IN RE MH2012-000774

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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 MH2012-000774 ________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 1/3/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-MH 12-0041 DEPARTMENT A MEMORANDUM DECISION Not for Publication (Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. MH2012-000774 The Honorable Lori Horn Bustamante, Commissioner AFFIRMED William G. Montgomery, Maricopa County Attorney By Anne C. Longo, Deputy County Attorney Bruce P. White, Deputy County Attorney Attorneys for Appellee Phoenix Bruce Peterson, Legal Advocate By Colin F. Stearns, Deputy Legal Advocate Attorneys for Appellant Phoenix G E M M I L L, Judge ¶1 Appellant appeals the superior court s order for treatment entered after the court found that Appellant was, as a result of a mental disorder, persistently or acutely disabled. For the reasons that follow, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 On March 8, 2012, a petition for court-ordered evaluation was filed by Diane Papke, M.D., alleging there was reasonable cause to believe Appellant had a mental disorder that rendered him a danger to others, persistently disabled, and in need of treatment. or acutely The petition stated that Appellant was unwilling to undergo voluntary evaluation and did not recognize his need for treatment. The superior court issued an order on March 9, 2012, detaining Appellant for evaluation. ¶3 for On March 26, 2012, Yaniv Simon, M.D., filed a Petition Court-Ordered Treatment (hereinafter referred to as the Petition ) contending that Appellant was a danger to others and was persistently or acutely disabled. The Petition was based on two affidavits submitted by Dr. Simon and Andrew Parker, D.O., which were attached to the Petition. Appellant had a severe mental The affidavits stated that disorder, the disorder substantially impaired Appellant s capacity to make an informed decision regarding treatment, the disorder rendered Appellant incapable of understanding and expressing an understanding of the advantages and disadvantages of treatment and of the alternatives to treatment, and the treatment s and alternatives 2 advantages and disadvantages were explained to Appellant. Petition requested inpatient and the superior outpatient court treatment in to order accord The combined with Arizona Revised Statutes ( A.R.S. ) section 36-540(A)(2) (Supp. 2012). 1 ¶4 On April 3, 2012, the superior court held a hearing regarding the Petition. Although the parties stipulated to Dr. Parker s affidavit in lieu of his in-court testimony, Appellant did not stipulate to Dr. Simon s affidavit and argued that it was insufficient. At the hearing, the court heard testimony from Dr. Simon and two witnesses in contact with Appellant, Eric Hayden and Sahar Mohammed. During the hearing, the court granted Appellant s motion to dismiss the allegation of danger to others. ¶5 After considering the arguments, the testimony, and the court file, including the doctors affidavits, the superior court found by clear and convincing evidence that Appellant was, as a result of his mental disorder, persistently or acutely disabled, in need of treatment, and either unwilling or unable to accept voluntary treatment. The court-ordered Appellant to undergo combined inpatient/outpatient treatment for a period of time not to exceed 365 days with 1 the period of inpatient Unless otherwise specified, we cite the current versions of statutes when no material revisions have been enacted since the events in question. 3 treatment not to exceed 180 days. ¶6 Appellant timely appeals, and we have jurisdiction under A.R.S. §§ 36-546.01 (2009) and 12-2101(A)(1) (Supp. 2012). ANALYSIS ¶7 Appellant argues insufficient evidence persistently or the superior supported acutely the disabled. court erred that finding because he Specifically, was Appellant contends the insufficiency resulted from Dr. Simon s failure to testify in court that Appellant was unable to make an informed decision regarding treatment. Additionally, Appellant argues Dr. Simon s affidavit was not admitted during the hearing and thus may not be considered as evidence in support of the superior court s finding. ¶8 finds A court may order involuntary treatment only if it by clear necessary. and convincing evidence that treatment is A.R.S. § 36 540(A); In re MH 2007 001236, 220 Ariz. 160, 165, ¶ 15, 204 P.3d 418, 423 (App. 2008). We will affirm a court's order for involuntary mental health treatment if it is supported by substantial evidence. In re MH 2008 001188, 221 Ariz. 177, 179, ¶ 14, 211 P.3d 1161, 1163 (App. 2009) (citation omitted). To the extent Appellant raises issues involving statutory interpretation and application, our review is de novo. In re MH 2006 000749, 214 Ariz. 318, 321, ¶ 13, 152 P.3d 1201, 1204 (App. 2007). Court-ordered 4 involuntary treatment constitutes a significant deprivation of liberty that requires due process protection. In re MH 2007 001264, 218 Ariz. 538, 539, ¶ 6, 189 P.3d 1111, 1112 (App. 2008); see also MH 2006 000749, 214 Ariz. at 321, ¶ 14, 152 P.3d at 1204 (citations and quotations omitted). for involuntary Therefore, a patient subject to a petition treatment is entitled to a full and fair adversarial proceeding, and courts should strictly adhere to the requirements of the civil commitment statutes. MH 2006 000749, 214 Ariz. at 321, ¶¶ 14 16, 152 P.3d at 1204 (citations and quotations omitted). ¶9 Section 36-501(32) (Supp. 2012) defines Persistently or acutely disabled as: [A] severe mental disorder the following criteria: that meets all (a) If not treated has a substantial probability of causing the person to suffer or continue to suffer severe and abnormal mental, emotional or physical harm that significantly impairs judgment, reason, behavior or capacity to recognize reality. (b) Substantially impairs the person's capacity to make an informed decision regarding treatment, and this impairment causes the person to be incapable of understanding and expressing an understanding of the advantages and disadvantages of accepting treatment and understanding and expressing an understanding of the alternatives to the particular treatment offered after the advantages, disadvantages and alternatives are explained to that person. 5 (c) Has a reasonable prospect of being treatable by outpatient, inpatient or combined inpatient and outpatient treatment. (Emphasis added.) ¶10 Appellant argues the Maricopa County Attorney s Office (hereinafter MCAO ) failed to meet its statutory burden at the hearing to show Appellant was acutely or persistently disabled. Appellant points out that an individual is not persistently or acutely disabled if he can make an informed decision regarding treatment. 1207, See In re MH 91-00558, 175 Ariz. 221, 225, 854 P.2d 1211 (App. 1993). Further, an order for treatment requires the opinions of the two examining physicians, both of whom performed evaluations. M.H. 2007-001236, 220 Ariz. at 170-71, ¶ 32, 204 P.3d at 428-29 (stating a sole physician s testimony as to an individual s ability to make an informed decision is insufficient); A.R.S. § 36-539(B) (Supp. 2012) ( and testimony of the two physicians evaluation of the patient ). Parker expresses the who participated in the The stipulated affidavit of Dr. required findings and opinions, but Appellant specifically argues the evidence at trial fails to include a second physician opinion that Appellant is unable to make an informed decision. ¶11 Dr. Simon s affidavit, included as part Petition, clearly expressed the required opinion. Simon s affidavit, the following 6 question of the Within Dr. is answered affirmatively regarding the Appellant, Does the severe mental disorder substantially impair the person s capacity to make an informed decision regarding treatment? Dr. Simon s affidavit further supports that assertion by stating, The patient does not recognize his recent symptoms as suggesting an exacerbation of his underlying does not understand why more intensive treatment is recommended. If admitted into mental illness. evidence at the Therefore, hearing, he these statements sufficiently support the court s ruling. ¶12 Under A.R.S. § 36-533(B) (Supp. 2012), a petition for court-ordered treatment must be accompanied by the affidavits of two physicians. Appellant argues that although Dr. Simon s affidavit was attached to the Petition filed with the clerk of the superior court (along with Dr. Parker s affidavit), the parties did not stipulate its admission in evidence, nor did MCAO specifically hearing. testimony offer Therefore, from Dr. it into Appellant Simon was evidence contends his actual during the only testimony the court admissible in court, which is asserted to be insufficient. ¶13 Contrary to Appellant s argument, however, the record on appeal reveals that Dr. Simon s affidavit was admitted into evidence during the hearing and was considered in the superior court s finding. The minute entry from the superior court s hearing records the following: LET THE RECORD REFLECT that Dr. 7 Simon s affidavit which was previously filed with the Court is admitted for the Court s review. We note that the transcript of the hearing is silent on whether Dr. Simon s affidavit was admitted into evidence. entry than to a We give greater weight to the minute conflicting, silent transcript. State v. Gelden, 126 Ariz. 232, 232, 613 P.2d 1288, 1288 (App. 1980) (citing State v. Rockerfeller, 9 Ariz. App. 265, 267, 451 P.2d 623, 625 (1969)). Furthermore, the superior court acted within its discretion in admitting and considering the affidavit. See In re MH 2006 000490, 214 Ariz. 485, 488, ¶ 9, 154 P.3d 387, 390 (App. 2007) (recognizing the court may admit or take judicial notice of physician affidavits appended to a petition). ¶14 of Based on the two doctors affidavits and the testimony Dr. Simon and the two lay witnesses, we conclude that sufficient evidence supports the superior court s finding that Appellant was unable to make an informed decision regarding treatment. CONCLUSION ¶15 For the foregoing reasons, we conclude that sufficient evidence supports the court-ordered treatment, and we 8 therefore affirm. ___/s/___________________________ JOHN C. GEMMILL, Presiding Judge CONCURRING: ___/s/___________________________ MARGARET H. DOWNIE, Judge ___/s/___________________________ DIANE M. JOHNSEN, Judge 9

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