In re MH 2009-001140

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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: No. MH 2009-001140 ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 05-11-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-MH 09-0061 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules Of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. MH 2009-001140 The Honorable Patricia Arnold, Judge Pro Tempore AFFIRMED James J. Haas, Maricopa County Public Defender By Kathryn L. Petroff, Deputy Public Defender Attorneys for Appellant Phoenix Andrew P. Thomas, Maricopa County Attorney By Anne C. Longo, Deputy County Attorney And Bruce P. White, Deputy County Attorney Attorneys for Appellee Phoenix B R O W N, Judge ¶1 Appellant seeks reversal of the superior court s order for involuntary mental health treatment. She argues that the court was required to engage in a colloquy with her to determine whether she knowingly, voluntarily, and intelligently waived her right to have the She also person. credentials were physicians argues not who that evaluated the sufficiently her evaluating testify in physicians established and thus confinement based on their affidavits constitutes a violation of her due process rights. For the following reasons, we affirm. BACKGROUND ¶2 Appellant is diagnosed with depressive disorder and borderline personality disorder and has received mental health treatment for many years; most recently through Magellan Health Services. In June 2009, Dr. Michael Levitt filed a petition for court-ordered evaluation ( PCOE ) asserting that Appellant was refusing contact with her clinical treatment team and accusing the team of working against her. to make informed evidenced by decisions her inability medication bottles. maintain a safe He noted that she was unable regarding to her follow mental health, directions on as her He also noted that Appellant was unable to living environment and had been given an eviction notice for failure to keep her apartment clean; she also refused to allow anyone in to assist her with the cleaning. Appellant fell in her apartment twice on the same day due to 2 garbage accumulation. Dr. Levitt concluded that Appellant was unable to care for herself, including bathing, preparing meals, or following directions on medication bottles. ¶3 An application for involuntary evaluation was completed by a member of Appellant s clinical team at Magellan Health Services and submitted with the PCOE. The superior court ordered Appellant to be involuntarily detained and evaluated. Following evaluations by two physicians, a petition for courtordered treatment ( PCOT ) was filed. The petition was supported by the affidavits of the evaluating physicians who concluded that Appellant was persistently or acutely disabled. A combination recommended. of inpatient The court and ordered outpatient detention treatment of was Appellant, appointed counsel to represent her, and set a hearing on the PCOT. ¶4 the At the hearing, counsel for both parties stipulated to admission of the 72-hour medication affidavit and the affidavits of the two evaluating physicians in lieu of in-person testimony. Appellant s stipulation. During the counsel hearing, testified and were cross-examined. expressly two confirmed acquaintance the witnesses Appellant testified on her own behalf and her counsel made closing arguments. ¶5 At the conclusion of the hearing, the court found, by clear and convincing evidence, that Appellant was persistently 3 and acutely disabled as a result of a mental disorder and in need of psychiatric treatment. The court concluded that because Appellant was either unwilling or unable to accept voluntary treatment there was no appropriate or available alternative to court-ordered treatment. It ordered Appellant to undergo a combination of inpatient and outpatient treatment for a period not to exceed 365 days, with inpatient treatment not to exceed 180 days. Appellant timely appealed. DISCUSSION I. Affidavits in lieu of In-Person Testimony ¶6 Appellant violated her right first to argues due that process by the superior stipulating court to the physicians affidavits in lieu of their testimony without first determining that Appellant knowingly, intelligently, and voluntarily waived her right to have the doctors testify before her. Generally, we review constitutional and statutory claims de novo. In re MH 2007-001275, 219 Ariz. 216, 219, ¶ 9, 196 P.3d 819, 822 (App. 2008). Appellant, however, failed to raise this argument in the superior court and we generally do not consider issues, even first time on appeal. constitutional issues, raised for the Englert v. Carondelet Health Network, 199 Ariz. 21, 26, ¶ 13, 13 P.3d 763, 768 (App. 2000) (citation omitted). Even assuming that the issue was properly raised, we disagree with Appellant s argument. 4 ¶7 Before mandating court-ordered treatment, the court is required to conduct a hearing in accordance with Arizona Revised Statutes ( A.R.S. ) section 36-539(B) (Supp. 2009). 1 At the time of the PCOE, the statute read in pertinent part: The evidence presented by the petitioner or the patient shall include the . . . testimony of the two physicians who performed examinations in the evaluation of the patient. The physicians shall testify as to their personal examination of the patient. They shall also testify as to their opinions concerning whether the patient is, as a result of mental disorder[,] persistently or acutely disabled[.] ¶8 Appellant cites In re MH 2007-001275 to support her assertion that a colloquy is required. 196 P.3d at 821. 219 Ariz. at 218, ¶ 4, In that case, the patient waived his right to the entire hearing on court-ordered treatment and agreed to have the matter affidavits decided from based two personal testimony. solely evaluating Id. on his file, physicians in which lieu included of their On appeal, we concluded that such an extensive waiver one that necessarily excludes the right to be present at trial, present evidence, and confront and cross- examine witnesses required a determination that it had been made voluntarily, knowingly, and intelligently. Id. at 221, ¶ 19, 196 P.3d at 824. 1 We cite the current version of the applicable statutes if no revisions material to this decision have since occurred. 5 ¶9 Here, Appellant did not waive her right to the entire hearing. The hearing was conducted, Appellant was present and represented by counsel, she testified on her own behalf, and the testifying witnesses were cross-examined by Appellant s counsel. Appellant waived only the right to confront and cross-examine the evaluating physicians. MH 2009-001264, February 25, 1 CA-MH 2010). We addressed the same issue in In re 09-0048, There, the 2010 WL 681685 patient (Ariz. stipulated App. to the admission of the two evaluating physicians affidavits in lieu of live testimony but otherwise was present at trial, testified, and cross-examined the witnesses who testified. at *1, ¶ 4. In addition, the patient s Id., slip op. counsel expressly stipulated to the admission of the physicians affidavits in lieu of their personal testimony, presumably after reviewing the affidavits and interviewing both the physicians and the patient and explaining the patient s rights to him. *3, ¶ 10. because Id., slip. op. at We held that no colloquy was required in such cases (1) the patient failed to raise the issue in the superior court, (2) the patient invited the error by jointly stipulating to admission of the affidavits, and (3) counsel for the patient made a tactical decision to waive right to confront and cross-examine witnesses. **2-3, ¶¶ 7-11. The same circumstances are the patient s Id., slip op. at presented here. Thus, consistent with In re MH 2009-001264, we conclude that the 6 superior court did not deprive Appellant of her right to due process by failing to conduct a colloquy with Appellant prior to accepting the stipulation for admission of the physician affidavits. II. ¶10 Sufficiency of Evidence for Involuntary Treatment Appellant next raises several arguments regarding the contents of the physicians affidavits. raise any therefore of these waived issues them. in See the Estate However, she failed to superior of court Reinen v. and N. has Ariz. Orthopedics, Ltd., 198 Ariz. 283, 286, ¶ 9, 9 P.3d 314, 317 (2000) ( An objection to proffered testimony must be made either prior to or at the time it is given, and failure to do so constitutes a waiver. ) Even if the issues were not waived, we find no error. ¶11 Appellant argues that the PCOE, PCOT, and physicians affidavits were statutorily defective. Because involuntary treatment proceedings may result in a serious deprivation of appellant s liberty strictly met. interests, statutory requirements must be In re Maricopa County Superior Court No. MH 2001-001139, 203 Ariz. 351, 353, ¶ 8, 54 P.3d 380, 382 (App. 2002) (citation omitted). are reviewed de novo. ¶12 Questions of statutory interpretation Id. Appellant asserts that the PCOE and PCOT are deficient because they do not identify the screening agency that prepared 7 the petition. She contends that A.R.S. § 36-523(D) (2009) clearly requires the PCOE and PCOT to be filed only by a named screening agency which has prepared the petition. Appellant s interpretation of the statute cannot be supported. ¶13 the First, we note that A.R.S. § 36-523(D) applies only to PCOE; not to the PCOT. Petition for evaluation). See A.R.S. § 36-523 (entitled Second, subsection (D) of the statute provides that [a] petition and other forms required in a court may be filed only by the screening agency which has prepared the petition. A.R.S. § 36-523(D). Nothing in this language demands that the screening agency be named in the petitions. Nevertheless, the record here shows that the identity of the screening agency is easily discernable. ¶14 Prior to completing and submitting a PCOE, an application for such an evaluation must be completed by any responsible individual and presented to a screening agency. A.R.S. § 36-520 (2009). The application for PCOE in this case was completed by a member of Appellant s outpatient clinical team 2 and submitted screening agency. to Magellan Health Services as the The application accompanies the PCOE. In this case it is clear from reviewing these documents together that the screening agency was Magellan Health Services and that 2 The application was signed by identified herself as a member of CT. 8 Barbara Bachicke who Dr. Levitt, who signed the PCOE, prepared the petition in his capacity as medical director of that agency. ¶15 As for the PCOT, the relevant statute is A.R.S. § 36- 533 (2009). Similar to A.R.S. § 36-523, nothing in § 36-533 requires that the screening agency be named. In fact, nothing in this section refers to a screening agency at all. requires only that certain information about the A PCOT patient be alleged, that it be accompanied by affidavits of two physicians who conducted examinations during the evaluation period, and that it request the court to order a period of treatment for the patient. A.R.S. § 36-533. necessary information Here, the PCOT properly included the about Appellant, it was accompanied by affidavits from two doctors, Dr. Sweeney and Dr. Nguyen, and it requested treatment. ¶16 We find no deficiencies on these facts. Appellant further argues that the PCOT affidavits are deficient because there is insufficient proof of the evaluating physicians [n]othing doctors credentials. in were the record psychiatrists, Specifically, demonstrates or . qualified to practice in Arizona. 501(12)(a) (2009), evaluating . . she that states the licensed that evaluating physicians Pursuant to A.R.S. § 36- physicians must be licensed physicians, who shall be qualified psychiatrists, if possible, or at least experienced in psychiatric matters[.] 9 ¶17 were The record indicates that the physicians credentials sufficient affidavit, affiant to signed, is a meet the dated, statutory physician and and requirements. notarized, is asserts experienced in Each that the psychiatric matters[,] and indicates that the physician is an M.D. In addition, the Notice of Right to Choose Evaluating Psychiatrist provided to Appellant prior to evaluation lists Dr. Sweeney as a psychiatrist available for court-ordered evaluations. It also lists the physician supervising Dr. Nguyen in her residency, Dr. Hadziahmetovic. The record further includes a resident supervision affidavit from Dr. Hadziahmetovic attesting to Dr. Ngyuen s role as a resident physician at the Maricopa Medical Center, Psychiatric Services division. record to proffered support by the Appellant s Petitioner We find nothing in the assertion were that deficient the in affidavits asserting the physicians credentials. See In re MH 2009-001264, 1 CA-MH 09- 0048, ¶ slip op. at *4, 14 (finding sufficient proof of physicians credentials based on affiants statements that they were physicians and experienced in psychiatric matters). ¶18 affidavits Lastly, were Appellant deficient internal inconsistencies. 3 contends substantively that the because physicians they contain We defer to the factual findings of 3 Appellant makes much of the date on Dr. Nguyen s affidavit which predates the filing of the application for involuntary 10 the superior court, but review the legal conclusions de novo. In re MH 2004-001987, 211 Ariz. 255, 260, ¶ 24, 120 P.3d 210, 215 (App. 2005). We view the facts in the light most favorable to sustaining the trial court s judgment and will not set aside the related findings unless they are clearly erroneous. In re MH 2008-001188, 221 Ariz. 177, 179, ¶ 14, 211 P.3d 1161, 1163 (App. 2009) (citation omitted). ¶19 There is ample evidence in the record to support the superior court s conclusion that Appellant was persistently or acutely disabled as a result of a mental disorder. opined that Appellant was actively psychotic, Dr. Sweeney her thought processes were extremely loose and disorganized, and that she was unable to function in an independent way. Dr. Nguyen likewise noted that Appellant had severe paranoid delusions and auditory hallucinations. Appellant was disabled at Both physicians concluded that the time living for her health and safety. and required supervised In addition, contrary to Appellant s assertion that no evidence supported a conclusion that she clearly would reflects not accept that both voluntary Dr. treatment, Sweeney and the Dr. record Nguyen affirmatively stated that Appellant refused to accept voluntary psychiatric treatment. evaluation by several months. Based on the other evidence in the record, we view this as a typographical error and nothing more. 11 CONCLUSION ¶20 For the foregoing reasons, we affirm the superior court s involuntary commitment order. /s/ _________________________________ MICHAEL J. BROWN, Judge CONCURRING: /s/ ______________________________ PATRICK IRVINE, Presiding Judge /s/ ______________________________ DONN KESSLER, Judge 12

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