the clear-and-convincing-evidence standard, the evidence supporting commitment must be sufficient to permit the rational conclusion that it is highly probable that the person poses a danger to self or others. Id. at 748. To meet this "rigorous" standard, the evidence must supply a concrete and particularized "foundation for a prediction of future dangerousness" absent commitment. Id. at 754-55.

         [297 Or.App. 123] In this case, the evidence does not meet that standard. It is undisputed that appellant suffers from severe bipolar disorder. However, as the mental health investigator found, there was "no evidence that she had actually placed herself or others in danger" before her hospitalization that led to the commitment proceeding. Appellant's commitment was precipitated after police and a local mental health crisis team were called to her residence after appellant started "behaving erratically" and stated that she was "going to kill Alisha." After police arrived, appellant asked them to shoot her, but there is no evidence that she behaved in a way that made it likely that they would. She was then taken to the emergency department of the hospital where she presented as paranoid, psychotic, and manic, and was given emergency medications. When she woke up, she was still manic, so she was placed on an emergency mental illness hold and admitted to the hospital.

         Throughout her hospitalization, appellant continued to suffer from mania. During the first several days of her hospitalization, appellant's behavior was erratic and involved some "at times * * * quite dramatic demonstrations of emotion, including tearfully rolling around on the floor bemoaning her situation, and then standing up and moving on to another topic, the former being completed." Appellant did nothing to harm herself or others during that time, and did not come close to doing so. Then, four days after she had been brought to the hospital, appellant became very upset at being kept in the hospital (which she called a "mental health fish tank"), and started slamming doors, yelling at nurses, throwing things in her room, and threatening to hang herself. She also threatened to slit the throat of a staff member, but retracted that statement. She was placed in seclusion, where she started banging her head on the floor. When staff entered the room to further restrain her, she kicked a male nurse in the ...


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