In Re The Detention Of: D.s.

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

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IN RE DETENTION OF D.S. NO. 69768-4-1 3C rn * —4

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D.S., Appellant. FILED: March 17, 2014

Lau, J. — DS seeks reversal of a 14-day involuntary treatment order and

dismissal of the underlying petition, arguing the court denied his statutory and due

process right to present evidence when it imposed a time limit on his direct-examination

testimony. Finding no error, we affirm.

FACTS

On December 17, 2012, Redmond Police Officer Julie Beard contacted DS in a

police station lobby. DS said he suffered from chronic pain and claimed he had

ingested 14 Percocet (narcotic pain relief) pills. He said he was not imminently suicidal

but acknowledged that he wanted to die because of his pain.

Beard sent DS to Evergreen hospital in Kirkland. At the hospital, DS told Beard

he wanted to force someone to perform surgery to alleviate his pain. He threatened to

kill Beard and a social worker. He also said he would force Beard to kill him because he

knew suicide was a sin. He claimed he had killed people and had left bodies in various

locations. He threatened to harm hospital staff and shouted, "[T]hat bomb is still out

there and I plan on using it to blow up the hospital." Report of Proceedings (Dec. 12,

2012) (RP) at 20.

DS told clinical psychologist Dr. Richard Thomas he would continue threatening health care workers until he received treatment for his nerve damage. Dr. Thomas

diagnosed DS with "Mood Disorder NOS, Rule Out Single Depressive Episode." RPat19.

On December 19, 2012, the State filed a 14-day involuntary treatment petition under chapter 71.05 RCW alleging that DS suffered from a mental disorder and that, as a result, he presented a likelihood ofserious harm to himself and others.

During opening remarks at the probable cause hearing, defense counsel claimed the evidence would show no nexus between likelihood of harm and mental illness. She

attributed DS's behavior to "chronic medical pain." RP at 3.

The State presented the testimony of Beard and Dr. Thomas. Beard testified that she had "no doubt" DS would assault her. RP at 9. Dr. Thomas opined that DS presented a substantial risk of harm to himself and others as a result of his mental disorder. Defense counsel cross-examined both Beard and Dr. Thomas about DS's

complaints of medical pain, among other issues.

After Dr. Thomas's testimony near the end of the court day, the court advised

both counsel that it needed to determine which cases remained on the court's calendar

and raised the possibility of not completing DS's testimony, if he testified, due to the

close of the court day at 4:30. Defense counsel expressed concern over the possibility

of a 13-day continuance. She stated, "I'd just also like to clarify on the record that we

were not aware yesterday that we—that if we didn't finish this case today that Your

Honor wouldn't be back until [January 2, 2013]." RP at 35-36. The court also noted

insufficient time to address the remaining matters calendared for the court day. When

defense counsel said she was ready to proceed, the court stated, "Yes, let's get [DS] in

because we have very little [time]." RP at 36.

DS testified that he remembered the night of his initial detention. He said he was

"frustrated" by "[n]ot getting medical help year after year, try after try, avenue after avenue." RP at 37. He testified extensively about his nerve pain and his efforts to

secure treatment.1 At 4:30, during DS's rambling response to his attorney's question

about approval for funding, the court reminded counsel, "We're going to need to either wrap it up right now or it's going to be continued until [January 2, 2013]." RP at 41. Defense counsel responded, "I don't feel that I can effectively finish my direct

examination." RP at 41. The court advised, "I can go for four more minutes or

something but that's it." RP at 42.

Defense counsel responded, "I would prefer to finish today and have a ruling

today ... if that's the only choice." She added, "I would just like it to be clearfor the record that I don't feel that I've effectively done a direct examination of the respondent."

1The record shows six pages of trial transcript devoted to DS's testimony.

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RPat42. The court stated, "Okay. That's fine. I'm—it's your option." RPat42.

Defense counsel stated, "So in that case we'll rest, if that's the only option." RP at 42.

The State declined to cross examine DS and presented no rebuttal evidence. In

response to DS's impromptu comment, "But Iwould like to say one thing, I've ... gone

through every avenue possible," the court commented, "[DS], your case was closer

before you testified, frankly." RP at 43.

The court entered written findings of fact and conclusions of law and ordered DS

to undergo involuntary treatment for a period not to exceed 14 days. DS appeals.

ANALYSIS

As a preliminary matter, the State claims this appeal is moot because DS is no longer detained. Because the superior court's order may have adverse consequences on future involuntary treatment determinations, this appeal is not moot. In re Pet, of M.K., 168 Wn. App. 621, 625-30, 279 P.3d 897 (2012). Alternatively, our Supreme Court has long considered clarification of the involuntary treatment statutes a matter of continuing and substantial public interest. See In re Pet, of C.W.. 147 Wn.2d 259, 270, 53 P.3d 979 (2002); In re Pet, of Swanson, 115 Wn.2d 21, 25, 804 P.2d 1 (1990). Either of these grounds provides sufficient justification to address the merits.

The sole issue is whether the trial court violated PS's statutory and due process

right to present evidence. PS claims, "The superior court violated the respondent's due process and statutory rights to present evidence on his own behalf atthe hearing on the State's 14-day involuntary commitment petition." Br. of Appellant at 1. He argues, "The 14-day commitment order should be reversed and the petition dismissed." Br. of Appellant at 11. We review issues of statutory interpretation, alleged errors of law, and alleged due process violations de novo.2 In re Pet, of Fair, 167 Wn.2d 357, 362, 219 P.3d 89 (2009): State v. R.G.P., 175 Wn. App. 131, 136, 302 P.3d 885 (2013).

Under RCW 71.05.240(1), "If a petition is filed for fourteen day involuntary

treatment or ninety days of less restrictive alternative treatment, the court shall hold a

probable cause hearing within seventy-two hours of the initial detention of such person

as determined in RCW 71.05.180." PS does not expressly challenge the State's

compliance with the 72-hour requirement—nor could he, since the probable cause hearing indisputably commenced before the 72-hour deadline passed. See Swanson, 115Wn.2d at 28-31 (court satisfies 72-hour requirement if the court calendar begins and the parties are ready to proceed before the 72-hour deadline expires).

PS contends that the court forced him to make a "Hobson's choice" between his

right to present evidence under RCW 71.05.360(5) and the right to a hearing within 72 hours of initial detention under RCW 71.05.240(1). For this point, he relies on State v.

Michielli, 132 Wn.2d 229, 937 P.2d 587 (1997), and State v. Brooks, 149 Wn. App. 373, 203 P.3d 397 (2009). Neither case controls. Michielli involved dismissal of criminal charges under CrR 8.3(b). Brooks involved CrR 8.3(b) dismissal based on allegations of government mismanagement and discovery violations.

PS also relies on CW and Swanson to argue that dismissal is warranted when

involuntary commitment requirements are disregarded. Neither case controls. PS identifies no statute that requires the court to complete the probable cause hearing

2The State argues an abuse of discretion standard ofreview applies. PS does not address the proper standard of review. Given our discussion below, the State prevails under either an abuse of discretion standard of review or the less deferential de novo standard of review.

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within RCW 71.05.240's 72-hour requirement. We conclude no statutory violation

occurred.

The record also undisputedly shows that OS's chronic pain "defense" was not

disputed by the State witnesses. Indeed, Pr. Thomas's medical opinion on this point supported PS's complaints about his chronic pain. PS also testified repeatedly about

his chronic pain.

In addition, defense counsel made no offer of proof as to what evidence PS

would provide if allowed additional time. By this point, the court had observed PS while he testified extensively about his chronic pain and other details. The court expressed concern that PS's testimony hurt his case.

The court also allowed defense counsel an additional four minutes or more to

wrap up PS's testimony.3 Instead of using this time, counsel decided not to elicit further testimony from PS. Pefense counsel asked the court "to finish today and have a ruling today." RPat42.

We also note the well-accepted principle that "[t]rial courts have the inherent

authority to control and manage their calendars, proceedings, and parties." State v. Gassman, 175Wn.2d 208, 211, 283 P.3d 1113(2012). Our Supreme Court has noted

the need for control is especially vital in the involuntary treatment context:

We are also aware of the need to avoid placing the impossible burden on the trial court of predicting how long any given calendar will last or exactly when a particular case will be heard. As [the State] said at oral argument, there are numerous ways in which the calendar's time restraints are buffeted by the mental instability of the individuals appearing before the court. By its very nature, the calendar is unpredictable. It is easy to visualize a circumstance where a single

3The court also offered to resume the hearing on the next available date of January 2, 2013.

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disruptive patient could cause a significant delay in the hearing process. Thus, even if the court were to do its best to arrange the order of cases to reflect the expiration times, there would be no guaranty that the schedule would move forward according to plan.

Swanson, 115 Wn.2d at 29. This case aptly illustrates this observation.

Finally, we are unpersuaded by OS's due process challenge. He provides no

controlling authority and offers no specific due process analysis. This claim fails. See Palmer v. Jensen, 81 Wn. App. 148, 153, 913 P.2d 413 (1996) ("Passing treatment

of an issue or lack of reasoned argument is insufficient to merit judicial consideration.").

For the reasons discussed above, we affirm.4

WE CONCUR:

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4 Even if we assume a statutory or due process violation on this record, any alleged error is harmless.