ROBERTS, J.
This is the first appeal brought under Oregon’s newly revised mental retardation commitment statute, ORS 427.005 et seq. (Oregon Laws 1979, c. 683). It involves a challenge by a 22 year-old woman, a resident of Fairview Training Center since the age of nine, to the institution’s continuing legal ability to confine her.
Appellant is deaf. Because of cerebral palsy she is confined to a wheelchair, which she is able to propel with her feet. She communicates by means of sign language and an electronic communication board. Though she can feed herself and, to some extent, dress herself, because of her physical disability she needs assistance with personal hygiene, meal preparation and most movements. The parties do not disagree that appellant is unable to care for her personal needs. The issue is whether, in addition, she is mentally retarded. We find that she is not.
The 1979 Legislature revamped Oregon laws relating to commitment of the mentally retarded, to provide increased protection for those who are subjected to commitment procedures. These statutes now incorporate standards and procedures for voluntary and involuntary commitments, establish "clear and convincing evidence” as the burden of proof reqúired at a commitment hearing and articulate a bill of rights for all training center residents. The statutes also restrict involuntary commitment to training centers to mentally retarded persons who, because of retardation, are either dangerous to themselves or others or unable to provide for their personal needs and are not receiving adequate care.
In addition, all involuntary commitments are limited to a period of one year, and state training centers are required each year to review the plan
of care for each resident and to certify, by "clear and convincing justification,” the resident’s eligibility and need for continued residential care.
These changes were effective October 3, 1979.
Apparently, pursuant to the annual review procedure mandated by ORS 427.020(1), appellant was evaluated sometime in the spring of 1980. The State Training Center Review Board did not approve her certification for residential care; however, the Disposition Board did not consider release to be in appellant’s best interests.
The Fairview superintendent, on March 13, 1980, initiated commitment proceedings in Marion County Circuit Court, as he was authorized to do by ORS 427.020(1).
The court then ordered an investigation pursuant to ORS 427.235(1).
A report filed with the court on April 14, 1980, recommended that appellant be
voluntarily
committed to the State Mental Health Division.
Following a hearing pursuant to ORS
427.245(1),
the court on April 18, 1980, issued a certification of mental retardation and order of commitment. Appellant assigns two errors in the issuance of this order: first, that the court erred in committing appellant to a "voluntary”
commitment, and second, that there was insufficient evidence to satisfy the requirements of ORS 427.290 in finding appellant to be mentally retarded.
Our review in commitment proceedings is
de novo. See State v. O’Neill,
274 Or 59, 545 P2d 97 (1976);
State ex rel Vandenberg v. Vandenberg,
48 Or App 609, 617 P2d 675 (1980).
We therefore examine the evidence and
draw our own conclusions as to whether the record shows by clear and convincing evidence that appellant is mentally retarded and because of retardation unable to provide for her personal needs.
"Mental retardation" is defined at ORS 427.005(10):
" 'Mental retardation’ means significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period. Persons of borderline intelligence may be considered mentally retarded if there is also serious impairment of adaptive behavior. Definitions and classifications shall be consistent with the Manual on Terminology and Classification in Mental Retardation of the American Association on Mental Deficiency, 1977 Revision. Mental retardation is synonymous with mental deficiency.”
"Significantly subaverage” is defined at ORS 427.005(14):
" 'Significantly subaverage’ means a score on a test of intellectual functioning that is two or more standard deviations below the mean for the test.”
"Adaptive behavior” is defined at ORS 427.005(1):
" 'Adaptive behavior’ means the effectiveness or degree with which an individual meets the standards of personal independence and social responsibility expected for age and cultural group.”
The formal standards of the American Association on Mental Deficiency manual, attached as an appendix to appellant’s brief, were not included as part of the trial record below. However, from the psychologists’ testimony we discern that the "significantly subaverage” level referred to by the statute is interpreted to mean an IQ test score of below 67 on the Stanford-Binet test, or 69 on the Wechsler Adult Intelligence Scale. In addition, both the statute and the AAMD guidelines provide that persons with IQs up to ten points above these levels may be so impaired in their adaptive behavior that they can be classified as mentally retarded. There was testimony that no one with an IQ over 77 could be classified as mentally retarded.
Since both parties agree appellant’s adaptive behavior is significantly impaired because of her physical disabilities, the crucial issue is whether there is clear and convincing evidence that her level of intellectual functioning places her within the levels of mental retardation.
Dr.
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ROBERTS, J.
This is the first appeal brought under Oregon’s newly revised mental retardation commitment statute, ORS 427.005 et seq. (Oregon Laws 1979, c. 683). It involves a challenge by a 22 year-old woman, a resident of Fairview Training Center since the age of nine, to the institution’s continuing legal ability to confine her.
Appellant is deaf. Because of cerebral palsy she is confined to a wheelchair, which she is able to propel with her feet. She communicates by means of sign language and an electronic communication board. Though she can feed herself and, to some extent, dress herself, because of her physical disability she needs assistance with personal hygiene, meal preparation and most movements. The parties do not disagree that appellant is unable to care for her personal needs. The issue is whether, in addition, she is mentally retarded. We find that she is not.
The 1979 Legislature revamped Oregon laws relating to commitment of the mentally retarded, to provide increased protection for those who are subjected to commitment procedures. These statutes now incorporate standards and procedures for voluntary and involuntary commitments, establish "clear and convincing evidence” as the burden of proof reqúired at a commitment hearing and articulate a bill of rights for all training center residents. The statutes also restrict involuntary commitment to training centers to mentally retarded persons who, because of retardation, are either dangerous to themselves or others or unable to provide for their personal needs and are not receiving adequate care.
In addition, all involuntary commitments are limited to a period of one year, and state training centers are required each year to review the plan
of care for each resident and to certify, by "clear and convincing justification,” the resident’s eligibility and need for continued residential care.
These changes were effective October 3, 1979.
Apparently, pursuant to the annual review procedure mandated by ORS 427.020(1), appellant was evaluated sometime in the spring of 1980. The State Training Center Review Board did not approve her certification for residential care; however, the Disposition Board did not consider release to be in appellant’s best interests.
The Fairview superintendent, on March 13, 1980, initiated commitment proceedings in Marion County Circuit Court, as he was authorized to do by ORS 427.020(1).
The court then ordered an investigation pursuant to ORS 427.235(1).
A report filed with the court on April 14, 1980, recommended that appellant be
voluntarily
committed to the State Mental Health Division.
Following a hearing pursuant to ORS
427.245(1),
the court on April 18, 1980, issued a certification of mental retardation and order of commitment. Appellant assigns two errors in the issuance of this order: first, that the court erred in committing appellant to a "voluntary”
commitment, and second, that there was insufficient evidence to satisfy the requirements of ORS 427.290 in finding appellant to be mentally retarded.
Our review in commitment proceedings is
de novo. See State v. O’Neill,
274 Or 59, 545 P2d 97 (1976);
State ex rel Vandenberg v. Vandenberg,
48 Or App 609, 617 P2d 675 (1980).
We therefore examine the evidence and
draw our own conclusions as to whether the record shows by clear and convincing evidence that appellant is mentally retarded and because of retardation unable to provide for her personal needs.
"Mental retardation" is defined at ORS 427.005(10):
" 'Mental retardation’ means significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period. Persons of borderline intelligence may be considered mentally retarded if there is also serious impairment of adaptive behavior. Definitions and classifications shall be consistent with the Manual on Terminology and Classification in Mental Retardation of the American Association on Mental Deficiency, 1977 Revision. Mental retardation is synonymous with mental deficiency.”
"Significantly subaverage” is defined at ORS 427.005(14):
" 'Significantly subaverage’ means a score on a test of intellectual functioning that is two or more standard deviations below the mean for the test.”
"Adaptive behavior” is defined at ORS 427.005(1):
" 'Adaptive behavior’ means the effectiveness or degree with which an individual meets the standards of personal independence and social responsibility expected for age and cultural group.”
The formal standards of the American Association on Mental Deficiency manual, attached as an appendix to appellant’s brief, were not included as part of the trial record below. However, from the psychologists’ testimony we discern that the "significantly subaverage” level referred to by the statute is interpreted to mean an IQ test score of below 67 on the Stanford-Binet test, or 69 on the Wechsler Adult Intelligence Scale. In addition, both the statute and the AAMD guidelines provide that persons with IQs up to ten points above these levels may be so impaired in their adaptive behavior that they can be classified as mentally retarded. There was testimony that no one with an IQ over 77 could be classified as mentally retarded.
Since both parties agree appellant’s adaptive behavior is significantly impaired because of her physical disabilities, the crucial issue is whether there is clear and convincing evidence that her level of intellectual functioning places her within the levels of mental retardation.
Dr. Fuller, a psychologist specializing in work with the deaf and multihandicapped, was asked by Fairview to provide a psychological evaluation of appellant. He testified that based on the intelligence tests he administered, his estimate of her IQ was 69 to 8.3, and that those scores were, if anything, low.
Dr. Fuller stated unequivocally that while appellant was retarded adaptively, he did not believe she was retarded intellectually. He also stated that, in his view, her inability to care for herself stemmed from physical deficiencies and not intellectual ones.
The only other psychologist to testify was Dr. Hay-don, a Fairview unit director, who prepared appellant’s psychological summary review for the hearing. He did not administer any tests to appellant. He testified his appraisal of her was based on a review of her test performances and adaptive functions over the years and his five years of personal observation of her at Fairview. Dr. Haydon testified he felt Dr. Fuller’s IQ estimates were probably very good, but because he felt appellant was adaptively very
retarded, he used the AAMD’s "ten-point spread” to bring her within an "overall” diagnosis of retardation. Most importantly, however, Dr. Haydon admitted his conclusions were at least partially based on a concern that appellant would not receive proper care outside Fairview. He testified thát he could not reach a decision as to appellant’s retardation independent of her physical condition and that her inability to develop appropriate social skills had been "compromised” by 13 years of institutionalization and lack of educational opportunities.
Reviewing this record, we find not only a lack of clear and convincing evidence that appellant is mentally retarded, but clear evidence to the contrary, i.e., that she does not meet the statutory standard required for involuntary commitment. Under ORS 427.290 the court is required to find four things:
(1) A significantly subaverage general intellectual functioning;
(2) A concurrent deficit in adaptive behavior;
(3) That these two deficiencies were first manifested in the time period before the 18th birthday;22 and
(4) That
because
of intellectual and adaptive deficiencies the person is either dangerous to himself or others or unable to care for his or her personal needs. The evidence before us shows conclusively only that appellant is a physically disabled individual whose intelligence level, which is perhaps subaverage, is difficult to measure. We conclude that the order for her commitment as a retarded person was in error for two reasons. First, the only evidence of appellant’s IQ indicated a low estimate of between 69 and 83, which places her level of intellectual functioning above the AAMD’s "retarded” classification. Both psychologists agreed these estimates were accurate. According to Dr. Fuller, appellant was not retarded; according to Dr. Haydon, she was retarded only by invoking the AAMD’s ten-point leeway allowed for persons with a serious impairment of adaptive behavior. "Clear and convincing evidence” requires that truth of the facts asserted be highly
probable.
Johnson v. Wilson,
276 Or 69, 554 P2d 157 (1976); McCormick, Evidence 796 § 340, (2d ed E. Cleary) (1972). The state has not shown that it is highly probable appellant demonstrates significantly subaverage intellectual functioning.
Second, there is no evidence at all to indicate appellant is unable to provide for her personal needs
because
of mental retardation. The evidence indicates she is unable to care for herself because of physical deficiencies, not intellectual ones. This requirement of ORS 427.290, added by the 1979 Legislature, was a significant change in the requirements for involuntary commitment. The statute no longer authorizes institutionalization on the sole basis that a person meets the AAMD’s definition of "mentally retarded”; or because a person is unable to properly care for his or her own personal needs. The new statute requires that these factors exist concurrently to justify involuntary civil commitment to a mental institution and that inability to provide for one’s personal needs must arise out of the mental retardation. It is not sufficient that this inability arises from some independent source, such as physical disability. The state has failed to meet its burden of proof and the order of commitment is reversed.
Reversed.