In re B.R.

1

In the Matter of the Detention of: B.R., Appellant.

Nos. 56506-4-II, 56643-5-II

Court of Appeals of Washington, Division 2

January 10, 2023

UNPUBLISHED OPINION

Lee. J.

B.R appeals the superior court's order denying revision of the superior court commissioner's findings of fact conclusions of law, and order detaining B.R. under a 180-day civil commitment. B.R. argues there is not substantial evidence to support the superior court's finding that he is gravely disabled. Because the superior court's finding that B.R. is gravely disabled is supported by substantial evidence, we affirm.

FACTS

In February 2018, B.R. was admitted to Western State Hospital (WSH) for a competency evaluation to assess whether he could proceed to trial on a second-degree assault charge. This admission stemmed from an incident where B.R. had allegedly assaulted his father. At the time of the alleged assault B.R.'s father reported that B.R. "was responding to internal stimuli" and "auditory hallucinations." Clerk's Papers (CP) at 34. When WSH found B.R. incompetent to stand trial, the State dismissed the criminal charge, and B.R. was civilly committed under RCW 71.05.280(3)(b).

B.R has been admitted to WSH five times since 2011. WSH diagnosed B.R. with schizoaffective disorder. In addition to receiving treatment at WSH, B.R. has had behavioral health treatment at various hospitals and outpatient psychiatric facilities over the years in both King County and Kitsap County.

In June 2021, B.R.'s treating physician, Dr. Mary Zesiewicz, and treating psychologist, Dr. Evan Lima, filed a petition for a 180-day involuntary treatment (180-day petition). In their joint declaration in support of the 180-day petition, Dr. Zesiewicz and Dr. Lima stated that B.R. continued to exhibit symptoms of serious mental illness. Specifically, B.R. paced the hallways responding to internal stimuli, declined medications, did not attend to his hygiene, and had on multiple occasions been verbally and physically aggressive with staff. Furthermore, the declaration stated that if B.R. "were discharged from WSH he would represent a substantial likelihood of repeating similar acts to those of the [assault] due to mental illness." CP at 35.

Dr. Zesiewicz also filed a petition for involuntary treatment with antipsychotic medication (medication petition). In the medication petition, Dr. Zesiewicz stated that "[w]hen [B.R.] was on olanzapine and prolixin he was stable and placed on the discharge list. . . . Off medications he has become progressively more disorganized, disheveled, talking and laughing to himself especially at night." CP at 50. Additionally, she stated that B.R. had a "history of psychosis, hostility, aggression, disorganization and medication noncompliance . . . [and a] long history [of] auditory hallucinations, lack[ed] ability to care for basic needs and lack[ed] insight into mental illness or need for psychotropic medication." CP at 50.

The superior court commissioner held a hearing on both the 180-day petition and the medication petition. B.R. did not appear at the hearing, and the commissioner found that B.R. waived his right to participate. However, in order to protect B.R.'s "substantial liberty interest," the commissioner had the State present evidence and testimony to avoid a decision based on the petition alone. Verbatim Report of Proceedings (VRP) (Sept. 10, 2021) at 9.

A. Hearing Testimony

1. Dr. Lima's Testimony

Dr. Lima testified to the 180-day petition. Dr. Lima is a clinical psychologist at WSH and treated B.R. for approximately nine months. During those nine months, Dr. Lima interacted with B.R. multiple times per week. Additionally, in preparation for the hearing, Dr. Lima reviewed available WSH records on B.R., and spoke with floor staff and different treatment team members. Dr. Lima testified:

I've seen [B.R.] responding to internal stimuli. He pretty much . . . walks around the ward responding, having conversations. Sometimes he is yelling and screaming. He presents with a lot of the negative symptoms of schizoaffective disorder . . . . So, thought disorganization, an absence of expression. He also has poor impulse control, aggressive behaviors and limited insight and judgment into his symptom presentation.

. . . .

. . . He's yelled at me, personally. Yelling at the internal stimuli that he's responding to.

. . . .

[B.R.] had some instances of physical violence. . . . [I]n June of this year, [B.R.] was hitting the nurse's station window with closed fists, making threats towards staff. And then earlier this week . . . he physically attacked staff, scratching one of the staff just under the eye with her ID badge and biting another staff to the point where [B.R.] was not complying and was placed in seclusion and restrained for a short time.

VRP (Sept. 10, 2021) at 15, 17.

Dr. Lima further testified that B.R. was not medication compliant and did not believe he was suffering from mental illness. Additionally, Dr. Lima expressed concerns over both community safety and B.R.'s own safety if B.R. was released. Dr. Lima did not believe there was a less restrictive alternative and felt that "medication compliance [was] going to be huge for [B.R.]" because B.R. had previously been compliant with medication, stable, and placed on a discharge list. VRP (Sept. 10, 2021) at 21.

2. Dr. Zesiewicz's Testimony

Dr. Zesiewicz, a staff psychiatrist at WSH, testified to the medication petition. Dr. Zesiewicz treated B.R. for several months beginning in fall 2020. Dr. Zesiewicz corroborated Dr. Lima's testimony, stating that B.R. had "[a] lot of auditory hallucinations, and delusional thinking. Responding to unseen others, talking about each of them. A lot of yelling and screaming. A lot of mood volatility. . . . [A] lot of anger. A lot of disorganization." VRP (Sept. 10, 2021) at 35.

Dr. Zesiewicz testified that B.R. had stopped taking one medication in the summer of 2020 and another medication in the fall of 2020. B.R. never expressed why he did not want to take medications. Dr. Zesiewicz stated that based on her conversations with ward staff, when B.R. had been on the medications, he had been stable and discharge-ready. Additionally, Dr. Zesiewicz believed that B.R.'s condition, without medication, continued to worsen between the time she had filed the petition in June to the date of the hearing. Dr. Zesiewicz also testified that failure to administer medications would substantially prolong B.R.'s stay at WSH and she felt the medications were necessary.

B. Superior Court Commissioner Rulings

On the 180-day petition, the superior court commissioner orally ruled that clear, cogent, and convincing evidence showed B.R. was gravely disabled under RCW 71.05.020(24)(b).^[1]Additionally, the commissioner found "based on the testimony and evidence from Dr. Lima, that [B.R.] present[ed] a substantial likelihood of repeating acts similar to the charged index criminal offense, which was assault in the second degree." VRP (Sept. 10, 2021) at 31. The commissioner then ordered continued treatment for B.R. at WSH for up to 180 days.

In the written order committing B.R. to 180 days' treatment, the superior court commissioner entered findings of fact and conclusions of law, and incorporated the oral findings into the written order. The findings of fact stated that "as a result of a behavioral health disorder [B.R.] manifests severe deterioration in routine functioning evidenced by repeated and escalating loss of cognitive or volitional control over actions, is not receiving such care as is essential for health and safety." CP at 5. The commissioner also entered several facts in support of its determination based on Dr. Lima's testimony.

B.R. filed a motion for revision of the commissioner's 180-day involuntary commitment order. B.R. asserted that the State failed to prove by clear, cogent, and convincing evidence that he was gravely disabled. Additionally, B.R. argued that the State failed to prove by clear, cogent, and convincing evidence that he was "substantially likely to commit acts similar to the charged criminal behavior." CP at 130. B.R. also filed a motion for revision of the commissioner's order authorizing administration of antipsychotic medications. B.R. asserted that Dr. Zesiewicz did not attempt to obtain B.R.'s informed consent under RCW 71.05.215 and, therefore, the superior court commissioner erred in granting the medication order.

The superior court judge denied both motions and adopted the commissioner's findings of fact and conclusions of law.

B.R. appeals.

ANALYSIS

B.R appeals the superior court commissioner's findings of fact, conclusions of law, and order detaining respondent under a 180-day civil commitment, along with the superior court's denial of B.R.'s motion to revise the commitment order.^[2], ^[3] We affirm the superior court.

A. Standard of Review

Superior court commissioner rulings are subject to revision by a superior court judge. RCW 2.24.050. The superior court judge reviews the commissioner's findings of fact and conclusions of law de novo based on evidence and issues presented to the commissioner. State v. Ramer, 151 Wn.2d 106, 113, 86 P.3d 132 (2004). We review the superior court's ruling, not the commissioner's decision. In re Det. of L.K., 14 Wn.App. 2d 542, 550, 471 P.3d 975 (2020). But "[u]nder RCW 2.24.050, the findings and orders of a court commissioner not successfully revised become the orders and findings of the superior court." Maldonado v. Maldonado, 197 Wn.App. 779, 789, 391 P.3d 546 (2017).

We review challenges to the sufficiency of the evidence in a light most favorable to the State. In re Det. of B.M., 7 Wn.App. 2d 70, 85, 432 P.3d 459, review denied, 193 Wn.2d 1017 (2019). "When the...