In Re The Detention Of P. K.13 ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Detention of No. 71290-0-1
P.K. ORDER DENYING MOTION
FOR RECONSIDERATION,
Appellant. WITHDRAWING OPINION, AND
SUBSTITUTING OPINION
The appellant, P.K., has filed a motion for reconsideration. The respondent, State
of Washington, has filed an answer, and P.K. has filed a reply. The court has taken the
matter under consideration and has determined thatthe motion for reconsideration should
be denied.
Now, therefore, it is hereby
ORDERED that the motion for reconsideration is denied; and, it is further
ORDERED that the opinion in the above-referenced case filed on May 4, 2015, is
withdrawn and a substitute opinion be filed in its place.
Done this /37&
" day of Qy^ 2015. CZD
FOR THE COURT:
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Detention of ] No. 71290-0-1
P.K., i DIVISION ONE
Appellant. ] UNPUBLISHED OPINION t*5 fi. ^h:'"
i FILED: July 13, 2015 — • - r~"
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Trickey, J. — P.K. appeals the trial court's order revoking her release from
inpatient mental health treatment to a less restrictive alternative. She contends she is
entitled to reversal of the order because the trial court failed to hold the revocation hearing
within the time frame required by statute. P.K. also challenges the trial court's
consideration of evidence contained in her medical records and the conclusion that she
had substantially decompensated. We affirm.
FACTS
On August 15, 2013, the trial court entered an order involuntarily committing P.K.
for a period of 14 days. On September 3, 2013, P.K. entered into an agreed order for 90
days of a less restrictive alternative. The order required P.K. to live at Evans House, a
supportive housing facility. P.K was also required to attend all appointments with the
DESC PACT1 team and take medications as prescribed.
The State subsequently filed a petition to revoke the less restrictive alternative and
return P.K. to a hospital setting. The record shows that P.K. was detained at 5:50 a.m.
on November 11, 2013.
1 The Downtown Emergency Service Center's Program for Assertive Community Treatment
provides intensive, community-based mental health services.
No. 71290-0-1/2
A revocation hearing was held on November 18, 2013. The State offered the
testimony of two fact witnesses, Melina Breland and Robyn Hughes, and one expert
witness, Gerri Pergola.
Breland, P.K.'s PACT team case manager, testified that P.K. was required to meet
with the PACT team every morning for medication monitoring, but had missed at least
five appointments since her release from inpatient treatment in September. Breland
testified that in early November P.K. left Evans House and was gone for four days.
Breland eventually located P.K. at P.K.'s mother's house. Breland also testified that P.K.
had decompensated from her baseline level of functioning. P.K.'s hygiene had noticeably
deteriorated, she refused to answer any of Breland's questions, and she asked Breland
to call her by a different name.
Hughes, a residential counselor at Evans House, testified that P.K.'s hygiene since
September was consistently poor and P.K. was frequently covered in her own feces.
Hughes testified that in November she attempted to enforce a house rule with P.K. P.K.
screamed at Hughes and Hughes "took a couple steps back because [Hughes] just didn't
feel safe."2 Hughes testified the interaction "felt more threatening to [Hughes]" than
previous contacts with P.K.
Pergola, a licensed clinical social worker at Fairfax Hospital, testified that she
recommended the less restrictive alternative be revoked and P.K. remain hospitalized.
Pergola based her opinion on her review of P.K.'s medical records following her
2Report of Proceedings (RP) at 34.
No. 71290-0-1/3
admission to Fairfax Hospital on November 11, 2013, a consultation with P.K.'s treatment
team, and her own personal assessment of P.K.
The State offered P.K.'s medical records as evidence under the business records
exception to the hearsay rule. The trial court admitted the records, stating:
All right. The court will accept the Fairfax medical records as business
records and treatments therein, statements made for purposes of medical
diagnosis and treatment. The court recognizes, however, that under the
statute there are limitations if there are opinions as to [P.K.'s] mental state
that are entered into the record by someone ... other than this witness. The
court will accept them solely for purposes of supporting Ms. Pergola's expert
opinions.[3]
The trial court permitted Pergola to testify regarding the content of the records:
So the physical observations Iwill allow as substantive evidence. The notes
as to mental status I'll accept solely for your opinion.w
Pergola testified that, according to the records, P.K. was "uncooperative" with
questions, was "disorganized," and appeared to be "responding to internal stimuli."5 The
records also showed P.K. had been decompensating and had a history of aggressive
behavior.
Pergola also testified that she met with P.K. the morning of the hearing to
determine her level of functioning. P.K.'s responses to Pergola's questions were
nonsensical and P.K. was unable to articulate any plan for her continued safety and
treatment outside of the hospital.
3 RP at 49-50.
4 RP at 56.
5 RP at 51-52, 57.
No. 71290-0-1/4
P.K. constantly interrupted the proceedings with incoherent and tangential
statements. When P.K. testified, she was unable to state her own name for the record.
When asked if she wanted to return to Evans House, she agreed, but the remainder of
her testimony was nonresponsive.
The trial court revoked P.K.'s less restrictive alternative, finding that P.K. had
violated the terms of the less restrictive alternative order by missing medication meetings,
failing to physically reside at Evans House, and threatening Evans House staff. The trial
court also found that P.K. had suffered a substantial decompensation. The trial court
remanded P.K. to inpatient treatment for the remainder of the 90-day period. P.K.
appeals.
ANALYSIS
A designated mental health professional (DMHP) may petition the trial court to
revoke an order for a less restrictive alternative on one of the following grounds: (1) the
individual is failing to adhere to the terms and conditions of the less restrictive alternative;
(2) the individual's condition has undergone "[substantial deterioration;" (3) there is
evidence of "substantial decompensation with a reasonable probability that the
decompensation can be reversed by further inpatient treatment;" or (4) "[t]he person
poses a likelihood of serious harm." RCW 71.05.340(3)(a)(i)-(iv). An individual detained
pursuant to such a petition "shall be held until such time, not exceeding five days," as a
hearing on the revocation can be scheduled. RCW 71.05.340(3)(c). At the hearing on
the petition, the trial court determines whether any of the grounds in RCW 71.05.340(3)(a)
have been met, and if so, "whether the terms of conditional release should be modified
or the person should be returned to the facility." RCW 71.05.340(3)(d).
4
No. 71290-0-1/5
Timeliness of the Hearing
P.K. argues that the trial court violated RCW 71.05.340(3)(c) because the
revocation hearing was not held within five days of her detention by the DMHP. In support
of her argument, P.K. cites to RCW 71.05.180, which governs the time by which a
probable cause hearing must be held. RCW 71.05.180 provides:
If the evaluation and treatment facility admits the person, it may detain him
or her for evaluation and treatment for a period not to exceed seventy-two
hours from the time of acceptance as set forth in RCW 71.05.170. T_he
computation of such seventv-two hour period shall exclude Saturdays,
Sundays and holidays.®
P.K. compares RCW 71.05.180 with RCW 71.05.340(3)(c), which provides:
A person detained under this subsection (3) shall be held until such time,
not exceeding five days, as a hearing can be scheduled to determine
whether or not the person should be returned to the hospital or facility from
which he or she had been conditionally released.
P.K. argues that because RCW 71.05.340(3)(c) is silent as to whether the five-day time
period excludes Saturdays, Sundays, and holidays, we must presume that it does not.
However, this court recently rejected a similar argument in In re Detention ofClark,
Wn. App. , 348 P.3d 1231 (2015), involving the timeliness of a continuance of a 14-
day commitment hearing. In Clark, we examined the legislative history of chapter 71.05
RCW and determined that, where the statute did not specify whether weekends and
holidays should be included, the Superior Court Civil Rules governing the computation of
time apply.
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
6 Emphasis added.
No. 71290-0-1/6
same exclusion for continuances. Clark 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
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
which 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 Wn.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, sec.
11.
Clark, 348 P.3d at 1235.
CR 6(a), which controls the computation oftime for civil proceedings, provides that
"[w]hen the period of time prescribed or allowed is less than 7 days, intermediate
Saturdays, Sundays and legal holidays shall be excluded in the computation." The record
shows that P.K. was detained at 5:50 a.m. on Monday, November 11, 2013. A revocation
hearing was held on Monday, November 18, 2013. The intervening period contained one
holiday (Veterans Day), a Saturday, and a Sunday. Pursuant to CR 6(a), these days are
excluded from the computation of time. Thus, P.K.'s revocation hearing was timely
because it was held four days after her detention by the DMHP.7
7P.K. contends that CR6(a) does not apply because proceedings under chapter 71.05 RCW are
"special proceedings." CR 81 provides that the Superior Court Civil Rules govern all civil
No. 71290-0-1/7
Business Records
P.K. argues the trial court erred when it allowed Pergola to testify to the content of
medical records containing information about P.K.'s mental state. We review a trial
court's decision to admit or exclude evidence for abuse of discretion. State v.
DeVincentis. 150 Wn.2d 11, 17, 74 P.3d 119 (2003). Here, the trial court did not abuse
its discretion. The record is clear the trial court properly considered this testimony only
for the basis of Pergola's opinion, not as substantive evidence.
P.K. relies on RCW71.05.360(9), which provides that "[t]he record maker shall not
be required to testify in orderto introduce medical or psychological records ofthe detained
person so long as the requirements of RCW 5.45.020 are met exceptthat portions ofthe
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." Butto the extent P.K. argues the trial court erred in admitting the medical
records in violation of RCW 71.05.360(9), the record is insufficient to permit review
because P.K. failed to designate the exhibit on appeal.
Moreover, RCW 71.05.360(9) does not prohibit an expert witness from testifying
as to the basis of their opinion. ER 703 states:
The facts or data in the particular case upon which an expert bases an
opinion or inference may be those perceived by or made known to the
expert at or before the hearing. If of a type reasonably relied upon by
experts in the particular field in forming opinions or inferences upon the
subject, the facts or data need not be admissible in evidence.
proceedings "[e]xcept where inconsistent with rules or statutes applicable to special proceedings."
We need not address P.K.'s claim that proceedings under chapter 71.05 RCW are "special
proceedings" because our decision in Clark makes it clear CR 6(a) is not inconsistent with RCW
71.05.340(3)(c).
No. 71290-0-1/8
Pergola testified that she relied on the medical records in forming her opinion that P.K.'s
less restrictive alternative should be revoked. The trial court clearly stated it would not
consider any statement of opinion about P.K.'s mental status as substantive evidence.
Furthermore, because this was a bench trial, we presume that the trial court based its
decision solely on admissible evidence. Crosetto v. Crosetto. 65 Wn.2d 366, 368, 397
P.2d 418 (1964). P.K. fails to establish any abuse of the trial court's discretion.8
Sufficiency of the Evidence
P.K. contends the evidence was insufficient to show that she had substantially
decompensated. "Decompensation" is "the progressive deterioration of routine
functioning supported by evidence of repeated or escalating loss of cognitive or volitional
control ofactions." In re Detention of LaBelle. 107Wn.2d 196, 206, 728 P.2d 138 (1986).
Where, as here, a trial court has weighed the evidence, our review is limited to
determining whether substantial evidence supports the findings and, if so, whether the
findings support the conclusions of law. In re Detention of A.S., 91 Wn. App. 146, 162,
955 P.2d 836 (1998).
The trial court found that when Breland located P.K. at her mother's house, P.K.
exhibited "delusional behavior beyond her usual level of functioning."9 The trial court also
found that P.K. exhibited "a consistent pattern of being unable to control herbowels" and
"symptoms of being unable to focus or answer questions."10 Furthermore, the trial court
8 In re Welfare of J.M.. 130 Wn. App. 912, 924-25, 125 P.3d 245 (2005), which P.K. cites, is
distinguishable. In M, the trial court admitted medical records containing psychiatric diagnoses
as business records and considered them as substantive evidence.
9 Clerk's Papers (CP) at 88.
10 CP at 88.
8
No. 71290-0-1/9
found the testimony of Breland, Hughes, and Pergola to be credible. Because P.K. does
not challenge any of the trial court's findings, they are verities on appeal. See Cowiche
Canvon Conservancy v. Boslev. 118 Wn.2d 801, 808, 828 P.2d 549 (1992). The findings
were sufficient to support the trial court's conclusion that P.K. had suffered a substantial
decompensation in her functioning.
Affirmed.
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WE CONCUR:
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