State v. Webber

¶1dissenting.

¶2The majority reverses the trial court’s decision to commit appellant to the custody of the Mental Health and Developmental Disability Services Division because it determines that there was not clear and convincing evidence to support a finding that appellant’s mental disorder caused him to be a danger to himself or others. Because I believe there is clear and convincing evidence that appellant had a mental disorder at the time of the hearing and that his mental disorder caused him to be a danger to others, I dissent.1

¶3The majority concludes that there is “HJittle in this record to show that appellant’s actions or reactions toward Donald were caused by, or linked to, his mental illness. Rather, they could as reasonably be the result of his brother’s instigation of the fight at the house or appellant’s consumption of alcohol.” 181 Or App at 236. Essentially, the majority characterizes what occurred as an unfortunate spat between two brothers. I disagree. Contrary to the majority’s assessments, there is a great deal in this case to support the conclusion that there is a link between appellant’s behavior and his mental illness. The evidence of the events leading to this commitment proceeding and the evaluation of the circumstances by appellant’s family, the mental health examiners, and the trial court support the conclusion that appellant’s behavior resulted from his mental disorder and that this behavior posed a danger to others.

¶4As the majority explains, the incident on which this proceeding is based took place at a family picnic and began when appellant’s older brother, Donald, who was visiting the family, asked whether appellant was taking his medication. As Donald explained:

“I was sitting there with my wife and [appellant] approached. [Appellant] struck up a conversation and we started talking. I said bro, how you doing? I go have you been taking your meds? I go is everything okay? That was *241the sparking point of this whole incident; brother, have you been taking your meds, are you okay.”

¶5Appellant apparently was embarrassed by the question and reacted by swearing at his brother and also at his mother and father who were there and who tried to calm him. Following this exchange, appellant began to goad Donald into a fight. Donald started to respond to appellant but was asked by their father to back off. Donald did so and, in fact, told appellant that he was sorry and that he loved him. There apparently were a number of children in the area, including Donald’s young children.

¶6After the incident, the family left the area where it had been having its picnic. Appellant rode home with his mother and father. Although they continued to try to calm him, he remained extremely agitated, saying that he could chop his brother in the throat and that he would get a knife and stab him. His father described appellant as “manic in a wild way.” The father said that appellant kept repeating things, such as “I can cut him. I can cut him. … I can chop him.” Once they arrived at the house where appellant was also staying, appellant went to his room. Donald dropped off at least some family members at another location and returned to the house where appellant was. He explained that he did not think that his family could continue to stay there with this kind of friction. When he arrived at the house, he went to appellant’s room. According to Donald, he asked appellant if they could talk. Donald said that they really needed to talk. Donald said that appellant’s behavior scared him and that he had heard that he had hit the father. According to Donald, appellant responded by saying, “[F]uck your dad. I’[ve] knocked the mother fucker out and I’ll do it again.” Appellant repeatedly asked Donald to leave and, when he did not, appellant attempted to push Donald out of the room. The physical altercation between the brothers followed that interaction. During the altercation, appellant told his brother that he hoped Donald would get stabbed or shot.

¶7There are also assessments by a mental health investigator and a mental health examiner who evaluated appellant after the incident and prior to the August 9 hearing. The written reports of both mental health experts *242include a finding that appellant has a mental disorder, that he is a danger to others, and that appellant is dangerous to others because of his mental disorder. The mental health investigator, Thor, had worked with appellant for more than four years. He explained that appellant was originally diagnosed as having a bipolar disorder but that he has “Schizo-affective Disorder where there is an uninterrupted period of illness during which, at some time, there is a Manic episode with symptoms of Schizophrenia (delusions, hallucinations, disorganized speech).” He said that appellant was “inconsistent” in taking his medications.

¶8At the time that Thor interviewed appellant on August 3, Thor described appellant’s mood as “elevated, expansive and irritable” whenever doubts were raised about his story regarding the events of August 2. According to Thor, appellant’s “mental illness was interfering with his ability to stay on task, to not be overly expansive.” Thor said that he left on August 3, because it was difficult to keep appellant focused on his questions. Thor said that he decided to return the next day, because appellant would have his medications back in his system and would be able to concentrate better. When Thor returned the next day, appellant’s symptoms were still there, but he had enough control that it was easier for Thor to direct appellant to his questions. However, Thor said that, even on August 4, appellant was acting in an agitated manner. He described appellant’s behavior:

“Each time he explained his version of the incident at home, [appellant] got very expansive and physically demonstrable throwing himself into [a] choke hold and up against the wall or swinging and punching the air to accent his anger about the ‘things that were done to me and I get committed as a luny.’ ” (Emphasis added.)

¶9Thor concluded in his report that appellant had a mental disorder and that he was not willing, able, or likely to participate in treatment on a voluntary basis. On the report that he submitted to the court, Thor also checked the box that corresponded to the following statement: “In my opinion, this person, because of the above stated mental disorder, is dangerous to others.” (Emphasis added.) In that section of the report, he explained:

*243“[Appellant’s] history of hospitalizations on Commitments have been either for danger to self or danger toward others. In this case, he was talking uncontrollably from the time the family left their house until upon return there from a picnic at Lake Selmac. He was making vile, provocative, intimidating statements and threats nonstop. He made statements threatening his brother’s life in the car on the return from the lake and menacing gestures which made the parents stop the car to have him leave it. [Appellant] refused. He admits that he pushed his brother at the parents!’] home after previously making statements about wanting to harm him according to the parents. This [led] to a physical altercation in which both [appellant] and the brother admit he was restrained (different viewpoints). He has little insight into the factual actions that happened other than, for the most part, it was entirely his brother [’]s fault. His mother and father are very afraid of him and afraid of what he might do to them or their adopted son if he is not placed with JCMHP by the Court.”2 (Emphasis added.)

¶10At the hearing, when asked for his opinion of the cause of the incident, Thor testified:

“From my understanding of [appellant’s] history and from my experience of him in the hospital, and also the fact that he acknowledged on the interview of the 4th that he’d probably taken medication three times the previous week and a half, that it was because he wasn’t taking his medication.”

¶11The mental health examiner, Cheryl Brown, who interviewed appellant the day before the hearing reached a similar conclusion. She testified that, during her interview with appellant, he was “grandiose in his thinking, and acknowledged feelings of depersonalization, and in my judgment had very poor insight into his mental illness and considerable denial regarding the events that had occurred.” Brown’s report included the following findings:

“3. In my opinion, the above-named person suffers from a mental disorder.

“Yes _X_ No (if No, do not answer 4, 5, 6, 7)

“a) State diagnostic impression schizoaffective disorder, bipolar type

*244“b) Describe how disorder manifests in person’s thoughts/behavior

“Delusional, manic, stops taking medication, threatening harm to family members, bizarre behavior

“4. In my opinion, the above-named person, tal disorder, is: due to a men-

“Dangerous to others YesJXNo__

“Dangerous to self Yes_No_

“Unable to provide for basic needs Yes X No

“a) describe the behavior that makes the person dangerous to self/others, or unable to care for basic needs [Appellant] refuses to take medication, threatens family members with physical harm …. In my opinion, the above-named person’s mental disorder results in behavior(s) that make(s) the person a danger to self' others, unable to care for basic needs YesJX No_

“b) explain how the mental disorder is connected to and results in the behavior(s) described in #4 [His] thinking is disorganized and delusional [.]”

¶12The record of the commitment proceeding also shows that appellant’s symptoms, in particular his inability to control his behavior, continued at the hearing on August 9. Throughout the hearing, he continually engaged in verbal outbursts, despite being repeatedly told not to do so and that he would get a chance to talk.3

¶13The majority is correct that there needs to be a “causal nexus between the mental disorder and at least one of the ORS 426.005(l)(d) criteria.” State v. Gjerde, 147 Or App 187, 192, 935 P2d 1224 (1997). This case, however, is very different from Gjerde. In Gjerde, the appellant refused placement in a nursing home and there were concerns that she might not be able to obtain necessary emergency medical *245treatment if she remained at home. The appellant explained that the reason for her resistance to being moved to a nursing home was her distrust of the medical community in general and her belief that she could take care of herself at home. We concluded:

“Appellant’s testimony evinces a free, knowing, and rational choice to return home, notwithstanding the attendant risks. It is not necessarily the choice that everyone would make. But it is appellant’s choice. … Unless a mental disorder has impaired autonomous choice, civil commitment cannot be a vehicle for ‘saving people from themselves.’ ”Id. at 196.

¶14As noted above, in Gjerde, we reversed the commitment because we did not believe that the appellant’s decision was a result of her mental disorder.

¶15This is a very different case. Here, the evidence is cle.ar and convincing that appellant’s behavior resulted from his mental disorder. In this case, not only does the evidence of what occurred demonstrate the necessary relationship, but significantly, as noted above, the two mental health experts who evaluated appellant, one of whom had known appellant for some time, specifically found that, due to his mental disorder, appellant was a danger to others.

¶16Finally, the conclusion that appellant’s behavior resulted from his mental disorder is also supported by the assessment of the trial court judge who, significantly, had the opportunity to hear and review the evidence presented and to personally evaluate appellant’s behavior. As we have recognized on numerous prior occasions, although our review in mental commitment cases is de novo, the trial court’s findings in this type of case are due some deference. As we have explained: “We cannot ignore the fact that, in a mental illness case, the circuit court’s opportunity to view appellant’s demeanor may be critical in reaching a conclusion as to his mental state.” State v. Smith, 71 Or App 205, 212 n 8, 692 P2d 120 (1984); see also State v. Jacobson, 142 Or App 371, 922 P2d 670 (1996) (trial court’s findings deserve some deference because the court had an opportunity to observe the appellant’s demeanor); State v. Furnish, 86 Or App 194, 738 *246P2d 607 (1987) (same). Based on all of the above considerations, I agree with the trial court that appellant had a mental disorder at the time of the hearing and was dangerous to others because of his mental disorder.

¶17According to the majority, however, my analysis is incorrect because neither the evidence of what occurred, nor the opinions of the mental health experts, nor the evidence of appellant’s behavior in the courtroom, nor the trial court’s assessment of appellant’s behavior provides clear and convincing evidence of the necessary causal connection. In reaching my conclusion, however, I do not take the position that each factor would be sufficient by itself to establish the causal connection in this case. Rather, in my view, considering together all of the above factors, there is clear and convincing evidence of the necessary causal connection. With that in mind, I turn to the majority’s specific arguments concerning each factor.

¶18With regard to appellant’s conduct and the opinions of the mental health experts, the majority states that “[n]o witnesses attributed appellant’s reaction to Donald to delusions, hallucinations, voices speaking to him, or any other indicator of mental illness,” 181 Or App at 237, and that “[t]he problem with relying on [the experts’] acts of checking the boxes on the forms is that the underlying facts contained in their reports do not ‘explain how the mental disorder is connected to and resulted in’ the behaviors described, as the forms expressly direct,” 181 Or App at 239. My view of the record, however, is different.

¶19In her report, Brown indicated that appellant has a mental disorder; that delusions, the failure to take medication, and threats of physical harm to family members are manifestations of the disorder in appellant’s behavior and thoughts; that appellant is dangerous to others due to that mental disorder; that the behavior that makes him dangerous to others includes his refusal to take medication and his threats to family members; and that appellant’s “disorganized and delusional” thinking explains the manner in which the mental disorder results in the behavior that makes appellant a danger to others. Brown’s statements clearly provide *247evidence that the appellant was a danger to others due to his mental disorder.

¶20In his report, Thor also opined that appellant was dangerous to others because of his mental disorder. According to Thor, on August 2, appellant (1) “was making vile, provocative, intimidating statements and threats nonstop,” (2) “made statements threatening his brother’s life in the car on the return from the lake and menacing gestures which made the parents stop the car to have him leave it,” and (3) “admits that he pushed his brother at the parents!’] home after previously making statements about wanting to harm him according to the parents.” At the hearing, Thor testified that the incident was caused by appellant’s failure to take his medication properly. Thor also indicated that the medication helped to control appellant’s mental disorder. When viewed in context, Thor’s statements indicate that the behavior demonstrating that appellant was dangerous to others was caused by appellant’s failure to take the medication that helped to control his mental disorder. In other words, appellant is dangerous to others because of his mental disorder.4

¶21With regard to the trial court’s finding concerning the causal relationship, the majority begins by noting that “the court did not expressly find the required nexus,” 181 Or App at 239. Although the trial court may not have expressly stated that the causal connection exists, we have de novo review, and I, unlike the majority, conclude that there is clear and convincing evidence of such a connection. The majority also asserts that, “[i]n light of our de novo review, any deference to the trial court is necessarily limited to its assessment of the credibility of witnesses, and this case does not turn on the credibility of witnesses.” 181 Or App at 239. The majority’s view of the deference afforded the trial court *248in this type of case, however, is too narrow and does not comport with our case law. In Furnish, we stated:

“Although we review de novo, ‘we cannot ignore the fact that, in a mental illness case, the circuit court’s opportunity to view appellant’s demeanor may be critical in reaching a conclusion as to his mental state. Therefore, we do give some deference to the conclusion of the circuit court.’ State v. Smith, supra, 71 Or App at 212 n 8.” 86 Or App at 198.

¶22In sum, after reviewing the evidence of what occurred, the opinions of the mental health experts, the evidence of appellant’s behavior in the courtroom, and the trial court’s assessment of appellant’s behavior, I would conclude that there is clear and convincing evidence that appellant is a danger to others due to his mental disorder. For all of the above reasons, I respectfully dissent.