        IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

IN RE THE DETENTION OF J.D.,
                                                  No. 74317-1-1

STATE OF WASHINGTON,

                     Respondent,                  DIVISION ONE

        V.

J.D.,                                             UNPUBLISHED OPINION

                     Appellant.                   FILED: April 3, 2017


        SPEARMAN, J. — A patient may not be involuntarily committed for

treatment when he or she volunteers in good faith to abide by the prescribed

treatment plan. J.D. challenges the trial court's order committing her for up to

fourteen days of involuntary treatment, asserting that the trial court erred in

concluding that she was not a good faith voluntary patient. But because

substantial evidence supports the trial court's findings of fact, and these support

the trial court's conclusion of law, we affirm.

                                       FACTS

        J.D. suffers from depression and chronic pain. On September 27, 2015,

she told her primary care physician (PCP)that she had attempted to commit

suicide by overdosing on Oxycodone. She agreed to inpatient psychiatric

treatment and was admitted to Swedish Hospital. When she was released from
No. 74317-1-1/2

Swedish on October 6, J.D. received a referral to Sound Mental Health for

outpatient mental health treatment as well as a follow-up appointment with her

PCP.

       J.D. did not commence outpatient mental health treatment but she did

keep the appointment with her PCP. J.D. met with Dr. Philip Capp, who was

filling in for J.D.'s regular doctor, on October 15 or 16. J.D. told Capp that she

had flushed her anti-depressants down the toilet because they were not working,

she had written her own obituary, and she was thinking of jumping off a balcony.

       Capp recommended inpatient treatment and J.D. said she would consider

hospitalization if he could find a bed that day. According to J.D., she waited at the

clinic for hours while Capp tried unsuccessfully to locate an inpatient bed.

According to Capp, J.D. was ambivalent about voluntary admission and refused

to stay in the clinic or be evaluated in the emergency department. Capp referred

J.D. for evaluation by a designated mental health professional (DMHP).

       Virginia Witter, a DMHP, visited J.D.'s home on October 17. J.D. told

Witter that she had thought about killing herself by jumping off a balcony and

pointed out the balcony she would use. She explained that she would be sure to

die if she jumped off a balcony that faced the main road whereas if she jumped

off a different balcony she might only be paralyzed. J.D. also told Witter that, at

the moment, she did not intend to kill herself. She explained that it just made her

feel better to know that she had a way out. J.D. told Witter that her September

overdose was not a suicide attempt. She stated that she did not have enough



                                          2
No. 74317-1-1/3

pills to kill herself and that overdosing on medication was not an effective way to

commit suicide.

       Witter asked J.D. about outpatient therapy. Id. J.D. became tearful and

said "'What would a therapist do for me? How could they help me with my

problems?' Verbatim Report of Proceedings(VRP)at 8. According to Witter,

J.D. explained that she had family troubles because one son was dying of a

degenerative disease and the other son had burglarized her apartment. J.D.

described herself as having "no hope." VRP at 9. J.D. told Witter that she had

stopped taking anti-depressants and she would not take any medication that

Capp prescribed. When asked if she would take medication prescribed by

another doctor, she did not respond. She stated that she would consider

voluntary hospitalization.

       Witter believed J.D. was at risk of attempting suicide and referred her for

involuntary detention. On October 20, J.D. was detained at Swedish Hospital for

seventy-two hours. Swedish filed a petition to detain J.D. for an additional

fourteen days. J.D. raised a good faith voluntary defense, asserting that she

volunteered for treatment in good faith and thus could not be detained for

involuntary commitment. She also argued that she did not present a substantial

risk of harm to herself.

       At the probable cause hearing, Witter testified as to her interaction with

J.D. Witter stated that J.D. seemed hopeless, appeared to believe therapy would




                                         3
No. 74317-1-1/4

be of no use, and had stopped taking anti-depressants. In Witter's opinion, J.D.

was not likely to follow through with outpatient treatment.

       Richard Thomas, a clinical psychologist at Swedish Hospital, testified to

J.D.'s condition during her current and previous hospitalization. He stated that

J.D. had a major depressive disorder and was experiencing profound sadness

and hopelessness. Thomas testified that J.D.'s mental illness had a substantial

adverse effect on her cognitive and volitional functions.

       Thomas stated that, when J.D. was admitted in September, she said she

wanted to die. When she was admitted on October 20, J.D. stated that she had

no current intent to harm herself. She acknowledged telling Capp and Witter that

she had plans to jump off a balcony but stated that she was only using a figure of

speech. She denied that the September overdose was a suicide attempt.

However, J.D. also expressed ambivalence about living. J.D. reported to the

hospital that she lived alone and had little contact with family or friends. She also

reported that she had recently experienced a 40-pound weight loss, decreased

appetite, and apathy. She had not established outpatient mental health treatment

and was unable to articulate a "safe plan" or "safety contract" for living outside

the hospital. VRP at 36-37, 46. Thomas stated that J.D. was angry at being

detained in the hospital and said she wanted to get out so she could smoke and

so she could visit her son.

       Thomas testified that, during her current hospitalization, J.D. cooperated

with prescribed procedures and treatments. But in his opinion, J.D. remained at



                                         4
No. 74317-1-1/5

substantial risk for harming herself and it would not be appropriate to release her

from the hospital. Thomas stated that J.D. had numerous risk factors, including a

recent suicide attempt, recent suicidal ideation, continuing depression, social

isolation, lack of insight into the seriousness of her symptoms, and inability to

safety contract. Thomas prescribed two weeks of inpatient treatment to stabilize

J.D.'s depression. He stated that voluntary hospitalization was not an option

because a voluntary patient may discharge herself at any time and J.D. had

repeatedly stated that she wanted to leave the hospital. He was also concerned

that J.D. did not recognize the need for therapy and had recently flushed her anti-

depressants down the toilet.

       Near the beginning of his testimony, Thomas referred to hospital records.

J.D.'s attorney objected that he had not seen all of the medical records that

Thomas consulted. The trial court granted a recess for J.D.'s counsel to review

the records. The hearing did not resume for about five hours and, as a result,

could not be completed on Friday, October 23. J.D. remained hospitalized over

the weekend. At some point during the weekend she was transferred from

Swedish to Fairfax Hospital.

      The hearing resumed on Monday, October 26. J.D. testified that she did

not want to commit suicide because she had too much to live for. She stated that

the September overdose was accidental. She explained that she sometimes

forgot she had taken her medication and took a second dose by accident. She

stated that after taking two doses she was intoxicated and might take another



                                         5
No. 74317-1-1/6

dose. J.D. denied telling Capp that she was thinking about jumping off a balcony.

She admitted talking to Witter about jumping off a balcony but said she was

being sarcastic.

       J.D. acknowledged she was depressed but said she was working on her

health in her own way. She explained that she had not begun outpatient

treatment after her first hospital stay because she was unsure whether her

insurance covered treatment. J.D. stated that she went to Sound Mental Health

and tried unsuccessfully to get one of the appointments reserved for uninsured

patients. She said that, if outpatient treatment was recommended again, this time

she would check on her insurance and make an appointment. J.D. stated that

she was complying with all of her prescribed medications and would continue to

take these medications if she was discharged.

       J.D. testified that she agreed to inpatient treatment when Capp suggested

it but could not enter the hospital because he did not find a bed. When asked if

she would voluntarily agree to remain in the hospital, J.D. said she would stay at

"a hospital of[her] choosing." VRP at 87. She stated that she did not want to stay

at Fairfax and did not want to return to the Swedish campus where she was the

previous week. She said she would be willing to go to a different Swedish

campus after she checked on her apartment, visited her son, and took care of

other business.

      The trial court entered 35 findings of fact. As to credibility, the court found

the testimony of Witter and Thomas credible. The court found that, other than her



                                         6
No. 74317-1-1/7

statements against interest, J.D.'s testimony was not credible. The trial court

found that J.D. was suffering from depression; the mental illness was having a

substantial effect on her cognitive and emotional functions; J.D. had reported

weight loss and "extreme hopelessness without a plan for mental health

treatment outside of the hospital"; J.D. was exhibiting active symptoms of her

mental disorder and was not yet stabilized; and J.D. was minimizing her mental

disorder, her recent suicide attempt, and her repeated statements expressing

suicidal thoughts. Clerk's Papers(CP) at 37-40. The court found that a less

restrictive alternative to continued inpatient treatment was not appropriate or in

J.D.'s best interest.

        The court concluded as a matter of law that J.D. was not a good faith

voluntary patient because she was not willing to remain at Fairfax for inpatient

treatment. The court also concluded that J.D.'s history showed a lack of

compliance with medication when not hospitalized. The trial court accordingly

ordered J.D. committed for up to fourteen days.

        J.D. appeals.

                                       DISCUSSION

        J.D. contends that the trial court erred in ordering her committed for up to

fourteen days.1


         1 This case is technically moot because the order which placed J.D. in involuntary
detention has expired. However, this court has held that an involuntary commitment order has
collateral consequences, as a patient's history of involuntary commitment may be considered in
future involuntary commitment hearings. In re Detention of M.K., 168 Wn. App. 621, 629-30, 279
P.3d 897(2012). We thus reach the issues presented in J.D.'s appeal.



                                              7
No. 74317-1-1/8

       When a patient has been committed for seventy-two hours of involuntary

evaluation and treatment, the treating facility may petition for up to fourteen

additional days of involuntary commitment. RCW 71.05.230. As relevant here,

the petition must state that the patient is at risk of serious harm, as a result of a

mental disorder and that no less restrictive alternative to involuntary detention is

in the patient's best interest. RCW 71.05.230(4)(d). The State has the burden of

proving these elements by a preponderance of the evidence at a probable cause

hearing. RCW 71.05.240(3)(a). When, as here, a person alleges that she

volunteered in good faith for treatment, the State also has the burden of proving

that she does not qualify as a good faith voluntary patient. In re Chorney,64 Wn.

App. 469, 478, 825 P.2d 330(1992). A person qualifies as a good faith voluntary

patient if she expresses willingness to comply with the prescribed plan of

treatment and does not have a history that belies such an expression of

willingness. Id. at 479.

       At the probable cause hearing in this case, the State thus had the burden

of proving that(1) J.D. was at risk of serious harm due to a mental disorder;(2)

no less restrictive alternative to commitment was in J.D.'s best interest; and (3)

J.D. did not qualify as a good faith voluntary patient. Based on numerous findings

of fact, the trial court concluded that the State met its burden and ordered J.D.

committed. J.D. assigns error to three of the trial court's findings of fact and to its

conclusion that she was not a good faith voluntary patient. But she does not

dispute the trial court's findings that she was at risk of serious harm due to a



                                          8
No. 74317-1-1/9

mental disorder or that no less restrictive alternative to inpatient care was in her

best interest.

         Where the State has the burden to prove an element by a preponderance

of the evidence, we review the trial court's findings of fact for substantial

evidence and determine whether the findings of fact support the conclusions of

law.2 In re LaBelle, 107 Wn.2d 196, 209, 728 P.2d 138(1986)(citing Ridgeview

Properties v. Starbuck, 96 Wn.2d 716, 719, 638 P.2d 1231 (1982)). We defer to

the trial court as to the credibility of witnesses and the weight of evidence. Davis

v. Dep't of Labor & Indus., 94 Wn.2d 119, 124, 615 P.2d 1279 (1980).

         First, J.D. assigns error to the trial court's finding that, other than her

statements against interest, her testimony was not credible. But as we defer to

the trial court's determinations on credibility, we reject this argument.3 Next, J.D.

assigns error to the trial court's finding that she "reported a 40 pound weight loss

and extreme hopelessness without a plan for mental health treatment outside of

the hospital." CP at 39. But, relying on notes from J.D.'s October hospitalization,

Thomas testified that J.D. reported a 40 pound weight loss, loss of appetite,



        2 Relying on Chornev, the State asserts that we review the trial court's decision regarding
a good faith voluntary defense for abuse of discretion. Chorney, however, does not discuss the
standard of review for a trial court's decision on a good faith voluntary defense or provide any
indication that the general standard of review is inapplicable.
        3 We note that J.D. does not challenge the trial court's reasons for finding that her
testimony was not credible, including that she minimized her mental disorder, her recent suicide
attempt and her repeated statements about her suicidal thoughts and plans to commit suicide.
Nor does she contest the trial court's finding that she is suffering from a depressive disorder that
"has a substantial adverse effect on her cognitive and volitional functions." CP at 37. These
unchallenged findings are verities on appeal. McCleary v. State, 173 Wn.2d 477, 514, 269 P.3d
227(2012).



                                                 9
No. 74317-1-1/10

apathy, and profound hopelessness. Thomas also testified that J.D. was unable

to articulate a safety plan for living outside the hospital. Both Thomas and Witter

testified that J.D. expressed the belief that outpatient mental health therapy

would not help her. The trial court's finding is supported by substantial evidence.4

        J.D. also challenges the trial court's finding that she "has not volunteered

to undergo the treatment that has been prescribed by the treating facility and the

professional staff, and therefore a less restrictive alternative is neither

appropriate nor in her best interest."5 CP at 41. She assigns error to the trial

court's related conclusion that she was not a good faith voluntary patient and

should be committed for up to fourteen days.

        At the probable cause hearing, Thomas testified that J.D. was at

substantial risk of harming herself because she demonstrated numerous risk

factors, including recent suicidal ideation, lack of insight into her condition, recent

noncompliance with medication, and the inability to articulate a safety plan. Given

J.D.'s mental state, Thomas stated that release from the hospital was not

appropriate. He prescribed two weeks continued inpatient treatment to stabilize




        4 We also note that J.D. does not challenge the trial court's finding that "she felt therapy
would be pointless and that she was hopeless." CP at 37. This unchallenged finding is a verity on
appeal. McCleary, 173 Wn.2d at 514.
         5 As noted above, J.D. argues that "the evidence indicated both that[s]he needed
inpatient care and that she was willing to enter treatment when a bed became available." Br. of
App. at 12-13. Thus, she does not dispute the latter portion of this finding that a less restrictive
alternative was not in her best interest. Nor does she challenge the trial court's conclusion that
"[t]here is no less restrictive treatment alternative available to [J.D.] at this time." CP at 42. She
contests only the finding that she did not volunteer to undergo the prescribed inpatient treatment.



                                                 10
No. 74317-1-1/11

J.D.'s condition. Thomas's testimony establishes that the prescribed treatment

was continued inpatient care at Fairfax.

       In her testimony, J.D. stated that she did not want to remain at Fairfax or

return to the Swedish Hospital facility where she spent the previous week.

Instead, she testified that she would volunteer for inpatient care at a different

Swedish facility, but only after going home to take care of personal business. J.D.

asserts that this testimony supports her claim that she expressed her willingness

to comply with the prescribed treatment. She contends that she agreed to

inpatient treatment but reasonably sought to choose the hospital and the timing

of hospitalization.

       The argument is unpersuasive. First, the trial court did not find J.D.'s

testimony on this issue credible. In other words, it did not find J.D.'s assertion

that she would voluntarily return to the hospital of her choosing to be genuine.

We will not second guess the trial court's credibility determination. Second, even

on its face, J.D.'s testimony does not support a conclusion that she volunteered

for inpatient treatment. Instead, she proposed that she be released to address

some personal issues and then, at some undetermined time, report to a hospital

of her choosing. On these facts, the trial court did not err in finding that J.D. "has

not volunteered to undergo the treatment that has been proscribed by the

treating facility and the professional staff' or in concluding that she was not a

good faith volunteer.




                                          11
No. 74317-1-1/12

        J.D. asserts, however, that this court's precedent mandates an opposite

conclusion. She contends that, because she cooperated with treatment during

her initial detention and expressed willingness to undergo inpatient treatment at a

time and place of her choosing, she was a good faith voluntary patient.6 She

relies primarily on In re Kirby, 65 Wn. App. 862, 829 P.2d 1139(1992)for

support. But the case does not support her argument.

        In Kirby, a patient presented herself at a hospital for psychiatric treatment.

Kirby, 65 Wn. App. at 864. She was detained for seventy-two hours. Id. Doctors

from the treatment facility petitioned to detain Kirby for an additional fourteen

days. Id. at 864-65. The petition apparently sought commitment at Western State

Hospital, subject to the placement recommendation of Kirby's treating

psychiatrist. Id. at 866. The petition stated that Kirby presented a serious risk of

harm to herself and others, she was not a good faith voluntary patient because

she was "too impulsive," and no less restrictive alternative was appropriate

because Kirby's "judgment and impulse control [were] too impaired." Id. at 869-

70.

        At the probable cause hearing, an emergency room social worker testified.

Id. at 865. According to the social worker, when Kirby first presented herself to


        6 J.D. also asserts that the State failed to prove that she was truly given the option of
remaining at Fairfax as a voluntary patient because it produced no evidence that a voluntary bed
was available. At oral argument, J.D. argued that the lack of hospital beds for voluntary mental
health treatment is a systemic failure that forces patients to submit to involuntary commitment in
order to receive mental health treatment. We decline to reach this issue as beyond the scope of
review. The issue for this court is whether the trial court erred in rejecting J.D.'s good faith
voluntary patient defense.




                                                12
No. 74317-1-1/13

the hospital for treatment she said that she might have to kill a teenage girl who

lived with her, she had taken an overdose because she could not face that

prospect, and someone wanted to kill her. Id. at 864. The social worker stated

that Kirby was ambivalent about whether she should remain in the hospital and

whether she should take medication. Id. Kirby's mother told the social worker that

Kirby had not been taking her medication. Id. at 870.

        Kirby testified that she was terrified of Western State Hospital and did not

want to go there. Id. She stated that, if released, she would pursue outpatient

treatment, take any prescribed medications, and contact her doctor or a crisis

clinic if her mental disturbance recurred. Id.

        The trial court found that Kirby was at substantial risk of harm and a less

restrictive alternative was not in her best interest. Id. at 865. The court rejected

Kirby's good faith voluntary defense and ordered her committed for up to

fourteen days at Western State Hospital. Id. at 865-66.

        On appeal, we agreed with Kirby that the State failed to present sufficient

evidence that she was not a good faith voluntary patient. Id. at 871. We noted

that, in deciding this issue, the trial court apparently relied only on the petition

and the social worker's testimony.7 Id. at 870. The trial court also appeared to

disregard Kirby's own testimony, which we described as "lucid and rational." Id.

Significantly, there appeared to be no finding by the trial court doubting the


        7 A clinical psychologist also testified at the probable cause hearing, but the opinion gives
no details about this testimony and does not refer to it in relation to the trial court's decision that
Kirby was not a good faith voluntary patient. Id. at 865, 869-70.



                                                 13
No. 74317-1-1/14

credibility of Kirby's testimony. We held that this record failed to meet the State's

burden of proving that Kirby was not a good faith voluntary patient. Id.

       J.D. contends that her case is analogous to Kirby because, like the patient

in that case, she was willing to continue treatment but was opposed to treatment

in a specific proposed hospital. She asserts that, under Kirby, it is not necessary

for a patient to agree to the specific prescribed treatment so long as she is willing

to appropriately utilize the mental health services available to her. J.D. is

mistaken.

       First, unlike in Kirby, the trial court in this case did not rely on conclusory

assertions in the petition but instead made specific factual findings, most of which

are unchallenged, to support its conclusion that J.D. was not a good faith

volunteer. Second, unlike in Kirby, the trial court did not find credible J.D.'s claim

that she would volunteer for commitment "in a hospital of[her] choosing" as soon

as she addressed some personal issues. VRP at 87. And, in light of J.D.'s

minimization of her recent suicide attempt, recent suicidal statements, recent

noncompliance with prescribed medications and inability to articulate a safety

plan, the trial court was rightly skeptical of the sincerity of that testimony. Finally,

Kirby disputed that inpatient care was necessary in her case and presented an

apparently credible less restrictive alternative. But here, even J.D. agrees that

the necessary course of treatment for her condition was inpatient care. Yet she

did not volunteer for that course of treatment. Instead she only agreed that at

some unspecified time in the future she would voluntarily admit herself to a



                                           14
No. 74317-1-1/15

hospital. Kirby does not stand for the proposition that a vague agreement to

comply with the recommended course of treatment in the future is sufficient to

qualify as a good faith volunteer. Because Kirby is distinguishable, J.D.'s reliance

on that case is misplaced.

       The State met its burden of proving that J.D. was not a good faith

voluntary patient and the trial court correctly so found.

       Affirmed.




                                                                c--
WE CONCUR:                                                               4




                                        15
