In re MH 2007-001113

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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 2007-001113 ) ) ) ) ) __________________________________) DIVISION ONE FILED: 06-29-2010 PHILIP G. URRY,CLERK BY: GH No. 1 CA-MH 09-0064 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. MH 2007-001113 The Honorable Patricia Arnold, Judge Pro Tem AFFIRMED James J. Haas, Maricopa County Public Defender By Kathryn L. Petroff, Deputy Public Defender Attorneys for Appellant Phoenix Magellan Health Services of Arizona, Inc. By Steven B. Wiggs Attorneys for Appellee Phoenix D O W N I E, Judge ¶1 Appellant seeks reversal of an order continuing her involuntary mental health treatment. we affirm. For the following reasons, FACTS AND PROCEDURAL HISTORY 1 ¶2 Appellant treatment, has including a lengthy twelve court orders for treatment. history psychiatric of psychiatric admissions and eight In February 2007, appellant stopped taking her psychiatric medications. In June, she began hearing command hallucinations telling her to pick up a gun or get a knife. Appellant expressed an intent to kill herself jumping off a mountain or shooting or stabbing herself, refused voluntary treatment. for court-ordered evaluation, and but she Her case manager filed a petition evaluation, an by an application application for for emergency involuntary admission for evaluation. ¶3 Dr. Michael Hughes filed a petition for court-ordered treatment, opining persistently appellant or with that appellant acutely was disabled. schizoaffective a danger Dr. disorder, to Hughes self and diagnosed posttraumatic stress disorder, bulimia nervosa, and borderline personality disorder. Although appellant continued to experience auditory hallucinations and suicidal ideations, she refused medications. A second psychotic evaluating disorder. physician Appellant 1 diagnosed told him appellant she had with a visual 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 hallucinations of dead people. She quit taking her medications because she was doing well, and didn t like the side effects of weight gain, drooling, and slurred speech ; she believed it was a coincidence that her symptoms worsened when she stopped the medications. After appellant was a disabled, and it a danger hearing, to ordered self the and court determined persistently combined inpatient or and that acutely outpatient treatment for 365 days. ¶4 2007. Appellant was released to outpatient treatment in July She initially did not take compliant with her appointments. her medications, but was In December, she was referred to an inpatient program for eating disorders; she was discharged three weeks later because she refused to eat and had continued suicidal ideations. treatment, before and a The treatment team recommended continued petition the existing court object and declined a treatment for 365 days. for continued order hearing. treatment expired. The court was Appellant ordered filed did not continued Appellant was initially compliant. By the end of that treatment term, though, she was only partially compliant with medications and had to be placed on injectable medication. The treatment team recommended renewal of the court order. 3 In June 2009, Dr. Carol Olson evaluated appellant.2 ¶5 Appellant was guarded and evasive during an interview. She denied all symptoms, except for anxiety, in automatic fashion, but refused to rate the severity of her eating disorder symptoms or discuss a recent emergency room visit. Appellant believed she no longer had a mental illness and that treatment was not necessary; instead, she hoped to see a therapist to anxiety, childhood abuse, and her eating disorder. thought medication was unnecessary, and if the address Appellant court order expired, she intended to stop all psychiatric medications. Olson believed appellant voluntary lacked treatment sufficient was insight inappropriate into her Dr. because condition to recognize the need for treatment with psychiatric medication and hospitalization when her condition worsened. She recommended that appellant not be released from court-ordered treatment. petition for continued treatment was filed, and A appellant requested a hearing. ¶6 At the July 2, 2009 hearing, appellant stipulated to admitting Dr. Olson s affidavit in lieu of her testimony. Two acquaintance witnesses testified that appellant did well during the last treatment period, but said she had stopped taking her medication and would not resume taking it if the court order 2 Dr. Olson had previously evaluated appellant in connection with the 2008 petition for continuing treatment. 4 expired. Appellant testified she believed the medications were unnecessary as long as she is asymptomatic. She believed she could recognize when she needed help or hospitalization. ¶7 The court found by clear and convincing evidence that appellant suffered from a mental disorder and was still persistently or acutely disabled and in need of treatment; it ordered continued appealed. Statutes We treatment have ( A.R.S. ) for 365 jurisdiction sections days. Appellant timely to Arizona Revised (2003) and pursuant 12-2101(K) 36-546.01 (2009). DISCUSSION ¶8 Appellant continuing her engage a in contends the court-ordered colloquy to trial court treatment; determine erred and (2) whether she by: (1) failing to voluntarily, knowingly, and intelligently waived Dr. Olson s testimony. We review the interpretation of a statute de novo, In re Mental Health 2008-001752, 222 Ariz. 567, 569 n.3, ¶ 7, 218 P.3d 1024, 1026 n.3 (App. 2009) treatment order if it (citation is omitted), supported by and will substantial uphold a evidence. Pima County Mental Health Service Action No. MH 1140-6-93, 176 Ariz. 565, 566, 863 P.2d 284, 285 (App. 1993). the trial court s findings of fact unless We will affirm they are clearly erroneous or not supported by any credible evidence. In re MH 5 94-00592, 182 Ariz. 440, 443, 897 P.2d 742, 745 (App. 1995) (citation omitted). 1. Renewal of Court-Ordered Treatment ¶9 Relying on A.R.S. § 36-543(E) (2009), appellant contends she was not subject to an annual examination because nothing in the record shows that [the the medical director of the mental health treatment agency] determined that Appellant had been substantially noncompliant with treatment during the period of [court-ordered treatment]. 3 this argument in the trial court. typically consider court below. Ariz. 595, issues and Appellant did not raise An appellate court will not theories not presented to the Richter v. Dairy Queen of S. Ariz., Inc., 131 596, 643 P.2d 508, 509 (App. 1982) (citation omitted); Alano Club 12, Inc. v. Hibbs, 150 Ariz. 428, 431, 724 P.2d 47, 50 (App. 1986) (citation omitted). 3 Because appellant Section 36-543(E) provides, in pertinent part: A patient who has been found to be persistently or acutely disabled and who is undergoing court-ordered treatment shall have an annual examination and review to determine whether the continuation of courtordered treatment is appropriate if the medical director of the mental health treatment agency determines that the patient has been substantially noncompliant with treatment during the period of the court order. 6 failed to preserve this argument for purposes of appeal, we deem it waived. 4 ¶10 Appellant also implies she was improperly subjected to annual review treatment compliance. because agency did the not director of personally the mental determine health treatment See A.R.S. § 36-543(E) (requiring an annual review if the medical director of the mental health treatment agency determines that the patient has been substantially noncompliant with treatment during the period of the court order ). However, A.R.S. § 36-503 (2009) allows the medical director to deputize . . . any qualified psychiatrist or licensed physician on the staff of the agency to do or perform in his stead any act the medical director is empowered to do. Dr. Olson s report states she was appointed by or on behalf of the Office of the Medical 4 Even if we considered Appellant s new argument, we would find no error. The record includes sufficient evidence of noncompliance during the last treatment cycle. Appellant was very resistant to taking psychiatric medications. Even when she suffered from command hallucinations and suicidal ideations, appellant did not believe she needed medication. By appellant s own admission, she would not take psychiatric medications if court-ordered treatment expired. Appellant was only partially compliant with medications during the last cycle and had to be placed on injectable drugs due to her refusal to take oral medication. Dr. Olson s 2009 report noted that appellant failed to acknowledge any potential negative consequences to stopping all of her medication. Given appellant s history, her refusal to take medication could be considered substantial noncompliance. 7 Director to conduct the annual evaluation. Nothing in the record contradicts this claim. 2. ¶11 Waiver of Testimony Finally, appellant contends her due process rights were violated because the trial court failed to engage in a colloquy to determine whether she voluntarily, knowingly, and intelligently waived Dr. Olson s testimony. Appellant did not raise this argument below and indeed invited any arguable error. Moreover, our recent decision in In re MH 2009-001264, ___ Ariz. ___, ___, ¶ 11, 229 P.3d 1012, 1015 (App. 2010), is directly on point and is dispositive of appellant s new claim. CONCLUSION ¶12 For the foregoing reasons, we affirm the order for continued involuntary mental health treatment. /s/ MARGARET H. DOWNIE, Presiding Judge CONCURRING: /s/ DONN KESSLER, Judge /s/ PETER B. SWANN, Judge 8

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