IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE

In the Matter of the Detention of No. 71290-0-1

ORDER DENYING MOTION

FOR RECONSIDERATION,

WITHDRAWING OPINION, AND

SUBSTITUTING OPINION

P.K.

Appellant.

The appellant, P.K., has filed a motion for reconsideration. The respondent, State

of Washington, has filed an answer, and P.K. has filed a reply. The court has taken the

matter under consideration and has determined thatthe motion for reconsideration should

be denied.

Now, therefore, it is hereby

ORDERED that the motion for reconsideration is denied; and, it isfurther

ORDERED that the opinion in the above-referenced case filed on May 4, 2015, is

withdrawn and a substitute opinion be filed in its place.

Done 7& this /3 " day of Qy^ 2015. CZD

FOR THE COURT:

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Detention of ] No. 71290-0-1

P.K., i DIVISION ONE

Appellant. ] UNPUBLISHED OPINION t*5 fi. ^h:'"

i FILED: July 13, 2015 — ••- r~"

CO, Trickey, J. — P.K. appeals the trial court's order revoking her release from

inpatient mental health treatment to a less restrictive alternative. She contends she is

entitled to reversal of the order because the trial court failed to hold the revocation hearing

within the time frame required by statute. P.K. also challenges the trial court's

consideration of evidence contained in her medical records and the conclusion that she

had substantially decompensated. We affirm.

FACTS

On August 15, 2013, the trial court entered an order involuntarily committing P.K.

for a period of14 days. On September 3, 2013, P.K. entered into an agreed order for 90

days of a less restrictive alternative. The order required P.K. to live at Evans House, a

supportive housing facility. P.K was also required to attend all appointments with the

DESC PACT1 team and take medications as prescribed.

The State subsequently filed a petition to revoke the lessrestrictive alternative and

return P.K. to a hospital setting. The record shows that P.K. was detained at 5:50 a.m.

on November 11, 2013.

1 The Downtown Emergency Service Center's Program for Assertive Community Treatment

provides intensive, community-based mental health services.
No. 71290-0-1/2

A revocation hearing was held on November 18, 2013. The State offered the

testimony of two fact witnesses, Melina Breland and Robyn Hughes, and one expert

witness, Gerri Pergola.

Breland, P.K.'s PACT team case manager, testified that P.K. was required to meet

with the PACT team every morning for medication monitoring, but had missed at least

five appointments since her release from inpatient treatment in September. Breland

testified that in early November P.K. left Evans House and was gone for four days.

Breland eventually located P.K. atP.K.'s mother's house. Breland also testified that P.K.

had decompensated from her baseline level offunctioning. P.K.'s hygiene had noticeably

deteriorated, she refused to answer any of Breland's questions, and she asked Breland

to call her by a different name.

Hughes, a residential counselor at Evans House, testified that P.K.'s hygiene since

September was consistently poor and P.K. was frequently covered in her own feces.

Hughes testified that in November she attempted to enforce a house rule with P.K. P.K.

screamed at Hughes and Hughes "took a couple steps back because [Hughes] just didn't

feel safe."2 Hughes testified the interaction "felt more threatening to [Hughes]" than

previous contacts with P.K.

Pergola, a licensed clinical social worker at Fairfax Hospital, testified that she

recommended the less restrictive alternative be revoked and P.K. remain hospitalized.

Pergola based her opinion on her review of P.K.'s medical records following her

2Report of Proceedings (RP) at 34.
No. 71290-0-1/3

admission to Fairfax Hospital on November 11, 2013, a consultation with P.K.'s treatment

team, and her own personal assessment of P.K.

The State offered P.K.'s medical records as evidence under the business records

exception to the hearsay rule. The trial court admitted the records, stating:

All right. The court will accept the Fairfax medical records as business

records and treatments therein, statements made for purposes of medical

diagnosis and treatment. The court recognizes, however, that under the

statute there are limitations ifthere are opinions as to [P.K.'s] mental state

that are entered into the record by someone ... other than this witness. The

court will accept them solely for purposes of supporting Ms. Pergola's expert

opinions.[3]

The trial court permitted Pergola to testify regarding the content of the records:

So the physical observations Iwill allow as substantive evidence. The notes

as to mental status I'll accept solely for your opinion.w

Pergola testified that, according to the records, P.K. was "uncooperative" with

questions, was "disorganized," and appeared to be "responding to internal stimuli."5 The

records also showed P.K. had been decompensating and had a history of aggressive

behavior.

Pergola also testified that she met with P.K. the morning of the hearing to

determine her level of functioning. P.K.'s responses to Pergola's questions were

nonsensical and P.K. was unable to articulate any plan for her continued safety and

treatment outside of the hospital.

3 RP at 49-50.

4 RP at 56.

5 RP at 51-52, 57.
No. 71290-0-1/4

P.K. constantly interrupted the proceedings with incoherent and tangential

statements. When P.K. testified, she was unable to state her own name for the record.

When asked ifshe wanted to return to Evans House, she agreed, but the remainder of

her testimony was nonresponsive.

The trial court revoked P.K.'s less restrictive alternative, finding that P.K. had

violated the terms of the less restrictive alternative order by missing medication meetings,

failing to physically reside at Evans House, and threatening Evans House staff. The trial

court also found that P.K. had suffered a substantial decompensation. The trial court

remanded P.K. to inpatient treatment for the remainder of the 90-day period. P.K.

appeals.

ANALYSIS

A designated mental health professional (DMHP) may petition the trial court to

revoke an order for a less restrictive alternative on one of the following grounds: (1) the

individual is failing to adhere to the terms and conditions of the less restrictive alternative;

(2) the individual's condition has undergone "[substantial deterioration;" (3) there is

evidence of "substantial decompensation with a reasonable probability that the

decompensation can be reversed by further inpatient treatment;" or (4) "[t]he person

poses a likelihood of serious harm." RCW 71.05.340(3)(a)(i)-(iv). An individual detained

pursuant to such a petition "shall be held until such time, not exceeding five days," as a

hearing on the revocation can be scheduled. RCW 71.05.340(3)(c). At the hearing on

the petition, the trial court determines whether any ofthe grounds in RCW 71.05.340(3)(a)

have been met, and if so, "whether the terms of conditional release should be modified

orthe person should be returned to the facility." RCW 71.05.340(3)(d).

4
No. 71290-0-1/5

Timeliness of the Hearing

P.K. argues that the trial court violated RCW 71.05.340(3)(c) because the

revocation hearing was not held within five days of her detention bythe DMHP. In support

of her argument, P.K. cites to RCW 71.05.180, which governs the time by which a

probable cause hearing must be held. RCW 71.05.180 provides:

If the evaluation and treatment facility admits the person, it may detain him

or her for evaluation and treatment for a period not to exceed seventy-two

hours from the time of acceptance as set forth in RCW 71.05.170. T_he

computation of such seventv-two hour period shall exclude Saturdays,

Sundays and holidays.®

P.K. compares RCW 71.05.180 with RCW 71.05.340(3)(c), which provides:

A person detained under this subsection (3) shall be held until such time,

not exceeding five days, as a hearing can be scheduled to determine

whether or not the person should be returned to the hospital orfacility from

which he or she had been conditionally released.

P.K. argues that because RCW 71.05.340(3)(c) is silent asto whether the five-day time

period excludes Saturdays, Sundays, and holidays, we must presume that it does not.

However, this court recently rejected a similar argument in In re Detention ofClark,

Wn. App. , 348 P.3d 1231 (2015), involving the timeliness of a continuance of a 14-

day commitment hearing. In Clark, we examined the legislative history of chapter 71.05

RCW and determined that, where the statute did not specify whether weekends and

holidays should be included, the Superior Court Civil Rules governing the computation of

time apply.

Thus, the crucial question is how to count the 48 and 24 hour periods

mandated by the statute—specifically, whether to exclude weekends and

holidays. Under RCW 71.05.180, the initial 72 hour detention excludes

Saturdays, Sundays, and holidays. RCW 71.05.240(1) does not state the

6Emphasis added.
No. 71290-0-1/6

same exclusion for continuances. Clark asks us to interpret this omission

as evidence that the legislature intended for weekends and holidays to be

categorically included when granting continuances. However, based on the

history of this statute, we decline to do so.3

3 It is apparent that the difference between the two provisions was a

legislative artifact. Originally, RCW 71.05.180 expressly included

weekends and holidays when calculating the initial 72 hour period. Laws

of 1973, 1st ex. sess., ch. 142, § 23. This indicated that RCW 71.05.180

was an exception to RCW 1.12.040, the general time computation statute

which provides for exclusion of nonjudicial days. See Laws of 1887, ch.

20, § 1. RCW 71.05.240 did not specify whether weekends and holidays

should be included when calculating the length of continuances. See Laws

of 1973, 1st ex. sess., ch. 142, § 29. We interpret this to mean that RCW

71.05.240 was—and is—subject to the general time computation statute.

See Amalgamated Transit Union Legislative Council v. State, 145 Wn.2d

544, 552, 40 P.3d 656 (2002) ("The legislature is presumed to be aware of

its own enactments."). RCW 71.05.180 was later amended to exclude

weekends and holidays, signaling that the legislature reversed its position

as to the 72 hour determinations. Laws of 1979,1st ex. sess., ch.215, sec.

11.

Clark, 348 P.3d at 1235.

CR 6(a), which controls the computation oftime for civil proceedings, provides that

"[w]hen the period of time prescribed or allowed is less than 7 days, intermediate

Saturdays, Sundays and legal holidays shall be excluded in the computation." The record

shows that P.K. was detained at 5:50 a.m. on Monday, November 11, 2013. A revocation

hearing was held on Monday, November 18, 2013. The intervening period contained one

holiday (Veterans Day), a Saturday, and a Sunday. Pursuant toCR 6(a), these days are

excluded from the computation of time. Thus, P.K.'s revocation hearing was timely

because it was held four days after her detention bythe DMHP.7

7P.K. contends that CR6(a) does not apply because proceedings under chapter 71.05 RCW are

"special proceedings." CR 81 provides that the Superior Court Civil Rules govern all civil
No. 71290-0-1/7

Business Records

P.K. argues the trial court erred when it allowed Pergola to testify to the content of

medical records containing information about P.K.'s mental state. We review a trial

court's decision to admit or exclude evidence for abuse of discretion. State v.

DeVincentis. 150 Wn.2d 11, 17, 74 P.3d 119 (2003). Here, the trial court did not abuse

its discretion. The record is clear the trial court properly considered this testimony only

for the basis of Pergola's opinion, not as substantive evidence.

P.K. relies on RCW71.05.360(9), which provides that "[t]he record maker shall not

be required totestify in orderto introduce medical or psychological records ofthe detained

person so long as the requirements ofRCW 5.45.020 are metexceptthat portions ofthe

record which contain opinions as to the detained person's mental state must be deleted

from such records unless the person making such conclusions is available for crossexamination." Butto the extent P.K. argues the trial court erred in admitting the medical

records in violation of RCW 71.05.360(9), the record is insufficient to permit review

because P.K. failed to designate the exhibit on appeal.

Moreover, RCW 71.05.360(9) does not prohibit an expert witness from testifying

as to the basis of their opinion. ER 703 states:

The facts or data in the particular case upon which an expert bases an

opinion or inference may be those perceived by or made known to the

expert at or before the hearing. If of a type reasonably relied upon by

experts in the particular field in forming opinions or inferences upon the

subject, the facts or data need not be admissible in evidence.

proceedings "[e]xcept where inconsistent with rules orstatutes applicable to special proceedings."

We need not address P.K.'s claim that proceedings under chapter 71.05 RCW are "special

proceedings" because our decision in Clark makes it clear CR 6(a) is not inconsistent with RCW

71.05.340(3)(c).
No. 71290-0-1/8

Pergola testified that she relied on the medical records in forming her opinion that P.K.'s

less restrictive alternative should be revoked. The trial court clearly stated it would not

consider any statement of opinion about P.K.'s mental status as substantive evidence.

Furthermore, because this was a bench trial, we presume that the trial court based its

decision solely on admissible evidence. Crosetto v. Crosetto. 65 Wn.2d 366, 368, 397

P.2d 418 (1964). P.K. fails to establish any abuse of the trial court's discretion.8

Sufficiency of the Evidence

P.K. contends the evidence was insufficient to show that she had substantially

decompensated. "Decompensation" is "the progressive deterioration of routine

functioning supported by evidence of repeated or escalating loss of cognitive or volitional

control ofactions." In re Detention ofLaBelle. 107Wn.2d 196, 206, 728 P.2d 138(1986).

Where, as here, a trial court has weighed the evidence, our review is limited to

determining whether substantial evidence supports the findings and, if so, whether the

findings support the conclusions of law. In re Detention of A.S., 91 Wn. App. 146, 162,

955 P.2d 836 (1998).

The trial court found that when Breland located P.K. at her mother's house, P.K.

exhibited "delusional behavior beyond her usual level offunctioning."9 The trial court also

found that P.K. exhibited "a consistent pattern of being unable tocontrol herbowels" and

"symptoms of being unable to focus or answer questions."10 Furthermore, the trial court

8 In re Welfare of J.M.. 130 Wn. App. 912, 924-25, 125 P.3d 245 (2005), which P.K. cites, is

distinguishable. In M, the trial court admitted medical records containing psychiatric diagnoses

as business records and considered them as substantive evidence.

9Clerk's Papers (CP) at 88.

10 CP at 88.

8
No. 71290-0-1/9

found the testimony ofBreland, Hughes, and Pergola to be credible. Because P.K. does

not challenge any ofthe trial court's findings, they are verities on appeal. See Cowiche

Canvon Conservancy v. Boslev. 118 Wn.2d 801, 808, 828 P.2d 549 (1992). The findings

were sufficient to support the trial court's conclusion that P.K. had suffered a substantial

decompensation in her functioning.

Affirmed.

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WE CONCUR:

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