                                                                                                                 E IL.ED
                                                                                                              URA" OF APPEALS
                                                                                                                I01 ON

                                                                                                          E




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                         DIVISION II

In the Matter     of   the Detention     of   R.H.,                               No. 44587 -5 -II


                                         Appellant.                          PUBLISHED OPINION




         MAXA, J. —        RH appeals a trial court order involuntarily committing him to Western State

Hospital for up to 180 days for mental health treatment. He argues that the trial court erred in

determining that he was gravely disabled. In supplemental briefing, he argues that the trial court

lacked statutory authority to order 180 days of treatment (rather than 90 days) based solely on its

determination of grave disability. We conclude that substantial evidence supports the trial

court' s factual findings and that these findings support its conclusion that RH was gravely
                                                                                                                    1
disabled, but     we    hold that the trial      court   lacked statutory authority   under   RCW 71. 05. 320( 1)       to



commit RH for 180 days rather than for 90 days based on a finding of grave disability. We

therefore reverse the involuntary commitment order and remand for proceedings consistent with
                  2
this   opinion.       We affirm in part, reverse in part, and remand.



1
    The legislature     amended    RCW 71. 05. 320 in 2013. LAWS of 2013,               ch.   289, § 5.   The

amendments did not alter the statute in any way relevant to this case; accordingly, we cite the
current version of the statute.


2 A commissioner of this court initially considered this appeal as a motion on the merits under
RAP 18. 14    and      then   referred   it to   a panel of judges.
No. 44587 -5 -II



                                                           FACTS


         On October 29, 2012, RH was charged with reckless burning. The trial court dismissed

the charge without prejudice after adjudicating RH incompetent. RH then was sent to Western

State Hospital for a civil mental health evaluation.


         The State petitioned for a 180 -day involuntary commitment to the hospital. In support of

the petition, psychologist Gregg Gagliardi and psychiatrist Daniel Ruiz -Paredes reported that RH

was gravely disabled.

         This frail, elderly man is chronically mentally ill and is doing especially poor in
         the community as he ages. He is homeless and reports that he lives outside at a
         camp at the top of the Salmon Beach cliff. He has a history of 17 hospitalizations
         including his      most recent      from   which      he   was released    in April 2012.   Historically
         he agrees to community mental health services but when discharged /released he
         resumes his former lifestyle as an untreated homeless mentally ill person.

Clerk' s Papers ( CP) at 12 -13.


         Gagliardi testified at a January 31, 2013, hearing. He diagnosed RH with schizophrenia,

which manifested in " loosening of associations, extreme disinhibition, occasional affective

instability, mood lability, anger, irascibility and paranoia regarding people and their intentions."

Report of Proceedings ( RP) at 4. RH possessed a " vague insight at best" into his mental illness

and was not    taking      medications and presented as              irritable, disorganized, " and very psychotic."


RP at 5.


           Gagliardi opined that RH would be in trouble were he to be released because he was

homeless     and   lived   outdoors "   in   a   camp   near   Salmon Beach,"       which " could be a very dangerous

place   for him to live     without proper        clothing     and shelter."   RP   at   6. Gagliardi informed the court


that RH was previously hospitalized and was most recently released in April 2012.




                                                                    1)
No. 44587 -5 -II



         RH, who was present during the hearing, repeatedly interrupted Gagliardi. At one point

he   expressed, "   You' re nothing but       whores and   lunatics," and other times cursed at the court or


Gagliardi. RP at 6. RH testified that he was subject to a " Gestapo action" and " Freudian

bull* * * *."   RP at 9. He also stated that he had five people trying to kill him, and that when he

told the police he went to jail and was abused.


         The court found by clear, cogent and convincing evidence that RH was gravely disabled.

It concluded that he " is in danger of serious harm resulting from a failure to provide for his ...

essential   human    needs of   health   or   safety."   CP at 16. The trial court did not check the box on


the pre -
        printed order stating that RH

         was taken into custody after having been determined incompetent pursuant to
         RCW 10. 77 and has committed acts constituting a felony (although criminal
         charges have been dismissed) and as a result of a mental disorder, presents a
         substantial likelihood of repeating similar acts, considering the charged criminal
         behavior, life history, progress in treatment, and the public safety.

CP at 17.. The trial court ordered that RH be confined to the hospital for treatment for up to 180

days.


         RH timely appealed. We requested supplemental briefing pursuant to RAP 12. 1( b) on

the issue whether the trial court had the statutory authority to confine RH for 180 days based on a

finding that he was gravely disabled.




                                                             9
No. 44587 -5 -II



                                                       ANALYSIS


A.       DETERMINATION THAT RH WAS GRAVELY DISABLED


         RH argues that the trial court lacked substantial evidence to support its findings of fact


and that the State failed to establish that he suffers from a mental disability that renders him

gravely disabled.3 We disagree.
         The State    sought   RH'   s   involuntary   commitment under   former RCW 71. 05. 280( 4) ( 2008),


which provides that at the expiration of a 14 -day period of intensive treatment a person may be

confined for further treatment pursuant to RCW 71. 05. 320 if that person is " gravely disabled."

Although initially the State also requested RH' s involuntary commitment under former RCW

71. 05. 280( 3),   it stated at the start of trial that it was withdrawing that request.

         The State has the burden of proving that a person is gravely disabled by clear, cogent and

convincing    evidence.      Morris      v.   Blaker, 118 Wn.2d 133, 137, 821 P. 2d 482 ( 1992). RCW


71. 05. 020( 17) defines " gravely disabled" as

         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.

 When proceeding under this definition, a petitioner

         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. Furthermore, the failure or inability to provide for



j Although RH' s commitment period under the challenged order has expired, this appeal is not
moot because an involuntary commitment order may have adverse consequences on future
involuntary commitment determinations. In re Det. ofM.K, 168 Wn. App. 621, 625- 30, 279
P. 3d 897 ( 2012).
                                                            4
No. 44587 -5 -II



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

                                                                                               4
In   re   Det. of LaBelle,. 107 Wn.2d 196, 204 -05, 728 P. 2d 138 ( 1986).                         On   appeal, " we will not




disturb the trial court' s findings of `grave disability' if supported by substantial evidence which

the   lower   court. could    reasonably have found to be             clear, cogent and        convincing."       LaBelle, 107


Wn.2d at 209.


            Here, the trial court found that RH had a mental disorder, diagnosed as schizophrenia and

a psychotic mood disorder. Gagliardi provided the diagnosis of the mental disorder and testified


that the disorder manifested in " loosening of associations, extreme disinhibition, occasional

affective instability, mood lability, anger, irascibility and paranoia regarding people and their

intentions." RP at 4. The trial court observed evidence of RH' s disorder in court, where he


displayed paranoia, and was swearing, very disorganized, and very disruptive.

            The trial court also found that as a result of this mental disorder RH was " in danger of

serious physical       harm resulting from          a   failure to   provide   for his   or   he ...    essential human needs


of   health   or   safety"   as required under          RCW 71. 05. 020( 17)(     a).    It found that RH goes in and out


of   the hospital when        he   stops   taking   medication,      that he " normally lives in         a   camp," and that he


cannot care for himself. CP at 15. The trial court' s factual findings were supported by

Gagliardi' s testimony that RH was living outdoors and lacked proper clothing and shelter for the

winter months, that RH appeared " very disorganized and very psychotic" in the hospital, and that

he has been hospitalized in the past but returns " in a matter of months" because he stops taking

medication. RP at 5.




4
     In LaBelle,    our   Supreme Court       addressed      f6rmer RCW 71. 05. 020( 1) ( 1979), which the
legislature recodified as RCW 71. 05. 020( 17) without substantive changes. LAWS of 2007, ch.
375, § 6.
No. 44587 -5 -II



        These factual findings, in turn, support the trial court' s determination that RH was


gravely disabled because he could not provide himself with adequate clothing or shelter during
cold weather months and that he was unable to obtain medical treatment sufficient to remain


mentally stable unless involuntarily hospitalized. LaBelle, 107 Wn.2d at 210 ( stating that patient

would not receive adequate care if released and could not care for himself outside a hospital

setting).    In addition, RH' s disorganization, outbursts during trial regarding perceived abuse, and

fears of being killed also support that he could not care for himself. LaBelle, 107 Wn.2d at 210

 noting patient' s " inability to respond appropriately to questions, and disorientation ").

        We hold that substantial evidence supports the trial court' s findings that RH was gravely

disabled because he was unable to provide for his health and safety needs as a result of his

mental disorder, which put him in danger of serious physical harm.

B.      NO STATUTORY AUTHORITY FOR 180 -DAY COMMITMENT


        RH next argues that the trial court acted outside its statutory authority when it committed
                                                                                              s
him for 180 days solely            on   the   ground   that   he   was   gravely disabled.        We agree.


         Former RCW 71. 05. 320( 1) provides:


         If the court or jury finds that grounds set forth in [ former] RCW 71. 05. 280 have
         been proven and that the best interests of the person or others will not be served
         by a less restrictive treatment which is an alternative to detention, the court shall
         remand him or her to the custody of the department or to a facility certified for
         ninety day treatment by the department for a further period of intensive treatment
         not to exceed ninety days from the date of judgment. If the grounds set forth in
            former] RCW 71. 05. 280( 3)                are the basis of commitment, then the period of
            treatment may be up to but not exceed one hundred eighty days from the date of


5 RH did not raise this issue in the trial court. The general rule is that issues not raised in the trial
court   may    not   be   raised   for the first time    on appeal.        RAP 2. 5(   a).   However, we may review an
issue not raised below if a trial court exceeds its lawful authority. And the State does not argue
that we cannot address this issue for the first time on appeal. Because the extent of the trial
 court' s statutory authority to commit gravely disabled persons involves a significant liberty
 issue, we address it.
                                                                     6
No. 44587 -5 -II



         judgment in a facility certified for one hundred eighty day treatment by the
          department.


The construction of a statute is a question of law that we review de novo. In re Det. ofBrock, 99

Wn.    App.     722, 724, 995 P. 2d 111 ( 2000).           When construing a statute, we give effect to the plain

and   ordinary meaning        of   the language      used   by   the legislature. In        re   Det. of T.A.H. L., 123 Wn.
                                                                                                                -


App.    172, 183, 97 P. 3d 767 ( 2004). " As civil commitment statutes authorize a significant


deprivation      of   liberty, they   must   be strictly    construed."     In   re            R.,
                                                                                      Det. of J.        80 Wn. App. 947, 956,

912 P. 2d 1062 ( 1996).


          Under RCW 71. 05. 320( 1)' s plain language, the trial court may order an individual to be

involuntarily committed for up to 180 days only if " grounds set forth in [former] RCW
                                                    the

71. 05. 280( 3)    are   the basis    of commitment."        Former RCW 71. 05. 280( 3) allows commitment if:


          Such person has been determined to be incompetent and criminal charges have
          been        dismissed      pursuant   to    RCW         10. 77. 086( 4),     and       has   committed     acts
          constituting a felony, and as a result of a mental disorder, presents a substantial
          likelihood of repeating similar acts.
           a) In any proceeding pursuant to this subsection it shall not be necessary to show
          intent, willfulness, or state of mind as an element of the crime.


But here, the trial court ordered RH' s involuntary commitment only under former RCW

71. 05. 280( 4) based on a finding that he was gravely disabled. The State, before trial, withdrew

its   request   for   commitment under        former RCW 71. 05. 280( 3).              Further, because the trial court did


not order     RH      involuntarily   committed under        former RCW 71. 05. 280( 3),               it did not enter any

factual finding indicating that he " present[ ed] a substantial likelihood of repeating similar acts

 constituting a felony]."

          Because the trial        court ordered     RH     committed     based       on   former RCW 71. 05. 280( 4),        under




RCW 71. 05. 320( 1) the trial court did not have authority to commit RH for 180 days.



                                                                   7
No. 44587 -5 -II



Accordingly, the trial court exceeded its statutory authority when it ordered him involuntarily

committed for up to 180 days.

       We affirm the trial court' s determination that RH is gravely disabled, reverse his 180 -day

commitment order as entered without statutory authority, and remand for proceedings consistent

with this opinion.




                                                  MAXA, J. .
We concur:




 OHANSON, A.C. J.




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