Matter of Howell
This text of 633 P.2d 14 (Matter of Howell) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
This is an appeal from an order declaring petitioner to be a mentally ill person and committing him to the custody of the Oregon Mental Health Division. Petitioner assigns as errors the finding by the trial court that he is a mentally ill person as defined in ORS 426.005(2) 1 and the finding that he was not willing and able to participate in treatment on a voluntary basis as described in ORS 426.130(1). 2 In our de novo review, State v. O’Neill, 274 Or 59, 545 P2d 97 (1976), we conclude the evidence is insufficient to establish that petitioner is a mentally ill person.
The notice of mental illness which was signed by petitioner’s mother and sister alleges that petitioner "is dangerous to himself and others” for the reason that "[he] walked into a State office building and began going through the papers in the file cabinets and use [sic] the phone. He had no permission to do so.”
One of the examiners was a medical doctor who is licensed to practice medicine and surgery and the other examiner was a mental health professional recommended by the Mental Health Division to examine persons alleged to be mentally ill. Both examiners concluded petitioner has a mental disorder and is not able to provide for his basic personal needs and is not now receiving such care as is necessary for his health and safety. The examiners differed, however, on whether petitioner is "dangerous to himself or others,” one concluding that he is and the other that he is not.
Petitioner is 27 years old; he graduated from high school and has 90 hours of community college credits. *614 Petitioner has been committed on previous occasions 3 and has had "mental or emotional” problems since the age of twelve. As to the incident in the state employment office, petitioner testified that he had worked in that office six years before doing charity work and that he had wanted to put a telephone number or address in an index. He apparently believed the office was still being used for the same purpose as when he worked there. Petitioner’s mother works at the office, and when she told him he should not be going through the files and using the phone he left the office.
Petitioner is a church member and is obviously zealous in his religious beliefs. He used language during the hearing that is ordinarily only used in religious communications and which was inappropriate for the occasion. At one point he took a Bible from his pocket and read briefly from it. The family difficulties about which petitioner, his mother and sister all testified have arisen partially from petitioner’s religious beliefs, that is, his attempts to impose certain behavior on his family in the name of religion. For example, petitioner’s mother testified, "[H]e related to me that if I didn’t do as he wished me to do, and [his sister] also, that we wouldn’t live through the day. Now, he wasn’t threatening me with physical harm from him. The Lord was going to strike me dead.” The pertinent excerpts from the transcript are set out in the margin. 4
*616 The only other evidence of significance is on the question of whether petitioner is able to care for himself. He had worked as a salesman for a Shell Oil Company products distributor at Biggs Junction. He had been receiving unemployment compensation while remaining in that area and had reapplied for unemployment compensation after returning to his home in Roseburg. He testified that he expected to receive unemployment benefits again. His mother, however, testified that petitioner had received notice that he would not receive any further unemployment compensation. At the time of the hearing petitioner was living at a "mission” which apparently provides for persons needing a temporary place to stay. Petitioner’s mother said it was too disruptive for petitioner to stay at her home.
We conclude that the evidence in this record is inadequate to support a commitment. The only evidence as to whether petitioner is a danger to himself is that set out above from the transcript; it does not support a finding that he is a danger to himself. The only evidence, other than that already related, that petitioner is a danger to others is his sister’s testimony that petitioner shook his fist at her and told her God had told him that she should find work elsewhere. The mother also testified that petitioner physically picked her up and put her on the porch and told her that God did not want her to garden that day. It appears from the transcript that the mother had with her notes her son had written to her. Apparently, the trial court examined those notes but they were not admitted into evidence and we do not know what they contained.
The physician examiner diagnosed petitioner’s condition as "schizophrenia, paranoid.” We said in State v. Jepson, 48 Or App 411, 617 P2d 284 (1980):
"In addition to evidence of a mental disorder, ORS 426.005(2) requires clear and convincing evidence that as a *617 result of the disorder, the individual is either a danger to himself or others or unable to provide for his basic personal needs. ORS 426.005(2); ORS 426.130; State v. Allmendinger, 36 Or App 381, 584 P2d 773 (1978); State v. Lucas, 31 Or App 947, 951, 571 P2d 1275 (1977).” 48 Or App at 415.
Clear and convincing evidence is "evidence that is of extraordinary persuasiveness.’ ” Pantano v. Obbiso, 283 Or 83, 87, 580 P2d 1026 (1978). Because we are not persuaded that the evidence presented proves petitioner is dangerous to himself or others or that he is unable to provide for his basic personal needs, we reverse the trial court.
Reversed.
ORS 426.005(2) provides:
" 'Mentally ill person’ means a person who, because of a mental disorder, is either:
"(a) Dangerous to himself or others; or
"(b) Unable to provide for his basic personal needs and is not receiving such care as is necessary for his health or safety.”
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Cite This Page — Counsel Stack
633 P.2d 14, 53 Or. App. 611, 1981 Ore. App. LEXIS 3228, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matter-of-howell-orctapp-1981.