IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON In the Matter ofthe Detention of:
K.I. STATE OF WASHINGTON, Respondent,

v. K.I., Appellant. DIVISION ONE No. 69139-2-1 UNPUBLISHED OPINION

FILED: November 12, 2013 Dwyer, J. -The interval between a person's arrival at an emergency 

### room and their referral to a County Designated Mental Health Professional 

### (CDMHP) forevaluation andpotential involuntary commitment isprotected by due process. In this case, thecourtconcluded that a three and a halfhourdelay between K.l.'sarrival in an emergency room and her referral to a CDMHP did not 

### violate due process. The courtalsoconcluded that, due to a mental disorder, K.I. presented a likelihood of seriousharm to others and that the State's involuntary commitment petition should be granted. We affirm.
I 

### The material facts are largely undisputed. Atapproximately 6:00 p.m. on 

### June 27, 2012, K.I. arrived at the emergency room of HarborviewMedical Center. Fifteen minutes later, hospital stafftransferred her to the Psychiatric 

### Emergency Services (PES)unit. Following a psychiatric evaluation, lab work,No. 69139-2-1-1/2

and a period during which K.I. had to be restrained, staffreferred herto the CDMHP at 9:40 p.m. The next morning, at 3:20 a.m., the CDMHP took K.I. into custody. The State then filed a petition requesting K.l.'s detention for up to 72 hours for evaluation and treatment. The petition alleged in part that K.I. suffered from a mental disorder, that she was suicidal, agitated, repeating nonsensical phrases, 

### responding to internal stimuli, and pounding incessantly on glass. The petition referenced the declaration of Dr. Jessica Yeatermeyer, who evaluated K.I. inthe 

### Harborviewemergency room. Italso referenced a June 24, 2012 police report 

### alleging that K.I. kicked a motelmanager in the stomach. The petition alleged that K.I. presented "an imminentrisk of serious harm to herself and to others." In a declaration attached to the petition, Dr. Yeatermeyer stated that K.I. 

### has a history of schizoaffective disorder and that Northwest Hospital had released her on June 27, 2012, following a 72-hour hearing. K.l.'s behavior in 

### the Harborview emergency room"required seclusion for the safety of herself and staff." Dr. Yeatermeyerconcluded that K.I. "would be a dangerto herself ifshe
were discharged" and recommended involuntarydetention. On June 29, 2012, the State filed a petition for a 14-day involuntary 

### treatment. This petition alleged that K.I. presented a likelihood ofserious harm to herselfand others. On July 2, 2012, K.I. moved to dismiss the involuntary treatment petition.No. 69139-2-1-1/3

Atthe hearing on the petition and motion to dismiss, K.I. argued inpart 

### that "any delay between the time that [she was] admitted to the PES for psychiatric evaluation and the time that a referral to the [C]DMHP [was] made needs to be
. .. justified by a preponderance ofthe evidence. And thatwas stated in In Re C.W.M47 Wn.2d 259, 53 P.3d 979 (2002)]. . . ." The court denied the motion to dismiss, concluding thatthere was no undue delay preceding K.l.'s referral to the CDMHP. The court then heard testimony regarding the involuntary treatment 

### petition. Dr. Jessica Yeatermeyertestified to the allegations in her earlier declaration. Dr. Brent O'Neal, a clinicalpsychologist, testified that he evaluated K.I. based on information she provided, his own observations, a review of her medical chart, and consultation with hospital staff. He described an incident 

### during which K.I. refused to step out of an office doorway, became combative when staffattempted to assist her to her room, and was ultimately placed in seclusion for the safety of others. He also read a chart note stating that K.I. 

### exhibited "increasing agitation overnightwith yelling, threats to staff, spitting on 

### staff, hardpounding against the nursing station door and then herown door." Over K.l.'s hearsay objection, Dr. O'Neal testified concerning a recent assault charge: 

### So in May it's myunderstanding she was charged with assault, found not competent at mental health court, and assigned case 

### management staff. . . . [A]nd on June 24th there's a police report here that indicates she assaulted another in an unprovoked mannerNo. 69139-2-1-1/4
indicating that she kicked
... the alleged victim here in the stomach. The court overruled the objection, stating, "[i]t'sthe basis of his opinion as to why she's a harm to others." Dr. O'Neal concluded that K.I. had schizoaffective disorder and posed a substantial risk of physical harm to herselfand others. The court granted the involuntary treatment petition. Itconcluded that while the evidence was insufficient to show that K.I. presented a substantial risk of harm to herself, "[a]ll ofthe events indicate
. . . that she's placing others in reasonable fear of substantial harm." The court's written findings stated in part: The respondent suffers from paranoid thinking; she has volatile behavior requiring repeated and multiple seclusion and 

### restraint periods throughout her stay; she has been volatile with staff; she has been spitting on staff; she has been noted to [be] responding to internal stimulus; she has a history of priorITAs involving assault; and for her safety and the safety ofothers, she has been placed inseclusion. At times, she became resistant and combative and had her fists clenched.[1] 

### K.I. appeals the court's denial of her motion to dismiss and its decision 

### granting the State's 14-daypetition.2

1K.I. has notassigned errorto thisfinding. 2Although theparties recognizethatthe issuesbefore us are moot, both requestthatwe 

### addressthem underIn re Pet, ofM.K.. 168Wn. App. 621, 625, 629, 279 P.3d 897 (2012) (civil commitment not moot "because a trialcourt presiding overfuture involuntary commitment hearings may consider [committed person's] priorinvoluntary commitment orders when making its commitmentdetermination") or the criteria for review of moot issues. Inre Pet, ofSwanson, 115Wn.2d21, 24, 793 P.2d 962, 804 P.2d 1 (1990). Given the parties'agreement and our authority to review moot issues, we exercise our discretion to do so.No. 69139-2-1-1/5

K.I. first contends that the court erred in denying her motion to dismiss because the delay between her arrival inthe emergency room and her referral to the CDMHP violated due process. We disagree. The time between an involuntarily committed person's arrival at a hospital 

### andtheir referral to a CDMHP underRCW 71.05.0503 isprotected by due process. In re Pet, of C.W.. 147 Wn.2d 259, 279, 53 P.3d 979 (2002). The State has the burden of proving by a preponderance ofthe evidence that any delay 

### during thattime period wasjustified. C.W., 147 Wn.2d at 278. The State can "meet its burden inmost cases by reference to hospital records and statements 

### by hospital personnel." C.W., 147 Wn.2d at 279. We review a court's conclusion 

### thatthere wasno due processviolation denovo.4 The trial court concluded that the three and a halfhour delay between 

### K.l.'s arrival inthe emergency room and her referral to the CDMHPwas not
3RCW71.05.050states in pertinent part: [l]fa person is brought to the emergency room of a public or private agency or hospital for observation or treatment, the person refuses voluntary admission, and the professional staff of the public or private agency or hospital regard such person as presenting as a result of a mental disorder an imminent likelihood ofserious harm, or as presenting an imminentdanger because of grave disability, they may detain such person for sufficient time to notify the county designated mental health professional of such person's condition to enable the county designated mental health professional to authorize such person being further held incustody or transported to an evaluation treatment center pursuant to the conditions in this chapter, but which time shall be no more than six hours from the time the professional staff determine that an evaluation by the county designated mental health professional is necessary. 4State v. Mullen. 171 Wn.2d 881, 893-94, 259 P.3d 158 (2011) (alleged due process violations are reviewed de novo); In re Pet, of A.S., 91 Wn. App. 146, 157 n.6, 955 P.2d 836 (1998), affd, 138 Wn.2d 898, 982 P.2d 1156(1999) (motions to dismiss involving pure questions of law are reviewed de novo).No. 69139-2-1-1/6

"unreasonable in an emergency room when somebody is coming in and can have a variety ofdifferent things that they have to determine what's at play here." The court also stated that the delay was not undue "inthe major trauma center in a five state area." These reasons are not sufficient, by themselves, to show that 

### the delay in this case wasjustified. Nevertheless, we may affirm the trial court on any basis supported bythe record. LaMon v. Butler, 112 Wn.2d 193, 200-01, 770 P.2d 1027 (1989). A review ofthe record demonstrates thatthe delay was justified and thatthere was no violation ofdue process. The record establishes the followingcircumstances and timeline. K.I. 

### arrived at the hospital around 6:00 p.m. Stafftransferred her to PES at 6:15. An initial evaluation commenced at that time. 

### At 6:25 p.m., staff noted that K.I. was "disheveled, limited verbal interaction, irritable, making a fist. . . body posturing. Repeating the word 

### 'Malachi, Malachi.' Chanting. . . . Alteration inthought process . .. provide a safe least restrictive environment [and] data base, [patient] teaching, explain 

### evaluation] process. Labs obtained." During her evaluation at the PES unit, K.I. told Dr. Jessica Yeatermeyerthat she was suicidal and asked to be admitted. When asked what would be helpfulabout hospitalization, K.I. said, "Century Link, 

### Century Link, Century Link, Malachi, Malachi, Malachi." K.I. said that she felt safe in the hospital, and when asked ifshe would feel safe ifshe left, K.I. said, "I

am suicidal."No. 69139-2-1-1/7

Between 7:30 and 7:40 p.m., staffcommenced and completed a drug screening of K.l.'s urine. At 7:43, K.I. complained of soreness. Staffoffered herTylenol, but she refused. According to Dr. Yeatermeyer, several hours afterthe initial PES evaluation, or around 8:30 p.m., K.I. became so agitated that she had to be secluded forthe safety ofherselfand the staff. Thirty minutes later, she 

### "pounded incessantly on the door of her room withgreatforce againstthe glass." Dr. Yeatermeyer said that "thisbehavior.
. . posed a dangerto herselfand required [her] to be put into four-point restraints." In her final report, Dr. Yeatermeyer stated that K.l.'s history "was limited because of: uncooperativeness." 

### At 9:00 p.m., staffgave K.I. some Tylenol. At 9:40 p.m., staff referred her

to CDMHP. 

### This evidentiary timeline demonstrates by a preponderance of the evidence thatthe delay between K.l.'s arrival and referral to the CDMHPwas 

### justified. See In re Pet, ofC.W., 105Wn. App. 718, 20 P.3d 1052(2001), affd, 147 Wn.2d 259, 53 P.3d 979 (2002) (rejecting several due process challenges 

### based on delays of over four hours and emphasizing difficulties created byNo. 69139-2-1-1/8
patients' combativeness, hostility, and mental states). The court did not err in 

### denying K.l.'s motion todismiss.5 K.I. also contends that the court erred in granting the 14-day commitment petition because the State failed to prove a recent overt act. Again, our review is de novo.6 There was no error. Involuntary commitment is authorized if, among otherthings, a person with
a mental disorder poses a substantial risk ofharm to others. RCW 71.05.240(3); 

### RCW71.05.020(25). The State must show "[a] substantial riskthat. . . physical 

### harm will be inflicted by a person upon another, as evidenced by behaviorwhich has caused such harm or which places another person or persons inreasonable 

### fear of sustaining such harm." RCW 71.05.020(25). To satisfy this requirement, the State must prove "a substantial risk of physical harm as evidencedby a recent overtact." In re Pet, of Harris, 98 Wn.2d 276, 284, 654 P.2d 109 (1982) 

### (emphasis added). The overt act "may be one which has caused harm or creates a reasonable apprehension ofdangerousness." Harris, 98 Wn.2d. at 284-85. K.I. contends the State presented no evidence of an overt act. She is
mistaken.

5Moreover, dismissal isgenerally not an appropriate remedyforviolations ofRCW 71.05.050. C.W., 147 Wn.2d at 282. Pismissal is only appropriate "inthe few cases where hospital staff or the CPMHP 'totally disregarded the requirements of the statute.'" C.W., 147 Wn.2d 283 (quoting Swanson, 115Wn.2d at 31). This is not one of those fewcases. 6We review conclusions of law de novo. State v. Johnson, 155 Wn. App. 270, 277, 229 P.3d 824 (2010). Whether evidence meets commitmentcriteria is also an issue wereview de novo. In re Pet, of Elmore. 162 Wn.2d 27, 37, 168 P.3d 1285 (2007). -8-No. 69139-2-1-1/9

The superior court's unchallenged findings establish that K.I. engaged in "volatile behavior requiring repeated and multiple seclusion and restraint periods," that she had been "spitting on staff," and that she became resistant and combative and had herfists clenched. The court's findings also incorporate the testimony of Pr. O'Neal, who testified that K.I. became resistant and combative when staffattempted to assist herto her room, and that she was yelling, 

### threatening, and spitting on staff. The court also incorporated Pr. Yeatermeyer's testimony by reference. She testified thatwhen K.I. became aggressive and got "inthe face of staff," they backed away from her. These facts, and the reasonable inferences that can be drawn therefrom, support the court's conclusion that K.I. created a reasonable apprehension ofdangerousness and
thus committed a recent overt act. Affirmed. 

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