In Re: Mh2020-003246 ( 2021 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
IN RE: MH2020-003246
No. 1 CA-MH 20-0079
FILED 1-14-2021
Appeal from the Superior Court in Maricopa County
No. MH2020-003246
The Honorable Amy Kalman, Judge Pro Tempore
The Honorable Elisa C. Donnadieu, Judge Pro Tempore
AFFIRMED
COUNSEL
Maricopa County Public Advocate, Phoenix
By David C. Lieb
Counsel for Appellant
Maricopa County Attorney’s Office, Phoenix
By Anne C. Longo
Counsel for Appellee
IN RE: MH2020-003246
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Paul J. McMurdie delivered the Court’s decision, in which
Judge Cynthia J. Bailey and Judge Lawrence F. Winthrop joined.
M c M U R D I E, Judge:
¶1 Appellant appeals from a superior court treatment order
requiring him to undergo involuntary outpatient and inpatient treatment,
with the inpatient treatment not to exceed 180 days. For the following
reasons, we affirm.
FACTS1 AND PROCEDURAL BACKGROUND
¶2 From February to April 2020, Appellant communicated over
the phone with his parents, who lived out of state. He described suicide
attempts to both of his parents, including in a March 13 call when he told
his father that he had attempted to kill himself 12 times. Both parents
advised him to seek medical treatment, but Appellant refused. From April
19 to 20, Appellant sent his father 202 texts describing a delusion he had
about his probation officer in which she bandaged his foot. He requested
that his father provide him room and board. During this period, Appellant
repeatedly told his father that he did not have access to his medication and
depended on his father for food, money, and shelter.
¶3 On April 21, Appellant’s father checked Appellant into a
hotel. Appellant’s father instructed the hotel staff to bill his credit card and
charge only the room night to the card. Appellant attempted to charge
additional expenses. When the hotel manager refused, Appellant swore at
and berated her in a confusing rant that she described as “all over the
place.” Shortly thereafter, someone summoned paramedics, but they left
after Appellant refused to be seen. The next day, Appellant requested
another night at the hotel, and the hotel manager told him to call his father.
In response, Appellant repeatedly dialed the front desk’s phone,
demanding the hotel manager’s name while berating the staff and
threatening to call the corporate office. The argument escalated until
1 We view the facts in the light most favorable to upholding the court’s
ruling. In re MH2009-002120, 225 Ariz. 284, 290, ¶ 17 (App. 2010).
2
IN RE: MH2020-003246
Decision of the Court
Appellant shouted at the manager and repeatedly left and re-entered the
hotel.
¶4 Around this time, Appellant sent texts to his probation officer
saying that he would rather kill everyone and himself than go to a halfway
house. He also informed her that he had been drinking, and he had a gun
with ammunition and three grenades. In response to a call from Appellant’s
mother, officers, including Detective Erika T. Johnson, arrived and searched
his belongings but found no weapons. Appellant initially denied he had
made the statements regarding the gun but later admitted to them.
Detective Johnson applied for an involuntary evaluation and an emergency
admission for evaluation to a recovery response center. Johnson claimed
that Appellant had a mental disorder and was a danger to himself and
others. Based on these applications, Adam Rodriguez, PMHNP-BC,
petitioned for a court-ordered evaluation.
¶5 On April 24, Appellant was admitted to the hospital. On the
day of admission, Dr. Hadziahmetovic made two attempts about an hour
and a half apart to interview Appellant. Dr. Silvestrini attempted to
interview Appellant on April 25, and then again, the next day. Appellant
refused all four interview attempts. Neither doctor made additional
attempts to interview Appellant, noting their belief that repeated attempts
to interview an unwilling patient may lead the patient to be less willing to
undergo treatment.
¶6 Appellant’s reason for refusing the interviews was based on a
claimed illness and cold symptomology.2 Appellant was treated for pain,
gastric upset, sore throat, and nasal congestion. Appellant told
Dr. Hadziahmetovic that he was “sick like a dog,” and the doctor observed
Appellant’s congestion and upper respiratory symptoms. Despite
Appellant’s illness, both doctors concluded that he refused to participate
because he did not want to, not because he was unable. This was in part
because of observations they made of Appellant before and after attempting
to interview him. Dr. Hadziahmetovic reported observing Appellant
speaking with a nurse on one occasion before an attempted interview, and
Dr. Silvestrini made a similar observation during both of her attempted
interviews.
2 Because of his symptoms and complaints, Appellant was tested for
COVID-19 three times. The results were negative.
3
IN RE: MH2020-003246
Decision of the Court
¶7 Dr. Silvestrini prepared an affidavit affirming that Appellant
had been diagnosed with bipolar disorder (most recent episode depressed)
and antisocial personality disorder. And Dr. Hadziahmetovic prepared an
affidavit attesting that Appellant had been diagnosed with bipolar disorder
(most recent episode manic) and methamphetamine use disorder. Both
doctors concluded that Appellant was a danger to himself and others and
persistently or acutely disabled due to his disorders. The affidavits were
based on personal observations of Appellant’s behavior, the information in
Rodriguez’s petition, and Appellant’s records.
¶8 On April 29, 2020, the superior court entered a detention
order for treatment and scheduled a hearing on May 4. On the day of the
hearing, a psychiatric medical provider submitted a 72 Hour Medication
Affidavit that detailed the administration of Appellant’s medications after
he was admitted to the hospital. At the hearing, Appellant’s counsel
stipulated to the 72 Hour Medication Affidavit’s admission but not to any
“hearsay or conclusions [in]” the doctors’ affidavits.
¶9 The court heard the testimony of both doctors, Appellant’s
parents, and the hotel manager. This testimony included an assertion by
Dr. Hadziahmetovic that Appellant had never asked him to return for
another interview. Dr. Silvestrini asserted that Appellant had refused the
interviews and appeared not to want to participate. She did not comment
and was not questioned regarding whether Appellant had offered to be
interviewed later. Appellant’s counsel moved the court to find that the
affidavits were insufficient, arguing that neither doctor based their
affidavits on their observations of Appellant and, therefore, the affidavits
were a legally insufficient basis for Appellant’s court-ordered treatment.
The court denied the motion.
¶10 Afterward, Appellant testified. He said he had been taking his
medication before hospitalization and could support himself and his
family. He admitted that he no longer had access to a car and depended on
his parents’ financial support. He denied that he had attempted to kill
himself or that he had an aversion to doctors. He alleged that on every
attempt to interview him, he was “extremely sick.” He also alleged that he
told the doctors he was sick and asked them to return later.
¶11 The superior court found Appellant’s testimony was not
credible, “especially” because Appellant said he was willing to take his
medication and was taking it. However, the 72 Hour Medication Affidavit
indicated that Appellant had refused his Risperdal. The court found that
Appellant never offered to participate in another interview. The court
4
IN RE: MH2020-003246
Decision of the Court
further found by clear and convincing evidence that Appellant had a
mental disorder that rendered him persistently or acutely disabled, he
needed treatment, and he was unwilling or unable to accept it. The court
ordered that he undergo a combined inpatient and outpatient treatment for
a maximum of 365 days, with no more than 180 days in inpatient treatment.
Appellant appealed, and we have jurisdiction under A.R.S.
§§ 12-120.21(A)(1) and 36-546.01.
DISCUSSION
¶12 Appellant argues that the superior court erred by ordering
him to undergo involuntary treatment based on insufficient evidence.
Specifically, Appellant argues that the doctors’ affidavits were
insufficiently supported under A.R.S § 36-533(B) because the doctors had
failed to interview him before drafting them. Appellant maintains this
failure means the affidavits failed to meet the statute’s requirement that the
doctors support their affidavits with the “physician’s observations of the
patient.” We disagree.
¶13 A petition for court-ordered evaluation must be accompanied
by affidavits of two physicians who “participated in the evaluation” and
“shall be based on the physician’s observations of the patient and the
physician’s study of information about the patient.” A.R.S. § 36–533(B). But
a physician need not “engage in a confrontation with a mentally ill patient.”
In re Pima Cty. No. MH-1140-6-93., 176 Ariz. 565, 568 (App. 1993); See In re
MH2009-002120, 225 Ariz. 284, 289, ¶¶ 10–16 (App. 2010) (applying this
principle to A.R.S § 36–533(B)); C.f. In re MH2015-003266, 240 Ariz. 514, 516,
¶ 10 (App. 2016) (excusing a physical exam requirement “if the patient
refuses or other circumstances render compliance impracticable”). Because
Drs. Hadziahmetovic and Silvestrini were the only physicians to have
drafted the affidavits attached to the petition; both of their affidavits must
satisfy A.R.S. § 36–533(B). Because it is undisputed that neither of them
interviewed Appellant, the sole issue is whether substantial evidence
exhibited that it was impracticable for both physicians to conduct
interviews. See In re MH 2007-001236, 220 Ariz. 160, 165, ¶ 15 (App. 2008).
¶14 “We review the application and interpretation of statutes de
novo because they are questions of law.” In re MH 2007-001236, 220 Ariz. at
165, ¶ 15. We strictly construe the civil commitment’s statutory
requirements to preserve the party’s liberty interests. Id. Court-ordered
treatment must be supported by clear and convincing evidence, and we will
affirm an involuntary treatment order supported by substantial evidence.
Id.
5
IN RE: MH2020-003246
Decision of the Court
¶15 Appellant cites to In re MH 2008-000438 to argue that the
doctors did not sufficiently attempt to interview him. 220 Ariz. 277, 280–81,
¶ 18 (App. 2009). There, a doctor gave up on conducting a physical exam
on a patient after two attempts, the second attempt an hour and a half after
the first, because the patient was “too sleepy” to participate. Id. at 279, ¶ 9.
Although the doctor surmised that the patient’s condition was a side-effect
of a medication that would have worn off by the next day, she did not make
additional attempts because of time constraints relating to her work. Id. at
¶¶ 9–10. This court vacated an involuntary treatment order after
concluding that the patient’s condition did not constitute a willful refusal
to participate and that the doctor’s time constraints did not allow her to
meet the statutory requirement of a physical examination without
conducting one. Id. at 280–81, ¶¶ 18–19.
¶16 The State relies on In re MH2009-002120 to argue that both
doctors had sufficiently attempted to interview Appellant because he had
voluntarily refused each of their two attempts. There, a doctor twice tried
to interview a patient who “refused to engage in any meaningful
conversation each time.” 225 Ariz. 284, 286, ¶ 3 (App. 2010). The patient
frustrated the first attempt when he “raised his voice” and “displayed a
threatening posture,” until the doctor terminated the interview. Id. at 288,
¶ 10 (quotation omitted). The patient frustrated the second attempt by
refusing to participate and walking away. Id. The doctor observed the
patient, discussed the matter with the staff, consulted Appellant’s medical
chart and the patient’s court-ordered evaluation petition. Id. at 286, ¶ 3. This
court concluded that the doctor was not required to do more to show that
additional efforts would have been futile. Id. at 288, ¶ 12.
¶17 Here, both doctors’ testimony indicated that the patient
claimed he was sick throughout the time they tried to interview him. After
hearing Appellant’s testimony, the superior court could have reasonably
inferred that Appellant’s illness prevented him from participating in the
interview, much like the patient in In re MH 2008-000438. If so, and if
Appellant had asked the doctors to come back when he felt better,
additional efforts would likely not have been futile. However, both doctors
inferred from Appellant’s appearance and observing his conversations with
the nurses that he was well enough to be interviewed. Moreover, Dr.
Hadziahmetovic, when asked whether Appellant had asked him to return,
said he did not. Dr. Silvestrini testified that Appellant refused to participate
in the interviews because he did not want to. Therefore, the issue of whether
there was sufficient evidence to conclude that additional efforts would have
been futile depends on whether the court clearly erred by finding that
Appellant’s testimony was not credible when he asserted that he was too
6
IN RE: MH2020-003246
Decision of the Court
sick to participate in an interview or that he indicated he would participate
later.
¶18 We will not disturb the superior court’s credibility analysis
unless it is clearly erroneous. In re Mental Health Case No. MH 94-00592, 182
Ariz. 440, 443 (App. 1995); see In re B.S., 205 Ariz. 611, 614, ¶ 5 (App. 2003)
(“[G]iving due regard to the court’s opportunity to assess witnesses’
credibility and demeanor, we will set aside factual findings only if they are
clearly erroneous.”). “A finding of fact is not clearly erroneous if substantial
evidence supports it, even if substantial conflicting evidence exists.” Kocher
v. Dep’t of Revenue, 206 Ariz. 480, 482, ¶ 9 (App. 2003).
¶19 Here, the superior court found that Appellant’s testimony
was not credible. Substantial evidence supports the court’s finding. See
Kocher, 206 Ariz. at 482, ¶ 9. After finding the doctors’ testimony more
credible than Appellant’s, the court did not err by finding that the doctors’
affidavits complied with A.R.S. § 36-533(B).3
CONCLUSION
¶20 We affirm the superior court’s involuntary treatment order.
AMY M. WOOD • Clerk of the Court
FILED: AA
3 The State argues that the court’s finding that Appellant was
persistently or acutely disabled was supported by credible evidence.
Because Appellant’s challenge to the affidavit relies solely on the doctor’s
alleged noncompliance, we need not further evaluate the sufficiency of the
affidavits.
7