0008. . . . . . . . .In re MH 2009-002504/002618

Annotate this Case

Download PDF

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 2009-002504 ) ) ______________________________________ ) ) ) ) IN RE MH 2009-002618 ) ) _______________________________________ ) DIVISION ONE FILED: 07-13-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-MH 10-0005 1 CA-MH 10-0008 (Consolidated) DEPARTMENT B MEMORANDUM DECISION (Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure) Appeal from the Superior Court in Maricopa County Cause Nos. MH 2009-002504 MH 2009-002618 The Honorable Michael D. Hintze, Judge Pro Tempore AFFIRMED Richard M. Romley, Acting Maricopa County Attorney Phoenix By Anne C. Longo, Deputy County Attorney and Victoria M. Mangiapane, Deputy County Attorney and Bruce P. White, Deputy County Attorney Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Edith M. Lucero, Deputy Public Defender Attorneys for Appellants N O R R I S, Judge Phoenix ¶1 This consolidated appeal arises out of orders entered by the superior court requiring L.F. and C.C. (collectively, appellants ) Before to entering hearings at undergo the involuntary orders, counsel stipulated expressly which to the for admit mental court each the health conducted appellant two treatment. evidentiary and evaluating petitioner physicians affidavits in lieu of their in-person testimony -- a practice now explicitly authorized by a recent statutory amendment. See Ariz. Rev. Stat. ( A.R.S. ) § 36-539(B) (Supp. 2009). 1 ¶2 court Despite the amendment, appellants argue the superior was required to engage in a colloquy with them to determine whether they knowingly, voluntarily, and intelligently waived their rights to have the physicians testify in person. We rejected this argument in In re MH 2009-001264, 224 Ariz. 270, 229 P.3d 1012 (App. 2010), and held such a colloquy was not required. issued Although that decision affirmed a treatment order before the effective date of the amendment, we nevertheless adopt its reasoning and again reject this argument. FACTS AND PROCEDURAL BACKGROUND ¶3 The facts of these cases are undisputed. 1 The superior The evidence presented by the petitioner or the patient shall include . . . testimony of the two physicians who performed examinations in the evaluation of the patient, which may be satisfied by stipulating to the admission of the evaluating physicians affidavits as required pursuant to § 36533, subsection B. (Emphasis reflects legislative amendment.) 2 court found by clear and convincing evidence each appellant was, as a result of a mental disorder, persistently or acutely disabled, in need of psychiatric treatment, and unwilling or unable to accept voluntary treatment. In C.C. s case, the court based its finding on counsel s agreement to stipulate to submit the doctors affidavits in lieu testimony of a police officer, emergency room nurse, all interactions with C.C. of their testimony, and on a crisis therapist, and an three of whom had substantive In L.F. s case, the court based its finding on counsel s agreement the parties are stipulating to the admission of the [physicians ] affidavits, see also infra note 2, and on testimony of a case manager employment specialist and a case manager specialist who had substantive interactions with L.F. The court ordered each appellant to undergo a combination of inpatient and outpatient treatment not to exceed 365 days. Appellants timely appealed. DISCUSSION ¶4 Appellants argue constitutional due process required the superior court to engage in a colloquy to determine whether he or she agreed to the stipulation of physicians affidavits in lieu of their in-person testimony. We constitutional and statutory claims de novo. 001264, 224 Ariz. at __, ¶ 7, 229 P.3d at 1014. 3 generally review In re MH 2009- ¶5 We note appellants failed to raise their argument in the superior court, and we generally do not consider issues, even constitutional appeal. issues, raised for the first time on Id. (quoting Englert v. Carondelet Health Network, 199 Ariz. 21, 26, ¶ 13, 13 P.3d 763, 768 (App. 2000)). Further, appellants invited the alleged error in jointly stipulating the physicians affidavits into evidence. See id. at ¶ 8. By the rule of invited error, one who deliberately leads the court to take certain action may not upon appeal assign that action as error. Id. (quoting Schlecht v. Schiel, 76 Ariz. 214, 220, 262 P.2d 252, 256 (1953) and citing State v. Armstrong, 208 Ariz. 345, 357 n.7, ¶ 59, 93 P.3d 1061, 1073 n.7 (2004)). ¶6 this Considering the merits of appellants claim, however, court s precise opinion question appeal entered is after § 36-539(B). In presented appellants claim. this in here MH 2009-001264 and persuades addressed us to the reject The only difference between that case and that the re here, appellants effective date of treatment the orders amendment to were A.R.S. Neither appellant argues the amended statute is unconstitutional, but they seem to suggest a tension exists between the requirement of the physicians testimony and the practice of admission of the physicians affidavits in lieu of their in-person testimony. We disagree. 4 ¶7 held In In re MH 2009-001264, as here, the superior court a hearing witnesses. at which Appellant . . cross-examined The only right [Appellant] waived was to confront and cross-examine two specific witnesses. had . presumably reviewed the Appellant s counsel affidavits, interviewed the physicians and Appellant, and explained Appellant s rights to [Appellant]. 2 224 Ariz. at __, ¶ 10, 229 P.3d (citing A.R.S. § 36-537(B) (Supp. 2009)). able to assess the effect of the at 1014-15 Thus, counsel was evaluating physicians testimony and determine whether they should appear in person. Id. at __ & n.5, ¶ 10, 229 P.3d at 1015 & n.5. Here, as in In re MH 2009-001264, we have a deliberate decision to forego the attendance whose and written cross-examination testimony of two evaluating presented all statutorily information via sworn affidavit. ¶8 In addition, physicians required Id. at ¶ 11. acquaintance witnesses in appellants cases bolstered the physicians affidavits and the allegations of mental disorder contained therein. affidavit for petitioner s 2 C.C. witnesses stated, and the The first physician s consistent second with testimony physician s of affidavit, Indeed, L.F. s counsel stated to the court: I have reviewed both [physicians ] affidavits with my client. And it is to his benefit to stipulate to the admission of the affidavit, rather than having the live testimony of the doctors. 5 C.C. had been allegedly breaking into motor homes, had given two different names to a DPS officer who found a license with a [third] name, attempted to escape from the emergency room, and had affidavit visual for hallucinations. L.F. stated, The consistent second with physician s testimony of petitioner s witnesses and the first physician s affidavit, L.F. has a long history of mental disorder, stopped taking his medications for the past 2 months and has become increasingly paranoid, delusional, religiously threatening to family members. reasoning in In re MH preoccupied, agitated and On this record and adopting the 2009-001264, we reject appellants contention the superior court must engage in a colloquy with the patient facing involuntary treatment regarding the admission of physicians affidavits in lieu of their in-person testimony. 6 CONCLUSION ¶9 For the foregoing reasons, we affirm the superior court s involuntary mental-health treatment orders. /s/ ___________________________________ PATRICIA K. NORRIS, Judge CONCURRING: /s/ __________________________________ JON W. THOMPSON, Presiding Judge /s/ __________________________________ ANN A. SCOTT TIMMER, Chief Judge 7

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.