In Re: Mh2020-001729 ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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: MH 2020-001729
No. 1 CA-MH 20-0033
FILED 11-3-2020
Appeal from the Superior Court in Maricopa County
No. MH 2020-001729
The Honorable Steven K. Holding, Judge Pro Tempore (Retired)
AFFIRMED
COUNSEL
Maricopa County Legal Defender’s Office, Phoenix
By Cynthia D. Beck
Counsel for Appellant
Maricopa County Attorney’s Office, Phoenix
By Joseph Branco
Counsel for Appellee
IN RE: MH 2020-001729
Decision of the Court
MEMORANDUM DECISION
Judge Maurice Portley1 delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge David D. Weinzweig
joined.
P O R T L E Y, Judge:
¶1 Appellant challenges the order that she undergo combined
inpatient and outpatient treatment until she is no longer persistently or
acutely disabled. She contends the superior court abused its discretion and
she was deprived of procedural due process when her motion to continue
the hearing on the petition for court-ordered mental health treatment was
denied, even after informing the court of her “sleep deprivation.” For the
following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY2
¶2 Appellant was receiving services from Terros for her mental
illnesses, which include bipolar disorder and post-traumatic stress
disorder. Her intensive-care specialist and case manager submitted an
application in February 2020 for a court-ordered mental health evaluation
pursuant to A.R.S. § 36-520.3 The applicant alleged Appellant had a mental
disorder, was persistently or acutely disabled, and was unwilling and
unable to undergo a voluntary evaluation.4 Specifically, the applicant stated
that Appellant had “lost touch with reality;” had racing thoughts “to such
a degree that she had no concept of where she was or her situation;”
“displayed an inability to know when she was in danger” after walking in
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.
2 “We view the facts in a light most favorable to upholding the court’s
ruling.” In re MH2009-002120, 225 Ariz. 284, 290, ¶ 17 (App. 2010).
3 Absent material change, we cite the current version of statutes.
4 The applicant also alleged Appellant was a danger to herself. The
superior court ultimately dismissed the danger-to-self allegation at the
hearing, and that ruling has not been challenged on appeal.
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IN RE: MH 2020-001729
Decision of the Court
front of a moving vehicle; and could not “see past her manic state;” and she
believed she did not have an “illness that need[ed] evaluation.”
¶3 Based on the petition, the superior court signed a detention
order for notice and evaluation and ordered a lawyer represent Appellant.
¶4 Appellant then requested a hearing. At the hearing, Appellant
told the superior court that she was no longer contesting her detention for
evaluation because she was “grateful” and wanted “to be at this hospital.”
She clarified, however, that she had “been given some medication that
cause[d] agitation,” was “dealing with sleep deprivation,” and had not
“really had a good night’s sleep since November when [she] lost [her]
home.” The court vacated the hearing based on Appellant’s request.
¶5 After her evaluation, a medical physician filed a petition for
court-ordered treatment, with attached affidavits, pursuant to A.R.S. § 36-
533. The doctors concluded Appellant needed treatment for her bipolar
disorder that rendered her, in relevant part, persistently or acutely disabled
and noted she would not agree to be treated voluntarily. The superior court
scheduled a hearing on the petition for March 2, 2020.
¶6 At the outset of the hearing, Appellant requested a
continuance until the end of the week because she was experiencing
“extreme sleep deprivation” that caused “some brain fog.”5 The superior
court stated it would grant “a continuance until Friday . . . if that’s what
[Appellant] truly wish[ed],” but advised she speak with her lawyer, and
that counsel should speak with the petitioner’s witnesses to determine if
they were available that Friday.
¶7 After a brief recess, Appellant reiterated she was sleep
deprived and requested a two-week continuance. In addition to remedying
her sleep deprivation, she also wanted more time to discover how she
would react if she stopped taking a certain drug for opioid addiction and
withdrawal allegedly found in her system. The superior court asked
Appellant what she “expect[ed] to accomplish” at the end of any
continuance, whether it was postponed four days or two weeks. She stated
she hoped the petition for court-ordered treatment would be “removed,”
5 Appellant further requested the hearing be continued because she
was “asking for a different public defend[er].” The superior court denied
the continuance on that basis. Appellant has not raised this as an issue on
appeal, nor has she raised any issue with the court’s denial of her request
to represent herself, and thus we need not address it.
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IN RE: MH 2020-001729
Decision of the Court
similar to what the “first judge” did with the petition for court-ordered
evaluation. She felt the petition’s allegations were “derogatory” and
“fabricated,” and she did not “want these fabricated accusations attached
to [her] name.”
¶8 After their discussion, the superior court summarized she
was “confusing a potential opioid--drug problem and the need for a court-
ordered treatment,” which were two “individual” issues. Appellant stated
that she wanted “to try new medication” and reiterated that allowing her
“to sleep and prepare” would facilitate her attempts to remove “the petition
status.” The court stated that doctors could offer her medication, but they
could not “force [her] to take it unless [there was] a court-ordered
treatment,” and if she was given new medication it would “take time to
titrate” into her system. Accordingly, because there was “every likelihood
[they would] be in the same situation two weeks from now or 30 days from
now,” the court denied Appellant’s request for a continuance.6
¶9 The hearing then proceeded. The parties stipulated to the
physicians’ affidavits, the 72-hour medication affidavit, and an outpatient
treatment plan. Two witnesses acquainted with Appellant testified: a
Terros intensive-care clinical coordinator and a rehab specialist. After
petitioner rested, Appellant testified on her own behalf and reiterated that
she had not slept. She acknowledged having a bipolar diagnosis but again
expressed frustration over the allegedly slanderous, fabricated statements
in the petition.
¶10 The superior court found by clear and convincing evidence
that Appellant was persistently or acutely disabled because of a mental
disorder, see A.R.S. § 36-540, and ordered Appellant undergo combined
inpatient-outpatient treatment in a program for a period not to exceed more
than a year, with inpatient treatment not to exceed 180 days. Appellant
timely appealed, and we have jurisdiction pursuant to A.R.S. §§ 12-
120.21(A)(1), -2101(A)(10), and 36-546.01.
DISCUSSION
¶11 Appellant argues the superior court abused its discretion and
she was denied procedural due process when it denied her request to
6 The two witnesses who were present at the hearing indicated “it
would be a bit of a hardship but a surmountable one to continue the matter
till Friday.”
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IN RE: MH 2020-001729
Decision of the Court
continue the hearing because her “sleep deprivation” made it difficult for
her to meaningfully “participate and assist counsel” at the hearing.
I. Denial of Continuance
¶12 We review the denial of a motion to continue for an abuse of
discretion. In re MH2003-000240, 206 Ariz. 367, 369–70, ¶ 10 (App. 2003).
The superior court abuses its discretion when exercising discretion “in a
manner that is either manifestly unreasonable or based on untenable
grounds or reasons.” Kimu P. v. Ariz. Dep’t of Econ. Sec., 218 Ariz. 39, 42,
¶ 11 (App. 2008) (quotation omitted). However, we can affirm the court’s
decision on any basis supported by the record. Cf. In re MH94-00592, 182
Ariz. 440, 445 (App. 1995) (explaining that although the court erred in
requiring evidence of the patient’s current behavior to determine whether
court-ordered treatment was warranted, the appellate court “can sustain a
decision correct in result, regardless of the underlying reason”).
¶13 Section 36-535(B) of the Arizona Revised Statutes governs the
timing of court-ordered treatment hearings and states, in relevant part:
The court shall order the hearing to be held within six
business days after the petition is filed, except that, on good
cause shown, the court may continue the hearing at the request of
either party. The hearing may be continued for a maximum of
thirty days at the request of the proposed patient. . . .
(Emphasis added.) The statute does not mandate the superior court
“automatically” grant a patient’s request for a continuance. MH2003-
000240, 206 Ariz. at 369, ¶¶ 6–8. Rather, the “may” clause clearly indicates
that the court retains ultimate discretion in determining whether the patient
has shown good cause to continue a hearing beyond the standard six days.
Id. at ¶ 9.
¶14 While Appellant maintains her desire to continue the hearing
was because of sleep deprivation, the record reflects, after questioning by
the superior court, that Appellant really wanted more time “to sleep and
prepare” so that she could get what she believed to be a slanderous,
fabricated petition for court-ordered treatment removed from the court’s
docket. Her “sleep deprivation” rationale was secondary to the opportunity
to remove information she objected to in the petition. Appellant had raised
her sleep deprivation at the initial hearing on the petition for evaluation
and was raising it again. She omitted, however, that the earlier hearing was
not vacated because of her sleep deprivation but because she agreed to the
evaluation. She mistook her willingness to undergo evaluation with the
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IN RE: MH 2020-001729
Decision of the Court
court’s responsibility in a disputed petition for court-ordered treatment.
Consequently, the court did not abuse its discretion by denying her request
for a two-week continuance.
¶15 Additionally, Appellant wanted “to be prepared” before
appearing in front of the judge, wanting “dates” and “definitions” and the
ability “to write things down” before proceeding. However, she had
sufficient time to mount a defense and fervently disputed many of the
allegations in the petition at the hearing. There is nothing in the trial record
indicating she was unable to testify or that sleep deprivation hindered her
ability to testify in any way.
¶16 Moreover, the superior court noted a continuance to allow
Appellant to research a drug allegedly in her system was unrelated to the
mental health allegations in the petition. We agree and find no abuse of
discretion.
¶17 Appellant also argues the superior court denied her request
to continue solely based on an “uncorroborated opinion that her
medications needed ‘time to titrate’” and it wished “to proceed quickly.”
We disagree. While the court may not have known about the effectiveness
of any new medication Appellant might be given or take before a future
hearing date, it is clear the court found her request for a continuance
unpersuasive after considering all of her reasons set in the record.
Accordingly, the court did not abuse its discretion by denying her request
for a continuance.
II. Due Process Claim
¶18 Although raised on appeal, Appellant did not raise any
argument to the superior court that her procedural due process rights were
denied when the court denied her request for a continuance. Generally,
absent “exceptional circumstances,” we do not consider arguments for the
first time on appeal. In re MH 2008-002659, 224 Ariz. 25, 27, ¶ 9 (App. 2010).
We follow the rule because “a trial court and opposing counsel should be
afforded the opportunity to correct any asserted defects before error may
be raised on appeal.” Trantor v. Fredrikson, 179 Ariz. 299, 300 (1994).
¶19 There is nothing in the trial record that suggests any
exceptional circumstances that require our intervention. Moreover, there is
nothing in the record to indicate Appellant was prejudiced by the denial of
the continuance.
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IN RE: MH 2020-001729
Decision of the Court
¶20 Even if we presume Appellant had not waived her due
process argument, we find her arguments unpersuasive. “Due process
requires notice and an opportunity to be heard at a meaningful time and in
a meaningful manner[.]” In re MH2006-000023, 214 Ariz. 246, 248–49, ¶ 10
(App. 2007) (citing Huck v. Haralambie, 122 Ariz. 63, 65 (1979)). Due process
further requires that the patient be present at the hearing with counsel, “be
confronted with witnesses against [her], have the right to cross-examine,
and to offer evidence of [her] own.” In re Jesse M., 217 Ariz. 74, 76, ¶ 9 (App.
2007) (citations omitted). Appellant has not shown that any of the
procedural safeguards were ignored. Rather, she argues she “was not able
to meaningfully communicate and had reservations [about] proceeding on
the first setting for the hearing given what she perceived to be a debilitating
‘brain fog.’” The record reflects, however, that Appellant actively
participated in the hearing. Moreover, the 72-hour medication affidavit in
the record, which was based on a psychiatric medical provider’s
“professional opinion,” stated that the medications Appellant was taking,
“either individually or in a combination,” did not significantly hamper her
“ability to prepare for, or participate in” the hearing for court-ordered
treatment.
¶21 Appellant argues this court should analyze whether “the
specific dictates of due process” were met based on Mathews v. Eldridge, 424
U.S. 319, 334–35 (1976). We disagree. While involuntary commitment
proceedings pose a significant risk of deprivation of liberty, In re MH2007-
000629, 219 Ariz. 289, 291, ¶ 8 (App. 2008), Appellant does not effectively
explain how the procedures used were inadequate to protect her from any
erroneous deprivation of her rights, or what additional safeguards were
necessary to protect her rights. Rather, she takes issue with the superior
court’s reasoning for denying her continuance, which does not suggest any
due process procedural error; it is only an argument for an abuse of
discretion, as we resolved above. Consequently, we find no procedural due
process violations, especially given that Appellant was afforded multiple
opportunities to show good cause for a continuance and had “a full and
fair” adversarial hearing on the petition for court-ordered treatment. See id.
at ¶ 8 (quotation omitted).
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IN RE: MH 2020-001729
Decision of the Court
CONCLUSION
¶22 For the reasons stated above, we affirm the superior court’s
order that Appellant undergo combined inpatient and outpatient treatment
in a program until she is found to be no longer persistently or acutely
disabled.
AMY M. WOOD • Clerk of the Court
FILED: AA
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