In re MH2010-001938
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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 MH2010-001938
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DIVISION ONE
FILED: 09/22/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
1 CA-MH 10-0067
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Not for Publication –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. MH2010-001938
The Honorable Michael D. Hintze, Judge Pro Tempore
AFFIRMED
William G. Montgomery, Maricopa County Attorney
By
Bruce P. White, Deputy County Attorney
Anne C. Longo, Deputy County Attorney
Attorneys for Appellee
Phoenix
Maricopa County Legal Defender
By
Colin F. Stearns, Deputy Legal Defender
Attorneys for Appellant
Phoenix
G E M M I L L, Judge
¶1
Appellant
involuntary
arguments:
complete
mental
challenges
health
an
order
treatment,
of
making
commitment
the
for
following
the evaluating physicians failed to comply with the
physical
examination
statutory
requirement,
the
evidence presented was insufficient to support the trial court’s
finding that she was persistently or acutely disabled, the court
erred
in
denying
Appellant’s
request
Appellant’s counsel was ineffective.
to
waive
counsel,
and
For the following reasons,
we affirm.
FACTS AND PROCEDURAL HISTORY
¶2
A crisis therapist filed a Petition for Court-Ordered
Evaluation
(“PCOE”)
of
Appellant
in
August
2010.
The
PCOE
stated that Appellant had gone to the emergency room for heat
stroke.
The therapist noted that Appellant was “very paranoid”
and “delusional.”
The therapist believed Appellant was “too
confused to answer questions logically” and lacked “insight and
judgment,” and Appellant’s thought process was “confused, loose,
and tangential.”
Appellant reported that “people were trying to
kill her, beat her up, drug her, take her belongings, break into
her
house,
change
her
paperwork,
make
her
chemicals on her to I.D. her and poison her.”
join
a
cult,
put
Appellant was not
eating, drinking, or sleeping, and she was barricading herself
in her home and R.V.
Appellant stated that she was not eating
because people were spraying her with chemicals.
She witnessed
seeing “covert ghost people” and people trying to break into her
home.
world.”
Appellant also believed “the devil [had] taken over the
The
court
subsequently
detained for evaluation.
2
ordered
that
Appellant
be
¶3
Dr.
Hughes
filed
a
Petition
for
Court-Ordered
Treatment (“PCOT”), stating that Appellant was persistently or
acutely disabled as a result of a mental disorder.
interviewed
Appellant,
and
he
identified
Dr. Hughes
Appellant
psychotic disorder, not otherwise specified.
as
having
In an affidavit
attached to the PCOT, Dr. Hughes noted that Appellant voiced
“delusional content” related to a perceived plot against her by
her
sister
to
take
her
inheritance
money.
Appellant
also
refused to pay her utility bill because she believed the utility
company
was
“part
of
the
conspiracy
to
take
her
house.”
Appellant also informed Dr. Hughes that “she has been sprayed by
gases and that her food has been poisoned.”
Dr. Hughes observed
Appellant’s insight and judgment to be “poor.”
Hughes
opined
that
Appellant
“lack[ed]
Further, Dr.
insight
into
her
psychiatric impairment.”
¶4
Dr.
Hadziahmetovic
also
examined
Appellant.
Dr.
Hadziahmetovic diagnosed Appellant as having psychotic disorder,
not
otherwise
specified.
Dr.
Hadziahmetovic
noted
Appellant
believed that there were “multi-number” of people trying to take
her home from her.
Appellant stated that these people included
her sister, judges, the bank, and governmental agencies.
mentioned
filing
representative
of
a
the
lawsuit
State
and
claimed
Administrator.”
to
be
a
She
“legal
Appellant
also
stated that she had not seen anyone in particular in her home,
3
but that she could “smell them.”
Appellant had not slept for an
extended period of time due to her anxiety.
opined
that
Appellant’s
“thought
content
Dr. Hadziahmetovic
was
significant
paranoid delusions, as well as grandiose delusions.”
also
noted
physicians
that
Appellant’s
recommended
that
judgment
was
Appellant
for
The doctor
impaired.
undergo
Both
involuntary
treatment.
¶5
2010.
court
A one-day hearing on the PCOT was held in September
At the beginning of the hearing, Appellant advised the
that
she
wanted
to
represent
herself.
Following
a
discussion between the court and Appellant, the court denied
Appellant’s
request.
The
court
found
that
“based
on
the
totality of the record, the patient is unable to knowingly and
intelligently understand the request to waive counsel.”
Counsel
then stipulated to the affidavits of the two physicians, in lieu
of their testimony.
and
Selena
acquaintance
hearing.
Jeffrey Rivera, an emergency room nurse,
Hancock,
witnesses.
a
crisis
therapist,
Appellant
also
testified
testified
at
as
the
The court found by clear and convincing evidence that
Appellant suffered from a mental disorder, and, as a result, was
persistently or acutely disabled and in need of treatment.
court
ordered
treatment
for
Appellant
a
period
undergo
not
to
combined
exceed
inpatient/outpatient
365
inpatient treatment not to exceed 180 days.
4
The
days,
with
the
In February 2011,
the court amended its order to return Appellant to inpatient
treatment
for
a
period
not
to
exceed
135
days,
following
a
report that Appellant was noncompliant with the order.
¶6
Appellant
pursuant
to
timely
Arizona
appealed,
Revised
and
Statutes
we
have
(“A.R.S.”)
jurisdiction
sections
12-
2101(K) (2003) and 36-546.01 (2009).
ANALYSIS
¶7
Appellant
argues
that
the
court’s
order
should
be
vacated because the physicians failed to comply with statutory
requirements
for
an
examination;
the
court
erred
in
finding
Appellant was persistently or acutely disabled; the court erred
in denying Appellant’s request to waive counsel; and Appellant
was forced to proceed with ineffective counsel.
I.
Complete Physical Examination
¶8
Pursuant to A.R.S. § 36-533(B) (2009), a petition for
court-ordered treatment must be supported by the affidavits of
two physicians who have conducted examinations of the patient.
An examination is defined as “an exploration of the person’s
past psychiatric history and of the circumstances leading up to
the
person’s
person’s
present
examination.”
¶9
presentation,
At
mental
a
psychiatric
condition
and
exploration
a
complete
of
the
physical
A.R.S. § 36-501(14) (Supp. 2010).
the
hearing,
both
parties
stipulated
to
the
admission of the affidavits of the two physicians in lieu of
5
their
testimony.
physicians’
If
testimony,
any
error
Appellant
stipulating to the affidavits.
occurred
invited
regarding
such
the
error
by
See In re MH2009-002120, 225
Ariz. 284, ___, ¶ 8, 237 P.3d 637, 640 (App. 2010) (finding that
“[b]y
stipulating
to
the
admission
of
the
affidavit
of
[the
physician], Appellant may not assert lack of compliance with the
essential
statutory
requirement
that
a
physician
conduct
an
examination”); see also Schlecht v. Schiel, 76 Ariz. 214, 220,
262 P.2d 252, 256 (1953) (“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.”).
The
physicians’
affidavits reveal that they conducted examinations of Appellant
but details are not provided regarding the physical aspects of
the
examinations.
physicians’
cross
Because
affidavits
examine
them
and
Appellant
thereby
regarding
the
stipulated
to
the
waived
the
opportunity
extent
of
their
to
physical
examinations, she cannot now assert this argument on appeal.
In
re MH 2009-001264, 224 Ariz. 270, 272, ¶¶ 7, 10, 229 P.3d 1012,
1014-15 (App. 2010) (finding waiver of the right to confront and
cross-examine
witnesses
after
appellant
stipulated
to
the
affidavits of the two physicians in lieu of their testimony).
II. Persistently or Acutely Disabled
¶10
Appellant
argues
that
the
court’s
finding
that
Appellant was persistently or acutely disabled is not supported
6
by substantial evidence.
¶11
We disagree.
We will uphold the trial court’s ruling unless it is
clearly erroneous.
In re MH 2008–000438, 220 Ariz. 277, 279, ¶
6, 205 P.3d 1124, 1125 (App. 2009).
to
be
persistently
or
acutely
A court may find a person
disabled
if
the
person
has
a
mental disorder and meets the following criteria:
(a)
If
not
treated
has
a
substantial
probability of causing the person to
suffer or continue to suffer severe and
abnormal mental, emotional or physical
harm
that
significantly
impairs
judgment, reason, behavior or capacity
to recognize reality.
(b)
Substantially
impairs
the
person’s
capacity to make an informed decision
regarding
treatment,
and
this
impairment causes the person to be
incapable
of
understanding
and
expressing an
understanding
of
the
advantages
and
disadvantages
of
accepting treatment and understanding
and expressing an understanding of the
alternatives
to
the
particular
treatment offered after the advantages,
disadvantages
and
alternatives
are
explained to that person.
(c)
Has a reasonable prospect of being
treatable by outpatient, inpatient or
combined
inpatient
and
outpatient
treatment.
A.R.S. § 36-501(33).
¶12
At trial, a crisis therapist and ER nurse served as
acquaintance
requirements.
witnesses,
in
compliance
with
See A.R.S. § 36-539(B) (Supp. 2010).
7
statutory
The ER
nurse, Jeffrey Rivera, testified that Appellant had come into
the hospital for a dehydration-related headache and a cough.
He
believed she needed a psychiatric assistance based on her story,
which was “extraordinary.”
Appellant told Rivera that she had
barricaded herself in a house that had suffered from 600 breakins and was not receiving any help from police.
informed
Rivera
that
she
“was
concerned
Appellant also
that
the
Hispanic
population was basically taking over the neighborhood and that
her house was next on the list.”
¶13
Selena
Hancock,
the
crisis
Appellant in the emergency room.
therapist,
also
met
She testified that Appellant
reported that “people were trying to spray her with chemicals
and
mark
her
.
.
.
so
that
they
could
identify
her.”
Specifically, she told Hancock that “people were marking [her]
and that everybody . . . [was] marked with their own chemical
and color to identify them in the cult.”
Appellant informed
Hancock that there was no drinking water or food in her home,
and she also did not have running water or electricity.
¶14
Both of the examining physicians diagnosed Appellant
as having a psychotic disorder, not otherwise specified, and
they
both
believed
treatment.
persistently
Appellant
would
benefit
from
involuntary
Additionally, both physicians found Appellant to be
or
acutely
disabled.
Dr.
Hughes’
affidavit
reflected that Appellant voiced “delusional content” related to
8
a
perceived
plot
against
her
by
her
sister
to
take
her
inheritance money.
He noted that Appellant did not believe she
was
and
mentally
ill,
psychiatric impairment.
she
lacked
insight
into
her
current
In addition, Appellant revealed to Dr.
Hughes that she refused to pay her utility bill because she
believed the utility company was “part of the conspiracy to take
her house,” and she believed that she had been “sprayed by gases
and that her food ha[d] been poisoned.”
Dr. Hughes noted that
Appellant exhibited poor judgment and insight.
Additionally,
Appellant informed Dr. Hadziahmetovic that she had not slept for
an extended period of time due to her anxiety, and she reported
seeing “covered ghost people” and people who tried to break into
her home.
Appellant informed Dr. Hadziahmetovic that she had
moved out of her house and slept in an RV.
Dr. Hadziahmetovic
opined that Appellant exhibited impaired judgment and paranoid
delusions, and he noted that Appellant was unable “to make a
mental connection that her symptoms are a result of her mental
illness.”
¶15
On this record, we find substantial evidence existed
to support the court’s finding that Appellant was persistently
or acutely disabled.
III. Request to Waive Counsel
¶16
denied
Appellant
Appellant’s
argues
that
request
to
the
waive
9
trial
court
erroneously
court-appointed
counsel.
Appellant requests that we review this issue under a de novo
standard
court’s
of
review
application
because
of
law
we
to
would
be
reviewing
facts.
In
the
contrast,
trial
the
Petitioner cites In re Detention of J.S., 138 Wash. App. 882,
892, 159 P.3d 435, 440 (Wash. App. 2007), and argues that an
abuse of discretion standard is appropriate.
We find a de novo
review to be the applicable standard of review.
In re Jesse M.,
217 Ariz. 74, 76, ¶ 8, 170 P.3d 683, 685 (App. 2007) (applying
de novo standard of review when determining whether Appellant
could waive his right to counsel and represent himself because
the
issue
involved
the
interpretation
and
application
of
a
statute).
¶17
In an involuntary treatment hearing, a patient may be
allowed to waive court-appointed counsel as long as they can do
so “knowingly, intelligently, and voluntarily.”
217 Ariz. at 78, ¶ 18, 170 P.3d at 687.
In re Jesse,
In such cases, the
trial court should:
(a)
(b)
(c)
advise the patient of his right to
counsel;
advise the patient of the consequences
of waiving counsel, namely, that the
patient and not the lawyer will be
responsible for presenting his case,
cross-examining
the
petitioner’s
witnesses,
calling
witnesses,
and
presenting evidence as well as closing
argument;
seek to discover why the patient wants
to represent himself, which may involve
a dialogue with counsel or others;
10
(d)
(e)
(f)
learn whether the patient has any
education, skill or training that may
be important to deciding whether he has
the competence to make the decision;
determine whether the patient has some
rudimentary
understanding
of
the
proceedings and procedures to show he
understands the right he is waiving;
and
consider whether there are any other
facts relevant to resolving the issue.
Id. at 80, ¶ 30, 170 P.3d at 689.
discussion
has
been
completed,
the
“Once that on-the-record
trial
court
should
make
specific factual findings supporting the grant or denial of the
waiver.”
Id.
¶18
Here, the court conducted a lengthy discussion with
the Appellant, which extended over six pages of the transcript
from the hearing.
she
understood
evidence,
and
During that discussion, the Appellant stated
that
an
she
would
opening
and
have
to
closing
present
statement,
the
and
case,
she
understood that she would have to call her own witnesses and
cross-examine opposing counsel’s witnesses.
Appellant informed
the court that she wished to represent herself because she did
not “trust any of the people . . . that [she] had to deal with
[because] . . . [t]hey’ve all been very manipulative.”
She also
stated that she did not “feel comfortable” with the attorney
representing her.
Appellant explained that she had graduated
from high school, and she had completed four years of technical
school
and
one
year
of
junior
11
college.
As
far
as
legal
training,
Appellant
stated
that
she
had
been
the
legal
representative for her father’s estate and had filed several
lawsuits, and she had won fifty percent of those lawsuits.
She
admitted she did not know all of the Arizona Rules of Civil
Procedure,
and,
when
asked
the
standard
of
proof
for
the
hearing, she stated “I believe it would be to prove that the
allegations that are being made against me are not true; that I
am competent to be on my own and that I do not have any mental
illness.”
Appellant admitted that she did not know any of the
hearsay exceptions to the Arizona Rules of Evidence, and she did
not know the objections that could be made to presentations of
information or testimony.
Appellant stated, however, “as far as
the documents that I intend to present to the [c]ourt, they’ve
all been filed, and they’re documents that were used in the
probate case and lawsuit that all of this situation is stemming
from.”
¶19
In reviewing the Appellant’s answers to the court’s
questions, we conclude the court followed the steps outlined by
In
re
Jesse.
The
totality
of
the
record
indicates
Appellant may not be capable of making a knowing waiver.
that
See In
re Jesse, 217 Ariz. at 81, ¶ 34, 170 P.3d at 690 (concluding
that the evidence provided to the trial court presented “serious
concerns
waiver”).
about
appellant’s
Specifically,
capability
along
12
with
to
make
Appellant’s
a
knowing
lack
of
knowledge of the procedural and evidentiary rules, Dr. Hughes
and
Dr.
Hadziametovic
displayed
both
opined,
poor
and
insight
physicians
thought content.
noted
respectively,
impaired
that
that
judgment.
Appellant
Appellant
Additionally,
exhibited
delusional
On this record, we affirm the trial court’s
denial of Appellant’s request to waive counsel and represent
herself.
IV. Ineffective Assistance of Counsel
¶20
Appellant argues that the trial court erred by forcing
her to proceed with ineffective court-appointed counsel.
While
Arizona statutory law provides for assistance of counsel for
persons facing a commitment hearing for involuntary treatment,
see
A.R.S.
§§
36-528(D)
(2009),
36-535(A)
(Supp.
2010),
36-
536(A) (Supp. 2010), and 36-539(B) (Supp. 2010), Arizona case
law has never interpreted whether this extended to include a
right to effective assistance of counsel.
We need not decide
this legal issue here, however, because we conclude that the
record
supports
the
trial
court’s
rulings
on
Appellant’s
argument of ineffective assistance of counsel.
¶21
This court initially suspended this appeal, pursuant
to In the Matter of the Appeal in Pima County Mental Health
Service Action No. MH-2116-1, 157 Ariz. 314, 757 P.2d 118 (App.
1988), and revested jurisdiction in the superior court in order
for Appellant to present a claim of ineffective assistance of
13
counsel.
The superior court ordered briefing on the issue, to
be submitted before March 11, 2011.
This court subsequently
extended the suspension of the appeal until March 30, 2011.
On
March 25, 2011, the superior court held a hearing and reviewed
the transcript of the commitment hearing and the critical steps
measuring effective assistance of counsel.
The court found that
Appellant’s counsel “met the minimal duties of counsel during
commitment
counsel’s
proceedings
actions
did
pursuant
not
assistance of counsel.
rise
to
A.R.S.
to
the
[§]
level
36-537,”
of
and
ineffective
Because Appellant has not provided us
with a transcript of the March 25 hearing, we are compelled to
assume
the
findings.
evidence
that
hearing
supports
the
court’s
See Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764,
767 (App. 1995).
court
at
in
its
Accordingly, we find no error by the trial
ruling
finding
no
ineffective
assistance
of
counsel.
CONCLUSION
¶22
For the foregoing reasons, we affirm the trial court’s
order of commitment.
_____/s/____________________
JOHN C. GEMMILL, Judge
CONCURRING:
_____/s/_______________________
PETER B. SWANN, Presiding Judge
_____/s/____________________
JON W. THOMPSON, Judge
14
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