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March 18, 2026 Get Citation Alerts Download PDF Add Note

State v. B. W. C.

Court of Appeals of Oregon

• Citations: 347 Or. App. 755
• Docket Number: A185634
• Judges: Shorr

• Disposition: Reversed.

• Opinion

• Authorities (9)

• Cited By (0)

• Summaries (0)

• Similar Cases (14.9K)

• PDF

Disposition

Reversed.

Combined Opinion

No. 198 March 18, 2026 755

IN THE COURT OF APPEALS OF THE
STATE OF OREGON

In the Matter of B. W. C.,
a Person Alleged to have Mental Illness.
STATE OF OREGON,
Respondent,
v.
B. W. C.,
Appellant.
Multnomah County Circuit Court
24CC05325; A185634

Monica M. Herranz, Judge.
Argued and submitted January 8, 2026.
Christopher J. O’Connor argued the cause for appellant.
Also on the brief was Multnomah Defenders, Inc.
Carson L. Whitehead, Assistant Attorney General,
argued the cause for respondent. Also on the brief were
Dan Rayfield, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Shorr, Presiding Judge, Powers, Judge, and
O’Connor, Judge.
SHORR, P. J.
Reversed.
756 State v. B. W. C.
Cite as 347 Or App 755 (2026) 757

SHORR, P. J.
Appellant appeals from a judgment committing her
to the Mental Health Division for a period not to exceed 180
days. In her first assignment of error, which is dispositive,
she asserts that the trial court plainly erred by committing
her on the basis that she was unable to meet her basic needs
when she was not put on notice of that allegation.1 We con-
clude that the trial court plainly erred and that we should
exercise our discretion to correct the error. Therefore, we
reverse.
The relevant facts are undisputed and are mostly
procedural. Appellant was held on an emergency hold at
Legacy Mt. Hood on September 3, 2024. The Notification
of Mental Illness directed to the circuit court and the com-
munity mental health division states the signing doctor’s
belief that the “condition, behavior or actions exhibited by
the [appellant] that causes the undersigned to believe that
[appellant] is imminently dangerous to self or others is the
following: multiple recent ED visits, including leaving AMA;
endangers herself by wandering topless in neighborhood.”
The notice also states that the “specific indicators, symp-
toms or behaviors” that support the need for “emergency
care or treatment for mental illness” were the following:
“disoriented, disorganized statements are not reality-based,
paranoia, [and] Dx of dementia noted in chart.”
The trial court initiated a civil commitment pro-
cess and cited the appellant for a hearing. See ORS 426.090
(requiring the citation issued to “stat[e] the nature of the
information filed concerning the person and the specific rea-
sons the person is believed to have a mental illness and to
be in need of treatment”).2 The citation states, in part, that
“an investigation has been conducted pursuant to ORS
426.070. Following the investigation, the court concluded
there is probable cause to believe you are a mentally ill
1
Based on our disposition of the first assignment of error, we need not reach
the second assignment in which appellant contends that the trial court erred by
finding that she has a mental disorder which caused her to be unable to provide
for her basic needs.
2
ORS 426.090 was amended since the hearing. Or Laws 2025, ch 559, § 11.
However, the amendment does not affect our analysis, and we refer to the current
version of the statute.
758 State v. B. W. C.

person. The nature of the information filed concerning you
and the specific reasons you are believed to be mentally
ill are described in a copy of the notice of mental illness,
attached hereto and by this reference made a part hereof.”
The citation and notice of mental illness were served on
appellant on September 9, 2024, and the hearing began less
than 20 hours later, on September 10.3
At the beginning of the hearing, the trial court
informed appellant of her rights. Neither party made an
opening statement. The court admitted certain exhib-
its and heard testimony from Carter, a psychiatric nurse
practitioner who had been treating appellant in the hospi-
tal. Appellant was asked questions by the examiner and by
her attorney. In its closing argument, the state argued that
appellant was unable to provide for her basic needs due to
her mental disorder. Appellant’s attorney argued that the
state had failed to prove by clear and convincing evidence
that appellant met the standard for civil commitment and
requested that the case be dismissed and appellant be
released from the hospital.
The trial court determined that appellant suffered
from a mental disorder and that because of the mental
disorder, she was unable to provide for her own basic per-
sonal needs. The court also determined that appellant was
“either unable or unwilling to participate in treatment on
a voluntary basis” and committed her. Appellant timely
appealed.
On appeal, appellant contends that the citation and
attached notice did not refer to the “basic needs” prong of
the statute as a basis for commitment and were therefore
deficient. Appellant acknowledges that she did not preserve
her argument below and requests plain error review. In her
view, the error is plain under our recent decision in State v.
T. L., 346 Or App 414, ___ P3d ___ (2026). The state agreed
at oral argument that the facts here are remarkably similar
to those in T. L.; however, the state urges us not to exercise
our discretion to correct any error.
3
The return of service indicates that appellant was served on September 9,
2024, with copies of the notice of mental illness, warrant of detention, advice of
rights, investigation report, citation, and order for citation.
Cite as 347 Or App 755 (2026) 759

We note that T. L. was issued on the day before oral
argument of this matter. Each party filed a memorandum
of additional authorities that same afternoon to alert us of
that decision’s application to this case. Although T. L. was
issued after the civil commitment proceeding and right
before oral argument in this appeal, we determine error,
including plain error, based on the law existing at the time
of the appeal. See State v. Jury, 185 Or App 132, 136, 57 P3d
970 (2002), rev den, 335 Or 504 (2003) (“Error apparent on
the face of the record is merely a subspecies of error gener-
ally. Error, in general, must be determined by the law exist-
ing at the time the appeal is decided, and not as of the time
of trial.”). Thus, T. L. applies to this case.
An error is plain when the legal point is obvious
and not reasonably in dispute and the error is apparent
on the record without having to choose among competing
inferences. State v. Vanornum, 354 Or 614, 629, 317 P3d 889
(2013). We agree with appellant that the error here is plain
under T. L. In that case, which was in a preserved posture,
the citation that was issued under ORS 426.090 contained
the same language as the citation here: “The nature of the
information filed concerning you and the specific reasons
you are believed to be mentally ill are described in a copy
of the notice of mental illness, attached hereto and by this
reference made a part hereof.” 345 Or App at 416 (emphasis
omitted). In addition, the notice that was attached to the
citation stated that “the above-named person is dangerous
to self or others because the person exhibits the following:
* * * [Patient] has not been eating or drinking for 3 days,
off psych medications for a month, brought in by Project
Respond for mental decompensation, unable to care for self
at this time.” Id. at 415-16 (brackets in original; emphases
omitted). That is, the notice contained a reference to danger
to self or others, but not to an inability to meet basic needs.
The trial court found that the appellant was unable
to meet her basic personal needs due to a mental disorder and
committed her on that basis. Id. at 417. We concluded that
“the citation provided insufficient notice because it failed
to adequately identify the theory on which appellant was
760 State v. B. W. C.

believed to be a person with mental illness” and explained
that
“a minimum requirement for adequate notice is that the
citation ‘reveal a theory of commitment—whether appel-
lant was a danger to herself, a danger to others, or unable
to meet her basic needs’—so that the allegedly mental ill
person ‘know[s] what to expect at the hearing [and] how to
defend their liberty.’ ”
Id. at 420-21 (quoting State v. B. L. W., 335 Or App 639, 641,
560 P3d 766 (2024); brackets in T. L.). We likewise conclude
that the citation here did not notify appellant that she was
believed to be unable to provide for her basic personal needs
due to a mental disorder.
The parties acknowledge that our plain-error
inquiry does not end there. We must also consider whether
the error was harmless and, if not harmless, we must decide
whether to exercise our discretion to correct it. In State v.
Ortiz, 372 Or 658, 672, 554 P3d 796 (2024) the Supreme
Court explained that “[t]o reverse based on an unpreserved,
plain error, the court must, in addition to determining that
the error was not harmless, consider the factors that are
relevant to the court’s exercise of discretion” to correct the
error. We consider, among other things, “the competing
interests of the parties; the nature of the case; the gravity of
the error; the ends of justice in the particular case; how the
error came to the court’s attention; and whether the policies
behind the general rule requiring preservation of error have
been served.” Ailes v. Portland Meadows, Inc., 312 Or 376,
382 n 6, 823 P2d 956 (1991).
The state argues that we should affirm despite any
plain error. In B. L. W., a case in which we exercised our dis-
cretion to correct a procedural error when the appellant had
inadequate prehearing notice, we explained that “the state’s
failure to comply with the statutory and constitutional notice
requirement is reversible error ‘unless the record allows for
the affirmative inference that the appellant waived the pro-
cedural protection at issue or, alternatively, received a func-
tionally equivalent protection in a different form.’ ” 335 Or
App at 641 (quoting State v. T. C., 327 Or App 558, 563, 536
P3d 591 (2023), rev den, 371 Or 825 (2024)). Here, the state
Cite as 347 Or App 755 (2026) 761

asserts that any error in the citation is harmless. It points
out that appellant was served with the investigator’s report
on September 9 prior to the hearing, and in that report, the
investigator reported that, in her opinion, there was prob-
able cause to believe that appellant had a mental disorder
and was unable to provide for her basic personal needs and
was not receiving such care as was necessary for her health
or safety. According to the state, that investigator’s report
was a functionally equivalent process—it provided actual
notice that a basic needs theory was going to be at issue at
the hearing.4 Appellant asserts that the mandatory proce-
dural rights established by the legislature in the civil com-
mitment chapter must be strictly honored and that without
strict adherence to the statutes and protections of the stat-
utes, the civil commitment scheme is a violation of a number
of fundamental state and constitutional rights, beginning
with an improper restriction on liberty.
We are not persuaded by the state’s argument that
the fact that appellant was served with the investigator’s
report before the hearing provided a functionally equiva-
lent protection of her due process rights. As we explained in
T. L.,
“ ‘when the state seeks to deprive a person of their liberty
through the civil commitment process, the Due Process
Clause of the Fourteenth Amendment to the United States
Constitution requires, among other things, that the state
provide prehearing notice to the person “of the specific
issues the person must meet.”’ State v. B. L. W., 335 Or App
639, 640, 560 P3d 766 (2024) (quoting State v. T. C., 327
Or App 558, 562, 536 P3d 591 (2023), rev den, 371 Or 825
(2024)). In Oregon, ORS 426.090 ‘implements that consti-
tutional right,’ conferring upon the allegedly mentally ill
person ‘a right to prehearing, in-person, written notice of a
proposed civil commitment proceeding, including the spe-
cific reasons for it.’ Id. (internal quotation marks omitted).”
T. L., 346 Or App at 418-19 (brackets omitted). As noted
above, the citation here, issued under ORS 426.090, stated
that “the specific reasons you are believed to be mentally
4
We do not understand the state to contend that appellant waived the pro-
cedural protection at issue, and in any event, the record would not allow for such
an inference.
762 State v. B. W. C.

ill are described in a copy of the notice of mental illness,
attached hereto and by this reference made a part hereof.”
Appellant was entitled to rely on that notice and not have to
discern whether another document she was provided with
that contained different information had the more accurate
information. We note that this case is unlike State v. V. L.,
341 Or App 774, 575 P3d 215 (2025), in which we concluded
that “ORS 426.090 allows for a citation that incorporated by
reference an attached investigation report.” Id. at 778. Here,
the investigator’s report was not referred to in the citation,
nor incorporated by reference.
Having concluded that the procedural error here
was not harmless, we exercise our discretion to correct the
plain error as we have done in other cases where there has
been insufficient prehearing notice for a civil committee.
The reasons we do so are the same as we expressed in T. C.:
“We therefore exercise our discretion to correct it for all
of the same reasons we have done so in our prior cases:
‘the nature of civil commitment proceedings, the relative
interests of the parties in those proceedings, the gravity
of the violation, and the ends of justice.’ State v. S. J. F.,
247 Or App 321, 325, 269 P3d 83 (2011). As discussed, civil
commitment proceedings deprive an individual of physi-
cal and reputational liberty. The violation—deprivation of
in-person prehearing notice—was grave, and appellant did
not waive that right. In our view, the ends of justice war-
rant its correction.”
327 Or App at 571.
Reversed.