IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Detention of No. 82688-3-I
K.H. DIVISION ONE
UNPUBLISHED OPINION
COBURN, J. — K.H. challenges a 14-day involuntary commitment order
based upon the grounds that she posed a substantial risk of harm to others, and
others’ property, and was gravely disabled. K.H. contends that her due process
rights were violated because the State did not provide formal notice of the facts
relied upon to support three of the four reasons justifying the commitment. The
challenged testimony related to laboratory results and K.H.’s mother’s testimony
relating to harm to others and others’ property. K.H. did not object to the
laboratory results. Sufficient evidence supports all the grounds for commitment
even without the challenged portion of the mother’s testimony. The commitment
may be based on the single basis K.H. does not challenge. Even if we were to
find error, such error was harmless. We affirm.
Citations and pin cites are based on the Westlaw online version of the cited material. No. 82688-3-I/2
FACTS
In April 2021, K.H.’s mother brought her to the emergency department at
Valley Medical Center because she was concerned about her state of mind and
living conditions. K.H. voluntarily agreed to psychiatric hospitalization at
Cascade Behavioral Health Hospital (Cascade). After the transfer to Cascade,
K.H. attempted to elope 1, but was not permitted to do so because the staff
members observed that she was agitated and uncooperative, as well as
displaying “aggression, disorganized and paranoid thoughts with poor insight into
her current condition.” The day after admission to Cascade, a designated crisis
responder filed an initial petition of detention alleging that K.H. presented an
imminent risk of harm to her health and safety and was gravely disabled. K.H.
was then detained under the Involuntary Treatment Act (ITA), chapter 71.05
RCW.
On April 13, Cascade filed a petition requesting K.H. be committed for a
14-day involuntary commitment. The petition alleged that K.H. was gravely
disabled as a result of a mental disorder and was in danger of serious physical
harm. The petition explained the facts supporting the finding as follows:
[K.H.] suffers from a mental illness and has a history of at least 1 ITA detentions [sic] prior to her current admission. [K.H.] agreed to voluntary hospitalization at Cascade, due to vague suicidal ideations, paranoia, delusions, and auditory and visual hallucinations. When under voluntary admission, [K.H.] attempted to elope on more than one occasion, and was noted to be disorganized, verbally aggressive to the point that a show of
1 Eloping refers to running or slipping away from a mental institution setting.
2 No. 82688-3-I/3
support by staff was called, agitated, and uncooperative. Additionally, respondent was noted to have mumbled and incoherent speech, refusing medications, impulsive behaviors, and on-going psychosis. Since moving to involuntary detention at Cascade Behavioral Health, she remains symptomatic and continued inpatient psychiatric hospitalization is required to stabilize her functioning.
The State amended the petition adding another basis for commitment as a
result of K.H.’s mental disorder: “a likelihood of serious harm to others and/or
others’ property.” The supporting facts also were amended adding “[K.H.] has
twice attempted to elope since her ITA admission and during the most recent
attempt caused a secure door to crack as a result of her kicking and pushing
against it.” The State soon after notified defense counsel that K.H. also had to
be restrained by several people that morning because K.H. tried to elope again,
and one of the doctor’s fingers got cut. K.H. waived her appearance at the
probable cause hearing held that same day.
The State told the superior court commissioner pro tem that it was seeking
K.H.’s commitment through four statutory grounds—substantial risk of harm to
another person, substantial risk of harm to others’ property, and grave disability
under both prongs (a) and (b) of RCW 71.05.020(24).
At the beginning of the hearing, the State announced the witnesses it
intended to call, including K.H.’s mother. K.H. did not object.
Cascade employee Erika Zimmerman testified as to K.H.’s various
incidents at the hospital beginning April 8. She stated that when she responded
to a code gray, which is the code for a combative person, K.H. was “agitated,
loud, profane, refusing to follow directions” and “appeared confused.” She also
3 No. 82688-3-I/4
responded to an incident on April 14, when K.H. eloped from her unit and
remained by the elevators. She again appeared agitated, loud, and profane, and
swung a notebook at staff but did not make contact. The following day,
Zimmerman responded to a similar incident in which K.H. had eloped from her
unit, and when she was taken back into her unit, she kicked and cracked a
wooden door.
The commissioner then heard testimony from K.H.’s mother. The mother
testified that over the last eight or nine months that she had been visiting K.H.
every day because she was “greatly concerned about her state of mind and her
living conditions and the things that are happening around her.” The mother
testified that she found K.H. in her bed “underneath all kind of clothes, not
speaking,” and the house appeared to be “tor[n] up.” The mother described the
kitchen as disorganized and unsanitary with the tub being filled with toilet paper
and water and the toilet full of “waste.” The mother encouraged K.H. to leave the
residence because it had become unlivable but K.H. refused. Later, the mother
convinced K.H. to check herself into the hospital.
The mother recounted that one time when she went over to K.H.’s
residence to talk to her, K.H. became upset and threw a bowl of milk into and at
the mother’s car. The mother feared K.H. was going to physically attack her.
The mother also testified that K.H. had recently cut holes in the walls of her
property, noting that K.H. has previously cut holes in the walls because she
thought something was in the ceiling.
4 No. 82688-3-I/5
After the mother finished her testimony and was excused by the
commissioner, K.H.’s counsel moved to strike her testimony because counsel
alleged he received no notice of the facts the mother testified to relating to harm
to property (the holes cut in the wall) and harm to others (the milk being thrown at
the mother’s car). The commissioner denied the motion because counsel knew
the mother was listed as one of the witnesses for the hearing, had the ability to
interview the mother before the hearing, and cross-examined her during the
hearing. K.H. did not request a continuance.
Next, Hyemin Song, a court evaluator at Valley Medical Center, testified to
K.H.’s laboratory results. She testified that K.H.’s urinalysis was concerning for a
urinary tract infection and showed traces of ketones, and her chemistry panel
was noted for hypokalemia, which is a potassium deficiency. Dr. Robert Beattey,
a clinical psychologist and court evaluator for Cascade, testified that the
hypokalemia and ketones in urine may suggest malnutrition. Her urine drug
screen was also positive for amphetamines and cocaine.
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Detention of No. 82688-3-I
K.H. DIVISION ONE
UNPUBLISHED OPINION
COBURN, J. — K.H. challenges a 14-day involuntary commitment order
based upon the grounds that she posed a substantial risk of harm to others, and
others’ property, and was gravely disabled. K.H. contends that her due process
rights were violated because the State did not provide formal notice of the facts
relied upon to support three of the four reasons justifying the commitment. The
challenged testimony related to laboratory results and K.H.’s mother’s testimony
relating to harm to others and others’ property. K.H. did not object to the
laboratory results. Sufficient evidence supports all the grounds for commitment
even without the challenged portion of the mother’s testimony. The commitment
may be based on the single basis K.H. does not challenge. Even if we were to
find error, such error was harmless. We affirm.
Citations and pin cites are based on the Westlaw online version of the cited material. No. 82688-3-I/2
FACTS
In April 2021, K.H.’s mother brought her to the emergency department at
Valley Medical Center because she was concerned about her state of mind and
living conditions. K.H. voluntarily agreed to psychiatric hospitalization at
Cascade Behavioral Health Hospital (Cascade). After the transfer to Cascade,
K.H. attempted to elope 1, but was not permitted to do so because the staff
members observed that she was agitated and uncooperative, as well as
displaying “aggression, disorganized and paranoid thoughts with poor insight into
her current condition.” The day after admission to Cascade, a designated crisis
responder filed an initial petition of detention alleging that K.H. presented an
imminent risk of harm to her health and safety and was gravely disabled. K.H.
was then detained under the Involuntary Treatment Act (ITA), chapter 71.05
RCW.
On April 13, Cascade filed a petition requesting K.H. be committed for a
14-day involuntary commitment. The petition alleged that K.H. was gravely
disabled as a result of a mental disorder and was in danger of serious physical
harm. The petition explained the facts supporting the finding as follows:
[K.H.] suffers from a mental illness and has a history of at least 1 ITA detentions [sic] prior to her current admission. [K.H.] agreed to voluntary hospitalization at Cascade, due to vague suicidal ideations, paranoia, delusions, and auditory and visual hallucinations. When under voluntary admission, [K.H.] attempted to elope on more than one occasion, and was noted to be disorganized, verbally aggressive to the point that a show of
1 Eloping refers to running or slipping away from a mental institution setting.
2 No. 82688-3-I/3
support by staff was called, agitated, and uncooperative. Additionally, respondent was noted to have mumbled and incoherent speech, refusing medications, impulsive behaviors, and on-going psychosis. Since moving to involuntary detention at Cascade Behavioral Health, she remains symptomatic and continued inpatient psychiatric hospitalization is required to stabilize her functioning.
The State amended the petition adding another basis for commitment as a
result of K.H.’s mental disorder: “a likelihood of serious harm to others and/or
others’ property.” The supporting facts also were amended adding “[K.H.] has
twice attempted to elope since her ITA admission and during the most recent
attempt caused a secure door to crack as a result of her kicking and pushing
against it.” The State soon after notified defense counsel that K.H. also had to
be restrained by several people that morning because K.H. tried to elope again,
and one of the doctor’s fingers got cut. K.H. waived her appearance at the
probable cause hearing held that same day.
The State told the superior court commissioner pro tem that it was seeking
K.H.’s commitment through four statutory grounds—substantial risk of harm to
another person, substantial risk of harm to others’ property, and grave disability
under both prongs (a) and (b) of RCW 71.05.020(24).
At the beginning of the hearing, the State announced the witnesses it
intended to call, including K.H.’s mother. K.H. did not object.
Cascade employee Erika Zimmerman testified as to K.H.’s various
incidents at the hospital beginning April 8. She stated that when she responded
to a code gray, which is the code for a combative person, K.H. was “agitated,
loud, profane, refusing to follow directions” and “appeared confused.” She also
3 No. 82688-3-I/4
responded to an incident on April 14, when K.H. eloped from her unit and
remained by the elevators. She again appeared agitated, loud, and profane, and
swung a notebook at staff but did not make contact. The following day,
Zimmerman responded to a similar incident in which K.H. had eloped from her
unit, and when she was taken back into her unit, she kicked and cracked a
wooden door.
The commissioner then heard testimony from K.H.’s mother. The mother
testified that over the last eight or nine months that she had been visiting K.H.
every day because she was “greatly concerned about her state of mind and her
living conditions and the things that are happening around her.” The mother
testified that she found K.H. in her bed “underneath all kind of clothes, not
speaking,” and the house appeared to be “tor[n] up.” The mother described the
kitchen as disorganized and unsanitary with the tub being filled with toilet paper
and water and the toilet full of “waste.” The mother encouraged K.H. to leave the
residence because it had become unlivable but K.H. refused. Later, the mother
convinced K.H. to check herself into the hospital.
The mother recounted that one time when she went over to K.H.’s
residence to talk to her, K.H. became upset and threw a bowl of milk into and at
the mother’s car. The mother feared K.H. was going to physically attack her.
The mother also testified that K.H. had recently cut holes in the walls of her
property, noting that K.H. has previously cut holes in the walls because she
thought something was in the ceiling.
4 No. 82688-3-I/5
After the mother finished her testimony and was excused by the
commissioner, K.H.’s counsel moved to strike her testimony because counsel
alleged he received no notice of the facts the mother testified to relating to harm
to property (the holes cut in the wall) and harm to others (the milk being thrown at
the mother’s car). The commissioner denied the motion because counsel knew
the mother was listed as one of the witnesses for the hearing, had the ability to
interview the mother before the hearing, and cross-examined her during the
hearing. K.H. did not request a continuance.
Next, Hyemin Song, a court evaluator at Valley Medical Center, testified to
K.H.’s laboratory results. She testified that K.H.’s urinalysis was concerning for a
urinary tract infection and showed traces of ketones, and her chemistry panel
was noted for hypokalemia, which is a potassium deficiency. Dr. Robert Beattey,
a clinical psychologist and court evaluator for Cascade, testified that the
hypokalemia and ketones in urine may suggest malnutrition. Her urine drug
screen was also positive for amphetamines and cocaine.
Beattey also testified to his opinions on K.H.’s mental state and its
implications. He opined that based on reports and his observations that K.H. had
schizoaffective disorder, which is a behavioral health disorder associated with
mental and emotional symptoms. He explained the basis for his opinion being
that she has had suicidal ideation, she was described in bed not being able to
communicate under a pile of clothes, her inability to take care of herself, and that
her mood was extremely irritable and elevated. Further, she had been reporting
psychotic symptoms evidenced by auditory hallucinations, talking to herself,
5 No. 82688-3-I/6
delusional thought processes, and her inability to maintain linear thoughts and
follow directions.
He opined that she was a substantial risk of harm to others and others’
property. He relied on K.H.’s presentation of paranoid delusions driving her
behavior, evidenced by when she attempted to elope multiple times and injured a
staff member and when she tried kicking through the door to escape the hospital.
He further relied on the mother’s testimony that K.H. was generally dysregulated,
evidenced by K.H. throwing milk at her mother’s car and that K.H. damaged her
residence, which is no longer habitable.
He also testified that K.H. was gravely disabled based on the fact she
failed to provide for her essential needs of health and safety, due to her urinary
tract infection, the ketones found in her urine, the potassium deficiency, and her
inability to live in her residence due to the condition of her bathroom and kitchen.
Beattey testified that K.H. also was gravely disabled because she was
manifesting severe deterioration in routine functioning, as evidenced by the fact
her emotions are so dysregulated that she could not function in the community
without assistance. Additionally, in the recent past, she had insight into the fact
that she needed help with her mental health symptoms by going with her mother
to the hospital.
The commissioner found by a preponderance of the evidence that the
petitioner satisfied its burden on all four grounds supporting involuntary
commitment under RCW 71.05.240. First, the commissioner found that K.H.
presented a substantial risk of harm to others “as evidenced by behavior which
6 No. 82688-3-I/7
has caused such harm or which places another person or persons in reasonable
fear of sustaining such harm as a result of a mental disorder.” It considered the
incidents Zimmerman had responded to, including when K.H. swung her
notebook at staff, and when one of the staff member’s finger was injured as a
result of K.H.’s attempted elopement.
Second, the commissioner found that K.H. is a substantial risk of physical
harm to the property of others, evidenced by her kicking the hospital door and
cutting holes in the wall of her home, as well as the conditions of her bathroom
and kitchen, rendering her home uninhabitable.
Third, the commissioner found that K.H. is in danger of serious physical
harm from a failure or inability to provide for her essential needs of health and
safety. K.H.’s home was uninhabitable, she was found under a pile of clothes
unable to answer questions, she had ketones in her urine, a potassium
deficiency, and her mother was checking on her daily.
Fourth, it found that “the respondent is gravely disabled showing severe
deterioration in routine functioning, evidenced by repeated & escalating loss of
cognitive and volitional control over her actions such that, outside the hospital
setting, she would not receive care that is essential to her health and safety.”
The commissioner based its finding on the mother’s testimony that K.H.
previously had been able to communicate with her, but things continued to get
worse over the six-month period leading up to the hearing. She could not take
care of her health and safety needs, and she was so dysregulated that she
cannot function in the community.
7 No. 82688-3-I/8
K.H. filed a motion for revision of the commissioner’s order. K.H. argued
in her motion that the State violated her right to due process by failing to provide
formal notice of the facts relied upon to conclude K.H. satisfied the statutory
requirements for further involuntary treatment. The trial court denied the motion
for revision, adopting all the commissioner’s findings. K.H. appeals. 2
DISCUSSION
K.H. asserts that her due process rights were violated because the State
did not provide notice of the substance of the mother’s testimony and the
laboratory results. Specifically, she asserts the challenged testimony related to
the commissioner concluding that K.H. posed a risk of harm to others and
property of others, and that K.H. was gravely disabled under RCW
71.05.020(24)(a). She does not challenge K.H.’s commitment on the ground she
was gravely disabled under prong (b) of RCW 71.05.020(24).
An essential principle of procedural due process is the right to notice.
Morrison v. State Dep't of Labor & Indus., 168 Wn. App. 269, 273, 277 P.3d 675
(2012). The State must comply with due process by providing the individual with
sufficient notice of the facts supporting the petition for commitment. In re Det. of
R.P., 89 Wn. App. 212, 216, 948 P.2d 856 (1997). The notice provision’s
purpose is to “apprise the affected individual of, and permit adequate preparation
for, an impending ‘hearing.’” In re Det. of Cross, 99 Wn.2d 373, 382, 662 P.2d
828 (1983) (quoting Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 14, 98
2 K.H. also had appealed the commissioner’s denial of a motion to dismiss a 90- day commitment petition but has abandoned that issue on appeal because K.H. agreed to an order committing her for 90 days of less restrictive treatment. 8 No. 82688-3-I/9
S. Ct. 1554, 56 L. Ed. 2d 30 (1978)). To accomplish this, the notice must
indicate the issues the State will address at the hearing; only if the notice meets
these standards has the affected person received adequate notice protecting
their due process rights. Id.
A petition for 14-day involuntary treatment may only be filed in the
following circumstance:
The professional staff of the facility providing evaluation services has analyzed the person’s condition and finds the condition is caused by a behavioral health disorder and results in: (a) A likelihood of serious harm; (b) the person being gravely disabled; or (c) the person being in need of assisted outpatient behavioral health treatment; . . . and are prepared to testify those conditions are met.
RCW 71.05.230(1). The petition “shall state the facts that support the finding that
such person, as a result of a behavioral health disorder, presents the likelihood of
serious harm, or is gravely disabled.” RCW 71.05.230(4)(b).
RCW 71.05.240(4)(a) provides the possible grounds on which the court
can base a commitment:
[A]t the conclusion of the probable cause hearing, if the court finds by a preponderance of the evidence that such person, as the result of a behavioral health disorder, presents a likelihood of serious harm, or is gravely disabled, and, after considering less restrictive alternatives to involuntary detention and treatment, finds that no such alternatives are in the best interests of such person or others, the court shall order that such person be detained for involuntary treatment not to exceed fourteen days. . . .
RCW 71.05.020(24) provides the following definitions of gravely disabled:
"Gravely 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
9 No. 82688-3-I/10
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.
In the instant case, the court committed K.H. based on all four grounds
under RCW 71.05.240(4)(a), including both prongs of the gravely disabled
statute. However, a single statutory basis is sufficient to support a commitment.
First, K.H. did not timely object to the laboratory results. We may refuse to
review any claim of error which was not raised in the trial court. RAP 2.5(a). In
order for K.H. to meet RAP 2.5(a) and raise an error for the first time on appeal,
she must demonstrate that the error is manifest, and the error is truly of
constitutional dimension. State v. O’Hara, 167 Wn.2d 91, 98, 217 P.3d 756
(2009). “Manifest” in RAP 2.5(a)(3) requires a showing of actual prejudice.
O’Hara, 167 Wn.2d at 98 (citing State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d
125 (2007)). To show actual prejudice, K.H. must make a plausible showing that
the claimed error had practical and identifiable consequences in the trial of the
case. Id. at 99 (citing State v. WWJ Corp., 138 Wn.2d 595, 603, 980 P.2d 1257
(1999)). K.H. cannot show actual prejudice because she does not challenge one
of the bases, prong (b) under the gravely disabled statute that supports the
commitment. Thus, K.H. waives her challenge as to this claim.
The State also contends that K.H. waived her claims as to the mother’s
testimony because K.H. made a “strategic decision” to wait until the mother had
been excused before moving to strike her testimony. Generally, an objection
must be made as soon as the basis of the objection becomes known and at a
time when the trial judge may act to correct the error. State v. Leavitt, 49 Wn.
10 No. 82688-3-I/11
App. 348, 357, 743 P.2d 270 (1987) (citing 5K KARL B. TEGLAND, W ASHINGTON
PRACTICE: EVIDENCE § 10 (1982). However, K.H. was not making an evidentiary
objection, K.H. was moving to strike testimony based on lack of notice of facts
testified to by the mother. Regardless, we need not determine if the
commissioner erred in denying the motion to strike because any such error was
harmless. “‘Evidential error is harmless if, without it, the trial court would
necessarily have arrived at the same conclusion.’” Matter of Det. of T.C., 11 Wn.
App. 2d 51, 59, 450 P.3d 1230, (2019) (quoting Vandercook v. Reece, 120 Wn.
App. 647, 652, 86 P.3d 206 (2004)).
Even without the mother’s testimony, the record establishes that sufficient
evidence supported the three statutory grounds K.H. challenges. Beattey
testified that K.H. had schizoaffective disorder, which is a behavioral health
disorder. First, as to substantial risk of physical harm to others, Zimmerman
testified as to four incidents involving K.H. In one instance, she swung a
notebook and was kicking at staff. In another instance, a doctor was actually
harmed as a result of K.H.’s actions—his finger was cut and bleeding—which
Beattey also testified to. As to the substantial risk of harm to the property of
others, Zimmerman testified that K.H. kicked and cracked a wooden door at the
hospital in her attempt to elope. Finally, Beattey testified that K.H. was gravely
disabled and unable to provide for her health and safety evidenced by the
ketones in her urine, her potassium deficiency, and urinary tract infection. Even
if any of the challenged grounds did not support the commitment, K.H. would still
11 No. 82688-3-I/12
have been committed under RCW 71.05.020(23)(b), which she did not challenge.
We affirm.
WE CONCUR: