Opinion
1 CA-MH 12-0084
04-02-2013
IN THE MATTER OF GREGORY O.
Matthew J. Smith, Mohave County Attorney by Dolores Milkie Deputy County Attorney, Civil Division Attorney for Appellee Jill Evans, Mohave County Appellate Defender's Office by Diane S. McCoy, Deputy Public Defender Attorney 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(Not for Publication -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. MH2012-00035
The Honorable Lee Frank Jantzen, Judge
AFFIRMED
Matthew J. Smith, Mohave County Attorney
by Dolores Milkie
Deputy County Attorney, Civil Division
Attorney for Appellee
Kingman Jill Evans, Mohave County Appellate Defender's Office
by Diane S. McCoy, Deputy Public Defender
Attorney for Appellant
Kingman THUMMA, Judge ¶1 Gregory O. appeals the superior court's civil commitment order finding him persistently or acutely disabled, unwilling or unable to accept voluntary treatment and a danger to others. Because sufficient evidence supports the superior court's order and Gregory was not denied effective assistance of counsel, the order is affirmed.
FACTS AND PROCEDURAL HISTORY
This court views the facts 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).
¶2 In October 2012, Gregory arrived at Mohave Mental Health Clinic (Mohave) showing symptoms of psychosis after having been transported in restraints from Kingman Regional Medical Center. Despite a long history of methamphetamine use, Gregory did not test positive for drugs at the time of admission to Mohave. Although initially agreeing to accept voluntary treatment, Gregory then changed his mind and demanded to leave. Gregory also threatened Mohave staff. ¶3 Dr. Sirpa Tavakoli, a psychiatrist at Mohave, then filed a request for court-ordered evaluation, pursuant to Arizona Revised Statutes (A.R.S.) section 36-523. Two days later, Dr. Tavakoli and Dr. Thomas Keller, another psychiatrist at Mohave, filed a petition for court-ordered treatment with supporting affidavits, pursuant to A.R.S. § 36-533. The petition alleged that Gregory was persistently or acutely disabled as a result of a mental disorder and constituted a danger to others. ¶4 The same day the petition was filed, the superior court issued a notice of hearing and authorization for video conference. Those documents stated the court would hear the petition four days later via a video conference between the court and Mohave, adding 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." Gregory did not object. ¶5 The hearing was held as scheduled; the hearing minute entry notes the participants -- including Gregory, the attorneys and the witnesses -- were at Mohave while the court presided via video conference, apparently in the Mohave County Courthouse. During the hearing, Dr. Tavakoli testified that she diagnosed Gregory with a nonspecific psychotic disorder, and that he suffered from severe psychotic symptoms requiring inpatient treatment, including hearing and responding to nonexistent voices. Dr. Tavakoli testified that Gregory was unable to make an informed decision as to treatment and placement, and that without continued treatment, Gregory may again become combative and would likely continue to suffer severe mental, emotional or physical harm. Dr. Tavakoli testified that Gregory's psychosis may have been induced by his methamphetamine use, adding that his psychosis must be treated before drug rehabilitation could be successful. Dr. Tavakoli testified about the drugs or medications Gregory had received in the 72 hours prior to the hearing. Gregory's counsel cross-examined Dr. Tavakoli, including questions regarding whether Gregory's disorder was drug-induced, Gregory's prior drug usage and whether Gregory had voluntarily assented to treatement. ¶6 Dr. Keller testified that Gregory suffered from a "psychotic disorder . . . and/or a drug-induced psychosis perhaps from long-term drug abuse." As with Dr. Tavakoli, Dr. Keller could not be certain that the psychosis was not drug-induced. Dr. Keller testified that Gregory had been combative, was a danger to others and refused voluntary treatment. Dr. Keller also testified that Gregory admitted to having hallucinations, responding to nonexistent voices and at one time said he believed he was a marshmallow. As a result, Dr. Keller testified Gregory could not make an informed decision regarding treatment and, without treatment, would likely deteriorate and be a danger to others. Gregory's counsel cross-examined Dr. Keller, including asking him whether Gregory's disorder was drug-induced, whether Gregory had voluntarily assented to treatment and about discrepancies between his and Dr. Tavakoli's evaluations of Gregory. ¶7 Mohave Nurse Janet Schetmin testified regarding medications given to Gregory during his treatment and how they have improved Gregory's ability to function. Gregory's counsel cross-examined Nurse Schetmin regarding what types of medication Gregory was taking. Finally, Behavior Health Technician Danny Titcock testified to his observations of Gregory's erratic behavior, angry demeanor and apparent hallucinations. ¶8 After considering the petition and the evidence and arguments received at the hearing, the court found by clear and convincing evidence that Gregory was persistently or acutely disabled as a result of a mental disorder, in need of psychiatric treatment, unable or unwilling to accept voluntary treatment and a danger to others. The court ordered Gregory to undergo not more than 365 days of combined inpatient and outpatient treatment, with the inpatient treatment not to exceed 180 days. Gregory filed a timely appeal; this court has jurisdiction pursuant to A.R.S. §§ 36-546.01 and 12-2101(A)(10)(a).
Absent material revisions after the relevant dates, statutes cited refer to the current version unless otherwise indicated.
DISCUSSION
I. Standard of Review.
¶9 This court reviews the application and interpretation of statutes involving involuntary commitments de novo. In re MH2010-002637, 228 Ariz. 74, 78, ¶ 13, 263 P.3d 82, 86 (App. 2011). "[S]tatutory requirements must be strictly adhered to" in a civil commitment case. In re Coconino County No. MH 1425, 181 Ariz. 290, 293, 889 P.2d 1088, 1091 (1995). This court "will affirm the superior court's order for involuntary treatment if [the order] is supported by substantial evidence;" an order of commitment will not be set aside unless it is clearly erroneous. In re MH 2008-001188, 221 Ariz. 177, 179, ¶ 14, 211 P.3d 1161, 1163 (App. 2009).
II. Conducting The Commitment Hearing Via Video Conference.
¶10 Pursuant to A.R.S. § 36-539(B), a "patient and the patient's attorney shall be present at all [involuntary treatment] hearings." Gregory 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. Gregory also argues that the superior court coerced him into not objecting to the video conference by warning him that an objection may be equated to a request for a continuance. ¶11 Gregory 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. 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 preclude application of this waiver rule. Id. at 27, ¶ 10, 226 P.3d at 396. Particularly given that Gregory offers no argument that he was prejudiced by the manner in which the hearing was conducted, this court declines to address this argument first made on appeal.
Gregory does not argue that the video format inaccurately depicted the witnesses or himself or otherwise deprived the superior court of what it would have heard and seen if all participants were present in the same room. Cf. MH2010-002637, 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 Gregory 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, this court cannot conclude the order coerced Gregory into waiving any right he might have to an in-person hearing.
III. The Superior Court's Findings Were Supported By Sufficient Evidence.
¶12 By statute, the superior court must find "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). Two physicians who have evaluated the patient must testify that the required elements are met. A.R.S. § 36-539(B); In re MH 2007-001236, 220 Ariz. 160, 170-71, ¶ 32, 204 P.3d 418, 428-29 (App. 2008). Clear and convincing evidence requires more than recitation of simple conclusions, but rather an explanation of the facts supporting the conclusions. In re Maricopa County No. MH 94-00592, 182 Ariz. 440, 447 n.4, 897 P.2d 742, 749 n.4 (App. 1995).
A. Gregory Suffered From A Mental Disorder. ¶13 Gregory argues the evidence was insufficient to establish that he suffered from a mental disorder because Drs. Tavakoli and Keller could not determine whether his disorder was a result of mental illness or drug abuse. A mental disorder is defined as "a substantial disorder of the person's emotional processes, thought, cognition or memory" and is distinguished from "[c]onditions that are primarily those of drug abuse, . . . unless, in addition to one or more of these conditions, the person has a mental disorder." A.R.S. § 36-501(25). ¶14 Dr. Tavakoli testified that Gregory suffered from "psychotic disorder nonspecific," but indicated she provided this diagnosis because she did not know whether the mental disorder was organic or caused by long-term methamphetamine use. Dr. Tavakoli further noted that Gregory's psychotic symptoms were severe enough to warrant inpatient treatment, no matter if they were induced by amphetamine abuse or other reasons. Dr. Tavakoli added that Gregory had no trace of methamphetamines in his system when admitted to Mohave approximately ten days prior to her formal examination of Gregory for purposes of the petition, and that methamphetamines stay in the body for only a few days. Dr. Tavakoli also stated that, due to Gregory's psychotic symptoms, without inpatient treatment, he had no insight into his illness, was hearing and responding to nonexistent voices and would continue to suffer mental, emotional or physical harm impairing his judgment, reason, behavior or capacity to recognize reality. ¶15 Dr. Keller testified that Gregory suffered from a "psychotic disorder . . . and/or a drug-induced psychosis perhaps from long-term drug abuse." Like Dr. Tavakoli, Dr. Keller could not be certain whether the psychosis was drug-induced. However, Dr. Keller also testified that Gregory was hearing and responding to nonexistent voices, was acting erratically and thought he "was a marshmallow." Dr. Keller stated that due to the psychotic disorder, Gregory required inpatient treatment to avoid significant impairment of his judgment and to be "reoriented to reality" before any appropriate drug treatment could be provided. ¶16 Neither physician could completely rule out the possibility that Gregory's psychotic disorder was induced by active methamphetamine use. However, there is no evidence showing that Gregory's psychosis was caused by drug use; notably, Gregory did not have methamphetamine in his system for approximately two weeks prior to his evaluations. Furthermore, both doctors testified that Gregory required treatment for a mental illness that substantially impaired his judgment and cognition. The doctors' testimony can be construed as fulfilling the requirements of A.R.S. § 36-539(B). Because "the superior court is in the best position to 'weigh the evidence, observe the parties, judge the credibility of witnesses, and make appropriate findings,'" this court will not substitute its judgment in place of the superior court. In re MH2009-002120, 225 Ariz. 284, 291, ¶ 23, 237 P.3d 637, 644 (App. 2010) (citation omitted).
B. Gregory Was A Danger To Others Due To His Mental Illness. ¶17 Gregory also argues that the evidence presented was too vague and speculative to support the superior court's finding that he was a danger to others. A person is a "danger to others" when such person's judgment "is so impaired that the person is unable to understand the person's need for treatment and as a result of the person's mental disorder the person's continued behavior can reasonably be expected, on the basis of competent medical opinion, to result in serious physical harm." A.R.S. § 36-501(5). Here, both Drs. Tavakoli and Keller testified that Gregory had threatened staff, acted erratically and was hearing and responding to nonexistent voices. Further, both testified that Gregory's psychotic disorder, if untreated, would likely cause him to suffer significantly-impaired judgment and lead him to become combative or hurt others. Both physicians also testified that Gregory was unable to understand his need for treatment. As such, the physicians' testimony constitutes sufficient evidence to support the superior court's ruling. See MH2009-002120, 225 Ariz. at 291, ¶ 23, 237 P.3d at 644.
As Gregory points out, Dr. Tavakoli testified that, while under treatment and taking his medication at Mohave, Gregory had not threatened staff for a few days and did not constitute a danger to others at that time. Dr. Tavakoli also testified, however, that without treatment, Gregory could become combative again.
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C. Gregory Was Unable Or Unwilling To Accept Voluntary Treatment. ¶18 Gregory argues there was not sufficient evidence presented during the hearing to establish that he then was unable or unwilling to accept voluntary treatment. Dr. Tavakoli, however, testified that Gregory was refusing treatment and, due to his psychotic symptoms, was not able to make an informed decision regarding his treatment. Dr. Keller testified that Gregory refused to sit for his evaluation and threatened to sue Dr. Keller if a petition for court-ordered treatment was filed. Dr. Keller also testified that Gregory was delusional and unable to make an informed decision as to his treatment. This testimony constitutes sufficient evidence to support the finding that Gregory was unable or unwilling to accept voluntary treatment. See MH2008-001188, 221 Ariz. at 180, ¶ 19, 211 P.3d at 1164.
D. Evidence Properly Described What Medications Gregory Had Taken During The 72 Hours Before The Hearing. ¶19 Gregory argues the evidence presented at the hearing was insufficient to meet the statutory requirement to present "a record of all drugs, medication or other treatment that the person has received during the seventy-two hours immediately before the hearing." A.R.S. § 36-539(A). No objection was made on this ground before the superior court, and the record reflects no concern that Gregory was impaired at the hearing by any medication. Because no such issue was brought to the attention of opposing counsel and the court at the hearing, the issue cannot now be raised on appeal. See Trantor v. Fredrikson, 179 Ariz. 299, 300, 878 P.2d 657, 658 (1994). Moreover, at the hearing, Dr. Tavakoli testified without contradiction about the medications that Gregory had taken in the prior 72 hours. Accordingly, Gregory's claim that the State did not comply with A.R.S. § 36-539(A) is rejected.
IV. Gregory Was Not Denied Effective Assistance Of Counsel.
¶20 Gregory argues on appeal that he may have received ineffective assistance from his counsel because the record does not clearly indicate that his counsel conducted pre-hearing interviews of Dr. Tavakoli, Dr. Keller or Nurse Schetmin. 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." MH2010-002637, 228 Ariz. at 78, ¶ 13, 263 P.3d at 86. ¶21 By statute, Gregory's counsel was required to:
3. At least twenty-four hours before the hearing, interview the petitioner, if available, and the petitioner's supporting witnesses, if known and available.A.R.S. § 36-537(B)(3)-(4) (emphasis added). Gregory's counsel also was required to interview Gregory. A.R.S. § 36-537(B)(1). ¶22 Gregory cites MH2010-002637 for the proposition that because the record does not indicate that his counsel interviewed the physicians and nurse who testified at the hearing, the matter should be remanded for an evidentiary hearing. 228 Ariz. 74, 263 P.3d 82. In MH2010-002637, however, this court remanded for an evidentiary hearing because the patient argued her attorney failed to interview her (the patient). 228 Ariz. at 81-82, ¶¶ 28, 31, 263 P.3d at 89-90. There is no such claim here; Gregory admits his attorney interviewed him prior to the hearing. ¶23 Gregory also fails to present any evidence that his counsel was ineffective. Gregory concedes his attorney interviewed him prior to the hearing and, unlike MH2010-002637, he also concedes that his counsel actively participated in his hearing, including cross-examining Dr. Tavakoli, Dr. Keller and Nurse Schetmin and making a closing argument. In fact, after Gregory's counsel's closing argument, the superior court stated "[Counsel], you . . . quite impressively argued an issue, that however many of these [involuntary treatment hearings] we have done, you come up with new issues all the time." ¶24 Gregory further concedes that the record does not indicate whether the physicians and nurse practitioner were available for interview. The record indicates Gregory's counsel discharged his statutory obligations; Gregory has provided no argument on appeal justifying remand for an evidentiary hearing regarding counsel's effectiveness. See MH2010-002637, 228 Ariz. at 82, ¶ 33, 263 P.3d at 90 ("Simply because the hearing counsel did not cross-examine most of the witnesses or present evidence to oppose the petition does not mean that counsel was ineffective."). Accordingly, on this record, Gregory has not shown that he was denied effective assistance of counsel.
4. At least twenty-four hours before the hearing, interview the physicians or the psychiatric and mental health nurse practitioner who will testify at the hearing, if available, and investigate the possibility of alternatives to court-ordered treatment.
CONCLUSION
¶25 Because sufficient evidence supports the superior court's order and Gregory was not denied effective assistance of counsel, the order granting the petition for court-ordered treatment pursuant to A.R.S. § 36-533 is affirmed.
______________________________
SAMUEL A. THUMMA, Presiding Judge
CONCURRING: ______________________________
MICHAEL J. BROWN, Judge
_______________
DIANE M. JOHNSEN, Judge