In re L.H.

492 P.3d 192

In the MATTER OF the DETENTION OF L.H.

No. 81523-7-I

Court of Appeals of Washington, Division 1.

FILED July 26, 2021

Nielsen Koch PLLC, Attorney at Law, Casey Grannis, Nielsen Koch, PLLC, 1908 E Madison St., Seattle, WA, 98122, for Appellant.

Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104, Douglas K. Young, King County Prosecuting Attorney's Office, 516 3rd Ave. Ste. W554, Seattle, WA, 98104-2362, for Respondent.

PUBLISHED OPINION

Chun, J.

¶1 This case concerns a 90-day commitment hearing under the "Involuntary Treatment Act" (ITA), ch. 71.05 RCW. While testifying, a mental health professional read aloud medical chart notes written by other mental health professionals about L.H.’s behavior during his 14-day involuntary treatment. L.H. objected, claiming a due process right to confront and cross-examine the authors of the notes. The trial court overruled the objection. And then, relying in part on this testimony, it committed L.H. for 90 days. We affirm.

I. BACKGROUND

¶2 The trial court entered a 14-day commitment order under the ITA placing L.H. into inpatient treatment at Cascade Behavioral Health Hospital. Cascade then petitioned to commit L.H. for 90 more days.¹

¶3 During the 90-day commitment hearing, the State introduced testimony by Jon Bibler, a crisis intervention specialist, who testified about L.H.’s threatening behavior before commitment; Hyemin Song, a records custodian at Auburn MultiCare, who testified about L.H.’s condition upon admission; and Claire Coetzer, a clinical social worker at Cascade, who testified about L.H.’s condition at Cascade during the 14-day treatment.

¶4 Coetzer testified that she diagnosed L.H. with schizoaffective disorder. And she concluded that L.H. presented a substantial risk of physical harm to others as evidenced by behavior that has caused harm or placed another in reasonable fear of such harm.

¶5 Coetzer then said she would read aloud notes from L.H.’s medical chart written by other mental health professionals during his 14-day treatment. L.H.’s counsel stipulated that the notes qualified as business records for purposes of the hearsay exception.

¶6 Coetzer read a note by a licensed practitioner nurse, which says that L.H. yelled, cursed, acted sexually, threatened others, and postured. The same note says staff and peers were afraid of him. L.H.’s counsel objected, saying that L.H. had a due process right to confront the author of the note if the State intended to use it as proof of an element of the State's case. The trial court asked the State if it was offering the note to prove an element of its case; the State declined to answer definitively but said that the notes "confirm the assertion about the likelihood of harm." The court decided to admit the testimony about the note and reserved ruling on whether it could consider the testimony in its commitment decision. L.H.’s counsel clarified that he was not making a Sixth Amendment² confrontation clause argument, but a Fourteenth Amendment³ due process argument.

¶7 Coetzer resumed reading from the chart note, which describes additional physically aggressive behavior by L.H. His counsel objected again on the same grounds and the trial court admitted testimony about the note subject to a later ruling on the due process issue. The trial court asked L.H.’s counsel for case law on the issue, and he responded that there was no case law about the due process right to confrontation in an ITA hearing.

¶8 Coetzer continued reading from multiple chart notes by different authors, which reflected similar behavior by L.H. His counsel continued to object on due process grounds and the trial court allowed the testimony to continue subject to a ruling on due process.

¶9 On cross-examination, Coetzer said that L.H.’s medical chart notes were all written by Cascade employees and that Cascade was in the same building as the courtroom where the ITA hearing was taking place.

¶10 After the hearing adjourned for the day, L.H.’s counsel submitted briefing on whether the due process clause guaranteed a confrontation right. The next day, the trial court addressed the due process objection. It applied the Mathews ⁴ factors and concluded that two of the three factors favored the State and thus overruled the objection. The trial court said the first factor weighed in L.H.’s favor because of his liberty interest. It determined the second factor—about existing procedural safeguards—weighed in the State's favor. It said that ITA hearings come with "pretty significant protections akin" to sexually violent predator (SVP) commitment hearings—including the right to an attorney, cross-examination of testifying witnesses, examination of evidence, and a high civil standard of clear, cogent, and convincing evidence. It also determined that the third factor—about the State's interest—weighed in the State's favor because the State has an interest in ensuring that people who have a mental illness do not harm themselves or others and get treatment. The court noted that, if ITA hearings required every author of a medical chart note to testify, such a requirement would detract from their primary task of caring for patients.

¶11 In ordering L.H. to 90 days of involuntary inpatient treatment, the trial court concluded that L.H. was "taken into custody as a result of conduct in which he ... attempted or inflicted physical harm on the person of another or himself[ ], or substantial damage on the property of others, and continues to present a likelihood of serious harm as a result of a mental disorder." The trial court based its conclusion in part on Bibler's testimony about L.H.’s actions before he was committed for 14 days and in part on the evidence of L.H.’s behavior in treatment—specifically from the medical chart notes. L.H. appeals.

II. ANALYSIS

¶12 L.H. says that the trial court erred by considering Coetzer's testimony about the chart notes because due process⁵ guarantees him the right to confront the notes’ authors through cross-examination.⁶ He claims the three Mathews balancing test factors weigh in his favor. We disagree.

¶13 We review de novo constitutional challenges based on Mathews, deferring to the trial court's factual findings "where appropriate." In re Dependency of E.H., 191 Wash.2d 872, 894–95, 427 P.3d 587 (2018).

¶14 The due process clause of the Fourteenth Amendment "promises both substantive and procedural due process before the State may lawfully take a person's life, liberty, or property." In re Welfare of M.B., 195 Wash.2d 859, 867, 467 P.3d 969 (2020). "Procedural due process requires the government to meet certain constitutional minimum standards before it may lawfully make decisions that affect an individual's liberty interests." Id. "Substantive due process, on the other hand, limits the rules that the government may adopt governing these deprivations." Fields v. Dep't of Early Learning, 193 Wash.2d 36, 58, 434 P.3d 999 (2019). Our Supreme Court has treated whether a person has a right to confrontation as a procedural due process issue and applied the Mathews balancing test to the question. In re Det. of Stout, 159 Wash.2d 357, 370, 150 P.3d 86 (2007).

In determining what procedural due process requires in a given context, we employ the Mathews test, which balances: (1) the private interest affected, (2) the risk of erroneous deprivation of that interest through existing procedures and the probable value, if any, of additional procedural safeguards, and (3) the governmental interest, including costs and administrative burdens of additional procedures.

Id. Procedural due process is flexible. Id. "At its core is a right to be meaningfully heard, but its minimum requirements depend on what is fair in a particular context." Id. We assess procedural due process challenges case-by-case. State Constr., Inc. v. City of Sammamish, 11 Wash. App. 2d 892, 913, 457 P.3d 1194, review denied 195 Wash.2d 1028, 466 P.3d 770 (2020). "A person claiming a due process violation has the burden of proof." State v. Conway, 8 Wash. App. 2d 538, 553, 438 P.3d 1235, review denied, 194 Wash.2d 1010, 452 P.3d 1240 (2019).

A. The private interest affected

¶15 The parties agree that L.H. has a significant interest in his physical liberty for the 90-day period and that this factor weighs in his favor. See In re Det. of Thorell, 149 Wash.2d 724, 731, 72 P.3d 708 (2003) ("Freedom from bodily restraint has always been at the core of the liberty interest protected by the due process clause of the fourteenth amendment. ... Commitment for any reason constitutes a significant deprivation of liberty triggering due process protection."). We agree as well.

B. The risk of erroneous deprivation of liberty given current procedural safeguards and the probable value of added safeguards

¶16 L.H. says that the process guaranteed to him during an ITA 90-day commitment hearing does not sufficiently guard against the risk of erroneous deprivation of his liberty interest. We disagree.

¶17 In Stout, in an analogous context, our Supreme Court addressed whether a respondent in a SVP trial has a due process right to confront a witness.

159 Wash.2d at 370, 150 P.3d 86. At Stout's SVP trial, the State presented testimony from an alleged victim in the form of two telephonic depositions. Id. at 368, 150 P.3d 86. The second deposition came with a video recording of the alleged victim answering questions. Id. Stout contended that the use of the telephonic depositions rather than live testimony violated his due process right to confrontation. Id. at 368–69, 150 P.3d 86. In determining that the second Mathews factor weighed in the State's favor, the court recognized these safeguards in SVP proceedings: the right to counsel (including appointed counsel), the right to present evidence on a detainee's own behalf, the right to cross-examine adverse witnesses who testify against the detainee, the right to...