In Re The Detention Of: E. J. S., Jr ( 2014 )

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counT OF APPEALS
DIVISION 11
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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DIVISION II
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In re Detention of: No. 43909 -3 -II
EJS,
UNPUBLISHED OPINION
Respondent.
BJORGEN, J — EJS has been involuntarily committed at Western State Hospital ( WSH)
since August 2009. After hearing testimony from petitioner Hamid Nazemi, PhD, a psychologist
assigned to EJS' s ward, and from EJS, the trial court found that EJS remains " gravely disabled"
and entered an order imposing an additional 180 days of involuntary commitment. EJS appeals,
claiming that the trial court violated his right to due process of law by entering the order based
on testimony from a mental health professional who lacked sufficient first - and knowledge of
h
EJS' s condition. Because the record shows that Nazemi was familiar with EJS' s status based on
a review of EJS' s medical records, frequent contacts on the ward, and ongoing informal
examinations, we affirm.
FACTS
WSH has admitted EJS many times over the last 25 years due to a mental illness
diagnosed as " schizoaffective disorder, bipolar type." Clerk' s Papers ( CP) at 22 -24. The Seattle
Municipal Court referred EJS to WSH for a psychiatric evaluation in 2009, after the court found
him incompetent to stand trial on a. charge of fourth degree assault, and WSH' s medical
professionals petitioned the superior court for EJS' s involuntary commitment. The superior
No. 43909 -3 - II
court granted the petition, as well as several subsequent petitions from WSH medical
professionals, prolonging the involuntary commitment.
Nazemi and Rolando Pasion, MD, filed the petition at issue here on August 15, 2012.
They requested up to an additional 180 days' involuntary commitment, alleging that EJS " is
gravely disabled[,] ... requires intensive, supervised 24 -hour restrictive care[,] and is not ready
for less restrictive care." CP at 79 -80. In their supporting declaration, Nazemi and Pasion
described EJS' s condition based on information from various sources, including personal
interactions, EJS' s medical chart, and a declaration submitted by another WSH medical
professional in support of a previous involuntary commitment petition. Nazemi and Pasion' s
declaration stated that "[ EJS] was approached for purposes of interview" but had " refused to
participate and indicated that he wanted to exercise his right to remain silent." CP at 86.
The superior court held a hearing on the petition on August 20, 2012 at which Nazemi
and EJS testified. EJS, represented by counsel, stipulated to Nazemi' s qualifications as a
psychologist. Nazemi testified that he had observed EJS since EJS had transferred to Nazemi' s
ward the preceding March and described EJS' s response to Nazemi' s attempt to conduct an in-
depth examination. Nazemi admitted that, with some prompting, EJS has generally managed
daily life activities sufficiently at WSH, and EJS' s " overall presentation has been fairly
consistent." Verbatim Report of Proceedings ( VRP) at 12 -13. Nazemi stated, however, that
medication adjustments are ongoing," that EJS would not discuss discharge planning with WSH
staff because EJS believed himself independently wealthy, and that EJS denied having a mental
illness and did not believe he needed to take medication. VRP at 9, 13. Nazemi described EJS' s
history of discontinuing medication following release from WSH and undergoing
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decompensation." VRP at 9 - 11. Finally, Nazemi gave the opinions that EJS could not obtain
food, clothing, and shelter on his own and was not ready for placement in a less -restrictive
setting.
EJS frequently interrupted the court and gave largely nonresponsive testimony when
called to the stand, mostly concerning the spelling of his name and his repeated requests that the
court, the attorneys, and Nazemi refer to him as " John Doe," the name under which police had
initially booked him. VRP at 15 -19. He asserted that his " original name" was " Joseph H.
Stevens," and exhibited disorientation as to time, stating that he had been arrested on November
29, 2008 and had " been locked up for 72 days." VRP at 15, 17.
The court cut off EJS' s testimony and granted the petition. The court summarized
Nazemi' s testimony and found by clear, cogent, and convincing evidence EJS had a mental
disorder, and as a result, was
in danger of serious physical harm resulting from a failure to provide for his .. .
essential human needs of health or safety; manifests severe deterioration in
routine functioning evidenced by repeated and escalating loss of cognitive or
volitional control over his ... actions[,] and is not receiving such care as is
essential for his ... health or safety.
CP at 96. The court concluded that EJS " continues to be gravely disabled" and that less
restrictive alternatives were not in his best interest, and thus ordered " up to 180 days
involuntary treatment at Western State Hospital." CP at 97 -98. EJS timely appeals.
ANALYSIS
Initially, EJS argues that his appeal is not moot, even though the order at issue has
already expired. He cites In re Detention ofMK, 168 Wn. App. 621, 626, 279 P. 3d 897 ( 2012)
as support. The State effectively concedes the issue, presenting no argument in response, and
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properly so. M.K. is directly on point, holding that " each commitment order has a collateral
consequence in subsequent petitions and hearings, allowing us to render relief if we hold that the
detention under a civil commitment order was not warranted." 168 Wn. App. at 626. EJS' s
appeal is not moot.
Turning to the substance of the appeal, we acknowledge some difficulty in characterizing
EJS' s claim. If characterized as a challenge to the admission of Nazemi' s testimony at the
hearing, EJS has waived the issue under RAP 2. 5( a), as the State correctly argues, by failing to
raise a timely and specific objection to Nazemi' s qualifications below. On the other hand, EJS
contends that the superior court violated his right to due process of law by basing its conclusion
that he remained gravely disabled on " a Petition and testimony which was given by a state' s
expert who did not have adequate first - and knowledge to
h support the commitment." Br. of
Appellant at 18. Understood as a challenge to the sufficiency of the evidence supporting his
involuntary commitment, EJS' s claim alleges both a " failure to establish facts upon which relief
can be granted" and a " manifest error affecting a constitutional right," and thus RAP 2. 5( a) by its
termsdoes not bar review. See In re Det.-ofLaBelle, 107 Wn.2d 196, 201, 728 P. 2d 138 ( 1986)
holding that " involuntary commitment for mental disorders is a significant deprivation of liberty
which the State cannot accomplish without due process of law "); City ofSeattle v. Slack, 113
Wn.2d 850, 859, 784 P. 2d 494 ( 1989) ( holding that " sufficiency of the evidence is a question of
constitutional magnitude and can be raised initially on appeal "). We therefore address the claim
on its merits.
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I. STANDARD OF REVIEW
Our Supreme Court has articulated the standard by which appellate courts review civil
commitment orders as follows:
The burden of proof at 90 -day or 180 -day involuntary commitment proceedings is
by clear, cogent and convincing evidence, RCW 71. 05. 310, which means the
ultimate fact in issue must be shown by evidence to be " highly probable."
Generally, where the trial court has weighed the evidence, appellate review is
limited to determining whether substantial evidence supports the findings and, if
so, whether the findings in turn support the trial court' s conclusions of law and
judgment. However, where the State must prove its case by clear, cogent and
convincing evidence, the evidence must be more substantial than in the ordinary
civil case in which proof need only be by a preponderance of the evidence; in
other words, the findings must be supported by substantial evidence in light of the
highly probable" test. Accordingly, 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 ( citations omitted). When reviewing a challenge to the sufficiency of
the evidence in a civil commitment proceeding, we view the evidence " in the light most
favorable to the State, and all reasonable inferences from the evidence must be drawn in favor of
the State and interpreted most strongly against the respondent." In re Det. ofAudett, 158 Wn.2d
712, 727, 147 P. 3d 982 ( 2006) ( citations omitted)
II. THE TRIAL COURT' S CONCLUSION THAT EJS WAS GRAVELY DISABLED
EJS argues that the superior court' s commitment order violated his right to due process of
law because the court based its conclusion that EJS was " gravely disabled" on testimony from an
expert without sufficient first -
hand knowledge to qualify as an " examining mental health
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professional" under the civil commitment statute, RCW 71. 05. 290. 1 Br. of Appellant at 13 - 19.
The statute provides that a petition for additional involuntary treatment
shall summarize the facts which support the need for further confinement and
shall be supported by affidavits signed
by ... [ o] ne examining physician and
examining mental health professional.... The affidavits shall describe in detail
the behavior of the detained person which supports the petition.
RCW 71. 05. 290.
The statute 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.
RCW 71. 05. 020( 17). The trial court relied on both prongs of this definition.
Under the first prong,
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. Furthermore, 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.
LaBelle, 107 Wn.2d at 204 -05. The second prong requires
recent proof of significant loss of cognitive or volitional control. In addition, the
evidence must reveal a factual basis for concluding that the individual is not
receiving or would not receive, if released, such care as is essential for his or her
health or safety. It is not enough to show that care and treatment of an
1
EJS assigns error generally to the trial court' s conclusion that EJS was " gravely disabled." Br.
of Appellant at 1. Although EJS briefly discusses the " gravely disabled" standard, he makes no
attempt to show that the evidence presented fails to meet that standard except in one respect: the
qualifications of the State' s only witness, Nazemi. See Br. of Appellant at 9, 11 - 18.
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individual' s mental illness would be preferred or beneficial or even in his best
interests. To justify commitment, such care must be shown to be essential to an
individual' s health . or safety and the evidence should indicate the harmful
consequences likely to follow if involuntary treatment is not ordered.
Furthermore, [ the State must show] that the individual is unable, because
of severe deterioration of mental functioning, to make a rational decision with
respect to his need for treatment.
LaBelle, 107 Wn.2d at 208 ( emphasis omitted). The State persuasively argues that it met the
requirements of both prongs, which argument EJS makes no attempt to rebut. Thus, we consider
only whether Nazemi qualified as an examining mental health professional under the civil
commitment statute, RCW 71. 05. 290.
In In re Detention of J.R., 80 Wn. App. 947, 956 -57, 912 P. 2d 1062 ( 1996), a
consolidated appeal resolving the cases of three patients against whom trial courts had dismissed
petitions for commitment, we considered the meaning of the term " examining" in RCW
71. 05. 290:
a doctor who previously has examined a patient, who maintains frequent contact
with the patient, and who has extensive current knowledge about the patient' s .
mental status may qualify as an examining doctor and share his information with
the court by means of the petition. A patient who is being evaluated for a second
180 -day commitment period generally has been in the hospital for at least the
previous six and one - half months ( one 14 -day and one 180 -day commitment
period). RCW 71. 05. 230; RCW 71. 05. 320.Thus, the treating doctor has had a
unique opportunity to evaluate the patient and may have a more thorough
understanding of the patient th[ a] n would a doctor who merely conducts a single,
isolated, mental status examination. To find the latter qualified to petition the
court, but not the former, could frustrate the goal of providing the court access to
the most reliable evidence available.
Defining " examining" physician to include a treating doctor who is
familiar with the patient by way of ongoing informal examinations is consistent
with the language of the statute; examining suggests an ongoing, continuing,
comparative process.
The J.R. court then contrasted the qualifications of the professionals petitioning for commitment
of two of the patients with those of the doctor who testified at the third patient' s hearing:
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In the cases of J. R. W.B.,
both the treating psychologists and
and
psychiatrists testified that they had daily contact with each patient, prepared
periodic formal evaluations, and evaluated them continually and constantly.
Thus, those doctors satisfied the definition of " examining" professional, as used
in RCW 71. 05. 290.... Dr. Jackson[, in contrast,] evaluated G.R. only cursorily;
he had less than two weeks of contact and the contacts were for very brief periods
of time.Dr. Jackson had not conducted any type of examination or evaluation in
the past that could serve as a baseline for a continuing evaluation process. In light
of these minimal contacts, the court commissioner did not err in concluding that
Dr. Jackson did not qualify as an " examining" physician.
80 Wn. App. at 957. Based on this analysis, the IR. court held that the trial court had erred in
dismissing the petitions for commitment of J. R. and W.B., but affirmed the dismissal of the
petition against G.R. 80 Wn. App. at 958.
Nazemi' s first -
hand knowledge of EJS' s mental condition lies somewhere between the
two extremes discussed in J.
R. EJS points out that, although the portion of the commitment
order describing the basis for the court' s conclusion states that "[ t] he Respondent' s current
Mental Status Examination reveal[ s]" Nazemi admitted that he performed no such examination
on EJS. CP at 95. However, the reason Nazemi did not perform a mental status examination.is
that EJS refused to participate. A rule that prevented a mental health professional from
successfully petitioning for involuntary commitment where the patient had refused to cooperate
in a mental status evaluation would create a perverse incentive indeed. Moreover, the JR. court
expressly rejected the argument that a person " must conduct a formal mental status examination
of the patient" in order to qualify as an " examining" professional. J.R., 80 Wn. App. at 955 -57.
The record shows that Nazemi attempted to perform such an evaluation, had examined
EJS' s medical records in detail, and had the opportunity to directly observe EJS over the course
of several months of regular contacts on the ward. Even though Nazemi had not himself
performed them, he had reviewed numerous prior mental status evaluations performed by
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colleagues, giving him an adequate " baseline for a continuing evaluation process." J.R., 80 Wn.
App. at 957. This record supports a finding that Nazemi was " familiar with [EJS] by way of
ongoing informal examinations," and places the basis of Nazemi' s knowledge regarding EJS' s
condition much closer to that held sufficient by the J. court. J.R., 80 Wn. App. at 957.
R.
EJS also argues that the basis for Nazemi' s knowledge was not " firsthand" because
Nazemi relied on " hearsay declarations by others, many of whom were not identified or only
identified by initials." Br. of Appellant at 15 -17. We disagree.
Initially, the supposed " hearsay declarations" Nazemi relied upon consisted of entries in
EJS' s medical charts, and thus plainly fall under the statutory business records exception to the
rule against hearsay. RCW 5. 45.020; State v. Ziegler, 114 Wn.2d 533, 538, 789 P.2d 79 ( 1990).
As the Ziegler court noted,
As applied to hospital records, compliance with the [ business records as
evidence act, RCW 5. 45. 020] obviates the necessity, expense, inconvenience, and
sometimes impossibility of calling as witnesses the attendants, nurses, physicians,
X ray technicians, laboratory and other hospital employees who collaborated to
make the hospital record of the patient. It is not necessary to examine the person
who actually created the record so long as it is produced by one who has the
custody of the record as a regular part of his work or has supervision of its
creation."
114 Wn.2d at 538 ( quoting Cantrill v. Am. Mail Line, Ltd., 42 Wn.2d 590, 608, 257 P. 2d 1791953)) ( citations omitted). Nazemi plainly had custody of EJS' s medical records as a regular
part ofhis work, which included supervision of many of the hospital staff who made the disputed
entries.
In addition, as the State points out, the commitment statute unambiguously contemplates
that such medical records should play an important role in commitment decisions. Indeed, the
statement of legislative intent expressly provides that
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No. 43909 -3 - II
fJor persons with a prior history or pattern of repeated hospitalizations or law
enforcement interventions due to decompensation, the consideration of prior
mental history is particularly relevant in determining whether the person would
receive, if released, such care as is essential for his or her health or safety.
RCW 71. 05. 012. Nazemi properly relied on hospital records in preparing the affidavit and
testifying at the hearing.
The record establishes that Nazemi qualified as an examining mental health professional
under RCW 71. 05. 290( 2)( b). Thus, sufficient evidence supports the trial court' s conclusions in
the order of commitment. We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
We concur:
JRSWICK, J.
IANSON, C. J.
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