IN RE: the DETENTION OF M.K. (2012)

AMENDED PART PUBLISHED OPINION

¶ 1 M.K.¹ 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 M.K.'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 M.K.'s appeal is not moot. Additionally, because the trial court's sparse findings do not support the trial court's determination that M.K. is gravely disabled, we vacate the involuntary commitment order.²

FACTS

¶ 2 After his arrest on September 18, 2009, for criminal trespass and obstructing a police officer, M.K. 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 M.K. 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 M.K. for 180 days of involuntary mental health treatment at WSH under RCW 71.05.320, concluding that M.K. met RCW 71.05.020(17)'s definition of “gravely disabled.” Clerk's Papers (CP) at 35. M.K. stipulated to the trial court's January 4 involuntary commitment order.

¶ 3 On June 14, 2010, WSH staff members Gregory Kramer, PhD, and Lanna Moore–Duncan, MD, filed a petition to involuntarily commit M.K. 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 M.K. for 180 days under the same statute. The June 14 and August 4 petitions alleged that M.K. 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 M.K.'s best interests because he “require[d] intensive, supervised 24–hour restrictive care.” CP at 38, 48.

¶ 4 The trial court held a hearing on the involuntary commitment petitions on November 15, 2010, under chapter 71.05 RCW. It concluded that M.K. was gravely disabled and, on November 15, ordered an additional 180 days of involuntary commitment to WSH for further treatment.³ Other than a brief jurisdictional statement, the entirety of the trial court's brief findings of fact state:

Findings: The Court finds by ☐ a preponderance of the evidence

☒ 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:

☐ a likelihood of serious harm to others;

☐ a likelihood of serious harm to self;

☒ is gravely disabled;[ 4]

☐ 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.

Less Restrictive Alternatives: Less Restrictive Alternatives to involuntary detention

☐ are

☒ are not in the best interests of the Respondent or others.

CP at 66.

¶ 5 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 61. The trial court concluded that the evidence was not clear, cogent, and convincing that M.K. presented a danger to others.

¶ 6 M.K. timely appeals the involuntary commitment order based on grave disability.

ANALYSIS

Mootness

¶ 7 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 M.K.'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 M.K.'s appeal on the merits.⁵

¶ 8 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 Wash.2d 633, 635, 673 P.2d 189 (1983). An appeal is moot where it presents merely academic questions and where this court can no longer provide effective relief. See, e.g., In re Cross, 99 Wash.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 Wash.2d 749, 762–64, 117 P.3d 1098 (2005); Habeas Corpus of Monohan v. Burdman, 84 Wash.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 recent⁶ 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. See RCW 71.05.012 (“[C]onsideration 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.”); RCW 71.05.212 (“When [ ] ․ conducting an evaluation under this chapter, consideration shall include all reasonably available ․ records regarding ․ [p]rior commitments under this chapter.”); 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.

¶ 9 The legislature's use of “recent history evidence” to support involuntary commitments appears to begin with our Supreme Court's decision in In re Detention of LaBelle, 107 Wash.2d 196, 206–07, 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) ].

¶ 10 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 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 Wash.2d at 208, 728 P.2d 138 (third alteration in original). Additionally, In re Meistrell, 47 Wash.App. 100, 108, 733 P.2d 1004 (1987) held that recent past mental history is relevant in determining present and immediate future mental behavior.

¶ 11 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 opportunity to 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 Wash.App. 65, 71–73, 29 P.3d 69 (2001).

¶ 12 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 those recommendations, including adopting RCW 71.05.245, which states:

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][ 7] 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).

¶ 13 Although the current form of RCW 71.05.245⁸ addresses only the trial court's use of prior history of commitments based on a finding of likelihood of serious harm in making a commitment determination based on a finding of likelihood of serious harm and does not address commitments based on a finding of grave disability, under LaBelle and Meistrell, prior commitments based on a finding of grave disability are also relevant to future commitment determinations.

¶ 14 Moreover, our legislature has stated its intent that “prior mental history is particularly relevant in determining whether [an involuntarily committed individual] would receive, if released, such care as is essential for his or her health or safety.” RCW 71.05.012. Additionally, RCW 71.05.212 directs that mental health professionals conducting evaluations under chapter 71.05 RCW to consider records of prior commitments.

¶ 15 Thus, under LaBelle, Meistrell, and provisions of chapter 71.05 RCW, it is clear that M.K.'s appeal of his involuntary commitment order is not moot, despite the treatment period in the challenged order having expired, because a trial court presiding over future involuntary commitment hearings may consider M.K.'s prior involuntarily commitment orders when making its commitment determination. And the State has filed an additional commitment petition against M.K. 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.⁹ Accordingly, we address the merits of M.K.'s appeal.

¶ 16 A majority of 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

¶ 17 M.K. 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 as 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 Wash.2d at 209, 728 P.2d 138.

¶ 18 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 herself, others, or the property of others, or (2) is gravely disabled. LaBelle, 107 Wash.2d at 201–202, 728 P.2d 138 (citing former RCW 71.05.020(1), (3), .150, .240, .280, .320). Here, the trial court indicated that it was ordering M.K.'s involuntary commitment solely under the gravely disabled standard.

¶ 19 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 M.K. was “gravely disabled” under either definition.10

A. RCW 71.05.020(17)(a)

¶ 20 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.

LaBelle, 107 Wash.2d at 204–205, 728 P.2d 138.11 But here, the trial court's findings of fact do not address whether the evidence was clear, cogent, and convincing that M.K. “[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 M.K. is gravely disabled under RCW 71.05.020(17)(a) is not supported by the findings.

B. RCW 71.05.020(17)(b).

¶ 21 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 Wash.2d at 208, 728 P.2d 138 (some alteration in original).

¶ 22 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 Wash.2d at 208, 728 P.2d 138 (quoting former RCW 71.05.020(1)(b)). The trial court's findings are also insufficient to establish that M.K. is “gravely disabled” under RCW 71.05.020(17)(b).

¶ 23 There is no finding here establishing that M.K. 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.12 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 M.K. is gravely disabled. Due to the brevity of the findings and the misalignment of the conclusion of grave disability as a finding, the stated findings lack a nexus between evidence of M.K.'s mental disorder and proof that a mental disorder impairs M.K.'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).

¶ 24 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 November 15, 2010, 180 day involuntary commitment order regarding M.K.

FOOTNOTES

FN10. M.K. suggests that this court need not address whether substantial evidence supports the conclusion that M.K. 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 M.K. 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 M.K. is “gravely disabled” under RCW 71.05.020(17)(a)..  FN10. M.K. suggests that this court need not address whether substantial evidence supports the conclusion that M.K. 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 M.K. 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 M.K. is “gravely disabled” under RCW 71.05.020(17)(a).

FN11. LaBelle addressed former RCW 71.05.020(1), which the legislature recodified at RCW 71.05.020(17) without substantive changes..  FN11. LaBelle addressed former RCW 71.05.020(1), which the legislature recodified at RCW 71.05.020(17) without substantive changes.

FN12. 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 M.K. is gravely disabled and would not benefit from less restrictive treatment. LaBelle, 107 Wash.2d at 220, 728 P.2d 138..  FN12. 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 M.K. is gravely disabled and would not benefit from less restrictive treatment. LaBelle, 107 Wash.2d at 220, 728 P.2d 138.

VAN DEREN, J.