                                                                      FILED
                                                                 SEPTEMBER 18, 2018
                                                               In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division III




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

 In the Matter of the Involuntary Treatment
                                          )
 of                                       )        No. 35118-1-III
                                          )
 J.M.M.                                   )
                                          )        UNPUBLISHED OPINION
                                          )
                                          )
      SIDDOWAY, J. — J.M.M. challenges a grave disability finding in an order

detaining him for 14 days of involuntary mental health treatment. While the fact that he

has completed the commitment period does not render his challenge moot, his stipulation

to a finding of grave disability at the end of the 14 days does. We dismiss the appeal.

                     FACTS AND PROCEDURAL BACKGROUND

       A few days after New Year’s, 2017, 22-year-old J.M.M., accompanied by his

father, voluntarily checked himself into the psychiatric ward of Sacred Heart Medical

Center in Spokane.
No. 35118-1-III
In re Involuntary Treatment of J.M.M.


       Four days into his stay, he asked to be released and Sacred Heart medical staff

responded by petitioning first for a 72-hour evaluation and treatment, and thereafter, for a

14-day detention for involuntary treatment. The petition alleged that as a result of his

mental disorder, J.M.M. presented a likelihood of serious harm to self, a likelihood of

serious harm to others, and was gravely disabled. The allegation of grave disability on

the form petition had boxes “A” and “B” that could be marked; only “A” was marked.

Sealed Clerk’s Papers (CP) at 11.

       At the probable cause hearing on January 11, 2017, the State called Heather

Soares, Ph.D., a psychologist, as its witness. J.M.M. was not under Dr. Soares’s direct

care but she had reviewed his medical records and spoken with him that morning.

J.M.M. concedes on appeal that Dr. Soares provided substantial evidence that he

presented a likelihood of serious harm to himself and to others, so we will not recount

that testimony.

       The petition for J.M.M.’s involuntary commitment also alleged that he “continues

to place himself at risk of serious physical harm due to not being willing/able to provide

for his health and safety needs, and does not demonstrate good faith regarding his

treatment.” CP at 12. In connection with that allegation, Dr. Soares provided the

following relevant testimony:

            She testified that J.M.M. was medication compliant, although she later
             clarified that of the several drugs being administered, he had refused the
             prior evening’s dose of Risperdal. She testified “[h]e was compliant with

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In re Involuntary Treatment of J.M.M.


               that up until last night when he refused it for court.” Sealed Report of
               Proceedings (RP) at 56.
              Asked how he was eating, sleeping, and taking care of daily activities, she
               testified “[H]e hasn’t been up on the unit very long and I haven’t been able
               to interact with him until this point today.” RP at 41. She described him
               as “pretty disheveled” and that his room at the hospital was “filthy” with
               something spilled on his blankets, floor and the bed. Id.
              Asked about the risk to J.M.M. for serious physical harm, the risk related
               to his failure to provide for his essential human needs that she identified
               was that “his medications are not yet stabilized” as he “was just started on
               one of them today.” RP at 42.
              Asked about J.M.M.’s recognition of his need to take his medications, she
               testified that she didn’t know if he was willing to continue taking his
               medications or not.
              Asked if J.M.M. would have a place to live if discharged, she testified,
               “No. He’s homeless.” RP at 45.
              Asked if he had a source of income, she testified, “Not that I’m aware of.”
               Id.
              Asked if he had a way to access medication, she testified, “He’s not
               currently enrolled in services, so, I don’t know if he has a primary care
               provider that he would see, but he . . . doesn’t have mental health
               services.” Id.

       J.M.M. testified in his own defense, although due to a recording malfunction, the

report of proceedings includes only a portion of his direct testimony and nothing that took

place thereafter. He testified that he had checked himself in voluntarily because he

believed he had a mental health disorder. He testified that he had hoped to be diagnosed

but claimed that the one psychiatrist he had seen spent almost no time with him, “ask[ing]

me like five questions.” RP at 59. He testified that if he was given a full “psych”

evaluation and was monitored, then medication “would probably be very helpful,” but he

was wary about being medicated without an evaluation. RP at 61. He attributed his


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In re Involuntary Treatment of J.M.M.


wariness about medications to seeing his mother, who is mentally ill, taken “on and off”

different drugs over the years. Id.

       J.M.M. claimed to have been living with a friend at the time he checked himself

into the hospital and testified that upon discharge he could live with the friend again. He

testified he had been unable to call his friend without access to a phone number stored on

his cell phone.

       At the conclusion of the hearing, the court ordered J.M.M. detained for

involuntary commitment for 14 days, finding the State had proved all of its alleged bases

for commitment. On the issue of “grave disability” as that term was defined by former

RCW 71.05.020(17) (2015), the court made the following ultimate finding:

       The Respondent presently presents a substantial risk of danger of serious
       physical harm resulting from a failure to provide for his/her essential health
       and safety needs. There is recent, tangible evidence of a 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.

CP at 18. The only detail in support was provided by a handwritten finding:

              The Respondent is not currently stable and requires further inpatient
       treatment. He has no stable housing, source of income, or insight into his
       need to take medication for his current symptoms.

CP at 23.

       At the completion of the 14-day involuntary commitment, J.M.M. was committed

to a further period of involuntary treatment not to exceed 90 days. The order was based



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In re Involuntary Treatment of J.M.M.


on a “stipulation by counsel in Respondent’s presence and with his/her agreement.” CP

at 44. It included findings that J.M.M. was gravely disabled on both statutory bases

provided by former RCW 71.05.020(17). The order for the 90-day commitment was later

amended to release him to less restrictive alternative treatment. J.M.M. appeals.

                                        ANALYSIS

       J.M.M.’s only assignment of error on appeal is to the finding in the January 11

order, which detained him for 14 days, that he was gravely disabled as that term is

defined in former RCW 71.05.020(17)(a).

       Under former RCW 71.05.240(3)(a) (2016), an individual may be detained for

involuntary mental health treatment not to exceed 14 days if a superior court finds, based

on a proper petition and timely probable cause hearing, “that such person, as the result of

mental disorder, presents a likelihood of serious harm, or is gravely disabled,” and a less

restrictive alternative to involuntary detention is not in his or her best interest. (Emphasis

added.) J.M.M. concedes on appeal that the evidence at the probable cause hearing

established that he presented a likelihood of serious harm, a sufficient basis for the 14-

day detention. He challenges the finding that he was gravely disabled, which he argues

can have collateral consequences since such findings are given great weight in

subsequent commitment proceedings. See RCW 71.05.012, .245(3). For this reason,

challenges to completed periods of involuntary commitment are not ordinarily moot.

In re Det. of M.K., 168 Wn. App. 621, 625-26, 279 P.3d 897 (2012).

                                              5
No. 35118-1-III
In re Involuntary Treatment of J.M.M.


       “Gravely disabled” is defined by former RCW 71.05.020(17) to include two types

of disability, either of which may serve as the basis for involuntary commitment. In re

Det. of LaBelle, 107 Wn.2d 196, 202, 728 P.2d 138 (1986). Only the first type was

alleged by the petition and found by the January 11 commitment order. As defined by

former RCW 71.05.020(17)(a), “‘[g]ravely disabled’” means 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.” To

prove that an individual is gravely disabled under this definition, “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. Under the former statute, “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.

       Where a 14-day commitment is at issue, the burden of proof is by a preponderance

of the evidence. Former RCW 71.05.240(3)(a). “Preponderance of the evidence means

that considering all the evidence, the proposition asserted must be more probably true

than not true.” State v. Otis, 151 Wn. App. 572, 578, 213 P.3d 613 (2009).

       Even measured by the preponderance standard, the State’s evidence appearing in

our record of the January 11 hearing was not the required recent and tangible evidence

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In re Involuntary Treatment of J.M.M.


that J.M.M. had failed or was unable to provide for his own food, clothing, shelter,

medical treatment, and like needs. Evidence that an individual is homeless, disheveled,

and may or may not be willing to continue medications upon discharge, without more, is

not enough.

       The State argues that we should refuse to consider J.M.M.’s challenge to the

sufficiency of evidence because he has failed to meet his burden of perfecting the record,

given the absence of a record as to what happened after the recording of the hearing

stopped. But cases on which the State relies deal with evidence that an appellant could

have provided, but did not. Here, it is conceded that J.M.M. provided as complete a

verbatim report of proceedings as was possible. J.M.M. has suggested that if we find the

record insufficient, we should remand for trial counsel to prepare a narrative report of

proceedings.

       More persuasive is the State’s argument that J.M.M.’s appeal is moot in light of

his stipulation to the 90-day commitment order. The order stipulated that J.M.M. was

gravely disabled in both of the ways defined by former RCW 71.05.020(17) as of January

25, 2017—only 14 days following entry of the January 11 order. And an order

involuntarily committing an individual for 90 days must be proved by clear, cogent and

convincing evidence. RCW 71.05.310. Given the great weight that the court is

authorized to attach to the January 25th order in any future commitment proceedings, we



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In re Involuntary Treatment ofJMM


see no effective relief we can provide by remanding for completion of the record and then

resolving the issue raised in this appeal.

        The appeal is dismissed as moot.

        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.




WE CONCUR:




Lawrence-Berrey, C.J.

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Pennell, J.




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