In re MH 2009-001014
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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ) ) ) ) ) ) ) ) ) ) ) ) IN RE MH 2009-001014 No. DIVISION ONE FILED: 02/25/2010 PHILIP G. URRY,CLERK BY: GH 1 CA-MH 09-0043 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. MH 2009-001014 The Honorable Karen L. O Connor, Judge AFFIRMED Andrew P. Thomas, Maricopa County Attorney By Anne C. Longo, Deputy County Attorney Bruce P. White, Deputy County Attorney Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Tennie B. Martin, Deputy Public Defender Attorneys for Appellant Phoenix B A R K E R, Judge ¶1 for Appellant seeks dismissal of an order of commitment involuntary mental health treatment. He argues he was denied due process of law because the trial court allowed an evaluating doctor to appear telephonically. We disagree and affirm the order. Facts and Procedural History ¶2 Appellant was detained on April 21, 2009, pursuant to an application for involuntary evaluation. accompanied by a petition for Appellant filed by Dr. Ann Negri. The application was court-ordered evaluation of Dr. Negri found reasonable cause to believe Appellant was persistently or acutely disabled and in need of psychiatric treatment for bipolar disorder. The trial court issued a detention order for evaluation and notice on April 22, 2009. ¶3 During Dr. Kamala Premkumar s evaluation of Appellant, Appellant demonstrated impaired insight and judgment, had pressured and verbose speech, and appeared to be paranoid about being investigated Premkumar concluded by the Appellant Maricopa had County bipolar Sheriff. mood disorder psychosis and was persistently or acutely disabled. Dr. with Dr. Sead Hadziahmetovic also evaluated Appellant and observed Appellant had an elevated and expansive mood, disorganized and delusional thinking, and poor insight and judgment. During the interview with Dr. Hadziahmetovic, Appellant, in a grandiose and paranoid fashion, stated he was an expert in the field of psychiatry and found mistakes in Freud s work, stated he was an expert 2 guitarist, revealed his brother stole his fiancé, and described his apartment complex as stealing his money and endangering his life. Dr. Hadziahmetovic concluded Appellant was acutely or persistently disabled, had bipolar disorder, and his most recent episode was Premkumar manic filed with a psychosis. petition for On April court-ordered 28, 2009, Dr. treatment of Appellant requesting combined inpatient and outpatient treatment because Appellant was persistently or acutely disabled as a result of a mental disorder. ¶4 A hearing was held on the petition for court-ordered treatment on May 4, 2009. The two acquaintance witnesses and Dr. Premkumar testified in open court. and judge believed Dr. Hadziahmetovic Although the attorneys would testify in open court as well, Dr. Hadziahmetovic called the trial court during the testimony of another because he was on vacation. witness and appeared telephonically The following exchange took place: UNIDENTIFIED SPEAKER: You didn t get email last week from Sharon (phonetic)? the [PETITIONER S ATTORNEY]: Oh. THE COURT: Okay. Proceed. UNIDENTIFIED SPEAKER: Did we hang up on him? [PETITIONER S ATTORNEY]: Probably. Doctor Hadziahmetovic. That is THE COURT: How do you want to handle this? 3 [PETITIONER S probably -- ATTORNEY]: I think we would UNIDENTIFIED SPEAKER: Is there a speaker? UNIDENTIFIED SPEAKER: Yes. [PETITIONER S ATTORNEY]: Dr. Hadziahmetovic? DR. HADZIAHMETOVIC: Yes. [PETITIONER S ATTORNEY]: You re on the speakerphone at the bench. Just hang on for a second. I d like to -- where are you today, Dr. Hadziahmetovic? DR. HADZIAHMETOVIC: Where am I? [PETITIONER S ATTORNEY]: You re on vacation, aren t you? DR. HADZIAHMETOVIC: I am on vacation. on my way to pick up my children school. I am from THE COURT: Okay. How do you want to proceed with the doctor on the phone? Do you want to -- can we call this witness out of order? [PETITIONER S ATTORNEY]: Yes. THE COURT: Okay. We ll have you step down. And doctor, this is Judge Karen O Connor. If I could have you raise your right hand and be sworn. DR. HADZIAHMETOVIC: Okay. ¶5 After Appellant s attorney objected to him appearing telephonically and explained she could not produce any authority in support of her objection because she did not know telephonic appearance would be an issue at the hearing, the trial court 4 overruled the Hadziahmetovic. objection and allowed examination of Dr. Dr. Hadziahmetovic told the court he remembered Appellant and testified consistently with his affidavit, which accompanied the petition for court-ordered treatment. ¶6 At the conclusion of the hearing, the trial court found clear and convincing evidence that Appellant was suffering from a mental disorder that made him persistently or acutely disabled. The court ordered combined inpatient and outpatient treatment not to exceed 365 days, with the inpatient treatment not to exceed 180 days. Appellant filed a timely notice of expedited appeal. ¶7 We have jurisdiction pursuant to Arizona Revised Statutes ( A.R.S. ) sections 36-546.01 (2009), 12-120.21(A)(1) (2003), and -2101(K) (2003). Discussion ¶8 During a hearing on a petition for court-ordered treatment, the petitioner must present testimony of two or more witnesses acquainted with the patient at the time of the alleged mental disorder . . . and testimony of the two physicians who performed examinations A.R.S. 36-539(B) § in (Supp. the evaluation 2009). Similar of to the patient. the right to confrontation under the Sixth Amendment to the United States Constitution, patients have a procedural due process right to confront witnesses at hearings for involuntary commitment. 5 In re MH 2004-001987, 211 Ariz. 255, 259-60, ¶¶ 20-21, 120 P.3d 210, 214-15 (App. 2005). ¶9 Witnesses may appear telephonically when their testimony is reliable and promotes an important public policy. Id. at 260, ¶ 21, 120 P.3d at 215. Providing individuals with needed mental health care on a timely basis is an important public policy. Id. at ¶ 22. Telephonic testimony furthers this public policy when a showing of true necessity, based on unavailability of the witness is established. In re MH 2008- 000867, 222 Ariz. 287, 291-92, ¶¶ 18, 23, 213 P.3d 1014, 1018-19 (App. 2009). There is no hard-and-fast rule regarding necessity; this determination must be made on a case-by-case basis. lack Id. at 292, ¶ 24, 213 P.3d at 1019 (holding there was a of necessity telephonically physical when because presence was the not an evaluating petitioner needed); see doctor assumed also the In re appeared doctor s MH 2004- 001987, 211 Ariz. at 260, ¶ 24, 120 P.3d at 215 (holding trial court properly found necessity for telephonic testimony by an acquaintance witness living in Alabama because of the need for an expedited hearing in Arizona ). ¶10 The necessity of telephonic testimony is a mixed question of law and fact; we defer to the trial court s factual findings but review questions of law de novo. In re MH 2004- 001987, 211 Ariz. at 260, ¶ 24, 120 P.3d at 215. 6 We will set aside the factual findings if they are not supported by credible evidence. In re Mental Health Case No. MH 94-00592, 182 Ariz. 440, 443, 897 P.2d 742, 745 (App. 1995). ¶11 In this case, the trial court determined Dr. Hadziahmetovic was unavailable to appear in person because he was on vacation and on [his] way to pick up [his] children from school. It appears from the record that Dr. Hadziahmetovich attempted to give the court notice that he could not appear in person prior to the hearing. does not identify location, needed. P.3d Dr. express Although the record Hadziahmetovic s factual findings precise of necessity physical are not In re MH 2004-001987, 211 Ariz. at 260-61, ¶ 24, 120 at 215-16. Appellant s attorney could have further questioned Dr. Hadziahmetovic regarding his vacation schedule but failed to do so. We defer to the trial court s determination that telephonic testimony was necessary because trial courts are in the best position to determine the impact of travel on a witness particular case. ¶12 Dr. and the entire proceeding in each Id. Hadziahmetovic s testimony was reliable. Petitioner s counsel identified him as Dr. Hadziahmetovic upon hearing his voice, and Appellant did not dispute his identity during the hearing. Dr. Hadziahmetovic consistently with his affidavit. 7 also testified Accordingly, the trial court did not deny Appellant due process of law by allowing the telephonic appearance. Conclusion ¶13 For the above-stated reasons, we affirm the trial court s order committing Appellant to involuntary mental health treatment. /s/ __________________________________ DANIEL A. BARKER, Judge CONCURRING: /s/ ____________________________________ PATRICIA K. NORRIS, Presiding Judge /s/ ___________________________________ PETER B. SWANN, Judge 8
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