State v. Lott

122 P.3d 97, 202 Or. App. 329, 2005 Ore. App. LEXIS 1373

• Court: Court of Appeals of Oregon
• Decided: October 26, 2005
• Docket: 30-03-18791; A122880
• Status: Published

Opinions

BREWER, C. J.

The trial court committed appellant to the custody of the Mental Health Division after finding that, because of a mental disorder, she was dangerous. to others. ORS 426.005(l)(d)(A). Appellant argues that the state did not carry its burden for involuntary commitment. On de novo review, State v. Miller, 198 Or App 153, 155, 107 P3d 683 (2005), we affirm.

We review the facts as they existed on the date of the commitment hearing. Id. The state sought to commit appellant after she fired a gun into the wall that divided her apartment from that of her neighbors. At the commitment hearing, two mental health professionals testified that appellant suffered from a mental disorder and, as a result, posed a danger to others.

The first, Dr. Walker, a psychiatrist, diagnosed appellant as suffering from a “psychotic disorder not otherwise specified.” She testified that appellant’s mental disorder caused appellant to have “paranoid concerns, fears, [and] ideas” or “paranoid ideation” and eventually led appellant to fire the gun into the apartment wall. Walker expressed concern that appellant “continue [d] to lack the insight into the implications of discharging a weapon in the community.” That concern about appellant’s continued lack of insight appears to have formed the basis for Walker’s opinion that appellant posed a danger to others. Walker also testified that appellant had improved since discharging the gun and being hospitalized. She opined that, if appellant were to continue to take her medication and undergo outpatient therapy, she could be returned to “a previous level of functioning where she would no longer pose a danger to others.” In Walker’s opinion, however, appellant had not yet reached that level. Walker stated that, although appellant had improved and had less paranoid ideation, appellant nonetheless remained a danger to others. Walker also opined that appellant should not be released from the hospital without “clarification of her outpatient plan.” Walker recommended a structured treatment program that would be monitored by Department of Human Services (DHS).

Another medical professional to testify was Ivan Sumner, a certified mental health investigator. He, too, testified that appellant suffered from a mental disorder that caused her to be suspicious of others, which led to the incident with the gun. Sumner shared Walker’s concern that appellant lacked insight into why she fired the gem and into the danger of doing so. He further testified that, during both the precommitment investigation and his interview with appellant on the morning of the hearing, appellant claimed that she did not remember firing the gun. Sumner also agreed with Walker that appellant “still carries the basic suspicious and paranoid feelings about the next door neighbors” that led her to fire the gun into the wall of her apartment.

Sumner also described the likely result of appellant being committed. He testified that, if appellant were committed, she would probably be required to undergo treatment on an outpatient basis and might be able to undergo that treatment in Texas, where her mother and other family members resided.¹ Sumner’s report, which the court admitted into evidence for its relevance for diagnostic purposes, included medical records from appellant’s involuntary prehearing period of detention. Among those records was an involuntary hold form stating that appellant told a mental health worker during her detention that the Veterans Administration previously had advised her to consult with a psychiatrist but she had not done so.²

Jessica Danford, a registered nurse, testified that appellant had taken her medication while in the hospital but that she was noncompliant with hospital privilege rules and had been manipulative.

Appellant also testified at the hearing. Although she did not expressly acknowledge that she had fired a gun, she did attempt to justify such an action:

“And my intention wasn’t to point a gun at either one of [her neighbors], it’s just that evening someone threw something at my door. It sounded like a rock. Okay? But I didn’t even open my door for that. And then again that evening— this is all happening in one day. And then that evening, I heard somebody knock at my door. And I went to the door, and I looked through the peephole, and I asked: Who is it? They would not respond.

“But this description that I gave dispatch, and I did call 911, matches the description of the gentleman who lives next door to me: Dark-haired male, slender build, about 150, 160 pounds. That’s not my imagination, that’s exactly how my neighbor looks. Okay? So I did all the right things.

“And I’m a single woman living by myself. Are you trying to tell me I do not have the right to protect myself?”

Appellant also stated, “But I am not at all opposed to having therapy. A couple of times a week I feel I need to get some of these issues resolved and off my mind.” In addition, appellant testified that she would move to Texas to be near her mother and other family members who could help her obtain therapy.

Appellant’s mother also testified about appellant’s prospect of obtaining treatment. She said that appellant could return to Texas and five with her until she could locate a home for appellant. She further testified that appellant has the financial resources to afford private treatment and told the court that she would help appellant obtain treatment.

In addition to testimony, the trial court considered the report of the mental health examiner whom the court appointed to evaluate appellant. In his report, the examiner concluded that, because appellant had improved since the incident with the gun and no longer had access to the gun, she no longer posed a danger to others. The examiner stated that he was not convinced that appellant was earnest in her assertion that she would participate in treatment, but that “she seemed to be trying to cooperate.” At the hearing, the trial court asked the examiner whether he believed that appellant was subject to commitment. The examiner replied:

“Well, with the caveats we discussed, assuming that she follows through with those. I’m kind of swayed, you know, either way. I mean, if she was refusing, I would say she would be subject to commitment. It’s that issue of whether she’s voluntary or not.”

In his report, the examiner made the following recommendations:

“Continued brief inpatient treatment with outpatient treatment and counseling. Evaluate the role her mother plays in her life. Try to motivate her to make friends and have a social life and meaningful activities.”

After considering the evidence, the trial court found that appellant suffered from a mental disorder and that, as a result of that disorder, she was dangerous to others. The court also found that appellant “is able to take care of herself but she is not receiving such care as is necessary without our intervention.” The court committed appellant to the custody of DHS. Finally, the court added:

“Now, that doesn’t mean that [DHS] cannot facilitate her move to Texas if that’s what you think’s appropriate. I have now put the case in your hands and what you do with it is up to you. But this does maintain at least some hold over her to ensure that she follows through with what they’re planning.

“And if that means communicating with the mental health people in Texas to aid in monitoring that’s — I have no position on that whatsoever.”

On appeal, appellant does not challenge the determination that she has a mental disorder. Instead, she argues that the state did not produce clear and convincing evidence that she is dangerous to others and that she will not participate in treatment on a voluntary basis. We address each of her arguments in turn.

The state had the burden to prove by clear and convincing evidence that appellant was either a danger to herself or others or was unable to care for her basic needs and was not receiving such care. See ORS 426.005 (defining mentally ill person); ORS 426.130(l)(b) (stating the clear and convincing evidence standard for a court’s determination of mental illness). In determining whether a person poses a danger to others, it is appropriate for a court to consider the testimony of mental health experts, the person’s past acts, and the person’s apparent condition at the time of the hearing. Miller, 198 Or App at 158; State v. Furnish, 86 Or App 194, 197, 738 P2d 607 (1987).

Appellant asserts that, because the state relied on her past act — firing a gun into her neighbors’ wall — to establish that she was dangerous, the evidence in this case resembles the evidence we found insufficient in State v. Lucas, 31 Or App 947, 571 P2d 1275 (1977). In Lucas, we held that, if the state relies on a past violent act to establish that a person remains a danger to himself or others at the time of the hearing, the state must show that the act “clearly forms the foundation for a prediction of future dangerousness [.]” Id. at 950. In that case, the state argued that the appellant posed a danger to himself because he had attempted suicide. However, the appellant’s physicians did not testify that the appellant’s suicidal behavior was likely to be repeated, and there was no other testimony that attempted to predict the appellant’s future conduct. As a result, we held that the state had failed to prove that the appellant’s attempted suicide formed the foundation for a prediction of future dangerousness and, therefore, had failed to meet its burden to prove that element. Id. at 951.

We agree with appellant that, as in Lucas, the state relied on appellant’s past conduct to demonstrate future dangerousness. In contrast to Lucas, however, here the state showed that appellant’s act of firing the gun “clearly forms the foundation for a prediction of future dangerousness.” Two mental health experts testified that appellant still harbored the paranoid fears that led her to fire the gun. Both testified that she lacked insight into the dangerous nature of her conduct. Because the paranoid fears that led appellant to commit a violent act remained present, both experts were able to predict that appellant would again become violent. As a result, both opined that appellant remained a danger to others.

Appellant’s condition at the time of the hearing reinforces that conclusion. She stated that her conduct was justified because someone threw what sounded like a rock at her door and, later, someone knocked at her door. She maintained that she had done “all the right things” and that she had “the right to protect herself.” Appellant’s testimony confirms that she lacked insight into the danger of firing a gun at the wall of a neighboring apartment.

In sum, the testimony of mental health experts, appellant’s past violent act, and appellant’s condition at the time of the hearing combined to constitute clear and convincing evidence that appellant was a danger to others at the time of the hearing.

We turn to appellant’s argument that the state failed to produce clear and convincing evidence that she will not participate in treatment on a voluntary basis. If a mentally ill person is willing and able to participate in treatment on a voluntary basis, and the trial court finds that the person “will probably do so,” the court must release the person and dismiss the case. ORS 426.130(1)(b)(A).³ The statute thus includes two separate requirements for release and outright dismissal of the case: “[F]irst, the ‘mentally ill person’ must be willing and able to participate in treatment on a voluntary basis; second, the court must be satisfied that the person will probably participate in voluntary treatment.” State v. Doe, 116 Or App 18, 21, 840 P2d 727 (1992) (emphasis in original). In this case, we need not detain ourselves with the issue whether appellant actually was willing and able to participate in treatment on a voluntary basis because, in any event, the evidence did not show that she probably would do so. Accordingly, we limit our focus to the latter issue.

The determination whether a mentally ill person probably will participate in treatment on a voluntary basis is a dispositional one, to be made only after the court has determined by clear and convincing evidence that the person is mentally ill. State v. Brenhuber, 146 Or App 719, 722, 934 P2d 550 (1997). Contrary to appellant’s premise, in determining whether that requirement has been satisfied, the court applies a preponderance of the evidence standard of proof, not a clear and convincing evidence standard. State v. Rainbolt, 184 Or App 661, 57 P3d 902 (2002). We note that, in Rainbolt, we appear to have assumed that the state has the burden of proof as to whether a person found to be mentally ill is or is not “willing and able to participate in treatment on a voluntary basis.” Id. at 662. We do not find it necessary to consider, in the present case, whether we were correct in so allocating the burden of proof in Rainbolt because, regardless of which party had the burden of proof on the matter, a preponderance of the evidence in this record supports the trial court’s conclusion.

In this case, the trial court did not find that appellant probably would participate in treatment on a voluntary basis, despite her testimony that she was “not at all opposed to therapy.” To the contrary, the court found that appellant “is able to take care of herself but she is not receiving such care as is necessary without our intervention.” After making that finding, the court stated that commitment “maintain [s] at least some hold over [appellant] to ensure that she follows through with what they’re planning,” implicitly determining that appellant probably would not voluntarily participate in treatment if the case were dismissed outright.

We agree with that determination. Appellant’s testimony that she had done “all the right things” in connection with the gun incident showed a lack of insight that detracted from the probability that she would take seriously her need for treatment and follow through with it. Further, the examiner apparently was undecided whether appellant would obtain proper treatment; he recommended that appellant receive “continued brief inpatient treatment with outpatient treatment and counseling.” In addition, Walker recommended a structured treatment program that would be monitored by DHS. Appellant herself testified rather vaguely that she would not be opposed to therapy “a couple of times” per week to “get some of these issues resolved.” However, that testimony goes primarily to appellant’s willingness to participate in therapy, as provided in ORS 426.130(l)(b)(A)(i), not to the probability that she would do so, as provided in ORS 426.130(l)(b)(A)(ii). In any event, at the time of hearing, no specific plan had been developed to ensure that any treatment appellant might consider would adequately address her mental disorder. Moreover, appellant’s limited offer to participate in therapy must be viewed in the context of her previous failure to follow through with psychiatric treatment recommended by the Veterans Administration. Danford also testified that, while in prehearing detention, appellant had been noncompliant with hospital rules and manipulative.

Even though appellant’s mother testified that she would help appellant seek treatment in Texas, appellant’s relocation from Oregon and the concomitant dismissal of the case would place appellant beyond the scrutiny of mental health authorities. In that regard, we note that appellant’s mother could have sought appellant’s conditional release to her care in Texas under ORS 426.125.⁴ However, appellant’s mother made no such request. Appellant wanted only outright dismissal, a disposition that would remove her from any of the safeguards associated with conditional release or any other form of supervision.

It is understandable, on this record, that the trial court decided not to dismiss the case but, rather, kept the case open so that appellant’s treatment could be supervised if she did, in fact, move to Texas. Because the trial court had the opportunity to observe appellant’s demeanor in weighing that decision, we should accord it an additional measure of respect in conducting our de novo review. State v. Webber, 181 Or App 229, 239, 45 P3d 1046 (2002). With due regard for the entire record, and despite appellant’s testimony regarding her willingness to participate in some sort of therapy, the evidence did not establish that she probably would do so on a voluntary basis. See Doe, 116 Or App at 18 (despite appellant’s testimony that she would participate in treatment on a voluntary basis, court did not find that she was likely to do so).

We turn finally to the dissent. We agree with many of the philosophical sentiments that it expresses. In fact, our disagreement, when reduced to its core, is quite narrow. The dissent does not actually dispute our conclusions that clear and convincing evidence established that appellant had a mental disorder and was a danger to others at the time of the hearing. We disagree solely on the issue whether the evidence established that appellant probably would participate in treatment on a voluntary basis, notwithstanding her expressed willingness to do so.

Although courts must vigorously safeguard the constitutional and statutory rights of the mentally ill to be free from overzealous government interference, that duty does not require us to order the dismissal of this case. Here, for the reasons discussed, the trial court had every reason to believe that such a disposition, in conjunction with an unsupervised out-of-state move, would undermine the probability that appellant would follow through with treatment. On de novo review, we agree with that assessment.

Affirmed.

1 See State v. Hilliard, 195 Or App 538, 543, 98 P3d 767 (2004), rev den, 338 Or 16 (2005) (holding that commitment does not require a person to be placed in a hospital or approved inpatient facility and that DHS may instead place a committed person in outpatient treatment under ORS 426.127).

2 Sumner was required to include that “pertinent part of the medical record” in his precommitment investigation report. ORS 426.074(2)(c). The record was admissible on at least two bases. First, it was admissible without qualification as a medical record for the current involuntary prehearing period of detention. ORS 426.095(4)(a). Second, it also was admissible under OEC 803(4) as part of the report that was reasonably pertinent to appellant’s diagnosis or treatment. ORS 426.095(4)(d)(B); see also State v. O’Neill, 274 Or 59, 71, 545 P2d 97 (1976) (preevidence code decision upholding admission in evidence of medical records consisting primarily of statements made by appellant during prehearing detention that were admitted for diagnostic purposes).

3 ORS 426.130 provides, in part:

“(1) After hearing all of the evidence, and reviewing the findings of the examining persons, the court shall determine whether the person is mentally ill. If, in the opinion of the court, the person is:

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“(b) Mentally ill based upon clear and convincing evidence, the court:

“(A) Shall order the release of the individual and dismiss the case if:

“(i) The mentally ill person is willing and able to participate in treatment on a voluntary basis; and

“(ii) The court finds that the person will probably do so.”

4 ORS 426.125 provides:

“The following qualifications, requirements and other provisions relating to a conditional release under ORS 426.130 apply as described:

“(1) A court may only order conditional release if all of the following occur:

“(a) The conditional release is requested by the legal guardian, relative or friend of the mentally ill person.

“(b) The person requesting the conditional release requests to be allowed to care for the mentally ill person during the period of commitment in a place satisfactory to the judge.

“(c) The person requesting the release establishes all of the following to the satisfaction of the court:

“(A) Ability to care for the mentally ill person.

“(B) That there are adequate financial resources available for the care of the mentally ill person.

“(2) If the court determines to allow conditional release, the court shall order that the mentally ill person be conditionally released and placed in the care of the requester. The court shall establish any terms and conditions on the conditional release that the court determines appropriate.

“(3) Any conditional release ordered under this section is subject to the provisions under ORS 426.275.”