Opinion
No. 1 CA-MH 12-0072
02-12-2013
IN THE MATTER OF JAYME M.
Matthew J. Smith, Mohave County Attorney By Dolores H. Milkie, Deputy County Attorney Attorneys for Appellee Jill L. Evans, Mohave County Appellate Defender By Diane S. Mccoy Attorneys for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - Rule 28, Arizona Rules of Civil Appellate Procedure)
Appeal from the Superior Court in Mohave County
Cause No. S8015MH201200026
The Honorable Lee Frank Jantzen, Judge
AFFIRMED
Matthew J. Smith, Mohave County Attorney
By Dolores H. Milkie, Deputy County Attorney
Attorneys for Appellee
Phoenix Jill L. Evans, Mohave County Appellate Defender
By Diane S. Mccoy
Attorneys for Appellant
Kingman JOHNSEN, Judge ¶1 The superior court ordered Jayme M. to undergo combined inpatient and outpatient treatment after finding him to be persistently and acutely disabled and a danger to others. We affirm the superior court's order.
FACTS AND PROCEDURAL HISTORY
¶2 Jayme was admitted to the Kingman Regional Medical Center for detoxification after he threatened to slit his wrists. After threatening staff at the hospital, Jayme was transferred to the Mohave Medical Health Clinic. There, he would not communicate or cooperate with staff, appeared angry and psychotic and was delusional. At the clinic, Jayme's conduct frightened staff and peers, but he improved after a few days of medication. Staff eventually learned he had received inpatient treatment in other psychiatric hospitals and been noncompliant with treatment. Jayme said he wished to leave the clinic and refused voluntary treatment. On August 28, 2012, pursuant to Arizona Revised Statutes ("A.R.S.") section 36-533 (West 2013), doctors filed a petition for court-ordered treatment, alleging Jayme was a danger to others and persistently or acutely disabled as a result of a mental disorder requiring a combination of inpatient and outpatient treatment. ¶3 The same day, Jayme and his counsel received notice that the court would hear the petition on September 6, 2012. The notice informed Jayme that he had a right to appear at the hearing and be represented by an attorney. With the hearing notice was an order from the court that the hearing would be conducted by video conference between the clinic and the superior court, both of which are located in Kingman. The notice provided that "[a]ny objection to this method of hearing on behalf of the proposed patient must be filed promptly with the Court and may be considered a request for extension of time for the hearing pursuant to A.R.S. § 36-535(B) to allow for argument on the objection and coordination of a courtroom hearing." ¶4 Without objection, the hearing was held by video conference. Jayme, his counsel and counsel for the petitioner were present in the clinic, as were the witnesses; the judge participated in the video conference from the superior court building. At the conclusion of the hearing, the court found by clear and convincing evidence that Jayme was persistently or acutely disabled and a danger to others as a result of a mental disorder. The court ordered Jayme to undergo not more than 365 days of combined inpatient and outpatient treatment, with the inpatient treatment not to exceed 180 days. We have jurisdiction of Jayme's timely appeal pursuant to A.R.S. §§ 36-546.01 (West 2013) and 12-2101(A)(10)(a) (West 2013).
We view the facts in a civil commitment proceeding in the light most favorable to upholding the superior court's order. In re MH 2008-001188, 221 Ariz. 177, 179, ¶ 14, 211 P.3d 1161, 1163 (App. 2009).
Absent material revisions after the relevant date, we cite a statute's current version.
DISCUSSION
A. Standard of Review.
¶5 We review the application and interpretation of statutes involving involuntary commitments de novo. In re MH 2010-002637, 228 Ariz. 74, 78, ¶ 13, 263 P.3d 82, 86 (App. 2011). In a civil commitment case, "the statutory requirements must be strictly adhered to." In re Commitment of Alleged Mentally Disordered Person, 181 Ariz. 290, 293, 889 P.2d 1088, 1091 (1995). We will affirm the superior court's order for involuntary treatment if the order is supported by substantial evidence and will not set it aside unless it is clearly erroneous. In re MH 2008-001188, 221 Ariz. 177, 179, ¶ 14, 211 P.3d 1161, 1163 (App. 2009).
B. Video Conference.
¶6 Pursuant to A.R.S. § 36-539(B) (West 2013), a "patient and the patient's attorney shall be present at all [involuntary treatment] hearings." Jayme argues that because the hearing was conducted by video conference, he was not "present" for the hearing, in violation of his statutory and due-process rights. Jayme also argues that the superior court coerced him into not complaining about the video conference format by warning him that an objection would be equated to a request for a continuance. ¶7 Jayme did not object to the order that the hearing would be conducted by video conference; nor did he object on the record during the hearing itself. This court generally will not consider arguments raised for the first time on appeal, which are considered waived. In re MH 2008-002659, 224 Ariz. 25, 27, ¶ 9, 226 P.3d 394, 396 (App. 2010). The invocation of a due-process challenge does not automatically preclude application of this waiver rule. Id. at ¶ 10. Particularly given that Jayme offers no contention that he was prejudiced by the manner in which the hearing was conducted, we decline to address this argument first made on appeal. ¶8 In a related argument, Jayme claims his counsel was ineffective because he allegedly "fail[ed] to affirmatively determine and advise the court of Appellant's position regarding his right to personally appear at the mental health hearing under A.R.S. [§] 36-539." A "claim of ineffective assistance of counsel presents a mixed question of law and fact; we defer to the trial court's factual findings but review de novo the ultimate legal conclusion." In re MH2010-002637, 228 Ariz. at 78, ¶ 13, 263 P.3d at 86. ¶9 The civil commitment statutes entitle a patient to counsel and set out the minimal duties required of counsel. Id. at 81-82, ¶¶ 29-31, 263 P.3d at 89-90. Procedural due process requires that counsel provide effective assistance. Id. A claim of ineffective assistance of counsel requires a showing that counsel provided deficient performance and the deficiency prejudiced the patient. State ex. rel Thomas v. Rayes, 214 Ariz. 411, 413, ¶ 10, 153 P.3d 1040, 1042 (2007) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)); see also Matter of Carmody, 653 N.E.2d 977, 984 (App. 1995) (adopting Strickland test in civil commitment proceedings). ¶10 On appeal, Jayme does not explain how his counsel's failure to advise the court of his position about his right to personally appear might have changed the manner in which the hearing was conducted, the evidence at the hearing, or its outcome. Because Jayme does not contend he was prejudiced, we will not inquire into whether his counsel failed to meet his statutory duties.
Jayme does not argue that the video format inaccurately depicted the witnesses or himself or otherwise deprived the court of what it would have heard and seen if everyone were present in the courtroom. Cf. In re MH 2010-002637, 228 Ariz. at 81, ¶ 26, 263 P.3d at 89 ("While hearings once had to be conducted in person, that is no longer the case. With today's technology, a hearing can be conducted telephonically from multiple locations and telephonic testimony is expressly condoned."). Moreover, although Jayme argues that the court's warning that an objection might cause a continuance "coerced" him into accepting the video format, without any indication of how long the hearing would have been continued, we cannot conclude the court's order coerced Jayme into waiving any right he might have to an in-person hearing.
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C. Sufficiency of the Evidence.
¶11 Before ordering a person to undergo involuntary treatment, the superior court must "find[] by clear and convincing evidence that the proposed patient, as a result of a mental disorder, is a danger to self, is a danger to others, is persistently or acutely disabled or is gravely disabled and in need of treatment, and is either unwilling or unable to accept voluntary treatment." A.R.S. § 36-540(A) (West 2013). Clear and convincing evidence of a statutory ground requires an explanation of the facts supporting the conclusion, not just a "bare assertion that the statutory criterion was met." In re Mental Health Case No. MH 94-00592, 182 Ariz. 440, 447 n.4, 897 P.2d 742, 749 (App. 1995). Two physicians who have evaluated the patient each must testify that the required elements are met. A.R.S. § 36-539(B); In re MH 2007-001236, 220 Ariz. 160, 170, ¶ 32, 204 P.3d 418, 428 (App. 2008). ¶12 Jayme argues that insufficient evidence supported the superior court's finding that he was persistently or acutely disabled. The statute defines "persistent or acutely disabled" as:
a severe mental disorder that meets all the following criteria:A.R.S. § 36-501(32). ¶13 This statutory definition sets out in straightforward fashion the facts that must be shown by a petitioner seeking an order for involuntary treatment. Although the examinations of the witnesses at trial on the petition at issue here could have followed the statutory requirements more precisely, we conclude the testimony, viewed in a light most favorable to affirming the order, narrowly is sufficient to comply with the statute. ¶14 Two examining physicians testified at the hearing. Dr. Sirpa Tavakoli testified Jayme had been hospitalized and medicated in the past, had a long history of being noncompliant with treatment, showed obvious symptoms of mental disorder and would relapse without treatment. Tavakoli explained that Jayme would not answer questions or communicate with staff when he first arrived, but after several days of taking medication, "start[ed] talking a little bit" but was still "delusional." ¶15 Once Jayme improved so that he could "actually mak[e] appropriate comments," Tavakoli discussed with Jayme the advantages, disadvantages and alternatives to treatment. Tavakoli explained that the advantage of inpatient treatment would be that it would allow Jayme "to cope well and function better in society" but the disadvantage would be that he would have to remain at the clinic against his will and the side effects of the medicine he would take. Tavakoli testified she was unsure if Jayme understood the conversation. Tavakoli testified that Jayme "needs inpatient treatment until he is found stable enough to go to outpatient to seek treatment." ¶16 Dr. Lawrence Seltzer also evaluated Jayme. Seltzer testified that during the evaluation, Jayme was "delusional." He explained to Jayme the advantages and disadvantages of treatment, explaining that treatment would allow Jayme to be "more rational if he is on medication, have better judgment, and weed out the paranoid delusions." He also explained the "problems if he stayed on the medication." Asked about the appropriate form of treatment, Seltzer testified that Jayme should remain in the clinic, where he could be compelled to take his medication. Asked if he had explained to Jayme the alternatives to treatment, Seltzer stated, "Yes, that he would get some treatment, yes." Asked if Jayme understood the explanations of his treatment alternatives, Seltzer replied that he did not "know fully at this time." ¶17 Seltzer also testified that Jayme wished to become a voluntary patient, but with his history of noncompliance, Seltzer believed Jayme "would just sign himself out . . . before he is better." Seltzer also explained that without treatment, Jayme would continue to suffer harm, "be decompensating," and that Jayme's history of noncompliance prevented him from undergoing voluntary treatment at the current time. ¶18 Jayme argues that neither physician "testified specifically that [Jayme] was incapable of understanding and expressing an understanding of the advantages, disadvantages, or alternatives to treatment" as required by A.R.S. § 36-501(32)(b). He cites In the Matter of Mental Health Case No. MH 94-00592, in which the sum of the physician's testimony was an affidavit on a preprinted form in which the physician had marked a box next to the statutory definition of persistently and acutely disabled, along with a conclusory explanation that mental illness prevented the patient from understanding the items in section 36-501(32)(b). 182 Ariz. at 446-47, 897 P.2d at 748-49. In affirming the dismissal of the petition, this court held the affidavit failed to establish the factual circumstances of subsection (b), specifically that the physician had explained the available alternatives as required. Id. at 447, 897 P.2d at 749. ¶19 Unlike in MH 94-00592, Tavakoli and Seltzer both testified they explained to Jayme the advantages and disadvantages of treatment and the alternatives to treatment, and testified about what advantages and disadvantages they explained to Jayme. They both also testified they were unsure whether Jayme understood their explanations. While Seltzer said he believed Jayme understood the advantages of treatment, he also testified that Jayme may have just said that to allow himself an opportunity to avoid the very treatment that Seltzer explained was necessary to "weed out [Jayme's] paranoid delusions." Under these circumstances, there was sufficient evidence to support the court's finding that due to Jayme's impairment, he failed to understand the advantages and disadvantages of accepting treatment and its alternatives after explanation. ¶20 Jayme next argues that "Seltzer did not testify that [Jayme's] disorder had a reasonable prospect of being treatable by outpatient, inpatient or combined inpatient and outpatient treatment" as required in A.R.S. § 36-501(32)(c) of the definition of persistently or acutely disabled. Asked about the appropriate form of treatment, Seltzer testified that, unlike in the past, Jayme was compliant with taking his medication as long as he remained at the clinic. Seltzer also testified that if Jayme did not take his medication, he would regress and that this would cause Jayme harm. Viewed in the light most favorable to upholding the superior court's order, Seltzer offered sufficient testimony that combined inpatient and outpatient treatment held a reasonable prospect of treating Jayme's disorder. See MH 94-00592, 182 Ariz. at 448, 897 P.2d at 750 (Toci, J., concurring in part, dissenting in part) (testimony that untreated mental disorder would cause person to suffer harm as a result of "unsupervised treatment and medication" fulfills subsection (c) requirement). ¶21 Jayme further argues there was no evidence of "placement alternatives appropriate and available for the care and treatment of the patient" as required by statute. Specifically, Jayme argues that neither physician testified whether outpatient treatment would have been appropriate. "The court shall consider all available and appropriate alternatives for the treatment and care of the patient. The court shall order the least restrictive treatment alternative available." A.R.S. § 36-540(B). "Witnesses shall testify as to placement alternatives appropriate and available for the care and treatment of the patient." A.R.S. § 36-539(B). ¶22 Tavakoli testified that Jayme wished to be treated on an outpatient basis and hoped that this would be an eventual outcome. She also concluded that due to Jayme's history of noncompliance and current unwillingness to accept voluntary treatment, the severity of his symptoms and his likelihood of relapse, inpatient treatment was the only appropriate alternative. Seltzer expressed similar concerns about Jayme's noncompliance with voluntary treatment and told the court that the appropriate alternative was for Jayme to remain in the clinic, where he would take his medication. Viewed in the light most favorable to upholding the superior court's order, the physicians provided sufficient testimony regarding available and appropriate treatment alternatives for Jayme. ¶23 Jayme further argues that the record did not include the testimony of two physicians that he required treatment. A.R.S. § 36-539(B). As recounted above, however, both physicians testified that Jayme suffered from severe and obvious symptoms that would relapse without treatment and that Jayme had a long history of noncompliance with treatment and that voluntary treatment was inappropriate. Viewed in the light most favorable to sustaining the superior court's order, both physicians testified that Jayme required treatment of some sort. See Matter of Commitment of Allegedly Mentally Disordered Person, MH-1049-3-85, 147 Ariz. 313, 315, 709 P.2d 1372, 1374 (App. 1985) (need for treatment and unwillingness to accept voluntary treatment sufficiently showed patient required treatment).
(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.
CONCLUSION
¶24 For the foregoing reasons, we affirm the order of the superior court.
______________________
DIANE M. JOHNSEN, Judge
CONCURRING: ______________________
SAMUEL A. THUMMA, Presiding Judge
______________________
MICHAEL J. BROWN, Judge