State v. M. B.

                                      522

                Submitted July 3, 2018, reversed November 14, 2019


                     In the Matter of M. B.,
             a Person Alleged to have Mental Illness.
                     STATE OF OREGON,
                          Respondent,
                                v.
                             M. B.,
                           Appellant.
                Multnomah County Circuit Court
                      17CC04251; A165589
                                  

     The trial court found that appellant is unable to provide for her basic per-
sonal needs and, under ORS 426.130(1)(a)(C) and ORS 426.005(1)(f)(B), civilly
committed her to the Oregon Health Authority for a period not to exceed 180
days. Appellant appeals, arguing that the evidence was insufficient to support
the finding. The record shows that appellant was found naked outside of a bar.
She was dirty, had minor cuts on her recently-shaven head, and made nonsen-
sical statements to a police officer. She was taken to a hospital, where she told
an investigator that she could not obtain food stamps because she had lost her
identification, made many nonsensical statements, and engaged in some bizarre
behavior. At her civil commitment hearing, appellant lacked a clear post-release
housing plan. Held: The evidence as a whole was insufficient to civilly commit
appellant based on inability to meet basic personal needs under ORS 426.130(1)
(a)(C) and ORS 426.005(1)(f)(B).
    Reversed.



    Monica M. Herranz, Judge pro tempore.
  Jed Peterson and O’Connor Weber LLC filed the brief for
appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Judy C. Lucas, Assistant Attorney
General, filed the brief for respondent.
  Before DeHoog, Presiding Judge, and Aoyagi, Judge, and
Hadlock, Judge pro tempore.
    AOYAGI, J.
    Reversed.
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 (2019)                               523

         AOYAGI, J.
          Appellant seeks reversal of a judgment commit-
ting her to the Oregon Health Authority for a period not to
exceed 180 days. She argues that the evidence was insuffi-
cient to support the trial court’s finding that she was unable
to provide for her basic personal needs, which is a basis for
commitment under ORS 426.130(1)(a)(C) and ORS 426.005
(1)(f)(B). We agree with appellant and, accordingly, reverse.
         Unless we exercise our discretion to review de novo—
which we do not in this case—we “view the evidence, as
supplemented and buttressed by permissible derivative
inferences, in the light most favorable to the trial court’s dis-
position and assess whether, when so viewed, the record was
legally sufficient to permit that outcome.” State v. T. W. W.,

, 

 (2018) (internal quo-
tation marks omitted). We describe the facts in accordance
with that standard.
         Officer Ibrahim was dispatched to a local bar after
the police received multiple calls that a woman was harass-
ing customers outside the bar. It was mid-July and around
8:00 p.m. Upon arrival, Ibrahim observed appellant stand-
ing fully naked on the side of the street. When he got out
of his car, appellant put her shirt on, although she later
took it off again (and then put it on again at his request).
A woman standing next to appellant told Ibrahim that she
knew appellant from high school and that appellant was
“not being herself.” Ibrahim observed that appellant was
dirty, “basically didn’t have any hair,” and had minor cuts
on her head. Appellant appeared not to know exactly where
she was. She talked about “an invisible dog that was not
there” and pointed at things that were not there. Appellant
told Ibrahim that she had taken Xanax. Believing her to
be at risk, Ibrahim called an ambulance to take appellant
to the hospital. He thought, based on her appearance and
behavior, that she was suffering from some sort of mental
health issue and was a danger to herself and not able to
“care for herself.”
        Appellant was hospitalized. On her first night at
the hospital, she told the precommitment investigator that
she had not been eating well, had been hungry, and had
524                                                              State v. M. B.

lost weight. She explained that she had been unable to get
food stamps because she lost her identification. She also said
that she had no current income. The next day, the investi-
gator found appellant to be “significantly worse.” Appellant
made many “nonsensical statements” and engaged in “flight
of ideas.” She acknowledged to the investigator that she had
defecated on the floor of her hospital room because she “had
to go” and the bathroom smelled bad. She also acknowledged
having put medication up her rear end and in her vagina
and then offered it to the security guard, and she acted as
if that was “perfectly reasonable” conduct. Appellant told
the investigator that she was sorry about having shaved her
head and wanted to grow her hair long again; she said that
her head hurt from a sunburn, and the investigator noted
that it was quite red.1
          A civil commitment hearing was held in July 2017.
The state sought civil commitment under ORS 426.130
(1)(a)(C) and ORS 426.005(1)(f)(B), based on appellant being
unable to provide for her basic personal needs. No other
bases for commitment were asserted.
         Ibrahim testified about the circumstances of appel-
lant’s hospitalization, as described above, and then appel-
lant testified. Appellant testified that she “[didn’t] really
know” why she was in the hospital. She said that she must
have been “dehydrated” or had “a bug.” Asked how she would
obtain money if released, appellant said that she could be a
Playboy Bunny for Hugh Hefner. Shortly thereafter, appel-
lant spontaneously said—seemingly not in response to the
pending question—that she was “tired of people beating
[her] ass” and that, while she was “walk[ing] down the street
one day to get [her] shoes back,” a man once threw her down
    1
      The facts in this paragraph are from the precommitment investigator’s
report. The trial court appears to have admitted that report “absent any hear-
say,” at the parties’ request, but it is unclear which specific parts of the report
the trial court meant to exclude. In particular, because the report is divided
into sections labelled “first-hand” and “hearsay,” it is unclear whether the trial
court intended to exclude only those sections labelled as “hearsay” or intended
to exclude everything that actually is hearsay under the applicable evidentiary
rules, regardless of how the investigator labelled it. The state cites these facts on
appeal, they appear in a section of the report labelled “first-hand,” and appellant
has not challenged their consideration on appeal. In any event, the inclusion of
these facts does not affect the disposition in this case.
Cite as 

 (2019)                            525

and severely hurt her back and, when she woke up, a woman
was “beat[ing] the bug out of [her]” and “cracked [her] in the
head.” Later, appellant said that she thought she had border-
line personality disorder but “[didn’t] even know what any of
that stuff is really.” She said that she did not want to be in
a psychiatric hospital, preferred to be outside, and was “not
a psychopath.” Asked where she would go if released, appel-
lant said that she would “march right over there to Tyler’s
house,” or, “could go to John’s house if somebody would call
him.” During the hearing, appellant was drinking from a
water bottle with a banana peel in it, which she explained
was for extra potassium. Appellant made many nonsensical
statements throughout her testimony. She could not recall
why she had been naked outside the bar.
         Examiner Edelson gave her report to the court,
which contained diagnostic impressions of psychosis not
otherwise specified and methamphetamine-induced psycho-
sis. (Appellant had tested positive for amphetamines when
she arrived at the hospital.) Edelson listed appellant’s symp-
toms as “visual hallucinations, tangential, flight of ideas,
delusions, grandiose.” She reported that appellant “[c]annot
answer direct questions in a meaningful way” and that “her
only organized statement” was her “clear” statement that
she wanted to be released. Edelson found that appellant had
“no insight into being naked downtown [and] no explanation
for her behavior” and that she “is too disorganized to plan
and follow through [with outpatient] care or even shelter.”
As for Rogers, he noted that appellant “had no realistic or
rational plan should she be released.” Rogers opined that
appellant was “clearly still psychotic to the point that she
would be at a grave risk if discharged due to being unable to
care for her basic needs.”
        At the end of the hearing, the trial court determined
that appellant had a mental disorder that made her unable
to provide for her basic personal needs. On that basis, the
court civilly committed her for a period not to exceed 180
days. On appeal, appellant challenges the sufficiency of the
evidence to support the commitment.
        Under ORS 426.130(1)(a)(C), if, after hearing all the
evidence at a civil commitment hearing and reviewing the
526                                              State v. M. B.

findings of the examiners, the court finds, based on clear
and convincing evidence, that a person is “a person with
mental illness,” and release or conditional release is not in
the person’s best interest, the court may order the person to
be committed. ORS 426.005(1)(f)(B) defines a “[p]erson with
mental illness” to include a person who, because of a men-
tal 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.” (Emphasis added.) See also State v. M. A.,

, 

 (2016) (citing food, water,
and life-saving medical care as examples of basic personal
needs).
         As we recently discussed in State v. M. A. E., 

, 232, 237, 

 (2019), the legislature
amended ORS 426.005(1)(f)(B) in 2015, resulting in the cur-
rent standard for a basic-needs commitment, which became
effective on January 1, 2016. Under the current standard,
“serious physical harm” means a nonspeculative threat that
the person will not safely survive without treatment, and
“in the near future” means something less immediate than
“imminent” but not so attenuated from present circum-
stances as to render it speculative. Id. at 239-40.
         “Whether the evidence presented by the state is
legally sufficient to support a civil commitment is a question
of law.” State v. A. D. S., 

, 

(2013). In this case, appellant does not contest that she has
a mental disorder, but she argues that there was insuffi-
cient evidence that her mental disorder makes her unable to
provide for her basic personal needs. The state defends the
commitment, emphasizing that appellant was dirty, hun-
gry, and thin when she arrived at the hospital and that she
lacked any organized post-release plan.
         As relevant to the issue before us, the record contains
evidence that appellant had lost weight over an unspecified
time period, lacked a current source of income, was pres-
ently unable to obtain food stamps due to having lost her
identification, had a sunburn and minor cuts on her head,
had been found naked on a public street, and lacked a clear
post-release housing plan. We address each of those pieces
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 (2019)                                                 527

of evidence in turn, while emphasizing that we ultimately
must look at the record as a whole to determine whether the
evidence was sufficient for commitment. See M. A. E., 299
Or App at 241 (affirming judgment of commitment based on
the record “[v]iewed as a whole”); M. A., 

(reversing judgment of commitment based on “the totality of
the circumstances”).
         With respect to the evidence related to food, the
record shows that appellant had struggled, at least recently,
with obtaining adequate food, but it does not establish
that appellant’s challenges in obtaining food had reached
the point of putting her at risk of serious physical harm in
the near future. For example, there was no evidence that
appellant was at a medically dangerous weight when she
arrived at the hospital, that she did not have access to shel-
ters or soup kitchens, or that she would be unable to replace
her identification so that she could obtain food stamps.
Cf. M. A. E., 299 Or App at 241-42 (affirming commitment
where record showed that, if released, appellant would stop
taking her medication and, “in no more than a week, become
unable to obtain food, even if she might wish to eat”).2 As for
appellant’s health more generally, appellant had a sunburn
and minor cuts on her head, which do not appear to have
been considered medically concerning. Cf. State v. C. K., 

, 

 (2019) (affirming commitment
where record showed that, if released, appellant “would lack
the capacity to care for her ostomy site due to her mental
disorder and memory lapses,” which, “in turn, would place
her at a nonspeculative risk of a serious life-threatening
infection—one that could lead to organ failure—in the near
future”).
        With respect to appellant’s nudity outside of the bar
on the day that she was hospitalized, the incident occurred

     2
       Because of the highly fact-specific and context-specific nature of civil com-
mitment, we generally discourage fact-matching between cases. State v. C. A. J.,

, 

, rev den, 

 (2009). Older decisions
also must be discussed with caution because of the 2009 statutory change to
the de novo standard of review, see State v. D. R., 

, 578 & n 3,

 (2010), and the previously-mentioned 2016 statutory change to the
basic-needs standard in ORS 426.005(1)(f)(B). Nonetheless, past decisions can
illustrate certain principles.
528                                                           State v. M. B.

in the summer, so there does not appear to have been any
risk of appellant suffering serious physical harm from
weather exposure (nor does the state argue that there was).
As for the risks inherent in a woman with a mental disor-
der wandering naked in public, there is no evidence that
appellant made a regular habit of public nudity, or of a non-
speculative risk of harm to appellant specifically. See State
v. B. C., 

, 

 (2010) (reversing
commitment in case where the appellant was found wan-
dering in the road “partially unclothed”); State v. T. S. W.,

, 

 (2003) (reversing
commitment in case where the appellant was found riding
her bicycle naked in near-freezing weather and professed to
believe in “a truly clothing-optional world,” and where a doc-
tor and the examiner expressed concern about “the poten-
tial danger of assault” but “could [not] offer more than the
vague unease about the possibility of harm”).

         Finally, as to the evidence that appellant lacked
a specific housing plan post-release and currently lacked
income to pay rent, the record is at best unclear as to whether
appellant had friends with whom she could stay. But even
if appellant was too disorganized to arrange shelter due to
her mental disorder, and therefore was at risk of ending up
homeless, we have repeatedly said that homelessness itself
is not grounds for civil commitment. E.g., State v. Baxter,

, 

 (1995) (“Although the lack of
certain shelter is not a good plan, we cannot say that home-
lessness by itself is sufficient grounds for commitment.”);
State v. A. M.-M., 

, 

 (2010) (quot-
ing same). Although living on the streets may be inherently
dangerous, such a generalized risk is not enough to justify
involuntary civil commitment. Nothing in this record sup-
ports a finding that appellant personally is at risk of serious
physical harm in the near future due to her lack of a specific
housing plan.3

    3
      In its answering brief, the state briefly refers to appellant having “stated
that she had been victimized by others repeatedly on the street.” The state
appears to be referring to appellant’s testimony about an incident in which she
was “walking down the street,” a man threw her down and hurt her back, and
she awoke to a woman who “beat the bug out of [her]” and “cracked [her] in the
head.” That testimony appears to refer to a single incident, there is no evidence
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 (2019)                                                529

          Having considered the evidence in the record both
individually and collectively, we conclude that it was insuffi-
cient to support the court’s finding that appellant was unable
to provide for her basic personal needs within the meaning
of ORS 426.005(1)(f)(B). Notably, at appellant’s hearing, no
one identified any specific threat to appellant’s well-being,
instead indicating a generalized concern that public nudity,
combined with outward manifestations of mental illness,
would leave appellant vulnerable. Such concern for appel-
lant’s welfare is certainly understandable and might be
well-founded, but it does not meet the legal standard for
involuntary civil commitment, at least on this record. See
State v. Ayala, 

, 

 (1999)
(“Apprehensions, speculations and conjecture are not suffi-
cient to prove a need for mental commitment.”); see also T. S. W.,

 (mental health professionals’ “vague
unease about the possibility of harm” did not justify civil
commitment).
         Nor can we simply defer to Rogers’ opinion that
appellant is “clearly still psychotic to the point that she
would be at grave risk if discharged due to being unable
to care for her basic needs.” That is “a conclusory assertion
that reflects the legal question at issue, rather than evidence
of what actually will happen to appellant if [appellant] is
released.” State v. S. T., 

, 

(2018) (reversing civil commitment order, despite the exam-
iner’s statement that he did not “ ‘think [that appellant] will
survive out there”). On this evidentiary record, we reverse.
           Reversed.




as to how recently or long ago it occurred, and it is unclear whether appellant was
even homeless at the time.