246
Submitted August 31, reversed October 14, 2020
In the Matter of H. M.,
a Person Alleged to have Mental Illness.
STATE OF OREGON,
Respondent,
v.
H. M.,
Appellant.
Multnomah County Circuit Court
19CC05499; A172659
475 P3d 133
Appellant appeals a judgment committing him to the custody of the Mental
Health Division for a period not to exceed 180 days, based on the trial court’s
determination that he was dangerous to others due to a mental disorder.
Appellant is a 32-year-old man with schizoaffective disorder, bipolar type, and
methamphetamine use disorder. He has a history of violence against family
members, including choking his father and hitting his sister during an incident
that occurred about a year before the commitment hearing. Appellant does not
dispute that he has a mental disorder but argues that the evidence was insufficient to find that he was dangerous to others at the time of the commitment hearing. Held: The trial court erred. Absent some current evidence to link appellant’s
past violent behavior to a current serious and highly probable threat of harm, the
trial court’s conclusion that appellant was dangerous to others at the time of the
hearing was too speculative.
Reversed.
Benjamin S. Johnston, Judge.
Joseph R. DeBin and Multnomah Defenders, Inc., filed
the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Dashiell L. Farewell, Assistant
Attorney General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
AOYAGI, J.
Reversed.
Cite as 307 Or App 246 (2020) 247
AOYAGI, J.
Appellant appeals a judgment committing him to
the custody of the Mental Health Division for a period not
to exceed 180 days, based on the trial court’s determination
that he was dangerous to others due to a mental disorder.
We agree with appellant that the evidence was insufficient
to support the dangerousness finding and, accordingly,
reverse.
We state the facts in the light most favorable to the
trial court’s disposition. State v. L. R., 283 Or App 618, 619,
391 P3d 880 (2017) (standard for non-de novo review). Our
task is to determine whether the record, so viewed, is sufficient to meet the legal standard for involuntary commitment.
Id. Because defendant does not contest that he has
a mental disorder, and because the trial court committed
appellant based solely on his dangerousness to others and
rejected any other bases for commitment, we limit our discussion to the evidence of dangerousness to others.
Appellant is a 32-year-old man with schizoaffective
disorder, bipolar type, and methamphetamine use disorder.
He has been hospitalized for mental health issues on multiple occasions, including at least three times in 2019. At
the time of his commitment hearing on October 28, 2019,
appellant had been hospitalized since October 12. The reason for his October 12 admission is not in the admitted evidence, but, during that hospitalization, a physician’s hold
was placed on appellant based on his being dangerous to
himself and his being unable to meet his basic needs. That
hold led to this commitment proceeding.1
Appellant’s treating psychiatrist, Meehan, testified about appellant’s then-current hospital stay, which had
lasted 16 days at the time of the hearing. Appellant tested
positive for methamphetamine and cannabis upon admission. While hospitalized, he had been overtly psychotic,
extremely paranoid, largely nonverbal, and uncooperative
with any kind of interview about his mental health, but he
1
Although appellant was held based on danger to self and inability to meet
basic needs, the precommitment investigator reported on inability to meet basic
needs and danger to others, and the trial court ultimately committed appellant
based solely on danger to others.
248 State v. H. M.
was consistently compliant with his medications. Appellant
would get “somewhat agitated” if people attempted to talk to
him about his mental health issues; indeed, Meehan terminated her first interview with appellant because he got agitated and she “didn’t feel safe.” However, at no point during
his hospitalization had appellant struck anyone or become
agitated to the point of needing seclusion and restraint.
As far as dangerousness to others, Meehan expressed
concern about appellant being a danger to others based on
the records indicating that appellant had a long history of
violence, particularly towards his father. According to the
records, appellant reported having a physical fight with his
father in 2009, and he reported punching his father in 2017.
Most recently, appellant choked his father without provocation. Asked whether she thought that appellant would be “a
danger to other people” if he was discharged that day, did
not take medication, and did not have a structured environment in which he was monitored and treated, Meehan
opined that it was “extremely likely that that would happen,” given appellant’s “history of this kind of agitated
behaviors.”
Meehan also testified regarding appellant’s substance abuse, which dates back to at least 2005. Meehan
testified that substance use, particularly methamphetamine
use, “exacerbates” appellant’s underlying psychiatric disorder. Meehan further noted “a suggestion in the notes that
[appellant] becomes more violent when he’s using methamphetamine and so it may be that some of these interpersonal
violent episodes are also related to the methamphetamine
use.” Meehan would recommend that appellant receive substance abuse treatment once his psychiatric condition stabilizes with medication.
In addition to Meehan, the court heard testimony
from appellant’s father, a counselor who had treated appellant in the community, and appellant.
Appellant’s father testified about appellant’s history
and about the choking incident to which Meehan referred
in her testimony. Appellant’s father testified that appellant
is “good” when he takes his medications but is a “different
person” when he does not. Appellant’s father is afraid of
Cite as 307 Or App 246 (2020) 249
appellant since an incident that occurred “some months”
before the commitment hearing or “maybe even longer.” In
that incident, appellant had disappeared for 13 days, before
showing up at his father’s house at 3:00 a.m. Appellant was
sick and hungry, so his father let him in and gave him food.
When appellant’s father told him not to stuff so much food
into his mouth at once, appellant grabbed his father by the
neck, choked him, and grabbed a spoon to use to hit him.
Appellant’s sister woke up, screamed, and called the police.
Appellant hit his sister twice before the police arrived and
arrested him. Appellant’s father and sister have restraining orders against appellant as a result of that incident,
which suggests that the incident actually occurred over a
year before the commitment hearing (around August 2018),
based on the date of the restraining order in the record.
Vejo is a counselor at a hospital psychiatric clinic at
which appellant has been a patient since at least 2014. Like
appellant’s father, Vejo testified that appellant is “pretty
good” when he takes his medications but is a “different
person” when he does not. Without medication, appellant
is delusional, lacks awareness of space and time, and cannot answer simple questions. Vejo has never seen appellant
exhibit any violence, on or off medication; appellant is different when he is off medication but not violent. For the last
five years, Vejo has seen appellant cycle through going off
medication, ending up in jail or in the hospital, and then
returning to the clinic and getting back on medication.
In his own testimony, appellant admitted to having
two convictions each for fourth-degree assault and menacing, although there is nothing in the record about the dates
or circumstances of those convictions.2 Appellant did not
remember choking his father. He recognized that it might
have happened, although he doubted that he would do such
a thing. According to appellant, he is different when he is
off medication—he cannot really tell that himself, but other
people tell him that that is the case—so it is possible that he
2
There is also evidence that appellant had been taken into police custody 23
times as of June 2018, possibly in 2017 and 2018 alone, although the time period
is unclear. Because the record is silent as to why appellant was taken into custody, we reject any inference suggested by the state that it was because appellant
engaged in violent or aggressive behavior as a result of his mental disorder.
250 State v. H. M.
choked his father when he was off medication, but he is not
sure. Appellant said that it was scary to think that he could
hurt someone he loves while off medication, which was why
he intended to take his medication. Appellant denied ever
having thoughts of hurting people.3
Finally, the court queried the examiners. The first
examiner opined that appellant was dangerous to others, based on his past violence toward family members.
She expressed particular concern that appellant could not
remember harming his father, which showed that appellant’s insight and judgment were so impaired by his mental disorder that he did not recognize that he was acting on
impulses and harming someone he greatly cares about. The
second examiner summarily agreed with the first examiner.
At the conclusion of the hearing, the trial court
determined that appellant had a mental disorder that caused
him to be dangerous to others. According to the court, the
basis for its finding was appellant’s history, as described by
Meehan, and appellant’s father’s testimony about the choking incident. Appellant appeals the resulting judgment.
ORS 426.130 allows for the civil commitment of a
“person with mental illness.” A person with mental illness
includes a person who, because of a mental disorder, is dangerous to others. ORS 426.005(1)(f)(A). A person cannot be
civilly committed on the basis of a mental disorder alone.
State v. Miller, 198 Or App 153, 161,
107 P3d 683 (2005).
To prove that a person is dangerous to others, the
state must establish by clear and convincing evidence “a factual foundation to predict appellant’s future dangerousness
based on his condition at the time of the hearing in the context of his history.” State v. M. G., 296 Or App 714, 718,
440
P3d 123 (2019). “[I]t is appropriate for a court to consider
3
Appellant also denied having told the precommitment-hearing investigator otherwise. According to the investigator’s report in the record, in speaking
with the investigator, appellant “denied thoughts of hurting himself but endorsed
‘sometimes’ having thoughts of hurting others but state[d] ‘that’s just not me’ and
‘I guess I just have to find my home’ and then laugh[ed].” It is unclear whether
that statement was excluded as hearsay or is part of the record, and the state
mentions it only briefly on appeal. In any event, the trial court does not appear to
have relied on it and arguably credited appellant’s testimony when it found that
appellant does not mean to be violent.
Cite as 307 Or App 246 (2020) 251
the testimony of mental health experts, the person’s past
acts, and the person’s apparent condition at the time of the
hearing.” State v. Lott,
202 Or App 329, 335,
122 P3d 97
(2005), rev den,
340 Or 308 (2006). “Although ‘dangerous’ is
a common term that, in ordinary usage, may refer to a broad
range of threats, the type of ‘danger’ necessary to justify an
involuntary civil commitment is a narrow range of serious
and highly probable threats of harm.” State v. S. R. J.,
281
Or App 741, 749,
386 P3d 99 (2016). Also, “actual future violence” must be “highly likely.” State v. L. D.,
247 Or App 394,
400,
270 P3d 324 (2011). “Conclusions based on conjecture
as to whether appellant poses a danger to others are insufficient.” State v. M. A.,
276 Or App 624, 629,
371 P3d 495
(2016) (internal quotation marks omitted).
In this case, we agree with appellant that the evidence was insufficient to find that, at the time of the hearing on October 28, 2019, he was dangerous to others as a
result of his mental disorder, i.e., that he posed a serious and
highly probable threat of harm to others at that time.
Although the record contains few details, there is
certainly evidence that appellant has a long, if sporadic, history of violent behavior toward family members, caused by
his mental disorder, and that his use of methamphetamine
and other substances exacerbates his disorder. Appellant’s
family members are understandably afraid of him and want
him to get help. The difficulty with committing appellant on
October 28, 2019, is that there is no evidence that appellant
had been violent toward anyone for at least “some months”
and possibly more than a year. Unless we are prepared to
say that appellant may be civilly committed anytime that
he goes off his psychiatric medication, based solely on his
having several violent incidents in his past while off medication, we cannot say that this record supports a finding that
appellant was dangerous to others as of October 28, 2019.
In our view, the civil commitment statutes do not
permit a finding of dangerousness to others, as a predicate
to taking away someone’s liberty, based solely on past history without more. “[A] mere recitation of past acts, in the
absence of a showing that such clearly forms the foundation
for a prediction of future dangerousness, cannot serve as the
252 State v. H. M.
basis for a finding that one is a mentally ill person pursuant to ORS 426.005.” Miller, 198 Or App at 158 (internal
quotation marks omitted). For examples of circumstances
in which the necessary showing was made, see State v.
E. D.,
264 Or App 71, 74,
331 P3d 1032 (2014) (an appellant’s
threats of future violence, combined with “a corresponding overt act demonstrating an intention to carry out the
threats or other circumstances indicating that actual future
violence is highly likely,” is generally sufficient to establish
dangerousness to others); State v. D. L. W.,
244 Or App 401,
405,
260 P3d 691 (2011) (recent threats combined with past
overt violence is generally enough to establish dangerousness to others); State v. K. S.,
223 Or App 476, 486,
196 P3d
30 (2008) (the appellant’s history of violent behavior when
off medication, combined with his recent confrontation with
someone and his destruction of property both at his parents’
home and at the hospital, was sufficient to establish dangerousness to others); State v. Bodell,
120 Or App 548, 551,
853
P2d 841 (1993) (recent threats combined with past threats
may be sufficient to establish dangerousness to others, if
they provide ample evidence to predict future violence).
Given appellant’s specific history, it might not take
much evidence to bridge the gap from the fact of appellant’s past violence to his being dangerous to others as of
October 28, 2019, but some such evidence was necessary.
Here, the only arguably relevant evidence toward that end
was Meehan’s brief testimony that she terminated her first
hospital interview with appellant because she “didn’t feel
safe” when appellant became “agitated” by her discussing
his mental disorder. Such caution on the part of an attending psychiatrist when meeting a new patient for the first
time is not enough to establish appellant’s dangerousness,
even considering the relatively low bar to do so in light of
appellant’s history, at least on this record where there is only
a vague reference to appellant being “agitated” and no evidence of appellant actually threatening or taking any action
toward Meehan. Absent some current evidence to link appellant’s past behavior to a current serious and highly probable
threat of harm, the trial court’s conclusion that appellant
was dangerous to others as of October 28, 2019, relied too
much on “conjecture.” M. A., 276 Or App at 629.
Cite as
307 Or App 246 (2020) 253
Because the evidence is insufficient to support the
trial court’s determination that appellant was dangerous
to others at the time of the commitment hearing, the trial
court erred in committing appellant, and the judgment is
reversed.
Reversed.
