In re MH2011-001173
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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 DIVISION ONE FILED: 02/02/2012 RUTH A. WILLINGHAM, CLERK BY: DLL IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE IN RE MH2011-001173 ) ) ) ) ) ) ) ) ) ) 1 CA-MH 11-0063 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. MH2011-001173 The Honorable Veronica Brame, Judge Pro Tem AFFIRMED William G. Montgomery, Maricopa County Attorney By Anne C. Longo, Deputy County Attorney and Geraldine L. Roll, Deputy County Attorney Attorneys for Appellee Phoenix Martin Lieberman, Maricopa County Legal Defender By Colin F. Stearns, Deputy Legal Defender Attorneys for Appellant Phoenix K E S S L E R, Judge ¶1 Appellant appeals from an order entered pursuant to Arizona Revised Statutes ( A.R.S. ) section 36-540(A)(2) (Supp. 2011) requiring he undergo court-ordered mental-health treatment. Appellant contends the trial court erred in finding that an evaluating physician s affidavit complied with A.R.S. § 36-533(B) (Supp. 2011) and that his counsel was ineffective. For the following reasons, we affirm. FACTUAL AND PROCEDURAL HISTORY ¶2 Appellantï ¾a young male in his twentiesï ¾was admitted to a hospital for a high fever and irrational behavior that mainly included incessant talking about his job. The hospital gave Appellant medication, re-hydrated him, and released him the same evening. paramedics brought ( Hospital ). few days. Appellant him to became Banner dehydrated Good again Samaritan and hospital Appellant voluntarily remained in Hospital for a At some point, Appellant asked to leave, but Hospital staff refused his request. ¶3 A few days after Appellant s admission to Hospital, Dr. Antonio Carr, a psychiatrist and deputy medical director, petitioned for a court-ordered mental-health believing Appellant was a danger to himself. that Appellant was psychotic, lacked evaluation, Dr. Carr claimed insight and capacity, placed himself in risky situations, was violent and combative, and had refused voluntary treatment. ¶4 Accompanying Dr. Carr s petition was an application for involuntary evaluation by Moira Kehayes, a behavioral health social worker at Hospital. Kehayes claimed Appellant exhibited 2 bizarre and dangerous behavior, including trying to jump out of his father s attempting car, to walking elope for from long the emergency refusing to take oral medication. her he jumped from the car distances to without shoes, department[,] and Appellant reportedly told see the higher power and admitted auditory hallucinations related to a higher power. She also physical stated that restraint threatening Appellant due statements to his toward required highly both agitated staff. Kehayes chemical and behaviors and further noted that: [Appellant] has been depressed and anxious intermittently for the last 8 months and was treated with Xanax by his PCP. In the last several days, he s been increasingly paranoid, speech is rapid, pressured, he was observed pacing, agitated, crying, thought content is positive for bizarre and nonsensical statements, paranoia, auditory hallucinations and heightened religiosity. His affect is exaggerated and mood is elevated. His thought process is tangential with flight of ideas. Kehayes believed persistently or Appellant acutely was a disabled. danger She to noted himself that and Appellant refused voluntary treatment, allegedly saying he is not crazy. The trial court ordered Appellant undergo a mental-health evaluation. ¶5 medical Three days later, Dr. Andrew Parker, also a deputy director, petitioned for 3 court-ordered treatment of Appellant. reviewed Dr. In his available Parker affidavit, Dr. Parker and had examined Appellant. a probable psychotic documentation diagnosed Appellant with affirmed he had disorder, not otherwise specified, and a mood disorder, also not otherwise specified. exhibited impaired In Dr. emotional Parker s process, opinion, thought, Appellant memory, and cognition, including lack of insight into his illness and poor judgment. Appellant reportedly believed he had been admitted to Hospital because danger to of sun overexposure, self-ideation, hallucinations. and previous he denied having hospitalizations, and Dr. Parker opined that Appellant was a danger to himself due to a severe mental disorder, was persistently or acutely disabled, treatment. and and was unable and unwilling to receive Dr. Parker also concluded that combined inpatient outpatient treatment was the only appropriate treatment option. ¶6 An affidavit by Dr. Paul Berkowitz, a board-certified psychiatrist, treatment. was attached to the petition for court-ordered Dr. Berkowitz noted that Appellant believed nothing was wrong with him and that he should not have been subject to a court-ordered having evaluation. hallucinations and He affirmed thoughts of that Appellant harming himself. denied Dr. Berkowitz reviewed Appellant s physical examination notes and did not find any medical cause 4 for Appellant s psychiatric condition. His conclusions about the condition of Appellant s emotional process, thought, cognition, and memory were similar to Dr. Parker s conclusions. He also opined Appellant needed inpatient treatment because he was in a psychotic decompensated state. ¶7 In lieu of testimony, Hospital submitted the affidavits of Doctors Parker and Berkowitz and a seventy-twohour medication affidavit. Kehayes assistant, and testified Jose as Hernandez, witnesses a certified nursing for Hospital. Kehayes testified she observed Appellant for about twenty-five minutes and saw that he was restless and did not cease talking about exited various his topics. father s Appellant vehicle before reportedly admitted he it stopped moving. Kehayes testified that Appellant did not make overt suicidal statements and said he did not intend to harm himself when he exited his father s moving vehicle. ¶8 Hernandez testified he was Appellant s one-to-one sitter for two days, and Appellant needed a sitter because he was trying to leave Hospital. Appellant allegedly insisted that he was dehydrated yesterday, but I m okay today. I m -- I m ready to go home and I m going to go home. I m going to call my wife so she can come and pick me up. I m going to call my dad so he can come and pick me up. Appellant also tried about twenty times to call his father asking to be picked up. 5 Over the two days Hernandez observed Appellant, Appellant incessantly talked and walked around his room with a Bible in his hands at all times, but Hernandez said he could hold Appellant. During that time, to a conversation with Hernandez s observation, Appellant did not try to hurt himself. ¶9 Appellant s father testified that Appellant drove his employer s vehicle, but when it ran out of gasoline, Appellant abandoned the vehicle and walked to work. Appellant s father picked up Appellant and drove him to his jobsite to get gasoline for the vehicle. Appellant objected to returning to the vehicle, stating I have to go to work, then exited the vehicle as it came to a stop and was barely moving. Appellant s father testified that Appellant had work boots on and was not walking without shoes. He also testified Appellant never tried to kill himself and that Appellant was taking medications. ¶10 Appellant testified that the car he exited from was not moving and he had work boots on when he was walking to work. He also said he was not a danger to himself, he never threatened to kill himself, and was taking medications while at Hospital and would continue to do so even if not court-ordered. ¶11 On the Hospital s motion, the trial court dismissed the allegation of danger to self. showed by clear and convincing The court found Hospital evidence that Appellant was suffering from a mental disorder, was persistently or acutely 6 disabled, was in need of treatment, and was unwilling and unable to accept voluntary treatment. The court found no other available or appropriate alternative to court-ordered treatment; thus, it ordered Appellant undergo involuntary treatment for up to 365 days, with no more than 180 days of inpatient treatment. ¶12 Appellant timely appealed. This Court has jurisdiction pursuant to A.R.S. § 36-546.01 (2009) and A.R.S. § 12-2101(A)(1) (Supp. 2011). DISCUSSION ¶13 be Appellant contends that the order for treatment must vacated physical because Dr. examination of Parker failed Appellant or to conduct review or a complete augment the results of Appellant s physical examination conducted pursuant to A.R.S. § 36-533(B). Appellee argues Appellant either waived these arguments by failing to raise them in the trial court or invited the error by stipulating to admission of the affidavits in lieu of testimony. Parker s affidavit Appellee alternatively argues that Dr. was statutorily sufficient. Appellant aditionally argues that the order for involuntary treatment must be vacated because he received ineffective assistance of counsel below. ¶14 We review the application and interpretation of statutes as well as constitutional claims de novo because they are questions of law. In re MH 2007-001275, 219 Ariz. 216, 7 219, ¶ 9, 196 P.3d 819, 822 (App. 2008), superseded by statute on other grounds by A.R.S. §§ 36-537 (Supp. 2011), -539 (Supp. 2011). The statutory requirements for civil commitment must be strictly construed because of the serious deprivation of liberty that may result. In re MH2010-002637, 228 Ariz. 74, 82, ¶ 31, 263 P.3d 82, 90 (App. 2011) (petition for review filed Oct. 26, 2011). A lack of strict compliance renders the proceedings void. Pinal Cnty. Mental Health No. MH-201000029, 225 Ariz. 500, 501, ¶ 5, 240 P.3d 1262, 1263 (App. 2010) (citation and internal quotation marks omitted). We view the facts in a light most favorable to upholding the court's ruling and will not reverse an order for involuntary treatment unless it is clearly erroneous and unsupported by any credible evidence. In re MH2009 002120, 225 Ariz. 284, 290, ¶ 17, 237 P.3d 637, 643 (App. 2010) (citation omitted). ¶15 We need not address the waiver, invited error, and ineffective assistance of counsel issues because we hold that Dr. Parker s Section affidavit 35-533(B) complied provides, in with A.R.S. pertinent § 36-533(B). part, that the affidavits supporting the petition for court-ordered treatment shall include the results of the complete physical examination of the patient if this is relevant to the evaluation. The complete physical examination may be performed by the evaluating physician, by or under the 8 supervision of a physician who is licensed pursuant to title 32, chapter 13 or 17 or by a registered nurse practitioner who is licensed pursuant to title 32, chapter 15. The examination must be consistent with existing standards of care and the evaluating physician must review or augment the results of the examination. The examination may include firsthand observation or remote observation by interactive audiovisual media. (Emphasis defined added) as an (footnotes exploration history and of the omitted). of the The person s examination past is psychiatric circumstances leading up to the person s presentation, a psychiatric exploration of the person s present mental condition and a complete physical examination. A.R.S. § 36-501(14) (Supp. 2011). A complete examination is not the typical but annual physical a component of a psychiatric examination, which includes observing the patient s demeanor and physical presentation, and can aid in diagnosis. In re MH 2008-000438, 220 Ariz. 277, 280 n.3, ¶ 14, 205 P.3d 1124, 1127 n.3 (App. 2009). ¶16 Thus, as provided by § 36-533(B), if the evaluating physician does not conduct the physical examination, he or she must review or augment the results of the examination. The results of the physical examination must be included in the affidavits of the two physicians who conducted the court-ordered evaluation only if the results are relevant to the evaluation. Id. 9 ¶17 Nothing in the statute requires the physician to state in the affidavit that he or she reviewed or augmented a prior examination considered done the conclusions. by another examination person not or that relevant the to physician his or her Accordingly, Dr. Parker s affidavit is statutorily sufficient. ¶18 the Even if the statute required the physician to state in affidavit that he or she conducted an examination or reviewed the results of an examination conducted by another, contrary to Appellant s argument, Dr. Parker s affidavit meets the requirements of § 36-533(B). Parker s affidavit never Appellant contends that Dr. expressly stated he conducted, or augmented any medical examination. had reviewed, Construing the evidence most favorably to affirm the trial court s decision, Dr. Parker circumstances stated of he received Appellant s information admission to about Hospital the and the observations of Hospital s staff after Appellant s admission. Although Dr. Parker did not specifically mention that he conducted or reviewed a physical examination, he did state he examined [Appellant] and studied information about Appellant. Although the affidavit is not the model of clarity, we construe it as meaning that Dr. Parker studied the results of prior physical examinations of Appellant found in the Hospital record. The fact that Dr. Berkowitz s affidavit stated more precisely 10 that he reviewed the physical examination performed at the time of admission does not make Dr. Parker s more general statement insufficient to meet the requirements of § 36-533(B). ¶19 While we conclude that Dr. Parker s affidavit could have been more explicit on his review of any prior physician examination, we affirm the trial court s order involuntary treatment. /s/ DONN KESSLER, Judge CONCURRING: /s/ DIANE M. JOHNSEN, Presiding Judge /s/ LAWRENCE F. WINTHROP, Chief Judge 11 requiring
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