In re MH 2009-001747

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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 MH2009-001747 ________________________________ ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 07-08-2010 PHILIP G. URRY,CLERK BY: DN 1 CA-MH 09-0070 DEPARTMENT B MEMORANDUM DECISION Not for Publication (Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. MH2009-001747 The Honorable Patricia Arnold, Judge Pro Tempore AFFIRMED Maricopa County Public Defender s Office By Kathryn L. Petroff, Deputy Public Defender Attorneys for Appellant Phoenix Maricopa County Attorney s Office By Anne C. Longo, Deputy County Attorney Victoria M. Mangiapane, Deputy County Attorney Attorneys for Appellee Phoenix G E M M I L L, Judge ¶1 Appellant seeks reversal of the July 23, 2009 court order for involuntary mental health treatment. the treatment court should have She argues that determined whether she had knowingly, intelligently, and voluntarily waived her right to have the evaluating physicians testify at her treatment hearing. She also because argues the supporting that the petition affidavits treatment for order court-ordered were statutorily should be treatment vacated the For defective. and the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 On July 12, 2009, Officer Rabago submitted applications for involuntary evaluation and emergency admission for evaluation herself and a of Appellant, danger to alleging others. she was Appellant s a danger to behavior -- threatening others and damaging property, resisting arrest, and asserting that she was working for and protected by various government agencies -- prompted Officer Rabago to take Appellant to Magellan Urgent Psychiatric Care for further evaluation. Dr. Williamson, the Medical Director at Magellan, filed a petition for court-ordered evaluation of Appellant. ¶3 On July 16, 2009, Dr. Olson filed a petition for court-ordered treatment supported by the affidavits of Dr. Olson and Dr. Santos as evaluating physicians, concluding Appellant was persistently or acutely disabled and recommending combined 2 inpatient and outpatient treatment. The superior court issued a detention order for evaluation and notice, and set a hearing on the petition for court-ordered treatment for July 23, 2009. ¶4 At the hearing, both parties stipulated to the admission of the affidavits of Dr. Olson and Dr. Santos in lieu of their medication Officers testimony and affidavit Rabago to the by signed and admission Nurse Schabron of the 72-hour Practitioner testified on behalf Fagen. of petitioner, and Appellant testified on behalf of herself. review of the file, including the affidavits, all the Upon matters presented, and the testimony of the witnesses, the court found by clear and convincing evidence that Appellant was persistently or acutely disabled and in need of mandatory treatment. The court and ordered that Appellant undergo combined inpatient outpatient treatment for a period not to exceed 365 days with the inpatient timely treatment appealed. We not have to exceed jurisdiction 180 days. pursuant Appellant to Arizona Revised Statutes ( A.R.S. ) section 36-546.01 (2009). ANALYSIS ¶5 The issues Appellant raises on appeal have recently been resolved by this court in In re MH 2009-001264, __ Ariz. __, 229 P.3d 1012 (App. 2010). 3 A. The Stipulated Admission of the Affidavits. ¶6 Appellant claims the court s failure to perform a colloquy to determine whether she knowingly, voluntarily, and intelligently waived her right to cross-examine the evaluating physicians violated her due process rights. Relying on In re MH 2007-001275, 219 Ariz. 216, 196 P.3d 819 (App. 2008), she argues that the right to cross-examine witnesses is similar to the right to a hearing, and thus, the court is required to investigate whether that right was knowingly, voluntarily, and intelligently waived. See 219 Ariz. at 221, ¶ 18, 196 P.3d at 824 (holding that a court must investigate whether waiver of the rights to present evidence and subpoena, confront and crossexamine witnesses at a 539 hearing . . . is voluntarily, knowingly and intelligently made ). ¶7 Appellant s analogy to MH 2007-001275 is not persuasive. As explained in MH 2009-001264, waiving the entire adversarial hearing by stipulating to the contents of the court s file is significantly different from waiving the right to confront and cross-examine the evaluating physicians. 2009-001264, __ Ariz. (emphasis in original). at __, ¶ 9-10, 229 P.3d at MH 1014-1015 The latter is a tactical decision of the attorney that is presumed to have been made after assessing the effect of the evaluating physicians testimony determin[ing] whether they should appear in person. 4 and Id. at __, ¶ 10, 229 P.3d at 1015. superior court s Appellant s failure knowing, Accordingly, we find no error in the to perform voluntary and a colloquy intelligent regarding waiver of her right to procure the evaluating physicians testimony. ¶8 Moreover, because Appellant did not raise the argument below, we will not consider the issue on appeal. See id. at __, ¶ 7, 229 P.3d at 10134. B. Statutory Basis for the Order for Involuntary Treatment. ¶9 Appellant also contends that the court order for involuntary treatment should be vacated because the supporting affidavits and the petition for court-ordered treatment are statutorily defective. ¶10 Appellant argues that the physicians qualifications are not adequately established in the record. opening brief acknowledges, however, the evidence of the physicians qualifications. As Appellant s record contains In MH 2009-001264, we found that sufficient proof of the physicians qualifications was satisfied by the signed affidavits stating the affiant is experienced in psychiatric matters and is an M.D., and the inclusion of both physicians as attending could be chosen to evaluate the Appellant. P.3d at 1015. indicate the psychiatrists that Id. at __, ¶ 14, 229 Similarly, in this case, the affidavits each affiant psychiatric matters. is an M.D. and is experienced in Both affidavits are subscribed and sworn 5 before a notary public. And both physicians are listed as attending physicians at the Desert Vista Campus on Appellant s Notice of Right to Choose Evaluating Psychiatrist. ¶11 Additionally, the objection to the physicians qualifications is untimely because it is raised for the first time on appeal. See MH 2009-001264, __ Ariz. at __, ¶ 13, 229 P.3d at 1015 ( 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. (quoting Estate of Reinen v. N. Ariz. Orthopedics, Ltd., 198 Ariz. 283, 286, ¶ 9, 9 P.3d 314, 317 (2000))). ¶12 Appellant also challenges the qualifications of Nurse Practitioner Fagen, affidavit. The reasonable who purpose precautions completed of have her the 72-hour affidavit been taken is to to medication verify insure that that the patient will not be so under the influence of or so suffer the effects hampered of in drugs, medication preparing for or treatment participating or other in as the to be hearing. A.R.S. § 36-539(A) (Supp. 2009). The statute does not set out specific the affiant, requirements and we see regarding no reason to qualifications inject any. of the Furthermore, rather than raising an objection at the proper time, Appellant stipulated to the admission of the 72-hour medication affidavit. 6 Thus, this argument has also been waived. See MH 2009-001264, __ Ariz. at __, ¶ 13, 229 P.3d at 1015. ¶13 As her final argument, Appellant contends that the petition for court-ordered treatment was statutorily defective because it did not comply with A.R.S. § 36-523(D) (2009), which states that [a] petition and other forms required in a court may be filed only by the screening agency which has prepared the petition. The statutory requirements of § 36-523(D), however, apply only to the petition for evaluation -- not to the petition for court-ordered treatment. this appeal. Only the latter is at issue in The inclusion of other forms in § 36-523(D) contemplates additional documents that may be required to be filed with the petition for evaluation. In contrast, the petition for court-ordered treatment is governed by § 36-533 (2009), which physicians who evaluation. case is requires accompanying conducted the affidavits examinations of the during two the The petition for court-ordered treatment in this supported by the affidavits as stipulated to by Appellant, and there is no statutory defect. ¶14 Additionally, we note that Appellant raises her objection to the petition for court-ordered treatment for the first time on appeal, and we consider it to have been waived. See MH 2009-001264, __ Ariz. at __, ¶ 7, 229 P.3d at 1014. 7 CONCLUSION ¶15 For these reasons, we affirm the court order for Appellant s involuntary mental health treatment. ____/s/__________________________ JOHN C. GEMMILL, Presiding Judge CONCURRING: ____/s/__________________________ PATRICIA K. NORRIS, Judge ____/s/__________________________ MAURICE PORTLEY, Judge 8

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