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In re C. K.

Court of Appeals of Oregon

October 30, 2019

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

          Submitted January 8, 2018

          Multnomah County Circuit Court 17CC03139 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 Inge D. Wells, Assistant Attorney General, fled the brief for respondent.

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

         Case Summary: Appellant seeks reversal of an order committing her to the Oregon Health Authority for a period not to exceed 180 days on the grounds that her mental disorder makes her unable to provide for her basic needs, ORS 426.005(1)(f)(B). She contends, and the state concedes, that the evidence is insufficient to support her commitment. Held: In light of State v. M. A. E., 299 Or.App. 231, 448 P.3d 656 (2019), the evidence presented at appellant's civil commitment hearing was sufficient to support her basic-needs commitment under the amended version of ORS 426.005(1)(f)(B), because appellant's mental disorder made her unable to properly care for her ostomy area, which presented a non-speculative risk of serious physical harm in the near future.

          [300 Or.App. 314] LAGESEN, P. J.

         Appellant seeks reversal of an order committing her to the Oregon Health Authority for a period not to exceed 180 days on multiple grounds, including that she suffers from a mental disorder that makes her unable to provide for her basic needs, ORS 426.005(1)(f)(B). She contends that the evidence is insufficient to support her commitment. Although the state concedes that the evidence is insufficient to support the commitment, we reject that concession insofar as it addresses the basic-needs basis for appellant's commitment. See Cervantes v. Dept. of Human Services, 295 Or.App. 691, 693, 435 P.3d 831 (2019) ("We are not bound to accept [a] concession and must decide whether to accept it."). We do so in this case because the trial court committed appellant under the amended version of ORS 426.005(1)(f)(B), and, under our recent decision in State v. M. A. E., 299 Or.App. 231, 448 P.3d 656 (2019), the evidence presented in this case is sufficient to support appellant's basic-needs commitment under the amended version of the statute.

         We review for legal error the trial court's determination that the evidence is legally sufficient to support appellant's civil commitment, viewing the evidence in the light most favorable to the trial court's decision. State v. S. R., 267 Or.App. 618, 619, 341 P.3d 160 (2014).

         At issue is whether the evidence is legally sufficient to support the trial court's determination that appellant's mental disorder (it is undisputed that she has one) makes her unable to provide for her basic needs within the meaning of ORS 426.005(1)(f)(B), which provides:

"(f) 'Person with mental illness' means a person who, because of a mental disorder, is one or more of the following:
“*****
"(B) Unable to provide for basic personal needs that are necessary to avoid serious physical harm in the near future, and is not receiving such care as is necessary to avoid such harm."

         As we recently explained in M. A. E., the current version of ORS 426.005(1)(f)(B)-which took effect on January 1, [300 Or.App. 315] 2016-altered the legal standard for a basic-needs commitment. 299 Or.App. at 236-37. Under the previous version of the statute, as we had construed it, a basic-needs commitment was authorized only when, absent commitment, the person faced "an imminent threat to safe survival" because of an inability to attend to the person's own basic needs. Id. at 237. We concluded that the amendments changed the basic-needs standard in two ways: "one that relates to the type of risk the allegedly mentally ill person must face if not involuntarily committed ('serious physical harm') and one that relates to the time-frame in which that risk must ...


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