                                                                    FILED
                                                                 JUNE 20, 2017
                                                         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 re the Involuntary Treatmentof:           )         No. 34388-0-111
                                             )
                                             )
B.W.                                         )         UNPUBLISHED OPINION
                                             )
                                             )

       LAWRENCE-BERREY, J. - B.W. appeals the trial court's April 2016 order

committing him to 180 days of involuntary treatment. The order committed him on the

basis that he was gravely disabled. B.W. argues the State presented insufficient evidence

of grave disability under either statutory definition in RCW 71.05.020(17). Because

sufficient evidence supports the trial court's conclusion that B.W. was gravely disabled

under subsection (b), we affirm.

                                         FACTS

       In July 2015, B.W. voluntarily admitted himself to Foothills Evaluation and

Treatment Facility (Foothills) because he had thoughts about harming other people. B.W.

had previously been diagnosed with paranoid schizophrenia. While at Foothills, B. W.

reported having command hallucinations instructing him to kill his family members in
No. 34388-0-111
In re Involuntary Treatment of B. W.


southwestern Washington. He asked to be discharged from Foothills so he could go to

southwestern Washington.

       In light ofB.W.'s request to be discharged, a designated mental health professional

filed a petition to involuntarily detain him for up to 72 hours on the basis that he posed a

likelihood of serious harm to others. The next day, a nurse practitioner and psychologist

filed a petition to involuntarily detain and treat B.W. for 14 days, again on the basis that

he posed a likelihood of serious harm to others. B.W. was appointed counsel and

stipulated that his mental disorder resulted in a likelihood of serious harm to others. The

trial court entered an order committing him to 14 days of involuntary treatment at

Foothills.

       The next day, the nurse practitioner and psychologist filed a petition to

involuntarily detain and treat B.W. for 90 days on the bases oflikelihood of serious harm

to others and grave disability. B.W., through counsel, stipulated to these allegations. The

trial court entered an order committing him to 90 days of involuntary treatment, beginning

at Foothills and then at Eastern State Hospital once a bed became available. B.W. was

transferred to Eastern State the next week.

       In early October 2015, shortly before the expiration of the 90-day order, B.W. was

interviewed by Dr. Darlene Walsh-Martin. B.W. told Dr. Walsh-Martin he experienced



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homicidal ideations two or three times per day. He also stated he did not need medication

and wanted to leave the hospital. Dr. Walsh-Martin believed further detention and

treatment were appropriate. Dr. Walsh-Martin met with B.W.'s psychiatrist, Dr.

Catherine Miller, who also believed B.W. was psychiatrically unstable and needed

continued hospitalization.

       Dr. Walsh-Martin and Dr. Miller filed a petition to involuntarily detain B.W. for

180 days on the bases of likelihood of serious harm to others and grave disability. B.W.,

through counsel, stipulated to the allegations in the commitment petition. The trial court

entered an order committing him to 180 days of involuntary treatment solely on the basis

of grave disability.

       In late March 2016, shortly before the expiration of the 180-day order, B.W. was

interviewed by Dr. Patricia Gunderson, a psychologist at Eastern State. B.W. told Dr.

Gunderson his thoughts of hurting other people had not decreased by much. He also

stated he did not want to be discharged from Eastern State because of his homicidal

ideations and because he did not want to go back to prison.

       Dr. Miller and Dr. Gunderson filed a petition to detain B.W. for an additional 180

days. The petition alleged B.W. was gravely disabled. The petition also incorporated a

four page report from Dr. Gunderson, which detailed B.W.'s treatment history. The



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report concluded B.W. was gravely disabled because his mental disorder impaired his

cognitive and volitional functioning, he exhibited assaultive behavior and homicidal

ideations, and he was homeless. B.W. was appointed counsel, was advised of his rights,

and requested a hearing on the petition.

       At the hearing, B. W.' s counsel stated the hearing would not be "particularly

adversarial." Report of Proceedings (RP) at 2. Rather, B.W. requested the hearing so he

could hear, under oath, what Dr. Gunderson's concerns were and what she expected from

him. B.W. also wanted to explore the possibility of being a voluntary patient, so that his

time at Eastern State would count toward his probation.

       The State called Dr. Gunderson. Dr. Gunderson testified B.W. suffers from

schizoaffective disorder, borderline I.Q. (intelligence quotient), polysubstance use

disorder, and cluster B personality features. She described B.W. 's symptoms, which

included auditory hallucinations, impaired sleep, paranoia, anxiety, and homicidal

ideations.

       Dr. Gunderson testified about her concerns with discharging B.W. from Eastern

State. Her concerns included B.W.'s history of going off his medications, as well as his

need for a place to live, after-care services, and inpatient chemical dependency treatment.

She testified B. W. had been taking his medications for several weeks, but had a history of


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refusing them while at Eastern State and going off them while in the community. She

stated B.W.'s history suggested he would not take his medications or go to appointments

if he were discharged from the hospital. She was also concerned he would not comply

with after-care services. She agreed the hospital level of care was currently essential for

B.W.'s health and safety needs, and B.W. would not likely be able to take care of those

needs if released.

       Dr. Gunderson further testified the treatment plan for B.W. was to continue

treating his psychotic symptoms and get him into substance abuse treatment. She did not

believe B.W. would be a good faith voluntary patient, citing his prior refusals to take

medication, go to treatment mall, and follow staff directions. She also believed his

request to be a voluntary patient was an attempt to manipulate the legal system.

       The trial court entered an order committing B.W. to 180 days of involuntary

treatment on the basis that he continued to be gravely disabled. The court entered

findings of fact consistent with the definitions of "gravely disabled" in

RCW 71.05 .020( 17):

                                                VI.
               As a result of a mental disorder it is highly probable that respondent
       is in danger of serious physical harm resulting from a failure to provide for
       his/her essential human needs of health or safety manifested by:
                      ( 1) failure or inability to provide or obtain nourishment.
                      (2) failure or inability to provide or obtain clothing or shelter.

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                      (3) failure to obtain and/or participate in medical treatment.

                                          VII.
              ( 1) Respondent has manifested his/her deterioration in routine
       functioning evidenced by loss of cognitive or volitional control over his/her
       actions.
              (2) Respondent would not receive, if released, essential care for
       his/her health or safety.

Clerk's Papers (CP) at 81-82. The order then stated: "Respondent stipulates that the

allegations contained in the petition are true and correct and incorporated by reference

herein as findings of fact." CP at 82. Following the hearing and entry of the order, B.W.

filed a timely notice of appeal.

                                        ANALYSIS

       B.W. argues insufficient evidence supports the trial court's conclusion that he was

gravely disabled. 1

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

liberty which the State cannot accomplish without due process oflaw." In re Def. of

LaBelle, 107 Wn.2d 196, 201, 728 P.2d 138 (1986). Mental illness alone is not a

constitutionally adequate basis for involuntarily committing someone. Id. Accordingly,


       1
         Although B.W.'s 180-day term of involuntary commitment has expired, this
appeal is not moot because an involuntary commitment order may have adverse
consequences on future involuntary commitment determinations. In re Involuntary
Treatment ofL.TS., 197 Wn. App. 230, 233-34, 389 P.3d 660 (2016); In re Def. of MK.,

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"a State cannot constitutionally confine without more a nondangerous individual who is

capable of surviving safely in freedom by himself or with the help of willing and

responsible family members or friends." 0 'Connor v. Donaldson, 422 U.S. 563, 576, 95

S. Ct. 2486, 45 L. Ed. 2d 396 (1975). "Generally, under the statute, RCW 71.05, persons

may be involuntarily committed for treatment of mental disorders if, as a result of such

disorders, they either ( 1) pose a substantial risk of harm to themselves, others, or the

property of others, or (2) are gravely disabled." LaBelle, 107 Wn.2d at 201-02 (citing

RCW 71.05.020(1), (3), .150, .240, .280, .320). Here, the trial court involuntarily

committed B.W. on the basis that he was gravely disabled.

       A.     B.W.'S STIPULATION IS NOT DISPOSITIVE

       The State asks this court to affirm the commitment order because B.W. stipulated

to the allegations in the commitment petition, which included an allegation that B.W. was

gravely disabled.

       "A 'stipulation' is an express waiver that concedes, for purposes of trial, the truth

of some alleged fact, with the effect that one party need offer no evidence to prove it and

the other is not allowed to disprove it." State v. Case, 187 Wn.2d 85, 90-91, 384 P.3d

1140 (2016) (citing State v. Wolf, 134 Wn. App. 196, 199, 139 P.3d 414 (2006)). In other


168 Wn. App. 621, 625-30, 279 P.3d 897 (2012).

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In re Involuntary Treatment of B. W.


words, a stipulation eliminates the need for proof on a fact or issue. See 3A KARL B.

TEGLAND, WASHINGTON PRACTICE: RULES PRACTICE § CR 2A Stipulations, at 20 (6th

ed. 2013); Wolf, 134 Wn. App. at 197. When a party stipulates to a trial court's factual

findings, that party is precluded from arguing on appeal that insufficient evidence

supports those findings. See State v. Ellison, 172 Wn. App. 710, 715-16, 291 P.3d 921

(2013).

       However, because it is the province of courts to decide issues of law, trial and

appellate courts are not bound by stipulations to legal conclusions. E.g., State v. Drum,

168 Wn.2d 23, 33, 225 PJd 237 (2010). In a case analogous to this one, our Supreme

Court held it is error for an appellate court to refuse to address a criminal defendant's

sufficiency of the evidence claim on its merits, even when the defendant stipulated that

the evidence was sufficient to find him guilty. Id. at 34.

       In Drum, Patrick Drum entered into a contract to participate in drug court, which

provided for the dismissal of a burglary charge if he completed substance abuse

treatment. Id. at 27-28. In the contract, Mr. Drum stipulated that the facts in the police

reports were true and sufficient to support a finding of guilt. Id. at 28. Mr. Drum

eventually left the drug court program. Id. at 29. The trial court held a bench trial and

found Mr. Drum guilty of burglary on the stipulated facts. Id. at 29-30.



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       On appeal, Mr. Drum argued the evidence was insufficient to convict him of

burglary. Id. at 30. The Court of Appeals refused to address Mr. Drum's challenge to the

sufficiency of the evidence on its merits, holding that Mr. Drum waived this challenge

when he signed the drug court contract. Id. at 31.

       Our Supreme Court held that the Court of Appeals erred in refusing to consider the

merits of Mr. Drum's challenge to the sufficiency of the evidence, even though Mr. Drum

stipulated the evidence was sufficient to convict him. Id. at 34. The court reasoned that

the question of whether evidence is sufficient to support a conviction is an issue of law

and, therefore, the Court of Appeals was not bound by Mr. Drum's stipulation that the

evidence was sufficient to find him guilty of burglary. Id. at 33. The Drum court then

reached the merits of Mr. Drum's challenge and independently determined the evidence

was sufficient to sustain his burglary conviction. Id. at 34-39.

       Although B.W. stipulated that he was gravely disabled, grave disability is a legal

conclusion. 2 Like Mr. Drum's stipulation that the evidence was sufficient to find him

guilty, this court is not bound by B.W.'s stipulation that he was gravely disabled. Like in




       2
         Although denoted as a finding of fact, whether B. W. was gravely disabled is a
conclusion of law. See MK., 168 Wn. App. at 624 n.4. This court treats incorrectly
labeled findings as conclusions of law. Id. at 623 n.3.

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Drum, it would be error for this court to refuse to address B.W. 's sufficiency of the

evidence claim on the basis that he stipulated to grave disability.

       The problem here is that B.W. only stipulated to the allegations in the commitment

petition. The petition alleged B.W. was gravely disabled (which, as discussed, is not

binding dn this court), and also incorporated the facts from Dr. Gunderson's four page

report. Although the trial court entered additional factual findings consistent with the

definitions of "gravely disabled" in RCW 71.05 .020( 17), the commitment order does not

contain a stipulation to these additional findings. If it did, B.W. could not argue on

appeal that he was not gravely disabled. But because it did not, we must review the

stipulated facts and testimony from the hearing and independently determine whether they

support the trial court's additional factual findings, as well as the court's legal conclusion

that B.W. was gravely disabled. See Drum, 168 Wn.2d at 34-36.

       B.     SUFFICIENT EVIDENCE ESTABLISHED B.W. WAS GRAVELY DISABLED


       B.W. argues insufficient evidence supports the trial court's determination that he

was gravely disabled and in need of involuntary civil commitment.

       There are two alternative statutory definitions for "grave disability." RCW

71.05.020(17). A person may be committed under either prong. LaBelle, 107 Wn.2d at

202. An appellate court may also affirm a commitment order on either prong supported



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by the record. Cf id. at 213. Here, the trial court entered factual findings consistent with

both statutory definitions, plainly concluding B.W. was gravely disabled under both

statutory alternatives.

       This court will not disturb the trial court's findings if they are supported by

substantial evidence. Id. at 209. If they are, this court then determines if the findings

support the trial court's conclusions oflaw and judgment. Id.

               1.     Subsection (a)-Failure to Provide for Essential Human Needs

       Under the first statutory alternative, a person is gravely disabled when, as a result

of a mental disorder, he or she is "in danger of serious physical harm resulting

from a failure to provide for his or her essential human needs of health or safety."

RCW 71.05.020(17)(a). To prove grave disability under this prong, "the State must

present recent, tangible evidence of failure or inability to provide for such essential

human needs as food, clothing, shelter, and medical treatment 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. The "failure or inability to provide for these

essential needs must be shown to arise as a result of mental disorder and not because of

other factors." Id. at 205. Although assaultive and hostile behavior could potentially lead




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to serious physical harm, this is not the kind of danger this subsection contemplates. Id.

at 212.

          In finding of fact number six, the trial court found it was "highly probable" that

B.W. was "in danger of serious physical harm resulting from a failure to provide ...

nourishment ... clothing or shelter ... [and] medical treatment." CP at 81-82.

Substantial evidence supports the second portion of this finding-that B.W. failed to

provide shelter and medical treatment. B.W. stipulated he was homeless, and Dr.

Gunderson testified that if released, B.W. would likely stop taking his medication, not go

to appointments, not comply with after-care services, and be unable to take care of his

needs. 3

          While this evidence provided tangible examples ofB.W.'s failure to provide for

his needs, it does not support the first portion of the finding-that it was "highly

probable" that this failure put B. W. "in danger of serious physical harm." CP at 81.

Nothing in the commitment petition or in Dr. Gunderson's testimony established B.W.

had ever been in or would be in danger of serious physical harm as a result of his failure

to provide for his needs. Finding number six is unsupported by substantial evidence.



          3
         B.W. is correct that no evidence supports the trial court's findings that he failed
to obtain nourishment or clothing.

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Accordingly, the trial court's findings do not support a conclusion that B.W. was gravely

disabled under subsection (a).

              2.     Subsection (b)-Failure to Receive Care Essential to Health or
                     Safety

       Under the second statutory alternative, a person is gravely disabled when, as a

result of a mental disorder, the 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." RCW 71.05.020(17)(b).

       To prove grave disability under this prong, the State must present evidence that

includes "recent proof of significant loss of cognitive or volitional control," as well as 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." LaBelle, 107 Wn.2d at

208. However, a person may still meet the grave disability standard under this definition

even though he or she has stabilized or improved while in the hospital. Id. at 207.

       In finding of fact number seven, the trial court found that B.W. had "manifested

his ... deterioration in routine functioning evidenced by loss of cognitive or volitional

control over his ... actions," and that he "would not receive, if released, essential care for

his ... health or safety." CP at 82.

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       The trial court properly entered the first portion of this finding. In the report

incorporated into the commitment petition, Dr. Gunderson alleged B.W. "suffer[ed] from

a mental disorder which impair[ ed] his cognitive and volitional functioning." CP at 77.

B.W. stipulated to this factual allegation. B.W. argues the State did not establish his

baseline functioning and, therefore, insufficient evidence supports this finding. However,

because he effectively stipulated to this portion of the finding, he cannot argue on appeal

that it is unsupported by sufficient evidence. See Ellison, 172 Wn. App. at 715-16.

       Substantial evidence also supports the second portion of finding number seven-

that B.W. would not receive, if released, essential care for his health or safety. Based on

B.W.'s history of refusing medication while at Eastern State, going off his medication

while in the community, and not going to appointments, Dr. Gunderson opined B.W.

would not take his medications or comply with after-care services if released. She

believed the hospital level of care was essential for B.W. 's health and safety needs, and

B.W. would not likely be able to take care of those needs if released. Additionally, Dr.

Gunderson testified B. W. needed substance abuse treatment for marijuana, huffing

inhalants, and methamphetamine. It was undisputed the reason why B.W. had not been

accepted into substance abuse treatment was because of his paranoia and homicidal

ideations, caused by his mental illness.



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       The trial court's finding number seven is supported by substantial evidence, and

this finding supports the court's conclusion that B.W. suffered from a grave disability

under RCW 71.05.020(1 ?)(b). Accordingly, we affirm the trial court's April 2016 order

committing him to 180 days of involuntary treatment.

       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.




                                                                              j
WE CONCUR:




                    1
Fearing, C.J.   f




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