In re MH2011-000142

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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 DIVISION ONE FILED: 08/16/2011 RUTH A. WILLINGHAM, CLERK BY: DLL IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ) ) ) ) ) ) ) ) ) IN RE MH2011-000142 No. 1 CA-MH 11-0037 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. MH 2011-000142 The Honorable Veronica W. Brame, Judge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 Marty Lieberman, Maricopa County Legal Defender By Colin F. Stearns, Deputy Legal Defender Attorneys for Appellant Phoenix T I M M E R, Presiding Judge ¶1 At the conclusion of an evidentiary hearing on a petition for court-ordered treatment, the superior court found by clear and convincing evidence that appellant C.W. is consistently or acutely disorder is in and disabled need of as a result psychiatric refused to undertake voluntarily. of a treatment, mental which he The court then ordered C.W. to undergo a combination of inpatient and outpatient treatment. ¶2 C.W. because the timely appeals. petitioner failed He to argues present the court testimony erred from two acquaintance witnesses as required by Arizona Revised Statutes ( A.R.S. ) section 36-539(B) (2009), and insufficient evidence supported the court s finding that he was persistently acutely disabled as a result of a mental disorder. or We review the facts in the light most favorable to upholding the court s judgment, and we will not set any findings aside unless they are clearly erroneous. In re MH 2008-002596, 223 Ariz. 32, 35, ¶ 12, 219 P.3d 242, 245 (App. 2009). We review the interpretation of statutes de novo as a question of law. court s In re MH 2005-001290, 213 Ariz. 442, 443, ¶ 5, 142 P.3d 1255, 1256 (App. 2007). For the reasons that follow, we affirm. ANALYSIS 1. Acquaintance witnesses ¶3 Section evidence that treatment: 36-539(B), must be A.R.S., presented to mandates support the minimum court-ordered [t]he evidence presented by the petitioner or the patient shall include the testimony of two or more witnesses acquainted with the patient at the time of the alleged mental 2 disorder . . . and testimony of the two physicians performed examinations in the evaluation of the patient. who The requirements of § 36-539(B) are jurisdictional and cannot be waived. In re Burchett, 23 Ariz. App. 11, 13, 530 P.2d 368, 370 (1975) (construing predecessor to A.R.S. § 36-539(B)). If a court fails to strictly comply with § 36-539(B), any treatment order is rendered void. Id.; see also In re Maxwell, 146 Ariz. 27, 30, 703 P.2d 574, 577 (App. 1985) (same). ¶4 C.W. argues that although acquaintances Catherine B. and Kyle J. testified at the hearing, Kyle s testimony was not relevant to whether [C.W.] has a mental disorder that renders him persistently or acutely disabled, and therefore he did not qualify as an acquaintance witness pursuant to A.R.S. § 36539(B). To support his contention, C.W. cites In re MH 2008- 002596, 223 Ariz. 32, 219 P.3d 242 (App. 2009) for the principle that § 36-539(B) requires the witness to know the proposed patient and provide testimony relevant to whether the proposed patient has a mental defect. The court in that case held in relevant part as follows: The statute requires the testimony of two or more witnesses acquainted with the patient at the time of the alleged mental disorder. A.R.S. § 36-539(B). Black s Law Dictionary defines acquainted as [h]aving personal, familiar, knowledge of a person, event, or thing. Black s Law Dictionary 16 (6th ed. 1991). The further statutory requirement in § 36-539(B) is that the 3 acquaintance (or to use synonyms, the knowledge or familiarity ) of the patient be at the time of the alleged mental disorder. This is essentially the same requirement that our rules of evidence impose: personal knowledge (Rule 602) that is relevant (Rule 402) in determining the matter at hand (Rule 401), i.e., whether the patient has the mental defect alleged. Id. at 36, ¶ 16, 219 P.3d at 246. Contrary to C.W. s implicit assertion, In re MH 2008-002596 does not hold that a witness status as an acquaintance witness under § 36-539(B) turns on the pertinence of the testimony to the proposed patient s mental status; all that is required is that the witness have knowledge of the proposed patient at the time that person is suffering from the alleged mental disorder. Kyle satisfied these criteria by testifying that he and C.W. were close friends and they were seeing each other two to three times a week at the time the petition was filed. Regardless of the substance of Kyle s testimony concerning C.W. s mental status, the court properly concluded that Kyle was an acquaintance witness under § 36- 539(B). ¶5 irrelevant. We also disagree with C.W. that Kyle s testimony was Kyle testified he was aware that C.W. had a psychiatric diagnosis and was prescribed medication as a result. Over the course of the year prior to the hearing, Kyle asked C.W. monthly if he was taking his medication. Although Kyle said his questions were just conversation, the court was free 4 to disbelieve Kyle and conclude he had spotted a reason to make such persistent insight into sleeping inquiries. C.W. s and mental sometimes Additionally, state strung by Kyle provided testifying together he unconnected was some not thoughts. Thus, even assuming § 36-539(B) required an acquaintance witness to testify directly about matters pertinent to a proposed patient s mental status, Kyle satisfied this requirement. ¶6 For these reasons, the superior court did not err by deciding Kyle s testimony satisfied A.R.S. § 36-539(B). 2. Sufficiency of the evidence ¶7 C.W. next argues the court erred because insufficient evidence supported consistently treatment. or the court s acutely conclusion disabled and in need that of C.W. was psychiatric Specifically, he contends that because testimony via affidavit by a doctor failed to include facts to support her conclusion disorder that is C.W. left will suffer untreated, severe the harm doctor s insufficient to support the court s judgment. if his mental testimony was As petitioner correctly points out, C.W. did not raise this argument to the superior court, and he has therefore waived the argument on appeal. In re MH2009-002120, 225 Ariz. 284, 287, ¶ 7, 237 P.3d 637, 640 (App. 2010) (holding that appellant s failure to raise an issue at trial waived the issue on appeal). not consider this assignment of error. 5 We therefore do CONCLUSION ¶8 For the foregoing reasons, we affirm. /s/ Ann A. Scott Timmer, Presiding Judge CONCURRING: /s/ Patrick Irvine, Judge /s/ Daniel A. Barker, Judge 6

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