In re L.T.S., 34045-7-III

• Court: Court of Appeals of Washington
• Writing for the Court: Lawrence-Berrey, J.
• Citation: 389 P.3d 660,197 Wash.App. 230
• Parties: IN RE Involuntary Treatment of L.T.S.
• Docket Number: No. 34045-7-III,34045-7-III
• Decision Date: 22 December 2016

197 Wash.App. 230
389 P.3d 660

IN RE Involuntary Treatment of L.T.S.^†

No. 34045-7-III

Court of Appeals of Washington, Division 3.

December 22, 2016

Kristina M. Nichols, Jill Shumaker Reuter, Nichols Law Firm, PLLC, P.O. Box 19203, Spokane, WA, 99219-9203, for Appellant.

Kyla Serene Bennett Marshall, Attorney at Law, 5300 W. 26th Ave., Kennewick, WA, 99338-1911, Michaela Murdock, Benton County Prosecutor's Office, 7122 W. Okanogan Pl., Bldg A, Kennewick, WA, 99336-2359, for Respondent.

Lawrence-Berrey, J.

197 Wash.App. 232

¶1 L.T.S. appeals the trial court's order committing him for involuntary mental health treatment. He argues the trial court improperly commented on the evidence in violation of article IV, section 16 of the Washington Constitution when it gave a jury instruction based on RCW 71.05.285. Because the instruction was based on substantive law, not legislative intent—as was the case in In re Detention of R.W. , 98 Wash.App. 140, 988 P.2d 1034 (1999) —we hold the instruction was not constitutionally prohibited and affirm.

FACTS

¶2 In January 2016, L.T.S. was receiving outpatient mental health services under a

389 P.3d 662

less restrictive alternative (LRA) order, which was set to expire in mid-January.¹ L.T.S. was evaluated by Daniel Pitts, an advanced registered nurse practitioner, and Kathy Mills-George, a county-designated mental health professional. On January 8, Mr. Pitts and Ms. Mills-George filed a petition to extend L.T.S.'s LRA treatment by 180 days. They alleged he was gravely disabled as a result of a mental disorder.

¶3 The case proceeded to trial. Mr. Pitts testified that L.T.S. had been admitted to impatient treatment nine times due to decompensation in his mental status. He also testified that several of the admissions were because L.T.S. stopped taking his medications, and that every time L.T.S. stopped taking his medications he ended up in the hospital.

197 Wash.App. 233

¶4 Ms. Mills-George testified that L.T.S. had a history of not taking his medication and this had led to contact with law enforcement and incarceration. She also testified that L.T.S. decompensated when he discontinued his medications, and this decompensation is what led to contact with law enforcement or hospitalization.

¶5 L.T.S.'s case manager testified that L.T.S. had a cyclical pattern in which he would be hospitalized, be released, discontinue his medications, be arrested, go to jail, and then go to a psychiatric hospital. The case manager described how L.T.S. decompensated when he was not on his medication, and how this led to hospitalization or incarceration.

¶6 L.T.S. testified on his own behalf. He testified that he does not have a mental illness and does not consider himself gravely disabled.

¶7 In instruction number 10, the trial court instructed the jury to give "great weight" to L.T.S.'s history of decompensation and discontinuation of treatment resulting in hospitalization or law enforcement intervention. Clerk's Papers (CP) at 187. L.T.S. did not object to this instruction.

¶8 The jury found that L.T.S. had a mental disorder, that he was gravely disabled, and that his and others' best interests would be served by LRA treatment. The trial court committed L.T.S. for 180 days of LRA treatment. L.T.S. appeals.

ANALYSIS

A. THE APPEAL IS NOT MOOT

¶9 L.T.S.'s 180-day term of involuntary commitment term has expired. However, L.T.S. argues this case is not moot because the involuntary commitment order may have adverse consequences on him in future commitment proceedings and is also a matter of continuing and substantial public interest. The State does not argue that this case is moot.

197 Wash.App. 234

¶10 "An individual's release from detention does not render an appeal moot where collateral consequences flow from the determination authorizing such detention." In re Det. of M.K. , 168 Wash.App. 621, 626, 279 P.3d 897 (2012). Under RCW 71.05.012, .212. and .245, "each order of commitment entered up to three years before the current commitment hearing becomes a part of the evidence against a person seeking denial of a petition for commitment." M.K. , 168 Wash.App. at 626, 279 P.3d 897. In other words, a trial court presiding over future involuntary commitment hearings may consider L.T.S.'s prior involuntarily commitment orders when making its commitment determination. Id. at 629, 279 P.3d 897.

¶11 Because involuntary commitment orders have adverse consequences in future commitment proceedings, L.T.S.'s appeal is not moot despite the fact that the term of his involuntary treatment has expired.

B. ALLEGED JUDICIAL COMMENT ON THE EVIDENCE

¶12 L.T.S. argues that the trial court improperly commented on the evidence when it gave jury instruction 10, thus violating

389 P.3d 663

article IV, section 16 of the Washington Constitution.² Specifically, L.T.S. argues the trial court commented on the evidence when it instructed the jury to give "great weight" to his history of decompensation and discontinuation of treatment resulting in hospitalization or law enforcement intervention. This court reviews whether a jury instruction amounts to a comment on the evidence de novo. State v. Butler , 165 Wash.App. 820, 835, 269 P.3d 315 (2012).

¶13 Article IV, section 16 of the Washington Constitution provides that "[j]udges shall not charge juries with respect to matters of fact, nor comment thereon, but shall

197 Wash.App. 235

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