                                                                 20^ AUG ~U AH 9:1*7



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

In the Matter of the Detention of                No. 70605-5-1



                                                 UNPUBLISHED OPINION
KINTA HOLLINS
                                                 FILED: August 4, 2014


       Verellen, A.C.J. — Kinta Hollins seeks reversal of a 14-day involuntary

treatment order. Hollins contends that the trial court abused its discretion by

considering the testimony of a clinical psychologist about information contained in his

medical records. He also challenges the sufficiency of the evidence supporting the

court's findings that he suffered from a grave disability and that because of a mental

disorder, he presented a likelihood of serious harm to others. Because the trial court

did not violate the involuntary treatment act, chapter 71.05 RCW, in considering the

expert witness's testimony and substantial evidence in the record supports the court's

findings, we affirm.

                                        FACTS

       On June 13, 2013, professional staff of Harborview Medical Center filed a 14-

day involuntary treatment petition alleging that Hollins suffered from a mental

disorder and that, as a result, he was gravely disabled and presented a substantial

risk of physical harm to others.
No. 70605-5-1/2



      At the hearing on the petition, Jesse Inman testified about an incident on May

31, 2013 at the Downtown Emergency Services Center (DESC), where he works. On

that date, Inman was conducting an evening "mat check" to assess bed availability

when Hollins approached him about some lost clothing. At that time, Inman was

talking to another client to resolve a different problem. When Inman finished this

conversation and turned around, he heard a "pop noise" from behind and turned

around to see the client to whom he had just been talking lying on the floor with a

bloody lip. Hollins was standing directly above the injured client in his boots and his

underwear with a belt wrapped around his hand, saying loudly, "Where are my

clothes?"1 There was no one else standing nearby. Hollins looked intimidating and

appeared to be agitated.

      Joshua Welbaum, Hollins' mental health counselor at the DESC, testified that

after working with Hollins on an outpatient basis for two months, they had been

unable to make any progress whatsoever. He described Hollins as "very

disorganized" and largely unable to communicate.2 Welbaum stated that when

Hollins is frustrated or upset, he has a "menacing bearing" that caused him to

exercise caution when interacting with him.3

       Joyce Shaffer, a clinical psychologist at Harborview, testified that she had

evaluated Hollins twice just prior to the hearing. She based her assessment of his

mental state on her personal evaluation, her review of Hollins' medical chart and staff



       1 Report of Proceedings (RP) (June 14, 2013) at 6.
       2 jd, at 16.
       3 Id. at 18.
No. 70605-5-1/3



reports, and conversations with Welbaum and Inman. Shaffer said that Hollins

suffers from a mental disorder; namely, psychosis. She said that when she

evaluated him both times, Hollins said very little to her and the responses that he did

give were not even "slightly on target."4 Shaffer said she asked Hollins about the

assault that occurred at the shelter and he responded that "[tjhere's a lot of

instigating going on there."5 When she asked Hollins how he would attend to his

needs if he left the hospital, he said he would "continue paying [his] bills."6

       Shaffer also testified about some of the notes from Hollins medical chart that

she relied upon in forming her opinion, including statements Hollins made to hospital

staff within a few days of the hearing and notes describing his behavior while

hospitalized. For instance, Shaffer recounted that Hollins asked a staff person to

read him a story while intently staring at the staff member's body and "suggestively

slowly licking his lips in a circular motion" and also told staff he had "no idea" why he

was there.7 When the civil detainment process was explained to Hollins by staff, he

said, "So this is all about my bank account?"8 He also told staff that he needed to

find his "payee" so he could obtain a "bazillion dollar check."9

       Shaffer expressed the opinion that Hollins presented a substantial risk of

danger to others because of his recent assault, his unpredictable behavior, and "total


       Uj±    at 27.

       5ld,
       6]d,
       7ldL   at 33.

       8]d,
       9 Id. at 28.
No. 70605-5-1/4



disorganization by psychosis."10 Shaffer also cited Hollins' anger, hostility, and

menacing demeanor, his apparent distraction by internal stimuli, his inability to make

a contract with staff to ensure the safety of himself and others, and lack of recognition

or understanding of his need for treatment. Shaffer also concluded that Hollins was

gravely disabled, stating her opinion that if released, Hollins would further deteriorate

and would be unable to control aggressive impulses. She also cited his impairment

of judgment and impulse control, failure to recognize his need for treatment, and lack

of any evidence he would be able to meet his needs if released. Shaffer

recommended continued inpatient treatment to stabilize Hollins on medication.

       At the conclusion of the commitment hearing, the court determined that Hollins

had a mental disorder and as a result, was gravely disabled and presented a

substantial risk of harm to others. The court also found that a less restrictive

alternative to inpatient treatment was not available. The court entered written

findings of fact and conclusions of law and ordered Hollins to undergo involuntary

treatment for a period not to exceed 14 days. Hollins appeals.

                                       ANALYSIS


       As a preliminary matter, although the 14-day commitment order at issue has

long since expired, the State has not argued that this case is moot. As Hollins points

out, a reversal would restore his right to possess a firearm. Also, the superior court's

order may have adverse consequences on future involuntary treatment




       10
            Id. at 35.
No. 70605-5-1/5



determinations.11 Under these circumstances, we exercise our discretion to decide

the appeal on the merits.

                              Medical Records Testimony

      At one point during Shaffer's testimony, she read a note from the medical

chart written the previous day stating that Hollins was "not improving" in various

areas, including ability to communicate, manifestation of psychotic symptoms,

aggression, and hostility.12 Defense counsel objected to the testimony and

explained:

       RCW 71.05.360 actually prohibits a witness from testifying about
       opinions as to a client's mental state unless the person observing the
       mental state, the person who has formed the opinion, is present in court
      to be cross-examined. And that's true even where the chart has
       satisfied the business records [exception].'131

The court read the relevant portion of RCW 71.05.360(9), which provides that

       [t]he record maker shall not be required to testify in order to introduce
       medical or psychological records of the detained person so long as the
       requirements of RCW 5.45.020 are met except that portions of the
       record which contain opinions as to the detained person's mental state
       must be deleted from such records unless the person making such
       conclusions is available for cross-examination.

       The defense argued that the court was required to delete portions of the

medical records containing statements of opinions and could not consider such

evidence for any purpose. But the court observed that the statute required only

deleting portions of records when the records themselves were admitted into

evidence and that neither party was seeking to admit the medical records. The court


       11 See In re Pet, of M.K.. 168 Wn. App. 621, 625-30, 279 P.3d 897 (2012).
       12 RP (June 14, 2013) at 29.
       13
            Id.
No. 70605-5-1/6



determined that the statute did not prohibit the court from considering Shaffer's

testimony to the extent that she testified about facts memorialized in the medical

records, but ruled that it would not consider as substantive evidence any statements

of opinion about Hollins' mental state derived from the records.

       Hollins claims that the trial court impermissibly considered evidence of

"psychiatric diagnoses" and "psychiatric reports" of witnesses who were not present

in court and not subject to cross-examination, in violation of RCW 71.05.360(9).14 As

a result, he contends that the trial court's order of commitment must be reversed.

      A fundamental problem with Hollins' argument is that he fails to identify any

evidence of opinions about his mental state or psychiatric diagnoses that the trial

court improperly considered. RCW 71.05.360(9) only outlines the procedure for

admitting portions of medical or psychiatric records that constitute "opinions as to the

detained person's mental state." Hollins refers to Shaffer's testimony about "various

entries" in Hollins' medical chart.15 He also mentions Shaffer's testimony that she

learned from the initial detention paperwork that Hollins had a "'history of multiple

assaults.'"16 Hollins' history of assault does not appear to be included in the medical

records, but in any event, such history is not evidence of an opinion about Hollins'

mental state. Hollins fails to otherwise describe any inadmissible evidence.

       Even if we considered the testimony that Hollins was "not improving" to be an

opinion as to his mental state, RCW 71.05.360(9) requires deleting only certain



       14 Appellant's Br. at 11.
       15 Id, at 9.
       16 Id, (quoting RP (June 14, 2013) at 34).


                                            6
No. 70605-5-1/7



portions of records ifthose records are admitted as evidence. As noted by the trial

court, where Hollins' medical records were not admitted into evidence, there was

nothing to delete or redact.17 The statute does not prohibit expert testimony about

information in the medical chart that is properly relied upon in forming an opinion.18

Even if the testimony about Hollins' lack of improvement was inadmissible, Hollins

does not argue that the expert was not entitled to consider it in forming her opinion.

And the trial court expressly declined to consider any statement of opinion about

Hollins' mental status as substantive evidence. Hollins argues that an expert may not

rely upon ER 703 and 705 to simply recite otherwise inadmissible information

contained in medical records. However, he provides no compelling authority

supporting his argument when experts rely upon such records to form their

opinions.19 Hollins fails to establish that the trial court abused its discretion in

considering any aspect of Shaffer's testimony.

                                Sufficiency of the Evidence

       In general, an individual may be involuntarily committed for mental health

treatment if, as a result of a mental disorder, the individual either (1) poses a


       17 Hollins' argument on appeal that the court could not consider Shaffer's
testimony about the medical records because the State failed to establish as required
by RCW 71.05.360 that they were business records is unavailing for the same
reason.

       18 See ER 703 (expert may rely on inadmissible evidence as a basis for an
opinion or inference if the facts or data utilized are the type reasonably relied on by
experts in that particular field).
       19 Hollins cites In re Welfare of J.M.. 130 Wn. App. 912, 924-25, 125 P.3d 245
(2005), which involved a caseworker and guardian ad litem reciting expert opinions
they had not formed. This court condemned consideration of such third party
opinions as substantive evidence. Here, Dr. Shaffer testified to her own expert
opinions and merely provided details of the information she relied upon to form them.
No. 70605-5-1/8



substantial risk of harm to him or herself, others, or the property of others, or (2) is

gravely disabled.20 In this case, the commitment order was based upon a finding that

Hollins both presented a substantial risk of harm to others and was gravely disabled.

Hollins challenges the sufficiency of the evidence supporting these findings.

       To order the involuntary commitment, the court had to find by a

preponderance of the evidence that Hollins posed a substantial risk that physical

harm will be inflicted 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."21 Or the court had to find by a preponderance of the evidence that

Hollins was gravely disabled. "Gravely disabled" is

       a condition in which a person, as a result of a mental disorder: (a) Is 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 her actions
       and is not receiving such care as is essential for his or her health or
       safety.!22^

To meet the standard of grave disability, there must be "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."23 Where the trial

court has weighed the evidence, our review is generally "limited to determining


      20 RCW 71.05.240(3); In re Pet, of LaBelle, 107 Wn.2d 196, 201-02, 728 P.2d
138(1986).
       21 RCW71.05.020(25)(a)(ii), .240(3).
       22 RCW 71.05.020(17).
       23 LaBelle. 107 Wn.2d at 204-05.



                                             8
No. 70605-5-1/9



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

turn support the trial court's conclusions of law and judgment."24

       Hollins claims that the court's finding that he presented a risk of harm to others

is supported only by (1) evidence that hospital staff took safety precautions when

interacting with him and (2) circumstantial evidence that he was involved in an

assault.


       He contends that this evidence is insufficient. While "circumstantial," the

evidence in the record establishing that Hollins recently assaulted a person at the

DESC was substantial. This evidence of assault alone was sufficient to support the

trial court's determination by a preponderance of the evidence that Hollins posed a

substantial risk of physical harm to others as evidenced by recent behavior.

       Hollins also claims that the totality of the evidence does not establish that his

mental illness rendered him incapable of meeting his essential needs in the

community. He maintains that while the evidence might have indicated that

treatment might be beneficial, it is not enough to show that he could benefit from

treatment.25 But Shaffer's testimony about Hollins' "total disorganization by

psychosis," his complete lack of insight about his need for treatment, his impaired

judgment, and lack of impulse control all support the trial court's determination of

grave disability. According to the testimony, Hollins was largely unable to

communicate due to his mental illness and was thus unable to convey any

information about how he would care for himself were he released. The evidence did



       24 jd, at 209.
       25 See id. at 208.
No. 70605-5-1/10



not merely suggest that treatment would potentially help Hollins Substantial evidence

supports the court's determination by a preponderance of the evidence that due to

his mental disorder, Hollins would be unable to provide for his own health and safety

outside the hospital.

       We affirm the involuntary treatment order.




WE CONCUR:




                                                    %ed<e e.




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