    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                           No. 71403-1-1
 In the Matter of the Detention of
                                                           DIVISION ONE                g    ^5
 WESLEY COLIN CLARK.
                                                           PUBLISHED OPINION           ^    ""v
                                                           FILED: April 27, 2015       ^   ---:"

       Appelwick, J. —Clark alleges that his commitment for 14 day invojjjjntary
                                                                                      rv

treatment was untimely and must be dismissed.           At issue is whether holidays and

weekends are excluded when calculating the maximum period allowed for continuances

of hearings under RCW 71.05.240.            Continuances of commitment hearings are

procedural matters. Therefore, we apply the method of computing time under CR 6(a)

rather than conflicting statutory alternatives. Clark's hearing date fell within the statutory

time limit. We affirm.


                                  STATUTORY SCHEME


       The involuntary treatment act (ITA), chapter 71.05 RCW, governs the temporary

detention for evaluation and treatment of persons with mental disorders. Ifa designated

mental health professional (DMHP) determines that, as a result of a mental disorder, a

person presents a likelihood of serious harm or is gravely disabled, and that the person

will not voluntarily seek treatment, the DMHP may file a petition for initial detention. RCW

71.05.150(1). The initial detention shall not exceed 72 hours.        RCW 71.05.180. The

computation of the 72 hour period excludes weekends and holidays. RCW 71.05.180.

       If the DMHP or the evaluation and treatment facility petitions for additional 14 day

involuntary treatment, the court shall hold a probable cause hearing within 72 hours of

the initial detention. RCW 71.05.240(1). To justify the additional detention, the State
No. 71403-1-1/2




must demonstrate by a preponderance of the evidence that, as a result of a mental

disorder, the detained person presents a likelihood of serious harm or is gravely disabled.

RCW 71.05.240(3). At the request of the detained person or his or her attorney, the court

may postpone the hearing for a period not to exceed 48 hours. RCW 71.05.240(1). The

court may also continue the hearing subject to the State's showing of good cause for a

period not to exceed 24 hours. RCW 71.05.240(1).

                                         FACTS


       Wesley Clark is a 70 year old man who resided at the Downtown Emergency

Service Center Rainier House. In December 2013, Rainier House staff informed a King

County DMHP that Clark was exhibiting concerning behavior. Another resident, David

Abbott, reported that Clark punched him in the neck. Abbott also said that Clark accused

him of having a sexual relationship with Karla Manus, a clinical support specialist at

Rainier House.    Manus reported that Clark was "fixated" on her and had become

increasingly jealous and aggressive since she began to show that she was pregnant.

According to Manus, Clark screamed at her, called her obscenities, and invaded her

space in a way that felt menacing.

      On Friday, December 20, the DMHP petitioned for Clark's initial detention. The

trial court granted the petition, and Clark was admitted to Harborview Medical Center for

evaluation and treatment.

       On Tuesday, December 24, Harborview petitioned for additional 14 day involuntary

treatment. At the probable cause hearing that day, Clark's appointed counsel informed

the court that she had a conflict of interest.   Counsel asked that she and her firm be

allowed to withdraw and have Clark's case assigned to another attorney. Counsel also
No. 71403-1-1/3




requested that the case be reset for that Friday, December 27. The court granted the

motion to withdraw and the continuance.


       On December 27, the State also requested a continuance, stating that "conflict

counsel needs additional time for appointment due to holiday. [The Associated Counsel

for the Accused] will handle the case. Good cause exists." The hearing was reset for the

following Monday, December 30.

       On December 30, replacement counsel appeared on behalf of Clark. Counsel

immediately moved to dismiss, arguing that Clark was not provided a hearing within the

statutory timeline. The court denied the motion. It noted that it granted the continuances

to provide Clark prepared, conflict-free counsel and to accommodate nonjudicial days.

       The court heard testimony from Clark, Abbott, Manus, and Dr. Brent O'Neal, a

clinical psychologist who evaluated Clark at Harborview.           The court found by a

preponderance of the evidence that Clark presented a likelihood of serious harm to

others. It granted the petition to detain Clark for 14 days of involuntary treatment.

       Clark appeals.

                                      DISCUSSION


       Clark argues that dismissal was required, because he was not provided a probable

cause hearing within the statutory timeframe.       He further contends that there was

insufficient evidence that he posed a likelihood of serious harm to others.
No. 71403-1-1/4




  I.   Continuance of Probable Cause Hearing

       Clark asserts that the trial court erred in granting continuances of his probable

cause hearing beyond the statutory time limits of the ITA.1 The decision to grant a motion

for a continuance is generally within the discretion of the trial court. In re Pet, of G.V..

124 Wn.2d 288, 295, 877 P.2d 680 (1994). The trial court abuses its discretion when its

decision is manifestly unreasonable or exercised on untenable grounds or for untenable

reasons, jd.

       The ITA provides:

       If a petition is filed for fourteen day involuntary treatment or ninety days of
       less restrictive alternative treatment, the court shall hold a probable cause
       hearing within seventy-two hours of the initial detention of such person as
       determined in RCW 71.05.180. If requested by the detained person or his
       or her attorney, the hearing may be postponed for a period not to exceed
       forty-eight hours. The hearing may also be continued subject to the
       conditions set forth in RCW 71.05.210 or subject to the petitioner's showing
       of good cause for a period not to exceed twenty-four hours.

RCW 71.05.240(1).

       The State maintains that the statutory time frames are not absolute. This is so, the

State contends, because "[Mental Proceedings Rule (MPR) 1.2] permits cases to be

continued beyond the 'strict' time frames that [Clark] asserts." MPR 1.2 provides that "[i]n

any judicial proceeding for involuntary commitment or detention held pursuant to RCW

71.05 the court may continue or postpone such proceeding for a reasonable time, subject

to RCW 71.05.210 and RCW 71.05.240, on the following grounds . . . ."


       1Clark's 14 day commitment has expired. However, civil commitment orders under
chapter 71.05 RCW have collateral consequence in subsequent petitions and hearings.
InreDet.ofM.K.. 168 Wn. App. 621, 626, 279 P.3d 897 (2012). This principle allows us
to consider a challenge to a civil commitment order after the underlying detention has
concluded. See id. The State appears to recognize this, as it does not challenge this
appeal as moot.
No. 71403-1-1/5




          The State asserts that this rule trumps RCW 71.05.240. As support, it cites In re

Pet, of CM.. 148 Wn. App. 111, 197 P.3d 1233 (2009). The CM court considered a

conflict between MPR 1.2 and former RCW 71.05.310 (2005), which established a five

day limit for continuances of hearings on 90 day commitment petitions, jd. at 116-18.

The court found that the conflict involved a procedural matter and thus concluded that

MPR 1.2 governed extensions of time for 90 day commitment hearings, jd. at 117-118.

The State asserts that this reasoning is "equally applicable to the interplay between MPR

1.2 and RCW 71.05.240(1) here."

          However, there is an important difference between CM. and the present case.

Unlike former RCW 71.05.310, the provision at issue here was explicitly named as a

restraint on the court rule: "the court may continue or postpone such proceeding for a

reasonable time, subject to RCW 71.05.210 and RCW 71.05.240." MPR 1.2 (emphasis

added).      The court rule explicitly recognizes that its scope is limited by the statute.

Therefore, the provisions do not conflict and MPR 1.2 does not negate the statutory time

limits.


          Accordingly, we must determine whether the continuances at issue here exceeded

their respective time limits under RCW 71.05.240(1). The first continuance was granted

at defense counsel's request, meaning itwas limited to 48 hours. See RCW 71.05.240(1).

The 48 hour continuance included two days2 plus one holiday. The second continuance

was granted at the State's request for good cause, meaning it was limited to 24 hours.




       2 The statute explicitly provides for a period of hours, not days. In re Pet, of
Swanson. 115 Wn.2d 21, 27-28, 804 P.2d 1 (1990). However, the record is silent as to
what time of day the hearings were held or the continuances were granted.
No. 71403-1-1/6




See RCW 71.05.240(1). The 24 hour continuance included one day plus two weekend

days.

        Thus, the crucial question is how to count the 48 and 24 hour periods mandated

by the statute—specifically, whether to exclude weekends and holidays. Under RCW

71.05.180, the initial 72 hour detention excludes Saturdays, Sundays, and holidays.

RCW 71.05.240(1) does not state the same exclusion for continuances. Clark asks us to

interpret this omission as evidence that the legislature intended for weekends and

holidays to be categorically included when granting continuances. However, based on

the history of this statute, we decline to do so.3

        Instead, we turn to the general provisions regarding time computation: RCW

1.12.040 and CR 6(a). RCW 1.12.040 states, "The time within which an act is to be done,

as herein provided, shall be computed by excluding the first day, and including the last,

unless the last day is a holiday, Saturday, or Sunday, and then it is also excluded." CR

6(a) provides, "When the period of time prescribed or allowed is less than 7 days,

intermediate Saturdays, Sundays and legal holidays shall be excluded in the

computation."


        3 It is apparent that the difference between the two provisions was a legislative
artifact. Originally, RCW 71.05.180 expressly included weekends and holidays when
calculating the initial 72 hour period. Laws of 1973, 1st ex. sess., ch. 142, § 23. This
indicated that RCW 71.05.180 was an exception to RCW 1.12.040, the general time
computation statute which provides for exclusion of nonjudicial days. See Laws of 1887,
ch. 20, § 1. RCW 71.05.240 did not specify whether weekends and holidays should be
included when calculating the length of continuances. See Laws of 1973, 1st ex. sess.,
ch. 142, § 29. We interpret this to mean that RCW 71.05.240 was—and is—subject to
the general time computation statute. See Amalgamated Transit Union Legislative
Council v. State. 145 Wn.2d 544, 552, 40 P.3d 656 (2002) ("The legislature is presumed
to be aware of its own enactments."). RCW 71.05.180 was later amended to exclude
weekends and holidays, signaling that the legislature reversed its position as to the 72
hour determinations. Laws of 1979, 1st ex. sess., ch. 215, sec. 11.
No. 71403-1-1/7



       Under either provision, the second continuance was properly set.4 However, the

first continuance was proper under only CR 6(a)'s computation method. Pefense counsel

requested the hearing on Tuesday, Pecember 24, and the hearing was set on Friday,

Pecember 27. Forty-eight hours is less than 7 days, so CR 6(a) would dictate that the

Christmas holiday was excluded and the hearing was properly set on Pecember 27. But,

the holiday did not fall on the last day of the time period, so RCW 1.12.040 would dictate

that the hearing should have been set on Pecember 26. The two provisions therefore

conflict and we must determine which applies.

       Where a statute and a court rule conflict, the nature of the right at issue determines

which provision controls. Statev. W.W.. 76 Wn. App. 754, 758, 887 P.2d 914 (1995). If

the right is substantive, the statute prevails. |d_. If the right is procedural, the court rule

prevails. ]cL This reflects the division of power between the legislative and judicial branch,

jd. "Substantive law prescribes norms for societal conduct and punishments for violations

thereof. It thus creates, defines, and regulates primary rights. In contrast, practice and

procedure pertain to the essentially mechanical operations of the courts by which

substantive law, rights, and remedies are effectuated." State v. Smith, 84 Wn.2d 498,

501, 527 P.2d 674 (1974). Where a procedural right is involved, "CR 6(a) expressly

supersedes RCW 1.12.040." Stikes Woods Neighborhood Ass'n v. City of Lacev. 124

Wn.2d 459, 466, 880 P.2d 25 (1994).




       4 The State requested the continuance on a Friday and the hearing was set on the
following Monday. The last day of the 24 hour period was on a weekend, so, if applying
RCW 1.12.040, it was proper to set the hearing on Monday. And, 24 hours is less than 7
days, so it was proper to exclude the weekend days under CR 6(a).
No. 71403-1-1/8



       In CM., the court found that continuances of 90 day commitment hearings under

the ITA are procedural in nature. 148 Wn. App. at 116-17. The court reasoned that the

ordering of a court's calendar and the decision to continue a case are discretionary

matters for the trial court and thus procedural, jd. at 117. The court further noted that

"[t]rial on a particular day does not involve a substantive right." ]cL

       Continuances of 14 day commitment hearings likewise involve a procedural right.

It is the outcome of a probable cause hearing that implicates a detainee's substantive

right to liberty. By contrast, setting the timing of a hearing is an "essentially mechanical

operation" of the court by which the substantive law is effectuated. Cf. Smith, 84 Wn.2d

at 501 (holding that the right to postconviction release pending appeal is procedural). We

therefore hold that CR 6(a) controls when granting continuances under chapter 71.05

RCW. Accordingly, the trial court did not abuse its discretion in granting continuances of

Clark's probable cause hearing.

       The ITA was enacted, in part, to prevent inappropriate, indefinite commitment of

mentally disordered persons; safeguard individual rights; provide continuity of care for

persons with serious mental disorders; and protect the public safety. RCW 71.05.010(1),

(3), (4), (7). These goals are given effect here. Clark's case was decided on the merits,

and the trial court determined that commitment was the proper step. As a result, Clark

was provided treatment, and, in the interim, he was kept separate from the members of

the public to whom he posed a potential threat. He was not detained inappropriately—

rather, his hearing was continued for the purpose of providing him conflict-free, prepared

counsel. Nor was he detained indefinitely, but instead for a period of time specified in the

statute with accommodation for nonjudicial days. Cf. In re Pet, of Swanson, 115 Wn.2d


                                                  8
No. 71403-1-1/9




21, 29, 804 P.2d 1 (1990) (finding that the ITA's goals are best met by interpreting the

initial 72 hour requirement as satisfied when the court calendar begins and the parties'

attorneys are ready to proceed, rather than at the time of the individual proceeding). We

further note that nothing in the State's conduct suggests anything but good faith.

 II.   Sufficiency of Evidence

       To commit a person for involuntary treatment under the ITA, the State must show

by a preponderance of the evidence that the person presents a likelihood of serious harm

to others, or is gravely disabled, as a result of a mental disorder. RCW 71.05.240(3). A

"likelihood of serious harm" to others means a "substantial risk that... physical harm will

be inflicted by a person upon another, as evidenced by behavior which has caused such

harm or which places another person or persons in reasonable fear of sustaining such

harm." RCW71.05.020(25)(a)(ii).

       Clark argues that there was insufficient evidence that he presented a likelihood of

serious harm to others. Where the trial court has weighed the evidence, our review is

generally limited to determining whether substantial evidence supports the findings and,

ifso, whether the findings in turn support the trial court's conclusions of law and judgment.

In re Pet, of LaBelle. 107 Wn.2d 196, 209, 728 P.2d 138 (1986).

       The unchallenged findings5 demonstrate the following: Clark suffers from vascular

dementia and delusional disorder.      He has a morbid jealousy related to Manus and



       5 Clark assigns error to the trial court's finding that "The Respondent, as a result of
a mental disorder, presents a likelihood of serious harm ... to others." This finding
appeared in the trial court's order of commitment, entered on Pecember 30, 2013. The
trial court entered supplemental findings of fact and conclusions of law on January 23,
2014. Clark does not assign error to any of those findings. Unchallenged findings of fact
become verities on appeal. Statev. Gibson. 152 Wn. App. 945, 951,219 P.3d 964 (2009).
No. 71403-1-1/10




experiences delusions about her having a sexual relationship with Abbott. Clark has

exhibited aggressive behavior toward Abbott as a result of this delusion. He has also

threatened to kill Abbott. Clark's delusions have grown stronger as Manus's pregnancy

has become more obvious. The delusions culminated in an altercation in which Clark

accused Abbott of having sex with Manus and punched Abbott in the throat. This behavior

is so irrational that it has caused Manus to be afraid for her own safety and the safety of

her unborn child. This evidence supports a finding that, as a result of his mental disorder,

Clark exhibited behavior that caused physical harm to Abbott and placed Manus in

reasonable fear of sustaining such harm.

       On appeal, Clark acknowledges that the evidence showed that he recently

punched Abbott in the throat and that Abbott and Manus testified that they feared for their

safety. However, Clark notes that Abbott disliked Clark and that Clark told Pr. O'Neal

that he punched Abbott only in self-defense. Clark further observes that he had no prior

history of violence and was 70 years old, underweight, and had a pacemaker. Therefore,

Clark asserts, the evidence demonstrated that he did not pose a likelihood of serious

harm. Fairly considered, Clark raises questions not of sufficiency, but of credibility and

the weight accorded to the evidence. Those questions are not properly before this court.

See State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990) ("Credibility

determinations are for the trier of fact and cannot be reviewed on appeal."); State v.

Homan. 181 Wn.2d 102, 106, 330 P.3d 182 (2014) ("[W]e must defer to the trier of fact

for purposes of resolving conflicting testimony and evaluating the persuasiveness of the

evidence.").




                                                10
No. 71403-1-1/11



      Continuances ofprobable cause hearings under the ITA involve a procedural right.
Accordingly, CR 6(a) controls when granting such continuances. Applying the method of
time computation in CR 6(a), Clark was provided a probable cause hearing within the
statutory time limit of RCW 71.05.240(1). Clark fails to show that there was insufficient

evidence that he posed a likelihood of serious harm to others. We affirm.




                                               ^/^A^r>
WE CONCUR:




                                                    *-^^/•




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