IN THE MATTER OF CHRISTINA S.

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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: 3/12/2013 RUTH A. WILLINGHAM, CLERK BY: mjt IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ) ) ) ) IN THE MATTER OF CHRISTINE S. ) ) ) ) ) _______________________________________ ) 1 CA-MH 12-0080 DEPARTMENT B MEMORANDUM DECISION (Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Mohave County Cause No. S8015MH201200031 The Honorable Lee Frank Jantzen, Judge AFFIRMED Matthew J. Smith, Mohave County Attorney Kingman By Dolores Milkie, Civil Deputy County Attorney Attorneys for Appellee Jill L. Evans, Mohave County Appellate Defender By Diane S. McCoy, Deputy Appellate Defender Attorneys for Appellant Kingman N O R R I S, Judge ¶1 After conducting an evidentiary hearing, the superior court found by clear and convincing evidence Appellant was, as a result of a mental disorder, persistently or acutely disabled, in need of psychiatric treatment, and unwilling and unable to accept voluntary treatment. Accordingly, the court ordered Appellant to undergo a combination of inpatient and outpatient treatment not to exceed 365 days ( treatment order ). ¶2 On appeal, Appellant first argues we should vacate the treatment hearing order by because video the conference court in conducted violation the of her evidentiary due process constitutional rights and, further, impermissibility coerced her into complying with the video conference procedure by sua sponte finding that an objection to [the] same would amount to a request for a continuance. ¶3 Appellant did not, however, raise either argument in the superior court. advised Appellant Specifically, although the superior court six days before the scheduled date of the evidentiary hearing it would be conducted by a video conference, Appellant raised no objection to that procedure either before or during the evidentiary properly before us. hearing. Thus, neither argument is In re MH 2009-001264, 224 Ariz. 270, 272, ¶ 7, 229 P.3d 1012, 1014 (App. 2010) (appellate court does not generally consider issues, even constitutional for the first time on appeal) (citation omitted). not waived, evidentiary based on hearing, adversarial hearing. our review Appellant of the received issues, But, even if transcript a raised full of and the fair In re MH 2006-000749, 214 Ariz. 318, 321, 2 ¶ 14, 152 P.3d 1201, 1204 (App. 2007) (citation omitted); see also In re MH2010-002637, 228 Ariz. 74, 78-81, ¶¶ 15-27, 263 P.3d 82, 86-89 telephonic (App. and video 2011) (discussing conferencing availability options for of patient s attendance at involuntary treatment hearing). ¶4 The record also does not reflect the court found objecting to the video conference procedure would amount to a request for a continuance. Instead, the court advised Appellant that if she objected to this procedure, she would need to file the objection promptly and it may be considered a request for extension of time for the hearing pursuant to A.R.S. § 36-535(B) to allow for argument on the objection and coordination of a courtroom hearing. ¶5 Appellant next argues we should vacate the treatment order, challenging the sufficiency of the evidence. The treatment order is, however, supported by substantial evidence. See generally Matter of Mental Health Case No. MH 94-00592, 182 Ariz. 440, 443-46, 897 P.2d 742, 745-48 (App. 1995) (reviewing court will uphold treatment order if supported by substantial evidence and will set aside superior court s findings of fact only if clearly erroneous or evidence ). 3 unsupported by any credible ¶6 At Appellant the hearing, testified evaluations of disorder that Appellant, they the two based she physicians on their evaluated observations was suffering as either identified who from a and mental schizophrenia, schizoaffective disorder, or a bipolar disorder. Although the physicians differed regarding the nature of the mental disorder, they testified without equivocation that Appellant was, in fact, suffering from a mental disorder that caused her to be persistently or acutely disabled as that term is defined under state law. 2012). See Ariz. Rev. Stat. ( A.R.S. ) § 36-501(32) (Supp. Both physicians expressed their opinions to a reasonable degree of medical certainty or probability, and although they did not describe their opinions in those terms, that is not a requirement. In re M.H. 2007-001236, 220 Ariz. 160, 169-70, ¶ 30, 204 P.3d 418, 427-28 (App. 2008) (expert s failure to use magic word or phrase such as probability is not determinative). ¶7 both Further, contrary to Appellant s argument on appeal, physicians expressed to a reasonable degree of medical certainty that if not treated, Appellant s mental illness had a substantial abnormal probability mental, of causing emotional, or her to physical suffer harm severe that and would significantly impair her judgment, reason, behavior, or capacity 4 to recognize reality. Collectively, disorganized, different the See physicians appeared things generally confused, that did not A.R.S. § 36-501(32)(a). testified rambled make Appellant on sense, and was on was about delusional, suspicious of everyone around her, believed people were stalking her, and suffered from paranoid delusions. And, contrary to Appellant s argument on appeal, both physicians testified they had explained to Appellant the advantages and disadvantages of treatment and placement, but her mental illness interfered with her ability to make an informed decision regarding treatment. 1 ¶8 The two acquaintance witnesses who testified at the hearing substantiated the physicians descriptions of Appellant. One witness stalking explained her language, and and Appellant was the getting other always very, witness thought very people aggressive described were in her Appellant as paranoid. ¶9 to Finally, Appellant argues we should remand this case the superior 1 court to determine if Appellant received Appellant argues the affidavit submitted by one of the evaluating physicians in support of the petition for courtordered treatment did not comply with the requirements of A.R.S. § 36-533(B) (Supp. 2012) because it failed to describe in detail the behavior that indicated Appellant was, as a result of a mental disorder, persistently or acutely disabled. As Appellee points out, however, this physician testified at the hearing and his testimony supplemented any deficiency in his affidavit and, further, his testimony in the evidentiary hearing complied fully with all statutory requirements for involuntary treatment. 5 effective assistance of counsel because the record does not reflect whether her attorney complied with the requirements of A.R.S. § 36-537(B)(4) (Supp. 2012). This statute requires a patient s attorney to, at least 24 hours before the evaluation or treatment hearing, interview psychiatric and mental testify the hearing, at health if the nurse physicians practitioner available, and or who the will investigate the possibility of alternatives to court-ordered treatment. ¶10 Although we agree the record on appeal does not reflect whether counsel complied with this requirement, it was Appellant s obligation to create a record as to any alleged ineffective assistance of counsel before appellate review. See In re MH2010-002637, 228 Ariz. at 82, ¶ 32, 263 P.3d at 90 (person subjected to civil commitment hearing has a number of means counsel of creating before a record appellate as review, to ineffective such as assistance raising that of issue before the superior court, including seeking post-trial relief through appellate counsel before the superior court). did not create such a record. Appellant Accordingly, the record before us does not warrant remand. 2 2 In an appendix to her opening brief, Appellant submitted notes of conversations between Appellant and counsel. These notes are not part of the record on appeal. See generally Arizona Rule of Civil Appellate Procedure 11. 6 ¶11 For the foregoing reasons, we affirm the superior court s treatment order. /s/ PATRICIA K. NORRIS, Presiding Judge CONCURRING: /s/ ANDREW W. GOULD, Judge /s/ RANDALL M. HOWE, Judge 7

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