State v. E. R.

No. 209                April 3, 2024                   707

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                   In the Matter of E. R.,
          a Person Alleged to have Mental Illness.
                   STATE OF OREGON,
                        Respondent,
                             v.
                           E. R.,
                         Appellant.
              Umatilla County Circuit Court
                    22CC03054; A178750

  Robert W. Collins, Jr, Judge.
  Submitted June 21, 2023.
   Joseph R. DeBin and Multnomah Defenders, Inc. filed
the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Stacy M. Chaffin, Assistant Attorney
General filed the brief for respondent.
  Before Shorr, Presiding Judge, Pagán, Judge, and Kistler,
Senior Judge.
  SHORR, P. J.
  Affirmed.
708                                             State v. E. R.

        SHORR, P. J.
         Appellant appeals from a judgment committing her
to the Oregon Health Authority for a period not to exceed 180
days and an order prohibiting her from the purchase or possession of firearms. She raises three assignments of error. In
her first, she contends that the trial court plainly erred by
conducting a hearing upon a citation that did not include a
return of service. In her second assignment, she argues that
the trial court erred by finding that due to a mental disorder
she is a danger to herself. In her third assignment, she contends that the trial court erred by finding that she was not
willing and able to participate in treatment on a voluntary
basis and probably would not do so. As we explain, we conclude that the trial court did not err, and, therefore, affirm.
         In her first assignment of error, appellant contends
that the trial court erred by conducting a hearing upon a
citation that did not include a return of service showing the
time, place, and manner of service that was filed with clerk
of the court, as required by ORS 426.080. She contends that
the failure to comply with the statutory commitment procedures in ORS 426.080 and ORS 426.090 violated her due
process rights. She did not preserve that assignment and
seeks plain error review. The state does not dispute that
there is a lack of a return of service in the court file but
asserts that the error is not plain. The state also points out
that appellant does not argue that she was not served with
a proper citation and that, although her trial counsel made
other procedural objections at the hearing, counsel did not
object or otherwise attempt to make a record.
         The court signed an order on May 20, 2022, for a
citation to issue, for counsel to be appointed, and for a medical examination of appellant to be conducted; a citation was
signed on that same date. The citation states, “This citation
is served upon you by order of the court.” (Uppercase omitted.) The hearing was held on May 23, 2022, and appellant
appeared with her appointed counsel and contested the civil
commitment. It is possible to infer from this record that
appellant was served with the citation and the only error was
the failure to file the return of service with the court. Based
on our review of the record, we cannot say that the trial court
Nonprecedential Memo Op: 

 (2024)                                    709

plainly erred in proceeding with the hearing or that it is clear
that appellant’s due process rights were violated.
         We reached a similar conclusion in State v. P. B. S.,

, 

 (2023). In that case, the appellant asserted “that the trial court plainly erred by conducting a civil commitment hearing upon a citation that failed
to comply with ORS 426.080 and ORS 426.090.” 

(internal quotation marks and brackets omitted). We concluded that the trial court did not commit plain error:
        “There are competing inferences in the record as to
    whether appellant was served with the citation that the
    court issued: the lack of a return of service in the court file,
    on the one hand, and the judgment stating that appellant
    was served with the citation, on the other. An error is not
    ‘plain’ if we have to choose between competing inferences
    in the record. Because we are limited to plain-error review,
    and because the error is not ‘plain,’ we affirm.”

 (citation omitted).1
         In her second assignment of error, appellant argues
that the court erred by finding that she had mental illness.
Specifically, appellant argues that the record lacks clear and
convincing evidence that due to a mental disorder appellant
presented a particularized and highly probable threat to
herself of serious physical injury or death in the near term.
See ORS 426.005(1)(f)(A) (defining “[p]erson with mental illness” as a “person, who, because of a mental disorder, is …
dangerous to self”). The state asserts that the trial court correctly found that appellant was a person with mental illness.
        “[W]e 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. J. F., 

,

 (2020) (internal quotation marks omitted).
    1
       To the extent appellant, in addition to the due process argument, contends
as a statutory matter, under ORS 426.080, that it was plain error for the trial
court to proceed with the hearing without evidence of a return of service of the
citation being filed with the court clerk, we reject that contention also. See P. B. S.,

 n 1 (“It is not obvious and is reasonably in dispute whether the
process server’s failure to comply with ORS 426.080 means that the court could
not proceed with a civil commitment hearing, regardless of actual service.”).
710                                               State v. E. R.

In addition, “we are bound by the trial court’s findings of
historical fact that are supported by any evidence in the
record.” 

 (internal quotation marks and brackets omitted). Having considered the record with that standard in
mind, we conclude that there was legally sufficient evidence
in the record to support the trial court’s determination that
appellant was a danger to herself at the time of the hearing.
         Briefly stated, the record contains evidence that
appellant has a working diagnosis of schizoaffective disorder, that she has underlying psychotic symptoms, including
command hallucinations telling her to hurt herself, and that
she has limited insight into her condition. On the day that
appellant was taken to the hospital, she had been having
command hallucinations to slit her throat with a razor while
attempting a long-distance drive to Boise, Idaho. After calling a crisis line, agreeing to leave the highway, and meeting
with an Oregon State Police patrol trooper in a parking lot,
appellant was transported to the hospital.
         Appellant has a history of mental illness with suicidal ideation and has been hospitalized several times. The
examiner’s opinion was that appellant was at imminent risk
of self-harm:
   “She has an underlying mental health diagnosis with command hallucinations. She has a history of minimizing her
   acute suicidality. She has numerous credible threats in the
   last few days, which involve specific planning, amassing
   weapons and a continued refusal to safety plan due to a
   lack of insight and minimization of her acute suicidality.”
The treating psychiatrist at the hospital, Dr. Palumbo, testified that it was his opinion that appellant was not a danger
to herself at the present time; however, as the trial court
noted, he did not have access to all of the medical records
and history that the examiner reviewed and that were available to the court. Palumbo stated that one factor of concern
to consider is “whether somebody is experiencing increased
suicidal ideation with attempts in a shorter period of time,”
and that, “if we’re noticing an increase in suicidal thoughts
and an increase in attempts in a short amount of time …
[he] would be concerned … that—hypothetically this is
an individual that is a higher risk of completion of suicide.”
Nonprecedential Memo Op: 

 (2024)             711

The trial court relied on Palumbo’s testimony as well as the
examiner’s opinion and additional evidence in the record
that had been presented to the court. In short, there is sufficient evidence in the record for the trial court to have determined that appellant, if released on the day of the hearing,
would have been a danger to herself.
        In appellant’s third assignment of error, she contends that the trial court erred by finding that she was not
willing and able to participate in treatment on a voluntary
basis and probably would not do so. ORS 426.130(1)(a)(A).
It was appellant’s burden to prove that she would likely
engage in voluntary treatment. State v. T. M., 

, 

 (2009). Upon reviewing the record, we
conclude that there was evidence in the record that appellant was not willing and able to engage in voluntary treatment and that appellant did not meet her burden of proof to
prove otherwise.
        Affirmed.