In re T.C.

450 P.3d 1230

In the MATTER OF DETENTION OF: T.C.

No. 78222-3-I

Court of Appeals of Washington, Division 1.

FILED: October 28, 2019

Richard Wayne Lechich, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, for Appellant.

Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104, Casey Lynn Dowdy, King County Prosecutors Office, 516 3rd Ave. Ste. W554, Seattle, WA, 98104-2362, for Respondent.

PUBLISHED OPINION

Hazelrigg-Hernandez, J.

¶1 T.C. appeals his 14-day involuntary commitment by challenging the sufficiency of the evidence, arguing that his constitutional right to a jury was violated, that the court relied on improper evidence, and that the court failed to comply with RCW 71.05.240. We find no error as to the first two claims and that the error as to improper evidence was harmless. Because the court failed to comply with its obligations under RCW 71.05.240 regarding notice as to the loss of T.C.’s constitutionally protected firearms rights, we reverse and remand.

FACTS

¶2 T.C. served in the Army for three years. On February 20, 2018, he went to the King County Veteran’s Program (KCVP) office to receive services. While waiting in the lobby, T.C. noticed that there was discussion on the television of a recent school shooting in Florida where 17 people were killed. According to Brian Fry, a manager at the KCVP’s office, T.C. became agitated in the lobby and refused to fill out an application as requested by staff. When Fry confronted T.C., T.C. expressed further frustration and made the comments "[t]his is why people go postal" and "[t]his is why places get shot up." Fry told T.C. to leave, however he refused which eventually led to the arrival of police and T.C.’s arrest for misdemeanor harassment.

¶3 While in custody, T.C. was referred for civil commitment for involuntary mental health treatment. A petition for 14-day involuntary treatment was filed on February 28, 2018 which alleged that T.C. was gravely disabled as a result of a mental disorder and presented a likelihood of serious harm to others. The hearing occurred later that day.¹ The court did not inform T.C. orally or in writing that he would lose his firearm rights if he were involuntarily committed, or that this could be avoided if he made a good faith effort to voluntarily participate in treatment.

¶4 At the hearing, testimony was taken from T.C., Fry, and Hyemin Song, a licensed clinical social worker at Cascade Behavioral Hospital who had evaluated T.C. Song testified that T.C. had a mental disorder and the working diagnosis for him was psychosis. She further testified that this mental disorder caused T.C. to be both "gravely disabled" and a substantial danger to others. Fry testified as to the events at the KCVP office that he had been fearful of T.C. during the incident.

¶5 The findings on the hearing acknowledged that the court found both Fry and Song’s testimony to be credible and that T.C. was not credible at all. The court stated that T.C. made inconsistent statements. The court also specifically stated "[T.C.] says that there was a courthouse built on First Avenue in 1999, which is not accurate. I’m a judge and have been in practice here in Seattle for much longer than since 1999 and that courthouse doesn’t exist." The court noted other inconsistent statements and an apology by T.C. for statements he attributed to the television.

¶6 The judge found T.C. suffered from a mental impairment that had a substantial adverse effect on his cognitive and volitional functions and that he posed a substantial risk of serious physical harm to others as a result of his mental impairment. The court made this finding based on testimony from Song and Fry. Additionally, the judge found that if T.C. was not detained, he posed a future danger to others. The court rejected the state’s argument that T.C. was gravely disabled.

¶7 T.C. timely appealed arguing that the trial court lacked substantial evidence to have granted the 14-day petition and that the judge improperly relied on personal knowledge as evidence. T.C. also challenges the constitutionality of his 14-day commitment hearing as a violation of his right to have the matter heard by a jury. Finally, T.C. asserts that this court should reverse and vacate the order of commitment due to the court’s failure to comply with RCW 71.05.240(2). This statute requires the court to advise a patient facing involuntary commitment, such as T.C., orally and in writing that a commitment finding results in the loss of his firearm rights and that this outcome could be avoided through voluntary participation in the recommended treatment.

DISCUSSION

I. Evidentiary challenges to T.C.’s involuntary commitment proceedings

A. Sufficiency of the evidence supporting the order for 14-day involuntary treatment

¶8 We first look to T.C.’s argument regarding the sufficiency of the evidence to commit him for 14 days based on the court’s finding that he presented a likelihood of serious harm to others as a result of a mental disorder. Appellate review of the trial court’s ruling on involuntary commitment is limited to determining whether substantial evidence supports the findings and, if so, whether those findings support the conclusion of law and judgment. In re Det. of A.S., 91 Wash. App. 146, 162, 955 P.2d 836 (1998). "Substantial evidence is ‘evidence that is in sufficient quantum to persuade a fair-minded person of the truth of the declared premise.’ " Id. (quoting Holland v. Boeing Co., 90 Wash.2d 384, 390, 583 P.2d 621 (1978) ). The burden is on the challenging party to demonstrate that substantial evidence does not support a finding of fact. Id.

¶9 A court may order a person held for 14 days of involuntary treatment when the state has demonstrated by a preponderance of the evidence that, as a result of a mental disorder, the person presents a likelihood of serious harm or is gravely disabled. RCW 71.05.240(3) ; In re Det. Of W.C.C., 193 Wash. App. 783, 785-86, 372 P. 3d 179 (2016). A "mental disorder" is an organic, mental, or emotional impairment that "has substantial adverse effects on a person’s cognitive or volitional functions." RCW 71.05.020(37). A "likelihood of serious harm" means "a substantial risk" of physical harm to self, others, or property of others. RCW 71.05.020(35)(a). For a finding of substantial risk of harm to others, the State must demonstrate "behavior which has caused such harm or which places another person or persons in reasonable fear of sustaining harm." RCW 71.05.020(35)(a)(ii).

¶10 The court here entered findings and identified the evidence upon which it relied in reaching those findings after the hearing. Based on Song’s testimony, the court found that T.C. suffered from a mental disorder as defined in RCW 71.05.020(37). The court relied on the testimony of both Fry and Song to find that T.C. was likely to cause serious harm to others if not detained due to his conduct toward others at the KCVP. The court correctly stated that all that is required under the case law and RCW 71.05.020(27) is that another person be placed in reasonable fear of sustaining such harm. The Supreme Court has stated, "We thus interpret RCW 71.05.020 as requiring a showing of a substantial risk of physical harm as evidenced by a recent overt act. This act may be one which has caused harm or creates a reasonable apprehension of dangerousness." In re Harris, 98 Wash.2d 276, 284-85, 654 P.2d 109 (1982).

¶11 The record is clear that Fry testified to being fearful due to the incident in the KCVP lobby and that he was concerned about T.C. returning to KCVP to act in the same way he had previously. Song’s testimony also supports the court’s findings as she was able to observe T.C. having an "agitated episode." Song provided her expert opinion as to T.C.’s impairment and that he presented a substantial risk of physical harm. The court had substantial evidence to support its findings and order of commitment.

B. The court’s consideration of improper testimony by the judge

¶12 When acting as the trier of fact, judges weigh credibility, which may be based in part on some personal knowledge. Fernando v. Nieswandt, 87 Wash. App. 103, 109, 940 P.2d 1380 (1997). T.C. testified that he "was one of two building inspectors that was qualified for the Federal Emergency Management Administration to do work on the First Avenue courthouse when it was rebuilt in 1999."

¶13 When ruling at the conclusion of the hearing, the judge stated:

I do not find the respondent’s testimony credible in almost any way at all. Based on the mode, manner, and method of his testimony, the way he speaks, the things that he says that are clearly nonsensical. They are contradictory. He says that there was a courthouse built on First Avenue in 1999, which is not accurate. I’m a judge and have been in practice here in Seattle for much longer than since 1999 and that courthouse doesn’t exist.

The record does not reflect an objection to this last statement by either party. T.C. now argues that this was improper testimony by the trial court in violation of ER 605, which states "[t]he judge presiding at the trial may not testify in that trial as a witness." He further asserts that the statement from the judge constituted prejudicial error. The issue is preserved under the express language of ER 605, even without an objection below; therefore it is properly raised for the first time on appeal.

¶14 The state asserts that this was merely the judge exercising his common sense and suggests that the statement here is more akin to an illustrative comment. The state denies the claim that the comment prejudiced T.C. We review the alleged testimony by the judge to determine whether it was harmless or prejudicial. Vandercook v. Reece, 120 Wash. App. 647, 652, 86 P.3d 206 (2004). In Vandercook, the court determined that the judge’s recitation of his recollection of earlier proceedings was...