In Re The Detention Of: W.c.c.09 ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Detention of
No. 71403-1-1
W.C.C.
ORDER WITHDRAWING AND
SUBSTITUTING OPINON
On March 25, 2016 the Supreme Court affirmed the opinion filed April 27,
2015 but remanded to this court to modify the opinion to use W.C.C.'s initials in the
caption and the body of the opinion. Therefore, the opinion filed April 27, 2015 shall
be withdrawn and a substitute published opinion shall be filed. Now, therefore, it is
hereby
ORDERED that the opinion filed on April 27, 2015 is withdrawn; and it is
further
ORDERED that a substitute opinion shall be filed and published in the
Washington Appellate Reports.
DATED this H day of CYnPM .,2015.
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Appelwick, J. — W.C.C. alleges that his commitment for 14 day invoKmtajy-o
treatment was untimely and must be dismissed. At issuPe is whether holidays areP
weekends are excluded when calculating the maximum period allowed for continuances
of hearings under RCW 71.05.240. Continuances of commitment hearings are
procedural matters. Therefore, we apply the method of computing time under CR 6(a)
rather than conflicting statutory alternatives. W.C.C.'s hearing date fell within the
statutory time limit. We affirm.
STATUTORY SCHEME
The involuntary treatment act (ITA), chapter 71.05 RCW, governs the temporary
detention for evaluation and treatment of persons with mental disorders. If a designated
mental health professional (DMHP) determines that, as a result of a mental disorder, a
person presents a likelihood of serious harm or is gravely disabled, and that the person
will not voluntarilyseek treatment, the DMHP may file a petition for initial detention. RCW
71.05.150(1). The initial detention shall not exceed 72 hours. RCW 71.05.180. The
computation of the 72 hour period excludes weekends and holidays. RCW 71.05.180.
If the DMHP or the evaluation and treatment facility petitions for additional 14 day
involuntary treatment, the court shall hold a probable cause hearing within 72 hours of
the initial detention. RCW 71.05.240(1). To justify the additional detention, the State
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must demonstrate by a preponderance of the evidence that, as a result of a mental
disorder, the detained person presents a likelihood of serious harm or is gravely disabled.
RCW 71.05.240(3). At the request of the detained person or his or her attorney, the court
may postpone the hearing for a period not to exceed 48 hours. RCW 71.05.240(1). The
court may also continue the hearing subject to the State's showing of good cause for a
period not to exceed 24 hours. RCW 71.05.240(1).
FACTS
W.C.C. is a 70 year old man who resided at the Downtown Emergency Service
Center Rainier House. In December 2013, Rainier House staff informed a King County
DMHP that W.C.C. was exhibiting concerning behavior. Another resident, David Abbott,
reported that W.C.C. punched him in the neck. Abbott also said that W.C.C. accused him
of having a sexual relationship with Karla Manus, a clinical support specialist at Rainier
House. Manus reported that W.C.C. was "fixated" on her and had become increasingly
jealous and aggressive since she began to show that she was pregnant. According to
Manus, W.C.C. screamed at her, called her obscenities, and invaded her space in a way
that felt menacing.
On Friday, December 20, the DMHP petitioned for W.C.C.'s initial detention. The
trial court granted the petition, and W.C.C. was admitted to Harborview Medical Center
for evaluation and treatment.
On Tuesday, December 24, Harborview petitioned for additional 14 day involuntary
treatment. At the probable cause hearing that day, W.C.C.'s appointed counsel informed
the court that she had a conflict of interest. Counsel asked that she and her firm be
allowed to withdraw and have W.C.C.'s case assigned to another attorney. Counsel also
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requested that the case be reset for that Friday, December 27. The court granted the
motion to withdraw and the continuance.
On December 27, the State also requested a continuance, stating that "conflict
counsel needs additional time for appointment due to holiday. [The Associated Counsel
for the Accused] will handle the case. Good cause exists." The hearing was reset for the
following Monday, December 30.
On December 30, replacement counsel appeared on behalf of W.C.C. Counsel
immediately moved to dismiss, arguing that W.C.C. was not provided a hearing within the
statutory time line. The court denied the motion. It noted that it granted the continuances
to provide W.C.C. prepared, conflict-free counsel and to accommodate nonjudicial days.
The court heard testimony from W.C.C, Abbott, Manus, and Dr. Brent O'Neal, a
clinical psychologist who evaluated W.C.C. at Harborview. The court found by a
preponderance of the evidence that W.C.C. presented a likelihood of serious harm to
others. It granted the petition to detain W.C.C. for 14 days of involuntary treatment.
W.C.C. appeals.
DISCUSSION
W.C.C. argues that dismissal was required, because he was not provided a
probable cause hearing within the statutory time frame. He further contends that there
was insufficient evidence that he posed a likelihood of serious harm to others.
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I. Continuance of Probable Cause Hearing
W.C.C. asserts that the trial court erred in granting continuances of his probable
cause hearing beyond the statutory time limits of the ITA.1 The decision to grant a motion
for a continuance is generally within the discretion of the trial court. In re Pet, of G.V.,
124 Wash. 2d 288, 295, 877 P.2d 680 (1994). The trial court abuses its discretion when its
decision is manifestly unreasonable or exercised on untenable grounds or for untenable
reasons, jd.
The ITA provides:
If a petition is filed for fourteen day involuntary treatment or ninety days of
less restrictive alternative treatment, the court shall hold a probable cause
hearing within seventy-two hours of the initial detention of such person as
determined in RCW 71.05.180. If requested by the detained person or his
or her attorney, the hearing may be postponed for a period not to exceed
forty-eight hours. The hearing may also be continued subject to the
conditions set forth in RCW 71.05.210 or subject to the petitioner's showing
of good cause for a period not to exceed twenty-four hours.
RCW 71.05.240(1).
The State maintains that the statutory time frames are not absolute. This is so, the
State contends, because "[Mental Proceedings Rule (MPR) 1.2] permits cases to be
continued beyond the 'strict' time frames that [W.C.C] asserts." MPR 1.2 provides that
"[i]n any judicial proceeding for involuntary commitment or detention held pursuant to
RCW 71.05 the court may continue or postpone such proceeding for a reasonable time,
subject to RCW 71.05.210 and RCW 71.05.240, on the following grounds . . . ."
1 W.C.C.'s 14 day commitment has expired. However, civil commitment orders
under chapter 71.05 RCW have collateral consequence in subsequent petitions and
hearings. In re Pet, of M.K., 168 Wash. App. 621, 626, 279 P.3d 897 (2012). This principle
allows us to consider a challenge to a civil commitment order after the underlying
detention has concluded. See id. The State appears to recognize this, as it does not
challenge this appeal as moot.
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The State asserts that this rule trumps RCW 71.05.240. As support, it cites In re
Detention of CM., 148 Wash. App. 111, 197 P.3d 1233(2009). The CM. court considered
a conflict between MPR 1.2 and former RCW 71.05.310 (2005), which established a five
day limit for continuances of hearings on 90 day commitment petitions. jd at 116-18.
The court found that the conflict involved a procedural matter and thus concluded that
MPR 1.2 governed extensions of time for 90 day commitment hearings, id. at 117-18.
The State asserts that this reasoning is "equally applicable to the interplay between MPR
1.2 and RCW 71.05.240(1) here."
However, there is an important difference between CM. and the present case.
Unlike former RCW 71.05.310, the provision at issue here was explicitly named as a
restraint on the court rule: "the court may continue or postpone such proceeding for a
reasonable time, subject to RCW 71.05.210 and RCW 71.05.240." MPR 1.2 (emphasis
added). The court rule explicitly recognizes that its scope is limited by the statute.
Therefore, the provisions do not conflict and MPR 1.2 does not negate the statutory time
limits.
Accordingly, we must determine whether the continuances at issue here exceeded
their respective time limits under RCW 71.05.240(1). The first continuance was granted
at defense counsel's request, meaning itwas limited to 48 hours. See RCW 71.05.240(1).
The 48 hour continuance included 2 days2 plus 1 holiday. The second continuance was
granted at the State's request for good cause, meaning it was limited to 24 hours. See
RCW 71.05.240(1). The 24 hour continuance included 1 day plus 2 weekend days.
2 The statute explicitly provides for a period of hours, not days. In re Pet, of
Swanson, 115 Wash. 2d 21, 27-28, 804 P.2d 1 (1990). However, the record is silent as to
what time of day the hearings were held or the continuances were granted.
No. 71403-1-1/6
Thus, the crucial question is how to count the 48 and 24 hour periods mandated
by the statute—specifically, whether to exclude weekends and holidays. Under RCW
71.05.180, the initial 72 hour detention excludes Saturdays, Sundays, and holidays.
RCW 71.05.240(1) does not state the same exclusion for continuances. W.C.C. asks us
to interpret this omission as evidence that the legislature intended for weekends and
holidays to be categorically included when granting continuances. However, based on
the history of this statute, we decline to do so.3
Instead, we turn to the general provisions regarding time computation: RCW
1.12.040 and CR 6(a). RCW 1.12.040 states, "The time within which an act is to be done,
as herein provided, shall be computed by excluding the first day, and including the last,
unless the last day is a holiday, Saturday, or Sunday, and then it is also excluded." CR
6(a) provides, "When the period of time prescribed or allowed is less than 7 days,
intermediate Saturdays, Sundays and legal holidays shall be excluded in the
computation."
3 It is apparent that the difference between the two provisions was a legislative
artifact. Originally, RCW 71.05.180 expressly included weekends and holidays when
calculating the initial 72 hour period. Laws of 1973, 1st Ex. Sess., ch. 142, § 23. This
indicated that RCW 71.05.180 was an exception to RCW 1.12.040, the general time
computation statute that provides for exclusion of nonjudicial days. See Laws of 1887,
ch. 20, § 1. RCW 71.05.240 did not specify whether weekends and holidays should be
included when calculating the length of continuances. See Laws of 1973, 1st Ex. Sess.,
ch. 142, § 29. We interpret this to mean that RCW 71.05.240 was—and is—subject to
the general time computation statute. See Amalgamated Transit Union Legislative
Council v. State, 145 Wash. 2d 544, 552, 40 P.3d 656 (2002) ("The legislature is presumed
to be aware of its own enactments."). RCW 71.05.180 was later amended to exclude
weekends and holidays, signaling that the legislature reversed its position as to the 72
hour determinations. Laws of 1979, 1st Ex. Sess., ch. 215, § 11.
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No. 71403-1-1/7
Under either provision, the second continuance was properly set.4 However, the
first continuance was proper under only CR 6(a)'s computation method. Pefense counsel
requested the hearing on Tuesday, Pecember 24, and the hearing was set on Friday,
Pecember 27. Forty-eight hours is less than 7 days, so CR 6(a) would dictate that the
Christmas holiday was excluded and the hearing was properly set on Pecember 27. But,
the holiday did not fall on the last day of the time period, so RCW 1.12.040 would dictate
that the hearing should have been set on Pecember 26. The two provisions therefore
conflict, and we must determine which applies.
Where a statute and a court rule conflict, the nature of the right at issue determines
which provision controls. State v. W.W., 76 Wash. App. 754, 758, 887 P.2d 914 (1995). If
the right is substantive, the statute prevails, |d If the right is procedural, the court rule
prevails. Id This reflects the division of power between the legislative and judicial
branches. Id "Substantive law prescribes norms for societal conduct and punishments
for violations thereof. It thus creates, defines, and regulates primary rights. In contrast,
practice and procedure pertain to the essentially mechanical operations of the courts by
which substantive law, rights, and remedies are effectuated." State v. Smith, 84 Wash. 2d
498, 501, 527 P.2d 674 (1974). Where a procedural right is involved, "CR 6(a) expressly
supersedes RCW 1.12.040." Stikes Woods Neigh. Ass'n v. City of Lacev, 124 Wash. 2d
459, 466, 880 P.2d 25 (1994).
4 The State requested the continuance on a Friday and the hearing was set on the
following Monday. The last day of the 24 hour period was on a weekend, so, if applying
RCW 1.12.040, it was proper to set the hearing on Monday. And, 24 hours is less than 7
days, so it was proper to exclude the weekend days under CR 6(a).
No. 71403-1-1/8
In CM., the court found that continuances of 90 day commitment hearings under
the ITA are procedural in nature. 148 Wash. App. at 116-17. The court reasoned that the
ordering of a court's calendar and the decision to continue a case are discretionary
matters for the trial court and thus procedural. ]d at 117. The court further noted that
"[t]rial on a particular day does not involve a substantive right." Id.
Continuances of 14 day commitment hearings likewise involve a procedural right.
It is the outcome of a probable cause hearing that implicates a detainee's substantive
right to liberty. By contrast, setting the timing of a hearing is an "essentially mechanical
operation" of the court by which the substantive law is effectuated. Cf. Smith, 84 Wash. 2d
at 501 (holding that the right to postconviction release pending appeal is procedural). We
therefore hold that CR 6(a) controls when granting continuances under chapter 71.05
RCW. Accordingly, the trial court did not abuse its discretion in granting continuances of
W.C.C.'s probable cause hearing.
The ITA was enacted, in part, to prevent inappropriate, indefinite commitment of
mentally disordered persons; safeguard individual rights; provide continuity of care for
persons with serious mental disorders; and protect the public safety. RCW 71.05.010(1),
(3), (4), (7). These goals are given effect here. W.C.C.'s case was decided on the merits,
and the trial court determined that commitment was the proper step. As a result, W.C.C.
was provided treatment, and, in the interim, he was kept separate from the members of
the public to whom he posed a potential threat. He was not detained inappropriately—
rather, his hearing was continued for the purpose of providing him conflict-free, prepared
counsel. Nor was he detained indefinitely but, instead, for a period of time specified in
the statute with accommodation for nonjudicial days. Cf. In re Pet, of Swanson, 115
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Wn.2d 21, 29, 804 P.2d 1 (1990) (finding that the ITA's goals are best met by interpreting
the initial 72 hour requirement as satisfied when the court calendar begins and the parties'
attorneys are ready to proceed, rather than at the time of the individual proceeding). We
further note that nothing in the State's conduct suggests anything but good faith.
II. Sufficiency of Evidence
To commit a person for involuntary treatment under the ITA, the State must show
by a preponderance of the evidence that the person presents a likelihood of serious harm
to others, or is gravely disabled, as a result of a mental disorder. RCW 71.05.240(3). A
"likelihood of serious harm" to others means a "substantial risk that... physical harm will
be inflicted by a person 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." RCW71.05.020(25)(a)(ii).
W.C.C. argues that there was insufficient evidence that he presented a likelihood
of serious harm to others. Where the trial court has weighed the evidence, our review is
generally 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.
In re Pet, of LaBelle. 107 Wash. 2d 196, 209, 728 P.2d 138 (1986).
The unchallenged findings5 demonstrate the following: W.C.C. suffers from
vascular dementia and delusional disorder. He has a morbid jealousy related to Manus
5W.C.C. assigns error to the trial court's finding that "[t]he Respondent, as a result
of a mental disorder, presents a likelihood of serious harm ... to others." This finding
appeared in the trial court's order of commitment, entered on Pecember 30, 2013. The
trial court entered supplemental findings of fact and conclusions of law on January 23,
2014. W.C.C. does not assign error to any of those findings. Unchallenged findings of
fact become verities on appeal. State v. Gibson. 152 Wash. App. 945, 951, 219 P.3d 964
(2009).
No. 71403-1-1/10
and experiences delusions about her having a sexual relationship with Abbott. W.C.C.
has exhibited aggressive behavior toward Abbott as a result of this delusion. He has also
threatened to kill Abbott. W.C.C.'s delusions have grown stronger as Manus's pregnancy
has become more obvious. The delusions culminated in an altercation in which W.C.C.
accused Abbott of having sex with Manus and punched Abbott in the throat. This behavior
is so irrational that it has caused Manus to be afraid for her own safety and the safety of
her unborn child. This evidence supports a finding that, as a result of his mental disorder,
W.C.C exhibited behavior that caused physical harm to Abbott and placed Manus in
reasonable fear of sustaining such harm.
On appeal, W.C.C. acknowledges that the evidence showed that he recently
punched Abbott in the throat and that Abbott and Manus testified that they feared for their
safety. However, W.C.C. notes that Abbott disliked W.C.C. and that W.C.C. told Pr.
O'Neal that he punched Abbott only in self-defense. W.C.C. further observes that he had
no prior history of violence and was 70 years old, was underweight, and had a pacemaker.
Therefore, W.C.C. asserts, the evidence demonstrated that he did not pose a likelihood
of serious harm. Fairly considered, W.C.C. raises questions not of sufficiency, but of
credibility and the weight accorded to the evidence. Those questions are not properly
before this court. See State v. Camarillo, 115 Wash. 2d 60, 71, 794 P.2d 850 (1990)
("Credibility determinations are for the trier of fact and cannot be reviewed on appeal.");
State v. Homan, 181 Wash. 2d 102, 106, 330 P.3d 182 (2014) ("[W]e must defer to the trier
of fact for purposes of resolving conflicting testimony and evaluating the persuasiveness
of the evidence.").
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No. 71403-1-1/11
Continuances of probable cause hearings under the ITA involve a procedural right.
Accordingly, CR 6(a) controls when granting such continuances. Applying the method of
time computation in CR 6(a), W.C.C. was provided a probable cause hearing within the
statutory time limit of RCW 71.05.240(1). W.C.C. fails to show that there was insufficient
evidence that he posed a likelihood of serious harm to others. We affirm.
WE CONCUR:
IT^,
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