State v. J. B.

354 April 2, 2025 No. 274

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

In the Matter of J. B.,

a Person Alleged to have Mental Illness.

STATE OF OREGON,

Respondent,

v.

J. B.,

Appellant.

Clackamas County Circuit Court

24CC00615; A183528

Cody M. Weston, Judge.

Submitted December 19, 2024.

Liza Langford filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Jona J. Maukonen, Assistant Attorney

General, filed the brief for respondent.

Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce,

Judge.

AOYAGI, P. J.

Affirmed.

Cite as 339 Or App 354 (2025) 355

AOYAGI, P. J.

Appellant appeals a judgment of civil commitment.

The trial court found appellant to be unable to meet her

basic needs due to a mental disorder, specifically neurocog-

nitive disorder with behavioral disturbances. Appellant con-

tends that the trial court erred, because her condition does

not qualify as a “mental disorder” for civil commitment pur-

poses. The state responds that, regardless of whether neuro-

cognitive disorder alone would qualify, appellant’s condition

qualifies because of the associated behavioral disturbances.

For the reasons explained below, we affirm.

FACTS

We state the facts “consistently with the trial

court’s express and implied findings” from the commitment

hearing on February 2, 2024.1 State v. B. B., 240 Or App 75,

77, 245 P3d 697 (2010) (internal quotation marks and cita-

tions omitted). In this case, those findings were based on the

testimony of appellant and four other witnesses: Dr. Ronald

Spangler, a psychiatrist who had treated appellant in the

hospital for three days; Don Glenn, an adult protective ser-

vices specialist with Department of Human Services; Paige

Cordell, the mental health investigator; and Al Belais, the

mental health examiner.

Appellant is an 81-year-old woman. She suffers from

a number of medical conditions, including acute and chronic

congestive heart failure, extremity edema, hypertension,

and diabetes. On January 20, 2024, appellant called 9-1-1

due to difficulty breathing. When she arrived at the hospi-

tal, she was given oxygen for her breathing and provided

wound care for blisters on her legs that had been caused

by warming her legs in the oven because she lacked heat

in her home. In addition to her medical issues, appellant’s

care team had concerns about her mental health. Appellant

initially scored 8 out of 30 on the Saint Louis University

Mental Status (SLUMS) evaluation, with anything under 20

being evidence of cognitive impairment. She scored better

when given the evaluation a second time, indicating mild to

moderate cognitive impairment.

1

Appellant has not requested de novo review under ORAP 5.40(8)(C), nor do

we choose to provide it.

356 State v. J. B.

According to testimony at appellant’s commitment

hearing, the term “neurocognitive disorder” was adopted

a little over a decade ago in the Diagnostic and Statistical

Manual of Mental Disorders (5th ed 2013) (DSM-5).

“Dementia” is an “older term” and is “what major neurocog-

nitive disorder was in the DSM-IV, which is the previous

edition.” Neurocognitive disorder is “[e]ssentially” the same

as dementia but “incorporates more things than necessar-

ily just the term dementia.” Neurocognitive disorder can

be diagnosed as “major” or “mild.” It also can be “with” or

“without” behavioral disturbances. Examples of behavioral

disturbances include psychosis, depression, and mania,

which may be caused by Alzheimer’s disease, vascular dis-

ease, Huntington’s disease, Lewy Body dementia, or the like.

Neurocognitive disorder is not curable but can be managed,

and medication can help slow the progression. Whether

major or mild, neurocognitive disorder is a mental health

diagnosis, not a developmental or intellectual disability. It

is usually “gradual and insidious” in onset.

Here, multiple witnesses agreed that appellant

has neurocognitive disorder, although its severity had

not yet been established. Spangler testified that his “best

assessment” was that appellant’s impairment is related to

Alzheimer’s disease, which is the “most common,” but, given

her improvement in the hospital, he had not yet decided

whether appellant has major or mild neurocognitive dis-

order. Cordell testified that appellant was “probably more

appropriate for major,” given the severity of her adaptive

functioning challenges, but was not definitive. Based on

reviewing the records and interviewing appellant imme-

diately before the hearing, Belais’s “diagnostic impression”

of appellant was “Moderate Neurocognitive Disorder, with

behavioral disturbance, secondary to dementia as indicated

by impaired cognitive functioning, evidenced by score in

dementia range on [SLUMS] exam of 8/30.”2

2

Both Spangler and Cordell testified that neurocognitive disorder can be

diagnosed as “major” or “mild,” which is consistent with the DSM-5. See DSM-5

at 603, 605 (allowing for neurocognitive disorder to be diagnosed as major or

mild, depending on the amount of cognitive decline). Belais’s diagnosis appears

to refer to major neurocognitive disorder of moderate degree. See id. at 605 (pro-

viding that major neurocognitive disorder may be further classified as severe,

Cite as 339 Or App 354 (2025) 357

The difficulties that appellant experiences as a

result of neurocognitive disorder include difficulty with com-

plex attention, that is, maintaining focus when more than

one thing is happening in her environment; executive dys-

function, which contributes to her difficulty managing her

house; learning and memory issues, such as repeatedly hav-

ing the same conversation and not recalling people’s names,

how long ago something happened, or what she did a week

earlier; speech issues, such as repetition and trouble with

words; judgment deficits in social cognition; and perceptual

motor issues, such as appearing to shuffle when walking.

Medication can help with some of those symptoms.

Appellant’s neurocognitive disorder is “with behav-

ioral disturbances,” specifically paranoia, which is a psy-

chotic symptom.3 Spangler described appellant’s paranoia as

“a general distrust and suspicion about various people,” and

he gave examples of appellant making potentially paranoid

statements (unspecified) about a neighbor and about her

daughter’s partner. While hospitalized, appellant had taken

a few doses of an antipsychotic medication on an as-needed

basis, which were “helpful,” and a consulting psychiatrist

had recommended putting her on an antipsychotic.

Glenn testified to having a 45-minute conversa-

tion with appellant in the hospital, then visiting her house.

Appellant acknowledged to Glenn that there were rats in

the house, that there were holes in the floors (and that she

had fallen into a hole at least once), that there was no work-

ing furnace, that the refrigerator and other appliances did

not work, and that she did not have any fresh food and had

been eating rotten food from the cabinets. In their conver-

sation, appellant was clearly able to “identify the neglect

in the home,” but it was unclear that she understood the

related risks. She also did not seem to recognize safe versus

moderate, or mild, depending on the degree of impairment to activities of daily

living).

3

In its briefing, the state describes appellant’s behavioral disturbances as

“including paranoia and delusions.” However, after the mental health investiga-

tor described what a behavioral disturbance “can look like,” she was asked specif-

ically what it looked like “[i]n this particular instance,” and she answered, “So in

this particular instance, um, that would be the psychotic symptoms of paranoia.”

No one contradicted that testimony or provided evidence that appellant was dis-

playing other “behavioral disturbances.”

358 State v. J. B.

unsafe choices—such as putting on more clothes when cold,

instead of putting her legs in the oven, or finding alterna-

tive shelter when the temperature dropped extremely low,

instead of staying in her freezing house, or arranging for

food delivery, instead of eating rotten food. When he visited

the house, Glenn found overflowing rooms that lacked clear

pathways, holes in the floors and ceilings, rodent droppings

everywhere (including in the kitchen and appellant’s bed-

room), a very dirty kitchen, an empty refrigerator, and a

very strong odor of urine that could have been caused by the

rats or by the two cats living in the house. Given the state of

the home, Glenn did not think it advisable for appellant to

return home.

The trial court found appellant to be unable to meet

her basic needs due to a mental disorder. Specifically, it

found that she has neurocognitive disorder with behavioral

disturbances, “at least” mild in severity, which caused her to

be unable to meet her basic needs, particularly her need to

live in a home that was physically safe.

ANALYSIS

A person may be involuntarily committed under

ORS 426.130 only if the person is determined to be a “person

with mental illness.” ORS 426.130(1)(a)(C). A person with

mental illness includes a “person who because of a mental

disorder is * * * [u]nable to provide for basic personal needs

that are necessary to avoid serious physical harm in the

near future, and is not receiving such care as is necessary

to avoid such harm.” ORS 426.005(1)(f)(B). The state bears

the burden of proof. ORS 426.130(1)(a).

On appeal, appellant does not dispute that she can-

not meet her basic needs, but she contends that the trial

court erred in finding that that inability is caused by a

mental disorder. She argues that Alzheimer’s disease does

not qualify as a “mental disorder” for purposes of ORS

426.005(1)(f). In response, the state takes no position on

whether Alzheimer’s disease qualifies as a mental disorder.

It argues that “the trial court did not find that appellant

had Alzheimer’s disease” and that Alzheimer’s “would not

account for appellant’s paranoia.” In the state’s view, the

Cite as 339 Or App 354 (2025) 359

record supports appellant having a “broader neurocogni-

tive disorder with behavior disturbances” that qualifies as

a mental disorder, regardless of whether Alzheimer’s would

qualify as a mental disorder.

In reviewing a judgment of civil commitment, we

“view the evidence, as supplemented and buttressed by per-

missible derivative inferences, in the light most favorable

to the trial court’s disposition and assess whether, when so

viewed, the record was legally sufficient to permit that out-

come.” State v. M. A., 276 Or App 624, 625, 371 P3d 495

(2016) (internal quotation marks omitted). To the extent

that questions of statutory construction arise, “the intended

meaning of a statute is a question of law.” DCBS v. Muliro,

359 Or 736, 742, 380 P3d 270 (2016). We decide such ques-

tions by examining the text, context, and legislative history

of the provision at issue. State v. Gaines, 346 Or 160, 171-73,

206 P3d 1042 (2009); see also Strasser v. State of Oregon, 368

Or 238, 260, 489 P3d 1025 (2021) (recognizing that, in con-

struing statutes, our analysis is not limited by the parties’

arguments).

As a preliminary matter, we agree with the state

that the relevant diagnosis for purposes of our analysis is

neurocognitive disorder with behavioral disturbances, not

Alzheimer’s disease. We understand the evidence to be that

Alzheimer’s disease is the most likely cause of appellant’s

neurocognitive disorder, if only because it is generally the

“most common” known cause, but that appellant’s actual

diagnosed condition is neurocognitive disorder with behav-

ioral disturbances.

We disagree, however, with any suggestion by the

state that we can focus on appellant’s “behavioral distur-

bances” and thus avoid deciding whether neurocognitive

disorder—including that caused by Alzheimer’s or other

dementia diseases—qualifies as a “mental disorder” for civil

commitment purposes. The only behavioral disturbance

that appellant was identified to have was paranoia, mani-

festing as “a general distrust and suspicion about various

people.” There was some minimal evidence that appellant’s

paranoia might contribute somewhat to her difficulty man-

aging home repairs, including her self-reported negative

360 State v. J. B.

interactions with contractors and handymen, but not to the

point of supporting a commitment based on paranoia alone.

Rather, we understand the trial court to have viewed appel-

lant’s neurocognitive disorder, which causes symptoms such

as executive dysfunction, as critical to its determination

that appellant had a mental disorder that made her unable

to meet her basic needs. Accordingly, we cannot accept the

state’s invitation to focus on appellant’s paranoia and thus

avoid deciding the question whether neurocognitive disorder

is a “mental disorder” for civil commitment purposes.

Turning to that question, “mental disorder” is not

defined in the civil commitment statutes, see ORS 426.005,

so whether neurocognitive disorder qualifies as a “mental

disorder” presents a question of statutory construction. We

therefore begin by examining the text—which, in this case,

proves to be all that we have to work with, as nothing in the

statutory context sheds any light on whether the legislature

intended “mental disorder” to encompass neurocognitive

disorder, nor are we aware of anything useful in the legisla-

tive history on that point. Cf. State v. Smith, 71 Or App 205,

208, 692 P2d 120 (1984) (“Mental disorder is not defined by

the statute, nor is it clarified by the legislative history of

ORS 426.005.”). So, the text it is.

The text is “mental disorder.” When the legislature

uses technical terminology from a specialized field, “we look

to the meaning and usage of those terms in the discipline

from which the legislature borrowed them.” Comcast Corp.

v. Dept. of Rev., 356 Or 282, 296, 337 P3d 768 (2014). In State

v. A. B. K., 323 Or App 246, 249, 522 P3d 894 (2022), we

recently treated “mental disorder” in ORS 426.005(1)(f) as

such a term and, accordingly, looked to the DSM-5 to help

understand its meaning. The DSM-5 provides:

“A mental disorder is a syndrome characterized by clini-

cally significant disturbance in an individual’s cognition,

emotion regulation, or behavior that reflects a dysfunc-

tion in the psychological, biological, or developmental pro-

cesses underlying mental functioning. Mental disorders

are usually associated with significant distress or disabil-

ity in social, occupational, or other important activities.

An expectable or culturally approved response to a com-

mon stressor or loss, such as the death of a loved one, is

Cite as 339 Or App 354 (2025) 361

not a mental disorder. Socially deviant behavior (e.g., polit-

ical, religious, or sexual) and conflicts that are primarily

between the individual and society are not mental disor-

ders unless the deviance or conflict results from a dysfunc-

tion in the individual, as described above.”

DSM-5 at 20.

In A. B. K., we concluded that, even though autism

spectrum disorder comes within the DSM-5’s “broad defi-

nition” of “mental disorder,” the Oregon legislature did not

intend it to be considered a “mental disorder” for civil com-

mitment purposes. 323 Or App at 253. We reached that

conclusion based on “the context provided by related stat-

utes—viz., ORS chapter 427, ORS 426.701”—and prior case

law interpreting them, particularly State v. H. L. C., 318 Or

App 449, 507 P3d 346 (2022). Id. In short, we concluded that

the legislature had clearly signaled its intent that intellec-

tual and developmental disabilities be addressed separately

from “mental disorders” by enacting separate legislation

to address people with those types of disabilities. Id. That

led us to hold that the legislature “did not intend to treat a

developmental disability such as autism spectrum disorder

as a mental disorder in ORS chapter 426.” Id.

Appellant in this case suggests that neurocognitive

disorder should be treated analogously to autism spectrum

disorder. She describes Alzheimer’s disease as a “progres-

sive degenerative brain disorder”; argues that the legisla-

ture did not intend to “lump in the elderly suffering with

Alzheimer’s with those suffering from a mental disorder”;

and points to the guardianship statutes as providing an

appropriate means to help people who are mentally inca-

pacitated by Alzheimer’s. See ORS 125.005(5) (defining

“incapacitated” as “a condition in which a person’s ability to

receive and evaluate information effectively or to communi-

cate decisions is impaired to such an extent that the person

presently lacks the capacity to meet the essential require-

ments for the person’s physical health or safety”).

We are unpersuaded. Beginning with the guard-

ianship issue, we agree with the trial court that, in this sit-

uation, “it’s [not] one or the other.” That is, nothing in the

guardianship statutes suggests to us that the possibility of

362 State v. J. B.

a guardianship was meant to preclude civil commitment.

In A. B. K., we viewed “the organization of ORS chapters

426 and 427” as signaling the legislature’s intention to treat

people with intellectual disabilities differently from people

with mental illness, both generally and with respect to com-

mitment, in that “ ‘ORS chapter 426 applies to persons with

mental illness and nowhere uses the term intellectual dis-

ability, while ORS chapter 427 applies to persons with an

intellectual or developmental disability and nowhere uses

the term mental illness or mental disorder,’ ” and in that

ORS 427.290 “outlines commitment procedures for a person

with an intellectual disability.” 323 Or App at 252 (quoting

H. L. C., 318 Or App at 453).

Whereas ORS chapter 427 is specifically directed

to people with intellectual disabilities, the guardianship

statutes are of general application, such that they may be

applied to people with neurocognitive disorders but are not

specifically directed to that group of people. Eligibility for

guardianship is based on impairment of “a person’s ability

to receive and evaluate information effectively or to com-

municate decisions”—a definition that applies broadly, not

only to people suffering from neurocognitive disorders. ORS

125.005(5). In short, appellant’s analogy does not hold; we

cannot infer from the existence of the guardianship statutes

that the legislature intended to exclude neurocognitive dis-

orders from “mental disorder.”

Of course, that alone does not answer the question

whether neurocognitive disorder is a “mental disorder.”

Nor does existing case law answer that question. In State

v. C. K., 300 Or App 313, 314, 316, 451 P3d 243 (2019), we

affirmed a judgment civilly committing a person who had

both depressive disorder and “major neurocognitive disor-

der”; however, it was “undisputed” that the appellant had

a “mental disorder,” so C. K. is of no precedential value on

that point. In State v. S. T., 294 Or App 683, 684, 686, 432

P3d 378 (2018), we reversed a judgment civilly committing

a person who suffered from “a form of dementia that causes

delusions, behavioral changes, and personality changes”;

however, we did so because the evidence was insufficient to

Cite as 339 Or App 354 (2025) 363

establish an inability to meet basic needs, so S. T. too lacks

precedential value as to the issue at hand.

Unaided by existing case law, we turn to the

DSM-5 and the World Health Organization’s International

Classification of Diseases (ICD). See Smith, 71 Or App at

210 (considering the DSM-III and the ICD in addressing

whether alcoholism qualifies as a “mental disorder” for civil

commitment purposes); but see also A. B. K., 323 Or App at

249 (recognizing that “inclusion of a particular condition in

the DSM-5” is relevant but not determinative as to whether

it qualifies as a mental disorder for civil commitment).

The DSM-5 describes “neurocognitive disorder” as

“the group of disorders in which the primary clinical deficit

is in cognitive function, and that are acquired rather than

developmental. Although cognitive deficits are present in

many if not all mental disorders (e.g., schizophrenia, bipo-

lar disorders), only disorders whose core features are cog-

nitive are included in the [neurocognitive disorder (NCD)]

category. The NCDs are those in which impaired cognition

has not been present since birth or very early life, and thus

represents a decline from a previously attained level of

functioning.”

DSM-5 at 591. The ICD similarly describes neurocognitive

disorder:

“Neurocognitive disorders are characterised by primary

clinical deficits in cognitive functioning that are acquired

rather than developmental. That is, neurocognitive disor-

ders do not include disorders characterised by deficits in cog-

nitive function that are present from birth or that typically

arise during the developmental period, which are classified

in the grouping neurodevelopmental disorders. Rather, neu-

rocognitive disorders represent a decline from a previously

attained level of functioning. Although cognitive deficits are

present in many mental disorders (e.g., schizophrenia, bipo-

lar disorders), only disorders whose core features are cogni-

tive are included in the neurocognitive disorders grouping.

In cases where the underlying pathology and aetiology for

neurocognitive disorders can be determined, the identified

aetiology should be classified separately.”

364 State v. J. B.

World Health Organization, ICD-11 for Mortality and

Morbidity Statistics, available at https://icd.who.int/browse/

2024-01/mms/en#213458094 (last accessed March 4, 2025).

The DSM-5 and ICD definitions of neurocognitive

disorder are consistent with the testimony in this case,

including in establishing that neurocognitive disorder is a

mental health diagnosis and not a developmental or intel-

lectual disability. They support the conclusion that neuro-

cognitive disorder is a “mental disorder” for purposes of the

civil commitment statutes. Moreover, unlike the situation in

A. B. K., nothing in the statutory context or in the legisla-

tive history of which we are aware suggests that the legisla-

ture intended otherwise.

Accordingly, we conclude that the trial court did

not err in concluding that appellant has a “mental disorder”

under ORS 426.005(1)(f)(B). Appellant does not contest that

she was unable to meet her basic needs as a result of her

disorder, so that conclusion resolves the only disputed issue

in the case.

Affirmed.