Appeal from Superior Court, King (95-2-25515-9) County; Honorable Dale Ramerman, Judge. Judgment Date: 10-2-95.
Sanders, J., Durham, C.j., Smith, Madsen (result), Alexander, J.j., Dolliver, J. (concurring separately) Guy, Talmadge, Johnson, J.j., concurring.
SANDERS, J.--The question presented is whether a child may be involuntarily incarcerated in a mental hospital by her parents and hospital staff without judicial oversight. We accepted the Court of Appeals' certification of the child's appeal from the trial court's denial of her petition for writ of habeas corpus. We reverse and order her release from incarceration, or the prospect thereof.
Two primary issues are presented: whether 1995 amendments to the mental health services for minors act, RCW 71.34, also known as the "Becca bill,"*fn1 allow involuntary incarceration of minors 13 or over in mental hospitals against their will without judicial oversight, and, if so, whether these provisions are constitutional. Our resolution of the first avoids the second. Additionally, we hold this child has suffered an unconstitutional deprivation of her liberty including her right to access counsel and deny cross-motions directed to the style and content of appellate briefs.
The events at issue followed several years of difficulties between 15-year-old T.B. and her parents. It is claimed T.B., while exceptionally bright, periodically experienced temper tantrums and sibling fighting. When T.B. was 12 her family submitted to therapy; however, T.B. was resistant causing discontinuance of the therapy after six months. Subsequently, T.B. violently fought with her sister and other family members although never to the point of serious injury. Once again the family enrolled in therapy; however, again the child resisted. In 1994, following an argument with T.B., her mother called the county-designated mental health professional (CDMHP) to have T.B. involuntarily committed to a mental hospital;
however, the CDMHP found T.B. was ineligible for commitment because she was neither a threat to herself or others as a result of a mental disorder.
Her performance in school deteriorated as did her behavior. Her parents took away her computer because she often would remain logged on all night, after which she ran away from home and stayed at a friend's house, and then at a youth shelter. Her parents reacted by filing an at-risk youth petition pursuant to RCW 13.32A.191. After failing to appear at a court hearing T.B. was arrested and placed in detention.
T.B. was seen by a psychiatrist, Carl Huffine, M.D.; however, she was uncooperative and left after about 10 minutes. Dr. Huffine concluded T.B. probably did not meet the requirements for involuntary commitment but reported she suffered from reactive attachment disorder, conduct disorder, bipolar II disorder manic type, and attention deficit disorder.*fn2 T.B. complains this diagnosis is invalid, unreliable, indefinite, and does not, in any event, indicate dangerousness. On September 26, the day before T.B. was released from detention, her parents approached
Fairfax Hospital, a private mental hospital, and applied
for T.B.'s admission. Based on Dr. Huffine's evaluation, a chronology from T.B.'s mother, and a social worker's report, the hospital admitted T.B. in absentia.
At midday on September 27 T.B. was involuntarily transported to Fairfax by private ambulance, strapped to a gurney in five-point restraints, because police had refused to transport the child. Upon arrival Fairfax continued to keep T.B. in restraints. She was physically separated from her belongings, including her written request for release. Notwithstanding, she specifically informed Fairfax staff that she had a paper in her belongings she wanted to give to them (demanding her release), although she was prevented from physically delivering it.
Fairfax personnel refused repeated attempts by T.B.'s attorneys to contact T.B. by telephone. Not until 9:20 p.m. on September 27 was T.B. allowed to call her attorney after which she presented a new written demand for discharge to Fairfax staff. Clerk's Papers at 14. However, Fairfax refused to either release T.B. or provide for a judicial hearing to authorize her continued commitment.
An application for a writ of habeas corpus was filed on the morning of September 29 and a hearing was held that afternoon. The court denied release concluding T.B.'s parents had the legal right to place her at Fairfax Hospital, that T.B.'s demand for release did not trigger any duty on the part of the parents to file anything with the court, and procedures utilized met the requirements of due process.
Although Fairfax successfully resisted T.B.'s habeas corpus petition through submission of some of her medical records to the trial court, Fairfax staff refused to allow T.B.'s lawyer to review her complete hospital records. Subsequently, T.B.'s lawyers sought and obtained an order from a commissioner of the Court of Appeals forcing Fairfax to grant her attorneys access to those records pursuant to RCW 71.34.200(4).*fn3
Fairfax continued to detain T.B. without hearing (aside from this habeas corpus proceeding) relying upon RCW 71.34.030.*fn4 Neither the parents nor the hospital filed any
further petition or application with the court to allow, order, or justify continued confinement.
On October 18, 1995, T.B. escaped from Fairfax Hospital. However the case is not moot because she still faces the possibility of reincarceration and therefore the court can provide appellant effective relief. In re LaBelle, 107 Wash. 2d 196, 200, 728 P.2d 138 (1986). Moreover the claim represents a question of public nature which is likely to recur and for which an authoritative determination is desirable. In re Harris, 98 Wash. 2d 276, 278, 654 P.2d 109 (1982); LaBelle, 107 Wash. 2d at 200.
First we must properly apply RCW 71.34, the "Becca bill" amendments, to these facts.
The statute as amended defines the process for initial involuntary detention, as well as subsequent involuntary commitment. Under pre-1995 law a minor 13 or over could be admitted voluntarily with his or her own consent; however, if against his or her wishes, such minor could be admitted only upon an application for initial detention filed in superior court by the CDMHP. RCW 71.34.050(1), (2).*fn5 Before the amendments, parents lacked statutory
authority to admit minors 13 or over to a mental health facility against the child's will.
Once "voluntarily" admitted, whether upon the minor's initiative or by a parent with the minor's consent, the minor 13 or older could request discharge at any time. RCW 71.34.030(3)(b). Upon such request, the statute mandated either the minor be discharged within 24 hours or the CDMHP file a petition in superior court for "initial detention" to justify a continued hold for further evaluation. RCW 71.34.030(3)(d); RCW 71.34.050(2); Washington Rules of Court, Superior Court Mental Proceedings Rule (hereinafter MPR) 6.1A. This "initial detention" was a 72-hour evaluation period which began when a minor 13 or over was first held at the facility against her will. In the case of "voluntary" admission, "initial detention" began upon her request to leave, unlike "involuntary" admission which began at the time of initial admission. RCW 71.34.060(5) (see infra note 6); RCW 71.34.020(23) (see infra p. 15).
In all such cases the minor held against her will during the initial 72-hour detention was statutorily guaranteed several express rights: to receive, within 12 hours, a copy of the petition for initial detention and a statement of rights; to receive a court-appointed attorney; to openly communicate with the outside, including with an attorney; and for judicial oversight of the petition for initial detention.
RCW 71.34.050(2), (3); RCW 71.34.060.*fn6 As a precondition to filing a petition for initial detention the CDMHP was required to conclude the minor posed a likelihood of serious harm to self, others, or property, or was gravely disabled as a result of a mental disorder. MPR 6.1A(c); RCW 71.34.050(1).
The statutory changes relevant to this appeal are largely contained in RCW 71.34.030. That statute as amended permits the minor to be "voluntarily admitted by application of the parent," RCW 71.34.030(2)(a). However, the amended statute retained the original statutory right that "any minor thirteen years or older voluntarily admitted may give notice of intent to leave at any
time." RCW 71.34.030(3)(b). This section, as amended in 1995, provides:
(d) The professional person in charge of the evaluation and treatment facility shall discharge the minor, thirteen years or older, from the facility within twenty-four hours after receipt of the minor's notice of intent to leave, unless the county-designated mental health professional or a parent or legal guardian files a petition or an application for initial detention within the time prescribed by this chapter.
(Underlined material added by 1995 amendment.)
T.B. claims delivery of her notice of intent to leave the facility invoked her statutory right to discharge within 24 hours unless the CDMHP or her parents then filed a petition or application with the superior court for initial detention. The hospital and parents argue "application" in RCW 71.34.030(3)(d) relates back to the "application" a parent may submit to the hospital for initial admission of the child to the facility but does not require "filing" a new application to retain the child in custody in response to a notice of intent to leave. (Emphasis added.) We disagree. The "application" referenced in .030(3)(d) is "an application for initial detention," not one to "be voluntarily admitted by application of the parent." (Emphasis added.) Detention and admission are not necessarily the same but are distinct terms of art as used in the statute.
"Start of initial detention" is statutorily defined:
"Start of initial detention" means the time of arrival of the minor at the first evaluation and treatment facility offering inpatient treatment if the minor is being involuntarily detained at the time. With regard to voluntary patients, "start of initial detention" means the time at which the ...