In re MH 2009-001172

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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 2009-001172 DIVISION ONE FILED: 02-25-2010 PHILIP G. URRY,CLERK BY: DN 1 CA-MH 09-0045 DEPARTMENT D MEMORANDUM DECISION Not for Publication (Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court of Maricopa County Cause No. MH 2009-001172 The Honorable Patricia Arnold, Judge Pro Tempore AFFIRMED Andrew P. Thomas, Maricopa County Attorney By Ann C. Longo, Deputy County Attorney and Roberto Pulver, Deputy County Attorney Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Kathryn L. Petroff, Deputy Public Defender Attorneys for Appellant Phoenix T H O M P S O N, Judge ¶1 Appellant appeals the trial court's order committing her to involuntary mental health treatment. For the following reasons, we affirm. ¶2 A staff member at an urgent psychiatric care facility completed an application for involuntary evaluation and an application for emergency admission for evaluation of appellant, who was appellant then an outpatient. was a danger to The staff herself and member a alleged danger to that others. Appellant allegedly kicked and scratched staff members, threw objects at them, and spit on them. In addition, the staff member accused appellant of banging her head against a wall, kicking a wall, refusing to go to the hospital, and threatening to "bash staffs [sic] face." ¶3 for After evaluations by two doctors who signed petitions court-ordered evaluation and treatment, the trial court issued a detention order for evaluation and notice, stating that appellant appeared to be "mentally disordered," was not willing to undergo voluntary evaluation, and was likely a danger to herself, a danger to others, persistently or acutely disabled, or gravely disabled. The trial court then issued a detention order for treatment and notice. ¶4 Following a hearing, the trial court found, by clear and convincing evidence, that appellant had a mental disorder, making her a danger to herself, a danger to others, persistently 2 or acutely disabled, and gravely disabled, and that appellant was in need of psychiatric treatment and unwilling or unable to accept voluntary treatment. The trial court ordered 365 days of mandatory a treatment, inpatient detention. ¶5 with minimum of twenty-five days' Appellant appealed. Appellant argues on appeal that the trial court erred by ordering appellant into involuntary treatment because only one of the two required examination of appellant. evaluating doctors completed his Appellant admittedly did not raise this issue below and, in fact, stipulated to the admission of the affidavit of the doctor in question. According to appellee, because appellant's counsel stipulated to the admission of the affidavit, counsel must have had the opportunity to review this affidavit and found it to be legally sufficient. We agree with appellee that appellant has waived this issue on appeal by failing to raise it below. See Appeal in Pima County Mental Health Serv. Action No. MH-1140-6-93, 176 Ariz. 565, 568, 863 P.2d 284, 287 (App. 1993) (citations omitted) (arguments not raised below are waived and court can decline to consider them); In re MH 2007-001264, 218 Ariz. 538, 540, ¶ 16, 189 P.3d 1111, 1113 (App. 2008) (citation omitted) (arguments not raised below are waived on appeal). we decline to consider this issue on appeal. 3 Therefore, ¶6 Appellant next argues that her mental retardation precluded findings that she was a danger to herself, a danger to others, persistently and acutely disabled, and gravely disabled. We will affirm the trial court's decision to order involuntary treatment if it is supported by substantial evidence, MH-1140-693, 176 Ariz. at 566, 863 P.2d at 285, including expert medical opinions expressed to a reasonable degree of certainty or probability to prove the elements of involuntary treatment, In re MH 2007-001236, 220 Ariz. 160, 169, ¶ 29, 204 P.3d 418, 427 (App. 2008). ¶7 Appellant argued below that, because she was mentally retarded, she could not legally be found to be a danger to herself, a danger to others, persistently or acutely disabled, or gravely disabled because these require that her behavior be the "product" of a mental disorder. See Ariz. Rev. Stat. (A.R.S.) § 36-501(5), (6), (16), (33) (2009) (defining danger to others, danger to self, gravely disabled, and persistently or acutely disabled). A "mental disorder" is "a substantial disorder of the person's emotional processes, thought, cognition or memory" and is distinguished from mental retardation "unless, in addition . . ., the person has a mental disorder." A.R.S. § 36-501(26)(a). ¶8 According to appellant, the medical expert opinions were not expressed to a reasonable degree of medical certainty. 4 One doctor diagnosed appellant as suffering from impulse control disorder, an unspecified mood disorder, and mild mental retardation. He found that, as a result, appellant was a danger to a herself, disabled, and danger to gravely others, disabled. persistently Another or doctor acutely diagnosed appellant as having obsessive compulsive disorder and moderate mental retardation. He concluded that, as a result of these disorders, was appellant a danger to herself, a danger to others, persistently or acutely disabled, and gravely disabled. Therefore, two doctors diagnosed appellant as being mentally retarded and having a mental disorder that caused her to be a danger to herself, a danger to others, persistently or acutely disabled, and gravely disabled. ¶9 and The doctors' affidavits described appellant's history, one judgment" testified could retardation. not that be appellant's solely "impaired attributable to insight her and mental This doctor also opined that "mentally retarded people often have behavioral problems as well as issues with their mood and thought [sic]" and that they often have "coexisting . . . morbid problems." and mental disorders can co-exist. Therefore, mental retardation The other doctor testified that the symptoms of impulse control can manifest independently from those of mental retardation. 5 ¶10 The testimony of staff members who worked at the group home where appellant lived also described her history of assaulting others, harming herself, and inability to take care of herself. We find that the medical expert testimony and affidavits as well as the testimony of other witnesses about appellant's behavior constituted substantial evidence in support of the trial court's finding that, as a result of a medical disorder, appellant was a danger to herself, a danger to others, persistently or acutely disabled, and gravely disabled. ¶11 For the foregoing reasons, we affirm. ___/s/________________ JON W. THOMPSON, Judge CONCURRING: ________/s/________________________ PATRICIA A. OROZCO, Presiding Judge _______/s/_________________________ DIANE M. JOHNSEN, Judge 6

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