In re MH 2009-001539

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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 DIVISION ONE FILED: 04-13-2010 PHILIP G. URRY,CLERK BY: GH IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE IN RE MH 2009-001539 ) ) ) ) ) ) ) ) ) ) ) ) No. 1 CA-MH 09-0059 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. MH 2009-001539 The Honorable Patricia Arnold, Judge Pro Tem AFFIRMED Andrew P. Thomas, Maricopa County Attorney By Anne C. Longo, Deputy County Attorney Bruce P. White, Deputy County Attorney Civil Division Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Cory Engle, Deputy Public Defender Attorneys for Appellant Phoenix B A R K E R, Judge ¶1 Appellant seeks for involuntary commitment asserting the superior dismissal of mental court an order health was required of treatment to ensure Appellant voluntarily, knowingly, and intelligently waived his right to physicians. have live testimony of the two evaluating Finding no such requirement, we affirm. Facts and Procedural History ¶2 Appellant is a case-managed patient with Magellan and has a history of bipolar disorder, substance abuse, and alcohol abuse. because he drunk Appellant was facing driving a bottles lithium tablets, of response, and ingested resulted in and stressed sentence prison In vodka which depressed ten-year offense. several was for Appellant thirty a drank to forty medical personnel performing emergency hemodialysis on Appellant. This was Appellant s second suicide attempt in two weeks. Appellant previously stabbed himself in the neck with a knife. ¶3 While Appellant was recovering in the hospital, mental health professionals filed a petition for court- ordered evaluation, application for involuntary evaluation, and application for emergency admission. The superior court issued a detention order for evaluation and notice. During Dr. Appellant s Carol insight Olson s and evaluation judgment 2 of appeared Appellant, fair, but Appellant did not think he needed supervised treatment. Dr. Olson made a probable diagnosis of bipolar disorder and alcohol dependence and believed Appellant was a danger to himself. Dr. Tuan-Anh Nguyen also evaluated patient and made a probable diagnosis of bipolar disorder and alcohol dependence. Dr. Olson filed a petition for court-ordered treatment because Appellant had a mental disorder and was a danger to Nguyen himself. detailing Affidavits the from evaluation Dr. and Olson and their Dr. findings accompanied the petition. ¶4 At the hearing for court-ordered treatment on June 26, 2009, the attorneys for both sides stipulated to admission of Dr. Olson s and Dr. Nguyen s affidavits in lieu of appeared live and testimony. testified Two about acquaintance Appellant s history and his recent suicide attempts. of the hearing, the superior court witnesses mental health At the conclusion found by clear and convincing evidence that Appellant had a mental disorder, was a danger to himself, and was unable or unwilling to seek voluntary treatment. The court ordered combined inpatient and outpatient treatment not to exceed 365 days and inpatient treatment not to exceed 90 days. filed a timely notice of appeal. 3 Appellant ¶5 We have jurisdiction pursuant to Arizona Revised Statutes ( A.R.S. ) §§ 36-546.01 (2009), 12-120.21(A)(1) (2003), and 12-2101(K) (2003). Discussion ¶6 Appellant contends the superior court was required to engage in a colloquy with him to ensure that he voluntarily, knowingly, and intelligently waived his right to have two evaluating physicians testify in person at the hearing on the petition for court-ordered treatment. review constitutional claims de novo. In re MH We 2007- 001275, 219 Ariz. 216, 219, ¶ 9, 196 P.3d 819, 822 (App. 2008). court s At the hearing, Appellant made no objection to the acceptance of the stipulation. Appellant waived the issue. Accordingly, Englert v. Carondelet Health Network, 199 Ariz. 21, 26, ¶ 13, 13 P.3d 763, 768 (App. 2000) ( [W]e constitutional generally issues, do not raised consider for the issues, first time even on appeal. ). ¶7 In addition, Appellant invited the alleged error by stipulating to admission of the affidavits and cannot now attempt to profit from the alleged error. [O]ne may not invite error at the trial and then assign it as error on appeal. Acheson v. Shafter, 107 Ariz. 576, 579, 490 P.2d 832, 835 (1971). 4 ¶8 Furthermore, even if we were to consider Appellant s constitutional claim on the merits, we would find no error. Appellant relies on past cases requiring or suggesting that the court engage in a colloquy with the patient to determine knowingly, rights. ¶ 4, and 218 of intelligently the patient agrees to voluntarily, waive statutory See In re MH 2008-001752, 222 Ariz. 567, 568 n.1, P.3d stipulation lieu whether 1024, to the testimony 1025 n.1 admission as a (App. of scenario 2009) physician that (identifying affidavits could require in the court to engage in a colloquy with patient); In re MH 2007001275, 219 Ariz. at 221, ¶ 19, 196 P.3d at 824 (requiring court to engage in colloquy with patient when patient waives right to an adversarial hearing); In re MH 2006000749, 214 Ariz. 318, 324, ¶ 27, 152 P.3d 1201, 1207 (App. 2007) (holding court must find patient s waiver of right to be present intelligent). admission of at hearing is voluntary, knowing, and In MH 2007-001275, a patient stipulated to the entire court file, including witness statements and physician affidavits and agreed the evidence would show he was persistently or acutely disabled. Ariz. at 217-18, ¶ 4, 196 P.3d at 820-21. the superior court to determine 219 We remanded for whether the patient voluntarily, knowingly, and intelligently agreed to waiver 5 of the entire adversarial process. P.3d at 824. Id. at 221, ¶ 19, 196 If not, we required the superior court to conduct the A.R.S. § 36-539 hearing and afford the patient the rights to subpoena witnesses, present confront and cross-examine witnesses. evidence Id. and We further noted: We are not opining that this test would affect every decision made by counsel at the hearing, e.g., whether to crossexamine particular witnesses. Rather, we only address the issue before us that it must be apparent from the record or from a discussion with the patient that waiving the rights attendant to a contested testimonial hearing were voluntarily, knowingly and intelligently made. Id. at n.5. Furthermore, notwithstanding the holding in MH 2007-001275, there knowing, is an intelligent, individual who disease such of required. is inherent and voluntary alleged magnitude tension to have that a in obtaining consent from an mental defect or treatment is involuntary See In re Jesse M., 217 Ariz. 74, 77-80, ¶¶ 17- 30, 170 P.3d 683, 686-89 (App. 2007) (analyzing whether a patient can knowingly, intelligently, and voluntarily waive the right to counsel at an involuntary commitment proceeding). ¶9 Here, Appellant cross-examined the two witnesses at the hearing and only waived the right to confront and 6 cross-examine the evaluating physicians. Counsel s stipulation to the admission of the physician affidavits in lieu of live testimony was a tactical decision. v. Lee, ( [T]he 142 Ariz. decision 210, as 215, to what tactical, strategic decision. the skill, (citations training, omitted)). and 689 P.2d witnesses See State 153, 158 to (1984) call is a Tactical decisions require experience Therefore, of the the court advocate. was not required to engage in a colloquy with Appellant. 1 Conclusion ¶10 For the foregoing reasons, we affirm the superior court s involuntary commitment order. /S/ __________________________________ DANIEL A. BARKER, Judge CONCURRING: /S/ ____________________________________ PATRICIA K. NORRIS, Presiding Judge /S/ ___________________________________ PETER B. SWANN, Judge 1 We note that this issue is moot to the extent arises in future cases because recently enacted amendments A.R.S. § 36-539(B) specifically allow parties to stipulate to admission of physician affidavits. 2009 Ariz. Sess. Laws, 153, § 7 (1st Reg. Sess.). 7 it to the ch.

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