In Re E.c.

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Detention of: No. 82820-7-I

E.C. DIVISION ONE

UNPUBLISHED OPINION

DÍAZ, J. — Skagit County detained appellant (E.C.) for 90 days of more

restrictive, inpatient mental health treatment, after a jury found him “gravely

disabled” under the Involuntary Treatment Act (ITA), Chapter 71.05 RCW. E.C.

argues that the trial court abused its discretion in admitting hearsay evidence,

which lacked proper foundation under ER 703 and 705, and whose admission

requires reversal of the subsequent commitment order. Even assuming such

testimony was improper hearsay, we affirm the order because E.C. does not

demonstrate any prejudice from the admission of the allegedly improper opinion

testimony.

I. FACTS

On May 4, 2021, following his arrest for domestic violence and a violation

of a no-contact order, a designated crisis responder (DCR) detained E.C., alleging

he was “gravely disabled,” a term which will be defined below. E.C. was

Citations and pin cites are based on the Westlaw online version of the cited material. No. 82820-7-I/2

transferred to North Sound Telecare Evaluation and Treatment Center (North

Sound), which petitioned to detain him for 14 days, again as gravely disabled.

Following a hearing on May 7, a commissioner of the Skagit County Superior Court

found E.C. suffered from schizophrenia and was gravely disabled, and ordered

him to be involuntarily detained at North Sound for 14 days.

On May 18, North Sound petitioned the superior court to detain E.C.

involuntarily for 90 days, again as gravely disabled.

In preparation for trial, E.C. moved in limine to exclude testimony “regarding

events outside the personal knowledge of the witness unless the foundation is

made that the event is not offered for the truth of the matter asserted and of a type

relied upon by experts in that witness’s field to form the expert’s opinion on the

subject.” E.C. further moved, in the alternative, for “a limiting instruction as

evidence is presented for such testimony based upon ER 602 and ER 703.” The

State did not oppose the motion and agreed to the language of the proposed

limiting instruction; in turn the court granted the motion. The parties and the court’s

apparent intent was to read the limiting instruction “before [the State’s] experts

testify as to any foundational evidence.” No such instruction was requested or

provided during or after trial.

Further, E.C. moved in limine to exclude reference to a “no contact order”

entered against E.C. as inadmissible hearsay, which led to his arrest. The court

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reserved on this issue, explaining that “[n]othing in this ruling prevents the [State]

from having their expert witnesses testify as to the basis of their opinions subject

to any limiting instruction that may be proffered.” The court further explained that

“nothing in this ruling prevents the [State] from testifying as to what their

understanding is as to [E.C.’s] ability to return home going forward.” The court

alerted that parties that if they “don't have an admissible no-contact order, then

that raises the question as to whether or not they can testify about his no-contact

order.” There is nothing in the record indicating that any no-contact order was

admitted as substantive evidence.

Trial was held on June 14 and 15, 2021. During the trial, two experts

testified on behalf of the State, neither of whose expertise E.C. challenged. First,

Edward Ebert, a board-certified psychiatric mental health nurse practitioner who

worked at North Sound, who had been treating E.C. for six weeks. Ebert was

followed by Wendy Robinson, the clinical director at North Sound.

There was no dispute at trial as to the following:

• E.C. suffered from schizophrenia, which involves “psychosis,

which is a loss of connection with reality in one or more forms,

including sometimes hallucinations, delusions, derailment of

thought patterns and other loss track of reality, reality testing.” To

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that point, E.C.’s delusions had not “improved” much at all since

first being detained at North Sound.

• E.C. did not “like” taking his medication, had not been taking his

medications all the time, and needed “constant” prompting to take

them. To that point, E.C.’s conditions are “worse without

medication.” Further, the providers were able to determine his

baseline prior to his admission to North Sound based on his past

medical records, which indicated that he stopped taking his

medications entirely a few months prior to admission.

• E.C.’s ability to prepare food for himself was lacking and he

needed supports to maintain his physical health. Without such

supports, he “would deteriorate.” Further, when he was provided

such supports, E.C. “successfully stayed in the community” and,

when he was not, “he recommitted within a week.”

• E.C.’s ability to care for his hygiene was virtually non-existent,

having showered twice in the six weeks he was there.

• E.C. displays “agnosia,” which is an individual’s belief they don't

have a mental illness.

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• E.C. wanted to live nowhere that would provide such supports for

medication and food and would not engage in any type of release

planning.

It was in the context of Ebert’s testimony regarding housing options that

objections were first raised and first largely sustained as to the no-contact order

and subsequent arrest (being the reason E.C. could not return to his previous

home), and E.C.’s delusions about people living in his previous home. However,

Ebert was permitted to testify, over objection, regarding “delusions about where

he’s able to live and stay and go,” including that his former “wife had moved away,

and that someone else was living in his former home illegally, and that he should

be able to return there, and that he has a no-contact order against the people living

in his former home.” Finally, the State referred to the no-contact order in his

rebuttal closing argument, which E.C. successfully objected to. The court however

denied his motion for a mistrial.

After both parties had rested, the court instructed the jury on the law. The

court did not include any limiting instruction as to any reference to a no-contact

order.

The jury found E.C. had a mental disorder, that he was gravely disabled,

and that the interests of E.C. and others would not be served by less restrictive

treatment. The court entered an order committing E.C. restrictively for 90 days.

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E.C. now claims that the “core” of Ebert’s “‘opinion’ testimony was hearsay

— assertions that E.C. could not in fact return to his previous home and that E.C.

experienced related delusions. Yet the State did not establish that the witness’s

opinion was based on sources of information that are reasonably relied on in the

witness’s field of expertise. The trial court therefore erred in admitting hearsay

evidence.” E.C. argues that the admission of such evidence was prejudicial

because “the primary concern was that E.C. would lack shelter if the facility

discharged him to something other than more restrictive treatment.”

The entirety of the State’s response revolves around whether E.C.

preserved the exact error of assignment he asserts in his appeal. However, in a

footnote, the State asserts that, “[b]y responding by asserting lack of issue

preservation, North Sound does not concede any issues on the propriety of the

expert opinions or claimed prejudice.” 1

II. ANALYSIS

A. Brief Background on ITA

1 The State further provides no response to E.C.’s concerns as to mootness. “Passing treatment of an issue or lack of reasoned argument are insufficient to merit judicial consideration.” Joy v. Dep’t of Labor & Indus.,170 Wn. App. 614, 629, 285 P.3d 187 (2012) (citing West v. Thurston County,168 Wn. App. 162, 187, 275 P.3d 1200 (2012)). Thus, we will not consider whether this appeal should be dismissed based on mootness.

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Under the ITA, “‘[g]ravely disabled’ means a condition in which a person, as

a result of a behavioral health 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(24). The jury found E.C. gravely disabled under prong (b).

Prong (b) requires the State to prove that the individual both (i) manifests

severe deterioration in routine functioning, as shown by escalating loss of control

over thoughts and actions, and (ii) that the individual is not receiving essential care.

In re LaBelle, 107 Wn.2d 196, 205, 728 P.2d 138 (1986). The care the patient is

anticipated to receive in a restrictive environment 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.” Id.

at 208. Finally, implicit in the “b” prong of gravely disabled is a requirement that

the individual is “unable, because of severe deterioration of mental functioning, to

make a rational decision with respect to [their] need for treatment.” Id. at 208.

The State has the burden of proving its case to the trier of fact by clear,

cogent and convincing evidence. RCW 71.05.310; LaBelle, 107 Wn.2d at 209.

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And the rules of evidence apply at such proceedings. RCW 71.05.310; LaBelle,

107 Wn.2d at 222.

B. Background on the Relevant Evidentiary Rules

“Interpretation of an evidentiary rule is a question of law, which we review

de novo.” State v. Foxhoven, 161 Wn.2d 168, 174, 163 P.3d 786 (2007) (citing

State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003)). “When the trial court

has correctly interpreted the rule, we review the trial court’s decision to admit

evidence under ER 404(b) for an abuse of discretion.” Id. (citation omitted).

“Under ER 703 and 705, expert opinions can be admitted “without

foundation except for testimony establishing the expert’s qualifications.”” State v.

Sanders, 66 Wn. App. 380, 385, 832 P.2d 1326 (1992) (citations omitted). Under

Rule 703:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

ER 703.

Under Rule 705:

The expert may testify in terms of opinion or inference and give reasons therefor without prior disclosure of the underlying facts or data, unless the judge requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

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ER 705.

Under ER 801(c), ““Hearsay” is a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the

truth of the matter asserted.” ER 801(c).

“An evidentiary error which is not of constitutional magnitude, such as

erroneous admission of ER 404(b) evidence, requires reversal only if the error,

within reasonable probability, materially affected the outcome.” State v. Stenson,

132 Wn.2d 668, 709, 940 P.2d 1239 (1997); State v. Acosta, 123 Wn. App. 424,

438, 98 P.3d 503 (2004). The proper foundation for expert testimony is not an

error of constitutional magnitude which can be raised for the first time on appeal.

State v. Sanders, 66 Wn. App. 380, 385, 832 P.2d 1326 (1992).

C. Application of Law to Facts

Here, there is no allegation that the trial court’s evidentiary ruling(s) rise to

the level of constitutional magnitude. Therefore, this court assesses whether the

error was harmless by measuring the admissible evidence against the prejudice

caused by the inadmissible testimony, assuming the error was preserved. Acosta,

123 Wn. App. at 438.

This court, however, need not reach (1) whether the error alleged was

preserved through (a) E.C.’s meritorious motions in limine, (b) the objection that

was overruled, and/or (c) the denied motion for a mistrial, nor (2) whether the

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State’s expert’s testimony had the proper evidentiary foundation under ERs 703,

705, or 803, because E.C. has made no showing, within reasonable probability,

that any such preserved error materially affected the outcome. Stenson, 132

Wn.2d at 709.

As reviewed above, the testimony was unrebutted that E.C., who had

ongoing diagnosis of schizophrenia, was not taking his medications consistently;

needed prompting to so take them; was not improving at all in terms of his

delusions; could not prepare his own food or engage in other types of self-care;

wanted to live nowhere where such care was provided; and would not engage in

release planning. The testimony was further unrebutted that, without such

supports, he “would deteriorate” and had worse outcomes since leaving his less

restrictive housing in January (as the baseline), in terms of medication and other

health needs. He deteriorated so much “he recommitted within a week” of

discharge. Finally, it was unrebutted that E.C. displays “agnosia,” which makes

him “unable, because of severe deterioration of mental functioning, to make a

rational decision with respect to [his] need for treatment.” LaBelle, 107 Wn.2d at

208.

Moreover, it is simply not true that the State’s “primary concern was that

E.C. would lack shelter if the facility discharged him to something other than more

restrictive treatment” or that E.C.’s lack of housing was “a central focus” of the

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State’s claim. Even if the court had entirely set aside any reference to any of his

housing options, the State painted a very clear picture of an individual who both (i)

manifests severe deterioration in routine functioning (such as medication, food,

hygiene), as shown by escalating loss of control over thoughts and actions (using

his January state as a baseline), and (ii) would not receive essential care, outside

of a restrictive environment, all of which was shown by more than clear, cogent

and convincing evidence. LaBelle, 107 Wn.2d at 205. Finally, his medication,

food, and hygiene challenges are obviously “essential to” his “health or safety” and

“the evidence [] indicate[s] the harmful consequences likely to follow if involuntary

treatment is not ordered.” Id. at 208.

As such, when viewed in the totality of the State’s experts’ testimony, E.C.

has not shown that, within reasonable probability, any such error admitting

testimony regarding his housing situation materially affected the outcome.

Stenson, 132 Wn.2d at 709. In turn, there is no prejudice.

III. CONCLUSION

We affirm.

WE CONCUR: