In Re The Detention Of Alma Mcgowan

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Detention of 	' 	^
A.M.
No. 74301-5-1 	3
DIVISION ONE
UNPUBLISHED OPINION
FILED: November 14, 2016
Appelwick, J. — A.M. seeks reversal of an order remanding her for an additional
90 days of inpatient treatment. 	She allegies that the State failed to prove by clear,
cogent, and convincing evidence that A.M. presented a substantial risk of physical harm
to others as a 	result of a mental disorder as required 	by RCW 71.05.280(1). 	We
reverse.
FACTS
A.M. has been diagnosed with paranoid schizophrenia. 	On August 31, 2015,
Designated Mental Health Professional Rodney Pryor filed a petition to place A.M. on
an involuntary treatment hold, and A.M. entered into an agreed order committing her to
inpatient treatment for a period not to exceed 14 days. 	The initial petition was based on
evidence that A.M. had been found unconscious in a gas station bathroom and when
paramedics tried to lift her onto the gurney, she awoke and became combative and

No. 74301-5-1/2
aggressive. 	She was restrained at St. Francis Hospital where she remained combative,
attempted 	to 	remove 	the 	restraints, 	attempted 	to 	punch, 	kick, 	and 	scratch 	staff
members, and she refused to engage in an evaluation.
A.M. was transferred to Fairfax Hospital, and on September 11, 2015, Fairfax
petitioned for an additional 90 day more restrictive involuntary treatment (Petition). 	The
Petition alleged that A.M.:
has threatened, attempted, or inflicted physical harm upon the person of
another 	or 	him/herself, 	or 	substantial 	damage 	upon 	the 	property 	of
another after having been taken into custody for evaluation and treatment,
and as a 	result of a 	mental disorder presented a 	likelihood of serious
harm;
and/or:
. . . was taken 	into 	custody as 	a 	result of conduct in which 	he/she
attempted 	or 	inflicted 	physical 	harm 	upon 	the 	person 	of 	another 	or
him/herself, 	or substantial 	damage 	upon 	the 	property 	of 	others, 	and
continues to present, as a result of mental disorder, a likelihood of serious
harm;
and/or:
. . . was gravely disabled.
On October 13, 2015, the trial court held a hearing on the Petition. 	The State
presented the testimony of Dr. Cynthia 	Mason, 	a clinical 	psychologist from 	Fairfax
Hospital. 	A.M. 	refused 	to 	be 	evaluated 	so 	Dr. 	Mason 	based 	her 	evaluation 	on
discussions 	with 	A.M.'s 	treatment 	team, 	review 	of 	A.M.'s 	chart, 	and 	personal
observations of A.M. in the unit and in court. 	She testified that when she tried to speak
with A.M. the day before the hearing, A.M. used pressured, hyperverbal speech, made
rambling statements about being a federal marshal and needing to leave the hospital.

No. 74301-5-1/3
She claimed that the hospital staff were terrorists and her life was in danger the longer
she stayed there.
At this point, A.M. had been hospitalized at Fairfax for about six weeks, and Dr.
Mason read notes from A.M.'s medical chart into the record. 	At her initial psychiatric
evaluation on September 4, 2015, A.M. stated, "I want out of your torture chamber," and
"I won't be taking any medication so leave me alone. 	If you force me, I will probably kill
you, 	so leave me alone." 	A.M. "physically postured at Fairfax staff' and refused to
engage with the nurses, participate in therapeutic discussion or answer any assessment
questions.
The daily nursing note from September 20 stated that A.M. was guarded and
irritable, angry, agitated, hyperverbal, isolative, pacing, and withdrawn. 	She denied
having any psychological problems and said she had cancer. 	On September 24, when
asked why she was in the hospital, she reported that her gallbladder ruptured and she
said she would "have to subpoena the Federal Marshals, the Navy, the CIA, and [the]
FBI." 	On September 25, her case manager noted that A.M.'s thought process was
grandiose 	with 	delusions, 	and 	her 	behavior 	was 	agitated, 	aggressive, 	defiant,
hyperverbal, oppositional, and isolative. 	She refused services and wanted to leave the
country and go to China because no one was recognizing her for her federal marshal
work. 	A progress note from October 4 indicates that A.M. was restless and fidgety and
having auditory and visual hallucinations; she claimed that "60,000 . . . people can see.
People with ear chromosomes can't see it."
On October 7, A.M. made threatening statements such as, "You moron, get the
fuck out of my room now, otherwise, I will kick your ass." 	She refused to meet with her

No. 74301-5-1/4
case manager, said staff was "violently offensive" for talking to her while she was in bed
and told them to "[l]eave me the hell alone. 	You go deal with a sexual harassment," and
said she wanted a taxi called so she could leave. 	On October 10, she told a nurse she
had been admitted to the hospital due to her gallbladder, but she had recovered and
would not take medications upon discharge. 	She told staff to leave her alone, and she
would not take any medications when she left because she did not need them.
On October 11, A.M. told a nurse, "I don't like you. 	Get the fuck out of here" and
refused psychiatric assessment saying, "You are a terrorist, Leave me the fuck alone."
On October 12, she insisted that she was being kept illegally, that all of the staff were
not Americans but "a bunch of African and Middle Eastern terrorists." 	She stated, "I
don't like any of you guys. 	I am trained to kill and I can see you guys are trying to bring
your terrorists all over here. 	I will kill you people. ... I will [d]ie for America."
Dr. Mason opined that A.M. presented a substantial risk of physical harm to
others as a result of her mental disorder, paranoid schizophrenia. 	She stated that A.M.
presented a likelihood of serious harm to others based on the fact that she was making
threats to staff as recently as October 12, the day before the hearing. 	She expressed
concern that A.M. might anger the wrong person, instigate an argument, and have a
physical altercation as either the perpetrator or the victim as a result of her behavior.
She noted that A.M. had no insight into her need for mental health treatment and should
not be released to a less restrictive environment because she was unwilling to take her
medications outside of the hospital and was not sufficiently cognitively aware to make or
keep appointments.

No. 74301-5-1/5
Dr. Mason 	acknowledged that A.M. 	had 	never been put in restraints while at
Fairfax, never forcibly injected with medication, never required seclusion or withdrawal
of privileges, 	never 	physically 	assaulted 	anyone, 	and 	had 	appropriate 	boundaries.
However despite being hospitalized for over a month, having all of her basic needs met,
and 	having 	staff 	to 	redirect 	her 	when 	she 	started 	losing 	control, 	she 	remained
delusional, disorganized, paranoid, verbally aggressive, and threatening.
A.M. then testified on her own behalf. 	She said that the statement, "I will kick
your ass" was an exaggeration, although she acknowledged being upset. 	She claimed
she was taking medication, working with a doctor, and going to group but was not
interested in long-term psychiatric evaluation. 	She said she would not hurt someone
"unless they wish to hurt me first." 	She claimed to have leukemia, not a psychological
condition, and that her prior hospitalization was because something was wrong with her
gallbladder.
The trial court found 	clear, cogent, 	and convincing evidence that after being
taken into custody for evaluation and treatment, A.M. had threatened, attempted, or
inflicted physical harm against someone else and as a result of her mental disorder
presented a likelihood of serious harm. 	The court found insufficient evidence that A.M.
was gravely disabled 	or that she was taken 	into custody because she threatened,
attempted or inflicted serious harm and those allegations were dismissed. 	It determined
that a 	less restrictive alternative was not in the best interests of A.M. and issued an
order remanding A.M. to Fairfax inpatient services for a period not to exceed 90 days
from the date of judgment, October 14, 2015.

No. 74301-5-1/6
In 	support 	of its order the 	court entered 	supplemental 	findings 	of fact and
conclusions of law consistent with Dr. Mason's testimony. 	It also found that A.M. had
outbursts during the hearing, which were consistent with the description of her behavior
on the ward, including rapid speech, restlessness, and fidgeting.
Citing to In re Detention of LaBelle. 107 Wn.2d 196, 728 P.2d 138 (1986), the
trial 	court 	recognized 	that 	someone 	who, 	as 	a 	result 	of 	their 	disability, 	makes
statements like "I will kill you" puts herself and the public in a very precarious position. 	It
was particularly concerned with A.M.'s statements with respect to killing staff because
she believed they were terrorists. 	It found that these statements flowed from A.M.'s
mental illness and would constitute a 	likelihood of serious harm to herself or others.
The court concluded that the State proved by clear, cogent, and convincing evidence
that A.M. had a mental disorder and, as a result of that disorder, presented a substantial
risk of harm to others. A.M. appeals.
ANALYSIS
As a preliminary matter, although the 90 day commitment order has long since
expired, the State agrees that this case is not moot because the trial court's order may
have adverse consequences on future involuntary treatment determinations. 	See In re
Pet, of M.K., 168 Wn. App. 621, 626, 279 P.3d 897 (2012) (recognizing that an order of
involuntary commitment may be evidence in a subsequent commitment proceeding, and
therefore 	"[a]n individual's 	release from 	[involuntary] 	detention 	does 	not 	render an
appeal moot"). 	Under the circumstances, we exercise our discretion to decide A.M.'s
appeal on the merits.

No. 74301-5-1/7
The 	burden 	of proof at a 90 day 	involuntary commitment 	hearing 	is "clear,
cogent, 	and 	convincing 	evidence." 	LaBelle, 107 Wn.2d 	at 209. 	Accordingly, "the
ultimate fact in issue must be shown by evidence to be highly probable." 	Id. 	When the
trial court has weighed the evidence, this court limits its review to determining whether
substantial evidence supports the trial court's findings and, if so, whether the findings in
turn support the trial court's conclusions of law and the judgment. 	Id; In re Pet, of
W.C.C.. 193 Wn. App. 783, 793, 372 P.3d 179, affd, 185 Wn.2d 260, 370 P.3d 1289
(2016). 	"Substantial evidence is 'evidence in sufficient quantum to persuade a fair-
minded person of the truth of the declared premise.'" 	In re Pet, of A.S., 91 Wn. App.
146, 162, 955 P.2d 836 (1998 (quoting Holland v. Boeing Co., 90 Wn.2d 384, 390, 583
P.2d 621 (1978))), affd, 138 Wn.2d 898, 982 P.2d 1156 (1999). 	"The party challenging
a finding of fact bears the burden of demonstrating the finding 	is not supported by
substantial evidence." Id.
An individual committed for an initial 14 day period of intensive treatment may be
committed for an additional 90 days if that person, after being "taken into custody for
evaluation and treatment has threatened, attempted, or inflicted (a) Physical harm upon
[herself or another], and (b) as a result of a mental disorder presents a likelihood of
serious harm." 	RCW 71.05.280(1); RCW 71.05.320(1). 	"Likelihood of serious harm" is
defined in part to mean: "(a) A substantial risk that. . . (ii) physical harm will be inflicted .
. . upon another, as evidenced by behavior which has caused such harm or which
places another person or persons in reasonable fear of sustaining such harm." 	RCW
71.05.020(27)(a). 	There is no evidence that A.M.'s behavior actually caused physical
harm; 	her 	continued 	commitment was 	based 	on 	the 	trial 	court's 	finding 	that she

No. 74301-5-1/8
presented a 	likelihood of serious harm 	based upon 	behavior "which places another
person or persons in reasonable fear of sustaining such harm." 	Id.
A.M. claims that there was insufficient evidence that she presented a likelihood of
serious 	harm 	because 	there 	is 	no 	evidence 	that 	her 	behavior 	placed 	anyone 	"in
reasonable fear of sustaining such harm." 	She argues that "likelihood of serious harm"
requires a connection between the threat of harm and the fear actually experienced.
But, there is no evidence that any of the hospital staff were fearful when they heard her
threats. 	She contends the trial court improperly transferred the focus to the potential
impact of A.M.'s behavior if she were to make such statements in the community. 	We
agree.
A.M. made the threats to hospital staff, but none of them testified or acted in a
manner indicating that they were in "reasonable fear of sustaining such harm." 	RCW
71.05.020(27)(a)(ii). 	To the contrary, Pr. Mason acknowledged that staff never placed
A.M. in restraints, 	never forcibly 	injected 	her with 	medication, 	never placed 	her in
seclusion, and never withdrew her privileges. 	No one testified that A.M.'s threats or
behavior actually invoked such fear in anyone threatened. 	The staff did not testify to
such fears, and Pr. Mason did not testify that she feared A.M. would harm her, hospital
staff, or any other specific person who had been threatened. 	Therefore, there was
insufficient evidence that A.M. presented a likelihood of serious harm. 	Cf. 	In re Pet, of
W.C.C., 193 Wn. App. at 	793-94 (finding sufficient evidence that W.C.C. presented a
likelihood of serious harm to others when he exhibited aggressive behavior by punching
and 	threatening 	a 	resident and 	threatening 	a 	clinical 	support specialist, 	and 	both

No. 74301-5-1/9
testified that W.C.C.'s behavior placed them in 	reasonable fear of sustaining such
harm).
The State acknowledges that likelihood of serious harm requires that "someone"
be in reasonable fear of sustaining physical harm. 	However, the State argues that it
need not be the person who was the recipient or target of the threat as long as the
person in fear was "privy to the threat" and is "in reasonable fear that the respondent will
actually follow through and harm that target." 	Pr. Mason testified that she feared A.M.
could have a "similar or worse incident" if she were released and her fear that A.M.
might anger the "wrong person" or harm "others." 	Pr. Mason 	failed to identify any
specific target. 	The State urges that this is enough.
The State suggests that a 	narrow interpretation of the statute would allow a
mentally ill person to consistently threaten a target who is unaware of the threat, but that
under State v. Williams, 144 Wn.2d 197, 26 P.3d 890 (2001), a mentally ill person may
be referred for detention under the involuntary treatment act even if the targeted person
is not identified.
Finally, the 	State 	claims 	that 	construing 	RCW 	71.05.020(27)(a)(ii) 	to
require an identified or specific target could lead to an absurd result, because it
would preclude detaining an individual before violence occurs and it would fail to
further one of the purposes of involuntary treatment act which is to protect the
public safety. 	RCW 71.05.010(1 )(a).
Legislative intent is first determined 	by looking 	at the language of the
statute. 	State v. Hansen, 122 Wn.2d 712, 717, 862 P.2d 117 (1993). 	Because
the 	involuntary 	treatment 	act 	"impacts 	liberty 	interests" 	it 	must 	be 	strictly

No. 74301-5-1/10
construed. 	In re Pet, of D.W.. 181 Wn.2d 201, 207, 332 P.3d 423 (2014). 	The
language 	of 	RCW 	71.05.020(27)(a)(ii) 	requires 	that A.M.'s 	behavior "placed
another person or persons in reasonable fear of sustaining such harm." 	This
clearly and unambiguously requires the person in fear to be in fear of harm to
themselves. 	When 	statutory language 	is 	unambiguous, 	"legislative 	intent is
apparent, and we will not construe the statute otherwise." 	State v. J.P., 149
Wn.2d 444, 450, 69 P.3d 318 (2003). 	Interpreting RCW 71.05.020(27)(a)(ii) to
mean that a 	person or 	persons may reasonably fear that some unidentified,
hypothetical person will sustain harm would require us to broadly construe the
phrase "person in reasonable fear of sustaining harm." 	This we will not do.
R.W., 181 Wn.2d at 207 (involuntary treatment act must be strictly construed).
The State's 	reliance 	on 	Williams, 	is 	unavailing 	because the target 	in
Williams was both identified and aware of the threat. 	144 Wn.2d at 202. 	In
Williams, 	the 	defendant was convicted 	of misdemeanor criminal 	harassment
which is defined as threatening "[t]o cause bodily injury in the future to the person
threatened 	or 	to 	any 	other 	person" 	and 	placing 	the 	person 	threatened 	"in
reasonable fear that the threat will be carried out." 	144 Wn.2d at 202-03 (quoting
former 	RCW 	9A.46.020(1 )(a)(i) and 	(b)). 	The 	target 	was 	identified 	as 	the
defendant's former boss, the defendant communicated the threat to the target,
and the target testified that he saw a gun protruding from the defendant's pocket
and that he was frightened. 	144 Wn.2d at 202, 212.
Thus, the "potential impact" of A.M.'s threats and behavior on unspecified
persons is insufficient to constitute a likelihood of serious harm.
10

No. 74301-5-1/11
Finally, A.M. claims there was 	insufficient evidence showing 	that she
committed a recent overt act that demonstrated substantial risk of physical harm.
We agree.
The statute is clear, 	a 	specific person or 	persons must be placed 	in
reasonable fear of harm. 	In the absence of any showing that any specific person
or 	persons were 	in reasonable fear of sustaining 	physical 	harm, 	there was
insufficient evidence to support the trial court's conclusion that A.M. threatened,
attempted, or inflicted physical harm upon another and, as a result of a mental
disorder, presents a likelihood of serious harm.
We reverse the order committing A.M. for an additional 90 day period.
WE CONCUR:
tCftY^c^0.
11