State v. N. G.

258                  January 2, 2025                 No. 8

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                  In the Matter of N. G.,
         a Person Alleged to have Mental Illness.
                  STATE OF OREGON,
                       Respondent,
                            v.
                          N. G.,
                        Appellant.
            Multnomah County Circuit Court
                  23CC05666; A182397

  Michael J. Riedel, Judge pro tempore.
  Submitted November 18, 2024.
   Joseph R. DeBin and Multnomah Defenders, Inc., filed
the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jona J. Maukonen, Assistant Attorney
General, filed the brief for respondent.
  Before Hellman, Presiding Judge, Lagesen, Chief Judge,
and Mooney, Senior Judge.
  HELLMAN, P. J.
  Affirmed.
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 (2025)                                                   259

          HELLMAN, P. J.
          Appellant appeals a judgment committing her to the
Oregon Health Authority (OHA) for up to 180 days. Appellant
raises two assignments of error, arguing that the trial court
erred when it found that she was a person with mental illness under ORS 426.005 and that it plainly erred when it
failed to dismiss the case after medical staff and the trial
court violated ORS chapter 426. Because we conclude that
the evidence supports the court’s findings that appellant was
a danger to herself and that she could not care for her basic
needs, the court did not err when it found that appellant was
a person with mental illness. We further conclude that the
trial court did not plainly err when it proceeded with appellant’s civil commitment hearing. Accordingly, we affirm.
          Appellant does not request de novo review and we
decline to exercise our discretion to conduct such review.
ORAP 5.40(8)(c) (providing that de novo review is appropriate “only in exceptional cases”). Thus, “we review whether
the state presented sufficient evidence to support appellant’s
civil commitment for legal error, and we view the evidence
in the light most favorable to the trial court’s decision.” State
v. C. W., 

, 

 (2024).
          Appellant was detained at Unity Hospital after
police found her sitting on the side of Interstate 5 at 3:00 a.m.
At the commitment hearing, the trial court found that appellant suffered from a mental health disorder, that appellant
would not take her blood pressure medication because of
that mental health disorder, and that, without the medication, appellant “would suffer significant and severe physical
injury, including a heart attack and/or stroke.” As a consequence, the court found that appellant posed a danger to
herself and could not provide for her basic needs and committed appellant to OHA. This appeal followed.
          In her first assignment of error, appellant argues
that the trial court erred in finding that “due to a mental
disorder appellant was a danger to self” under ORS 426.005
(1)(f)(A) or that she “met the basic needs criteria for mental
illness” under ORS 426.005(1)(f)(B).1
    1
       “Person with mental illness means a person who, because of a mental disorder,” is “[d]angerous to self or others” or is “[u]nable to provide for basic personal
260                                                         State v. N. G.

         We conclude that the trial court did not err. To
satisfy ORS 426.005(1)(f)(A), the state was required to
present evidence that appellant’s “mental disorder would
cause … her to engage in behavior that is likely to result
in physical harm to … herself in the near term.” State v.
B. B., 

, 

 (2010) (internal quotation marks omitted). To satisfy ORS 426.005(1)(f)(b), the
state was required to establish that appellant was “unable
to provide for … her basic personal needs in a way that
leaves [appellant] at nonspeculative risk of ‘serious physical harm’—meaning that [her] safe survival will be
compromised—in the near future, even though that risk is
not imminent.” State v. M. A. E., 

, 240, 

 (2019).
         Here, the state presented evidence that appellant
had been diagnosed with schizophrenia or schizoaffective
disorder and hypertension. When appellant was admitted to
the hospital, appellant displayed “thought disorganization”
and “delusional thinking” and her blood pressure was “dangerously high.” However, appellant denied that she had any
mental health diagnoses, refused all oral medications, and
believed that she could lower her blood pressure by drinking
lemon juice. In addition, appellant’s treating psychiatrist testified that appellant’s high blood pressure and hypertension
created a high risk for a stroke or heart attack, that without
medication appellant would suffer negative consequences
“right away,” and that appellant’s mental health disorders
prevented her from caring for her blood pressure. Further,
appellant’s mental health counselor testified that appellant
would not take any psychiatric medication if released.
         Because the foregoing evidence supports the court’s
findings that appellant’s schizophrenia caused her refusal
to take her blood pressure medication and that, without
the medication, she posed a high risk for a stroke or heart
attack, the court did not err when it found that appellant
was a danger to herself and could not care for her basic
needs. See State v. S. S., 

, 480 P3d

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)(A), (B).
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321 (2021) (affirming an order of commitment because the
evidence of “the persistence and consistency of [the] appellant’s actions” demonstrated “a risk of serious physical harm
and that the risk is likely to recur” and allowed a rational
factfinder to determine that the appellant was a danger to
himself); C. W., 

 (concluding that
the record supported the trial court’s finding that the appellant could not care for her basic needs because she did not
recognize that she had schizophrenia, she refused to take
her medications—exposing her to “significant GI bleeding
and severe anemia”—and that conduct “put her at a nonspeculative risk of serious physical harm that would compromise [the] appellant’s safe survival” (internal quotation
marks omitted)).
         Appellant acknowledges that her second assignment of error is unpreserved. “Generally, an issue not preserved in the trial court will not be considered on appeal.”
State v. Wyatt, 

, 

 (2000). However,
we may review an unpreserved error if it is “plain error.”
State v. Vanornum, 

, 

 (2013). A
plain error is “an error of law, obvious and not reasonably in
dispute, and apparent on the record without requiring the
court to choose among competing inferences.” 

 If we conclude that an error is “plain,” we must “determine whether
to exercise [our] discretion to review the error.” 

.
        Here, appellant argues that the trial court plainly
erred when it “fail[ed] to dismiss the case” after Unity’s
medical staff and the trial court violated ORS chapter 426
in three respects.
          First, appellant contends that the medical staff
violated ORS 426.123. ORS 426.123(1) provides, in relevant
part, that
   “a person shall be given a warning that observations of the
   person by the staff of the facility where the person is in custody may be used as evidence in subsequent court proceedings to determine whether the person should be or should
   continue to be committed as a person with mental illness.”
Assuming, without deciding, that the medical staff did not
comply with that statute, we conclude that any error is not
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plain because “a violation of ORS 426.123 is not grounds
to dismiss a commitment proceeding.” State v. R. C., 

, 281-82, 

 (2019) (“[I]mplicit in the
legislative decision not to require a court to exclude evidence
obtained under circumstances in which a person has not
been given the warnings required by ORS 426.123 is the
principle that the commitment hearing can be held notwithstanding a violation of ORS 426.123[.]”).
        Second, we understand appellant to argue that
the medical staff violated her right to counsel under ORS
426.234(1) because they did not advise her of her “right to
appointment of legal counsel with documentation of that
warning.” ORS 426.234 provides, in relevant part:
      “(1) At the time a person alleged to have a mental illness is admitted to or retained in a hospital or nonhospital
   facility under ORS 426.232 or 426.233, a licensed independent practitioner, nurse or qualified mental health professional at the hospital or nonhospital facility shall:
      “(a) Inform the person of the person’s right to representation by or appointment of counsel as described in ORS
   426.100[.]”
We have reviewed the record and conclude that the alleged
error is not “apparent on the record without requiring the
court to choose among competing inferences.” Vanornum,

. Although appellant’s treating psychiatrist
testified at the commitment hearing, the record lacks evidence that medical staff failed to inform appellant of her
right to counsel. Therefore, any error is not plain. See Ailes
v. Portland Meadows, Inc., 

, 823 P23 956
(1991) (explaining that an error appears “on the face of the
record” when “the reviewing court must not need to go outside the record to identify the error”).
         Third, appellant argues that the trial court violated
ORS 426.100(3)(e) because it did not appoint counsel “as
soon as reasonably possible” after she was detained. ORS
426.100(3)(e) provides, in relevant part, that, “[i]f the person
is being involuntarily detained before a hearing on the issue
of commitment, the right … to contact an attorney or …
to have an attorney appointed may be exercised as soon as
reasonably possible.” We conclude any error is not plain. See
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 (2025)                             263

State v. C. T., 

, 

 (2024)
(“[A]s a matter of statutory construction, it is not obvious or
beyond reasonable dispute that ORS 426.100(3)(e) requires
the court to appoint counsel for someone as soon as reasonably possible after an emergency hold starts.”). Moreover,
although appellant remonstrates that she was “detained on
September 12th and counsel was not appointed until the
19th or 18th,” appellant offers no argument about “what was
‘reasonably possible’ here.” 

 (“[E]ven if the court’s
obligation to appoint counsel ‘as soon as reasonably possible’ is triggered as soon as an emergency hold is placed, the
record is silent as to what was ‘reasonably possible’ here.”).
The trial court did not plainly err.
        Affirmed.