In re MH 2008-001196

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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 2008-001196 ) ) ) ) ) __________________________________) DIVISION ONE FILED: 06-29-2010 PHILIP G. URRY,CLERK BY: GH No. 1 CA-MH 09-0050 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. MH 2008-001196 The Honorable Patricia Arnold, Judge Pro Tem APPEAL DISMISSED AS MOOT James J. Haas, Maricopa County Public Defender By Kathryn L. Petroff, Deputy Public Defender Attorneys for Respondent/Appellant Phoenix Magellan Health Services of Arizona, Inc. By Steven B. Wiggs Attorneys for Petitioner/Appellee Phoenix D O W N I E, Judge ¶1 Appellant challenges an involuntary mental health treatment. we dismiss the appeal as moot. order continuing her For the following reasons, FACTS AND PROCEDURAL HISTORY 1 ¶2 In May 2008, a crisis counselor filed a petition for court-ordered evaluation, evaluation, and evaluation, an an application application alleging for appellant for emergency had involuntary admission for taking her stopped medications, suffered paranoid delusions, and was a danger to self. bizarre canal, Appellant denied mental illness, but reported numerous physical . . urinating . from symptoms her her including umbilicus baby, urinating from her birth is stretched backwards, . and bleeding from aorta, evidenced by the taste of blood in her mouth. her . . Two evaluating physicians opined that appellant was, as a result of a mental disorder, persistently or acutely disabled combined inpatient and outpatient treatment. and in need of In June 2008, the superior court ordered appellant to undergo combined inpatient and outpatient treatment for a period not to exceed 365 days. ¶3 On June 10, 2008, appellant was released to outpatient care. Toward the end of the treatment period, appellant was compliant with her treatment plan. failure to engage in treatment However, based on her past without a court order, the clinical team was concerned she would not take medications or 1 We view the facts in the light most favorable to affirming the trial court s decision. In re MH 2008-001188, 221 Ariz. 177, 179, ¶ 14, 211 P.3d 1161, 1163 (App. 2009). 2 attend scheduled appointments if the court order expired; it thus recommended continued treatment. ¶4 In May 2009, Dr. Carol Olson evaluated appellant. She recommended that appellant not be released from court-ordered treatment due to very poor insight and recognize her ongoing need for treatment. an inability to Dr. Olson opined that appellant s history of repeatedly stopping her medication when off of the court order for treatment made it unlikely she would be consistent in taking prescribed medication on a voluntary basis. ¶5 A petition for continued treatment was filed. At the ensuing hearing, appellant stipulated to the admission of Dr. Olson s report, cross-examined two acquaintance witnesses, and testified on her own behalf. Appellant acknowledged that she had a psychiatric illness that required medication and stated she planned expired. to continue treatment even if the court order Nevertheless, the court found that appellant remained persistently or acutely disabled as a result of a mental disorder and ordered continued treatment for a period not to exceed 365 jurisdiction days. pursuant Appellant to Arizona timely appealed. Revised Statutes sections 12-2101(K) (2003) and 36-546.01 (2009). 3 We have ( A.R.S. ) DISCUSSION ¶6 Appellant s When circumstances treatment in a order June change case expired to extent the 5, 2010. that a reviewing court s action would have no effect on the parties, the issue becomes moot for purposes of appeal. Vinson v. Marton & Assocs., 159 Ariz. 1, 4, 764 P.2d 736, 739 (App. 1988). such a case, we may dismiss the appeal. In Dougherty v. Ellsberry, 45 Ariz. 175, 175, 41 P.2d 236, 236 (1935) (dismissing appeal because the issue of whether to recall a director was moot once the director s term of office expired). Arizona s appellate courts have exercised their discretion to review a moot matter presenting significant questions of public importance that are likely to recur. Ariz. 560, 563, Big D Constr. Corp. v. Court of Appeals, 163 789 constitutionality notwithstanding P.2d of 1061, Arizona s settlement by 1064 (1990) bid (considering preference parties). See also the statute LaFaro v. Cahill, 203 Ariz. 482, 485, ¶ 9, 56 P.3d 56, 59 (App. 2002) (considering appeal of an injunction that may have expired because the use of an injunction to restrict political speech is an issue of great public importance that is capable of evading review. ). ¶7 Resolution of this appeal is intensely fact-specific. The one pure legal claim appellant raises was recently resolved adverse to her position by In re MH 2009-001264, ___ Ariz. ___, 4 ___, ¶ 11, 229 P.3d 1012, 1015 (App. 2010) (determining that the trial court is not required to engage in a colloquy with a patient who makes a decision to forego the attendance and crossexamination of an evaluating physician who presents statutorily required information via sworn affidavit). failed to raise the colloquy issue below. Moreover, appellant See Richter v. Dairy Queen of S. Ariz., Inc., 131 Ariz. 595, 596, 643 P.2d 508, 509 (App. 1982) ( [A]n appellate court cannot consider issues and theories not presented to the court below. ) (citation omitted). CONCLUSION ¶8 Because we find that this appeal is moot, we therefore dismiss it. /s/ MARGARET H. DOWNIE, Presiding Judge CONCURRING: /s/ DONN KESSLER, Judge /s/ PETER B. SWANN, Judge 5

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