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In re Z. W. Y.

Court of Appeals of Oregon

October 9, 2019

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

          Submitted November 15, 2018

          Marion County Circuit Court 16CC06622; Steven B. Reed, Senior Judge.

          Joseph R. DeBin and Multnomah Defenders, Inc., fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Inge D. Wells, Assistant Attorney General, fled the brief for respondent.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case Summary: Appellant in this civil commitment case appeals an order continuing his commitment to the Oregon Health Authority for an additional period not to exceed 180 days. On appeal, appellant asserts that the trial court erred in determining that he was a danger to others because there was no evidence in the record that he had harmed or attempted to harm others in the past. Held: The record was insufficient to support a finding that appellant was highly likely to harm others if he were released.

         [299 Or.App.704]HADLOCK, P. J.

         Appellant challenges an October 2017 order of continued commitment for mental illness, arguing that the record does not support the trial court's determination that appellant's mental disorder makes him a danger to others. We agree and, accordingly, reverse.

         The trial court's task in a continued-commitment proceeding is to "determine whether the person is still a person with mental illness and is in need of further treatment." ORS 426.307(6). When, as here, a continued commitment is pursued based on the person being a "danger to * * * others," the trial court must determine whether the person's mental disorder makes the person "highly likely to engage in future violence toward others, absent commitment." State v. S. E. R., 297 Or.App. 121, 122, 441 P.3d 254 (2019). "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 *** others." Id. Accordingly, "the evidence must supply a concrete and particularized foundation for a prediction of future dangerousness absent commitment." Id. (internal quotation marks omitted). In determining whether the evidence meets that standard, we review the record in the light most favoring the trial court's disposition. See id. (applying that standard in the commitment context).

         At the time of the October 2017 continued-commitment hearing, appellant was 32 years old and a patient at the Oregon State Hospital; he had been there since January 2017. Dr. Flynn, appellant's treating psychiatrist, testified that appellant is the subject of a stalking order obtained by a woman, A, whom appellant had repeatedly harassed at her worksite. Petitioner was originally admitted to the state hospital in 2015 after being charged with a restraining-or-der violation "for restoration for capacity to aid and assist in his own defense." Appellant "was found[] never able to assist," was transferred to county jail, and then was civilly committed in October 2016. By January 2017, he had been returned to the state hospital.

         [299 Or.App.705] Flynn testified that appellant has been diagnosed with schizophrenia, which causes him to suffer delusions. Some of those delusions relate to A: "through his mental illness, [appellant] perceived that * * * [A] was his girlfriend." Appellant is angry with A and "blames her for him being admitted to the hospital." Appellant has talked about "seeking revenge" against A and once, several months before the continued-commitment hearing, described a fantasy about breaking into her home and strangling her. More recently, appellant spoke about wanting to protest in front of As house and throw red paint on her. Appellant wants to have the stalking order lifted so that he can contact A. He wishes to express his anger toward A if he is released from the hospital; he feels "within his right to contact her, call her, go to her home, go to her workplace." Appellant wants to have A arrested and charged with perjury for statements she made in association with obtaining the stalking order.

         Appellant takes medications for treatment of his mental disorder, although one medication had recently been changed because he had "maintained this delusional idea that he is in a relationship with [A] and he wants to seek revenge." Flynn thinks there has been some success in treatment because, during his past hospitalization, appellant was not taking medications and "was much more aggressive and required multiple seclusions for aggressive behavior." Since he has been taking medications, appellant has been "less irritable" and "less hostile." Flynn would "expect all of that to return" and would expect appellant's delusions and anger to worsen if he stopped taking medications. However, Flynn acknowledged that appellant has not been aggressive toward any patients or staff at the state hospital.

         Appellant has no insight into his mental disorder; as is common with people with schizophrenia, he does not understand that his "thoughts are the symptoms of the illness." He has said that he will stop taking medications when he leaves the hospital and he has expressed an interest in firearms. Flynn believes that appellant is dangerous to others because he "has a specific victim in mind," A, has "made multiple attempts to contact her even with the stalking order," and intends to seek her out to express his [299 Or.App.706] anger. On one occasion when appellant went to A's worksite, a grocery store, he had a duffel bag and threatened to shoot A's coworkers.

         Appellant testified on his own behalf at the continued-commitment hearing. He asserted that he had last tried to contact A about ten months earlier, when he called the store where she worked. Appellant testified that he wanted the stalking order lifted because it was difficult for him to avoid the grocery store where A worked. He acknowledged "sort of hav[ing] romantic feelings" for A, but denied that he wanted a relationship with her. Appellant said that all he meant by getting revenge against A was "some kind of verbal confrontation or to try to get her prosecuted." He acknowledged that he "probably come[s] across as being violent" because he is "kind of preoccupied with warfare and stuff," and he further acknowledged having been "in fights with people." However, appellant described only one such incident, which he said occurred when another person punched and kicked him, and he "just kind of pushed [the other person] away." Appellant confirmed that he would not voluntarily take psychiatric drugs if released from the hospital; he does not think he ...

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