* State Of Washington, Respondent V. B.h., Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Detention of:
B.H.,
Appellant.
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No. 81128-2-I
DIVISION ONE
PUBLISHED OPINION
HAZELRIGG, J. — B.H. was ordered committed for a period up to 14 days
following revocation of a less restrictive alternative order based on her failure to
attend scheduled mental health appointments. B.H. appeals the 14-day
involuntary commitment order, arguing that her due process rights were violated
based on the lack of a finding of grave disability or harm to self or others. Due
process requires such a finding prior to entry of an order of commitment. Because
no such finding was made at any point during these proceedings, we find that
B.H.’s due process rights were violated and vacate the order of commitment.
FACTS
In late October 2019, the State filed a petition under chapter 71.05 RCW to
detain B.H. for 14 days for the purpose of mental health treatment, pursuant to its
assertion that she was in “imminent danger because of grave disability.” In
November 2019, after B.H. orally waived her presence at the hearing on the State’s
petition, the court entered an agreed order on a less restrictive alternative (LRA)
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No. 81128-2-I/2
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which imposed a course of outpatient treatment for 90 days in lieu of detention.
The LRA required B.H. to attend scheduled mental health appointments and
“[r]efrain from acts, attempts, and threats of harm to self, others, and others’
property.” The LRA did not include a stipulation from B.H. or her counsel that she
was gravely disabled or that facts sufficient to support such a finding existed, nor
did the court make such a finding.
In January 2020, a hearing was conducted to determine whether B.H. had
violated the terms and conditions of the LRA. Dr. Julia Singer, the evaluator for
the State, testified at the hearing that B.H. admitted to not attending her meetings
for two reasons. First, that B.H. could not find the location of the treatment provider
for the appointments and, second, that she did not want to attend the specific
facility to which she was assigned for treatment. Singer further testified that B.H.
had not stabilized to a sufficient degree to address her paranoia, so the doctor
supported revocation of the LRA.
Tarek Sandarusi, a project manager at Kerner-Scott House who had known
B.H. for about a year, also testified at the revocation hearing. Sandarusi indicated
that he had noticed recent changes in B.H.’s behavior—but that when B.H. was at
her baseline, she did not need assistance, followed the rules, and managed her
own money and medication. At the conclusion of the revocation hearing, the court
found B.H. to have violated the terms of the LRA by failing to attend all
appointments as required. The LRA was revoked and B.H. was ordered committed
for a period of up to 14 days. B.H. now appeals.
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ANALYSIS
As a preliminary matter, the parties agree that while B.H. has long since
completed the 14-day commitment ordered by the court, her appeal is not moot.
Due to the collateral consequences that can result from a commitment order, we
agree with the parties and consider the issue presented.
B.H. argues her due process rights were violated when the trial court
revoked the LRA and ordered her committed without finding that she was gravely
disabled or a danger to herself or others. We review constitutional due process
challenges de novo. State v. Lyons, 199 Wn. App. 235, 240, 399 P.3d 557 (2017).
“[C]ivil commitment for any purpose constitutes a significant deprivation of liberty
that requires due process protection.” Addington v. Texas, 441 U.S. 418, 425, 99
S. Ct. 1804, 60 L. Ed. 2d 323 (1979). Involuntary commitment for mental health
treatment is “‘a massive curtailment of liberty.’” In re Det. of LaBelle, 107 Wn.2d
196, 201, 728 P.2d 138 (1986) (quoting Humphrey v. Cady, 405 U.S. 504, 509, 92
S. Ct. 1048, 1052, 31 L. Ed. 2d 394 (1972)). “We have previously recognized the
imposition of procedural safeguards on civil commitment statutes in order to
protect affected persons against abuses.” In re Det. of C.W., 147 Wn.2d 259, 277,
53 P.3d 979 (2002).
An essential due process guarantee is that the State may not confine a
mentally ill person for treatment unless it proves, and the trial court finds, that the
individual is either dangerous or unable to “live safely in freedom.” O’Connor v.
Donaldson, 422 U.S. 563, 575, 95 S. Ct. 2486, 45 L. Ed. 2d 396 (1975). This due
process requirement exists regardless of whether it is codified by statute. Id. at
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No. 81128-2-I/4
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573–74. In our state, chapter 71.05 RCW addresses this due process requirement
by requiring a finding by the court that the individual at risk of commitment poses
“a likelihood of serious harm” or is “gravely disabled.” RCW 71.05.240(4)(a).
The parties are in agreement that no finding of grave disability or likelihood
of serious harm was made at any point in B.H.’s proceedings. The State argues
that this is because the LRA was agreed upon by the parties. Instead of the finding
by the court, an agreed LRA could rely on a stipulation that the person subject to
the order is gravely disabled or presents a likelihood of serious harm to self or
others, or that facts sufficient to support such a finding exist. This one did neither.
The State argues that RCW 71.05.590(4)(d), the statute focused on LRA
revocation, does not explicitly require that a finding of grave disability or likelihood
of serious harm be made when an LRA is revoked.1 This is true, but it does not
relieve the State or the court of its obligation to comply with due process under
both our state and federal constitutions. See In re Det. of Johnson, 179 Wn. App.
579, 587, 322 P.3d 22 (2014); O’Connor, 422 U.S. at 575.
In the absence of a judicial finding or an express stipulation that the
individual at risk of commitment poses “a likelihood of serious harm” or is “gravely
disabled” at the time of imposition of the LRA, the revocation of the LRA merely
returns the parties to the status quo prior to the LRA. That status quo in this case
was without any of the necessary findings to warrant commitment.
1 In supplemental briefing, the State relies on State v. Beaver, 184 Wn.2d 321, 358 P.3d
385 (2015) to support its arguments as to due process. However, Beaver considered revocation of
an agreed order of conditional release in the context of an acquittal based on a plea of not guilty
by reason of insanity. Beaver had stipulated when the agreed order of conditional release was
entered that he continued to suffer from mental illness such that he presented a risk to public safety.
Id. at 331–39. This is a wholly distinct posture from the case at hand where no such stipulation was
made and, as such, has no bearing on the issue before us.
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No. 81128-2-I/5
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Ordering B.H.’s commitment after revocation of her LRA without any
findings as to grave disability or likelihood of harm to self or others at any point in
the proceedings was a violation of her due process rights. See Labelle, 107 Wn.2d
at 207. As such, we vacate her commitment order.
WE CONCUR:
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