In Re Mh2015-000579 ( 2016 )


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  •                      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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 MH2015-000579
    No. 1 CA-MH 15-0045
    FILED 1-12-2016
    Appeal from the Superior Court in Maricopa County
    No. MH2015-000579
    The Honorable Susan G. White, Judge Pro Tempore
    AFFIRMED
    COUNSEL
    Gerald G., Phoenix
    Appellant
    Maricopa County Attorney’s Office, Phoenix
    By Anne C. Longo, Bruce P. White
    Counsel for Appellee
    MEMORANDUM DECISION
    Presiding Judge Kenton D. Jones delivered the decision of the Court, in
    which Judge Samuel A. Thumma and Judge Peter B. Swann joined.
    IN RE MH2015-000579
    Decision of the Court
    J O N E S, Judge:
    ¶1           Appellant appeals the superior court’s order finding him not
    indigent and committing him to combined inpatient and outpatient
    treatment. For the following reasons, we affirm.
    FACTS1 AND PROCEDURAL HISTORY
    ¶2            Appellant was arrested in February 2015 by the Scottsdale
    Police Department (the Department) after it received a call from a law firm
    reporting Appellant had sent multiple threatening emails to its employees.
    A crisis intervention specialist with the Department evaluated Appellant
    and, believing him to be a danger to others, completed an application for
    involuntary evaluation pursuant to Arizona Revised Statutes (A.R.S.)
    section 36-520(A),2 and an application for emergency admission for
    evaluation pursuant to A.R.S. § 36-524. On February 17, 2015, Dr. John Lee
    filed a petition for court-ordered evaluation with the superior court
    pursuant to A.R.S. § 36-523, and the court issued a “detention order for
    evaluation and notice” on February 18, 2015. On February 20, 2015,
    following Appellant’s evaluation, Dr. Gretchen Alexander filed a petition
    for court-ordered treatment pursuant to A.R.S. § 36-533 alleging Appellant
    posed a danger to others and was persistently or acutely disabled; the
    petition sought an order for combined inpatient and outpatient treatment
    pursuant to A.R.S. § 36-540(A)(2).
    ¶3            The Maricopa County Public Advocate filed a “Motion for
    Determination of Counsel” alleging Appellant was not indigent and wished
    to “represent himself, pro per, in this matter.” The motion asserted
    Appellant claimed to have “the necessary background and expertise to
    represent himself” and “adequate resources to compensate private counsel
    for representation in the pending mental health matter.” The court ordered
    the Public Advocate to remain as counsel, and an evidentiary hearing on
    1       We view the facts in the light most favorable to sustaining the
    superior court’s judgment and, absent clear error, will not set aside its
    related findings. In re MH 2008-002596, 
    223 Ariz. 32
    , 35, ¶ 12 (App. 2009)
    (citing In re MH 94-00592, 
    182 Ariz. 440
    , 443 (App. 1995)).
    2     Absent material revisions from the relevant date, we cite a statute’s
    current version.
    2
    IN RE MH2015-000579
    Decision of the Court
    the petition for court-ordered treatment was held on February 27, 2015, five
    business days after the petition was filed.
    ¶4            At the hearing, Appellant requested to represent himself, and
    the court denied his request. After Petitioner rested its case, the court was
    addressed by the Public Advocate, but ultimately “advised that [Appellant]
    is requesting to no longer be represented by Counsel and does not wish to
    defend his case.” Appellant rested, and the court found by clear and
    convincing evidence Appellant suffered from a mental disorder, was
    persistently or acutely disabled, was in need of treatment, and was either
    unwilling or unable to accept voluntary treatment. The court dismissed the
    allegation that Appellant was a danger to others and found Appellant not
    indigent for purposes of A.R.S. § 11-584(A). The court further ordered
    Appellant submit to a maximum of 365 days of combined inpatient and
    outpatient treatment with a maximum of 180 days of inpatient treatment.
    Appellant timely appealed, and we have jurisdiction pursuant to A.R.S.
    §§ 12-120.21(A)(1), -2101(A)(10)(a), and 36-546.01.
    DISCUSSION
    ¶5             Appellant argues the superior court erred in finding him not
    indigent and in ordering a combination of inpatient and outpatient
    treatment. Inasmuch as these issues present questions of law, we review
    them de novo. See In re MH 2012-002480, 
    232 Ariz. 421
    , 422, ¶ 5 (App. 2013)
    (citing In re MH 2006-000749, 
    214 Ariz. 318
    , 321, ¶ 13 (App. 2007)).
    I.    Finding of Indigence
    ¶6            Appellant argues he has no funds and the superior court
    erred in finding him not indigent. As relevant here, a public defender shall
    be appointed where an individual is “entitled to counsel as a matter of law
    and . . . not financially able to employ counsel in . . . [m]ental disorder
    hearings only if appointed by the court under title 36, chapter 5.” A.R.S.
    § 11-584(A)(3).
    ¶7            Here, a public defender was appointed to assist Appellant,
    and did assist Appellant, before and throughout the hearing, despite
    Appellant’s numerous attempts to waive the appointment. However,
    Appellant did not make a transcript of the hearing part of the record. See
    ARCAP 11(c)(1)(A) (requiring the appellant to “order transcripts of
    superior court proceedings not already in the official record that the
    appellant deems necessary for proper consideration of the issues on
    appeal”). In the absence of a hearing transcript, we assume the superior
    court’s findings and conclusions are supported by the record. See Romero v.
    3
    IN RE MH2015-000579
    Decision of the Court
    Sw. Ambulance, 
    211 Ariz. 200
    , 203, ¶ 4 (App. 2005) (citing State ex. rel Dep’t
    of Econ. Sec. v. Burton, 
    205 Ariz. 27
    , 30, ¶ 16 (App. 2003); Bolm v. Custodian of
    Records, 
    193 Ariz. 35
    , 41-42, ¶ 19 (App. 1998); and Baker v. Baker, 
    183 Ariz. 70
    , 73 (App. 1995)). Appellant’s unsupported argument that the superior
    court erred is insufficient to overcome that presumption.
    II.    Request for Counsel
    ¶8            Appellant also argues he cannot effectively represent himself
    because he “[s]uffers from symptoms of Mild Cognitive Impairment, and is
    being evaluated for a designation of early onset dementia.”3 But, Arizona’s
    public defender statute only permits appointment of appellate counsel if
    the appellant is “entitled to counsel as a matter of law and . . . is not
    financially able to employ counsel.” A.R.S. § 11-584(A)(7). Because the
    superior court found Appellant not indigent, he is not entitled to a public
    defender on appeal. See 
    id. Furthermore, Appellant
    has not shown that his
    condition precludes effective self-representation on appeal, let alone that
    such a showing would, alone, justify the appointment of counsel. See A.R.S.
    § 11-584(A)(3). Therefore, we find no error.4
    3      Because Appellant was represented by counsel throughout the
    superior court proceedings, his only apparent remedy is the appointment
    of counsel on appeal. However, Appellant has not cited any legal authority
    or mechanism by which this Court could provide such relief, and we find
    none.
    4      We recognize civil commitment proceedings “differ from criminal
    proceedings” and “should not be constitutionally ‘equated to a criminal
    prosecution’ because the state is not acting in a punitive manner.” In re MH
    2008-000867, 
    225 Ariz. 178
    , 180-81, ¶ 8 (2010) (quoting Addington v. Texas,
    
    441 U.S. 418
    , 428 (1979)). However, we note our concern with the
    incongruity our necessary finding presents in light of precedent stating,
    “involuntary treatment by court order constitutes ‘a serious deprivation of
    liberty,’ . . . accord[ing a proposed patient] due process protection,
    including a full and fair adversarial proceeding.’” Pima Cnty. Mental Health
    No. MH 3079-4-11, 
    228 Ariz. 341
    , 342, ¶ 5 (App. 2011) (quoting MH 2006-
    
    000749, 214 Ariz. at 321
    , ¶ 14); accord Vitek v. Jones, 
    445 U.S. 480
    , 491 (1980)
    (noting a court-ordered “commitment to a mental hospital produces ‘a
    massive curtailment of liberty’”) (quoting Humphrey v. Cady, 
    405 U.S. 504
    ,
    509 (1972)). An irreconcilable tension appears to exist in the law where, as
    here, the superior court makes a finding — of which we find no legal error
    4
    IN RE MH2015-000579
    Decision of the Court
    III.   Court-Ordered Treatment
    ¶9            Appellant argues the superior court erred in ordering he
    submit to psychiatric treatment because the statutory requirements were
    not met, his “pre-court hold period” violated state and federal law, and he
    was not allowed to fully defend the action. The record does not support
    these assertions.
    A.     The Superior Court’s Order is Supported by the Requisite
    Findings.
    ¶10            Arizona’s statutory requirements must be strictly followed in
    an involuntary treatment proceeding given that the result may seriously
    deprive Appellant of his liberty interests. See MH 
    2008-002596, 223 Ariz. at 35
    , ¶ 12 (citations omitted). From our review, the superior court properly
    concluded the statutory requirements were met, and the order was
    supported by sufficient evidence.
    ¶11           As relevant here, A.R.S. § 36-540(A)(2) provides:
    If the court finds by clear and convincing evidence that the
    proposed patient, as a result of mental disorder, is a danger
    to self, is a danger to others, has a persistent or acute disability
    or a grave disability and [is] in need of treatment, and is either
    unwilling or unable to accept voluntary treatment, the court
    shall order the patient to undergo . . . [t]reatment in a program
    consisting of combined inpatient and outpatient treatment.
    “Persistent or acute disability” is a severe mental disorder meeting the
    following criteria:
    (a) If not treated has a substantial probability of causing the
    person to suffer or continue to suffer severe and abnormal
    — that an individual is not indigent, and therefore either responsible for
    obtaining counsel on appeal or representing himself, despite the court’s
    additional finding that the individual suffers from a mental disorder of
    sufficient magnitude to warrant court-ordered treatment. Under these
    circumstances, the court’s findings are likely to be affirmed on appeal,
    given the deferential standard of review, with the practical effect that the
    individual, who is arguably unable to obtain counsel or represent himself
    as a result of a mental impairment, would be subject to a serious liberty
    deprivation without the benefit of counsel to intelligibly challenge the
    legitimacy of those findings.
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    IN RE MH2015-000579
    Decision of the Court
    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.
    A.R.S. § 36-501(31). Contrary to Appellant’s concerns, the relevant statutes
    do not require the superior court to find Appellant’s treatment is required
    for public safety. See id.; A.R.S. § 36-540(A)(2); cf. MH 
    94-00592, 182 Ariz. at 443-45
    (holding that a court may find an individual has a persistent and
    acute disability, even without evidence of an overt act or current behavior
    demonstrating that disability, so long as other clear and convincing
    evidence of the disability is presented) (citing In re MH 90-00566, 
    173 Ariz. 177
    , 184 (App. 1992)).
    ¶12            Additionally, although the superior court dismissed the
    allegation that Appellant was a danger to others, it found by clear and
    convincing evidence that, as a result of a mental disorder, Appellant has a
    persistent or acute disability in need of treatment and is unwilling or unable
    to accept voluntary treatment. Without a transcript of the hearing in which
    the court heard testimony supporting its findings, we assume its findings
    are supported by the record. See supra ¶ 7. These findings were sufficient
    for the court to order involuntary treatment under A.R.S. § 36-540(A). See
    MH 
    94-00592, 182 Ariz. at 445
    (noting an order for involuntary treatment
    may be upheld where the court has clear and convincing evidence that the
    defendant is persistently or acutely disabled and is either unwilling or
    unable to accept voluntary treatment). We find no error.
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    IN RE MH2015-000579
    Decision of the Court
    B.     Appellant’s Detention Period Did Not Violate State or
    Federal Law.
    ¶13            The record reflects Appellant was detained on February 18,
    2015 after a petition for evaluation was filed pursuant to A.R.S. § 36-529(B).
    This statute states:
    If, from review of the petition for evaluation, there is
    reasonable cause to believe that the proposed patient is, as a
    result of a mental disorder, a danger to self or others, has a
    persistent or acute disability or a grave disability and that the
    person requires immediate or continued hospitalization prior
    to his hearing on court-ordered treatment, the court shall
    order the proposed patient taken into custody and evaluated
    at an evaluation agency.
    Appellant was evaluated, and a petition for court-ordered treatment was
    filed on February 20, 2015. Pursuant to A.R.S. § 36-535(B), the court must
    “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.” There was no continuance, and the hearing
    was held on February 25, 2015, five business days after the petition for
    court-ordered treatment was filed. Therefore, the length of Appellant’s
    detention does not violate Arizona law.
    ¶14            Appellant fails to cite any federal law governing time
    limitations for detention following an order for evaluation and, by failing
    to do so, waives any claim that his detention violated federal law. See
    Ritchie v. Krasner, 
    221 Ariz. 288
    , 305, ¶ 62 (App. 2009) (noting ARCAP
    13(a)(6) “requires the appellant to provide ‘citations to the authorities,
    statutes and parts of the record relied on’” and “[f]ailure to do so can
    constitute abandonment and waiver of that claim”) (citing State v. Moody,
    
    208 Ariz. 424
    , 452 n.9, ¶ 101 (2004)). We therefore find no error in the period
    of Appellant’s detention.
    C.     The Petition for Court-Ordered Treatment was Properly
    Filed, and Appellant was Allowed to Fully Defend the
    Action.
    ¶15           Appellant contends the court-ordered treatment process was
    “seriously flawed” because the petition for court-ordered treatment was
    improperly filed and he was not allowed to put on an adequate defense.
    Appellee argues Appellant waived these claims by not raising them before
    the superior court. It is worth repeating that Appellant was represented by
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    IN RE MH2015-000579
    Decision of the Court
    counsel throughout the superior court proceeding during which this
    alleged impropriety would have occurred.            Beyond that, we are
    unpersuaded by Appellant’s arguments because, as stated above, in the
    absence of a hearing transcript, we assume the court’s findings and
    conclusions are supported by the record, see supra ¶ 7, including those
    asserting the petition was properly filed and Appellant was permitted a
    sufficient opportunity to defend the action. On this basis, we find no error.
    CONCLUSION
    ¶16          For the foregoing reasons, we affirm the superior court’s
    order.
    :ama
    8