In Re Mh2019-007059 ( 2020 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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: MH2019-007059
No. 1 CA-MH 19-0089
FILED 9-29-2020
Appeal from the Superior Court in Maricopa County
No. MH2019-007059
The Honorable Julia Ann Mata, Judge Pro Tempore
AFFIRMED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Anne C. Longo
Counsel for Appellee
John L. Popilek, P.C., Scottsdale
By John L. Popilek
Counsel for Appellant
IN RE: MH2019-007059
Decision of the Court
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Maurice Portley1 joined.
W I N T H R O P, Judge:
¶1 Appellant appeals a superior court order requiring he
undergo involuntary inpatient mental health treatment. He argues the
grounds for such order were not proven by clear and convincing evidence.
For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In September 2019, the Medical Director at Desert Vista
Hospital Behavioral Health Center submitted a petition for court-ordered
evaluation of Appellant following a screening evaluation and the
recommendation of a social worker at the Behavioral Health Center. That
petition noted Appellant’s history of methamphetamine use, paranoia,
delusions, a lack of insight into his mental health status, and current refusal
to take prescribed medications.
¶3 Following a court-ordered evaluation of Appellant, Dr. Aaron
Riley concluded Appellant met DSM-5 criteria for psychotic disorders. In
the evaluation, Appellant denied he was suffering from any psychotic
disorder but claimed to have overturned a Ninth Circuit court case that
resulted in a $40 million settlement to be deposited on his Electronic Benefit
Transfer card. Appellant denied all psychiatric symptoms, stated his
prescribed medications were unnecessary, and continued to refuse to take
the medication. Dr. Riley noted that Appellant’s family reported Appellant
had experienced persistent psychotic symptoms for the past two years and
that he exhibited aggressive and threatening tendencies in the home.
1 The Honorable Maurice Portley, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article 6, Section 3, of the Arizona Constitution.
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IN RE: MH2019-007059
Decision of the Court
¶4 Dr. Riley filed a petition for court-ordered treatment of
Appellant in October 2019, supported by an affidavit outlining his
evaluation of Appellant’s mental status and summarizing the other relevant
information gathered to date concerning Appellant’s mental health history
and status. The affidavit documents Dr. Riley’s diagnosis that Appellant
has an Unspecified Psychotic Disorder and Psychoactive Substance Use
Disorder, rendering Appellant both persistently or acutely disabled and a
danger to others. Dr. Riley recommended involuntary treatment based on
the persistence of Appellant’s symptoms and Appellant’s continued
agitated state while at the Behavioral Health Center.
¶5 Dr. Lydia Torio also met with Appellant, but her evaluation
session with Appellant was interrupted by an unrelated patient emergency.
When Dr. Torio returned to complete Appellant’s evaluation she was
unable to proceed because Appellant refused to cooperate, despite multiple
attempts by Dr. Torio to reengage Appellant. Accordingly, Dr. Torio
completed the evaluation based upon Appellant’s hospital chart
documentation and available mental health records and submitted an
admissible affidavit.2 In her affidavit, Dr. Torio noted Appellant’s refusal
to take medications and to participate in diagnostic laboratory work, and
his fear of mental health assessments, stating that doctors do not have
permission to read Appellant’s mind. Dr. Torio diagnosed Appellant with
Unspecified Psychotic Disorder, opined that Appellant was a danger to
others and was persistently or acutely disabled and concluded that, under
these circumstances, involuntary treatment was the only viable option to
provide appropriate care to Appellant.
¶6 Appellant requested a hearing regarding the court-ordered
evaluation which was held on October 2, 2019. Based on the petition and
supporting affidavits, the court found reasonable cause to believe that, as a
result of a mental disorder, Appellant was persistently or acutely disabled
and a danger to others. Appellant was ordered detained pending
involuntary inpatient evaluation.
2 While Arizona Revised Statutes (“A.R.S.”) section 36-539(B) requires
physicians to conduct an evaluation, physicians need not engage in a
confrontation with the patient or have the patient restrained to fulfill this
requirement. In re Pima Cnty. No. MH-1140-6-93, 176 Ariz. 565, 568 (App.
1993); see In re MH2011-000914, 229 Ariz. 312, 315, ¶ 11 (App. 2012) (holding
patient cannot thwart examination and later claim State did not meet its
burden).
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IN RE: MH2019-007059
Decision of the Court
¶7 An evidentiary hearing regarding the petition for court-
ordered treatment was conducted on October 8, 2019. Prior to attending
the hearing, Appellant was evaluated and determined to be clear of any
medications that might hamper his ability to participate in the hearing.3
¶8 Both parties agreed to the admission of Drs. Riley’s and
Torio’s affidavits and Appellant’s 72-hour medication affidavit; however,
Appellant reserved any objections to statutory compliance or to the
conclusions contained in the affidavits. The court also heard testimony
from two hospital nurses involved in Appellant’s care at the Behavioral
Health Center. These witnesses testified to Appellant’s demonstrated and
continuing signs of mental disorder, including incoherent conversations,
outbursts, irritability, aggression, self-talk, delusional comments, and
refusal to take prescribed medications.4 Appellant did not offer any
contravening expert testimony, but did testify regarding his understanding
of the nature of the hearing and his assessment of his mental health status.
¶9 At the conclusion of the hearing, the court dismissed the
danger-to-others allegation for insufficient evidence and proceeded to rule
on the persistent-or-acute-disability allegation. Based on the evidence
presented, the court found Appellant was suffering from a mental disorder,
was persistently and acutely disabled and was in need of but unwilling to
accept voluntary psychiatric treatment. Accordingly, the court ordered
Appellant to undergo 180 days of inpatient treatment.
3 At the start of the hearing, Appellant requested to represent himself
in lieu of his appointed attorney. Appellant acknowledged he had a right
to have an attorney present, but argued he had a background in paralegal
studies that provided him adequate insight into the proceedings. The court
initially granted Appellant’s request to proceed pro per. But, after outbursts
by the Appellant, the court reviewed Appellant’s medication affidavit,
found a history of non-compliance, and reversed its prior ruling and
reappointed Appellant’s attorney.
4 To the extent Appellant suggests the nurses’ testimony lacked
foundation and/or was insufficient to support the court’s ultimate finding,
we note “acquaintance” witnesses are only required to have relevant
knowledge of the alleged mental disorder, In re MH2012-002480, 232 Ariz.
421, 423, ¶ 9 (App. 2013), and familiarity with the patient at the time the
mental disorder was alleged. In re Coconino Cnty. No. MH 1425, 181 Ariz.
290, 292 (1995).
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IN RE: MH2019-007059
Decision of the Court
¶10 Appellant filed a timely notice of appeal from the treatment
order. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 36-
546.01.
ANALYSIS
I. Mootness
¶11 Appellant’s court-ordered treatment expired on April 6, 2020,
and he has completed his 180-day confinement term. As such, Appellee
argues this appeal became moot during the appellate process and should
be dismissed.
¶12 Generally, appellate courts will not consider moot questions.
Slade v. Schneider, 212 Ariz. 176, 179, ¶ 15 (App. 2006). In our discretion,
however, we may choose to address a moot question when the order at
issue entails collateral consequences that will continue to affect a party. In
re M.H. 2007-001236, 220 Ariz. 160, 165, ¶ 12 n.3 (App. 2008). We exercise
that discretion in light of the potential collateral consequences of an
involuntary treatment order upon Appellant’s future interests and, unless
otherwise stated, we consider the merits of Appellant’s arguments in this
appeal.
II. Sufficiency of Evidence
¶13 Appellant argues the evidence was insufficient to support an
order for involuntary treatment. Appellant contends that Appellee did not
prove the elements of subsection (a) of § 36-501(32) by clear and convincing
evidence because the evidence submitted did not establish that a
“significant impairment” would persist if Appellant were left untreated.
We disagree.
¶14 We generally review the superior court’s decision for an
abuse of discretion and will not vacate an order for involuntary treatment
unless it is clearly erroneous or unsupported by substantial evidence. Id. at
¶ 15; MH-1140-6-93, 176 Ariz. at 566.
¶15 To order involuntary treatment, the court must, among other
statutory requirements, find by clear and convincing evidence that a patient
“has a persistent or acute disability” resulting from a mental disorder, for
which the patient is unwilling or unable to accept voluntary treatment.
A.R.S. § 36-540(A). To find that the clear and convincing standard has been
met, the record must contain all statutorily required information, including
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IN RE: MH2019-007059
Decision of the Court
medical evidence describing the patient’s disorder to a reasonable degree
of medical certainty. M.H. 2007-001236, 220 Ariz. at 164, ¶ 10.
¶16 A physician’s finding of “persistent or acute disability” must
meet the definitional criteria provided in A.R.S. § 36-501(32).5 The inclusion
of a “significant” impairment in the statute generally limits a physician’s
finding of persistent or acute disability to instances where an untreated
disorder has the probability of rising to a level of harm that would impair
the individual’s judgment or capacity to recognize reality. In re Maricopa
Cnty. MH 90-00566, 173 Ariz. 177, 183 (App. 1992).
¶17 Here, the physicians’ affidavits established Appellant was
disabled based on clinical interviews, family input, and chart review
demonstrating the patient was experiencing on-going paranoia, delusional
thinking, hallucinations, and disorganized thought. The evidence,
including the testimony from the nurses, was replete with reported
instances of Appellant’s past and continuing diminished capacity to
recognize reality, including the beliefs that he won millions of dollars from
the Powerball lottery and that he won a $40 million settlement from
overturning a Ninth Circuit case. The record also shows Appellant engaged
in dangerous behavior such as “holding onto knives in his home because
5 A “persistent or acute disability” as defined in § 36-501(32) is one
that:
(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.
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IN RE: MH2019-007059
Decision of the Court
he thinks people are following him.” The affidavits and other testimony
established that Appellant was refusing to follow his treatment plan and
felt that medications prescribed for his safety and mental health were
unnecessary. The physicians reasonably concluded that, without
treatment, Appellant would continue to suffer. On this record, substantial
evidence supports the court’s finding that Appellee established the
probability for potential harm arising from Appellant’s impaired judgment
and demonstrated inability to recognize reality.
CONCLUSION
¶18 For the foregoing reasons, we affirm the superior court’s
order for Appellant’s involuntary mental health treatment.
AMY M. WOOD • Clerk of the Court
FILED: AA
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