State v. R. E. G.

364 P.3d 733, 275 Or. App. 239, 2015 Ore. App. LEXIS 1489
CourtCourt of Appeals of Oregon
DecidedDecember 9, 2015
DocketM3318; A151899
StatusPublished

This text of 364 P.3d 733 (State v. R. E. G.) 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.

Bluebook
State v. R. E. G., 364 P.3d 733, 275 Or. App. 239, 2015 Ore. App. LEXIS 1489 (Or. Ct. App. 2015).

Opinion

SERCOMBE, R J.

Appellant appeals an order committing him to the custody of the Department of Human Services (DHS) as a person with an intellectual disability, which caused him to be dangerous to others and unable to provide for his basic personal needs as necessary for his health, safety, and habilitation. ORS 427.215.1 Appellant contends that the state failed to conduct an adequate diagnostic evaluation of him during the precommitment investigation. Because of that, appellant claims that the trial court erred in issuing a trial citation without the necessary prerequisites and in committing him without an adequate record. We agree with appellant and, accordingly, reverse and remand the order of commitment.

THE COMMITMENT PROCESS

A brief description of the intellectual disability commitment process provides the necessary context for our evaluation of appellant’s claims. Under ORS 427.235(1), if two persons file a sworn notice with the circuit court setting forth “the facts sufficient to show the need for investigation” that a person “has an intellectual disability and is in need of commitment for residential care, treatment and training,” the court must then “forward notice to the community development disabilities program director in the county,” who then “shall immediately investigate to determine whether the person has an intellectual disability and [242]*242is in need of commitment.” ORS 427.235(3), whose meaning is the core of the present dispute, specifies the nature of that investigation:

“Any investigation conducted by the community developmental disabilities program director or the designee of the director under subsection (1) of this section shall commence with an interview or examination of the person alleged to have an intellectual disability, where possible, in the home of the person or other place familiar to the person. Further investigation if warranted shall include a diagnostic evaluation as defined in ORS 427.105 and may also include interviews with the person’s relatives, neighbors, teachers and physician. The investigation shall also determine if any alternatives to commitment are available. The investigator shall also determine and recommend to the court whether the person is incapacitated and in need of a guardian or conservator.”2

The investigation report “shall be submitted to the court” and a “copy of the investigation report and diagnostic evaluation, if any, shall also be made available to * * * the person alleged to have an intellectual disability * * * as soon as possible after its completion but in any case prior to a [commitment] hearing.” ORS 427.235(4).

Under ORS 427.245(1), following receipt of the investigation report, if the court concludes that there is probable cause to believe that the subject of the investigation has an intellectual disability and a need for commitment for residential care, treatment, and training, the court issues a citation requiring the alleged intellectually disabled person to appear at a hearing. ORS 427.245(2) elaborates on the procedural significance of that citation:

“Upon a determination under subsection (1) of this section that probable cause exists to believe that the person has an intellectual disability and is in need of commitment for residential care, treatment and training, the court shall cause a citation to issue to the person or, if the person is a [243]*243minor or incapacitated, to the parent or legal guardian of the person. The citation shall state the specific reasons the person is believed to be in need of commitment for residential care, treatment and training. The citation shall also contain a notice of the time and place of the commitment hearing, the right to legal counsel, the right to have legal counsel appointed if the person is unable to afford legal counsel, the right to have legal counsel appointed immediately if so requested, the right to subpoena witnesses in behalf of the person to testify at the hearing, the right to cross-examine all witnesses and such other information as the court may direct. * * * The community development disabilities program director or the designee of the director shall advise the person of the purpose of the citation and the possible consequences of the proceeding.”

Under ORS 427.265, when the person alleged to be intellectually disabled is brought before the court, the court must advise that person of the nature of the proceedings and of that person’s rights to counsel and to subpoena witnesses.

ORS 427.270(1) provides that the “examining facility conducting the diagnostic evaluation shall make its report in writing to the court.” If the report shows an intellectual disability and the need of commitment for care, treatment, and training, the report “shall include a recommendation as to the type of treatment or training facility most suitable for the person” and whether the person would cooperate with and benefit from voluntary treatment or training. Id. ORS 427.285 sets out that

“[t]he investigator and other appropriate persons or professionals as necessary shall appear at the hearing and present the evidence. The person alleged to have an intellectual disability and to be in need of commitment for residential care, treatment and training shall have the right to cross-examine all witnesses, the investigator and the representative.”

Following the hearing, if, “in the opinion of the court the person has, by clear and convincing evidence, an intellectual disability and is in need of commitment for residential care, treatment and training” (the “commitment determinations”), the court may order voluntary treatment or an involuntary commitment for a period not to exceed one year. ORS 427.290. As noted, the commitment determinations [244]*244involve (1) a medical determination of intellectual disability (both intellectual functioning and adaptive behavior) “as measured by a qualified professional,” ORS 427.005(10)(a); (2) a determination of the need for commitment for residential care, treatment, and training, with the need established by findings of a danger to self or others, or an inability to provide for basic personal needs, ORS 427.215

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Gaines
206 P.3d 1042 (Oregon Supreme Court, 2009)
State v. Neal
946 P.2d 367 (Court of Appeals of Oregon, 1997)
Portland General Electric Co. v. Bureau of Labor & Industries
859 P.2d 1143 (Oregon Supreme Court, 1993)
State v. Allison
877 P.2d 660 (Court of Appeals of Oregon, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
364 P.3d 733, 275 Or. App. 239, 2015 Ore. App. LEXIS 1489, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-r-e-g-orctapp-2015.