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
IN RE MH2010-001739
1 CA-MH 10-0061
RUTH A. WILLINGHAM,
(Not for Publication Rule 28, Arizona Rules
of Civil Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. MH2010-001739
The Honorable Steven K. Holding, Commissioner
James J. Haas, Maricopa County Public Defender
Tennie B. Martin, Deputy County Public Defender
Attorneys for Appellant
William G. Montgomery, Maricopa County Attorney
Anne C. Longo, Deputy County Attorney
Bruce P. White, Deputy County Attorney
Attorneys for Appellee
O R O Z C O, Judge
Victor S. (Appellant) appeals from the trial court’s
order of commitment for involuntary mental health treatment.
For the reasons stated below, we affirm the order of commitment.
FACTS AND PROCEDURAL HISTORY
conduct, and resisting arrest occurring in October 2009.
these evaluations, Appellant made statements that referenced his
extensive history with mental health treatment.
bipolar type, as well as paranoid and grandiose delusions.
July 2010, with Appellant in the State’s custody, the State filed
a Petition for Evaluation pursuant to Arizona Revised Statutes
(A.R.S) section 36-523 (2009), a Petition for Notice pursuant to
A.R.S. § 36-541.01.D (2009), and an Application for Involuntary
See A.R.S. §§ 31-226.H (2002) and 36-520.A (2009).
Subsequently, Dr. Parker (Parker) filed a Petition for CourtOrdered Treatment according to A.R.S. § 36-533 (2009).
Before filing the petition, Parker approached Appellant
for an initial admission interview.
Parker for the initial interview.
Appellant cooperated with
Later, Parker was asked to
“generate an Affidavit opinion for [Appellant’s] court ordered
Appellant the option to allow the information from the first
interview to be used for the affidavit or to answer the questions
again for purposes of completing the affidavit.
prefer not to answer them again.
Parker decided to base his
participate or allow information to be shared for the affidavit.
Parker was able to determine that Appellant suffered from an
impaired emotional process, delusional themes within his thought
process, poor insight and judgment, and a distorted recollection
affidavit that found Appellant suffered from a mental disorder
that is the result of being persistently or acutely disabled.
thinking, believed he received messages from terrorists through
others, showed signs of mild distractibility, and that his long
and short term memory appeared to be generally intact.
psychiatric symptoms and that even though he did not appear to be
severity of his symptoms made involuntary inpatient treatment the
most appropriate alternative.
issued a detention order for treatment and notice pursuant to
A.R.S. § 36-535 (Supp. 2010).
At the hearing on the petition,
the parties stipulated to both Parker and Badeaux’s affidavits in
lieu of their testimony.
An employee with Correctional Health
Services testified that Appellant said he was going to starve
himself while in treatment and requested a pen and paper to write
The court also heard testimony from an employee of the
Maricopa County Restoration of Competency Program indicating that
court to dismiss the petition, without calling any witnesses,
arguing that there was insufficient evidence and that Parker’s
denied Appellant’s request to dismiss the petition and found by
clear and convincing evidence that Appellant was persistently or
The court ordered Appellant into involuntarily
treated for a period not to exceed a total of 365 days and the
inpatient program not to exceed 180 days.
Appellant filed a timely notice of appeal.
jurisdiction pursuant to Article 6, Section 9, of the Arizona
Constitution, and A.R.S. § 12-120.21.A.1 (2003).
Appellant argues on appeal that Parker failed to follow
examination of Appellant and that insufficient evidence supported
the court’s finding.1
A review of whether the evidence presented
requirements involves a question of law; therefore we review the
issue de novo.
In re MH 94-00592, 182 Ariz. 440, 443, 897 P.2d
742, 745 (App. 1995).
Under A.R.S. § 36-533.B, the petition for treatment
conducted the examinations, which shall describe in detail the
behavior which indicates that the person, as a result of a mental
disorder, is persistently or acutely disabled.
An examination is
presentation, a psychiatric exploration of the person’s present
mental condition and a complete physical examination.”
independent examination is “to prevent professional mental health
sufficiency of Parker’s affidavit on appeal because Appellant
did not raise the issue to the trial court. See In re MH 2007001264, 218 Ariz. 538, 540, ¶ 16, 189 P.3d 1111, 1113 (App.
2008); see also In re MH 2008-002393, 223 Ariz. 240, 244, ¶ 17,
221 P.3d 1054, 1058 (App. 2009) (a party cannot raise an issue
for the first time on appeal).
At trial, Appellant stated
Parker’s affidavit was “very, very vague and conclusory.”
Appellee argues this issue is not the same as whether Parker’s
affidavit meets the statutory requirements.
While we would
encourage Appellant’s counsel to be clearer when stating
objections, we do not believe Appellant has waived this issue on
ratifying or rubber stamping one another’s findings.”
In re MH
2008-000438, 220 Ariz. 277, 280, ¶ 16, 205 P.3d 1124, 1127 (App.
2009) (internal quotation marks and citations omitted).
examination is more important than in psychiatric evaluations.
The physicians must physically examine the person using
“both the art of examination with the science of psychiatry in
rendering a diagnosis and opinion.”
Id. at ¶ 17; see In re MH
2009-002120, 225 Ariz. 284, 287, ¶ 5, 237 P.3d 637, 640 (App.
2010) (“A complete physical examination is not the typical annual
We have held that mental health offices are not required
to engage or confront a mentally ill patient or force a patient
In re MH-1140-6-93, 176 Ariz. 565, 568, 863 P.2d
evaluate the patient, the patient would walk away and the court
record, we cannot say that the trial court's finding of acute
disability was not supported by substantial evidence”); see MH
(“particularly  where . . . the record reflects a long history
of mental illness, and testimony of four witnesses establishes
persistent disorder” (internal quotation marks omitted)).
Parker’s initial interview was not for the purpose of
creating an affidavit; instead, the second interview was for that
During the second interview, Appellant stated that he
did not wish to answer Parker’s questions because he had already
Parker could not force Appellant to answer his
See MH 2009-002120, 225 Ariz. at 289, ¶ 15, 237 P.3d
However, Parker was not required to have Appellant
answer his questions in order to conduct an examination.
289, ¶ 13, 237 P.3d 642 (This Court has never meant to “imply
that a patient can prevent the examinations and then claim the
petitioner failed to meet its burden.” (internal quotation marks
affect, judgment, thoughts of paranoia, his mood, and that he
Therefore, we find Parker’s affidavit was sufficient to satisfy
the statutory requirements for an examination.
treatment in Tucson, however, we are unable to determine whether
the treatment Appellant is receiving is pursuant to the court
ordered treatment plan.
We therefore leave to the trial court to
dismissed or modified.2
For the aforementioned reasons, we affirm the trial
court’s order for court ordered treatment.
PATRICIA A. OROZCO, Presiding Judge
DONN KESSLER, Judge
MICHAEL J. BROWN, Judge
Appellant requests that we strike Appellee’s answering
brief and sanction Appellee for alleging that the appeal is
moot. In our discretion, we deny this request.