Full Opinion (html_with_citations)

738                    July 10, 2024                No. 486

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                  In the Matter of P. D.,
         a Person Alleged to Have Mental Illness.
                  STATE OF OREGON,
                       Respondent,
                            v.
                          P. D.,
                        Appellant.
                Lane County Circuit Court
                  23CC01289; A180956

  Charles M. ZennachĂŠ, Judge.
  Argued and submitted March 20, 2024.
   Christopher J. O’Connor argued the cause for appellant.
Also on the brief was Multnomah Defenders, Inc.
   Emily N. Snook, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Aoyagi, Presiding Judge, Joyce, Judge, and Jacquot,
Judge.
  JOYCE, J.
  Affirmed.
Cite as
333 Or App 738
 (2024)                                           739

          JOYCE, J.
         Appellant appeals from a judgment committing
him to the custody of the Oregon Health Authority (OHA)
on the basis that he is unable to provide for his basic needs
due to a mental disorder. In his first assignment of error,
appellant asserts that the state did not prove by clear and
convincing evidence that, because of his mental disorder, he
is “unable to provide for basic personal needs that are neces-
sary to avoid serious physical harm in the near future.” ORS
426.005(1)(f)(B). In his second assignment of error, appel-
lant contends that the trial court erred in issuing a firearms
prohibition because “the court did not follow the statutory
analysis laid out in ORS 426.130(1)(a)(D).” We conclude that
the record supports the trial court’s basic-needs determina-
tion, and that the trial court did not issue a firearms pro-
hibition pursuant to ORS 426.130(1)(a)(D), but rather pro-
vided appellant with the notification required under ORS
426.130(4). Thus, we affirm.
          “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.
E. J. J.,
308 Or App 603, 604
,
479 P3d 1073
 (2021) (internal
quotation marks omitted). We state the facts consistently
with that standard.
         Appellant has schizoaffective disorder, bipolar type,
which is a mental disorder that causes him to experience
delusions, disorganized behavior, and symptoms of mania.
In addition to his mental disorder, at the time of the hear-
ing, appellant also was suffering from a variety of physi-
cal health concerns including severe lung disease,1 leg
swelling, and cachexia—a condition that causes muscles to
waste away. Although appellant had been prescribed med-
ication for both his mental and physical conditions, he was
“not completely compliant” with treatment and “require[d]
encouragement” to take his medications.
    1
      Although the record is not entirely clear, it appears that appellant was
suffering from both lung cancer and a lung condition for which he had to take
antibiotics.
740                                             State v. P. D.

         Approximately a month before appellant’s civil com-
mitment hearing, appellant became dramatically more
symptomatic and displayed high levels of disorganization.
That disorganization impacted his ability to maintain a
living environment and to manage his food intake. With
respect to his living environment, appellant caused two sep-
arate floods that resulted in his apartment complex man-
agement deeming his apartment “uninhabitable.” In the
first incident, appellant used the sprayer from his kitchen
sink to extinguish a small stove fire that he had caused and,
in doing so, he flooded both his kitchen and dining room
areas. The second incident occurred a few days later when
appellant allowed his bathtub to overflow, causing signif-
icant water damage to multiple areas of the apartment.
Following these incidents, appellant stayed in a hotel.
         During the same month, appellant lost a very sig-
nificant amount of weight. During that time, appellant was
“eating very little food.” As a result of appellant’s decrease
in food intake, appellant lost a total of 28 pounds—about 19
percent of his starting body weight.
         For a number of years, appellant received support
services from the Laurel Hill Center (LHC), a mental health
clinic that assists people who struggle with psychiatric dis-
abilities. His case manager from the center became con-
cerned after observing his increase in symptoms and weight
loss and brought him to the emergency room for a mental
health evaluation. A doctor placed appellant on a physician’s
hold. Hicks, a psychiatric mental health nurse practitioner,
treated appellant while he was at the hospital leading up to
the civil commitment hearing. Hicks explained that, upon
appellant’s admission to the hospital, she had concerns
about malnourishment, and she described appellant as
being “underweight.” She believed that appellant’s low body
weight was “related to his not being able to provide him-
self with food before admission.” Hicks stated that appel-
lant was sometimes “delusional about food” and explained
that he was “not [eating] regularly” while in the hospital;
however, no emergency measures had been taken to feed
or hydrate appellant. Although she stated that appellant’s
nutritional diet had improved since he had been admitted
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333 Or App 738
 (2024)                               741

to the hospital, she described appellant’s low body weight
as an “immediate medical concern” because he had already
“started experiencing consequences * * * from not * * * hav-
ing enough nutrients. One of them [being] legs edema, legs
swelling.” Hicks stated that another factor impacting appel-
lant’s weight was his cachexia, which Hicks described as a
“life-threatening condition,” because it meant that appel-
lant was “not getting enough nutrients even to supply [the]
metabolic [needs] of his body.” According to Hicks, appellant
was “not able [to] recognize that he needs psychiatric treat-
ment,” and she believed that appellant’s mental condition
was causing complications with his physical condition.
         Williams, the case manager from LHC who had
brought appellant to the emergency room, also testified
about appellant’s recent increase in symptoms. She stated
that she had been working with appellant at LHC for over
three years and that in the month leading up to appellant’s
civil commitment hearing, she had observed appellant’s
“notable” and “significant weight loss.” Williams explained
that, before his increase in symptoms, appellant was able to
shop for and obtain his own food. However, after his increase
in symptoms, Williams had to be “more involved” in assist-
ing him with getting food. For example, the last time that
Williams took appellant shopping at the grocery store, he
spent “about an hour and a half to two hours” at the store
but only “selected six cans of soda” to purchase.
         After hearing the evidence, the trial court con-
cluded that the state had presented clear and convincing
evidence that appellant has a mental disorder (schizoaffec-
tive disorder, bipolar type) and that, as a result of his mental
disorder, he was unable to provide for his basic needs that
are necessary to avoid serious harm in the near future. In
coming to that conclusion, the trial court found that, as a
result of his mental condition, appellant was experiencing
disorganized thinking that rendered him “unable to shop
and care for himself.” The court noted that the doctor had
identified appellant’s cachexia as life-threatening and as a
likely cause of his leg edema. Thus, the court found that
appellant’s disorganized thinking was impacting his diet
and that appellant’s “inability to feed himself * * * would
742                                              State v. P. D.

cause him serious physical harm in the near future. And,
frankly, is causing him physical harm right now * * *.” The
court committed appellant to the OHA for a period not to
exceed 180 days.
         We begin with appellant’s first claim of error. On
appeal, appellant does not dispute that he has a mental dis-
order; rather, he argues only that the evidence is insufficient
to support the trial court’s determination that his mental
disorder rendered him unable to provide for his basic needs.
         ORS 426.130 provides the framework for the civil
commitment of a “person with mental illness.” That stat-
utory framework defines a “person with mental illness” to
include a person who, because of a mental disorder, 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). To satisfy that standard, the state
must prove two things: (1) that the individual’s inability to
provide for their basic personal needs puts them at a “non-
speculative risk of serious physical harm” and (2) that the
serious physical harm is likely to occur “in the near future.”
State v. M. A. E.,
299 Or App 231
, 240,
448 P3d 656
 (2019)
(internal quotation marks omitted).
         We conclude that the evidence in this record is suffi-
cient as to both requirements. The record contains evidence
that appellant’s mental disorder caused him to be “delusional
about food,” leading appellant to experience rapid and sig-
nificant weight loss that resulted in him being underweight
and suffering adverse medical consequences. Appellant’s
lack of nutrition was already creating adverse medical con-
sequences, such as his leg swelling. The harm that appel-
lant faced was further exacerbated by his cachexia, which
was also causing him to lose body weight and muscle mass
because he was “not getting enough nutrients even to sup-
ply [the] metabolic [needs] of his body.” That evidence is
collectively sufficient to establish that appellant’s inability
to manage his food intake placed him at a nonspeculative
risk of serious physical harm, specifically life-threatening
malnourishment. See, e.g., State v. N. S.,
306 Or App 140, 148-49
,
472 P3d 818
 (2020) (explaining that, among other
Cite as
333 Or App 738
 (2024)                             743

evidence, the appellant’s inability or refusal to obtain and
consume adequate food supported her basic-needs commit-
ment and concluding that “[i]t is common knowledge that a
serious risk of harm can result from the inadequate intake
of food and, here, appellant had lost weight and was not
eating the food she was offered in the hospital”). Although
Hicks testified that appellant’s nutrition was improving
in the hospital and that they had not used any emergency
measures to feed or hydrate appellant, given the severity
of appellant’s malnourishment and related conditions, that
slight improvement is not enough for us to conclude that
appellant no longer risked serious physical harm.
         The evidence was also sufficient for the trial court
to conclude that the risk of harm would occur in the “near
future.” Appellant had already suffered significant and
rapid weight loss, irregular food intake, cachexia (which
was described as life-threatening), and had an underweight
status with resulting physical symptoms. Further, appel-
lant’s inability to sustain adequate nutrition due to those
interconnected factors—taken together with his lack of
insight into his own mental illness—allows for the inference
that, without intervention, he would continue to deteriorate
physically and, thus, that he was at risk of suffering seri-
ous physical harm in the near future. M. A. E., 299 Or App
at 239 (defining the phrase “serious physical harm” in the
context of ORS 426.005(1)(f)(B) as referring to “bodily harm
that is serious enough that a person who suffers that harm
is unsafe in the absence of commitment, treatment, or other
amelioration of the physical condition”).
         To the extent appellant argues that the evidence is
insufficient because “the record fails to lay out a clear time-
line of when [he] was likely to suffer any serious injury,”
we disagree. As we have previously explained, in assessing
whether evidence is sufficient to establish a near-term risk
of harm to an appellant, our precedent establishes that the
evidence must “establish how soon the anticipated harm
will likely occur.” State v. R. L. M.,
309 Or App 545, 551
,
482 P3d 201
 (2021) (emphasis in original); accord State v. C. W.,
333 Or App 400, 406
, ___ P3d___ (2024) (same). Here, the
record, when viewed as a whole, established that appellant
744                                             State v. P. D.

was already experiencing physical harm stemming from
his malnourishment. The evidence of appellant’s ongoing
harm—his recent and rapid significant weight loss, which
led to his status of being underweight, and, in particular,
the resulting leg swelling and life-threatening cachexia—
was sufficient to establish the likelihood of near-term seri-
ous physical harm that ORS 426.005(1)(f)(B) requires.
         In his second claim of error, appellant contends that
the trial court erred when it notified appellant that he was
prohibited from purchasing or possessing a firearm. The
trial court provided appellant with that notice during the
civil commitment hearing and by including a notice provi-
sion in the judgment of commitment. At the end of the civil
commitment hearing, the court provided appellant with
notice of the prohibition when it told appellant that “[y]ou
are hereby notified that pursuant to Federal and State
law you are prohibited from purchasing or possessing a
firearm. You may obtain relief from this prohibition from
the Psychiatric [Security] Review Board, pursuant to ORS
166.273, and as provided by Federal Law.” The text of the
judgment of commitment closely mirrored the court’s verbal
notice. In appellant’s view, the trial court erred in “issuing
a firearms prohibition because the court did not follow the
statutory analysis laid out in ORS 426.130(1)(a)(D).”
         For all of the same reasons that we identified in
C. W., appellant’s argument is without merit.
333 Or App at 407-08
. The notification that the trial court provided to
appellant was issued pursuant to ORS 426.130(4). Under
that provision, if the court has found that a person suffers
from a mental illness and if the court has ordered commit-
ment of that person under ORS 426.130(1)(a)(C), then the
court is required to notify that person that they are prohib-
ited from purchasing or possessing a firearm. Because the
trial court had made that requisite finding and had ordered
civil commitment of appellant, the trial court did not err in
providing appellant with the required notification.
        Affirmed.