IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE In the Matter of the Detention of ) No. 81294-7-I ) ) ) J.H., ) UNPUBLISHED OPINION ) Appellant. ) )
VERELLEN, J. — J.H. argues that the trial court did not adequately advise
him that a 14-day involuntary commitment would result in his loss of firearm rights
in accordance with RCW 71.05.240(2). But the court’s oral advisement, combined
with inferences from the surrounding circumstances, establish J.H. was
adequately advised.
J.H. also contends that he was not given adequate notice that the State
was seeking commitment on the ground that he presented a likelihood of harm to
the property of others. But because J.H.’s counsel failed to object and argued that
the State had not met its burden on this ground during the hearing, he fails to
establish prejudice.
J.H. also challenges his 14-day involuntary commitment as lacking
substantial evidence. But the testimony of the mental health counselor, the social
worker, and J.H.’s mother supports the trial court’s finding that J.H. suffers from
bipolar disorder. That finding, together with the mother’s description of events she
observed at her house, supports the court’s conclusion that J.H. presented a No. 81294-7-I/2
likelihood of serious harm to the property of others and that J.H. was gravely
disabled.
Finally, there is no constitutional right to a jury trial on a 14-day involuntary
commitment petition.
Therefore, we affirm.
FACTS
On February 27, 2020, the Seattle Police Department responded to a call
that J.H. was climbing a tree outside the KOMO-TV news station. According to the
responding officer, J.H. was “exhibiting scattered thought patterns and told the
responding police officer to taze him.”1 The responding officers brought J.H. to
Virginia Mason Medical Center’s emergency department.
Andrew Trindle, a social worker at Virginia Mason, assessed J.H. Trindle
reported that J.H. was “experiencing symptoms of a mental health disorder,
characterized by delusional thoughts.”2 He concluded that J.H. was “at risk for
serious consequences and should be detained involuntarily for psychiatric
treatment.”3
The next day, a designated King County crisis responder filed a petition for
initial detention. The petition alleged that J.H. suffered from a “mental disorder”
1 Clerk’s Papers (CP) at 1. 2 CP at 4. 3 CP at 4.
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and that he had recently become “increasingly paranoid, delusional, erratic, and
agitated.”4
After J.H. was detained for 72 hours of psychiatric treatment, Brian Hayden,
a licensed mental health counselor at Fairfax Hospital, filed a petition for 14-day
involuntary treatment. Hayden diagnosed J.H. with “bipolar affective disorder, type
1, manic with psychosis.”5
The petition alleged that J.H. suffered “from a mental disorder characterized
by erratic behavior, poor impulse control, decreased sleep, depressed mood,
aggressive behavior, disorganized thoughts, paranoia, and poor insight and
judgment.”6 As a result, Hayden concluded that J.H. was “showing increased loss
of cognitive and volitional functioning, poor insight regarding his symptoms” and
that further hospitalization was “essential.”7
On the involuntary commitment petition, Hayden checked the boxes for two
of the three possible grounds for involuntary commitment: that J.H. presented “a
likelihood of serious harm to self” and that J.H. was “gravely disabled.”8 Hayden
did not check the box that J.H. presented a likelihood of serious harm to the
property of others. The petition also stated that J.H. had not accepted voluntary
4 CP at 2. 5 CP at 18. 6 CP at 18. 7 CP at 18-19. 8 CP at 17.
3 No. 81294-7-I/4
treatment and that he was advised that involuntary commitment “will result” in his
loss of firearm rights.9
On March 4, 2020, at the probable cause hearing, the State asserted that it
was prepared to proceed under the allegations that J.H. presented a likelihood of
serious harm to others, likelihood of serious harm to the property of others, and
evidence of a grave disability pursuant to RCW 71.05.020(21)(a) and (b). At the
outset of the hearing, the court stated:
I want to advise you, I’m required to advise you, that if you decline to accept or seek voluntary treatment at this time; and at the end of this hearing, if I conclude that you need to be involuntarily detained for your own benefit, then that could result in your loss of firearm rights. So if you need a moment to confer with counsel before you make a final decision, . . . please take that moment.[10]
After the pause, J.H. thanked the court.
At the hearing, three witnesses testified for the State: Trindle, Hayden,
and J.H.’s mother. The trial court concluded that a preponderance of the
evidence established J.H. presented “a substantial risk of serious harm to the
property of others” and was gravely disabled.11
On March 5, 2020, the court entered an order committing J.H. to 14-day
involuntary treatment and entered findings of fact and conclusions of law.
J.H. appeals.
9 CP at 18. 10 Report of Proceedings (RP) (Mar. 4, 2020) at 6. 11 Id. at 90-92
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ANALYSIS
I. Trial Court’s Advisement under RCW 71.05.240(2)
J.H. argues that his constitutional right to bear arms was violated because
the trial court failed to notify him both orally and in writing that a 14-day involuntary
commitment “would” result in his loss of firearm rights. “We review constitutional
issues de novo.”12
The involuntary commitment statute, RCW 71.05.240(2), provides:
If the petition is for mental health treatment, the court at the time of the probable cause hearing and before an order of commitment is entered shall inform the person both orally and in writing that the failure to make a good faith effort to seek voluntary treatment as provided in RCW 71.05.230 will result in the loss of his or her firearm rights if the person is subsequently detained for involuntary treatment under this section.
Here, Hayden, the mental health counselor, submitted the petition for
involuntary commitment. The petition stated that “respondent has been
advised that involuntary commitment pursuant to this 14-day petition will result
in the loss of firearm rights.”13 Additionally, before the probable cause hearing
began, the court advised J.H., “[I]f you decline to accept or seek voluntary
treatment at this time; and at the end of this hearing, if I conclude that you
need to be involuntarily detained for your own benefit, then that could result in
your loss of firearm rights.”14 The court also urged J.H. to take a moment to
12 City of Seattle v. Evans, 182 Wn. App. 188, 191, 327 P.3d 1303 (2014). 13 CP at 18. 14 RP (Mar. 4, 2020) at 6.
5 No. 81294-7-I/6
confer with his counsel. After a pause in the proceeding, J.H. responded,
“Thank you, sir.”15
J.H. contends that the trial court’s oral advisement was “incorrect”
because the court used “could” instead of “would” and thus, the trial court
failed to inform J.H. that involuntary commitment would render his loss of
firearm rights “automatic.”16 J.H. relies on In the Matter of Detention of T.C.,17
where this court held that in the absence of any notice from the trial court
itself, a firearms notice in the petition for a 14-day commitment signed by a
mental health professional followed by a check-the-box finding entered by the
court in the commitment order, after the hearing was concluded, were
inadequate.
But unlike in T.C., the court here provided J.H. with an oral notice. And
T.C. suggests that a petition advising a patient that involuntary commitment
pursuant to the 14-day petition will result in the loss of firearm rights may be a
factor in judging the adequacy of notice.18 This court noted, “Standing alone,
this petition does not satisfy the requirements” of the statute mandating notice
by the court.19 And in response to the argument by the State that “the petition
can be used to infer understanding on the part of the person subject to
15 Id. 16 Appellant’s Br. at 11-12. 17 11 Wn. App. 2d 51, 62-63, 450 P.3d 1230 (2019). 18 Id. at 63. 19 Id.
6 No. 81294-7-I/7
detention” this court stated, “We decline to make such an inference based
solely on the petition.”20
Here, unlike T.C., the court gave an oral notice that the loss of firearm
rights can be avoided by voluntary participation in treatment, the court paused
the proceeding, directing J.H. to “confer with counsel [about the firearms
notice],” and the court urged, “before you make a final decision, . . . please
take that moment.”21 After that pause, J.H. acknowledged the court’s
advisement by responding, “Thank you sir.”22
There is a difference between “could” and “would,” but the oral notice
by the court, considered together with the petition advising that involuntary
commitment “will result” in his loss of firearm rights, the pause to confer with
counsel, and the oral response thanking the court support an inference that a
person receiving and responding to such information understands the loss of
firearm rights was mandatory. Considered in this particular context, the trial
court’s advisement complied with RCW 71.05.240(2).
II. Notice
J.H. argues that his constitutional right to due process was violated
because he did not receive notice before the probable cause hearing that the
State also sought his commitment based upon the likelihood of serious harm to the
property of others.
20 Id. at 64. 21 RP (Mar. 4, 2020) at 6. 22 Id.
7 No. 81294-7-I/8
“An essential principle of due process is the right to notice.”23 To comply
with procedural due process, the State must provide the person with sufficient
notice of the facts supporting the petition for commitment.24 Sufficient notice
requires that the petition for a 14-day commitment “include a statement by a doctor
who is familiar with the patient’s illness and prognosis, and who is able to
adequately evaluate the patient’s mental status and make a recommendation.”25
The purpose of the notice provision is to “‘apprise the affected individual of, and
permit adequate preparation for, an impending hearing.’”26 Because J.H. alleges a
constitutional error not previously asserted, he bears the burden of establishing
actual prejudice.27 Actual prejudice requires a “‘showing . . . that the asserted
error had practical and identifiable consequences in the trial of the case.’”28
Here, before the commencement of the probable cause hearing, the State
said, “And the petitioner is prepared to proceed under the allegation of likelihood of
serious harm to others, likelihood of harm to others’ property, grave disabilities
Morrison v. State Dep’t of Labor & Indus., 168 Wn. App. 269, 273, 277 23
P.3d 675 (2012). 24 In re Det. of R.P., 89 Wn. App. 212, 216, 948 P.2d 856 (1997). 25 Id. 26In re Det. of Cross, 99 Wn.2d 373, 382, 662 P.2d 828 (1983) (internal quotation marks omitted) (quoting Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 14, 98 S. Ct. 1554, 56 L. Ed. 2d 30 (1978)). 27 In re Pers. Restraint of Delgado, 160 Wn. App. 898, 906, 251 P.3d 899 (2011). 28State v. O’Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009) (internal quotation marks omitted) (quoting State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007)).
8 No. 81294-7-I/9
[under RCW 71.05.020(21)(a) and (b)].”29 J.H.’s counsel did not object to the
State’s addition of the harm to property allegation. Further, in closing argument,
J.H.’s counsel alleged that the State had not met its burden with respect to the
likelihood of serious harm to the property of others allegation. Because J.H.’s
counsel failed to object and responded to the State’s argument on the likelihood of
serious harm to the property of others allegation, J.H. fails to establish prejudice.
And because the trial court need only find one ground to enter a 14-day
involuntary commitment, even if J.H. established prejudice as to this ground, J.H.
still would have been committed under the trial court’s finding that he was gravely
III. Sufficiency of the Evidence
J.H. challenges various findings of fact entered by the trial court supporting
its conclusions of law that J.H. presented a likelihood of serious harm to the
property of others and that J.H. was gravely disabled.
First, J.H. challenges the trial court’s finding that he broke windows and a
TV at his parents’ house six months before the probable cause hearing.
“‘[W]here the trial court has weighed the evidence, appellate review is
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.’”30 “‘Evidence is substantial if it is sufficient to convince a reasonable
29 RP (Mar. 4, 2020) at 5. 30 In re Det. of H.N., 188 Wn. App. 744, 762, 355 P.3d 294 (2015) (alteration in original) (quoting In re Det. of LaBelle, 107 Wn.2d 196, 209, 728 P. 2d 138 (1986)).
9 No. 81294-7-I/10
person of the truth of the finding.’”31 The trier of fact is solely responsible for
making credibility determinations.32 We review conclusions of law de novo.33
Under RCW 71.05.020(34)(a)(iii), a person can be involuntarily committed
if, as a result of mental disorder, a person presents a likelihood of serious harm to
the property of others.34 The statute requires a “substantial risk that . . . physical
harm will be inflicted by a person upon the property of others, as evidenced by
behavior which has caused substantial loss or damage to the property of others.”35
Evidence of substantial risk of physical harm must be “evidenced by a recent overt
act.”36 But risk of harm is not required to be imminent.37
Here, there was substantial evidence to support the trial court’s finding that
J.H. broke windows and a TV at his parents’ house six months before the probable
cause hearing. J.H.’s mother testified that about six months before the hearing,
J.H. broke her TV and that their house still had damaged windows that had not
been replaced. And the court found her testimony credible.
J.H. questions the adequacy of his mother’s testimony because she framed
her answers about how recently J.H. had destroyed property as “I would guess
31 State v. Coleman, 6 Wn. App. 2d 507, 516, 431 P.3d 514 (2018) (quoting State v. Klein, 156 Wn.2d 102, 115, 124 P.3d 644 (2005)). 32 Morse v. Antonellis, 149 Wn.2d 572, 574, 70 P.3d 125 (2003). 33 In re Estate of Haviland, 162 Wn. App. 548, 561, 255 P.3d 854 (2011). 34 In re Det. of Harris, 98 Wn.2d 276, 285, 654 P.2d 109 (1982). 35 Matter of Det. of D.V., 200 Wn. App. 904, 906-07, 403 P.3d 941 (2017). 36 Harris, 98 Wn.2d at 285. 37 Id. at 282-85.
10 No. 81294-7-I/11
probably in the last, you know, maybe, like, six months ago.”38 And “[m]aybe
about six months ago. I can’t remember for sure.”39 But her testimony is sufficient
to convince a reasonable person of the truth of the finding that J.H. recently
destroyed property at his parents’ house. And that finding supports the trial court’s
conclusion of law that J.H. exhibited a likelihood of serious harm to the property of
others.
Next, J.H. challenges four findings of fact related to the court’s conclusion
of law that J.H. was gravely disabled under definition (a). He challenges the trial
court’s findings that he was not self-aware, he declined to take mental health
medication at the hospital, he was barefoot when he climbed the tree, and he
showers excessively.
A person is gravely disabled under definition (a) if, as a result of a mental
disorder, a person “[i]s in danger of serious physical harm resulting from failure to
provide for his or her essential needs of health or safety.”40 This definition
“requires the State to show that an individual, as a result of a mental disorder, is in
danger of serious physical harm as a result of his or her failure to provide for
essential health and safety needs.”41
38 RP (Mar. 4, 2020) at 23. 39 Id. at 28. 40 RCW 71.05.020(21)(a); see also In re Det. of R.H., 178 Wn. App. 941, 946, 316 P.3d 535 (2014). 41 LaBelle, 107 Wn.2d at 203.
11 No. 81294-7-I/12
J.H.’s mother testified that J.H. does not take “care of himself” and that “[h]e
thinks that people are watching him all the time.”42 She also stated that he
appears agitated and has been accused of shoplifting multiple times due to the
way he acts. Hayden, the mental health counselor, testified that J.H. suffers from
a “lack of insight” and “grandiose hallucinations.”43 He noted that J.H. is “paranoid,
tangential, [and] illogical.”44
Hayden read into the record a report from a nurse observing J.H. who noted
that he was noncompliant with psychiatric medication. Hayden also testified that
the nurse’s report stated that while in the hospital, J.H. refused Risperidone.
J.H.’s mother testified that J.H. showers excessively because “he thinks he
smells a lot . . . [a]nd at stores, thinks people are walking away from him because
he smells so bad.”45 She also stated that J.H.’s doctor described his showering
habits as unhealthy. The trial court found their testimony credible.
The trial court’s finding that J.H. was barefoot when he climbed the tree
outside the KOMO-TV news station is not supported by substantial evidence.
But substantial evidence supports the trial court’s findings that J.H. was not
self-aware, that he declined to take mental health medication at the hospital, and
that he showers excessively. And those findings, in turn, support the court’s
conclusion of law that J.H. was gravely disabled under definition (a).
42 RP (Mar. 4, 2020) at 22, 24. 43 Id. at 56. 44 Id. at 61. 45 Id. at 24.
12 No. 81294-7-I/13
J.H. also challenges three findings of fact related to the court’s conclusion
of law that J.H. was gravely disabled under definition (b). He challenges the
court’s findings that he showed severe deterioration in routine functioning, that he
has had mental health issues since the age of 10, and that he is still
decompensating.
A person is gravely disabled under definition (b) if, as a result of a mental
disorder, a person “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.”46 The court must provide a factual basis to conclude that a person
“‘manifests severe [mental] deterioration in routine functioning.’”47 “‘Such evidence
must include recent proof or 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.’”48
Trindle, the social worker, testified that J.H. initially told him that he was
committed for trying to draw awareness to a car dealership that was recording
phone calls without consent. But J.H. then told Trindle that he climbed the tree
46 RCW 71.05.020(21)(b); R.H., 178 Wn. App. at 946. 47 In re Det. of M.K., 168 Wn. App. 621, 627, 279 P.3d 897 (2012) (alteration in original) (quoting LaBelle, 107 Wn.2d at 208). 48 Id. (quoting LaBelle, 107 Wn.2d at 208).
13 No. 81294-7-I/14
because he was concerned about a security company that failed to prevent drug
and gang activity in an apartment building.
J.H.’s mother testified that J.H.’s mental health issues began when he was
in the fifth or sixth grade. She stated that in fifth grade, he began to have
significant problems in school and was diagnosed with oppositional defiance
disorder.
Hayden testified that most recently he diagnosed J.H. with bipolar disorder
with “manic and psychotic features.”49 He read a psychiatric progress note into the
record which noted that J.H.’s “[c]oncentration, insight, and judgment” were “all”
impaired.50 Hayden opined that “due to [J.H.’s] lack of insight regarding his
symptoms and condition, there is likely continued decompensation.”51 The court
found their testimony credible.
Substantial evidence supports the court’s findings of fact that J.H.
demonstrated severe deterioration in routine functioning, that he has had mental
health issues since the age of 10, and that he is still decompensating. And those
findings, in turn, support the court’s conclusion of law that J.H. was gravely
disabled under definition (b).
IV. Right to Jury Trial
J.H. argues that he was deprived of his constitutional right to have a jury
determine if he had a mental illness justifying a 14-day involuntary commitment.
49 RP (Mar. 4, 2020) at 55. 50 Id. at 64. 51 Id. at 67.
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In In re the Detention of S.E., we rejected this argument.52 In S.E., this
court analyzed the history of the right to a jury trial and held that there is no right to
a jury trial in a hearing on a 14-day involuntary commitment petition.53 The holding
in S.E. of no right to a jury trial was confirmed in T.C.54
J.H. contends S.E. was incorrectly decided. He relies on In re the Matter of
Ellern in support of his proposition. But, as this court explained in T.C., Ellern
“differs significantly” from S.E. because it “involved an individual who was detained
for nearly five months and facing indefinite involuntary commitment.”55 For the
reasons explained in S.E. and T.C., J.H. was not entitled to a jury trial.
WE CONCUR:
52 199 Wn. App. 609, 400 P.3d 1217 (2017). 53 Id. at 618. 54 T.C., 11 Wn. App. 2d at 59-60. 55 Id. at 60.