State v. Tardanico

849 P.2d 564, 119 Or. App. 166, 1993 Ore. App. LEXIS 544

• Court: Court of Appeals of Oregon
• Decided: March 31, 1993
• Docket: 920195084; CA A73397
• Status: Published

Opinion

PER CURIAM

Appellant appeals an order finding her to be a mentally ill person and committing her to the Mental Health Division for treatment because she is unable to care for her basic needs and is not receiving such care as is necessary for her health and safety. ORS 426.005(2)(b). We review de novo to determine if there is clear and convincing evidence that she is mentally ill. ORS 426.130. In the light of the facts that appellant earns income from rental property, has a job, and has a plan for where she will live in the future, the evidence offered by the state does not meet that standard.

Also, we consider whether appellant is mentally ill because she is a danger to others. ORS 426.005(2)(a). There is evidence that appellant has been hospitalized previously because of “violent and intrusive behavior.” Although prior commitments are relevant, there must be evidence that the past violent behavior that led to those commitments clearly forms a foundation for predicting future dangerousness. State v. Jepson, 48 Or App 411, 416, 617 P2d 284 (1980). The only other evidence of potential dangerousness is that the police responded to a call and removed appellant from her mother’s home. That evidence¹ is insufficient to meet the requisite standard of proof.

Reversed.

1 Appellant testified that she called the police because her mother’s arm was black and had a welt on it. Her mother testified that the police were called because appellant thought they were both sick with colds. Appellant’s mother said that appellant grabbed her arm out of frustration and “tickled [her] hands and pulled, is all.” She also said that she did not feel that appellant posed a danger to her.