State v. D. B.

180                December 26, 2024                No. 956

   This is a nonprecedential memorandum opinion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 D. B.,
         a Person Alleged to have Mental Illness.
                  STATE OF OREGON,
                       Respondent,
                            v.
                          D. B.,
                        Appellant.
            Clackamas County Circuit Court
                  24CC00263; A183516

  Thanh H. Tran, Judge.
  Submitted November 8, 2024.
    Christopher J. O’Connor and Multnomah Defenders, Inc.,
filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Joanna Hershey, Assistant Attorney
General, filed the brief for respondent.
  Before Tookey, Presiding Judge, Lagesen, Chief Judge,
and Kamins, Judge.
  KAMINS, J.
  Reversed.
Nonprecedential Memo Op: 

 (2024)                           181

           KAMINS, J.
         Appellant appeals a 180-day civil commitment
judgment raising two assignments of error: a procedural
challenge to the timeliness of his commitment hearing and
a merits challenge to the trial court’s determination that
he is mentally ill for purposes of ORS 426.005. Appellant
acknowledges that he has a mental disorder but contends
that the state failed to prove that, because of his mental
disorder, he is unable to take care of his basic needs and will
suffer serious harm in the near future. ORS 426.005(1)(f)(B).
We agree with appellant and reverse.1
         Unless reviewing de novo (which no party has
requested), “[w]e review whether the state presented sufficient evidence to support appellant’s civil commitment for
legal error and are bound by the trial court’s factual findings that are supported by evidence in the record.” State v.
C. M. C., 

, 

 (2019); see also
State v. B. B., 

, 77 n 2, 

 (2010)
(declining to exercise de novo review in civil commitment
appeal when parties did not request it or justify its application). We therefore “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. T. Y., 

, 

 (2017) (internal quotation marks omitted).
         In order to commit a “person with mental illness” on
the basis of “basic needs,” the state must prove that, because
of a mental disorder, the person is “[u]nable 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.” ORS 426.005(1)(f)(B).
Basic needs include water, food, shelter, and necessary medical care. State v. M. C. D., 

, 

 (2020). “To satisfy that [‘basic needs’] standard, the
state must prove two things: (1) that the individual’s inability to provide for their basic personal needs puts them at a
    1
      Because we reverse on the merits, we decline to reach appellant’s assignment of error challenging whether his commitment hearing was held within “five
judicial days” from his mental health hold at the hospital. ORS 426.232(2).
182                                             State v. D. B.

nonspeculative risk of serious physical harm and (2) that
the serious physical harm is likely to occur in the near
future.” State v. P. D., 

, 

(2024) (internal quotation marks omitted). That evidence
must include a “nonvague estimation of appellant’s expected
rate of decline or decompensation.” C. M. C., 

; State v. R. L. M., 

, 

(2021) (observing the “basic principle” that the evidence in
the record “must establish how soon the anticipated harm
will likely occur if the appellant is released and is unable
to provide for his or her basic needs” (emphasis in original)).
        The state here presented evidence that appellant
could suffer serious physical harm due to lack of shelter,
dehydration, and an inability to take his diabetes medication. However, when looking at the record as a whole with
“permissible derivative inferences,” none of the evidence
rose to the “nonvague” level of specificity required by our
case law.
         Shelter: With regards to shelter, there was evidence
that appellant and his mother were in the process of being
evicted, and, when asked about appellant’s ability to locate
subsequent shelter, the county’s mental health evaluator
testified she was worried that appellant would be houseless and exposed to the harsh winter elements because, due
to his mental disorder, he might become trespassed from
shelter facilities. But we have long held that houselessness
on its own is not a per se basis for a “basic needs” commitment. C. M. C., 

 (citing State v. L. B., 

, 

 (1995)). More importantly, even
assuming there was an inference of serious physical harm
due to houselessness, there was no testimony about the likelihood that appellant would become houseless, or an estimated time frame in which any harm from houselessness
would occur. See State v. E. J. J., 

, 

 (2021) (reversing “basic needs” commitment notwithstanding evidence that appellant’s landlord threatened
to start eviction proceedings because no testimony on how
houselessness would put appellant at nonspeculative risk of
serious physical harm in the near future).
Nonprecedential Memo Op: 

 (2024)            183

          Food and water: Appellant also refused to drink
water in the hospital without assistance. A “basic needs”
commitment due to failure to eat food or drink water can
be appropriate without evidence of immediate risk of harm
because of the reasonable inference that a person who stops
eating food will soon die. State v. M. A. E., 

, 242, 

 (2019). But here, were appellant to
be released, he would be returning home to live with his
mother. There was no evidence that he had been or would be
unlikely to drink water while at home with his mother. To
the contrary, appellant’s mother testified that he was able
to obtain food on his own as well as when she provided it
to him. See State v. A. D. S., 

, 

 (2013) (basic needs may be met through a person’s own
resources, or with the help of family and friends, and commitment is likely not justified if family or friends are available to assist). Nor was there evidence that appellant was
dehydrated, or malnourished, or was losing weight. See
C. M. C., 

 (overturning “basic needs” commitment and noting “the record contains no evidence that
appellant is malnourished or would lose weight at a rate
that would constitute ‘serious physical harm in the near
future’ ” (quoting ORS 426.005(1)(f)(B))).
         Diabetes medication: The state presented evidence
that appellant, who has lived with diabetes for years,
entered the hospital with an elevated glucose level in the
270’s, a dangerously high level, which only went down when
hospital staff administered insulin.
         We conclude that this record is too sparse to allow
for a “basic needs” commitment under the assumption that
appellant would soon suffer “serious physical harm” from his
diabetes. Although it is inferable that appellant would not
take medication if not committed, the medical evidence, in
the main, did not address the specifics of appellant’s condition (such as the type of his diabetes), and provided no basis
to conclude that any risk to appellant was a near-term one,
as distinct from a long-term risk resulting from mismanaged disease. Compare State v. C. W., 

, 405-
06, 

 (2024) (testimony from nurse practitioner
that appellant would end up in ER in “like a month or so”
184                                             State v. D. B.

due to failure to take ulcerative colitis medication sufficient
to establish appellant “likely to suffer that serious physical
harm in the near future” (internal quotations omitted)) with
C. M. C., 

 (overturning “basic needs”
commitment where appellant’s mental disorder interfered
with ability to treat Hepatitis C when testimony reflected
that medical problems could become life-threatening if not
treated), and R. L. M., 

 (overturning
“basic needs” commitment of appellant who would not take
Afib medication because testimony showed that it was too
unpredictable when the next atrial fibrillation event would
occur). The state presented insufficient evidence to establish
what appellant’s medication needs were and, if unmet, when
that deficiency would cause serious physical harm.
        Reversed.