638
Submitted September 12, 2019, affirmed January 2, 2020
In the Matter of M. J. M.,
a Person Alleged to have Mental Illness.
STATE OF OREGON,
Respondent,
v.
M. J. M.,
Appellant.
Lane County Circuit Court
18CC05817; A169277
456 P3d 363
Appellant seeks reversal of the judgment committing her to the Mental
Health Division for a period not to exceed 180 days, challenging only the trial
court’s conclusion, under ORS 426.130(1)(a)(A), that she would neither cooperate
with nor benefit from voluntary treatment. Held: The record supported the trial
court’s conclusion that appellant had failed to establish that she was willing and
able to participate in voluntary treatment and would probably do so.
Affirmed.
Maurice K. Merten, Judge.
Joseph R. DeBin and Multnomah Defenders, Inc., filed
the brief for appellant.
Ellen F. Rosenblum, Attorney General, and Benjamin
Gutman, Solicitor General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
ORTEGA, P. J.
Affirmed.
Cite as 301 Or App 638 (2020) 639
ORTEGA, P. J.
Appellant seeks reversal of the judgment committing her to the custody of the Mental Health Division
for a period not to exceed 180 days. ORS 426.130(1)(a)(C).
Appellant does not challenge the conclusion that she has
a mental illness; instead, she argues that the trial court
erred in concluding that she was unwilling to participate
in voluntary treatment. ORS 426.130(1)(a)(A). Because we
conclude that the record supports the trial court’s conclusion
that appellant failed to meet her burden of establishing by a
preponderance of the evidence that she was willing and able
to participate in voluntary treatment and will probably do
so, we affirm.
Neither party has requested de novo review, and
we do not view this as an exceptional case warranting such
review. See ORAP 5.40(8)(c). Therefore, we review the sufficiency of the evidence supporting appellant’s commitment
for legal error and are “bound by the trial court’s findings
of historical fact that are supported by any evidence in the
record[.]” State v. R. E., 248 Or App 481, 483,
273 P3d 341
(2012). We state the relevant facts “consistently with the trial
court’s express and implied findings, as supplemented with
uncontroverted contextual information from the record.”
State v. B. B.,
240 Or App 75, 77,
245 P3d 697 (2010) (citation
and internal quotation marks omitted).
Appellant had a history of mental health issues
(recurrent and severe major depression and borderline personality disorder) and suicide attempts. In the events leading up to her hospitalization, police responded to appellant’s
house after a medical staff person reported that appellant had disclosed plans to commit suicide. Upon arriving,
police found a loaded rifle and several bottles of medication
inside appellant’s house. After investigating the scene and
asking appellant regarding her suicide plans, the police
believed she would carry out her plans and took her into
custody. A certified mental health investigator concluded
that appellant would not benefit from a program of voluntary treatment and recommended that she remain in
custody.
640 State v. M. J. M.
At the commitment hearing, the state presented evidence that, in the last year alone, appellant had attempted
suicide at least six times, and her son had intervened by
removing guns from her home following numerous suicide
threats. During the current hospitalization, appellant continued to express suicidal thoughts, including the night
before the hearing, when she had informed a social worker
that “she continued to feel suicidal and wanted to get a gun
and kill herself after discharge.” Additionally, Dr. Streck,
appellant’s evaluating psychiatrist, testified that there
was little improvement in her condition. Although Streck
had doubled her medication dosage, appellant had reported
“feel[ing] about the same as she did when she came into the
hospital.” Appellant’s condition, combined with her history
of suicide attempts, led Streck to determine that, without
continued treatment, “she’ll end her life.”
Appellant testified against commitment, stating
that she was feeling better than when she first arrived at
the hospital and that she was taking all her medications
as prescribed. Appellant felt that her medications were
“starting to kick in” despite several previous issues with
her dosage and stated that she was interested in voluntary
treatment and preferred to be at home rather than at the
hospital. Ultimately, the trial court concluded that appellant would neither cooperate with nor benefit from voluntary treatment; therefore, it committed her to the Mental
Health Division against her will.
On appeal, appellant argues that she met her burden of proving by a preponderance of the evidence that she
was willing and able to and would probably participate in
voluntary treatment. Appellant maintains that she would
continue to work with a psychiatrist and a therapist in the
community if released from the hospital. Appellant argues
that the trial court provided no reason for its conclusion that
she would not comply with voluntary treatment.
If the court determines that a person is mentally ill
based upon clear and convincing evidence, the court must
order the person’s release and dismiss the case if the person is “willing and able to participate in treatment on a
voluntary basis” and the court finds that “the person will
Cite as 301 Or App 638 (2020) 641
probably do so.” ORS 426.130(1)(a)(A)(i) - (ii). The mentally
ill person has the burden of establishing the foregoing by a
preponderance of the evidence. State v. T. M.,
229 Or App
325, 330-31,
211 P3d 359 (2009).
Appellant argues that her case is analogous to State
v. M. C. M., 212 Or App 158,
157 P3d 308 (2007), in which we
reviewed de novo and reversed because the record demonstrated that the appellant was willing to engage with voluntary treatment, was capable of doing so, and probably would
do so. However, M. C. M. is distinguishable from this case.
There, the trial court committed the appellant based in part
on its concern that he would be homeless upon release, a
rationale that we stated was irrelevant to the inquiry under
ORS 426.130(1)(a)(A).
Id. at 161. Here, nothing suggests
an inappropriate basis for the trial court’s commitment
determination.
Moreover, in M. C. M., we concluded on de novo review
that the appellant presented an objectively viable plan to
“provide for his own welfare, including remaining under
the care of his primary physician.” Id. Here, by contrast,
although appellant testified that she was willing to engage
in voluntary treatment, the trial court was entitled to disbelieve her testimony given the other evidence in the record—
including her statement the night before the hearing that
she would kill herself upon release. A court is not required
to release a mentally ill person merely because the person
has expressed a willingness to engage in voluntary treatment. Here, the evidence in the record supports the trial
court’s finding that appellant would neither cooperate with
nor benefit from voluntary treatment. It follows that the
trial court did not err by committing appellant.
Affirmed.
