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 MH2010-001739
)
)
)
)
)
)
)
__________________________________)
1 CA-MH 10-0061
DIVISION ONE
FILED: 06/21/2011
RUTH A. WILLINGHAM,
CLERK
BY: GH
DEPARTMENT C
MEMORANDUM DECISION
(Not for Publication Rule 28, Arizona Rules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
AFFIRMED
James J. Haas, Maricopa County Public Defender
Phoenix
By
Tennie B. Martin, Deputy County Public Defender
Attorneys for Appellant
William G. Montgomery, Maricopa County Attorney
By
Anne C. Longo, Deputy County Attorney
Bruce P. White, Deputy County Attorney
Attorneys for Appellee
Phoenix
O R O Z C O, Judge
¶1
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
¶2
Appellant
was
charged
with
trespass,
disorderly
conduct, and resisting arrest occurring in October 2009.
During
Rule
Balaji
11
Competency
determined
Appellant
Evaluations,
was
Doctors
incompetent
to
Toma
stand
and
trial.
During
these evaluations, Appellant made statements that referenced his
extensive history with mental health treatment.
determined
Appellant
suffered
from
The evaluators
schizoaffective
disorder,
bipolar type, as well as paranoid and grandiose delusions.
In
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
Evaluation.
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).
¶3
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
evaluation
process.”
At
the
second
interview,
Parker
gave
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.
2
Appellant told
Parker
that
he
had
already
answered
prefer not to answer them again.
opinion
on
statements
observations
made
by
and
Appellant
the
questions
and
would
Parker decided to base his
would
not
because
of
include
his
any
direct
decision
to
not
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
of events.
¶4
The
petition
also
included
Dr.
Badeaux’s
(Badeaux)
affidavit that found Appellant suffered from a mental disorder
that is the result of being persistently or acutely disabled.
Badeaux
determined
that
Appellant
had
significant
delusional
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.
concluded
that
Appellant
suffered
from
acutely
Badeaux
disabling
psychiatric symptoms and that even though he did not appear to be
an
acute
risk
to
harm
himself
or
others
at
this
time,
the
severity of his symptoms made involuntary inpatient treatment the
most appropriate alternative.
¶5
Based
on
these
affidavits
and
petition,
the
court
issued a detention order for treatment and notice pursuant to
A.R.S. § 36-535 (Supp. 2010).
At the hearing on the petition,
3
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
his Will.
The court also heard testimony from an employee of the
Maricopa County Restoration of Competency Program indicating that
Appellant
had
“fairly
strong
paranoia.”
Appellant
asked
the
court to dismiss the petition, without calling any witnesses,
arguing that there was insufficient evidence and that Parker’s
affidavit
was
“very,
very
vague
and
conclusory.”
The
court
denied Appellant’s request to dismiss the petition and found by
clear and convincing evidence that Appellant was persistently or
acutely disabled.
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.
¶6
Appellant filed a timely notice of appeal.
We have
jurisdiction pursuant to Article 6, Section 9, of the Arizona
Constitution, and A.R.S. § 12-120.21.A.1 (2003).
DISCUSSION
¶7
the
Appellant argues on appeal that Parker failed to follow
statutory
requirements
that
require
him
to
conduct
an
examination of Appellant and that insufficient evidence supported
4
the court’s finding.1
A review of whether the evidence presented
at
treatment
an
involuntary
hearing
meets
the
statutory
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).
¶8
must
Under A.R.S. § 36-533.B, the petition for treatment
be
accompanied
by
the
affidavits
of
two
physicians
who
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
defined
as
“an
past
history
and
of
exploration
the
of
the
circumstances
person’s
leading
up
to
psychiatric
the
person’s
presentation, a psychiatric exploration of the person’s present
mental condition and a complete physical examination.”
36-501.14
(Supp.
2010).
The
purpose
of
the
two
A.R.S. §
physicians’
independent examination is “to prevent professional mental health
1
Appellee
argues
Appellant
waived
the
issue
of
the
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
appeal.
5
evaluators,
whether
consciously
or
otherwise,
from
ratifying or rubber stamping one another’s findings.”
simply
In re MH
2008-000438, 220 Ariz. 277, 280, ¶ 16, 205 P.3d 1124, 1127 (App.
2009) (internal quotation marks and citations omitted).
are
few
cases
in
the
field
of
medicine
where
the
There
physical
examination is more important than in psychiatric evaluations.
Id.
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
physical
includes
but
a
component
observing
presentation,
and
of
the
can
a
psychiatric
patient’s
aid
in
examination,
demeanor
diagnosis.”
which
and
physical
(internal
quotation
marks omitted)).
¶9
These
cooperate
(2009).
statutes
with
the
do
not
require
examination.
See
that
A.R.S.
§§
the
patient
36-512,
-513
We have held that mental health offices are not required
to engage or confront a mentally ill patient or force a patient
to
be
physically
requirements.
284,
287
restrained
to
fulfill
the
statutory
In re MH-1140-6-93, 176 Ariz. 565, 568, 863 P.2d
(App.
1993)
(each
time
the
psychiatrist
tried
to
evaluate the patient, the patient would walk away and the court
held,
“[b]ased
upon
the
testimony
6
and
other
evidence
in
the
record, we cannot say that the trial court's finding of acute
disability was not supported by substantial evidence”); see MH
2009-002120,
225
Ariz.
at
289,
¶
15,
237
P.3d
at
642
(“particularly [] where . . . the record reflects a long history
of mental illness, and testimony of four witnesses establishes
current
behavior
supporting
the
diagnosis
of
an
acute
and
persistent disorder” (internal quotation marks omitted)).
¶10
Parker’s initial interview was not for the purpose of
creating an affidavit; instead, the second interview was for that
purpose.
During the second interview, Appellant stated that he
did not wish to answer Parker’s questions because he had already
addressed them.
questions.
at 642.
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.
Id. at
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
omitted)).
In
Parker’s
affidavit
he
describes
Appellant’s
affect, judgment, thoughts of paranoia, his mood, and that he
explained
the
advantages
Appellant.
In
this
cooperate,
Parker
of
case,
fulfilled
and
even
the
7
alternatives
though
to
treatment
Appellant
requirements
of
refused
the
of
to
statute.
Therefore, we find Parker’s affidavit was sufficient to satisfy
the statutory requirements for an examination.
¶11
Appellant
The
has
State
argues
moved.
that
Appellant
this
appeal
argues
that
is
moot
he
is
because
receiving
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
determine
court
whether
the
order
for
treatment
should
be
dismissed or modified.2
CONCLUSION
¶12
For the aforementioned reasons, we affirm the trial
court’s order for court ordered treatment.
___________________________________
PATRICIA A. OROZCO, Presiding Judge
CONCURRING:
____________________________________
DONN KESSLER, Judge
____________________________________
MICHAEL J. BROWN, Judge
2
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.
8
