In re MH 2008-002504

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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 MH 2008-002504 ) ) ) ) _______________________________________ ) DIVISION ONE FILED: 03/02/2010 PHILIP G. URRY,CLERK BY: GH 1 CA-MH 09-0002 DEPARTMENT B MEMORANDUM DECISION (Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. MH 2008-002504 The Honorable Benjamin E. Vatz, Commissioner The Honorable Patricia Arnold, Commissioner AFFIRMED Andrew P. By and Attorneys Thomas, Maricopa County Attorney Anne C. Longo, Deputy County Attorney Davina Bressler, Deputy County Attorney for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Tennie B. Martin, Deputy Public Defender Attorneys for Appellant Phoenix N O R R I S, Judge ¶1 On October 28, 2008, Dr. Michael Brennan ( Petitioner ) petitioned the Maricopa Superior Court seeking an involuntary mental health evaluation of appellant. After conducting an evidentiary hearing, the superior court found by clear and convincing evidence appellant was persistently or acutely disabled, was in need of psychiatric treatment, and was unwilling or unable to accept voluntary treatment. the court inpatient ordered and appellant outpatient to undergo treatment not a to Accordingly, combination exceed 365 of days ( treatment order ). ¶2 On appeal, appellant asks us to vacate the treatment order because she was detained in violation of Arizona Revised Statutes ( A.R.S. ) superior court section dismissed a 36-535(B) prior treatment on October 28, 2008.1 (Supp. petition 2008) for after the court-ordered Appellee2 argues the remedy is not to dismiss (or vacate) the treatment order (which the record reflects complied with all statutory requirements) but to seek release during the period of improper detention.3 appellee. 1054 We agree with Cf. In re MH 2008-002393, 223 Ariz. 240, 221 P.3d (App. 2009) (appropriate remedy when individual is 1 Section 36-535(B) before it was amended in 2009, stated that once a petition for court-ordered treatment is filed, the court shall either release the proposed patient or order the hearing to be held within six days after the petition is filed . . . . 2 The Maricopa County Attorney s office, as required by A.R.S. § 36-503.01 (2009), represented Petitioner in the superior court, and thus is the appellee here. 3 Appellee does not challenge that appellant s detention went beyond the prescribed six days. 2 involuntarily held for mental health evaluation in excess of 72hour statutory time frame is to seek release of the patient during period of improper detention; dismissal of order for involuntary treatment entered in subsequent proceeding is not the appropriate remedy); In re MH 2006-002044, 217 Ariz. 31, 170 P.3d 280 (App. 2007) (detention of appellant beyond 24-hour statutory period did not entitle appellant to have involuntary treatment and commitment order vacated). As in MH 2008-002393 and In re MH 2006-002044, appellant could have sought relief through a writ of habeas corpus. ¶3 not In In re MH 2008-002393, we stated: Although we do condone frames, the holding individuals appropriate excess when remedy in that of statutory occurs is to time seek release of the patient during the period of improper detention, not to request dismissal of a later-filed petition that complies with statutory requirements. 1057. ¶4 Id. at ___, ¶ 12, 170 P.3d at What we said in In re MH 2008-002393 is applicable here. Finally, appellant argues A.R.S. § 36-535(B) is unconstitutionally vague and her detention constituted an abuse of process. Appellant did not, however, make these arguments in the superior court and we will not address them for the first time on appeal. See Englert v. Carondelet Health Network, 199 Ariz. 21, 26, ¶ 13, 13 P.3d 763, 768 (App. 2000). 3 CONCLUSION ¶5 We therefore affirm the treatment order.4 /s/ ___________________________________ PATRICIA K. NORRIS, Presiding Judge CONCURRING: /s/ ____________________________________________ DANIEL A BARKER, Judge /s/ ____________________________________________ PETER B.SWANN, Judge 4 We also note this appeal is moot as the treatment order has expired. 4

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