In Re: D.c. ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Detention of ) No. 78496-0-I
D.C.
) DIVISION ONE
STATE OF WASHINGTON, )
Respondent,
UNPUBLISHED OPINION
v.
D.C.,
Appellant. ) FILED: July 29, 2019
SCHINDLER, J. — D.C. seeks reversal of the 90-day order of commitment for
involuntary treatment. D.C. contends his attorney provided ineffective assistance of
counsel and insufficient evidence supports finding he was gravely disabled under RCW
71 .05.020(22). Because the record does not support his argument, we affirm.
Initial Detention
On April 9, 2018, a King County designated mental health professional filed a
petition for initial detention of D.C. The petition alleged that as the result of a mental
disorder, D.C. was gravely disabled. Psychiatrist Dr. Manal Khan filed a declaration in
support of the petition. Dr. Khan states D.C. “was brought to the UWMC [(University of
Washington Medical Center)] [Emergency Department] after being found down at [the
University of Washington] Bookstore covered in feces, urine, vomit and bed bugs.” D.C.
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had a “concerning . . . elevated white blood cell count” and a bowel obstruction. Dr.
Khan described D.C. as follows:
On presentation, patient is agitated, disorganized, impulsive, and
responding to internal stimuli. His mentation is clearly altered (patient is
neither oriented nor can track conversation). He has been intermittently
and unpredictively agitated and non-adherent with treatments!
interventions. This has necessitated four point restraints.
Petition for 14-Day Involuntary Treatment
On April 10, 2018, the UWMC and Dr. Janice Edwards filed a petition for a 14-
day involuntary treatment order alleging D.C. was gravely disabled. Dr. Edwards
asserts:
In the hospital [D.C.] continues to be confused and disorganized. He has
no self[-]care plan and insists the he needs to stay in the hospital for
surgery (which is not the case). He says that he is not sure that he will
take psychiatric medications because the hospital is giving him some
“fake” medications. He has no realistic self-care plan.
[T]here are no less restrictive alternatives to detention in the best
interest of [D.C.] or others because: he is not compliant with
treatment.~1~
On April 11, 2018, a superior court commissioner entered an order committing
D.C. for involuntary treatment for 14 days. The findings of fact state, “[A]fter
consultation with counsel, [D.C.] voluntarily . . . agreed to the entry of an order for .
more restrictive involuntary mental health treatment.” D.C. was transferred to Cascade
Behavioral Health Hospital for involuntary treatment.
Petition for 90-Day Involuntary Treatment
On April 20, 2018, Cascade Behavioral Health Hospital designated professional
and licensed clinical social worker Hyemin Song filed a petition for an additional 90-day
1 Some boldface omitted.
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order for involuntary treatment. The petition alleges D.C. is “gravely disabled.”
The petition states D.C. suffers from schizophrenia “evidenced by disorientation,
confusion, delusions, disorganized thoughts, tangential speech, and poor judgment.”
D.C’s symptoms are “ongoing” even in a stabilized environment, he “has not engaged
in discussing his treatment needs in a meaningful manner,” and he “does not have safe
and reasonable discharge options at this time.” The petition states that were D.C. to
leave the hospital prematurely, D.C. “would be at risk to harm himself due to an inability
to take care for basic health and safety needs.”
Appointment of Guardian ad [item
On April 24, 2018, D.C’s attorney filed a motion to continue the trial on the
petition for a 90-day involuntary commitment order to seek the appointment of a
guardian ad item (GAL) for D.C. The court granted the motion.
The same day, the court entered an order appointing Elizabeth Walter as the
GAL for D.C. under King County Local Mental Proceeding Rule (LMPR) 1 72 A GAL is
appointed “for the benefit of and to protect the rights and best interests” of D.C. In re
Quesnell, 83 Wash. 2d 224, 235, 517 P.2d 568 (1973). The order states the GAL shall be
“permitted reasonable access” to D.C. “for the purpose of interviewing [him]” and to all
2 LMPR 1.7 states:
(a) Appointment of a Guardian ad Litem. Upon representation by the
respondent’s counsel on the record that a Guardian ad Litem is needed in a case, the
Court may appoint a Guardian ad Litem on behalf of the respondent without requiring the
respondent to appear in court. The request for the appointment of a GAL shall be on the
record with petitioner’s counsel present. In the event the petitioner objects to the
appointment of a Guardian ad Litem in the respondent’s absence or if respondent’s
counsel requests, the Court may require the respondent to appear to allow the Court to
conduct an inquiry with the respondent to determine that a Guardian ad Litem should be
appointed.
(b) Discharge of a Guardian ad Litem. Upon representation by the respondent’s
counsel on the record that the Guardian ad Litem has concluded that his or her services
are no longer necessary and that respondent’s counsel has been able to communicate
with the respondent, the Court may discharge the Guardian ad Litem.
(Boldface omitted.)
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hospital records pertaining to his “current hospital stay.” See ROW 70.02.230(2)(x)3
(‘Information and records related to mental health services . . may be disclosed . . . [tjo
the person’s counsel or guardian ad item, without modification, at any time in order to
prepare for involuntary commitment.”).
Trial on Petition for a 90-Day Involuntary Commitment Order
On April 30, 2018, the court entered an order scheduling a bench trial on the
petition for a 90-day involuntary commitment order for May 10.
At the beginning of the May 1 0 trial, the prosecutor told the court this is an
“uncontested hearing” on grave disability. Counsel for D.C. told the court the GAL
“asked that this be a short hearing.” The GAL waived her presence and D.C’s presence
to attend the trial and the court confirmed.
A person may be involuntarily committed for treatment of a mental disorder if, as
a result of such disorder, he is gravely disabled. In re Det. of LaBelle, 107 Wash. 2d 196,
201-02, 728 P.2d 138 (1986). ROW 71.05.020(22)(a)4 defines “gravely disabled” as “a
condition in which a person, as a result of a mental disorder, . . [i]s in danger of serious
physical harm resulting from a failure to provide for his or her essential human needs of
health or safety.” The State has the burden of proving a person is gravely disabled by
clear, cogent, and convincing evidence. Labelle, 107 Wash. 2d at 209.
[T]he State must present recent, tangible evidence of failure or inability to
provide for such essential human needs as food, clothing, shelter, and
~ We note the legislature amended RCW 70.02.230 several times since April 2018. LAws OF
2018, ch. 201, § 8002; LAWS OF 2019, ch. 381, § 19; LAWS OF 2019, ch. 317, § 2; LAWS OF 2019, ch. 325, §
5020. Because the amendments do not change the language quoted here, we cite the current statute.
~ We note the legislature amended ROW 71.05.020 several times since April 2018. LAWS OF
2018,ch.201,~3001;LAwsoF2018,ch.291,~1; LAwsoF2018,ch.305,~1; LAwsoF2019,ch.325,~
3001; LAWS OF 2019, ch. 444, § 16; LAWS OF 2019, ch. 446, § 2. Because the amendments do not change
the definition of “gravely disabled,” we cite the current statute.
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medical treatment which presents a high probability of serious physical
harm within the near future unless adequate treatment is afforded.
Labelle, 107 Wash. 2d at 204-05. “[T]he 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 Wash. 2d at 205.
The State called clinical social worker Song as the only witness at trial. Song
testified that she interviewed and evaluated D.C. and met with D.C. “multiple times,
including today, this morning.” Song testified that D.C. ‘has a mental disorder and
working diagnosis at this time is schizophrenia,” and his resulting cognitive and
behavioral functions make him “gravely disabled.” Song addressed D.C.’s
schizophrenia:
He is responding to auditory hallucination, responding to internal stimuli,
and preoccupied. He tends to be very isolated and withdrawn . .He . .
only comes out of the room when .it’s alerted to him and reminded him
. .
for meal times. He’s often very restless and anxious and requiring
assurance from the staff, and most of the time that it doesn’t work and
then he requires a calming medication that are needed. He is not really in
tune to what the basic needs that he needs to keep up with in the reality
setting because he is too preoccupied.
Song testified that during her interviews with D.C., “[h]e presents as internally
preoccupied responding to hallucination. He’s at times restless and anxious and that he
has slurred speech.” Song testified that in her opinion, D.C. was at substantial risk of
serious physical harm due to his inability to provide for his needs and safety. When
Song asked D.C. that morning what he planned to do if released from the hospital, D.C.
replied he would like to go to the Downtown Emergency Service Center (DESC) but
could not say how he would do so or what he would do in case of an emergency, other
than “‘walk to the emergency room.’ “ When Song suggested helping D.C. get benefits
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and he stay in the hospital, he became “extremely agitated” and “incoherent and then
delusional.”
Song testified that in her opinion, D.C. was gravely disabled:
Due to [DC’s] internal preoccupation and disorganization, he’s not able to
effectively communicate with the other providers and the staff, even at
Cascade, which is his structured environment. Outside of this structured
environment, I would be concerned about him not being able to
communicate his basic needs. I’m afraid that he’s going to be in the same
situation after decompensation where he shows up completely incoherent,
incontinent of his bladder and bowel, and that he would ultimately be at
risk at having infections or other medical needs that he had at the time of
admission. He’s a safety risk in that he’s not in his own behavior control
even though he has been able to maintain his behaviors in a hospital. But
without the consistent structure to provide the medications and the
treatment, I would be concerned about his safety outside of the setting.
In reaching her opinion, Song said she also considered medical chart notes and
consulted with the treatment team. The State introduced entries from the Cascade
Behavioral Health Hospital medical chart as business records. D.C.’s attorney
stipulated to the admission of the medical records.
Song referred to the observations in the medical records that supported her
opinion. An April 14, 2018 psychiatric evaluation by Dr. Long states, “Upon admission,
[D.C.] remained disorganized, psychotic, agitated, with a loud speech. He believed that
I was somebody from Olympia and he was very paranoid and guarded; did not want to
speak with me.” Song testified that Dr. Long noted D.C. “as suspicious.” Song also
referred to the most recent May 9, 2018 “psychiatric progress note” that describes
D.C.’s behaviors and increasing his antipsychotic medication for “persistent psychosis.”
The chart note states D.C. “respond[s] to internal stimuli,” “denies all psychotic
symptoms,” and when trying to elicit his thought process, he starts to “express very
disorganized and delusional nonsensical thoughts.” The final medical entry Song refers
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No. 78496-0-1/7
to is a May 7, 2018 “[n]ursing progress note” detailing observations of D.C. That note
describes D.C. “talking to self, laughing to self, [and] making nonsensical statements.”
D.C.’s attorney did not cross-examine Song. The State waived closing argument
and D.C.’s attorney waived closing argument.
The court ruled Song’s testimony established by clear, cogent, and convincing
evidence that D.C. was gravely disabled. The court entered an order for 90 days of
involuntary treatment. The court also entered written “Supplemental Findings of Fact
and Conclusions of Law Pursuant to LMPR 1.11 .“~
Appeal of 90-Day Involuntary Commitment Order
D.C. seeks reversal of the 90-day commitment order on the grounds that (1) his
attorney provided ineffective assistance of counsel and (2) insufficient evidence
supports finding he was gravely disabled.
Ineffective Assistance of Counsel
An individual subject to a civil commitment proceeding under chapter 71 .05 ROW
has the statutory right to effective assistance of counsel as analyzed under the
ineffective assistance of counsel standard in Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In re Det. of T.A.H.-L., 123 Wash. App. 172,
178-79, 181, 97 P.3d 767 (2004); see ROW 71 .05.300 (statutory right to counsel in 90-
day commitment proceedings).
~ LMPR 1.11(b) states:
The Court shall enter supplemental written findings and conclusions in a case that is
appealed to the courts of appeal. The findings and conclusions may be entered after the
notice of appeal is filed. The prosecution must submit such proposed findings and
conclusions, together with a copy of the taped report of proceedings, to the appropriate
Judge or Commissioner, and opposing counsel of record within 21 days after receiving
the respondent’s notice of appeal.
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No. 78496-0-1/8
Ineffective assistance of counsel claims present mixed questions of law and fact.
State v. Lopez, 190 Wash. 2d 104, 116, 410 P.3d 1117 (201 8). “We review a trial court’s
factual findings made in the course of deciding an ineffective assistance issue for
substantial evidence.” Lopez, 190 Wash. 2d at 116. The legal conclusions based on
findings of fact for ineffective assistance of counsel claims are reviewed de novo.
Lopez, 190 Wash. 2d at 117. Strickland uses a two-pronged test for evaluating whether a
defendant had constitutionally sufficient representation. State v. Estes, 188 Wash. 2d 450,
457, 395 P.3d 1045 (2017). Under Strickland, D.C. must establish both (1) deficient
performance and (2) resulting prejudice. Estes, 1 88 Wash. 2d at 457~58.6
Performance is deficient if it falls” ‘below an objective standard of
reasonableness based on consideration of all the circumstances.’ “ Estes, 1 88 Wash. 2d
at 458 (quoting Statev. McFarland, 127 Wash. 2d 322, 334-35, 899 P.2d 1251 (1995)).
Prejudice exists if there is a reasonable probability that”’but for counsel’s deficient
performance, the outcome of the proceedings would have been different.’” Estes, 188
Wash. 2d at 458 (quoting State v. Kyllo, 166 Wash. 2d 856, 862, 215 P.3d 177 (2009)). To
prove prejudice, D.C. must show more than a “conceivable effect on the outcome” to
prevail. Strickland, 466 U.S. at 693. “At the same time, a ‘reasonable probability’ is
lower than a preponderance standard.” Estes, 188 Wash. 2d at 458. “Rather, it is a
probability sufficient to undermine confidence in the outcome.” Estes, 188 Wash. 2d at
458.
6 D.C. cites to the rule in United States v. Cronic, 466 U.S. 648, 104 5. Ct. 2039, 80 L. Ed. 2d 657
(1984), stating there are specific limited circumstances where the court does not apply Strickland and
presumes prejudice from deficient performance. But the Supreme Court has applied the presumption-of
prejudice exception to Strickland in very few cases, most involving conflict of interests. Freeman v.
Graves, 317 F.3d 898, 900 (8th Cir. 2003). The Cronic exception to proving prejudice under Strickland is
not applicable here.
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No. 78496-0-1/9
“Washington courts also indulge a strong presumption that counsel’s
representation was reasonable.” Estes, 1 88 Wash. 2d at 458. To rebut the presumption of
reasonableness, a defendant must establish an absence of any legitimate trial tactic
that would explain counsel’s performance. In re Pers. Restraint of Lui, 188 Wash. 2d 525,
539, 397 P.3d 90 (2017). “Performance is not deficient if counsel’s conduct can be
characterized as legitimate trial strategy or tactics.” Estes, 1 88 Wash. 2d at 458.
An attorney’s decision on whether and when to object to trial testimony are
classic examples of trial tactics. In re Pers. Restraint of Davis, 152 Wash. 2d 647, 714,
101 P.3d 1(2004). When a defendant bases his ineffective assistance of counsel claim
on trial counsel’s failure to object, the defendant must show the trial court would have
sustained the objection and the result would have been different. Davis, 152 Wash. 2d at
714.
D.C. contends his attorney provided ineffective assistance of counsel by
stipulating to the admittance of medical records under ROW 5.45.020. The decision to
admit or exclude business records will be reversed only if it was a manifest abuse of
discretion. State v. Ziegler, 114 Wash. 2d 533, 538, 789 P.2d 79 (1990). As provided in
ROW 5.45.020, hearsay evidence contained in business records is competent evidence:
A record of an act, condition or event, shall in so far as relevant, be
competent evidence if the custodian or other qualified witness testifies to
its identity and the mode of its preparation, and if it was made in the
regular course of business, at or near the time of the act, condition or
event, and if, in the opinion of the court, the sources of information,
method and time of preparation were such as to justify its admission.
Business records are presumptively reliable if they are made in the regular course of
business and with no apparent motive to falsify. Ziegler, 114 Wash. 2d at 537-38. Hospital
records qualify as business records—” ‘A practicing physician’s records, made in the
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regular course of business, properly identified and otherwise relevant, constitute
competent evidence of a condition therein recorded.’ “ Ziegler, 114 Wash. 2d at 538-39
(quoting State v. Sellers, 39 Wash. App. 799, 806, 695 P.2d 1014 (1985)).
Hospital records containing entries made by a variety of medical personnel may
be testified to even if those authors are not present for cross-examination. Ziegler, 114
Wash. 2d at 538. As the Ziegler court states:
“As applied to hospital records, compliance with the [Uniform Business
Records as Evidence Act, chapter 5.45 ROW,] 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.”
Ziegler, 114 Wash. 2d at 538 (quoting Cantrill v. Am. Mail Line, Ltd., 42 Wash. 2d 590, 608,
257 P.2d 179 (1953)). Indeed, even a provision in the civil commitment statute explicitly
anticipates this issue and provides:
The record maker shall not be required to testify in order to
introduce medical or psychological records of the detained person so long
as the requirements of ROW 5.45.020 are met except that portions of the
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.
ROW 71 .05.360(9).~ Because the record establishes Song is the custodian of the
medical records and relies on them in forming her opinion, the records are admissible.
~ We note the legislature amended ROW 71.05.360 in 2019. LAWS OF 2019, ch. 446, § 13. The
amendments do not change subsection (9).
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No. 78496-0-Ill 1
D.C. relies on In re Welfare of J.M., 130 Wash. App. 912, 125 P.3d 245 (2005), to
argue the business record exception does not apply.8 J.M. is distinguishable. In J.M.,
the court held that the failure of counsel to object to the admission and testimony of
witnesses who were not experts about psychological evaluations that contained
opinions of witnesses who did not testify was deficient performance. J.M., 130 Wn.
App. at 916-25. Here, unlike in J.M., the undisputed record shows Song referred only to
objective facts and observations contained in the medical records that supported Song’s
expert opinion that D.C. was gravely disabled. D.C. cannot show his counsel was
deficient for stipulating to admissible medical records under the business records
exception.
D.C. also asserts his attorney provided ineffective assistance of counsel by not
cross-examining Song, not calling witnesses, and not giving an opening or closing
statement.
“Generally the decision whether to call a particular witness is a matter for
differences of opinion and therefore presumed to be a matter of legitimate trial tactics.”
Davis, 152 Wash. 2d at 742. D.C. also does not identify any particular witness he claims
his attorney should have called to testify. State v. Davis, 174 Wash. App. 623, 639, 300
P.3d 465 (2013).
Likewise, an attorney’s decision to forgo an opening or closing statement is a
matter of tactics. Davis, 152 Wash. 2d at 715; State v. Jones, 33 Wash. App. 865, 872, 658
P.2d 1262 (1983).
8 D.C. also cites In re Dependency of G.A.R., 137 Wash. App. 1, 8-9, 150 P.3d 643 (2007), which
follows J.M. and holds defense counsel was ineffective for failing to object to evidence, including reports
written by experts who did not testify.
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No. 78496-0-1/12
The extent of cross-examination is a matter of judgment and strategy” as well.
State v. Johnston, 143 Wash. App. 1, 20, 177 P.3d 1127 (2007). “Moreover, in order to
establish prejudice for the failure to effectively cross-examine a witness, the defendant
must show that the testimony that would have been elicited on cross-examination could
have overcome the evidence against the defendant.” Johnston, 143 Wash. App. at 20.
The undisputed record shows the GAL waived her presence and the presence of
D.C. and decided to proceed with an uncontested “short hearing” that required the State
to prove by clear, cogent, and convincing evidence D.C. was gravely disabled. D.C.
cannot show that his counsel was deficient on any of these other allegations of
ineffective assistance of counsel because they were legitimate trial tactics.
Sufficiency of the Evidence
D.C. contends the findings of fact based on Song’s testimony and the medical
records do not establish D.C. was gravely disabled under RCW 71 .05.020(22) and the
90-day commitment was warranted.
The burden of proof at a 90-day involuntary commitment trial is “clear, cogent,
and convincing evidence.” LaBelle, 1 07 Wn.2d at 209. Accordingly, “the ultimate fact in
issue must be shown by evidence to be ‘highly probable.’ “ LaBelle, 107 Wash. 2d at 209
(quoting In re Pawling, 101 Wash. 2d 392, 399, 679 P.2d 916 (1984)). When the trial court
has weighed the evidence, this court limits its review to determining whether substantial
evidence supports the trial court’s findings and, if so, whether the findings in turn
support the trial court’s conclusions of law and the judgment. LaBelle, 107 Wash. 2d at
209; In re Det. of W.C.C., 193 Wash. App. 783, 793, 372 P.3d 179 (2016). “Substantial
evidence is ‘evidence in sufficient quantum to persuade a fair-minded person of the
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truth of the declared premise.’ “ In re Det. of A.S., 91 Wash. App. 146, 162, 955 P.2d 836
(1998) (quoting Holland v. Boeing Co., 90 Wash. 2d 384, 390-91, 583 P.2d 621 (1978)).
‘The party challenging a finding of fact bears the burden of demonstrating the finding is
not supported by substantial evidence.” AS., 91 Wash. App. at 162. The court defers to
the trial court as to the credibility of the witnesses and the weight of the evidence. In re
Vulnerable Adult Petition for Knight, 178 Wash. App. 929, 937, 317 P.3d 1068 (2014). “An
appellate court will uphold challenged findings of fact and treat the findings as verities
on appeal if the findings are supported by substantial evidence.” In re Estate of Jones,
152 Wn.2d 1,8,93 P.3d 147 (2004).
The supplemental findings and conclusions state, in pertinent part, “[D.C.]
currently suffers from a mental impairment and has been diagnosed as suffering with
schizophrenia. . . . [D.C.]’s mental impairment has had a substantial adverse effect upon
his cognitive and volitional functions.” The court found that as a result of his mental
impairment, D.C. was gravely disabled and at “substantial risk of harm due to his
inability to provide for his own essential needs of health and/or safety.” The findings
also state D.C.
exhibits active symptoms of his mental impairment including but not
limited to presenting with an inability to communicate effectively, including
the inability to communicate his own needs, being incoherent, confused,
disorganized, agitated, experiencing and expressing delusional thought
process, experiencing hallucinations, and exhibiting preoccupation.
The court found that without further treatment,
[D.C.] will continue in the condition that brought him into hospital and that
a less restrictive treatment alternative is not appropriate nor in {D.C.]’s
best interest because he is not stabilized, exhibits active symptoms of his
mental impairment, and [D.C.] continues to be too disorganized and too
symptomatic to comply with a less restrictive treatment order at this time.
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The court concluded the State “established by clear, cogent, and convincing
evidence that [D.C.] suffers from a mental impairment that has had a substantial
adverse effect on his cognitive and volitional functions; and as a result of this mental
impairment [D.C.] is gravely disabled pursuant to” RCW 71 .05.020(22).~
D.C. argues that because this was the first time he was hospitalized for his
mental health and was stable after his initial treatment, the court lacked evidence that
he was gravely disabled. D.C. contends he devised a safe and reasonable discharge
plan in that he wanted to take a bus to DESC for services and his most recent hospital
record indicated he was eating, adequate with his hygiene, and compliant with his care
plan, which proved he was not at risk of harm for failing to provide for his essential
human needs. The record does not support his argument.
Song provided overwhelming evidence that supplemented her expert opinion that
D.C. was gravely disabled. Song testified that because of D.C’s schizophrenia, he
suffers from ongoing disorganization, incoherence, and extreme agitation despite being
in the stable hospital environment. Song further testified that D.C. was not aware of his
basic needs due to being “too preoccupied” and having “poor insight.” Song was also
concerned that D.C. was not able to state a reasonable self-care plan because in
addition to D.C. not being able to articulate how he would arrange transportation to
DESC, he also could not describe how he would ensure his personal safety in case of
an emergency. Song concluded that if D.C. did not receive further treatment, he would
likely end up back in the hospital in the same condition that brought him there—being
unable to communicate and care for his basic needs and in poor physical health. The
~ Boldface in original.
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trial court ultimately found the testimony of Song credible” and incorporated her
testimony by reference in its supplemental findings of fact and conclusions of law.
Substantial evidence supports the findings of fact and the findings support the
conclusion that D.C. demonstrated grave disability. We affirm.
, I. A~
WE CONCUR:
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