603
Submitted October 5, 2018, reversed January 21, 2021
In the Matter of E. J. J.,
a Person Alleged to have Mental Illness.
STATE OF OREGON,
Respondent,
v.
E. J. J.,
Appellant.
Marion County Circuit Court
17CC01358; A164507
479 P3d 1073
Appellant seeks reversal of an order committing him to the custody of the
Oregon Health Authority. He argues that the evidence was insufficient to support
the trial court’s findings that, due to a mental disorder, he was a danger to others
and was unable to provide for his basic personal needs. The state contends that
defendant’s behavior in two separate incidents and his inability to care for himself supported the court’s findings. Held: The trial court erred because the state
did not establish a lawful basis for civil commitment. The record was insufficient
to support a finding by clear and convincing evidence that, due to a mental disorder, appellant was a danger to others, because it relied on evidence that failed to
establish a connection to appellant’s mental disorder or that could not support a
finding that actual future violence was highly likely. As to appellant’s ability to
provide for his basic needs, the record reflected that, contrary to the state’s contention, appellant had both housing and the means to obtain the food necessary
for his safe survival.
Reversed.
Rafael A Caso, Judge pro tempore.
Alexander C. Cambier and Multnomah Defenders, Inc.,
filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jeff J. Payne, Assistant Attorney
General, filed the brief for respondent.
Before DeHoog, Presiding Judge, and DeVore, Judge, and
Aoyagi, Judge.
DeHOOG, P. J.
Reversed.
604 State v. E. J. J.
DeHOOG, P. J.
Appellant seeks reversal of an order committing
him to the custody of the Oregon Health Authority for a
period not to exceed 180 days. He argues that the evidence
was insufficient to support the trial court’s findings that,
due to a mental disorder, he was a danger to others and
was unable to provide for his basic personal needs. See ORS
426.130; ORS 426.005(1)(f)(A) and (B).1 For the reasons
set forth below, we agree with appellant and, accordingly,
reverse.
When reviewing a civil commitment, “we view the
evidence, as supplemented and buttressed by permissible
derivative inferences, in the light most favorable to the trial
court’s disposition and assess whether, when so viewed, the
record was legally sufficient to permit that outcome.” State
v. M. A., 276 Or App 624, 625,
371 P3d 495 (2016) (standard
for non-de novo review) (internal quotation marks omitted);
see also State v. J. G.,
302 Or App 97, 98,
458 P3d 721 (2020)
(“Our task is to determine whether the record, so viewed,
is sufficient to meet the legal standard for involuntary
commitment.”). We state the facts in accordance with that
standard.
Appellant was diagnosed with schizophrenia in
2000, but that diagnosis was later modified to schizoaffective
disorder, bipolar type. Since his initial diagnosis, appellant
has had a history of hospitalizations and civil commitments
due to mental illness. Following a commitment or hospitalization, appellant generally does well for a year or two until
for some reason he stops taking his prescribed medications,
which leads to his decompensation. Appellant’s most recent
commitment ended in October 2013, at which time he was
prescribed an oral medication, Zyprexa, and an injectable
medication, Invega Sustenna. Appellant stopped taking
Zyprexa in 2015, but he continued on Invega Sustenna until
October 2016.
In February 2017, appellant’s mother and stepfather filed a Notification of Mental Illness regarding
1
ORS 426.130 and ORS 426.005 have been amended since the events giving
rise to this case. Because those amendments are immaterial to our analysis, we
cite to the current versions of the statutes in this opinion.
Cite as 308 Or App 603 (2021) 605
appellant after seeing him once again decompensate. At the
commitment hearing that followed, appellant’s mother testified that appellant had begun to exhibit changes when he
stopped taking the Zyprexa in 2015, after which his condition deteriorated over the course of a year and a half, most
dramatically beginning in October 2016, when he stopped
getting Invega Sustenna injections and “just went right off
of the side of that cliff.”
According to appellant’s mother, this was a familiar
pattern that she had seen repeatedly over the last 15 years.
She described appellant’s initial symptoms as paranoia and
delusions. As an example of appellant’s delusional thinking,
his mother explained that, as appellant’s representative
payee, she managed his money, including his monthly $850
Social Security payments. But, when appellant stopped taking his medications, he began to pull away from his mother
and, as he had done in the past, accused her of stealing his
Social Security benefits. She testified that, in October, after
appellant had stopped getting his injections, he had gone to
the Social Security office and changed the payee designation for his benefits from an account that she managed to a
personal account that only he could access.
Sometime thereafter, appellant’s mother received
notice that he had not paid his internet bill. She also learned
that appellant had lost his cell phone and his food stamp
card. In order to ensure that appellant had a means of communicating with others, his mother paid his internet bill.
She also filled out the necessary paperwork so that appellant could replace his food stamp card, but appellant refused
to sign it and never turned it in. During that time, appellant told his mother that he had nothing to eat. Because
appellant lived near a Subway sandwich shop, his mother
gave him a Subway gift card and would replenish it when its
balance ran low. Nonetheless, appellant’s mother testified
that appellant looked gaunt and pasty and had lost a lot of
weight as of the time of the hearing.
When asked whether appellant had ever been physically violent with her, his mother responded, “Not that I
can recall, no. There’s been episodes where he’s spat at me
and things like that, and [was] very verbally aggressive, but
606 State v. E. J. J.
not physically.” She added, “I have never known [appellant]
to be violent. That doesn’t mean that he would not be in the
future.”
Paxton, the property manager at appellant’s apartment complex, testified that, in the months leading up to the
commitment hearing, appellant’s apartment had become
“very dirty.” Paxton described appellant’s living circumstances in some detail:
“There’s a twin-size box spring that [appellant has]
propped up against the door; food stuck to the counters;
stove and oven [are] really dirty; food everywhere. Items
strewn all over the counters and floor; garbage sometimes
in the middle of the floor; boxes and dressers shoved up
against the closet doors. … Regulator for the window was
taken off, which keeps the window from opening farther
because it’s a prop open window, … stains on the carpet,
things like that.”
Due to the condition of appellant’s apartment, Paxton served
a notice of lease violation on appellant. The notice gave appellant 14 days to clean up his unit to avoid eviction proceedings, but appellant was unable to meet that timeline. Rather
than pursue an eviction, however, Paxton gave appellant an
additional 15 days to comply, but again, appellant could not
bring his apartment into compliance. Paxton testified that
appellant “needs to be able to correct [the condition of the
apartment], and in the situation that he’s in it’s obvious that
that’s not going to happen.”
Paxton also testified that, on multiple occasions, she
had observed appellant carrying a sword and a large bowie
knife around in public. On two of those occasions, Paxton
had called the police because she had been concerned for
appellant’s welfare. However, Paxton also testified that she
had never seen appellant threaten anyone with the weapons
or otherwise behave violently.
Budlong, who had been appellant’s friend since
early high school, well before appellant’s symptoms first
arose, also testified. Like appellant’s mother, Budlong had
seen appellant both when he was adhering to his medical
regimen and when he was not. In explaining the difference
between the two, Budlong explained:
Cite as 308 Or App 603 (2021) 607
“[Appellant] is a wonderful, wonderful person; a fantastic friend; true and will do anything for you. He’s amazing.
But when—as he comes off his medication, that goes away
and the person that replaces it is angry and then sad; very
aggressive. And … if you mix anything else with it, alcohol or—specifically alcohol, things get real aggressive real
fast.”
Budlong said that he had noticed a dramatic change in appellant’s behavior starting in December 2016, when appellant’s
“behavior that had been suspect became full blown, crisis
level,” where it remained.
In February 2017, appellant showed up at Budlong’s
workplace, wearing only a light coat and soaking wet from
the rain, and told Budlong that he was out of money and
that he needed Budlong’s help with his computers. Budlong
agreed to meet at appellant’s apartment that evening.
When Budlong arrived, he found appellant outside, trying to persuade a neighbor to share his beer. Appellant
became aggressive, which seemed to intimidate the other
man, who retreated. Budlong and appellant then entered
appellant’s apartment. According to Budlong, a “giant mattress” blocked the entrance and had to be lifted out of the
way before they could enter the apartment, which Budlong
described as “in disarray.” Appellant first showed Budlong
a two-foot long sword and an ornamented knife that he had
recently acquired. Appellant then asked about his computers, and, when Budlong asked what was wrong with
them, appellant responded that “the government had infiltrated them all and that they were spying on him through
them,” and that he wanted Budlong to fix that. Budlong
told appellant that the government was not spying on him
and that he could not “fix” the computers like appellant
wanted. Appellant became “agitated for a minute,” telling
Budlong that he knew that Budlong worked for the government and that he was keeping track of appellant on
the government’s behalf, but then, Budlong said, became
“unconcerned.”
Appellant turned on some music and the two chatted briefly. Appellant asked Budlong if he wanted something to eat, but then said that he only had rice and sugar
and went to the kitchen to prepare that. Despite their social
608 State v. E. J. J.
interactions, Budlong described the atmosphere as “really
tense” and appellant as “very tense” and “very agitated,”
which made Budlong “very uncomfortable.” When appellant
then asked whether Budlong would get some marijuana for
him,2 Budlong agreed, but conditioned that on appellant
“answer[ing] two questions to [Budlong’s] satisfaction.”
Budlong then asked appellant, who was at the opposite end of the apartment at the time, whether “now that he’s
pushed everyone in his life away and he’s so sad he’s angry,
is he happy?” Appellant’s response “didn’t make any sense”
and, because he “didn’t get a response,” Budlong asked
again, “Since you’ve pushed everyone else, everyone in your
life away, are you happy?” At that point, appellant, who by
then had moved towards the kitchen island about halfway
across the apartment and was “very agitated,” told Budlong
that he was never his friend and picked up the knife, which
he had placed on the island. Satisfied that appellant had
sufficiently answered his first question, Budlong asked his
second: “If now you’re the person that you want to be, and it
makes you so unhappy and you’re sad, is it worth the feelings that you have and the pain that you cause to be off your
medication?”
Upset by that repeated questioning, appellant
became very agitated, closed the distance between them,
“[bared] his teeth,” and “lifted his hand, and along with
the knife he made this kind of gesture at [Budlong’s] face.”
Although the record is somewhat unclear, it appears as
though appellant may have done that several times, after
which “he’d go back and he’d slink back.” Budlong described
appellant’s speech as “unintelligible” and said that appellant’s behavior angered and scared him. After appellant
turned away, Budlong grabbed him by the shoulder, causing
appellant to spin around and yell that Budlong should not
touch him and needed to leave. Immediately thereafter—
“like a switch”—appellant asked Budlong, “Do you want
to go smoke and play videogames afterwards?”, to which
Budlong responded, “Well yeah. Yeah I do.”
2
Appellant told Budlong at some point that evening that marijuana was the
only medication that he was taking. The record does not disclose whether appellant was a designated medical marijuana user at the time.
Cite as 308 Or App 603 (2021) 609
However, after the two had gone outside together
to smoke, Budlong, who had not recovered from appellant’s
behavior, realized that he did not want to be there any longer and “had to get out.” As he was leaving, Budlong tried
twice to give appellant a hug, but appellant said “No,” and
Budlong left. Budlong testified at the hearing that he had
felt scared when appellant had the knife and that, when
appellant had been in “that state, that [appellant] could
have killed” him.
Appellant’s former girlfriend, M, also testified at
the hearing. M had visited appellant’s apartment at around
the same time as Budlong. She went there to help him clean
the apartment for his upcoming inspection. After the two
had been cleaning for a while, appellant “started making
sexual advances” by kissing M, but she told him, “Whoa.
Slow down. Slow your horses.” That happened several times.
After each rejection, appellant would briefly refrain from
further advances towards M before again attempting to kiss
her.
Given how much cleaning they had to do, appellant
and M were unable to complete their task the first day. M
agreed to spend the night so that they could continue their
work the next morning, but she told appellant that she
“didn’t want any funny business and [that she] wasn’t in a
place where that was okay.” Nonetheless, the next morning,
as M lay in bed planning her course of action for the day,
appellant woke up, rolled over, and began kissing M and
“rubbing up against” her. M told appellant to stop, but he
initially persisted, putting a finger in her vagina. M again
told appellant “something like ‘No. Stop. I don’t want this,’ ”
after which appellant responded with “Oh. I didn’t realize,”
and rolled back over. M testified that, although appellant
had never before exhibited violence, she did not feel safe continuing any sort of relationship with him “as [things] are
right now,” in light of that conduct.
In addition to that testimony from appellant’s friends
and family, the state presented testimony from Dalton, a
psychiatric nurse practitioner, who recommended that
appellant be civilly committed. Dalton testified that she
believed that appellant was unable to care for himself
610 State v. E. J. J.
because “he will not take his medications and … will
continue to be living in the kind of situation where he is
now, and possibly even decompensate further.” However,
Dalton, who had reviewed a prehearing investigative
report outlining the foregoing events, opined that appellant did not present a danger to others. Dalton explained
that, because appellant had not been violent with others,
despite evidence that he had not been on any medication for
a period of time, she did not believe that he was a danger to
others.
Appellant also testified at the hearing. He acknowledged his diagnosis but said that he did not hear voices and
that his schizoaffective disorder diagnosis was likely a result
of past drug use. Appellant testified that he had stopped taking his medications because he thought that his long-term
use of them was the cause of the stress he had been experiencing. When asked whether he would seek mental health
treatment and continue taking his medications if released,
appellant said he would “explore” his options, including
counseling. He acknowledged his difficulties keeping track
of things and finding food, but he said that he would call to
get his food stamp card replaced upon his release from the
hospital.
At the conclusion of the hearing, the trial court
found appellant to be a person with a mental illness and that,
because of a mental disorder, appellant was both dangerous
to others and unable to provide for his basic needs. As to the
dangerous-to-others finding, the court expressly found both
M and Budlong to be credible, but focused on appellant’s
behavior related to weapons. Specifically, the court stated
that it found appellant’s “continual carrying of weapons to
be indicative of someone who will carry with intent to use
those weapons.” The court further noted that appellant “did
use [weapons] against Mr. Budlong and would be facing a
felony for his actions.” As to appellant’s ability to meet his
basic needs, the court stated that appellant “has no concept
of how to provide food for himself” and that he was “only
surviving because his mother fills a Subway card.” On those
bases, the court civilly committed appellant for a period not
to exceed 180 days.
Cite as 308 Or App 603 (2021) 611
On appeal, appellant does not dispute that he has
a mental disorder; rather, he asserts that the evidence is
insufficient to support the trial court’s determination that
his mental disorder rendered him dangerous to others and
unable to provide for his basic needs. Appellant observes
that there was no testimony that he had actually been physically violent towards anyone or that he had verbally threatened physical violence. Further, he argues that, even if the
accounts of his behavior towards M and Budlong were supported by clear and convincing evidence, there was no evidence that those events were the result of his mental disorder. As for his ability to provide for his basic needs, appellant
observes that, as of the time of the hearing, he had not been
evicted from his apartment, he planned to replace his food
stamp card, and he had been regularly walking to Subway
to buy food with the gift card that his mother had given
him. As a result, appellant argues that the evidence did not
establish that he “would sustain serious physical harm in
the near future from lack of necessary food, water, shelter
or medical care.”
We turn to whether the evidence supports the trial
court’s rulings. A court may order that a person be involuntarily committed if, “based upon clear and convincing evidence,” the court determines that he or she is “a person with
mental illness” and is unwilling or unable to participate in
voluntary treatment. ORS 426.130(1).3 The phrase, “person
with mental illness” is defined, in relevant part, in ORS
426.005(1)(f)(A) and (B) as follows:
“(f) ‘Person with mental illness’ means a person who,
because of a mental disorder, is one or more of the following:
“(A) Dangerous to self or others.
“(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.”
3
As we recently explained in State v. M. J. F., 306 Or App 544, 548,
473 P3d
1141 (2020), although ORS 426.130(1)(a) authorizes civil commitment only if, in
a trial court’s opinion, an individual is “a person with mental illness based upon
clear and convincing evidence,” that reference to “clear and convincing evidence”
states the applicable standard of proof rather than “a description of the credibility or believability of the evidence” produced to satisfy that standard.
612 State v. E. J. J.
We first consider whether the record supports the
trial court’s determination that appellant presented a danger to others. A person is “dangerous to others” for purposes
of ORS 426.005(1)(f)(A) if his “mental disorder makes [him]
highly likely to engage in future violence toward others,
absent commitment.” State v. S. E. R., 297 Or App 121, 122,
441 P3d 254 (2019). That determination is based on the person’s “condition at the time of the hearing as understood in
the context of his history.” State v. J. K.,
177 Or App 373,
377,
34 P3d 739 (2001). Further, conclusions about appellant’s dangerousness based on conjecture are not enough;
“[a]ctual future violence must be highly likely.” State v.
T. M.,
296 Or App 703, 709,
437 P3d 1197 (2019) (internal
quotation marks omitted). “[E]vidence of past violent acts
must provide a foundation to predict future dangerousness,
not merely describe past isolated incidents.” State v. L. R.,
283 Or App 618, 625,
391 P3d 880 (2017).
In determining that appellant was dangerous to
others, the trial court appears to have relied primarily on
the incidents with appellant’s ex-girlfriend and Budlong,
combined with appellant’s “continual carrying of weapons.”
The state acknowledges that mere verbal threats are insufficient to establish dangerousness to others. However, quoting State v. Bodell, 120 Or App 548, 550,
853 P2d 841 (1993),
the state argues that “ ‘[s]pecific acts of violence are not
required to establish that appellant is dangerous, as long as
there is ample evidence to form a foundation for predicting
future violent behavior.’ ” (Internal quotation marks omitted.) The state contends that the evidence is sufficient here
in that “appellant threatened Budlong with a knife and sexually assaulted [M].” Although we agree as a general matter
that dangerousness to others may be established without
evidence of specific acts of violence, we conclude that, in the
context of appellant’s history, the evidence here was insufficient to establish that actual future violence was highly
likely. See T. M.,
296 Or App at 709 (applying that standard).
We start by addressing the incident involving M. In
order to commit someone based upon dangerousness to self
or others, “there must be a causal connection between [the
person’s] alleged mental disorder and [his] allegedly dangerous behavior.” State v. D. A. H., 241 Or App 391, 397, 250 P3d
Cite as
308 Or App 603 (2021) 613
423 (2011). That is, “[a]s the governing statute makes clear,
a person must be more than mentally ill in order to be committed involuntarily—the person must also be dangerous to
self or others as a result of the person’s mental illness.” State
v. Webber,
181 Or App 229, 236,
45 P3d 1046 (2002) (emphasis in original); see ORS 426.005(1)(f)(A) (“ ‘Person with mental illness’ means a person who, because of a mental disorder, is … [d]angerous to self or others.” (Emphasis added.)).
The state argues that
“the evidence is clear and convincing that appellant’s violence against Budlong and [M] are the result of his longstanding schizophrenia. The record establishes that appellant had been stable during the period when he was taking
his [medications], but began to deteriorate physically and
mentally when he stopped that medication. His physical
acts against Budlong and [M] occurred after he stopped
taking his medications, and his schizophrenia was no longer under control.”
The state’s argument that appellant’s behavior towards
M establishes that he is a danger to others because of his
mental disorder is unavailing. The fact that certain incidents occurred after appellant ceased his use of medication
does not, in its own right, establish a causal relationship
between his mental disorder and those actions. M testified
that appellant seemed “withdrawn” when she was cleaning
the apartment with him and that she had to tell him “no”
multiple times in response to his repeated sexual advances.
M further testified that appellant ultimately stopped after
she said, “No. Stop. I don’t want this,” to which appellant
replied, “Oh I didn’t realize,” and stopped. No witnesses,
including M, attributed that conduct to paranoia, delusions,
or any other aspect of appellant’s established mental disorder. Moreover, nothing in the record suggests that appellant
has been sexually violent or aggressive during past periods
of decompensation so as to lend support to an inference of
such a causal connection. Ultimately, the record cannot support a finding that appellant’s actions towards M were the
result of his mental disorder. Stated differently, even if it is
undisputed that appellant was sexually aggressive towards
M, while he was off of his prescribed medications, that conduct is not by itself evidence that his underlying mental
614 State v. E. J. J.
disorder caused him to be a danger to others. See D. A. H.,
241 Or App at 398 (causal connection not established where
there was no testimony linking the appellant’s behavior to
her mental disorder when it was plausible that her behavior
was the product of other circumstances).
Because the record contains no nexus between
appellant’s schizoaffective disorder and his behavior towards
M, we turn to whether appellant’s actions towards Budlong
were sufficient to establish that he is a danger to others.
As previously noted, a person is a danger to others for purposes of civil commitment proceedings when the person’s
mental disorder makes the person “highly likely to engage
in future violence toward others.” S. E. R., 297 Or App at
122. “A single act of violence is sufficient to establish danger to others only if it provides that foundation and there is
no indication that such violence is an isolated occurrence.”
T. M.,
296 Or App at 710 (internal quotation marks omitted).
“[C]urrent threats of violence by someone with a mental disorder who has carried out an overt violent act in the past
against another person are typically sufficient to establish
dangerousness to others, while mere verbal threats of violence made in the past are generally insufficient to do so.”
Id. (internal quotations marks and alteration omitted); see
also State v. J. G.,
302 Or App at 100-01 (“A single violent act
may be sufficient to establish that a person is dangerous to
others, if the circumstances of the act, the person’s history,
or other contextual evidence allows the court to rely on the
act to predict future dangerousness.”).
Although we recognize that fact matching in civil
commitment cases is “often of little utility because every
involuntary mental commitment case must be decided on
its individual facts under the applicable standards,” State v.
D. L. W., 244 Or App 401, 405,
260 P3d 691 (2011) (internal
quotation marks omitted); see also M. J. F.,
306 Or App 544,
547,
473 P3d 1141 (2020) (recognizing same, but drawing
principles from case law addressing similar facts), we note
that we considered rather similar circumstances in T. M.
In T. M., the appellant suffered from bipolar disorder with
psychotic features and had been off of her medications when
she angrily raised a fire poker over her head and advanced
towards her ex-husband as she threatened to kill him.
Cite as
308 Or App 603 (2021) 615
296 Or App at 705. In light of the isolated nature of that incident, we held that the evidence was insufficient to establish
that the appellant was dangerous to others.
Id. Although, in
that case, the evidence showed that the appellant had gone
off of her medications multiple times over the course of 20
years, there was no evidence that the appellant had exhibited other instances of violent or threatening behavior on
any of those other occasions.
Id. at 711.
In this case, we similarly agree with appellant that
his behavior towards Budlong is insufficient to support the
trial court’s determination that his mental disorder renders
him dangerous to others. As discussed above, when appellant was off of his medications in February, he frightened
Budlong when he became very agitated, picked up a knife,
approached Budlong with bared teeth, raised the knife, and
gestured at Budlong’s face while uttering “unintelligible”
words. Although we cannot attach much significance to the
uttering of words that cannot be understood, both Budlong
and the trial court could reasonably have perceived appellant’s conduct as threatening violence. Further, appellant
does not dispute that his behavior was causally related to
his mental disorder. However, that conduct is insufficient to
establish that appellant is highly likely to engage in future
violence towards others.
To determine whether that conduct is probative of
appellant’s future dangerousness, we consider the conduct
itself and the circumstances under which it occurred, all
as viewed in light of appellant’s personal history and other
contextual clues. See J. G., 302 Or App at 100-01. Here,
although appellant raised a knife in apparent anger at
Budlong, it was in the context of an essentially social encounter in which appellant threatened Budlong in response to
Budlong provoking him with intentionally pointed questions about appellant’s mental disorder, his lack of support
from friends and family, and his resulting profound unhappiness. However well-intended Budlong’s questioning may
have been, it is neither surprising that his questions would
trigger an angry response from appellant, nor indicative
that appellant is likely to act out violently under foreseeable
future circumstances. Moreover, appellant was not shown
to have been violent towards others in the past, whether
616 State v. E. J. J.
at times when he was off of his medications or otherwise.
And, as noted by the trial court, although Paxton testified
that she had seen appellant walking around in public carrying a sword and bowie knife on multiple occasions, she
had never seen appellant threaten anyone or otherwise act
violently, with or without those weapons. Given that appellant’s behavior towards Budlong was an isolated occurrence
under unique circumstances, the evidence of that incident
was insufficient to establish that, due to appellant’s mental disorder, “actual future violence” was “highly likely.”
T. M.,
296 Or App at 709 (internal quotation marks omitted).
Accordingly, that evidence could not support the trial court’s
finding that appellant represented a danger to others.
We turn to the trial court’s second basis for its determination that appellant is a person with mental illness,
namely, that, due to his schizoaffective disorder, he was
unable to provide for his basic personal needs. We recently
construed the basic-needs provision, ORS 426.005(1)(f)(B),
in State v. M. A. E., 299 Or App 231, 240,
448 P3d 656 (2019),
and explained that
“a person meets the ‘basic needs’ definition of a ‘[p]erson
with mental illness’ under ORS 426.005(1)(f)(B) if the person is unable to provide for his or her basic personal needs
in a way that leaves the person at a nonspeculative risk
of ‘serious physical harm’—meaning that the person’s safe
survival will be compromised—in the near future, even
though that risk is not imminent.”
(Brackets in M. A. E.) Further, we said that the “risk of serious physical harm need not be immediate to justify involuntary commitment, so long as the person’s mental disorder, and resulting lack of ability to provide for basic needs,
puts the person at risk of such harm in the near future.”
Id.
(emphasis in original).
The state argues that appellant’s mental disorder
led him to be unable to provide his own food, manage his
money, take care of his basic hygiene, or make a coherent
plan for meeting those needs. Thus, the state reasons, the
evidence shows that appellant is unable to provide for his
basic needs so as to avoid serious physical harm in the near
future. We disagree. To support its argument, the state
Cite as 308 Or App 603 (2021) 617
emphasizes evidence that appellant would spend his entire
Social Security check in the first two weeks of the month,
leaving him no money for food or other necessities, and that
he lost his food stamp card and refused to do what was necessary to replace it. However, the evidence also showed that
appellant was aware that he needed to replace the card
and intended to do so upon his release from the hospital.
Relatedly, even though appellant often depleted his own
resources for obtaining food, he was aware of the necessity
of eating and would turn to his mother when necessary to
meet that need. That is, the evidence showed that appellant knew to seek out help when he needed it. And, given
that appellant’s mother regularly replenished his Subway
card and gave no indication that she would stop doing so, the
record is insufficient to establish by clear and convincing
evidence that appellant would suffer a nonspeculative risk of
serious physical harm if he were to be released. Cf. M. A. E.,
299 Or App at 241-42 (evidence was sufficient to support a
basic-needs commitment where it showed that, within one
week after her release from the hospital, appellant would be
unable to obtain food even if she wanted to eat).
Finally, the state notes Paxton’s testimony that
it was “obvious” that, in his current condition, appellant
would not be able to remedy his apartment situation. Yet,
as the state acknowledges, appellant had not been evicted
at the time of the hearing notwithstanding those concerns.
Moreover, even if eviction proceedings had been ongoing at
that time, we have repeatedly stated that homelessness “is
not a per se basis for a basic-needs commitment.” State v.
C. M. C., 301 Or App 206, 214,
454 P3d 30 (2019) (“Certain
general risks are inherent to houselessness, but in the
absence of more specific evidence, this record is insufficient
for the trial court to conclude that the lack of housing would
place appellant at nonspeculative risk of serious physical
harm in the near future.”). Thus, whether or not appellant’s
housing circumstances are tenuous, they cannot support the
necessary finding that defendant is unable to meet his basic
needs.
In sum, there is no dispute that appellant suffers
from a mental disorder. Furthermore, it is undisputed that
618 State v. E. J. J.
appellant engaged in concerning or even criminal behavior
in regard to his friend and ex-girlfriend, that he was struggling to obtain food on his own, and that he faced potential
eviction. However, no evidence in the record linked appellant’s mental disorder to his behavior towards M and, even
assuming that appellant’s behavior towards Budlong was
the product of his mental disorder, the isolated character of
that conduct and the unique circumstances that surrounded
it preclude a finding by clear and convincing evidence that
actual future violence was highly likely, as ORS 426.005
(1)(f)(A) requires. Finally, the evidence showed that, at the
time of the hearing, appellant had both housing and the
means to obtain the food necessary for his safe survival.
Under those circumstances, the state failed to establish, by
clear and convincing evidence, a lawful basis for civil commitment. As a result, the trial court erred in concluding
otherwise.
Reversed.
