                                                                          FILED
                                                                       AUGUST 16, 2016
                                                                   In the Office of the Clerk of Court
                                                                 WA State Court of Appeals, Division Ill




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION THREE

                                                )
In the Matter of the Involuntary                )         No. 33439-2-111
Treatment of                                    )
                                                )
R. Y.t                                          )         UNPUBLISHED OPINION
                                                )

         SIDDOWAY, J. -    Mental illness alone is not a constitutionally adequate basis for

involuntary commitment of an individual, nor is it enough to show that care or treatment

of a person's mental illness would be in his or her best interest. Washington law does,

however, authorize involuntary commitment when a person is gravely disabled by a

mental disorder that presents a danger of serious physical harm resulting from his or her

failure to provide for essential human needs of health or safety.

         This case requires us to determine whether the State, in petitioning to extend the

involuntary commitment of Ryan Yoder (a pseudonym), presented evidence sufficient to

establish he was in danger of serious physical harm, or established only that extending his



      t A Motion to Change Caption and to Refer to Appellant by Initials was filed by
R.Y. and was referred to the panel. We grant the motion, although we choose to use a
pseudonym rather than initials in the body of the opinion.
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     In re lnvol. Treatment ofR. Y.
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     commitment would be in Mr. Yoder's best interest. We agree with Mr. Yoder that the
I    State's evidence was constitutionally insufficient. Although Mr. Yoder was released

II   before this appeal could be heard, the appeal remains viable because of the potential
II   future consequences of the superior court's order. 1 We reverse.
I
                          FACTS AND PROCEDURAL BACKGROUND
I
            Ryan Yoder is a 67-year-old man who has been diagnosed with two mental

     illnesses. One is post-traumatic stress disorder associated with his military service in
II
     Vietnam. The other is "schizoaffective disorder or bipolar disorder," which were

     described in proceedings below as "very similar." Clerk's Papers (CP) at 17. He was

     hospitalized for mental illness two times within the three years prior to the commitment

     extension at issue in this case. Following the completion of the second hospitalization in

     December 2014, Mr. Yoder's commitment was extended for an additional 90 days under

     a less restrictive alternative (LRA) to involuntary intensive treatment. He was remanded

     to Paul's Place, an assisted living facility in Colfax, for treatment.

            This appeal arises out of an extension of that commitment to an LRA. Before the

     90-day treatment ordered by the court expired, Jim Trivelpiece, a designated mental


            1
              "An individual's release from detention does not render an appeal moot where
     collateral consequences flow from the determination authorizing such detention." In re
     Det. of MK., 168 Wn. App. 621, 626, 279 P.3d 897 (2012). Under RCW 71.05.012,
     .212. and .245, "each order of commitment entered up to three years before the current
     commitment hearing becomes a part of the evidence against a person seeking denial of a
     petition for commitment." MK., 168 Wn. App. at 626.

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health professional 2 who worked with Mr. Yoder at Paul's Place, petitioned the Whitman

County Superior Court to extend Mr. Yoder's LRA detention by 180 days. The petition

alleged that continued detention was warranted because Mr. Yoder was gravely disabled

due to repeated and escalating loss of cognitive or volitional control over his actions.

       A hearing on the petition was conducted on May 7, 2015. Mr. Trivelpiece and

another designated mental health professional, Kelly Heinlen, testified for the State.

They testified that Mr. Yoder was very concerned about a government conspiracy

because he felt "his detention was illegal" and "there was no basis for it." Report of

Proceedings (RP) at 20. The most serious example provided of Mr. Yoder's occasional

symptoms of psychosis was his report to Mr. Trivelpiece that in his last hospitalization,

surgeons had implanted an electronic device in him that broadcasts his thoughts to

Twitter. Both professionals agreed he was doing well recently, although they tended to

attribute that to the terms of his commitment at Paul's Place. Additional aspects of their

testimony are discussed below, in connection with the focus of the dispute on appeal.


       2
         "Designated mental health professional[ s]" are "mental health professional[ s]
designated by the county or [the regional support network] to perform the duties specified
in [chapter 71.05 RCW]," which deals with evaluation, treatment and commitment of
individuals with mental illness. RCW 71.05.020(11). There was testimony at the hearing
below that designated mental health professionals have clinical training "in assessing
mental illness, assessing dangerousness, danger to self, danger to others, grave
disability." Report of Proceedings (RP) at 13.




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       At the conclusion of the hearing, the trial court orally ruled, finding that the

evidence did not support a finding that Mr. Yoder was gravely disabled by virtue of

repeated and escalating loss of cognitive or volitional control, as alleged in Mr.

Trivelpiece's petition. It did find sufficient evidence that Mr. Yoder had a pattern of

decompensating to the point where hospitalization was required, however, and concluded

that this pattern established that he was gravely disabled.

       Findings and conclusions and an order of involuntary treatment were presented by

the State and entered by the court. The court's conclusion, based on its findings, was that

Mr. Yoder "is gravely disabled." CP at 16. The court extended the LRA for an

additional 90 days, rather than the 180-day extension requested.

       Mr. Yoder appeals.

                                        ANALYSIS

       "[I]nvoluntary commitment for mental disorders is a significant deprivation of

liberty which the State cannot accomplish without due process of law." In re LaBelle,

107 Wn.2d 196, 201, 728 P .2d 13 8 ( 1986) (citing Dunner v. McLaughlin, 100 Wn.2d

832,676 P.2d 444 (1984); In re Det. of Harris, 98 Wn.2d 276,654 P.2d 109 (1982)).

Although the State has a legitimate interest under its parens patriae powers "in providing

care to those who are unable to care for themselves ... mental illness alone is not a

constitutionally adequate basis for involuntary commitment." LaBelle, 107 Wn.2d at

201. Accordingly, "a State cannot constitutionally confine without more a nondangerous

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individual who is capable of surviving safely in freedom by himself or with the help of

willing and responsible family members or friends." O'Connor v. Donaldson, 422 U.S.

563, 576, 95 S. Ct. 2486, 45 L. Ed. 2d 396 (1975).

       To this end, the overarching approach of chapter 71.05 RCW is that individuals

may be involuntarily committed for mental health treatment (or their commitment may be

extended) for limited periods of time, based on probable cause that they present a

likelihood of serious harm or are gravely disabled, subject to a right to legal

representation and an early hearing at which the State must prove the likelihood of

serious harm or grave disability.

       In the context presented here-an extension of commitment to an LRA-the State

may prove, and undertook to prove here, that Mr. Yoder "[c]ontinues to be gravely

disabled." RCW 71.05.320(3)(d). The grave disability must be shown by clear, cogent,

and convincing evidence, meaning that the ultimate fact in issue is shown to be

"highly probable." LaBelle, 107 Wn.2d at 209; RCW 71.05.310; Morris v. Blaker, 118

Wn.2d 133, 137, 821 P.2d 482 (1992).

       "Gravely disabled" is defined in chapter 71.05 RCW as being present in two

distinct circumstances; it is a condition in which a person, as a result of a mental disorder:

       (a) "[i]s 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

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       her actions and is not receiving such care as is essential for his or her health
       or safety."

RCW 71.05.020(17). As previously noted, the trial court orally ruled that the evidence

did not support a finding that Mr. Yoder was gravely disabled in the manner described by

the second alternative, provided by RCW 71.05.020(17)(b), even though that was the

basis for the grave disability alleged in Mr. Trivelpiece's petition.

       Instead, apparently looking at the standard form petition on which two boilerplate

allegations were checked as applying, the trial court stated in its oral ruling:

               The second basis is, - the relevant one, the real relevant one here,
       that I see is a close call. Prior history or pattern of decompensation and
       discontinuation of treatment that results in continual repeated
       hospitalization. . . . Two hospitalizations is substantial restriction. And
       you do fine when you're on an LRA, Mr. Young, you get off the LRA,
       within a short time you wind back up in - in the hospital.
               It's a close case here as I see it. But there is a prior history, there is a
       pattern of decompensation, of doing things like losing insurance, losing the
       ability to get the medication that you need, and a loss of ability to perhaps
       recognize you need to continue taking your medication, and taking it.

RP at 41-42.

       A problem with this explanation for the court's ruling is that the second allegation

checked on the standard petition to which the court was referring is not, standing alone, a

basis for commitment. The second allegation checked on the petition states:

       Respondent has a prior history or pattern of decompensation and
       discontinuation of treatment resulting in: 1) repeated hospitalizations, or 2)
       repeated peace officer interventions resulting in juvenile offenses, criminal
       charges, diversion programs or jail admissions.


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CP at 2. Clearly, this allegation is derived from RCW 71.05.285, which provides that a

prior history of decomposition and discontinuation of treatment resulting in repeated

hospitalizations (or the other consequences identified) is evidence, which "may be used

to provide a factual basis for concluding that the individual would not receive, if released,

such care as is essential for his or her health or safety." But while the history is evidence

(and is even to be given "great weight;" see id.), the grave disability that the State was

required to prove under RCW 71.05.020(17)(a) was not the history, but that Mr. Yoder

"[i]s in danger of serious physical harm resulting from a failure to provide for his or her

essential human needs of health or safety." (Emphasis added.) It is that danger of serious

physical harm resulting from a failure to provide for essential human needs of health or

safety that we must decide was or was not supported by clear, cogent and convincing

evidence presented by the State.

                                    Challenged findings

       We tum to the trial court's findings of fact challenged by Mr. Yoder: findings 1, 2,

3, 5, 6, and 7. Our review of an involuntary commitment order "is limited to determining

whether substantial evidence supports the findings and, if so, whether the findings in tum

support the trial court's conclusions oflaw and judgment." LaBelle, 107 Wn.2d at 209.




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      Finding 1. There is recent, tangible evidence of a failure or inability to
      provide for essential human needs such as food, shelter, clothing, and
      medical treatment, which presents a high probability ofserious physical
      harm in the near future unless adequate treatment is afforded. 3

       The record contains no evidence to support the first challenged finding-in fact, in

its oral ruling, the court observed, "I haven't heard anything-about anything occurring

at any time as to not being able to take care of himself, or posing a danger to others." RP

at 39. If anything, evidence suggested that Mr. Yoder was able to care for himself. The

State's witnesses testified that when picked up by authorities, Mr. Yoder did not appear

underfed or emaciated. They acknowledged he was receiving disability or other

government benefits, and did not challenge Mr. Yoder's lawyer's suggestion that he was

receiving over $3,000 a month. There was no evidence he was homeless. With no

evidence to rely on, the trial court erred when it found that Mr. Yoder failed to, or was

unable to, provide for his essential human needs such as food, shelter, or clothing. This

portion of finding 1 must be stricken.

       There was testimony that Mr. Yoder had a history of failing to take steps to

maintain his medical insurance when he was released from an LRA, and as a


       3
         Case law holds that in order to support a determination that an individual is
gravely disabled under alternative (a), the State "must present recent, tangible evidence"
of failure or inability to provide for the essential human needs "which presents a high
probability of serious physical harm within the near future unless adequate treatment is
afforded." LaBelle, 107 Wn.2d at 204-05 (emphasis added).




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     consequence, failed to obtain and take medication. While this testimony provided a

     recent tangible example, it did not support the associated finding of a "high probability of

     serious physical harm in the near future." Even when he was not taking medication, Mr.

     Yoder evidently did not suffer serious physical harm: he was able to care and provide for

     himself, and there was "[n]o known history of assaultiveness." CP at 6. He had no

     history of being picked up by authorities because he had harmed himself or anyone else.

            The most serious harm identified in the record as having befallen this 67-year-old.

     man was that one of his detentions was triggered when he was found walking along the

     side of the road in a snowstorm wearing sandals. As observed in LaBelle, in applying the

     gravely disabled standard of RCW 71.05.020( 17), we must avoid "imposing majoritarian

     values on a person's chosen lifestyle which, although not sufficiently harmful to justify

     commitment, may be perceived by most of society as eccentric, substandard, or otherwise

     offensive." 107 Wn.2d at 204. Wearing sandals in the winter is not sufficiently harmful

     to justify commitment.

           Finding 2. The failure or inability to provide for essential human needs
           arose as a result of a mental disorder.

           Finding 5. The Respondent is in danger of serious physical harm resulting
           from his failure to, or inability to provide for his essential health and safety
           needs.

           Because finding 1 is not supported by substantial evidence, findings 2 and 5,

     which are derivative, similarly lack support. While there is substantial evidence to


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support finding 2's assertion that Mr. Yoder has a mental disorder, the remainder of the

finding-that he was unable to provide for essential human needs-is not supported by

the evidence. Nor is finding 5's assertion that Mr. Yoder is in danger of serious physical

harm resulting from his failure or inability to provide for his essential health and safety

needs.

         Finding 6. Two examining physicians, or an examining physician and
         mental health professionals have analyzed the Respondent's condition and
         were willing to testify that the Respondent has a mental disorder that
         results in a likelihood ofserious harm or that the Respondent is gravely
         disabled.

         Finding 7. The Respondent has been advised of the need for, but has not
         accepted, voluntary treatment.

         Finding 6 is not supported by the evidence. The only two witnesses who testified

at the trial were both mental health professionals; no physician testified. While finding 7

seems likely given the contested nature of the hearing, the State offered no evidence that

Mr. Yoder was advised of the need for, and had declined, voluntary treatment.

         Finding 3. The Respondent evidences a prior history or pattern of
         decompensation and discontinuation of treatment resulting in repeated
         hospitalizations.

         There was testimony that Mr. Yoder had been hospitalized twice in the preceding

three-year period and as earlier noted, the trial court found in its oral ruling that a pattern

of decompensating following release had been demonstrated. This finding is supported

by substantial evidence. The State points out that the historical pattern is, by statute,



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entitled to great weight, but even the State does not contend that the historical pattern

alone establishes that Mr. Yoder was gravely disabled.

       Where, as here, there is a total absence of evidence that Mr. Yoder was in danger

of serious physical harm as a result of a failure or inability to provide for his essential

human needs (and there is evidence to the contrary) the few findings by the trial court

that are supported by the evidence do not support its legal conclusion that Mr. Yoder was

gravely disabled. As a result, Mr. Yoder was denied his right to due process when the

court entered an order extending his LRA for an additional 90 days.

       The order of involuntary treatment is reversed.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:



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