In the Matter of Sandra H.

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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 THE MATTER OF SANDRA H. ) ) ) ) ) ) DIVISION ONE FILED: 04/29/10 PHILIP G. URRY,CLERK BY: JT 1 CA-MH 09-0082 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 28, ARCAP) Appeal from the Superior Court in Mohave County Cause No. MH-2009-0030 The Honorable Lee F. Jantzen, Judge AFFIRMED Jill L. Evans, Mohave County Appellate Defender by Diane S. McCoy, Deputy Appellate Defender Attorneys for Appellant Kingman Matthew J. Smith, Mohave County Attorney Kingman by Dolores H. Milkie, Civil Deputy County Attorney Attorneys for Appellee W I N T H R O P, Judge ¶1 Appellant seeks reversal of the superior court s order for involuntary mental health treatment. She argues: her interview attorney s inability to personally one (1) that of her evaluating physicians ( A.R.S. ) section pursuant 36-537(B) to Arizona (Supp. Revised 2009), Statutes unconstitutionally impacted her due process rights; (2) that the superior court was unable to consider all available and appropriate placement alternatives; and (3) that one of the evaluating doctors failed to explain why Appellant was incapable of alternatives to treatment and placement. understanding the For the reasons set forth below, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 Following petitions for court ordered evaluation and court ordered pursuant to §§ 36-523 treatment, the A.R.S. § 36-539 (2009) court (Supp. 2009). (petition (petition for treatment). superior for held a See also evaluation), 36-533 hearing A.R.S. (2009) Dr. E.L. Harman and Dr. N. Zegarra, Appellant s evaluating physicians, testified, as did two members of the treating hospital s staff and Appellant. ¶3 attempted Prior evaluating interview to to the perform doctors. one hearing, of the his See Appellant s statutory A.R.S. doctors § duty appointed to interview 36-537(B)(4). beforehand, counsel Unable Appellant s 2 to counsel moved for dismissal of the action on due process grounds. court denied the motion. the The ¶4 The court then found Appellant, who suffers from a bipolar disorder, 1 to be persistently and acutely disabled and unwilling to accept voluntary treatment, and ordered Appellant to serve 365 days of combined inpatient and outpatient mental health treatment, with the period of inpatient treatment not to exceed 180 days. Because Appellant was from Pinal County and desired to return home, the court also ordered that she be allowed to transfer her treatment from Mohave to Pinal County for outpatient treatment, if accepted by Pinal County and if in compliance with Pinal County guidelines. ¶5 Appellant filed a timely notice of appeal from the treatment order, and we have jurisdiction pursuant to A.R.S. §§ 12-2101(K) (2003) and 36-546.01 (2009). ANALYSIS ¶6 We will not disturb an order for treatment unless it is clearly erroneous or unsupported by any credible evidence. When reviewing the record, we view the evidence in the light most favorable to sustaining the order. 220 Ariz. 277, 278, ¶ 6, 205 P.3d In re MH 2008-000438, 1124, 1125 (App. 2009) (citations omitted). 1 Appellant was diagnosed with a bipolar disorder in 1984. She successfully treated her condition with lithium until, after about twenty years, the drug became toxic to her system. Her condition deteriorated and she spent most of 2009 in and out of treatment facilities. This action was triggered by Appellant s aggressive behavior toward her son, who was caring for her, and her inability to take care of her activities of daily living. 3 1. Duty to Interview Evaluating Physician ¶7 At the hearing, Appellant argued that her due process rights were violated interview one of the § 36-537(B)(4). because her attorney evaluating physicians was unable to pursuant to A.R.S. On appeal, she argues the statute requiring the interview is unconstitutionally vague. ¶8 will When a case can be decided fairly on other grounds, we not address constitutional issues, raised for the first time on appeal. particularly those In re Appeal in Pima County Mental Health Serv. Action No. MH-1140-6-93, 176 Ariz. 565, 568, 863 P.2d 284, 287 (App. 1993) (citations omitted). Instead, we review statutory claims de novo, with the goal of fulfilling the legislature s intent. Bilke v. State, 206 Ariz. 462, 464, ¶ 11, 80 P.3d 269, 271 (2003); In re MH 2007-001275, 219 Ariz. 216, 219, ¶ 9, 196 P.3d 819, 822 (App. 2008). We first look to the language of the statute itself, and if the language is clear, we apply it without methods of statutory interpretation[.] resorting to other Bilke, 206 Ariz. at 464, 80 P.3d at 271 (citation omitted). ¶9 Although the statute s language is clear, we think it worth noting that the Arizona legislature, through its statutory scheme, has recognized the importance of providing an impaired individual with mental health services. Providing individuals with needed mental health care on a timely basis is an important 4 public policy. . . . [and] the State [has] a strong interest in providing mental health forth in the statutes. services on the expedited statutory set In re MH 2004-001987, 211 Ariz. 255, 260, ¶¶ 22-23, 120 P.3d 210, 215 (App. 2005). truncated basis timetable, those persons Because of the involved in the process may have to adapt and be flexible in order to comply with its requirements. See, e.g., id. at 261, ¶ 26, 120 P.3d at 216 (finding telephonic testimony in proceedings for involuntary mental health treatment necessary to further public policy). One of those requirements is the attorney interview with the evaluating physician. ¶10 See A.R.S. § 36-537(B)(4). Section 36-537 sets forth the powers and duties of counsel in advance of a hearing on a petition for court ordered treatment. Subsection (B) states, in pertinent part: The patient s attorney, for all hearings, whether for evaluation or treatment, shall fulfill the following minimal duties: . . . At least twenty-four hours before the hearing, interview the physicians who will testify at the hearing, if available, and investigate the possibility of alternatives to court-ordered treatment. (Emphasis added.) The counsel s interview with words the if evaluating upon the physician s availability. trial counsel Health while visited she was Dr. Zegarra s seeing available clearly physician contingent In this case, Appellant s office patients. at After Mohave Mental waiting fifty minutes, he left without interviewing the doctor. 5 make The record contains no indication that he attempted a follow up visit with Dr. Zegarra, either in person or telephonically, or that he sought additional time to make pre-hearing contact with her. The court found that statute, trial counsel attempted to under interview unavailable. a strict performed Dr. We agree. his Zegarra, interpretation statutory duty who at was of the when he that time Further, Appellant had the opportunity to review Dr. Zegarra s written evaluation and recommendation before the hearing and to fully confront Dr. Zegarra when she testified, in person, at Appellant s hearing. ¶11 Ultimately, physicians belongs the to the duty to attorney. interview The language evaluating of A.R.S. § 36-537(B)(4) is clear, flexible, and consistent with public policy supporting expedited treatment of mental health cases. On this record, trial counsel s inability to complete an inperson pre-hearing interview with one of the evaluating physicians was not an impingement on Appellant s due process rights. 2. Consideration of Placement Alternatives ¶12 Next, Appellant argues the court lacked evidence as to treatment and placement alternatives least restrictive treatment regimen. (Supp. 2009). Appellant does not sufficient to order the See A.R.S. § 36-540(B) explicitly argue that the court failed to implement the least restrictive treatment, only 6 that it lacked sufficient evidence to make that determination. See A.R.S. § 36-539(B) (Supp. 2009) ( Witnesses shall testify as to placement alternatives appropriate and available for the care and treatment of the patient. ). ¶13 that We disagree. Here, the court found by clear and convincing evidence Appellant persistently or was, as acutely a disabled accept voluntary treatment. 2 options for proposed result of and a mental unwilling or disorder, unable to Under A.R.S. § 36-540(A), placement patients found to be so are outpatient treatment, inpatient treatment, or a combination of both. ¶14 As described supra, Dr. Harman recommended a combination of inpatient and outpatient treatment in both his hearing testimony and treatment recommendation. Further, in consideration of the fact that Appellant s home is located in Pinal County and this action took place in Mohave County, Dr. Harman testified Appellant to that Pinal after County twenty-five for local days, treatment transferring would be a possible treatment option. 3 2 Appellant does not challenge evidence supporting this finding. 3 the sufficiency of the Although the hearing transcript reflects a recommendation that the first 45 days of treatment be at Mohave Mental Health in Kingman, Arizona[,] counsel for Mohave County avers that this is a typographical error. Apparently, Dr. Harman s actual testimony recommended the first twenty-five days of treatment be at Mohave Mental Health. 7 ¶15 Dr. Zegarra s testimony comported with Dr. Harman s; she also testified: [T]he patient is to be stable and remain in the hospital until her thought processing is stable . . . and then probably . . . she can be [managed] in the outpatient basis. Further, the court specifically acknowledged considering the least restrictive alternatives when it elected to order a transfer from Mohave to Pinal County so that Appellant could be closer to her home. ¶16 Appellant s physicians must potential argument treatment combined. We behavior, their testify Dr. treatment to the options: find, Harman as suggests efficacy inpatient, however, and that Dr. that of evaluating each of outpatient, the and Appellant s untreated testimony concerning Zegarra s recommendations, the combined with the court s consideration of Appellant s desire to be close to home, was sufficient to adequately inform the superior court s treatment order. 3. Explanation of Treatment and Alternatives ¶17 failed Finally, to Appellant establish that argues Dr. Appellant Zegarra s was testimony incapable of understanding treatment and placement recommendations, and any alternatives to same, thus triggering the court s authority to direct involuntary treatment, in violation of A.R.S. § 36-539(B) (requiring testimony as to the 8 nature and extent of the persistent and framework, acute doctors disability). must attempt Under to explain the to the statutory proposed patient the advantages and disadvantages of accepting treatment, as well as the alternatives to such treatment and the advantages and disadvantages of those alternatives. In re Commitment of An Alleged Mentally Disordered Person MH 91-00558, 175 Ariz. 221, 225, 854 P.2d 1207, 1211 (App. 1993). explained these matters to the Unless the doctors have mentally-ill person, the applicant cannot establish that such person s capacity to make an informed decision is impaired. Id. We reject Appellant s argument. ¶18 in The hearing transcript indicates that Dr. Zegarra did, fact, testify disadvantages alternatives of to (1) to having treatment, treatment explained (2) and to the advantages and explained the having placement, as well as the advantages and disadvantages of those, and (3) to Appellant s inability to understand the advantages, alternatives to treatment and placement. was brief, subject Dr. herself Zegarra to indicated voluntary disadvantages, and Although her testimony Appellant treatment was unwilling because to Appellant considered that [there] was nothing wrong with her and she was even questioning why she was in the hospital. 9 ¶19 Because Appellant s Dr. ability Zegarra to did, in understand fact, the testify treatments to and alternatives available, we find Appellant s argument unavailing. CONCLUSION ¶20 For the foregoing reasons, we affirm the superior court s order. __________/s/________________ LAWRENCE F. WINTHROP, Judge CONCURRING: ____________/s/__________________ MAURICE PORTLEY, Presiding Judge ___________/s/___________________ MARGARET H. DOWNIE, Judge 10

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