In re MH 2009-001492

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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 2009-001492, ) ) ) ) ) ) ) ) ) ) 1 CA-MH 09-0058 DIVISION ONE FILED: 04-22-2010 PHILIP G. URRY,CLERK BY: GH DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. MH 2009-001492 The Honorable Patricia Arnold, Commissioner AFFIRMED Andrew P. Thomas, Maricopa County Attorney by Anne C. Longo Victoria Mangiapane Deputy County Attorneys, Civil Division Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender by Tennie B. Martin, Deputy Public Defender Attorneys for Appellant Phoenix P O R T L E Y, Judge ¶1 Patient commitment. appeals from the order of involuntary For the following reasons, we affirm the order. FACTS AND PROCEDURAL BACKGROUND A Magellan 1 clinical coordinator filed a petition for ¶2 an involuntary alleged evaluation of persistently mental Subsequently, Patient Care Center. Following evaluation, a petition for court-ordered admitted to the acutely that Patient was or health that treatment was filed. was Patient s Urgent disabled. Psychiatric The petition included the affidavits of two evaluating physicians. At the subsequent hearing, the trial court heard testimony from two acquaintance witnesses, and one of the evaluating physicians was cross-examined. ¶3 The physicians court also affidavits affidavit, which testimony. The Patient court and reviewed the the evaluating seventy-two-hour stipulated then both to ordered in lieu Patient medication of to in-court undergo a combination of inpatient and outpatient treatment for a period not to exceed 365 days, with the inpatient portion not to exceed 180 days. ¶4 Patient appealed, and we have jurisdiction pursuant to Arizona Revised Statutes ( A.R.S. ) section 36-546.01 (2009). DISCUSSION ¶5 An proceeding. involuntary commitment proceeding is a civil In re Pima County Mental Health Matter No. MH 863- 1 Magellan Health Services of Arizona, Inc., is the regional behavioral health authority of Maricopa County, and manages the publicly funded behavioral health care delivery system. 2 4-83, 145 Because Ariz. the liberty, we 284, 284, commitment examine 700 P.2d involves a ensure that to rights have not been violated. 1384, 1384 significant a (App. 1985). deprivation patient s due of process See In re MH 2007-001275, 219 Ariz. 216, 219-20, ¶¶ 13, 16, 196 P.3d 819, 822-23 (App. 2008). A patient is entitled to a full and fair adversarial proceeding. In re MH 2007-001275, 219 Ariz. at 220, ¶ 13, 196 P.3d at 823. We will uphold an order for treatment unless it is clearly erroneous or unsupported by any credible evidence. In re Mental Health Case No. MH 94-00592, 182 Ariz. 440, 443, 897 P.2d 742, 745 (App. 1995). ¶6 Patient argues her due process rights were violated because the superior court failed to meet the statutory requirements of A.R.S. § 36-539(B) (2009), which require the court to receive testimony from personally examined the patient. 2 2 two physicians who have Specifically, Patient argues We note that § 36-539(B) has been amended to provide that the testimony of the two physicians who performed examinations in the evaluation . . . may be satisfied by stipulating to the admission of the evaluating physicians affidavits. A.R.S. § 36-539 (Supp. 2009). Similarly, A.R.S. § 36-537(D) was amended to read [a]t a hearing held pursuant to this article, the patient s attorney may enter stipulations on behalf of the patient, and subsection 36-537(B) clarifies that defense counsel has a duty to discuss with the patient whether stipulations at the hearing are appropriate. See A.R.S. § 36537(B), (D) (Supp. 2009). The amendments became effective September 30, 2009. Because Patient s hearing took place before the amendments were effective, the amendments do not resolve the case. 3 that the stipulation to admission of the evaluating physicians affidavits violated her due process rights because the court did not address knowingly, Patient in voluntarily, a colloquy and to determine intelligently whether agreed to she the stipulation in lieu of in-court testimony. ¶7 the Involuntary treatment proceedings must strictly meet statutory requirements. In re Maricopa County Superior Court No. MH 2001-001139, 203 Ariz. 351, 353, ¶ 8, 54 P.3d 380, 382 (App. 2002). We review constitutional and statutory claims de novo. In re MH 2007-001275, 219 Ariz. at 219, ¶ 9, 196 P.3d at 822. Patient failed to raise the argument below, however, and we generally do not consider issues, even constitutional issues, raised for the first time on appeal. Englert v. Carondelet Health Network, 199 Ariz. 21, 26, ¶ 13, 13 P.3d 763, 768 (App. 2000). ¶8 no Consequently, Patient has waived the argument. Even if Patient had not waived the argument, we find error. affidavit [P]arties in place of may stipulate the to physician s the admission testimony. of an In re Maricopa County Superior Court No. MH 2002-000767, 205 Ariz. 296, 301, ¶ 23, 69 P.3d 1017, 1022 (App. 2003). Patient relies almost entirely on two footnotes in prior opinions to support her argument knowingly, that the voluntarily, court and needed to determine intelligently 4 agreed that she to the stipulation. 3 Both footnotes, however, specifically state that they do not address the issue, and are inappropriate to provide support for Patient s argument. See MH 2008-001752, 222 Ariz. at 568 n.1, ¶ 4, 218 P.3d at 1025 n.1; MH 2008-002596, 223 Ariz. at 34 n. 1, ¶ 8, 219 P.3d at 244 n.1. ¶9 Moreover, the case In re MH 2007-001275, 219 Ariz. 216, 196 P.3d 819, cited by distinguishable from this case. the case to the trial court one of the footnotes, is In MH 2007-001275, we remanded to determine whether counsel s waiver [of a contested testimonial hearing] on behalf of the patient was in fact made by the patient. voluntarily, knowingly and intelligently Id. at 221, ¶ 19, 196 P.3d at 824. 3 We The first footnote is from the amended opinion In re MH 2008001752, which stated: Patient does not raise on appeal the issue of her counsel s stipulation to the admission of the physicians affidavits. Therefore, we need not decide whether before accepting the stipulation, the court should have ascertained that the patient had voluntarily, knowingly and intelligently waived her statutory right to have the physicians testify. 222 Ariz. 567, 568 n.1, ¶ 4, 218 P.3d 1024, 1025 n.1 (App. 2009). The second footnote from In re MH 2008-002596 stated: We note that the superior court did not have a colloquy with the patient as to whether the patient understood and would have agreed to the stipulation to waive live testimony from the physicians. We do not address that issue as it was not raised on appeal. 223 Ariz. 32, 34 n.1, ¶ 8, 219 P.3d 242, 244 n.1 (App. 2009). 5 noted, however, that [w]e are not opining that this test would affect every decision made by counsel at a whether to cross-examine particular witnesses. ¶10 hearing, e.g., Id. at n.5. Here, the parties stipulated to the admission of both evaluating physicians affidavits. cross-examined one doctor. The witness is a tactical decision. Patient s counsel, however, decision to cross-examine a See State v. Lee, 142 Ariz. 210, 215, 689 P.2d 153, 158 (1984). Therefore, the stipulation to the admission of the physicians affidavits, and the decision to cross-examine only one doctor were tactical decisions and, as previously Accordingly, colloquy to noted, the do trial ascertain not fall court did whether within not Patient need MH to 2007-001275. 4 engage voluntarily, in a knowingly, and intelligently waived her right for live testimony. 4 To the extent that recent legislative enactments have superseded MH 2007-001275, the case would not apply to matters that arise after the effective date of the legislation. See 2009 Ariz. Sess. Laws, ch. 153 (1st Reg. Sess.) (effective September 30, 2009) (amending, inter alia, A.R.S. §§ 36-537(D), -539(B)). 6 CONCLUSION ¶11 For the foregoing reasons, we affirm the court s involuntary commitment order. /S/ ________________________________ MAURICE PORTLEY, Presiding Judge CONCURRING: /S/ ____________________________ LAWRENCE F. WINTHROP, Judge /S/ ____________________________ MARGARET H. DOWNIE, Judge 7

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