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PUBLISHED IN PART. DO NOT CITE UNPUBLISHED PORTION. SEE GR 14.1(a).
Court of Appeals Division II
State of Washington
Opinion Information Sheet
| Docket Number: |
41584-4 |
| Title of Case: |
In Re The Detention Of M.k. |
| File Date: |
04/10/2012 |
SOURCE OF APPEAL
----------------
| Appeal from Pierce County Superior Court |
| Docket No: | 09-6-01144-3 |
| Judgment or order under review |
| Date filed: | 11/15/2010 |
| Judge signing: | Honorable David Harry Johnson |
JUDGES
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| Authored by | Marywave Van Deren |
| Concurring: | Lisa Worswick |
| David H. Armstrong |
COUNSEL OF RECORD
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Counsel for Appellant(s) |
| | Lise Ellner |
| | Attorney at Law |
| | Po Box 2711 |
| | Vashon, WA, 98070-2711 |
Counsel for Respondent(s) |
| | Katy Anne Hatfield |
| | WA State Attorney General's Office |
| | Po Box 40124 |
| | Olympia, WA, 98504-0124 |
|
| | Robert Andrew Antanaitis |
| | Attorney General of Washington |
| | 7141 Cleanwater Drive Sw |
| | Po Box 40124 |
| | Olympia, WA, 98504-0124 |
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Detention of: No. 41584-4-II
M.K.,
Respondent, PART PUBLISHED OPINION
Van Deren, J. -- MK1 appeals a trial court order involuntarily committing him to Western
State Hospital (WSH) for up to 180 days of mental health treatment, asserting that substantial
evidence does not support the determination that he is gravely disabled and the resulting
commitment order. The State responds that MK's appeal is moot because the period of
commitment under the challenged order has expired. Alternatively, the State responds that
substantial evidence supported the trial court's involuntary commitment order. Because an
involuntary commitment order has collateral consequences for future commitment determinations,
we hold that MK's appeal is not moot. Additionally, because the trial court's sparse findings do
not support the trial court's determination that MK is gravely disabled, we vacate the involuntary
commitment order.
1 Under Court of Appeals Division Two General Order 1992-3, the clerk shall recaption an appeal
from an involuntary commitment proceeding by using the subject's initials instead of name.
No. 41584-4-II
FACTS
After his arrest on September 18, 2009, for criminal trespass and obstructing a police
officer, MK was involuntarily detained at WSH for a 14-day mental health evaluation and for
involuntary mental health treatment under RCW 71.05.310 and .320. WSH staff determined that
MK suffered from schizoaffective disorder bipolar type and that he exhibited antisocial personality
traits. Following an interim 90-day commitment, on January 4, 2010, the superior court
committed MK for 180 days of involuntary mental health treatment at WSH under RCW
71.05.320, concluding that MK met RCW 71.05.020(17)'s definition of "gravely disabled."
Clerk's Papers (CP) at 35. MK stipulated to the trial court's January 4 involuntary commitment
order.
On June 14, 2010, WSH staff members Gregory Kramer, PhD, and Lanna Moore-Duncan,
MD, filed a petition to involuntarily commit MK for an additional 180 days under chapter 71.05
RCW. On August 4, 2010, WSH staff members Joseph Wainer, MD, and Walter Tunstall, PhD,
filed an amended petition to involuntarily commit MK for 180 days under the same statute. The
June 14 and August 4 petitions alleged that MK was gravely disabled and that, as a result of his
mental disorder, he continued to present a likelihood of serious harm. The petitions further
alleged that "no less restrictive alternatives to detention" were in MK's best interests because he
"require[d] intensive, supervised 24-hour restrictive care." CP at 38, 48.
The trial court held a hearing on the involuntary commitment petitions on November 15,
2010, under chapter 71.05 RCW. It concluded that MK was gravely disabled and, on November
15, ordered an additional 180 days of involuntary commitment to WSH for further treatment.2
2 The trial court referred to the legal conclusion of grave disability as a finding. We treat
incorrectly labeled findings as conclusions of law if they resolve the ultimate issue. Inland
2
No. 41584-4-II
Other than a brief jurisdictional statement, the entirety of the trial court's brief findings of fact
state:
Findings: The Court finds by o a preponderance of the evidence
x clear, cogent and convincing evidence
that the Respondent:
When petition was filed, seemed to be responding to internal stimuli, impulsive,
grandiose themes, threatening to peers went on unauthorized leave. Assaultive on
return, impaired judgment [and] insight, continues with grandiose themes,
intrusive, rambling speech.
Diagnosis: Schizoaffective Disorder Bipolar type . . . Antisocial Personality traits
And that, as a result of a mental disorder, the Respondent presents:
o a likelihood of serious harm to others;
o a likelihood of serious harm to self;
x is gravely disabled;[3]
o was taken into custody after having been determined incompetent
pursuant to RCW 10.77 and has committed acts constituting a felony
(although criminal charges have been dismissed) and as a result of a
mental disorder, presents a substantial likelihood of repeating similar acts.
Foundry Co. v. Dep't of Labor & Indus., 106 Wn. App. 333, 340, 24 P.3d 424 (2001).
3 Although denoted as a finding of fact, because this is a legal conclusion regarding the ultimate
issue, we treat it as the trial court's conclusion. Inland Foundry, 106 Wn. App. at 340. The form
employed at the commitment hearing erroneously labels the grave disability conclusion as a fact
and labels the subsequent order of commitment as the conclusion of law. Confusion about
whether the trial court's rulings on grave disability are findings of fact or conclusions of law is
understandable, given our Supreme Court's interchangeable reference to the rulings as a finding
and a conclusion in In re Det. of LaBelle, 107 Wn.2d 196, 728 P.2d 138 (1986). See, e.g.,
LaBelle at 208 (emphasis added) ("whether there was sufficient evidence in each of the cases to
support the trial court's finding that appellants were gravely disabled"); LaBelle at 209 (emphasis
added) ("trial court's findings of 'grave disability'"); LaBelle at 214 (emphasis added) ("the trial
court concluded that Richardson was gravely disabled"); LaBelle at 215 (emphasis added) ("trial
court's findings"); LaBelle at 219 (emphasis added) ("The findings do not indicate the factual
bases for the trial court's ultimate conclusion of grave disability."); LaBelle at 220 (emphasis
added) ("At the very least, the findings should indicate the factual basis underlying the court's
conclusion that a person is 'gravely disabled.'"). Because whether someone is gravely disabled
is the ultimate issue to be determined, it is properly denoted a conclusion of law. Clear, cogent
and convincing evidence means "the ultimate fact in issue must be shown by evidence to be
'highly probable.'" In re Welfare of Sego, 82 Wn.2d 736, 739, 513 P.2d 831 (1973) (emphasis
added) (quoting Supove v. Densmoor, 225 Or. 365, 372, 358 P.2d 510 (1961)).
3
No. 41584-4-II
Less Restrictive Alternatives: Less Restrictive Alternatives to involuntary
detention
o are
x are not in the best interests of the Respondent or others.
CP at 66.
The conclusions of law state, "The Respondent shall be detained for involuntary
treatment or shall be treated under less restrictive alternatives per the Order Detaining
Respondent below." CP at 67. The trial court concluded that the evidence was not clear,
cogent, and convincing that MK presented a danger to others.
MK timely appeals the involuntary commitment order based on grave disability.
ANALYSIS
Mootness
As an initial matter, the State asserts that we should decline to review the trial court's
November 15 180-day involuntary commitment order because MK's commitment period under
the challenged order has expired and, thus, his appeal from the order is moot. Because an
involuntary commitment order may have adverse consequences on future involuntary commitment
determinations, we disagree and address MK's appeal on the merits.4
Generally, we will dismiss an appeal where only moot or abstract questions remain or
where the issues the parties raised in the trial court no longer exist. Norman v. Chelan County
Pub. Hosp. Dist. No. 1, 100 Wn.2d 633, 635, 673 P.2d 189 (1983). An appeal is moot where it
4 We may also address moot issues "if it involves matters of continuing and substantial public
interest." In re Det. of Swanson, 115 Wn.2d 21, 24, 793 P.2d 962 (1990). Our Supreme Court
has held that "'the need to clarify the statutory scheme governing civil commitment is a matter of
continuing and substantial public interest.'" LaBelle, 107 Wn.2d at 200 (quoting Dunner v.
McLaughlin 100 Wn.2d 832, 838, 676 P.2d 444 (1984)). Thus, we could address MK's appeal
on the merits under this measure as well.
4
No. 41584-4-II
presents merely academic questions and where this court can no longer provide effective relief.
See, e.g., In re Cross, 99 Wn.2d 373, 376-77, 662 P.2d 828 (1983). An individual's release from
detention does not render an appeal moot where collateral consequences flow from the
determination authorizing such detention. See, e.g., Born v. Thompson, 154 Wn.2d 749, 762-64,
117 P.3d 1098 (2005); Monohan v. Burdman, 84 Wn.2d 922, 925, 530 P.2d 334 (1975). In the
case of civil commitments under chapter 71.05 RCW, the trial court is directed to consider, in
part, a history of recent5 prior civil commitments, thus, each order of commitment entered up to
three years before the current commitment hearing becomes a part of the evidence against a
person seeking denial of a petition for commitment. RCW 71.05.245. Accordingly, each
commitment order has a collateral consequence in subsequent petitions and hearings, allowing us
to render relief if we hold that the detention under a civil commitment order was not warranted.
The legislature's use of "recent history evidence" to support involuntary commitments
appears to begin with our Supreme Court's decision in In re Det. of LaBelle, 107 Wn.2d 196, 206-
207, 728 P.2d 138 (1986), which held:
By permitting intervention before a mentally ill person's condition reaches crisis
proportions, [former] RCW 71.05.020(1)(b) [(1979)] enables the State to provide
the kind of continuous care and treatment that could break the cycle and restore
the individual to satisfactory functioning. Such intervention is consonant with one
of the express legislative purposes of the involuntary treatment act, which is to
"provide continuity of care for persons with serious mental disorders". [Former]
RCW 71.05.010(4) [1973].
LaBelle also provided careful guidelines for the kind of evidence that can be used to show
that a person is gravely disabled:
[W]hen the State is proceeding under the gravely disabled standard of [former]
RCW 71.05.020(1)(b), it is particularly important that the evidence provide a
5 Under RCW 71.05.245, "'recent'" history of prior commitments "refers to the period of time
not exceeding three years prior to the current hearing."
5
No. 41584-4-II
factual basis for concluding that an individual "manifests severe [mental]
deterioration in routine functioning." Such evidence must include recent proof of
significant loss of cognitive or volitional control. In addition, the evidence must
reveal a factual basis for concluding that the individual is not receiving or would
not receive, if released, such care as is essential for his or her health or safety.
107 Wn.2d at 208 (some alteration in original). Additionally, In Re Meistrell, 47 Wn.App. 100,
108, 733 P.2d 1004 (1987) held that recent past mental history is relevant in determining present
and immediate future mental behavior.
In response to LaBelle and Meistrell, in 1997, the legislature made significant changes to
chapter 71.05 RCW, including clarifying its intent regarding a trial court's consideration of prior
involuntary commitments in making an involuntary commitment decision:
It is the intent of the legislature to enhance continuity of care for persons with
serious mental disorders that can be controlled or stabilized in a less restrictive
alternative commitment. Within the guidelines stated in [LaBelle], the legislature
intends to encourage appropriate interventions at a point when there is the best
opportunityto restore the person to or maintain satisfactory functioning.
For persons with a prior history or pattern of repeated hospitalizations or
law enforcement interventions due to decompensation, the consideration of prior
mental history is particularly relevant in determining whether the person would
receive, if released, such care as is essential for his or her health or safety.
Therefore, the legislature finds that for persons who are currently under a
commitment order, a prior history of decompensation leading to repeated
hospitalizations or law enforcement interventions should be given great weight in
determining whether a new less restrictive alternative commitment should be
ordered.
RCW 71.05.012 (emphasis added.); see Final B. Rep. on Substitute S.B. 5562, 55th Leg., Reg.
Sess. (Wash. 1997); see also In re Det. of C.K., 108 Wn. App. 65, 71-73, 29 P.3d 69 (2001).
As part of the major overhaul of chapter 71.05 RCW, in 1997, the legislature
commissioned a task force on mentally ill offenders that issued recommendations and the
legislature made another round of sweeping amendments to the statute in 1998 and 1999 based on
6
No. 41584-4-II
those recommendations, including adopting former RCW 71.05.245 (1998), which stated:
In making a determination of whether there is a likelihood of serious harm in a
hearing conducted under RCW 71.05.240 or 71.05.320, the court shall give great
weight to [any evidence before the court regarding][6] whether the person has: (1)
A recent history of one or more violent acts; or (2) a recent history of one or more
commitments under this chapter or its equivalent provisions under the laws of
another state which were based on a likelihood of serious harm. The existence of
prior violent acts or commitments under this chapter or its equivalent shall not be
the sole basis for determining whether a person presents a likelihood of serious
harm.
(Emphasis added.) See Final B. Rep. on Second Substitute S.B. 6214, 55th Leg. Reg.
Sess. (Wash 1998).
In 2010, the legislature amended the statute again to its current form, which now includes
the grave disability language (effective Jan. 1, 2012). Laws of 2010, ch. 280, §§ 3, 5, at 2230-31.
RCW 71.05.245 now provides:
(1) In making a determination of whether a person is gravely disabled or
presents a likelihood of serious harm in a hearing conducted under RCW
71.05.240 or 71.05.320, the court must consider the symptoms and behavior of
the respondent in light of all available evidence concerning the respondent's
historical behavior.
(2) Symptoms or behavior which standing alone would not justify civil
commitment may support a finding of grave disability or likelihood of serious
harm when: (a) Such symptoms or behavior are closely associated with symptoms
or behavior which preceded and led to a past incident of involuntary
hospitalization, severe deterioration, or one or more violent acts; (b) these
symptoms or behavior represent a marked and concerning change in the baseline
behavior of the respondent; and (c) without treatment, the continued deterioration
of the respondent is probable.
. . . .
For the purposes of this subsection "recent" refers to the period of time not
exceeding three years prior to the current hearing.
(Emphasis added.)
6 The bracketed section was added in 1999. Laws of 1999, ch. 13, § 6, at 74.
7
No. 41584-4-II
Under these amendments, it is clear that MK's appeal of his involuntary commitment order
is not moot, despite the treatment period in the challenged order having expired, because RCW
71.05.245 requires a trial court presiding over future involuntary commitment hearings to
consider MK's symptoms or historical behavior, including previous symptoms or behaviors that
led to prior involuntarily commitment orders. And the State has filed an additional commitment
petition against MK. Here, we may provide effective relief from an expired involuntary
commitment order that was not supported by clear, cogent, and convincing evidence, by vacating
the commitment order to ensure that a trial court will not rely on it in subsequent involuntary
commitment determinations.7 Accordingly, we address the merits of MK's appeal.
A majorityof the panel having determined that only the foregoing portion of this opinion
will be printed in the Washington Appellate Reports and that the remainder shall be filed for
public record pursuant to RCW 2.06.040, it is so ordered.
Sufficiency of the Findings To Support the Conclusion of Grave Disability
MK contends that substantial evidence did not support the trial court's conclusion that he
was gravely disabled and in need of involuntary civil commitment. Where the trial court has
weighed the evidence, our review is generally "limited to determining whether substantial
evidence supports the findings and, if so, whether the findings in turn support the trial court's
conclusions of law and judgment." LaBelle, 107 Wn.2d at 209.
In general, an individual may be involuntarily committed for mental health treatment if, as
a result of a mental disorder, the individual either (1) poses a substantial risk of harm to him or
7 Such review and potential relief is available sooner for the relatively short commitment orders
through revision motions in superior court. RCW 2.24.050.
8
No. 41584-4-II
herself, others, or the property of others, or (2) is gravely disabled. LaBelle, 107 Wn.2d at 201-
202 (citing former RCW 71.05.020(1), (3), .150, .240, .280, .320). Here, the trial court indicated
that it was ordering MK's involuntary commitment solely under the gravely disabled standard.
RCW 71.05.020(17) defines "gravely disabled" as
a condition in which a person, as a result of a mental disorder: (a) Is in danger of
serious physical harm resulting from a failure to provide for his or her essential
human needs of health or safety; or (b) manifests severe deterioration in routine
functioning evidenced by repeated and escalating loss of cognitive or volitional
control over his or her actions and is not receiving such care as is essential for his
or her health or safety.
RCW 71.05.020(17) provides two alternative definitions for "gravely disabled," but the trial court
did not indicate which definition it relied on in issuing its involuntary commitment order.
Accordingly, we address whether clear, cogent, and convincing evidence supported the trial
court's conclusion that MK was "gravely disabled" under either definition.8
A. RCW 71.05.020(17)(a)
When proceeding under the first definition of "gravely disabled," RCW 71.05.020(17)(a),
a petitioner
must present recent, tangible evidence of failure or inability to provide for such
essential human needs as food, clothing, shelter, and medical treatment which
presents a high probability of serious physical harm within the near future unless
adequate treatment is afforded. Furthermore, the failure or inability to provide for
these essential needs must be shown to arise as a result of mental disorder and not
because of other factors.
8 MK suggests that this court need not address whether substantial evidence supports the
conclusion that MK was gravely disabled under RCW 71.05.020(17)(a), because the trial ruled
that the petitioners failed to prove by clear, cogent, and convincing evidence that MK was a
danger to others. But RCW 71.05.020(17)(a) does not address whether an individual subject to
involuntary commitment is a danger to others but, rather, addresses whether the individual is a
danger to themselves as a result of a failure to provide for his or her essential human needs.
Accordingly, we address whether the trial court's findings support a conclusion that MK is
"gravely disabled" under RCW 71.05.020(17)(a).
9
No. 41584-4-II
LaBelle, 107 Wn.2d at 204-205.9 But here, the trial court's findings of fact do not address
whether the evidence was clear, cogent, and convincing that MK "[i]s in danger of serious
physical harm resulting from a failure to provide for his or her essential human needs of health or
safety." RCW 71.05.020(17)(a). In the absence of any such finding, we hold that the trial court's
conclusion that MK is gravely disabled under RCW 71.05.020(17)(a) is not supported by the
findings.
B. RCW 71.05.020(17)(b).
When proceeding under the second definition of "gravely disabled," RCW
71.05.020(17)(b), a petitioner must
provide a factual basis for concluding that an individual "manifests severe [mental]
deterioration in routine functioning." Such evidence must include recent proof of
significant loss of cognitive or volitional control. In addition, the evidence must
reveal a factual basis for concluding that the individual is not receiving or would
not receive, if released, such care as is essential for his or her health or safety. It is
not enough to show that care and treatment of an individual's mental illness would
be preferred or beneficial or even in his best interests. To justify commitment,
such care must be shown to be essential to an individual's health or safety and the
evidence should indicate the harmful consequences likely to follow if involuntary
treatment is not ordered.
Furthermore, the mere fact that an individual is mentally ill does not also
mean that the person so affected is incapable of making a rational choice with
respect to his or her need for treatment. Implicit in the definition of gravely
disabled under [former] RCW 71.05.020(1)(b) is a requirement that the individual
is unable, because of severe deterioration of mental functioning, to make a rational
decision with respect to his need for treatment. This requirement is necessary to
ensure that a causal nexus exists between proof of "severe deterioration in routine
functioning" and proof that the person so affected "is not receiving such care as is
essential for his or her health or safety."
LaBelle, 107 Wn.2d at 208 (some alteration in original).
9 LaBelle addressed former RCW 71.05.020(1), which the legislature recodified at RCW
71.05.020(17) without substantive changes.
10
No. 41584-4-II
Under RCW 71.05.020(17)(b), the trial court must find
that the individual is unable, because of severe deterioration of mental functioning,
to make a rational decision with respect to his need for treatment. This
requirement is necessary to ensure that a causal nexus exists between proof of
"severe deterioration in routine functioning" and proof that the person so affected
"is not receiving such care as is essential for his or her health or safety."
LaBelle, 107 Wn.2d at 208 (quoting former RCW 71.05.020(1)(b)). The trial court's findings are
also insufficient to establish that MK is "gravely disabled" under RCW 71.05.020(17)(b).
There is no finding here establishing that MK is unable to make a rational decision with
respect for his need for treatment. Here, we are constrained to review the record before us to
ascertain whether the trial court's findings support its conclusions.10 Based the trial court's
writings and check marks on the form order, we hold that the trial court's findings do not support
the conclusion that MK is gravely disabled. Due to the brevity of the findings and the
misalignment of the conclusion of grave disabilityas a finding, the stated findings lack a nexus
between evidence of MK's mental disorder and proof that a mental disorder impairs MK's ability
to provide for his own health and safety and proof that, if released, he would not receive such care
as is essential for his own health or safety as required for involuntary commitment under RCW
71.05.020(17).
Accordingly, although it may be in M.K.'s best interests to remain at WSH for mental
health treatment, we hold that the trial court's findings to not support its conclusion that
involuntary civil commitment is essential to M.K.'s health and safety. We vacate the trial court's
10 The trial court's findings suffer from many of the problems noted in LaBelle. They are general
and descriptive of some of the testimony but without an articulated connection or nexus
establishing the factual basis underlying its conclusion that MK is gravely disabled and would not
benefit from less restrictive treatment. LaBelle, 107 Wn.2d at 220.
11
No. 41584-4-II
November 15, 2010, 180 day involuntary commitment order regarding MK.
Van Deren, J.
We concur:
Armstrong, J.
Worswick, A.C.J.
12
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