        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 In the Matter of the Detention of            No. 78338-6-1

                                              DIVISION ONE
 J.G.
                                              UNPUBLISHED OPINION

                                             FILED: June 24, 2019


        CHUN, J. — After a 72-hour emergency detention for mental health

evaluation and treatment, Auburn Multicare petitioned the trial court for an

additional 14 days of involuntary treatment for J.G. They claimed he posed a

likelihood of serious harm to others. After a probable cause hearing, the trial

court concluded the State had met its burden of proof by a preponderance of the

evidence and ordered the treatment. J.G. appeals, claiming (1) the State failed

to provide sufficient evidence that he presented a likelihood of serious harm to

others, and (2) the trial court failed to properly advise him of the impact that

involuntary commitment would have on his right to possess firearms. Sufficient

evidence supports the trial court's findings and conclusions that J.G.'s mental

health gave rise to a likelihood of serious harm. Additionally, the trial court's

failure to advise on the firearms issue was harmless error. Therefore, we affirm.
                                       I.
                                  BACKGROUND

        On March 29, 2018, police responded to a call about J.G., a guest at the

Extended Stay Hotel in Bellevue, Washington. J.G. displayed concerning
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behavior—including paranoia, peeking around corners, and aggressiveness—that

made staff and other guests feel uncomfortable. Upon finding J.G.'s room

empty, two officers proceeded to search the hotel for him.

        The officers found J.G. in a fourth floor stairway landing, sweating

profusely and holding a pistol. According to one officer, he had a "thousand-yard

stare" and "looked like he was in a different state of mind." The officers directed

J.G. to drop the weapon. Although he did not comply immediately, J.G. soon

dropped the pistol. The officers handcuffed J.G. and questioned him. They

discovered the pistol was loaded, and that J.G. legally possessed the properly

registered firearm. He also had a valid concealed pistol license.

        J.G. explained that he had the gun because he feared for his life.

According to J.G., his ex-girlfriend was being held against her will, possibly on

the roof of the building. He believed men were chasing him as he tried to find

and rescue her. After speaking with J.G., the officers decided to involuntarily

transport him to Overlake Hospital for a mental health evaluation.

        After transfer to Auburn Multicare Medical Center, J.G. was detained for

72 hours of psychiatric evaluation and treatment. On April 2, 2018, Auburn

Multicare filed, and personally served J.G. with, a petition for an additional 14

days of inpatient treatment. The petition claimed J.G. suffered from a mental

disorder presenting a likelihood of serious harm to himself and others.'




         1 The petition for involuntary commitment also included the ground that J.G. was "gravely
disabled." The State did not raise this issue at the probable cause hearing and it was not a basis
for the court's decision.


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The petition stated that J.G. had been advised of the need for voluntary

treatment but had not accepted it. The petition also asserted that J.G. had been

advised that involuntary commitment pursuant to the petition would result in a

loss of firearm rights.

        The trial court conducted a probable cause hearing on April 4, 2018.2 The

court determined the State had shown by a preponderance of the evidence that

J.G. presented a substantial risk of serious harm to others. The court found that

"ongoing paranoia and delusions endorsed by the Respondent throughout his

subsequent hospitalization and during his testimony in the probable cause

hearing establish a continuing risk of harm to others based on the Respondent's

perceived need to possibly defend himself with deadly force." The court

committed J.G. to 14 days of inpatient mental health treatment. At the

conclusion of the hearing, the trial court advised J.G. that he had lost his right to

possess firearms as a result of the decision.

        J.G. appeals.
                                              II.
                                          DISCUSSION

    A. Sufficiency of Evidence

        The trial court granted the State's petition for 14 days of involuntary

intensive mental health treatment on the ground that J.G. posed a likelihood of

serious harm to others.3 J.G. claims the trial court's decision to commit rested on

        2 The probable cause hearing was initially set to take place on April 3, 2018, but the State
received a continuance due to the unavailability of a material witness.
        3 As an initial issue, the parties agree this case is not moot despite the expiration of J.G.'s
commitment order. "An individual's release from detention does not render an appeal moot
where collateral consequences flow from the determination authorizing such detention." In re


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assumptions and unsupported findings resulting in insufficient evidence of a

mental disorder. The State argues the credibility determinations and factual

findings support the trial court's conclusions. We agree.

       A court may order a person for 14 days of involuntary treatment if the

State demonstrates by a preponderance of the evidence that, as a result of a

mental disorder, the person presents a likelihood of serious harm or is gravely

disabled. RCW 71.05.240(3); In re Detention of W.C.C., 193 Wn. App. 783, 785-

86, 372 P.3d 179 (2016). A "mental disorder" is an organic, mental, or emotional

impairment that "has substantial adverse effects on a person's cognitive or

volitional functions." RCW 71.05.020(37). A "likelihood of serious harm" means

"a substantial risk" of physical harm to self, others, or the property of others.

RCW 71.05.020(35)(a). For a finding of substantial risk of harm to others, the

State must demonstrate "behavior which has caused such harm or which places

another person or persons in reasonable fear of sustaining such harm."

RCW 71.05.020(35)(a)(ii).

       Where, as here, the trial court has weighed the evidence, we limit our

review to determining whether substantial evidence supports the findings and, if

so, whether the findings support the conclusions of law and judgment. In re

Detention of A.S., 91 Wn. App. 146, 162, 955 P.2d 836 (1998); W.C.C., 193 Wn.

App. at 793. "Substantial evidence is 'evidence in sufficient quantum to

persuade a fair-minded person of the truth of the declared premise." A.S., 91

Detention of M.K., 168 Wn. App. 621, 626, 279 P.3d 897 (2012). Commitment orders have
collateral consequences because subsequent commitment proceedings consider prior history of
involuntary commitment. RCW 71.05.012, .212, .245; M.K., 168 Wn. App. at 628-29. Given
these consequences, J.G.'s appeal of his commitment order is not moot.


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Wn. App. at 162 (quoting Holland v. Boeing Co., 90 Wn.2d 384, 390, 583 P.2d
                          h'


621 (1978)). The challenging party must demonstrate that substantial evidence

does not support a finding of fact. A.S., 91 Wn. App. at 162. We do not review

credibility determinations. In re Detention of H.N., 188 Wn. App. 744, 763, 355

P.3d 294 (2015).

       J.G. argues the trial court erroneously based its findings on the absence of

evidence as shown by the trial court's statement that J.G.'s account was "too

fanciful . . . to be considered as based in reality." Similarly, in discussing J.G.'s

mental state, the trial court noted, "the police searched this hotel . . . and I didn't

hear any testimony that they found anything out of the ordinary. There wasn't a

paramilitary force, helicopters, people with guns, a large number of men in suits,

or drug dealers or something else out to get [J.G.]." While J.G. contends these

statements are unsupported by evidence, they stem from the trial court's

conclusions about the credibility of various testimony.

       The trial court expressly found the psychological testimony credible.

Licensed clinical psychologist Bethany O'Neill testified that J.G. "has a significant

delusional system in place that has perseverated throughout his hospital stay

about people holding a friend or ex-girlfriend hostage, that there have been

people after him." According to hospital records, J.G. felt that people were

following him, and he heard voices and the sound of a rifle being loaded and

cocked in the hallway outside his door. J.G. reported having an auditory

hallucination and had recently sought a mental health evaluation. J.G. informed




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No. 78338-6-1/6


hospital staff that he feared for his life and needed to protect himself. Dr. O'Neill

noted J.G.'s poor insight into his mental health treatment needs:
       He still gets upset and believes that his delusional system is real, that
       it's all of us that just aren't understanding; no insight into the need for
       treatment or medication; freely admits and says that he will stop the
       medication once he leaves the hospital; denies the need for
       treatment and clearly has no insight into this situation and how clearly
       dangerous it is.

She also summarized the substantial risk of harm due to J.G.'s delusions: "This

is a recipe for disaster if he's released today, as-is, and quite frankly, the danger

is that he is going to inadvertently shoot someone because he believes his own

delusions up through yesterday and/or get himself shot by police for brandishing

a weapon."

       The trial court based its findings on J.G.'s mental hbalth on this

psychological testimony, rather than merely the absence of evidence confirming

the reality of his delusions. This testimony provides substantial evidence to

support the trial court's findings about J.G.'s mental health, including that he

"suffers from a mental/emotional impairment currently diagnosed as psychosis

(not otherwise specified)," and that his "mental/emotional impairment has a

substantial adverse effect on his cognitive and volitional functions, as evidenced

by symptoms such as mood lability, significant delusional thought process, and

paranoia."4

        In addition to finding Dr. O'Neill's testimony credible, the trial court found

J.G.'s testimony lacked credibility "insofar as it was substantially impacted by his

       4 The trial court's order includes these statements as conclusions of law. Findings of fact
mislabeled as conclusions of law are reviewed as findings of fact. Willener v. Sweetinq, 107
Wn.2d 388, 394, 730 P.2d 45(1986).


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No. 78338-6-1/7


delusional thought process." Furthermore, the trial court found credible the

responding police officer's testimony as to his fear upon encountering J.G. in the

hotel stairwell with a loaded weapon. These credibility determinations are not

reviewable on appeal. See H.N., 188 Wn. App. at 763. Taking these credibility

assessments into account, substantial evidence supports the trial court's finding

that J.G. suffered from a mental disorder which placed another person in

reasonable fear of harm. These findings of fact support the conclusion of law

that J.G. posed a substantial risk of inflicting serious harm on another person.

Therefore, we conclude the trial court did not err in ordering 14 days of

involuntary treatment.

   B. RCW 71.05.240(2)

       Under RCW 71.05.240(2), the trial court must notify the patient of the

impact of involuntary commitment on the right to possess firearms during the

probable cause hearing:
      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 [their] firearm
      rights if the person is subsequently detained for involuntary treatment
      under this section.

       Here, the trial court informed J.G. of the loss of his firearm rights at the

conclusion of the probable cause hearing and after announcing the order of

commitment. The State concedes "the trial court neglected to give the statutorily

required advisement in [J.G.'s] case."




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No. 78338-6-1/8


       J.G. contends the trial court's failure to comply with the notification

requirements in RCW 71.05.240(2) deprived him of the opportunity to preserve

his constitutional right to bear arms. However, J.G. did not raise the issue below.

An appellate court may refuse to review any error not raised in the trial court.

RAP 2.5(a). As an exception to this general rule, a party may raise a manifest

error affecting a constitutional right for the first time on appeal. RAP 2.5(a)(3).

"The defendant must identify a constitutional error and show how the alleged

error actually affected the defendant's rights at trial." State v. Kirkman, 159

Wn.2d 918, 926-27, 155 P.3d 125 (2007). In supplemental briefing, J.G.

acknowledged the failure to preserve the error below and argued manifest

constitutional error subject to review under RAP 2.5(a).

       Assuming, without deciding, that the trial court's failure to comply with

RCW 71.05.240(2) amounts to a manifest constitutional error, the trial court's

omission is subject to a stringent harmless error analysis. See State v. O'Hara,

167 Wn.2d 91, 99, 217 P.3d 756 (2009). "[The exception does not help a

defendant when the asserted constitutional error is harmless beyond a

reasonable doubt." State v. Scott, 110 Wn.2d 682, 687, 757 P.2d 492 (1988).

       Here, the trial court did not provide the advisement required by

RCW 71.05.240(2). However, J.G. received notice of the impact of involuntary

commitment on his right to own a firearm through the petition for commitment.

The petition for involuntary commitment stated that J.G. had been advised of the

need for voluntary treatment but had declined. The petition also included the

sworn statement that "respondent has been advised that involuntary commitment


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pursuant to this 14-day petition will result in the loss of firearm rights."

Additionally, hospital staff noted that as he prepared for court, J.G. stated he did

not want to lose his gun rights.

       Based on the record, J.G. received the information that involuntary

commitment would lead to the loss of his firearm rights. Moreover, the record

lacks any indication that the advisement would have resulted in a different

outcome. J.G. did not accept voluntary treatment. He demonstrated poor insight

into his need for treatment and admitted he would stop medication after leaving

the hospital. Therefore, the omission was harmless beyond a reasonable doubt.

       While we reach the conclusion that the error was harmless, we emphasize

that RCW 71.05.240(2) is mandatory. The advisement must be given in a

probable cause hearing prior to entry of an order of commitment.

       Affirmed.



                                                             -,....,, .

WE CONCUR:




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