State v. C. M. C.

                                      206

             Submitted September 12, reversed December 11, 2019


                    In the Matter of C. M. C.,
             a Person Alleged to have Mental Illness.
                      STATE OF OREGON,
                          Respondent,
                              v.
                           C. M. C.,
                           Appellant.
                 Multnomah County Circuit Court
                      18CC04295; A168620
                                   

    Appellant challenges a judgment committing him to the Mental Health
Division for a period not to exceed 180 days, arguing that the record is insuffi-
cient to support the trial court’s determination that his mental disorder rendered
him unable to provide for his basic needs, ORS 426.005(1)(f)(B). Held: The record
was insufficient to support appellant’s basic-needs commitment.
    Reversed.



    L. Randall Weisberg, Judge pro tempore.
   Joseph R. DeBin and Multnomah Defenders, Inc., filed the
brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Inge D. Wells, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
    ORTEGA, P. J.
    Reversed.
Cite as 

 (2019)                             207

        ORTEGA, P. J.
          Appellant challenges a judgment committing him
to the Mental Health Division for a period not to exceed 180
days on the ground that he has a mental illness. ORS 426.130.
Appellant argues that (1) the trial court issued a warrant of
detention that lacked proof that he had been advised of the
warning required by ORS 426.123(1)—in appellant’s view,
that constitutes reversible plain error; and (2) the evidence
is insufficient to support the trial court’s determination that
appellant’s mental disorder rendered him unable to provide
for his basic needs, ORS 426.005(1)(f)(B). We reject appel-
lant’s first assignment of error without further discussion.
See State v. C. F. P., 

, 

 (2019);
State v. T. H., 

, 

 (2019); State v.
R. C., 

, 

 (2019). As to the second
assignment of error, we agree with appellant that the evi-
dence in the record is insufficient to support his basic-needs
commitment. Accordingly, we reverse.
         We 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. E. D., 

, 

 (2014) (citations omitted). We
therefore recite the following facts in the light most favor-
able to the trial court’s disposition. 

         Appellant—who was 22 years old at the time of
the commitment hearing—suffers from schizophrenia, and
that mental disorder was complicated by his co-occurring
developmental disorder of autism. Appellant’s conditions
caused him extreme anxiety, which led to constant residen-
tial instability. In the events leading up to this commitment
hearing, for example, appellant was hospitalized at Unity
Center for Behavioral Health for a period of three weeks
before being discharged and sent to Transition Projects TPI
(TPI). Appellant quickly became anxious and left TPI, with-
out taking his medications with him. At 4:00 a.m. the next
day, appellant returned to Unity, stating that he did not
know how to get food or money and that he had no money,
no phone, and only one change of clothing. According to
Jennifer Haynes, a case manager with Multnomah County’s
208                                                      State v. C. M. C.

Forensic Division Program, this was illustrative of “a cycli-
cal pattern” with appellant: He would be stable when hos-
pitalized; initially would be “completely willing” to try out
a housing placement; would quickly change his mind about
the placement and leave, often without taking his medi-
cations with him; would rapidly decompensate; and would
return to the hospital or be picked up by law enforcement.
         Appellant’s schizophrenia and autism also caused
him to exhibit executive-functioning issues with planning,
decision-making, and staying focused. Appellant recognized
that he had symptoms, but his overall insight into his need
for treatment was very poor. Although appellant complied
with taking medications, his mother and Tara O’Connor—a
psychiatric mental health nurse practitioner at Unity—did
not believe that he was organized enough to do so unsuper-
vised: For example, he did not know that he needed to go
to a doctor to obtain a prescription as opposed to showing
up at a Walgreen’s to write his own prescription. O’Connor
agreed that medications might not improve some of appel-
lant’s cognitive impairments, which had both mental and
developmental components, and she explained that multiple
antipsychotic medications had yielded negligible improve-
ment. O’Connor described appellant as “thus far be[ing]
really treatment resistant”1 and opined that he might need
more aggressive or proactive treatment, which he so far was
not willing to consider. In O’Connor’s view, appellant was
not stable and needed further supervised care and treat-
ment to ensure that he eats, takes medications, and engages
in the community appropriately:
   “I think when [appellant] doesn’t take his psychiatric med-
   icines, he becomes increasingly emotionally unstable, he
   has manic symptoms, he does the disrobing, * * * he puts
   himself in harm’s way. * * * Additionally, [appellant] has a
   genetic disorder of fat absorption, and also has Hepatitis C,
   and these two things are causing him to have some scar-
   ring of his liver, and elevated liver function tests did
   indicate that, and he had the thyroid nodule. And so he
    1
      In context, we understand this portion of O’Connor’s statement to mean
that appellant’s conditions were resistant to treatment—that is, that the treat-
ment had not been as effective in alleviating appellant’s conditions as desired—
and not that appellant himself was resistant to receiving treatment.
Cite as 

 (2019)                                  209

   has some medical problems that actually need some addi-
   tional follow-up. I don’t think he could organize himself to
   follow-up on these problems, and they could become life-
   threatening if not treated. So I don’t think he can * * * plan
   to make meals for himself, I don’t think he can figure out
   * * * how to obtain and manage finances to buy food. So he
   could become malnourished and dehydrated.”

         Due to appellant’s co-occurring mental and devel-
opmental conditions, it was also difficult to find housing
services that would accommodate him, and living with
his mother was not an option. Appellant’s five or six past
housing placements were unsuccessful because he would
“abscond” from the facility, never staying overnight at any
of them. On one such occasion, appellant was later located
near Emanuel Hospital dressed in only his underwear; he
told Haynes that he had been robbed at gunpoint and that he
was going to the hospital to get clothes and food. According
to Haynes, appropriate housing options for appellant have
been exhausted. Haynes perceived no pattern to appellant’s
reasons for leaving a placement. Haynes also stated that
“[n]othing stands out” to suggest that appellant’s schizo-
phrenic hallucinations were connected to his reasons for
leaving a placement or were interfering with his thinking
about caring for himself or accessing food, although she
allowed that that “could certainly be part of it.” In her year-
plus of working with appellant, Haynes explained, she had
observed him demonstrate the ability to care for himself
only in the sense that he would voluntarily return to the
hospital setting to seek out food, shelter, or clothing—but in
her view, that was an inappropriate use of hospitalization.
        Appellant’s mother testified that appellant “abso-
lutely would have difficulty” finding shelter and that he
lacked the ability to support himself financially, to find
food, and to cover basic survival needs. Appellant “loses
things constantly because people take them from him,”
and he had been assaulted in the past. Appellant’s mother
was concerned that appellant would befriend somebody on
the streets too easily and give away money from his Social
Security Disability Insurance benefits (SSDI)—money that
had been put on hold because of appellant’s hospitalizations
and that still needed to be reactivated.
210                                            State v. C. M. C.

         Appellant also testified at the hearing, expressing
his wish to be released. Appellant explained that he had left
TPI because he did not like that the facility required him to
check in multiple times a day and that it provided only shel-
ter and no food. The reason that he had returned to Unity,
appellant stated, was because hospital staff had told him
that he could do so if he encountered any issues. Appellant
had wanted Unity’s help contacting his parents and figur-
ing out whether he could go to the Mission, a facility that
provided both shelter and food. Appellant explained that he
had left his medications at TPI because he had no backpack
to carry them around; he had intended to return for them
after arranging to go to the Mission. According to appellant,
before his continuous encounters with law enforcement and
hospitalizations in the last year, he had been living in down-
town Portland and getting food at the Mission on his own for
a year.
         Regarding the incident in which he had been found
near Emanuel Hospital, appellant explained that he had left
that housing placement because it was a “little, tiny house”
“in the middle of absolutely nowhere”; that made him feel
uncomfortable and secluded. In response to why he had left
a different placement, appellant testified that the facility
had requested $600 out of his SSDI, which appellant viewed
as too much: “I need to spend it on clothes * * * [and] things
that are more important than—than the place that I’m
living that I don’t even want to live at.” When asked about
his plan if he were released after the hearing, appellant
detailed that he would go to the Mission for food and cloth-
ing; go reactivate his SSDI; arrange to receive mail at the
post office near TPI; and have his parents send him money
within two days. With that money, appellant added, he could
“stay in a hotel for a little while” or split rent with a friend.
         At the end of the hearing, the trial court found
clear and convincing evidence that appellant suffers from
a mental disorder and that, because of his mental disorder,
appellant is unable to provide for his basic personal needs.
Describing this as a “difficult and close case[,]” the trial court
found that appellant has an awareness of his codiagnoses of
autism and schizophrenia, but that he lacks full awareness
of his limitations. The trial court also expressed skepticism
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 (2019)                                 211

regarding appellant’s ability to “get his finances together,”
to “access his meds,” and to “survive,” stating that appellant
“would decompensate rapidly” and “get taken advantage of”
due to his impaired decision-making capacity. Sleeping on
the sidewalk in August is “fine right now,” the trial court
opined, but “[i]t’s going to be a drag” come September and
October. Additionally, the trial court noted that appellant
has Hepatitis C and “some other physical problems” that
will “be difficult for you to handle the way you are right
now[.]” Ultimately, the trial court determined that a basic-
needs commitment was “the best course” for appellant, so
that his medical providers could “get [appellant] stabilized
as best as the medical science is able to do” before he goes
back to living “on the streets.”
         On appeal, appellant does not dispute that he has a
mental disorder; he asserts only that the evidence is insuf-
ficient to support the trial court’s determination that his
mental disorder rendered him unable to provide for his basic
needs. Specifically, appellant argues that, considering his
past ability and future plan to obtain food, medication, and
housing, and the absence of evidence establishing a causal
connection between his mental disorder and an inability
to provide basic needs, the commitment judgment must be
reversed.
          As relevant here, a person is subject to involuntary
civil commitment if the state proves by clear and convinc-
ing evidence that the person is a “[p]erson with mental ill-
ness” under the current basic-needs provision, ORS 426.005
(1)(f)(B), and neither release nor conditional release is in the
person’s best interest. ORS 426.130(1)(a)(C). ORS 426.005
(1)(f)(B) provides:
      “(f) ‘Person with mental illness’ means a person who,
   because of mental disorder, is one or more of the following:
      “* * * * *
      “(B) Unable 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.) Recently in State v. M. A. E., 

, 236-37, 

 (2019), we construed ORS
212                                            State v. C. M. C.

426.005(1)(f)(B) as a matter of first impression and deter-
mined that that provision provides for a different legal stan-
dard than did the previous basic-needs provision requiring
“an imminent threat to safe survival.” We specified that the
current basic-needs standard differs from its predecessor in
two ways: “one that relates to the type of risk the allegedly
mentally ill person must face if not involuntarily committed
(‘serious physical harm’) and one that relates to the time-
frame in which that risk must exist (‘in the near future’).”
Id. at 237. “In sum,” we concluded,
   “a person meets the ‘basic needs’ definition of a ‘[p]erson
   with mental illness’ under ORS 426.005(1)(f)(B) if the per-
   son is unable to provide for his or her basic personal needs
   in a way that leaves the person at nonspeculative risk of
   ‘serious physical harm’—meaning that the person’s safe
   survival will be compromised—in the near future, even
   though that risk is not imminent.”
Id. at 240 (brackets in M. A. E.). Additionally, the state must
establish “a causal connection” between the person’s mental
disorder and inability to meet basic needs. State v. S. S., 

, 

 (2003) (citations omitted).
         In committing appellant, the trial court primarily
cited his inability to obtain medications and to function “on
the streets” with his impaired decision-making capacity.
Considering that articulation of the trial court’s rationale,
below and in turn, we discuss the evidence specific to appel-
lant’s ability to obtain medical treatment and to his house-
lessness and then consider other evidence of appellant’s
general vulnerability to determine whether the trial court
permissibly determined that appellant’s mental disorder
placed him at nonspeculative risk of serious physical harm
in the near future. We conclude that, viewing this record as
a whole, the evidence is insufficient to support appellant’s
basic-needs commitment.
        Regarding appellant’s ability to obtain medications,
the record shows that, although he complied with treat-
ment, it provided only slight improvement, and appellant
would sometimes leave a housing facility without taking
his medications with him. When appellant does not take his
medications, he becomes emotionally unstable, has manic
Cite as 

 (2019)                             213

symptoms, and disrobes. The difficulty, however, lies in the
absence of any evidence to support the inference that those
manifestations of appellant’s mental disorder would give rise
to a nonspeculative risk of serious physical harm. To con-
trast, in M. A. E., there was testimony that “providers like
soup kitchens would not be willing to serve [the] appellant
if she appeared in the psychotic, agitated, and violent state
that likely would result if she were released.” 

 (quotation marks omitted). Here, the record might
well justify generalized concerns associated with appellant’s
unmedicated state, but the basic-needs standard requires
more particularized evidence of the resulting risk to appel-
lant’s “safe survival.” 

.
         Similarly, the trial court expressed concern about
appellant’s ability to treat his Hepatitis C and other phys-
ical medical problems, but the evidence as to those issues
is impermissibly vague and speculative. O’Connor opined
that those problems “could become life-threatening if not
treated.” But, from that testimony alone, the trial court
could not reasonably deduce a timeframe in order to deter-
mine whether the risk will transpire “in the near future.”
In M. A. E., there was evidence that the appellant “would
decompensate within a matter of days to a week[.]” 

(quotation marks omitted). Notably, a nonvague estimation
of appellant’s expected rate of decline or decompensation is
lacking from this record.
         Turning to appellant’s houselessness, the record
permits the nonspeculative inference that appellant will
experience difficulty locating housing appropriate for
his co-occurring disorders of schizophrenia and autism.
Moreover, the evidence strongly suggests that appellant
would not remain at an unsecured facility for very long;
he tends to move about as a result of his anxiety. But even
accepting that appellant, by his choice, will likely be without
shelter upon release, we have repeatedly stated that house-
lessness is not a per se basis for a basic-needs commitment.
State v. M. A., 

, 

 (2016); see
also State v. L. B., 

, 

 (1995)
(“Although the lack of certain shelter is not a good plan, we
cannot say that homelessness by itself is sufficient grounds
214                                          State v. C. M. C.

for commitment.”). Living on the streets “is not necessarily
the choice that everyone would make. But it is appellant’s
choice. And it is not the state’s prerogative under the civil
commitment statutes to interfere with that choice.” State v.
M. G., 

, 

 (1997); see also
State v. T. R. O., 

, 

 (2006)
(“[C]ivil commitment is not intended to be used as a pater-
nalistic vehicle to save people from themselves.” (Citation
and quotation marks omitted.)). Certain general risks are
inherent to houselessness, but in the absence of more spe-
cific evidence, this record is insufficient for the trial court
to conclude that the lack of housing would place appellant
at nonspeculative risk of serious physical harm in the near
future.
         The other evidence of limitations and vulnerabil-
ities attendant to appellant’s impaired decision-making
capacity is similarly insufficient to support a basic-needs
commitment. Although appellant’s mother testified to her
belief that appellant lacks the ability to find food and cover
other basic survival needs, that is but “a conclusory asser-
tion that reflects the legal question at issue, rather than
evidence of what actually will happen to appellant if he
is released.” State v. S. T., 

, 

 (2018). For example, 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.” Nor is there any evidence of appellant’s reluc-
tance or refusal to eat. To the contrary, the record shows
that appellant will voluntarily seek out a hospital when he
needs food. Granted, that may not be an appropriate use
of hospitalization, but “appropriate use of hospitalization” is
not the applicable legal standard. If anything, appellant’s
repeated returns to a hospital setting to obtain food, cloth-
ing, and shelter demonstrate a level of self-awareness that
suggests that civil commitment is inappropriate. See S. S.,

 (reversing based in part on evidence
that appellant had some recognition of the need to engage
in certain life-sustaining activities).
         In committing appellant, the trial court also
expressed concern that appellant would be “taken advan-
tage of” on the streets because he befriends people too easily.
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 (2019)                              215

But that rationale for commitment would seem to contra-
vene the principle against using commitment procedures as
a paternalistic vehicle for saving people from themselves.
Here, the record does not reflect that appellant’s undiscern-
ing disposition is because of his mental disorder as opposed
to, for example, his autism or his natural temperament.
Furthermore, although appellant had been assaulted and
robbed in the past, any conclusion that similar harms would
befall him in the near future because of his mental disorder
would be an inferential leap that is inconsistent with the
clear-and-convincing evidentiary requirement. See State v.
H. S., 

, 

 (2004) (“ ‘Clear and
convincing evidence’ is evidence of ‘extraordinary persua-
siveness,’ such that the ‘truth of the facts asserted is highly
probable[.]’ ” (Citations omitted.)).
         Viewed as a whole, the record establishes that
appellant will have certain difficulties navigating through
life with his co-occurring mental and developmental chal-
lenges, and the trial court’s concern for appellant’s well-
being outside of hospital confines is understandable. But
involuntary civil commitment implicates serious liberty
interests and social stigmatization and must be supported
by clear and convincing evidence. See, e.g., State v. D. R., 

, 

 (2010) (“Given the serious
deprivation of liberty and social stigma that are attendant
to a civil commitment, and the fact that such a preventive
confinement is predicated on a prediction of future behavior,
our cases have articulated certain minimum evidentiary
standards for commitment.”). On this record, the trial court
erred in determining that, because of his mental disorder,
appellant is unable to provide for his basic needs.
        Reversed.