In re MH 2009-001386

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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 2009-001386 ) ) ) ) ) ) ) ) ) __________________________________) 1 CA-MH 09-0054 DIVISION ONE FILED: 03/30/2010 PHILIP G. URRY,CLERK BY: GH DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. MH 2009-001386 The Honorable Shari Capra, Judge Pro Tempore AFFIRMED James J. Haas, Maricopa County Public Defender By Kathryn L. Petroff, Deputy Public Defender Attorneys for Appellant Phoenix Andrew P. By And Attorneys Phoenix Thomas, Maricopa County Attorney Anne C. Longo, Deputy County Attorney Roberto Pulver, Deputy County Attorney for Appellee O R O Z C O, Judge ¶1 Appellant appeals from the trial court s Order Commitment for involuntary mental health treatment. of For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 On health May 28, professional 2009, at the D. Lawrence Fourth (Lawrence), Avenue Jail, a mental submitted an Application for Involuntary Evaluation (AIE) and an Application for Emergency Admission for Evaluation (AEAE) to the Magellan Urgent Psychiatric Care Center (Magellan) pursuant to Arizona Revised Statutes (A.R.S.) sections 36-520 and -524 (2009). the applications, Lawrence indicated that as a result In of a mental disorder, Appellant was persistently or acutely disabled (PAD) and a danger to others (DTO). Lawrence stated that Appellant was arrested for assault on 5/28/09 at 8:40 a.m. While incarcerated Lawrence said he she pushed believed and punched Appellant two suffered other from a women. mental disorder because while incarcerated, she talked to the walls and herself, danced and laughed at inappropriate times, spoke in nonsense syllables, and assaulted 3 people. ¶3 On May 29, 2009, Magellan s Deputy Medical Director D. Fletcher, M.D. (Dr. Fletcher), filed a petition for court- ordered evaluation (PCOE) of Appellant pursuant to A.R.S. § 36523 (2009). allegations. Dr. On Fletcher s June 2, 2009, 2 PCOE the reiterated trial court Lawrence s signed a detention order Evaluation). for evaluation and notice (Order for The Order for Evaluation stated that it appeared Appellant was unwilling to undergo a voluntary evaluation, . . . likely to present a Danger to Self, or Others, or . . . Persistently and Acutely Disabled. The Order for Evaluation gave Appellant notice of her right to a hearing and appointed the Public Defender to represent her. ¶4 On June 1, 2009, Boskailo, M.D. (Dr. Boskailo). Appellant was evaluated by E. Dr. Boskailo diagnosed Appellant with Psychotic Disorder, Not Otherwise Specified. Dr. Boskailo indicated Appellant was, as a result of her mental disorder, PAD and a DTO. Dr. Boskailo concluded Appellant was dangerous or disabled because Appellant was at a local jail for an assault where she was assaultive to her inmates and she presented with psychotic symptoms and behavior. stated Appellant was delusional, Additionally, Dr. Boskailo paranoid, [and] hearing voices, with no insight into her condition. ¶5 The same day, Appellant was evaluated by T. O Grady, M.D. (Dr. O Grady).1 Dr. O Grady also diagnosed Appellant with Psychotic Not Disorder, Otherwise Specified. Dr. O Grady indicated Appellant was, as a result of her mental disorder, PAD, a DTO, and a Danger to Self (DTS). 1 Dr. O Grady concluded Dr. O Grady was a resident physician attending physician J. Pynn, M.D. (Dr. Pynn). 3 supervised by Appellant was dangerous or disabled because prior to her evaluation Appellant allegedly assaulted a woman at a bus stop and later without provocation assaulted two inmates unprovoked at the jail. She was homeless, disheveled and [was] not able to provide for basic necessities. ¶6 On June 3, 2009, Dr. Boskailo filed a petition for court-ordered treatment (PCOT) of Appellant pursuant to A.R.S. § 36-533 (2009), alleging that as a result of a mental disorder, Appellant was PAD and a DTO. On June 4, 2009, the trial court signed a detention order for treatment and notice (Order for Treatment) and set a hearing on the matter for June 9, 2009. At the hearing, the parties stipulated: (1) to the admission of the affidavits of Dr. Boskailo and Dr. O Grady in lieu of their testimony; (2) that Dr. O Grady was in an AMA-approved psychiatric residency program being supervised by Dr. Pynn, a licensed and qualified psychiatrist; and (3) to the admission of the 72-hour medication affidavit.2 ¶7 At trial, the State called two acquaintance witnesses and Appellant also testified. Lawrence. The State s second witness was Lawrence testified that he met with Appellant and 2 The 72-hour medication affidavit was sworn to by J. Zaharopolos, D.O. (Dr. Zaharopolos). Dr. Zaharopolos stated that the medications, either individually or in combination, have not significantly hampered . . . [Appellant s] ability to prepare for, or participate in [Appellant s] hearing for CourtOrdered Treatment. 4 told her he watched a surveillance video of her assaulting two other inmates. saying she Lawrence testified that Appellant responded by was in an altercation but she hadn t assaulted anyone. Lawrence was then asked to describe what he saw in the video. Appellant objected, citing Arizona Rule of Evidence 1002. the best evidence rule, The trial court overruled the objection and allowed Lawrence to testify as to what he saw in the video. Appellant Lawrence stated that the video, in part, showed assaulting two inmates. Lawrence testified that Appellant: [S]tarted talking to the wall. She then walked over and pushed the woman on the phone and then punched her in the ribs. She then kind of danced away from the woman and sat back down on the bench. A few moments later she talked to herself a little more. She got back up and approached the second woman. The second woman in the cell threw off her jacket, put up her hands to defend herself. [Appellant] grabbed her by the hair. The other woman grabbed [Appellant] by the hair and then [Appellant] began punching her with her right arm. ¶8 The trial court found by clear and convincing evidence that Appellant was, as a result of a mental disorder, PAD and a DTO. As a result, the trial court ordered Appellant to undergo treatment outpatient treatment program for a period of time not to exceed 365 days. Appellant filed a in a timely combined notice inpatient of appeal and and we have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution 5 and A.R.S. §§ 12-120.21.A.1, -2101.K (2003) and 36-546.01 (2009). DISCUSSION ¶9 Appellant raises two issues on appeal: (1) whether the trial court violated her due process rights when it failed to expressly find intelligently that she stipulated knowingly, to the voluntarily, admission of the and medical affidavits; and (2) whether sufficient evidence existed on which the trial court could find Appellant was a DTO. We review the interpretation and application of a statute de novo. See In re Maricopa County No. MH 2001-001139, 203 Ariz. 351, 353, ¶ 8, 54 P.3d 380, 382 (App. 2002). findings of fact unless We will affirm the trial court s they are supported by substantial evidence. clearly erroneous or not In re MH 94-00592, 182 Ariz. 440, 443, 897 P.2d 742, 745 (App. 1995). Due Process Requirements ¶10 Court-ordered involuntary deprivation of liberty. treatment is a serious In re MH 2006-000749, 214 Ariz. 318, 321, ¶ 14, 152 P.3d 1201, 1204 (App. 2007) (citations omitted). Therefore, the state process protection. must accord the proposed patient due In re Maricopa County No. MH 90-566, 173 Ariz. 177, 182, 840 P.2d 1042, 1047 (App. 1992). Appellant argues that the trial court violated her due process rights because it failed to determine whether Appellant s stipulation 6 to the admission of the physicians affidavits was made knowingly, voluntarily, and intelligently. ¶11 The treatment procedural hearing are requirements governed by for A.R.S. an § involuntary 36-539 (2009).3 Among other requirements, A.R.S. § 36-539.B mandates that [T]he patient s attorney may subpoena and crossexamine witnesses and present evidence. The evidence presented by the petitioner or the patient shall include the testimony of two or more witnesses acquainted with the patient at the time of the alleged mental disorder and testimony of the two physicians who performed examinations in the evaluation of the patient. ¶12 We have previously held that a would-be patient s waiver of the right to be present at a hearing is not valid absent an express finding by the court that the patient has knowingly and intelligently waived her right to be present. In re MH 2006-000749, 214 Ariz. at 324, ¶ 27, 152 P.3d at 1207. Additionally, we have held that a would-be patient may waive the right to be represented by counsel only if the superior court conducts an on-the-record discussion and makes specific findings to determine whether the waiver of counsel is made knowingly, voluntarily, and intelligently. In re Jesse M., 217 Ariz. 74, 80, ¶ 30, 170 P.3d 683, 689 (App. 2007). 3 Both parties recognize that A.R.S. § 36-539 was recently amended, taking effect September 30, 2009. See 2009 Ariz. Sess. Laws, ch. 153 (1st Reg. Sess.). Because the hearing in this case occurred prior to the amendment s effective date, we do not consider the effect of the amendment on the facts presented here. 7 ¶13 Recently, this Court held that when the rights to present evidence and subpoena, confront and cross-examine witnesses at a 539 hearing are purportedly waived, the trial court must ascertain that a waiver of these voluntarily, knowingly and intelligently made. rights is In re MH 2007- 001275, 219 Ariz. 216, 221, ¶ 18, 196 P.3d 819, 824 (App. 2008). In that case, we instructed the trial court that it must determine either through conducting a colloquy with the patient or by review of the record, that there is sufficient evidence to conclude that counsel s waiver on behalf of the patient was in fact voluntarily, patient. ¶14 knowingly and intelligently Id. at 221, ¶ 19, 196 P.3d made by the at 824. Based on In re MH 2007-001275, Appellant argues that the trial court in this case was required to conduct a colloquy before accepting the medical physicians testimony. affidavits in lieu of the However, In re MH 2007-001275 involved a waiver of the right to an entire involuntary treatment hearing. Id. at 218, ¶ 4, 196 P.3d at 821. Moreover, we expressly stated in that case that [w]e are not opining that this test would affect every decision made by counsel at the hearing, e.g., whether to cross-examine particular witnesses. ¶ 19, 196 P.3d at stipulation was not involuntary treatment 824 a n.5. waiver hearing. 8 In of this her Rather, Id. at 221 n.5, case, right by to Appellant s an entire stipulating, she merely waived provided her right to affidavits. cross-examine Appellant the physicians cross-examined who Lawrence, testified herself, and had an opportunity to cross-examine the State s first acquaintance witness, which she declined to do. We refuse to expand the holding of In re MH 2007-001275 to the facts of this case. Sufficiency of the Evidence ¶15 Appellant evidence to find contends that that Appellant there was a was DTO. insufficient Specifically, Appellant argues the court improperly relied on inadmissible testimony by Lawrence regarding his observations of Appellant s assaults caught on video. For purposes of this decision, assuming without deciding that this testimony was inadmissible, we find the substantial findings trial court s evidence. of fact We unless ruling will they was affirm are unsupported by substantial evidence. that Appellant was arrested the clearly restated evidence of by Dr. Appellant s Fletcher recent 9 in trial other court s erroneous or Lawrence s AIE and AEAE for assault incarcerated, assaulted two other inmates. were by In re MH 2006-000749, 214 Ariz. at 321, ¶ 13, 152 P.3d at 1204. stated supported her assaults and, while Those allegations PCOE. In addition, was admitted in the affidavits of Dr. Boskailo and Dr. O Grady.4 Furthermore, Appellant never disputed these allegations; rather, she stated that she was in an altercation because they said there was [sic] too many people there, and she thought [Appellant] was her girlfriend. Because we find substantial evidence supports the trial court s findings, we affirm the trial court s order of commitment. CONCLUSION ¶16 For the reasons previously stated, we affirm the trial court s Order of Commitment. /S/ ___________________________________ PATRICIA A. OROZCO, Presiding Judge CONCURRING: /S/ ____________________________________ DIANE M. JOHNSEN, Judge /S/ ____________________________________ JON W. THOMPSON, Judge 4 Appellant argues that the medical affidavits admitted by stipulation were somehow insufficient because the doctor affiants may not have met the qualification requirements of A.R.S. §§ 36-359.B and -501.12(a) (2009). Section 36-501.12(a) requires a proposed patient s evaluation be conducted by [t]wo licensed physicians, who shall be qualified psychiatrists, if possible, or at least experienced in psychiatric matters. In this case, Appellant stipulated to the fact that both doctors were physicians experienced in psychiatric matters. Accordingly, Appellant has waived this argument. In re MH 2002000767, 205 Ariz. 296, 301, ¶¶ 23-25, 69 P.3d 1017, 1022 (App. 2003). For the same reasoning, Appellant has waived any argument regarding the sufficiency of the 72-hour medication affidavit. Id. 10

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