In re MH2011-000086
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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 MH 2011-000086
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DIVISION ONE
FILED: 09/13/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
1 CA-MH 11-0035
DEPARTMENT C
MEMORANDUM DECISION
(Not for Publication
- Rule 111, Rules of
the Arizona Supreme
Court)
Appeal from the Superior Court in Maricopa County
Cause No. MH 2011-000086
The Honorable Veronica Brame, Judge Pro Tempore
AFFIRMED
________________________________________________________________
William G. Montgomery, Maricopa County Attorney
Anne c. Longo, Deputy County Attorney
Bruce P. White, Deputy County Attorney
Civil Division
Attorneys for Appellee
Phoenix
Marty Lieberman, Maricopa County Public Defender
By
Colin F. Stearns, Deputy Public Defender
Attorneys for Appellant
Phoenix
________________________________________________________________
H A L L, Judge
¶1
Appellant challenges his involuntary treatment order.
For the reasons set forth below, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2
The
facts
relevant
to
the
issue
on
appeal
are
as
follows. On January 11, 2011, Sarah Almendarez, Appellant’s case
manager, petitioned the superior court seeking an involuntary
inpatient mental health evaluation of Appellant.
As set forth
in the petition, Almendarez averred that there was reasonable
cause to believe that Appellant has a mental disorder and is
persistently
Appellant
or
is
acutely
“on
disabled.
medication
refuses his medication.
Almendarez
monitoring”
observed
further
begging
explained
that
and
he
that
frequently
In addition, Appellant has poor hygiene
and extremely unsanitary living conditions.
been
explained
for
food
Appellant
Appellant has also
and
cigarettes.
was
previously
Almendarez
diagnosed
as
schizophrenic and frequently displays negative symptoms of his
illness such as paranoid thought, auditory hallucinations, and
talking to himself.
The superior court issued a detention order
for Appellant’s evaluation.
¶3
On January 19, 2011, Carol Olson, M.D., petitioned the
superior court seeking court-ordered treatment for Appellant.
As set forth in the petition, Dr. Olson averred that there was
reasonable cause to believe that Appellant has a mental disorder
and
is
persistently
and
acutely
disabled.
In
her
attached
affidavit, Dr. Olson explained that she interviewed Appellant
2
and he claimed to take his medication as prescribed and shower
two or three times daily.
Appellant did acknowledge, however,
that he allows trash and debris to accumulate in his apartment
and
admitted
acknowledged
asking
that
neighbors
he
has
for
had
food.
Appellant
multiple
prior
also
psychiatric
hospitalizations, but claimed he did not understand “why he has
ever received psychiatric treatment.”
does
not
believe
schizophrenia,
actually
that
he
or
When
experiences
asserted
disorder
cooler” when he does not take his prescribed medications.
he
and
bipolar
“even
whether
diagnosed,
has
is
asked
as
he
Appellant stated that he
hallucinations,
Appellant
hesitated, but then denied having any psychiatric symptoms “in
automatic fashion.”
“nursing
notes”
evaluation
and
Dr. Olson also set forth her review of the
recorded
explained
during
that
Appellant’s
Appellant
has
court-ordered
“frequently
been
observed responding to internal stimuli,” such as talking to
unseen persons.
Dr. Olson opined that Appellant’s insight and
judgment regarding his illness are extremely poor and therefore
he is unable to understand his need to comply with a treatment
regimen.
¶4
Dr. Olson’s petition for court-ordered treatment also
contained an affidavit from Melissa Ramirez, M.D.
averred
that
there
was
reasonable
3
cause
to
Dr. Ramirez
believe
that
Appellant has a mental disorder and is persistently and acutely
disabled.
During her interview with Appellant, he again claimed
that he has been fully compliant with taking his medication.
Appellant
also
denied
having
any
hallucinations
and
asserted
that he showers “three to four” times per day and cleans his
apartment “twice a week.”
Appellant did acknowledge, however,
asking neighbors for food.
Dr. Ramirez observed that Appellant
has a flat affect and a dysphoric mood.
with
Appellant
and
her
review
of
his
Based on her interview
medical
history,
Dr.
Ramirez opined that Appellant has “no insight into his mental
illness and his judgment is impaired.”
¶5
On January 25, 2011, the superior court held a hearing
on the petition for court-ordered treatment.
At the hearing,
the parties stipulated to the admissibility of the evaluating
physicians’
affidavits
in
lieu
of
their
in-court
testimony.
After the petitioner’s presentation of evidence and Appellant’s
testimony, the superior court found, by clear and convincing
evidence, that Appellant is suffering from a mental disorder
and, as a result, is persistently or acutely disabled, and “in
need of psychiatric treatment and is unwilling or unable to
accept voluntary treatment.”
4
¶6
Appellant
pursuant
to
Arizona
timely
appealed.
Revised
We
Statutes
have
(A.R.S.)
jurisdiction
sections
12-
2101(B) (2003) and 36-546.01 (2009).
DISCUSSION
¶7
As his sole issue on appeal, Appellant contends that
the petitioner presented insufficient evidence to support the
superior court’s finding that he is persistently and acutely
disabled.
Specifically,
Appellant
affidavit is statutorily deficient.
¶8
We
uphold
an
order
asserts
that
Dr.
Olson’s
We disagree.
for
treatment
unless
it
is
“clearly erroneous or unsupported by any credible evidence.”
In
re Mental Health Case No. MH 94-00592, 182 Ariz. 440, 443, 897
P.2d 742, 745 (App. 1995).
We review the record to determine
whether the order is supported by substantial evidence.
Id. at
446, 897 P.2d at 748.
¶9
A
deprivation
civil
of
commitment
liberty
and
constitutes
therefore
a
significant
involuntary
treatment
proceedings must strictly meet the statutory requirements.
In
re Maricopa County Superior Court No. MH 2001-001139, 203 Ariz.
351, 353, ¶ 8, 54 P.3d 380, 382 (App. 2002).
A patient is
persistently or acutely disabled if the patient has a severe
mental disorder that: (1) if left untreated, “has a substantial
probability of causing the [patient] to suffer or continue to
5
suffer severe and abnormal mental, emotional or physical harm
that
significantly
impairs
judgment,
reason,
behavior
or
capacity to recognize reality”; (2) substantially impairs the
patient’s
ability
advantages
and
to
make
decisions
disadvantages
of
treatment;
reasonable prospect of being treatable.
(2009) (emphasis added).
and
understand
and
(3)
the
has
a
A.R.S. § 36-501(33)
The evidence to support a finding of
persistent or acute disability must include the testimony of two
physicians who examined the patient, which may be satisfied by
stipulating
to
the
affidavits.
A.R.S.
admission
of
§ 36-539(B).
the
evaluating
physicians’
“[The physicians] shall also
testify as to their opinions concerning whether the patient is,
as a result of a mental disorder, . . . persistently or acutely
disabled[.] . . . Such testimony shall state specifically the
nature
and
extent
disability[.]”
¶10
of
A.R.S.
.
.
.
the
persistent
or
acute
§ 36-539(B).
Appellant asserts for the first time that Dr. Olson’s
affidavit failed to allege facts that would support a finding
that his illness, if left untreated, would cause him to suffer
“severe
and
abnormal
A.R.S. § 36-501(33)(a).
mental,
emotional
or
physical
harm[.]”
Because Appellant failed to raise this
6
issue in the superior court, it is waived.1
See In re MH 2008-
002393, 223 Ariz. 240, 244, ¶ 17, 221 P.3d 1054, 1058 (App.
2009).
Nonetheless,
we
conclude
Dr.
Olson’s
affidavit
is
statutorily sufficient.
¶11
Appellant correctly notes that Dr. Olson stated “[t]he
patient reportedly has had very poor hygiene, and has not been
maintaining
his
asking
to
her
apartment”
set
forth
in
the
the
portion
basis
for
of
her
these
support
a
facts,
finding
in
that
isolation,
may
Appellant,
if
be
left
affidavit
conclusion
Appellant is persistently or acutely disabled.
argues,
the
that
As Appellant
insufficient
untreated,
to
would
“suffer severe and abnormal mental, emotional or physical harm
that
significantly
impairs
judgment,
capacity to recognize reality.”
its
entirety,
Throughout
her
Appellant
fails
illness,
however,
eight-page
to
despite
his
behavior
or
Dr. Olson’s affidavit viewed in
satisfies
the
affidavit,
recognize
reason,
that
formal
Dr.
he
statutory
Olson
suffers
diagnoses
standard.
explains
from
and
a
that
mental
previous
hospitalizations, and he perceives that he is “cooler” when he
1
Contrary to the Appellee’s claim, Appellant’s stipulation
to the admissibility of the doctors’ affidavits did not include
a stipulation to their statutory sufficiency.
See State v.
Kuhs, 223 Ariz. 376, 380, ¶ 16, 224 P.3d 192, 196 (2010)
(holding that the parties’ stipulation to a doctor’s report in a
Rule 11 matter did not constitute a stipulation to the issue of
the defendant’s competency).
7
does not take his prescribed medications.
In addition, Dr.
Olson notes that during Appellant’s court-ordered evaluation he
frequently responded to “internal stimuli,” such as talking to
unseen
persons.
Moreover,
Appellant’s
inability
to
care
for
himself and his apartment in a hygienic manner supports Dr.
Olson’s conclusion that he suffers from a mental illness that
causes
him
mental,
emotional,
and
physical
harm
that
significantly impairs his judgment.
¶12
Finally, the two acquaintance witnesses who testified
at the hearing further substantiated that Appellant, if left
untreated, poses a risk of mental, emotional, or physical harm
to himself and lacks insight into his mental illness.
Both case
managers testified that Appellant refuses his medication and has
experienced an increase in mood swings as well as an inability
to provide basic care for himself.
One case manager testified
that Appellant has also experienced an increase in paranoia and
talking to himself.
Therefore, based upon our review of the
record, we conclude that the superior court’s commitment order
is supported by substantial credible evidence and the court did
not
err
in
finding
Appellant
has
persistently and acutely disabled.
8
a
mental
disorder
and
is
CONCLUSION
¶13
For
the
foregoing
reasons,
we
affirm
the
court’s findings and order for treatment.
/s/
PHILIP HALL, Judge
CONCURRING:
/s/
MICHAEL J. BROWN, Presiding Judge
/s/
PATRICIA K. NORRIS, Judge
9
superior
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