Opinion
No. 1 CA-MH 14-0014
09-30-2014
IN THE MATTER OF IVYLYNN Y.
COUNSEL Mohave County Legal Defender's Office, Kingman By Diane S. McCoy Counsel for Appellant. Mohave County Attorney's Office, Kingman By Dolores H. Milkie Counsel for Appellee
NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED. Appeal from the Superior Court in Mohave County
No. S8015MH201200041
The Honorable Lee F. Jantzen, Judge
AFFIRMED
COUNSEL Mohave County Legal Defender's Office, Kingman
By Diane S. McCoy
Counsel for Appellant.
Mohave County Attorney's Office, Kingman
By Dolores H. Milkie
Counsel for Appellee
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Judge Peter B. Swann joined. THOMPSON, Judge:
¶1 Ivylynn Y. (Ivylynn) appeals the court's order granting the petition for continued court-ordered treatment. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
"We view the facts in the light most favorable to sustaining the trial court's judgment." In re MH 2008-001188, 221 Ariz. 177, 179, ¶ 14, 211 P.3d 1161, 1163 (App. 2009) (citation omitted).
¶2 In 2012, Dr. Zegarra filed a petition for a court-ordered evaluation of Ivylynn on the ground that Ivylynn had a history of mental illness, refused to take her medication, and engaged in disruptive behavior. The petition also alleged that Ivylynn had not complied with out-patient psychiatric treatment, exhibited paranoid delusions, and threatened to harm the staff of Mohave Mental Health Clinic, Inc. (Mohave Clinic). After the court granted the petition, Dr. Seltzer, deputy medical director at Mohave Clinic, filed a petition for court-ordered treatment of Ivylynn, indicating Ivylynn was persistently or acutely disabled, and recommending in-patient and out-patient treatment.
¶3 At the hearing on the petition for court-ordered treatment, Ivylynn requested an Independent Medical Examination (IME) by her physician, Dr. Epstein. The court continued the hearing on two occasions to allow for the IME's completion. Dr. Epstein concluded that Ivylynn suffered from bipolar disorder and was currently disabled, but she recommended voluntary out-patient treatment rather than court-ordered involuntary treatment. Ivylynn's counsel subsequently admitted Dr. Epstein's affidavit into evidence at the hearing on January 17, 2013. After considering the exhibits and testimony at the hearing, including that of Ivylynn, Ivylynn's husband, and Dr. Seltzer, the court found clear and convincing evidence that Ivylynn was persistently or acutely disabled, needed psychiatric treatment, and would not accept voluntary treatment. Accordingly, the court ordered Ivylynn to undergo combined in-patient and out-patient treatment for a period not to exceed 365 days, with inpatient treatment not to exceed 180 days. This Court subsequently affirmed that order. See In The Matter of Ivy Y., 1 CA-MH 13-0009 (Ariz. App. July 18, 2013) (mem. decision).
¶4 Dr. Ramadan, medical director of Mohave Clinic, conducted the required annual examination on November 13, 2013, see Ariz. Rev. Stat. ("A.R.S.") § 36-543(E)-(F) (Supp. 2013), and on December 6, 2013, Mohave Clinic filed a petition for continued court-ordered treatment. In the petition, Mohave Clinic stated that a continuation of court-ordered treatment was necessary because, after completing the annual examination, Dr. Ramadan concluded that Ivylynn continued to be persistently and acutely disabled; voluntary treatment was not appropriate given Ivylynn's history of discontinuing treatment; and Ivylynn was in need of continued in-patient and out-patient court-ordered treatment.
¶5 At the January 7, 2014 hearing on the petition for continued treatment, Ivylynn requested that her court appointed counsel be released in order to retain private counsel, or that she be allowed to represent herself. Ivylynn also informed the court that she would like an IME by Dr. Epstein and Dr. Schiff, but that her counsel would not make the request on her behalf. The court questioned Ivylynn's counsel as to whether Ivylynn had a right to an IME, to which Ivylynn's counsel responded, "I don't think under the petition for renewal of a Title 36 that there's a right for an independent evaluation. I think that's under the discretion of the attorney whether to ask for an independent evaluation." Ivylynn informed the court that she did not have private counsel ready to appear at the hearing. Accordingly, the court ordered a one week continuance in order for Ivylynn to retain private counsel.
¶6 At the hearing, Ivylynn informed the court that she was unable to retain private counsel, and again requested to represent herself. The court denied Ivylynn's request. Thereafter, Dr. Ramadan testified that throughout the previous year, Ivylynn often failed to follow up on her treatment plan, she was inconsistent in taking her medication, and she demonstrated resistance and poor insight into her illness. According to Dr. Ramadan, this resulted in Ivylynn's disorganized thoughts and behavior reoccurring, thereby requiring Ivylynn to return from out-patient treatment to in-patient treatment. As of the date of the hearing, Ivylynn continued to receive in-patient treatment. A human service worker with Mohave Clinic also testified as to Ivylynn's behavior during treatment, stating that Ivylynn had delusions, she was unwilling to take her medication, and she believed that she was not ill.
¶7 Ivylynn's counsel cross-examined both witnesses, and Ivylynn testified on her own behalf. Ivylynn testified that she discontinued her medication during out-patient treatment because the high dosage of medication caused severe negative side-effects and interfered with her ability to care for her family. She further stated that she functions very well when taking a lower dosage of medication, that she willingly and regularly takes her medication, and that she believes she can successfully manage her bipolar disorder by receiving voluntary psychiatric treatment. The court found clear and convincing evidence that Ivylynn continued to be persistently or acutely disabled and in need of treatment, that there were no suitable alternatives to court-ordered treatment, and that voluntary treatment would not be appropriate. Accordingly, the court ordered treatment to continue for an additional 365 days.
¶8 Ivylynn timely appealed. We have jurisdiction pursuant to A.R.S. §§ 36-546.01 (2014) and 12-2101(A)(1) (2014).
DISCUSSION
¶9 Ivylynn argues that she had a statutory and due process right to request an IME at the hearing on the petition for continued treatment. Ivylynn asserts that the court erred in permitting her attorney to waive her right to obtain an IME; and therefore, the court's order continuing involuntary treatment should be vacated. We will not disturb an order for continued treatment unless it is "clearly erroneous or unsupported by any credible evidence," Mental Health Case No. MH 94-00592, 182 Ariz. 440, 443, 897 P.2d 742, 745 (App. 1995) (citation omitted), but we review questions of law, such as statutory interpretation or constitutional claims, de novo. In re MH 2010-002637, 228 Ariz. 74, 78, ¶ 13, 263 P.3d 82, 86 (App. 2011) (citation omitted).
¶10 "[C]ivil commitment constitutes a significant deprivation of liberty." In re MH 2008-000867, 222 Ariz. 287, 291, ¶ 17, 213 P.3d 1014, 1018 (App. 2009) (citation omitted). This liberty interest necessitates due process at mental review hearings, id., and requires us to strictly construe civil commitment statutes. In re MH 2007-001236, 220 Ariz. 160, 165, ¶ 15, 204 P.3d 418, 423 (App. 2008); see also MH 2001-001139, 203 Ariz. 351, 353, ¶ 12, 54 P.3d 380, 382 (App. 2002) ("[T]he primary purpose of statutory interpretation is to effectuate legislative intent," the best evidence of which is the plain language of the statute). In order to preserve a patient's rights and liberty interest, A.R.S. §§ 36-543(D) and -538 (Supp. 2013) explicitly grant a patient the right to obtain an analysis of their medical condition by an IME for use at a hearing on continued court-ordered treatment. See In re MH2010-002348, 228 Ariz. 441, 444-45, ¶¶ 10-11, 268 P.3d 392, 395-96 (App. 2011). Although we agree that Ivylynn had the right to obtain an IME pursuant to A.R.S. §§ 36-543(D) and -538, we do not agree that the court erred in relying on her counsel's waiver of that right.
The Supreme Court has held that a proposed mental health patient's due process rights include the right to "be present with counsel, have an opportunity to be heard, [and] be confronted with witnesses against him." Specht v. Patterson, 386 U.S. 605, 610 (1967).
¶11 Arizona law has long recognized that an individual may be bound by his or her trial counsel's strategic decision to waive certain rights, including statutory and constitutional rights. See State v. Levato, 186 Ariz. 441, 444, 924 P.2d 445, 448 (1996); State v. West, 176 Ariz. 432, 447, 862 P.2d 192, 207 (1993), overruled on other grounds by State v. Rodriguez, 192 Ariz. 58, 961 P.2d 1006 (1998). "Although there are basic rights that the attorney cannot waive without the fully informed and publicly acknowledged consent of the client,[] the lawyer has—and must have—full authority to manage the conduct of the trial." Taylor v. Illinois, 484 U.S. 400, 417-18 (1988) (footnote omitted); see State v. Rodriguez, 126 Ariz. 28, 33, 612 P.2d 484, 489 (1980) ("[T]he power to control trial strategy belongs to counsel.") (citation omitted). Typically, whether and how to present evidence and cross-examine witnesses is a tactical, strategic decision that is controlled by counsel. State v. Lee, 142 Ariz. 210, 215, 689 P.2d 153, 158 (1984) ("Tactical decisions require the skill, training, and experience of the advocate. A criminal defendant, generally inexperienced in the workings of the adversarial process, may be unaware of the redeeming or devastating effect a proffered witness can have on his or her case."); see also State v. Workman, 123 Ariz. 501, 503, 600 P.2d 1133, 1135 (App. 1979) (stating an attorney's decision whether or not to call a witness was a tactical decision the court was reluctant to second-guess); see, e.g., State v. Cromwell, 211 Ariz. 181, 186, ¶¶ 28-29, 119 P.3d 448, 453 (2005) (stating that an indigent defendant "is not entitled to counsel of choice or to a meaningful relationship with his or her attorney," and disagreements in trial strategy do not constitute an irreconcilable conflict).
In the criminal context, personal rights that may not be waived by counsel include: "whether to plead guilty, whether to waive a jury trial and whether to testify. Beyond these matters, most trial decisions are trial strategy resting with counsel.'" State v. Medina, 232 Ariz. 391, 402, ¶ 32, 306 P.3d 48, 59 (2013) (quoting State v. Nirschel, 155 Ariz. 206, 208, 745 P.2d 953, 955 (1987)). Likewise, in the mental health context, we have required superior courts to expressly determine whether a patient knowingly, voluntarily, and intelligently waived certain personal rights. See, e.g., In re MH 2007-001275, 219 Ariz. 216, 219-21, ¶¶ 13-19, 196 P.3d 819, 822-24 (App. 2008) (waiver of the A.R.S. § 36-539 hearing); In re MH 2006-000749, 214 Ariz. 318, 324, ¶ 27, 152 P.3d 1201, 1207 (App. 2007) (waiver of the right to be present at a hearing); In re Jesse M., 217 Ariz. 74, 80, ¶ 30, 170 P.3d 683, 689 (App. 2007) (waiver of the right to counsel).
¶12 In this case, a hearing was held at which Ivylynn was present, had an attorney representing her, testified on her own behalf, and cross-examined two specific witnesses. The only right appellant claims was improperly waived was the right to present evidence of an IME by two specific physicians. We expect that Ivylynn's counsel will have reviewed the petition for continued treatment and the annual examination report; interviewed the treating physicians, witnesses and Ivylynn; and explained Ivylynn's rights to her. See A.R.S. §§ 36-537 (Supp. 2013), -543(G)(2) (outlining the minimal duties of counsel before hearing). The record shows that Dr. Epstein's affidavit for the January 12, 2013 IME of Ivylynn was considered by the court in its initial involuntary treatment order. Additionally, Ivylynn testified at the hearing on the petition for continued treatment that Dr. Schiff also conducted an IME of Ivylynn in May of the preceeding year. After meeting with Ivylynn's physicians, reviewing her medical record, and considering her current re-placement back into in-patient treatment, Ivylynn's counsel could reasonably determine that requesting an IME from Dr. Epstein or Dr. Schiff, and submitting their opinion into evidence, was a poor strategy for assisting her client at the hearing. See Workman, 123 Ariz. at 503, 600 P.2d at 1135 (explaining that the court is reluctant to second-guess an attorney's tactical decision because "[t]here are factors that do not readily appear on record that can lead an attorney to decide that a particular witness is undesirable or that his participation in the defense may harm the defendant"). Based on these facts, we find no error in the court's reliance on counsel's waiver of the right to present evidence of an IME at the hearing.
Ivylynn's reliance on In re Willims, 478 N.E.2d 867 (Ill. App. Ct. 1985) and In re R.C., 788 N.E.2d 99 (Ill. App. Ct. 2003) is misplaced. In both Illinois cases, the proposed patient either personally, or through counsel, requested an IME prior to their involuntary treatment hearing. See In re Willims, 478 N.E.2d at 869; In re R.C., 788 N.E.2d at 100. Unlike the issue before us, neither case involved an attorney's tactical waiver of their client's right to obtain an IME as evidence of their mental condition at the involuntary treatment hearing.
Accordingly, we also reject Ivylynn's alternative argument that her counsel's incorrect "legal determination of how a patient's right to an independent evaluation is to be exercised" amounted to ineffective assistance of counsel. Ivylynn's counsel sensibly stated that the decision whether to request and present evidence of an IME of her client was controlled by counsel. See State v. Pietsch, 109 Ariz. 261, 263, 508 P.2d 337, 339 (1973) (finding questions pertaining to trial tactics will not provide grounds for finding counsel's representation inadequate.); see also MH2010-002637, 228 Ariz. at 82, ¶ 33, 263 P.3d at 90 (stating that just because counsel did not cross-examine certain witnesses or present evidence opposing the petition does not mean that counsel was ineffective).
Compliance with A.R.S. § 36-543(D)
¶13 Ivylynn also contends for the first time on appeal that Mohave Clinic failed to strictly comply with A.R.S. § 36-543(D) (Supp. 2013) because Dr. Ramadan simultaneously acted as both medical director and examining psychiatrist. Absent "extraordinary circumstances," this court will not consider arguments raised for the first time on appeal. See In re Pima County Mental Health Serv. Action No. MH-1140-6-93, 176 Ariz. 565, 568, 863 P.2d 284, 287 (App. 1993) (declining to consider a number of due process claims because they were raised for the first time on appeal); see also Estate of Reinen v. N. Ariz. Orthopedics, Ltd., 198 Ariz. 283, 286, ¶ 9, 9 P.3d 314, 317 (2000) ("An objection to proffered testimony must be made either prior to or at the time it is given, and failure to do so constitutes a waiver."). Because appellant failed to preserve this argument for purposes of appeal, we deem it waived.
We note that the briefing in this case underscores the need to litigate such issues in the superior court so that we have an adequate record to review on appeal. In the answering brief, for example, the county attorney offers factual avowals including Mohave Clinic's current staff and "standard procedure," as well as a policy argument pertaining to the Clinic's ability to comply with A.R.S. § 36-543(D), which is premised on circumstances we have no way of evaluating for the first time on appeal. The orderly administration of justice is furthered if such issues are first raised in the trial court, so that the parties can introduce additional evidence if needed and the judge can weigh that evidence. See Trantor v. Fredrikson, 179 Ariz. 299, 300, 878 P.2d 657, 658 (1994) (stating that "a trial court and opposing counsel should be afforded the opportunity to correct any asserted defects"); see also Estate of Reinen, 198 Ariz. at 286, ¶ 9, 9 P.3d at 317 ("[A] contemporaneous objection also affords the party offering the evidence an opportunity to supply any missing foundation.").
--------
¶14 Even if we considered Ivylynn's argument, we would find no error. A.R.S. § 36-543(D) provides in pertinent part: "If the medical director believes that a continuation of court-ordered treatment is appropriate, the medical director of the mental health treatment agency shall appoint one or more psychiatrists to carry out a psychiatric examination of the patient." Ivylynn concedes that Dr. Ramadan was a "psychiatrist" as defined in A.R.S. § 36-501(38) (Supp. 2013), and has not suggested that he was biased, unqualified, or otherwise deficient. Ivylynn had ample opportunity to address any concerns she had about Dr. Ramadan's qualifications and psychiatric conclusions before the hearing and during her cross-examination of Dr. Ramadan's testimony. See A.R.S. § 36-543(G)(2) (requiring counsel to interview any physician who prepared a report on the annual review within ten days of appointment). Nothing in the record suggests that Ivylynn was prejudiced by Dr. Ramadan acting simultaneously as medical director and examining psychiatrist under A.R.S. § 36-543(D).
CONCLUSION
¶15 For the foregoing reasons, we affirm the court's order for continued involuntary treatment.