In re Detention of VB

• Decision Date: 15 February 2001
• Docket Number: No. 25603-7-II.,25603-7-II.
• Citation: 104 Wash.App. 953,19 P.3d 1062
• Parties: In re the DETENTION OF V.B., Appellant.
• Court: Washington Court of Appeals

19 P.3d 1062

104 Wash.App. 953

In re the DETENTION OF V.B., Appellant.

No. 25603-7-II.

Court of Appeals of Washington, Division 2.

February 15, 2001.

Pattie Mhoon, Tacoma, for Appellant (Court Appointed).

Carolyn L.p. Howser Williamson, Pierce County Deputy Pros. Atty., Tacoma, for Respondent.

SEINFELD, J.

The parties ask us to decide whether either procedural due process or the civil commitment statutes require the State to prove at the 14-day commitment hearing that the officer who initially detained V.B. had reasonable cause to believe that she was mentally ill and presented either an imminent likelihood of serious harm or was gravely disabled at the time of the initial detention. We conclude that the law does not require this proof and, consequently, affirm.

FACTS

At 9:30 p.m. on January 17, 2000, Vancouver Police Officer Sharma delivered V.B. to the Southwest Washington Medical Center for a mental health evaluation. The officer had taken V.B. into custody in response to a 911 call from her landlord. V.B. had allegedly threatened other tenants in her building with a knife.

Barbara Darnall, a County Designated Mental Health Professional (CDMHP), began her evaluation of V.B. at 11:54 p.m., less than three hours after V.B. arrived at the hospital. After reviewing the police report, speaking with the two doctors and the registered nurse who had initially seen V.B., and interviewing and observing V.B., Darnall concluded that as a result of a mental disorder, V.B. presented an imminent likelihood of serious harm to others and was gravely disabled.¹ Darnall then completed a petition for initial detention and an authorization and notice of detention providing for V.B.'s 72 hour evaluation and treatment at Western State Hospital. V.B. was detained at Western State Hospital at 12:45 a.m., January 18, 2000.

On January 19, Examining Physician Glenn Morrison, D.O. and Examining Mental Health Professional David S. Olegar, Ph.D., evaluated V.B. at Western State. They diagnosed V.B. as suffering from chronic paranoid schizophrenia and concluded that she should be held for 14 day involuntary treatment because, as a result of her mental illness, she presented a likelihood of serious harm to others and was gravely disabled. Doctors Morrison and Olegar filed a petition for 14 day involuntary treatment and an affidavit in support of the petition requesting a probable cause hearing.

The court heard the petition the following day. V.B.'s counsel objected because the State did not plan to call the officer who had originally detained V.B. The State explained that it had been unable to locate the officer and intended to proceed solely on the basis of grave disability, apparently because it needed evidence of the officer's observations as proof that V.B. presented a likelihood of serious harm to others.

The State called Darnall and Olegar. Darnall testified about her initial contact with V.B. and described the symptoms she had observed. V.B.'s counsel elicited the only testimony that related to information the officer had obtained. This occurred during counsel's cross-examination of Darnall:

Q [Counsel for Respondent] You indicated in your investigation that you attempted contact with Jim, an apartment manger.

A [Darnall] Yes.

Q And that would be [V.B.'s] apartment manager?

A To the best of my knowledge.

Q Okay. So you were aware she has her own apartment?

A According to the police officer, yes.

Report of Proceedings (RP) at 9-10.

Olegar testified that he evaluated V.B.'s records, observed her behavior, spoke with treatment staff, and personally interviewed V.B. He noted that although V.B. had not caused problems for the staff, she was guarded, irritable, suspicious, disoriented, disorganized, resistant, and periodically confused. He also testified that V.B. "denied repeatedly and categorically that she [had] a mental illness," and he stated that she would never take medication. RP at 15-16.

In regard to her physical health, Olegar testified that V.B. was not taking medication for her severe psoriasis and that she denied being a diabetic despite a blood sugar level over 200. V.B. also told Olegar that she did not sleep and did not need to. Both Darnall and Olegar concluded that V.B. was mentally ill and gravely disabled and that she should be held for additional evaluation and treatment.

After the State rested, V.B.'s counsel stated that V.B. did not wish to testify and moved to dismiss. Counsel argued that without the officer's testimony, the State had not shown that the officer had reasonable cause to initially detain V.B., as RCW 71.05.150(4)(b) requires, and that it had failed to produce sufficient evidence to show that V.B. was mentally ill and gravely disabled.

The State acknowledged that RCW 71.05.150(4)(b) requires that the detaining officer have reasonable cause to believe that the detainee is mentally ill and dangerous or gravely disabled at the time of the initial detention. It contended, however, that the law does not require the State to prove compliance with RCW 71.05.150(4)(b) at the 14 day probable cause hearing.

The court denied V.B.'s motion to dismiss, stating:

The Court: Well, this is an issue that I wish at some point we could get some resolution on so we're not here faced with this each time. I think all of us may have a different idea of what we need to do. And certainly, I think it's incumbent on all of us to make sure that we afford the individual all the due process rights that seem to be available to them.

I am satisfied, quite frankly, that we have followed that, and that is that the person is taken to a hospital and the person has to be seen within a very limited period of time by a mental-health professional. Then there's the other safeguards that occur along the way, such as being seen by the physician or a doctor of some sort, and, secondly, the matter is in court within 72 hours.

And I think the fact that we proceed so quickly on that does create issues where sometimes it's difficult to get ahold of a police officer. I think the better practice, of course, is that the police officer should be called to be part of the case. I'm not prepared to dismiss this case based on that.

RP at 24-25

The court found V.B. gravely disabled due to her mental illness and committed her to 14 day involuntary treatment at Western State Hospital. V.B. appealed.

I. MOOTNESS

Because V.B.'s 14-day commitment has long since expired, this court cannot fashion a remedy that will directly affect V.B; thus, this case is moot. See In re Detention of Swanson, 115 Wash.2d 21, 24, 793 P.2d 962 (1990)

; In re Detention of Cross, 99 Wash.2d 373, 376-77, 662 P.2d 828 (1983). But both parties and the trial court have asked for a decision regarding the State's burden to prove that the detaining officer had reasonable cause to take V.B. into custody.

An appellate court may decide a matter that is moot if it is a matter of continuing and substantial public interest. Swanson, 115 Wash.2d at 24, 793 P.2d 962; Dunner v. McLaughlin, 100 Wash.2d 832, 838, 676 P.2d 444 (1984); Cross, 99 Wash.2d at 377, 662 P.2d 828; State v. M.R.C., 98 Wash.App. 52, 54-55, 989 P.2d 93 (1999). In deciding whether to review a moot matter, we consider: (1) the public or private nature of the question; (2) the desirability of an authoritative determination that will provide future guidance to public officers; and (3) the likelihood the question will recur. Swanson, 115 Wash.2d at 24-25, 793 P.2d 962; Dunner, 100 Wash.2d at 838, 676 P.2d 444; Cross, 99 Wash.2d at 377, 662 P.2d 828; M.R.C., 98 Wash.App. at 55, 989 P.2d 93.

Here, clarification of the civil commitment statutes is an issue of continuing and substantial public interest. In re Detention of G.V., 124 Wash.2d 288, 294-95, 877 P.2d 680 (1994); In re Detention of R.S., 124 Wash.2d 766, 770, 881 P.2d 972 (1994); Swanson, 115 Wash.2d at 25, 793 P.2d 962; Dunner, 100 Wash.2d at 838, 676 P.2d 444; Cross, 99 Wash.2d at 377, 662 P.2d 828; M.R.C., 98 Wash.App. at 55, 989 P.2d 93. The fact that both parties and the trial court have requested review indicates the need for guidance in this area and the likelihood that the issue will reoccur. See Swanson, 115 Wash.2d at 25, 793 P.2d 962; M.R.C., 98 Wash.App. at 55, 989 P.2d 93. This likelihood of recurrence is particularly great because of the less than 72-hour period in which the court must conduct the 14-day probable cause hearing, making it more difficult to obtain the detaining officer's presence.

Further, many significant civil commitment issues reach the appellate court only after they are technically moot. See G.V., 124 Wash.2d at 294-95, 877 P.2d 680; Dunner, 100 Wash.2d at 837-38, 676 P.2d 444; Cross, 99 Wash.2d at 377, 662 P.2d 828. Consequently, we conclude that whether either chapter 71.05 RCW or due process requires the State to establish at the 14-day probable cause hearing that the detaining officer had reasonable cause to initially detain the respondent is a matter of continuing and substantial public interest. Thus, we will resolve this question on the merits.²

II. STATUTORY REQUIREMENTS

The question here is whether chapter 71.05 RCW requires the State to establish at the 14-day probable cause hearing that the detaining officer had reasonable cause to believe the detainee was mentally ill and dangerous or gravely disabled.

Although we must strictly construe statutes that impact on liberty interests, in the civil commitment context we also consider the intent of the statute. See Swanson, 115 Wash.2d at 31,793 P.2d 962. Because the purpose of civil commitment is not punitive, but is instead to benefit the detainee as well as to protect the public, strict construction of the statutory scheme may not be appropriate in all cases. See Swanson,115 Wash.2d at 31,793 P.2d 962.

The civil commitment statute, chapter 71.05 RCW, contains numerous safeguards against the improper deprivation of liberty. The Legislature adopted these...