Opinion
42876-8-II
02-21-2013
In re the Detention of: E.M.H., Appellant.
UNPUBLISHED OPINION
JOHANSON, A.C.J.
E.M.H. appeals a 180-day involuntary civil commitment order. The trial court found E.M.H. to be gravely disabled and that there were no less restrictive treatment alternatives in his best interest. E.M.H. contends insufficient evidence supports the trial court's findings. We hold that the appeal is not moot, substantial evidence supports the trial court's findings, and there was no lesser restrictive alternative in his best interest. Accordingly, we affirm the 180-day civil commitment order.
FACTS
E.M.H. has suffered mental health problems for years. His symptoms include paranoia, auditory and visual hallucinations, and he sometimes refuses to eat, drink or bathe.
In 2011, E.M.H. was charged with one count of fourth degree assault after he pushed his mother against a wall and threatened to hit and kill her. This charge was dismissed however on a finding that E.M.H. lacked legal capacity, and he was ordered to Western State Hospital (WSH) for an evaluation under chapter 71.05 RCW. After a mental evaluation and a hearing, the trial court ordered E.M.H.'s involuntary civil commitment for a period not to exceed 90 days. Thereafter, examining physician Corazon Salvador, M.D. and designated mental health personnel official Traci Drake, Ph.D. filed a joint petition and declaration in support of an additional 180 days continued involuntary treatment for E.M.H. This petition asserted that E.M.H. was not ready for discharge.
Dr. Drake testified in support of the petition for 180 days involuntary commitment. Dr. Drake based her expert opinion on observation of E.M.H., an evaluation of his mental status, review of his medical records, and discussions with members of his treatment team. In her opinion, E.M.H. was gravely disabled as a result of his mental disorder. E.M.H. suffered from schizophrenia, paranoid type, with recent exacerbation. Although Dr. Drake testified that E.M.H. had periods of time when he "was actually doing a little bit better," his condition at the time of her most recent meeting with him showed that he was not ready to be released. Report of Proceedings (RP) at 6. The treatment team was concerned about E.M.H.'s placement in the community because of his legal history and because when he is off his medication, he has been dangerous to the community. The treatment team recommended a setting more structured than a shelter could offer and he had no family to go to because of his domestic violence toward his mother.
All references to the Report of Proceedings are from the Motion Hearing, November 7, 2011.
Additionally, E.M.H. had started to decompensate, most notably in his hygiene. He also failed to engage with treatment, attended very few program sessions, and did not recognize that he has a mental disorder. His thought process and concept of reality were not clear, and people had observed him talking to himself at WSH. E.M.H. received injectable medications, but he had told Dr. Drake that if released he would go to a homeless shelter or the Greater Lakes Mental Healthcare facility because he said they would take him off his medication. If released, E.M.H.'s injectable medication would last for about two weeks, and he would then become noncompliant and potentially dangerous to the community. Dr. Drake believed that E.M.H. should eventually live in an adult residential treatment facility, but meanwhile E.M.H. should stay at WSH and make a good faith effort to cooperate with treatment.
E.M.H. testified that he wished to leave WSH and live with his mother. When asked if he could take care of his basic needs, he answered, "Yeah. By showering," and "[M]ake sure I go to treatment." RP at 14. He testified he would comply with outpatient treatment, cooperate with any outpatient doctor, and continue to take his medication injections.
The court found E.M.H. gravely disabled with a diagnosis of schizophrenia, paranoid type, with recent exacerbation, and ordered 180 additional days of involuntary commitment. E.M.H. appeals this order.
ANALYSIS
I. Mootness
Initially, the State asserts this appeal is moot because the 180-day commitment order has expired. E.M.H. argues the appeal is not moot because of the potential negative effect of the 180-day commitment order in a future commitment hearing. We recently held that collateral consequences necessarily flow from a civil commitment because "a trial court presiding over future involuntary commitment hearings may consider [the appellant's] prior involuntary commitment orders when making its commitment determination." In re Det. of M.K., 168 Wn. App. 621, 629, 279 P.3d 897 (2012). We explained, "In the case of civil commitments under chapter 71.05 RCW, the trial court is directed to consider, in part, a history of recent 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." M.K., 168 Wn. App. at 626 (footnote omitted). In short, "each commitment order has a collateral consequence in subsequent petitions and hearings," and an appeal therefore should be heard on the merits. M.K., 168 Wn. App. at 626. Accordingly, we hold this case is not moot.
After M.K.'s arrest for criminal trespass WSH detained and evaluated M.K. for mental health treatment. M.K. stipulated to 90-days' commitment. WSH staff then petitioned for, and the trial court ordered, 180 days involuntary commitment. Subsequently, WSH staff petitioned for an additional 180 days. The trial court ordered the additional 180 days and M.K. appealed the second 180-day order. M.K., 168 Wn. App. at 622-25.
II. Sufficiency of the Evidence Next, E.M.H. contends the trial court did not specify which definition of "gravely disabled" it relied on, and regardless, neither definition was satisfied by clear, cogent, and convincing evidence. Br. of Appellant at 10. But, E.M.H. cites no authority that the trial court must specify which definition it relied on, and in fact, the trial court's findings do indicate that the trial court relied on the definition in RCW 71.05.020(17)(b). He also contends insufficient evidence supports the trial court's finding that no less restrictive alternative is in his or the community's best interest. We hold substantial evidence supports the trial court's findings.
A. Standard of Review
The burden of proof at a 90-day or 180-day involuntary commitment proceeding is by clear, cogent and convincing evidence. Former RCW 71.05.310 (2005). Where the State must prove its case by clear, cogent and convincing evidence, the evidence must be more substantial than in the ordinary civil case in which proof need only be by a preponderance of the evidence. In re Hall, 99 Wn.2d 842, 849, 664 P.2d 1245 (1983). This means the ultimate fact in issue must be shown by evidence to be "'highly probable.'" In re Pawling, 101 Wn.2d 392, 399, 679 P.2d 916 (1984) (quoting In re Sego, 82 Wn.2d 736, 739, 513 P.2d 831 (1973)). Accordingly, we will not disturb a trial court's finding that an individual is "gravely disabled," as defined in RCW 71.05.020(17), if supported by "substantial evidence which the lower court could reasonably have found to be clear, cogent, and convincing." In re LaBelle, 107 Wn.2d 196, 209, 728 P.2d 138 (1986).
B. Analysis
Under RCW 71.05.320(6), a trial court can recommit an individual at the end of a 90-day involuntary commitment period if the court finds that the grounds for additional confinement are present. Here, the trial court ordered E.M.H.'s involuntary commitment under the gravely disabled standard. Under the gravely disabled standard, the danger of harm usually arises from passive behavior-i.e., the failure or inability to provide for one's essential needs. LaBelle, 107 Wn.2d at 204. A person is gravely disabled if, "as a result of a mental disorder," the person either:
(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). Although the trial court did not specifically provide the cite to RCW 71.05.020(17)(b), it indicated in its findings that it did in fact rely on RCW 71.05.020(17)(b), thus we address whether clear, cogent and convincing evidence supports the trial court's conclusion that E.M.H. was "gravely disabled" under the second definition, RCW 71.05.020(17)(b).
The trial court's findings include that E.M.H. "has decompensated on ward, especially in body hygiene, failed to engage in treatment, poor insight, denies mental disorder, denies need for medication, if goes off medication could be dangerous to community, and not able to care for his own needs, needs to stabilize and make good faith effort at treatment, socially isolated, observed talking to self on ward." CP at 42. These findings are specific enough to permit meaningful review under RCW 71.05.020(17)(b). LaBelle, 107 Wn.2d at 218.
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. . . . [T]he evidence must reveal a factual basis for concluding that the individual . . . 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.
. . . Implicit in the definition of gravely disabled under [RCW 71.05.020(17)(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.
Although decompensation is not defined in chapter 71.05 RCW. We have said that
"Decompensation" is . . . defined as the "appearance or exacerbation of a mental disorder due to failure of defense mechanisms." Stedman's Medical Dictionary, 26th edition (1995). In re LaBelle, 107 Wn.2d 196, 206, 728 P.2d 138 (1986)[,] defined decompensation by using the language from the statutory definition of "gravely disabled" that is currently found in RCW 71.05.020(14): "progressive deterioration of routine functioning supported by evidence of repeated or escalating loss of cognitive or volitional control of actions."In re Det. of C.K., 108 Wn. App. 65, 68 n.1, 29 P.3d 69 (2001) (citation omitted).
Here, the trial court's findings are sufficient to establish that E.M.H. is "gravely disabled" under RCW 71.05.020(17)(b). Importantly, the trial court found that E.M.H. suffered from schizophrenia, paranoid type, a mental illness. In addition, the trial court reasonably believed Dr. Drake's testimony to be more credible than E.M.H.'s testimony. Dr. Drake testified that she had no confidence E.M.H. would continue taking his medication or comply with any treatment if released. Dr. Drake was concerned with E.M.H.'s legal history, including the domestic violence charge that brought him to WSH, and in her opinion E.M.H. "would be potentially dangerous to the community [if released] because he has been in the past." RP at 9. E.M.H. told Dr. Drake that if released he may go to a facility that he said had taken him off medications in the past and that he did not think he needed medications. She also testified that E.M.H. would not be able to safely and adequately care for himself if released and that further commitment at WSH was in E.M.H.'s best interest. Dr. Drake's testimony provided substantial evidence which the trial court could reasonably have found to be clear, cogent, and convincing that E.M.H. would discontinue his medications if released.
Dr. Drake testified about E.M.H.'s failure to recognize his illness and said E.M.H. "started to show signs of decompensation. The most notable being a dramatic change in his hygiene." RP at 6. He had a very strong body odor, there was dandruff from his hair on his clothes, and he had been wearing the same clothing for days. A dramatic change in hygiene could reasonably raise concern about E.M.H.'s routine functioning and ability to care for his health if released. Additionally, Dr. Drake was especially concerned about E.M.H.'s failure to engage in treatment while at WSH. His treatment record showed very low participation in the offered treatment programs. The trial court was reasonably concerned about E.M.H.'s low participation, especially about his lack of rational decision making regarding his need for treatment. LaBelle, 107 Wn.2d at 208. And, Dr. Drake testified that if E.M.H. became noncompliant with his medications, then she would have concerns about his cognitive control and E.M.H. could become dangerous to the community. In addition to Dr. Drake's direct testimony about E.M.H.'s decompensation, her testimony that E.M.H. failed to recognize and understand his mental disorder also supports the conclusion that E.M.H. was likely to become noncompliant with medications and treatment if released.
Further, Dr. Drake testified that if E.M.H. were released, she did not believe he would be able to safely and adequately care for himself. When E.M.H. was asked how he would take care of his basic needs if released, he responded, "Just showering", and "make sure I go to treatment-go to treatment." RP at 14. E.M.H. failed to explain how he would find shelter, clothing, or food or any other care essential for his health and safety. Although E.M.H. testified that he would live with his mother if released, there is evidence that his mother may have had a two-year protection order against him that would prevent his living with her. Dr. Drake's testimony provided substantial evidence which the trial court could reasonably have found to be clear, cogent, and convincing that E.M.H. would not be able to care for his essential needs himself if released.
The trial court found by clear, cogent, and convincing evidence that E.M.H. had decompensated on the ward, especially with bodily hygiene, and that he (1) failed to engage in treatment, (2) had poor insight, (3) denied having a mental disorder, (4) denied the need for medication, (5) presented a danger to the community if he goes off his medication, (6) was not able to care for his own needs, (7) needed to stabilize and make a good faith effort at treatment, (8) was socially isolated, and (9) was observed talking to himself on the ward. Substantial evidence supports the trial court's findings. In turn, the trial court's findings support the necessary causal nexus between proof of severe deterioration in routine functioning and proof that the person so affected would not receive essential care for his health or safety if released. LaBelle, 107 Wn.2d at 208. Accordingly, petitioners have proved by clear, cogent and convincing evidence that the 180-day involuntary commitment was essential to E.M.H.'s health and safety. We hold that substantial evidence supports a conclusion that E.M.H. is "gravely disabled" under RCW 71.05.020(17)(b).
Lastly, E.M.H. argues the State failed to prove that a less restrictive alternative would not be in his best interest. Although Dr. Drake testified that she would eventually like to see E.M.H. placed in an adult residential facility, she also testified that her immediate recommendation was that it was in his best interest to "remain in the hospital and give a good faith effort to cooperate with treatment at all levels." RP at 11. Then, if he was able to maintain stability and cooperate with medications, Dr. Drake would then like to see him placed somewhere less restrictive. Dr. Drake's immediate recommendation was that E.M.H. remain committed for an additional 180 days.
Dr. Drake's testimony provided substantial evidence which the trial court could reasonably have found to be clear, cogent, and convincing that a less-restrictive alternative was not in E.M.H.'s best interest. LaBelle, 107 Wn.2d at 209. Dr. Drake testified that if E.M.H. was released into the community, she had no confidence he would comply with his medications or recommended treatment and she did not believe he would be able to safely and adequately care for himself. She also testified that E.M.H. was not ready for an adult residential treatment facility because he had not cooperated with any treatment, group meetings, therapy, or medications at WSH. And, while the team considered placement with a family member, Dr. Drake did not recommend putting E.M.H. back into a risky situation after his prior domestic violence charges. The trial court reasonably relied on this testimony.
Accordingly, we hold that substantial evidence, which the trial court could reasonably have found to be clear, cogent, and convincing, supports its conclusion that less restrictive alternatives were not in the best interest of E.M.H. or others.
We affirm the trial court's 180-day involuntary civil commitment order.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.
We concur: Hunt, J. Bjorgen, J.