Opinion
No. 2 CA-MH 2013-0007
07-02-2014
IN RE PIMA COUNTY MENTAL HEALTH NO. MH20000326613
Barbara LaWall, Pima County Attorney By Jonathan Pinkney-Baird, Deputy County Attorney, Tucson Counsel for Appellee Mental Health Defender's Office By Ann L. Bowerman, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Civ. App. P. 28(c)
Appeal from the Superior Court in Pima County
No. MH20000326613
The Honorable David R. Ostapuk, Judge Pro Tempore
AFFIRMED
COUNSEL
Barbara LaWall, Pima County Attorney
By Jonathan Pinkney-Baird, Deputy County Attorney, Tucson
Counsel for Appellee
Mental Health Defender's Office
By Ann L. Bowerman, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Kelly concurred. ESPINOSA, Judge:
¶1 Appellant seeks review of the trial court's order mandating that he receive mental health treatment for one year. He argues that the affidavits supporting the petition for court-ordered treatment were insufficient, the physicians' evaluations were not independent as required by statute, and there was insufficient evidence to support the court's ruling. For the reasons that follow, we affirm.
¶2 Pursuant to a petition for court-ordered treatment filed under A.R.S. § 36-533, a trial court must order involuntary treatment if it finds after an evidentiary hearing "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, 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). In reviewing an order for involuntary treatment, we view the facts in the light most favorable to sustaining the trial court's judgment. In re Maricopa Cnty. Mental Health No. MH 2008-001188, 221 Ariz. 177, ¶ 14, 211 P.3d 1161, 1163 (App. 2009).
¶3 In November 2013, a petition seeking a court-ordered evaluation of appellant was filed, noting that he had left his residential placement without permission following his recent discharge from the Arizona State Hospital after "many years" of treatment there. Pursuant to the trial court's order, Dr. Janis Petzel and Dr. Umee Davae evaluated appellant. Petzel concluded appellant suffered from a psychotic disorder, "NOS," or "not otherwise specified," would "continue to be symptomatic without treatment," was unable to make reasonable decisions about his treatment, and was unable or unwilling to engage in treatment. Davae similarly concluded appellant suffered from psychosis NOS and that he did not recognize the need for treatment "or may be willing but unable to engage in treatment at this time."
¶4 Following those evaluations, Dr. Petzel, through the Pima County Attorney's Office, filed a petition for court-ordered treatment. After an evidentiary hearing, the trial court found by clear and convincing evidence that appellant was persistently or acutely disabled as the result of a mental disorder, was in need of treatment, and was "willing but unable to comply with treatment on a voluntary basis without a court order." As we noted above, the court ordered that appellant receive treatment for one year. See § 36-540(A).
¶5 Appellant first argues that the petition for court-ordered treatment did not comply with § 36-533(B) because Dr. Davae's affidavit did not contain sufficient detail. We need not address this argument, however, because appellant did not identify any purported deficiencies in the petition or its accompanying affidavits until after the evidentiary hearing. Because involuntary commitment "may result in a serious deprivation of liberty," strict compliance with the applicable statutes is required. In re Coconino Cnty. Mental Health No. MH 1425, 181 Ariz. 290, 293, 889 P.2d 1088, 1091 (1995). But that requirement does not absolve a party from its obligation to raise issues in a timely fashion. The purpose of the waiver rule is to afford the trial court and the opposing party "the opportunity to correct any asserted defects," whether legal or factual. Trantor v. Fredrickson, 179 Ariz. 299, 300, 878 P.2d 657, 658 (1994). And as Division One of this court stated, testimony at the § 36-5439 hearing may "cure a defective affidavit." In re M.H. 2007-001236, 220 Ariz. 160, ¶ 20, 204 P.3d 418, 425 (App. 2008). Had appellant timely raised this issue, petitioner would have had the opportunity to obtain and file more complete affidavits if necessary or to take steps to ensure that the hearing testimony covered any purportedly missing information.
We do not necessarily adopt Division One's statement that, in all circumstances, the insufficiency of the physicians' affidavits is "cured" if the evidence presented at the hearing meets the statutory elements. As we have noted, strict compliance with the statutory scheme is required. In re Coconino Cnty. Mental Health No. MH 1425, 181 Ariz. at 293, 889 P.2d at 1091. Permitting petitioners, as a matter of course, to cure an incomplete affidavit through later testimony could significantly weaken the protections provided by the petition requirements in § 36-533. However, in light of appellant's failure to raise the issue in a timely fashion, a finding of waiver is appropriate and we need not decide whether a deficient affidavit can be cured by subsequent testimony in all instances.
¶6 Appellant next asserts that the treatment order must be vacated because the state did not "present two independent evaluations pursuant to A.R.S. § 36-501(12)[(a)](i)." He maintains the addenda filed by the physicians were "essentially the same," theorizing that Dr. Davae recommended court-ordered treatment only after "read[ing] a note from Dr. Petzel," and that she based her conclusions on "historical data." Section 36-501(12)(a)(i) describes the necessary components of a physician evaluation and expressly requires the two physicians to "examine and report their findings independently." This phrase "imposes a statutory requirement of independence for each doctor's examination and report. It is essential that each act independently when examining the potential patient; determining diagnoses, conclusions, and opinions; and preparing a report." In re MH-2008-000097, 221 Ariz. 73, ¶ 13, 210 P.3d 1244, 1247 (App. 2009).
¶7 We do not agree with appellant's assessment of the record. There was ample evidence that the physicians independently evaluated appellant. See id. ¶ 17. First, Dr. Davae testified she reached her conclusions about appellant independently. We reject appellant's claims that this testimony is insufficient because it is an unsupported legal conclusion. It is instead a factual statement about which Dr. Davae has personal knowledge. See Ariz. R. Evid. 602; but see In re Mental Health Case No. MH-94-00592, 182 Ariz. 440, 447 n.4, 897 P.2d 742, 749 n.4 (App. 1995) (bare assertion that statutory criterion met, without any explication of supporting facts, "does not constitute 'clear and convincing evidence'"). And Dr. Davae testified her diagnosis was "[b]ased on [her] observation of [Appellant] and [her] review of his history." Although her testimony was arguably inconsistent on some points, the trial court was in the best position to evaluate her credibility. See In re Commitment of Frankovitch, 211 Ariz. 370, ¶ 19, 121 P.3d 1240, 1245 (App. 2005).
¶8 Moreover, appellant cites no authority for the proposition that a physician's evaluation is not independent merely because he or she considered "historical data." Indeed, a proper evaluation as defined by § 36-501(12)(a) requires an evaluator to consider "data describing the person's identity, biography and medical, psychological and social conditions." Such data necessarily includes the individual's medical history, including his or her mental health history.
¶9 Last, appellant argues the evidence presented at the hearing was insufficient, specifically with respect to the finding that he "is unable to understand and express an understanding of the advantages, disadvantages and alternatives to treatment," and that he was "unable or unwilling to be a voluntary patient." These arguments are nothing more than a request that we reweigh the evidence on appeal, which we will not do. See In re Pima Cnty. Mental Health No. MH 2010-0047, 228 Ariz. 94, ¶ 17, 263 P.3d 643, 647 (App. 2011). Dr. Davae testified that when she explained to appellant his treatment options, he "didn't really understand much about that." And a social worker testified appellant did not understand his medication schedule or the reasons for taking his medication. Both doctors testified that, based on appellant's previous and recent conduct, such as leaving the group home and refusing to take his medication, he would be unable to consistently participate voluntarily in his treatment despite sporadic instances of cooperation.
¶10 The trial court's treatment order is affirmed.