In re MH 2009-000828
Annotate this Case
Download PDF
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 2009-000828 DIVISION ONE FILED: 03/04/2010 PHILIP G. URRY,CLERK BY: GH 1 CA-MH 09-0038 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. MH 2009000828 The Honorable Patricia Arnold, Judge Pro Tempore AFFIRMED Andrew P. Thomas, Maricopa County Attorney by Anne C. Longo, Deputy County Attorney Roberto Pulver, Deputy County Attorney Civil Division Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender by Kathryn L. Petroff, Deputy Public Defender Attorneys for Appellant Phoenix W E I S B E R G, Judge ¶1 M.B. ("Appellant") asks this court to overturn the order that he undergo combined inpatient and outpatient mental health treatment based on the superior court s determination that Appellant was persistently or acutely disabled and a danger to others. Appellant argues that he was denied due process because he was not given notice of his right to a hearing on involuntary hospitalization for a mental health evaluation until after one physician had interviewed him. He also argues that the physicians affidavits were not attached to the petition for court-ordered treatment and that no clear and convincing evidence established that Appellant was a danger to others. For reasons that follow, we affirm the court s treatment order. BACKGROUND ¶2 On March 30, 2009, Appellant s case manager filed a petition for court-ordered evaluation and alleged that Appellant was a danger to others, persistently or acutely disabled, and unwilling stated to that voluntarily Appellant undergo was evaluation. psychotic, suffered The petition from auditory hallucinations and homicidal ideations, and had a long history of violence. The case manager also filed an application for involuntary evaluation, taking medication, his which was noted talking that either Appellant to Mariah Carey, and was pacing and not sleeping. was himself or not to The application reported that Appellant mentioned that he [had] slashed [his mother s] throat due to the way [she was] treating him, that he had been released from jail a month ago for having stabbed his 2 mother, and was very verbally aggressive toward [her and] is having issues with [his] brother. ¶3 Appellant was detained for an evaluation, and afterwards, Dr. E.B. filed a petition for both inpatient and outpatient His court-ordered accompanying treatment affidavit ("COT") stated that on April Appellant 2, 2009. had been released from jail after serving three years for stabbing his mother and had a long history of dangerousness to others and had been receiving outpatient care as seriously mentally ill. While living medications with and his had mother, become he had stopped increasingly taking psychotic; his hearing voices, seeing Hollywood stars and conversing with them, not sleeping, and being increasingly agitated. could not live with his mother, he When told that he became more angry, threatening to hurt his mother, and threatening the probation officer. ¶4 During Dr. E.B. s interview, Appellant was pleasant and cooperative but presented with paranoid delusions ; he not only heard voices but responded to them during the interview. Appellant denied any need for medication. Dr. E.B. noted that Appellant had been diagnosed with schizophrenia ten years ago. He concluded that Appellant had no insight into his condition, and his judgment was severely impaired. E.B. noted that Appellant has 3 no In his addendum, Dr. capacity to recognize reality, could not make an informed decision regarding treatment, and despite explanation, could not understand the advantages or disadvantages of treatment or its alternatives. ¶5 Dr. S.A. s affidavit stated that Appellant partially had cooperated during the interview. He also admitted that he had a mental illness and that the voices sometimes told him to hurt others but denied that he needed medication. He said that he treating had stabbed right. his mother because she was not I am a man and she needs to respect me. me Appellant was paranoid, guarded, delusional, preoccupied, and responding to internal stimuli ideations. but denied suicide, violent and homicidal Dr. S.A. noted at least six prior hospitalizations and that the most recent hospitalization was due to his refusal of psychiatric services despite recent psychotic symptoms. S.A. s addendum stated that Appellant s judgment and Dr. insight were impaired, that he was unable to make an informed decision regarding treatment, and that he appeared unable to understand the consequences of not taking his medications. ¶6 A detention Appellant April 1. order for an evaluation was served on A hearing on the petition for COT was set for April 10, 2009, and Appellant was served with notice of the hearing on April 3. ¶7 admission At of the the hearing on COT, physicians the parties affidavits 4 in stipulated lieu of to their testimony. Appellant s case manager, L.M., testified that he had been in contact with Appellant about five times during the last year of his incarceration and about five times in the month after his release. L.M said that during a meeting to discuss his housing, Appellant was talking to himself, became agitated with his mother, and then mentioned that he had slashed her neck. Appellant additionally said that he had stopped taking his medications. ¶8 Appellant s mother testified that her son had been living with her until the petition had been filed and that he had been taking his medication periodically . He was sleeping well, was talking to himself and hallucinating, she was concerned about the voices and delusions. not and She denied feeling threatened by him ¶9 Appellant testified that he had not been in any fights and was willing to see his doctors twice a month and to take his medications as long as [he] was comfortable with them. He was taking his medications here and there and did not deny saying that he heard voices. ¶10 The court found by clear and convincing evidence that Appellant was a danger to others and was persistently or acutely disabled. It ordered a program of combined inpatient treatment for a maximum of 180 days and outpatient treatment for no more than one year. Appellant timely appealed. 5 We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") section 36- 546.01 (2009). DISCUSSION ¶11 right Appellant first argues that he was not advised of his to a hearing on whether he should be involuntarily hospitalized for an evaluation before the hospitalization took place and thus that we should reverse the later treatment order. Appellant correctly observes that our courts strictly construe the civil commitment statutes because of their impact on liberty interests. P.3d 387, counsel In re MH 2006-000490, 214 Ariz. 485, 488, ¶ 10, 154 390 did (App. not 2007). object to Appellant the lack of concedes timely nevertheless asks that we consider this contention. that notice trial but He cites In re MH 2006-000023, 214 Ariz. 246, 249, ¶ 11, 150 P.3d 1267, 1270 (App. 2007), in which we considered on appeal whether one could waive the right to a mandatory 72-hour period preceding a hearing on involuntary treatment; given the significant liberty interest at stake, we found extraordinary circumstances justified our review. ¶12 Because appellate counsel raised this particular issue in another appeal recently decided by this court, we adopt the reasoning in that case that untimely notice of the right to a hearing does not require reversal of the COT. See In re MH 2008-002659, ___ Ariz. ___, ¶ 11, ___ P.3d ___ (App. 2010) (2010 6 WL 199250). There, as here, no objection was made below to the lack of timely notice. Id. at ¶ 11. We observed that different factors govern the superior court s decision to order a mental health evaluation as opposed to involuntary hospitalization for an evaluation. Id. at ¶ 14. We also reasoned that § 36-529(D) conferred a right to a hearing on court-ordered hospitalization for an evaluation but did not grant a hearing on the need for an evaluation. received Id. at ¶ 13. timely notice Thus even if the appellant had of a right to a hearing on hospitalization, and after such a hearing the court had declined to order hospitalization, that ruling would not undercut the determination that she should submit to an evaluation. 15. Id. at ¶ Furthermore, the appellant was not entitled to dismissal of the subsequent treatment order, id. at ¶ 16, because unlike the patient in In re MH 2006-000023 notice the of hearing on COT, who had received inadequate the appellant had not been prejudiced in her ability to defend against the later-filed petition for COT. ¶13 Id. at n.3, ¶ 15. Appellant suggests that he was prejudiced because if the evaluation began before he received notice of his right to protest hospitalization, he may have spoken to the psychiatrists without being informed that the evaluations were not totally confidential. The physicians affidavits state that they informed Appellant of the limited confidential nature of 7 the interviews, and Appellant has prejudice from the delayed notice. not alleged any other Significantly, he does not allege that he was denied a fair hearing on the petition for COT, and thus we find no denial of due process. 2006-002044, 217 Ariz. 31, 33, ¶¶ 7-9, See In re MH 170 P.3d 280, 282 (App. 2007) (applying criminal law principle that even if defendant has been wrongfully jailed after warrantless arrest, unless he was deprived of fair trial, no due process violation occurred that required timely reversal notice of of conviction). Appellant s right Therefore, to a lack hearing of on hospitalization for an evaluation does not compel reversal of the COT. ¶14 Appellant next raises two additional issues that were not argued below. (2009) is practical First, he argues that A.R.S. § 36-529(D) unconstitutionally manner of vague enforcing the because right there to a is no hearing on hospitalization for evaluation purposes and no apparent remedy if the patient is detained and evaluated before the notice is served. [O.B. at 17, 19] Second, that both of the physicians affidavits were not attached to the petition for court-ordered [O.B. at 29] treatment and thus he was denied due process. We normally will not review an issue first raised on appeal, even one framed in constitutional terms, and decline 8 to do so here. State v. Lefevre, 193 Ariz. 385, 389, 972 P.2d 1021, 1025 (App. 1998). ¶15 Finally, Appellant argues that Appellee failed to produce clear and convincing evidence that he was a danger to others. 1 He asserts that he denied that inner voices told him to hurt others. To the contrary, Dr. S.A. s affidavit reported that Appellant said that the voices sometimes told him to hurt others. Dr. E.B. reported that Appellant had threatened both his mother and his probation officer. ¶16 Moreover, by the time the caseworker heard Appellant refer to his completely avowed prior ceased that assault taking Appellant on his his mother, Appellant had medications. any denied Both medication, need for physicians and Appellant testified that he would take those medications with which he was comfortable. infer that Appellant would The court could quite reasonably not comply with his medications because he was unhappy about some of the side effects, and thus that the auditory addition, undisputed existence hallucinations, Appellant s of his paranoid and agitation would mother testified that delusions, continue. when he In began rambling in the caseworker s office, she could not understand 1 Section 36-501(5) (2009) states: Danger to others means that the judgment of a person who has a mental disorder is so impaired that he is unable to understand his need for treatment and as a result of his mental disorder his continued behavior can reasonably be expected, on the basis of competent medical opinion, to result in serious physical harm. 9 what he was saying but was concerned when he was talking to her and to someone else at the same time. Her inability to decipher Appellant s speech suggests she might be unable to anticipate when his agitation would escalate to physical aggression and to take protective measures. The physicians affidavits, the witness testimony, Appellant s past conduct, and his refusal to take medication to control his symptoms all support the court s finding that he posed a danger to others. CONCLUSION ¶17 We find no basis on which to reverse the order that Appellant undergo combined inpatient and outpatient mental health treatment and thus affirm the order. /S/___________________________________ SHELDON H. WEISBERG, Presiding Judge CONCURRING: /S/_________________________________ PHILIP HALL, Presiding Judge /S/_________________________________ JOHN C. GEMMILL, Judge 10
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
