In re MH 2009-001824

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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 2009-001824 DIVISION ONE FILED: 06-24-010 PHILIP G. URRY,CLERK BY: GH 1 CA-MH 09-0072 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause No. MH-2009-001824 The Honorable Patricia Arnold, Commissioner AFFIRMED James J. Haas, Maricopa County Public Defender By Kathryn L. Petroff, Deputy Public Defender Attorneys for Appellant Phoenix Richard M. Romley, Maricopa County Attorney By Anne C. Longo, Deputy County Attorney And Victoria M. Mangiapane, Deputy County Attorney Attorneys for Appellee Phoenix T H O M P S O N, Judge ¶1 Appellant seeks reversal of the trial 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 physicians who evaluated her testify at her treatment ordered hearing. treatment She also (PCOT) statutorily defective. argues and the petition physicians for court- affidavits were For the reasons that follow, we affirm. FACTUAL AND PROCEDURAL HISTORY ¶2 Appellant is diagnosed with probable schizophrenia and a cognitive or mood disorder. an emergency room psychologist submitted an paranoid In July, 2009, Application for Involuntary Evaluation (AIE) to Urgent Psychiatric Care (UPC), alleging appellant was persistently or acutely disabled (PAD). The psychologist noted that appellant had a long history of psychiatric care for paranoid schizophrenia and an unspecified personality disorder. resulted in her She further noted appellant s paranoia refusal to comply with cellulitis, lymphedema, and diabetes. noted appellant infections and refused was wound non-compliant care with health care for her The psychologist further of her bilateral follow-up leg appointments with her physicians. ¶3 A crisis therapist prepared a Pre-Petition Screening Report and recommended an inpatient evaluation, noting appellant had hugely swollen legs with bubble-like infections. She further noted appellant showed poor insight into her medical 2 needs and severity of her medical condition and an unwillingness to consider the possible relationship between mental health issues and poor self-care. ¶4 A few days later, a physician filed a petition for court-ordered evaluation (PCOE) asserting that there was reasonable cause to believe appellant was PAD and in need of treatment as a result of a mental disorder. He noted appellant consistently refused voluntary treatment, has multiple medical problems that her paranoia interferes with, had been diagnosed with schizophrenia in the past, and was not caring for her medical problems due to her paranoia. ¶5 The superior court ordered appellant to be evaluated. Following evaluations by two physicians, a PCOT was filed. petition was physicians disabled. ¶6 supported who by concluded the that affidavits appellant of was the PAD The evaluating and gravely The court set a hearing on the PCOT. At the hearing in August 2009, counsel for both parties stipulated to the admission of the 72-hour medication affidavit and the affidavits of the two evaluating physicians in lieu of in-person testimony. testified and were Appellant testified During the hearing, two witnesses cross-examined on her own closing arguments. 3 by behalf appellant s and her attorney. counsel made ¶7 At the conclusion of the hearing, the court found, by clear and convincing evidence, that appellant was persistently and acutely disabled as a result of a mental disorder. 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. ordered appellant to undergo a combination of The court inpatient and outpatient treatment for a period not to exceed 365 days, with inpatient treatment not to exceed 180 days. ¶8 Appellant pursuant to timely Arizona appealed. Revised We Statutes have (A.R.S.) jurisdiction §§ 12-2101(K) (2003) and 36-546.01 (2009). DISCUSSION ¶9 Appellant raises two issues on appeal, which we consider in turn. 1. Stipulation of Physicians Affidavits ¶10 her Appellant first argues that the trial court violated right to due process when it did not ascertain whether appellant knowingly, intelligently, and voluntarily waived her right to have the physicians testify at her treatment hearing prior to accepting affidavits. appeal. the stipulation to admit the physicians Appellant raises this issue for the first time on We generally do not consider issues on appeal that were not raised in the superior court, even constitutional issues. 4 Englert v. Carondelet Health Network, 199 Ariz. 21, 26, ¶ 13, 13 P.3d 763, 768 (App. 2000). However, waiver is procedural, not jurisdictional, and we may address the issue in our discretion. In re MH 2007-001275, 219 Ariz. 216, 219, ¶ 11, 196 P.3d 819, 822 (App. 2008). ¶11 Civil commitment deprivation of liberty. hearings may result in a serious In re Commitment of Alleged Mentally Disordered Person, Coconino County No. MH 1425, 181 Ariz. 290, 293, 889 P.2d 1088, 1091 (1995). The proposed patient, therefore, is entitled to due process, which includes a full and fair adversarial proceeding. Ariz. at 220, ¶ 13, 196 P.3d at 823. In re MH 2007-001275, 219 The trial court must hold a hearing prior to ordering treatment. provides [t]he evidence presented by A.R.S. § 36-539(B) the petitioner or the patient shall include . . . 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. 1 1 We note that the legislature amended A.R.S. § 36-537(B), which now explicitly permits the parties to stipulate to the admission of the physicians affidavits. A.R.S. § 36-537(B) (Supp. 2009) (testimony of physicians may be satisfied by stipulating to the admission of the evaluating physicians affidavits ). This statute became effective September 30, 2009. See 2009 Ariz. Sess. Laws, ch. 153, § 7 (1st Reg. Sess.). Because appellant s treatment hearing took place prior to the effective date of the new statute, we consider this appeal under the prior version of the statute. 5 ¶12 Appellant relies on In Re MH 2007-001275, in which we held the superior court erred by accepting a patient s waiver of the entire hearing required by A.R.S. § 36-539 without first establishing that the waiver was given knowingly, intelligently, and voluntarily. (App. 2008). opining that counsel at 219 Ariz. 216, 217, ¶ 1, 196 P.3d 819, 820 In that case, however, we stated, We are not this the test would hearing, particular witnesses. affect e.g., every whether decision to made by cross-examine Id. at 221, n.5, ¶ 19, 196 P.3d at 824, n.5. ¶13 Here, appellant did not waive her right to the entire hearing. Appellant s attorney cross-examined the two witnesses who testified and appellant testified on her own behalf. stipulating to the admission of the physicians By affidavits, appellant s attorney effectively made the decision not to crossexamine the evaluating physicians. Typically, whether and how to present and cross-examine witnesses is a question of trial strategy that is controlled by counsel and does not require a knowing, voluntary, and intelligent waiver by the client. In re MH 2009-001264, ___ Ariz. ___, ___, n.5, 229 P.3d 1012, 1015 (App. 2010) (citations omitted). ¶14 where We addressed the same issue in In re MH 2009-001264, the appellant stipulated to the admission of the two evaluating physicians affidavits in lieu of live testimony but 6 otherwise was present at trial, testified, and cross-examined other witnesses. Id. at ___, ¶ 4, 229 P.3d at 1012. We held no colloquy was required in such cases because (1) the appellant did not raise the issue in the trial court; (2) the appellant invited the alleged error by jointly stipulating to the admission of the affidavits; and, (3) counsel for the appellant made a tactical decision to waive confront and cross-examine witnesses. the patient s right to Id. at ___, ¶¶ 7-11, 229 P.3d at 1013. ¶15 The same circumstances are presented here. Consistent with In re MH 2009-001264, we find the trial 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 physicians affidavits. 2. Sufficiency of the PCOT and Physicians Affidavits ¶16 Appellant claims her due process rights were violated, alleging the PCOT and physicians affidavits were statutorily defective. result in Because a serious involuntary deprivation treatment of proceedings appellant s interests, statutory requirements must be strictly met. may liberty In re Maricopa County Superior Court No. MH 2001-001139, 203 Ariz. 351, 353, ¶ 8, 54 P.3d 380, 382 (App. 2002) (citation omitted). Questions of statutory reviewed de novo. interpretation Id. 7 in this context are ¶17 Appellant failed to raise these issues in the trial court and has therefore waived them. See Estate of Reinen v. N. 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. ) However, even if the issues were not waived, we find no error. A. PCOT ¶18 does Appellant not identify petition. asserts the the PCOT deficient agency screening is that because prepared it the She contends that A.R.S. § 36-523(D) (2009) clearly requires the PCOT to be filed only by a named screening agency which has prepared the petition. interpretation of the statute. We Petition for appellant s We note that A.R.S. § 36-523(D) applies only to the PCOE; not to the PCOT. (entitled reject evaluation). See A.R.S. § 36-523 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. language demands petitions. that A.R.S. § 36-523(D). the screening agency Nothing in this be named in the The identity of the screening agency in this case is easily discernable by the record. ¶19 The applicable statute is A.R.S. § 36-533 (2009). Similar to § 36-523, nothing in § 36-533 requires the screening 8 agency be named. about the A PCOT requires only that certain information 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. We find no deficiency in this case because the PCOT conformed to the statutory requirements. B. Physicians Affidavits ¶20 Appellant also contends the physicians affidavits were defective because they failed to describe the physicians qualifications Pursuant to to A.R.S. perform § the 36-501 evaluations (12) (a) of appellant. (2009), evaluating physicians must be licensed physicians, who shall be qualified psychiatrists, if possible, or at least experienced in psychiatric matters[.] ¶21 Here, each affidavit was signed, dated, and notarized, and stated that the affiant is a physician and is experienced in psychiatric matters[,] and indicates the physician is an M.D. We find nothing in the record to support appellant s assertion that the affidavits proffered by the Petitioner were deficient in asserting the physicians credentials. MH 2009-001264, ___ Ariz. at ___, ¶ 14, 229 See In re P.3d at 1015 (finding sufficient proof of physicians credentials based on affiants statements that they were physicians and experienced 9 in psychiatric claim and find matters). the PCOT Accordingly, and we physicians reject appellant s affidavits met all statutory requirements. CONCLUSION ¶22 For the foregoing reasons, we affirm the trial court s order. /s/ _____________________________ JON W. THOMPSON, Judge CONCURRING: /s/ ___________________________________ MICHAEL J. BROWN, Presiding Judge /s/ ___________________________________ SHELDON H. WEISBERG, Judge 10

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