586
Submitted September 3, 2020, reversed September 15, 2021
In the Matter of K. M.,
a Person Alleged to have Mental Illness.
STATE OF OREGON,
Respondent,
v.
K. M.,
Appellant.
Multnomah County Circuit Court
19CC05358; A172499
496 P3d 1099
In this civil commitment case, appellant appeals a judgment involuntarily
committing her to the custody of the Mental Health Division for a period not to
exceed 180 days and prohibiting her from purchasing or possessing firearms. She
argues that there was insufficient evidence to prove that, at the time of the civil
commitment hearing, she had a mental disorder that caused her to be dangerous
to others. Held: The record did not support, by clear and convincing evidence, the
trial court’s determination that appellant posed a danger to others because of a
mental disorder.
Reversed.
Julia A. Philbrook, Judge pro tempore.
Joseph R. DeBin and Multnomah Defenders, Inc., filed
the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jordan R. Silk, Assistant Attorney
General, filed the brief for respondent.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
MOONEY, J.
Reversed.
Cite as 314 Or App 586 (2021) 587
MOONEY, J.
This is a civil commitment case. Appellant appeals
a judgment involuntarily committing her to the custody of
the Mental Health Division for a period not to exceed 180
days and prohibiting her from purchasing or possessing
firearms. She argues that there was insufficient evidence
to prove that, at the time of the hearing, she had a mental
disorder that caused her to be dangerous to others. See ORS
426.005(1)(f)(A);1 ORS 426.130.2 Because we conclude that
the record does not support, by clear and convincing evidence, the trial court’s determination that appellant poses a
danger to others because of a mental disorder, we reverse.
Appellant does not request, and we do not exercise
our discretion to conduct, de novo review. We instead review
the sufficiency of the evidence for legal error, mindful of the
state’s burden to prove its case by clear and convincing evidence and viewing the evidence and inferences permissibly
drawn from that evidence in the light most favorable to the
trial court’s disposition of the case. State v. E. J. J., 308 Or
App 603, 604,
479 P3d 1073 (2021); ORS 426.130(1)(a). We
state the facts, drawn from the record, in accordance with
that standard of review.
Appellant is an experienced social worker. She has a
master’s degree in social work, and it appears that she may
also have a PhD in that field. Appellant’s next door neighbor,
Grisham, testified that he and appellant had “been pretty
positive neighbors for 13 years.” That changed in June 2019,
when appellant began sending him “a lot of text messages,”
beginning with one in which she expressed concern that she
1
ORS 426.005(1)(f) defines “person with mental illness” as “a person who,
because of a mental disorder, is one or more of the following: (A) Dangerous to self
or others.”
2
ORS 426.130(1) provides, as relevant here:
“After hearing all of the evidence, and reviewing the findings of the
examiners, the court shall determine whether the person has a mental illness and is in need of treatment. If, in the opinion of the court, the person:
“(a) Is a person with mental illness based upon clear and convincing evidence, the court:
“…
“(C) May order commitment of the person with mental illness to the
Oregon Health Authority for treatment[.]”
588 State v. K. M.
was out of town and no one was watching her cats. Grisham
testified that he did not know appellant was out of town and
that she had not asked him to watch her cats. In response
to her text messages, Grisham offered to watch her cats.
He described a fairly extensive exchange of text messages
that went from appellant checking in on her cats to a number of insults, threats, and accusations that she directed to
Grisham, including a threat “to shoot [him] if anything happened to her cats.”
Grisham testified that, although he noticed that
appellant’s car was parked at her house twice, he had not
seen her since before the text message exchange that began
in June 2019. But he was concerned that he might get out of
his car one day and that he would “find [her] there.” He was
also concerned that appellant might call the authorities and
lie about him.
Another witness, Sparkman, testified that she was
the “acting supervisor” on duty when appellant came into
Multnomah County Animal Services one day. Sparkman
described her interaction with appellant as follows:
“I asked her—she was asking me about where her cats
were. …
“…
“She seemed like she was getting a little bit agitated,
so—and she came in, right as we were closing, it was about
4:15, we close at 4:30. Four thirty had passed, so I said,
‘Hey, I’m sorry we’re closed. There isn’t anything we can do
for you.’ And I asked her to leave. She stated that she would
not be leaving and that we would be staying—the two of us
would be staying until I let her know where her cats were,
even if it took us until midnight.
“She stated at some point that she was going to call the
police and have me arrested for taking her cats. There was
another comment of, ‘God forbid if anything happened to
them. You don’t know what I’m capable of.’ Things to those
[sic] effect.”
Bryson, a Portland police officer and member of
the behavioral health unit, testified that he had “received a
referral regarding” appellant in June 2019. After attempting
to contact appellant, Bryson received two email messages
Cite as 314 Or App 586 (2021) 589
from her declining to meet with him. Those messages were
lengthy and they contained comments about Bryson and
other police officers that were personally and professionally
insulting.
Wood, executive director of the Dougy Center for
grieving children and families, testified that appellant
interned with that agency in 2000 and 2001 and that she
might have met appellant “in passing” then. However, she
has more recently “received many phone calls, voicemails,
and emails from” appellant, all of which were “combative, threatening, very mean[ ]spirited [and] accusatory.”
Specifically, Wood described appellant’s communications as:
“Lots of swearing, telling me that she was going to fucking dance on my grave. Telling me that she was going to
fucking end us all. Telling me that I have lied in my own
story of my mother’s death to gaslight her. …
“…
“… [A]ccusing me of starting an arson fire at the Dougy
Center in 2009. Accusing others that I work with of starting an arson fire at the Dougy Center in 2009. Accusing
people of, you know, doing things to her to hurt her career
while trying to forward our own career. …
“Threatening—leaving voicemails, general voicemails
at the Dougy Center threatening specific staff members as
well as the staff as a whole. Saying that she, again, is going
to fucking end us all. That we don’t deserve to be in the
positions that we’re in.”
Patterson, operations director at the Oregon Humane
Society (OHS), testified that he was called down to the
admissions department in April 2019 due to the presence of
“an irate client,” who turned out to be appellant. Appellant
told him that they “had her animals,” a statement he testified was not true. Appellant “continued yelling and cussing
at [Patterson]” and began “talking about” OHS’s executive
director, Harmon—indicating that she was a veterinarian
when that is apparently not the case—and the chief operating officer, August—questioning why someone with a
law degree would be in his position with the organization.
The police were called and appellant was “trespassed” from
OHS.
590 State v. K. M.
Patterson testified that appellant later returned
to OHS insisting that her cats were there and demanding
that they return them to her. He described her voice as loud
and said that she kept repeating, “I want to know where my
fucking animals are. You give me my” cats. He testified to
how the interaction then came to include Harmon:
“And then, at one point, down the hallway she saw our
executive director Sharon Harmon and so she then saw
Sharon. She goes, ‘There’s fucking Sharon Harmon,’ and
walked towards her and Sharon was like, ‘You need to
leave this location.’ She’s like, ‘I don’t have to fucking leave
here. You can’t tell me what the fuck to do.’
“And so, at that point, they were probably four or five
feet—feet apart and—and she was yelling at Sharon and
then she started closing that distance and then pretty soon
she was, like, a foot away from Sharon yelling and I actually stepped in between them because I could tell Sharon
was visibly upset so I stepped in between and, kind of, gave
Sharon a wave and so she walked back through a secured
door that we have. And, luckily, she walked away at that
point.”
When asked why he stepped in, Patterson stated that appellant was
“closing in on—on Sharon—like, as she was yelling at her,
looking up—Sharon, moving in closer, and it was just—
like, her voice was getting far more intense and I had
been dealing with her for probably 15, 20 minutes and it—
through all the aggression, she’d at least kept a distance
from myself and other employees, but when engaging with
Sharon, that distance was getting closer and closer ….”
At that point, appellant was taken to the Unity Center, a
behavioral health facility that provides emergency services
and inpatient care, by Project Respond.
Hancock, a psychiatric nurse practitioner employed
at the Unity Center, came into contact with appellant
when appellant was brought in from OHS on a “director’s
hold.”3 Hancock diagnosed appellant with “bipolar disorder”
after reviewing her past medical records and interviewing
3
We understand Hancock to have been referring to a mental health hold
placed pursuant to ORS 426.233.
Cite as 314 Or App 586 (2021) 591
appellant. The symptoms Hancock observed supporting that
diagnosis included “paranoid delusions, grandiosity, irritability, pressured speech.” She described appellant as “hyperverbal, impulsive, [with] poor insight and poor judgment.”
She prescribed risperidone, a medication used to treat certain mental and mood disorders such as bipolar disorder,
but appellant has declined to take that medication.
Hancock testified that it is important for appellant
to take the risperidone because “[appellant]’s been increasingly threatening in the community.” In support of that
conclusion, Hancock testified that (1) there had been three
restraining orders against appellant,4 (2) appellant had been
sending “increasingly threatening and aggressive emails
to various community entities and individuals, secondary
to delusional thought content,” and (3) she (Hancock) “felt
threatened” by appellant when they spoke, indicating that
she would have wanted “an escort” to her car were appellant
to be discharged the night they spoke. Hancock confirmed
that appellant had been placed in seclusion upon admission to Unity Center’s inpatient behavioral health service.
She also testified that, at the time of the hearing, appellant
was no longer in seclusion or on the “safety suite.” There
had been no violent or problematic physical contact between
appellant and staff and no attempts by appellant to elope or
otherwise leave against medical advice.
Dr. Doherty, court examiner, testified that, based
upon his observations made during the civil commitment
hearing, he agreed with “Ms. Hancock’s diagnosis of bipolar disorder.” He “think[s that] persecutory delusions cause
[appellant] to misinterpret the environment around her and
as a result of that she makes very menacing and serious
threats towards others.” Further, appellant’s bipolar disease,
“which is the impulsive, disinhibited, and invasive behavior,
is an indicator of her likelihood to act out on those threats
and so I believe that there is clear evidence today that she
4
Hancock relied on the existence of three restraining orders as evidence
that appellant was “increasingly threatening in the community,” but there is no
evidence in the record of those restraining orders. Testimony from OHS staff
confirmed that OHS never sought a restraining order. Whether the other two
restraining orders Hancock referenced were actually sought, granted, or in existence at the time of the civil commitment hearing is not reflected in the record.
592 State v. K. M.
is a danger to others because of her mental disorder and
she has no insight into this mental disorder even though
she’s testified about past hospitalizations as a result of it
and I believe her unwillingness to treat, leaves her in the
state she was when she came into the hospital, which does
put others—others at harm.”
Radecki, also a court examiner, testified that she
“would agree with everything [Doherty] reported.” She
highlighted that appellant’s small stature does not diminish how “scary” appellant is especially given that there have
been “three restraining orders against her.”5 Radecki testified that appellant clearly believes that “people are out to
get her,” and she opined that, when one’s “sense of safety
is—is threatened, they react.” Radecki concluded by testifying that “the scary thing in this situation that places others
at risk is that we don’t know what that reaction will look
like.”
It is clear that there was sufficient evidence to support the trial court’s determination that appellant suffers
from a mental disorder. Appellant acknowledges that she
has been diagnosed with PTSD, which is a mental health
diagnosis. Additionally, the testimony of Hancock, individually, and in conjunction with that of Doherty and Radecki,
was sufficient for the court to conclude that appellant also
suffers from bipolar disorder. But the diagnosis of a mental
disorder alone does not support involuntary civil commitment. State v. C. H., 306 Or App 63, 67,
473 P3d 60 (2020).
Here, the state argued—and the court found—that commitment was justified because appellant poses a danger to others because of her mental disorder.
We recently recognized the established rule that
civil commitment on the basis of danger to others requires
the state to prove “ ‘that actual future violence is highly
likely.’ ” State v. C. L., 313 Or App 539, 542,
495 P3d 748
(2021) (quoting State v. M. A.,
276 Or App 624, 629,
371 P3d
495 (2016)). While “[s]pecific acts of violence are not required”
to prove future danger, State v. M. R.,
225 Or App 569, 574,
202 P3d 221 (2009), when a person with a mental disorder
“has threatened others and has also carried out an overt
5
Again, the record does not support the existence of any restraining orders.
Cite as 314 Or App 586 (2021) 593
violent act in the past against another person, those facts
generally constitute clear and convincing evidence that the
person is a danger to others” for purposes of ORS 426.130
(1)(a)(C). State v. D. L. W.,
244 Or App 401, 405,
260 P3d 691
(2011). However, an “isolated” overt violent act is generally
“not sufficient to establish that appellant is an ongoing danger to others.” State v. E. D.,
264 Or App 71, 75,
331 P3d 1032
(2014); see also State v. L. D.,
247 Or App 394, 400,
270 P3d
324 (2011) (reversing commitment where the appellant had
only once “pushed” another person). In other words, speculation, or fear for what might happen next, is not enough and,
even when there has been a single act of overt violence, such
cases are “close cases.” C. L.,
313 Or App at 543.
But this was not a close case. There was no evidence
that appellant engaged in physical violence with anyone,
either in isolation or otherwise. Reviewing the evidence in
the light most favorable to the court’s disposition, the evidence revealed that appellant’s neighbor’s fears were based
on a number of text messages from appellant about her cats,
including one where she threatened to shoot the neighbor
if her cats were harmed and one in which she suggested
that he be careful because his car was not safe. Appellant’s
neighbor was afraid that appellant might call the authorities and make false claims about him, and he also feared
that he might someday get out of his car and find appellant
there.
When the Portland police officer left phone messages and emails for appellant, she responded by email with
a litany of insults and claims that might best be described
as a tirade of anti-law enforcement complaints and personal
insults directed to the officer himself.
When appellant told staff at Multnomah County
Animal Services that she thought her cats were there,
demanded their return, and insisted that she would not leave
without them, her statements that “God forbid if anything
happened to [my cats]. You don’t know what I’m capable of”
were vague and nonspecific. Appellant’s communications
with the Dougy Center also lacked specific content, and they
did not provide insight into whether appellant planned, or
had the capacity, to act on her statements—to “end [them]
594 State v. K. M.
all.” Given that lack of specificity, such statements sound
more like mere posturing than anything else.
The evidence concerning OHS was that appellant
was angry and vulgar, that she thought her cats were there,
and that she wanted them returned to her. The interaction
concerning Harmon was presented by the state as key to its
argument that appellant had escalated over time to the point
where she “postured” and “closed in” on Harmon, requiring
another person to step in and prevent contact. However, it is
unclear from Patterson’s testimony whether it was appellant
who “closed in” on Harmon or whether they moved toward
each other. That Patterson had stepped in between them
and waved Harmon away leaves that question unanswered.
This case is distinguishable from State v. S. E., 313
Or App 678, 679-80,
496 P3d 1140 (2021), where we affirmed
a judgment of commitment when the appellant, who was
bipolar and incorrectly believed that her husband and
neighbor were having an affair, escalated from attempting
to physically take the neighbor’s dog, to grabbing the neighbor, to raising a hammer and swinging it toward her husband who narrowly avoided the blow by shutting the door
between them, resulting in the appellant striking the doorknob with the hammer instead. To be sure, appellant here
became more and more strident in her assertions that others wrongfully possessed her cats and that she wanted them
returned without delay. Her communications most certainly
became mean spirited and pointed. But this record, including the state’s reliance on the interaction between appellant
and Harmon at OHS, is not sufficient to support the conclusion that appellant presents a danger of future violence to
others because of her mental disorder.
Reversed.
