Matter of Heintz , 26 Or. App. 935 ( 1976 )

SLOAN, S. J.

This is an appeal from a determination that appellant is a mentally ill person. The basic assignment of error is the lack of sufficient evidence to justify the finding of mental illness.

The court did not find appellant to be dangerous to herself or others, ORS 426.005(2)(a). The court did find that she was unable to provide for her basic needs and is not receiving such care as is necessary for her health and safety. ORS 426.005(2)(b).

The evidence consisted of the testimony of appellant’s mother who, with her husband, had executed the affidavit which initiated these proceedings, and an examining physician and a nonmedical examiner. The latter’s qualifications are not disclosed. ORS 426.110. There was some limited testimony by appellant’s teenage son.

The substance of testimony which could be interpreted as indicating dangerousness is found in the following testimony of appellant’s mother:

"Well, she’s made threats to her husband who she is no longer living with, they’re separated. She’s inquired how she could find a gun. She called me on the telephone and said that if I did not do something to help her I would have a dead daughter, which I would indicate in my thinking she was thinking perhaps of suicide.”

The mother also testified that on one occasion appellant had twisted her own teenage daughter’s arm. Appellant’s explanation of the desire for a gun was that she liked to hunt and engage in target practice. She believably stated that she considered herself a good hunter and marksman. She claimed she had grabbed her daughter’s arm, not twisted it. Appellant and her husband apparently engaged in frequent aggravating conduct. Neither examiner found her to be dangerous. We agree with the lower court that the element of dangerousness was not proven beyond a reasonable doubt.

The evidence in regard to appellant’s ability to care for herself can be summarized as follows: The hearing took place on May 3, 1976. There was evidence that appellant had worked as a supervisor of medical records at a clinic of some unidentified kind until the previous February 17. She had quit her job because of tensions created by her husband. Appellant had been unemployed since February and, presumably, had no income. A dissolution proceeding was pending at the time of this hearing. There was independent evidence in support of appellant’s statements that her husband made threats of violence. Appellant was seeking unemployment benefits but was receiving none at the date of the hearing. She did not want welfare.

The evidence about appellant’s living conditions and appellant’s personal care for herself came from the mother. The mother testified that she had been gone during the "winter months.” Upon her return home she became concerned about appellant’s financial condition because appellant was unemployed; that appellant had discontinued taking prescribed medication; that appellant had difficulty in obtaining food; and that appellant’s apartment was disorderly. It appeared from the mother’s testimony that the lack of sufficient food and the use of a bathtub for washing clothes was caused by lack of money, not because appellant was incapable of caring for herself. The mother testified that appellant selected her own clothing, dressed and groomed herself and could have driven her own car to the hearing.

When the examining physician was asked why he had concluded that appellant could not care for herself, he responded:

"The factor that she states she has no finances to provide such, the factor that she would not have had food for the last three or four days if her mother had not provided it. The factor that she has unpaid bills. The factor that she’s made no adequate plan for her financial status, the factor that she quit her job and hasn’t in the last, let’s see, ten weeks, except for a gesture of applying for unemployment a week ago, has made no provision for the future.

"The factor that she has governed and discontinued medications without medical advice and that she states she has physical problems which need care but is absolutely non specific as far as these are concerned and I take it to mean, and she did say, she just needed a physical exam but had no specific complaints why she needed it other than her dental condition.”

Appellant had testified that she had discontinued the mentioned medication because the combination of the medicine and the tensions created by her husband gave her ill effects that she disliked. She also testified that she did not want to go on welfare and was seeking unemployment benefits instead. This may not have been a correct choice but it is a legitimate one.

The examiners acknowledged that, from their observations, there was no indication of malnutrition, ill health, poor dress or other outward indication of poor care. Her response to the questions put to her by the examiners demonstrated no lack of alertness or understanding.

As indicated, appellant wanted to avoid receiving welfare benefits. Appellant was not asked if she would then cooperate in a volunteer program of any kind.

The record in this case provides the same reasons for reversal as that found in State v. O'Neill, 274 Or 59, 545 P2d 97 (1976). The statement in the O'Neill case that the present statute "as well as O’Connor v. Donaldson, [422 US 563, 95 S Ct 2486, 45 L Ed 2d 396 (1975)], require more than shown by the testimony elicited in this case” (274 Or at 68-69) is appropriate to the instant case.

Reversed and remanded.