Opinion
No. 1 CA-MH 13-0032
01-21-2014
IN RE MH2013-000893
Maricopa County Legal Defender's Office, Phoenix By Cynthia Dawn Beck Counsel for Appellant Maricopa County Attorney's Office, Phoenix By Anne C. Longo, Bruce P. White Counsel for Appellee
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. MH2013-000893
The Honorable Susan G. White, Judge Pro Tempore
AFFIRMED
COUNSEL
Maricopa County Legal Defender's Office, Phoenix
By Cynthia Dawn Beck
Counsel for Appellant
Maricopa County Attorney's Office, Phoenix
By Anne C. Longo, Bruce P. White
Counsel for Appellee
MEMORANDUM DECISION
Judge Samuel A. Thumma delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge Patricia A. Orozco joined. THUMMA, Judge:
¶1 Appellant appeals from the superior court's involuntary civil commitment order requiring behavioral health treatment pursuant to Arizona Revised Statutes (A.R.S.) section 36-540 (2014). Appellant claims the treatment order must be vacated because "no notice of hearing was ever served upon Appellant as required by A.R.S. § 36-536" and no proof of service was filed with the superior court. Finding no reversible error, the superior court's commitment order is affirmed.
Absent material revisions after the relevant dates, statutes cited refer to the current version unless otherwise indicated.
PROCEDURAL BACKGROUND
¶2 On March 12, 2013, Jason Friday, M.D., petitioned for an involuntary mental health evaluation of Appellant. See A.R.S. § 36-529(A). On March 13, 2013, the superior court issued a Detention Order for Evaluation and Notice pursuant to A.R.S. § 36-529(A), which was served on Appellant at 3:00 p.m. that same day and a corresponding proof of service was filed with the superior court on March 14, 2013. Among other things, that order appointed counsel to represent Appellant and she has been represented by counsel throughout this proceeding.
¶3 As a result of that court-ordered evaluation, on March 15, 2013, Aaron Riley, M.D., filed a Petition for Court-Ordered Treatment, attaching affidavits of the two physicians who participated in the evaluation, in compliance with A.R.S. § 36-533. That same day, the superior court issued a Detention Order for Treatment and Notice of Hearing pursuant to A.R.S. § 36-535, setting a hearing on the Petition for Court-Ordered Treatment for March 25, 2013 at 9:30 a.m. Still later that same day, Appellant was served with the Petition and attachments as well as the Detention Order for treatment and Notice of Hearing. The proof of service, however, was never filed with the superior court. In fact, the proof of service was only provided to this court pursuant to a motion to correct record, which was granted over Appellant's objection.
¶4 Appellant was present at the March 25, 2013 hearing, where the superior court received documentary evidence and testimony from various witnesses and heard argument from counsel. After considering the petition, evidence and arguments, the court found by clear and convincing evidence that Appellant was persistently or acutely disabled and unwilling or unable to accept voluntary treatment. Accordingly, the court ordered Appellant to undergo not more than 365 days of combined inpatient and outpatient treatment, with inpatient treatment not to exceed 180 days, all as authorized by A.R.S. § 36-540. This court has jurisdiction over Appellant's timely appeal pursuant to A.R.S. §§ 36-546.01(A), (F) and 12-2101(A)(10)(A).
DISCUSSION
¶5 This court reviews the application and interpretation of statutes involving involuntary commitments de novo. In re MH 2006-000749, 214 Ariz. 318, 321, ¶ 13, 152 P.3d 1201, 1204 (App. 2007). Because involuntary commitment "may result in a serious deprivation of liberty, . . . the statutory requirements must be strictly adhered to." In re Coconino Cnty. No. MH 1425, 181 Ariz. 290, 293, 889 P.2d 1088, 1091 (1995). A lack of strict compliance "renders the proceedings void." In re Burchett, 23 Ariz. App. 11, 13, 530 P.2d 368, 370 (App. 1975).
¶6 Appellant properly was served with the Petition and attachments as well as the Detention Order for treatment and Notice of Hearing on March 15, 2013. This service complies with the statutory requirement that Appellant be served at least 72 hours before the March 25, 2013 hearing. See A.R.S. 36-536(A). However, proof of service was never filed with the superior court. The statute clearly requires that "[t]he person who serves the notice of hearing must file a proof of service with the court that specifies the date, time and manner of service." A.R.S. § 36-536(D). That did not happen in this case. Accordingly, the issue in this appeal is the appropriate consequence for that failure.
¶7 Had Appellant objected to service in the superior court, and had proof of service not been provided and filed, the superior court would have lacked jurisdiction to order treatment. Cf. In re MH 2006-000023, 214 Ariz. 246, 249, ¶ 11-12, 150 P.3d 1267, 1270 (App. 2007) (noting that, unlike this case, if service is improper, treatment order must be vacated). Appellant, however, did not make such an objection to superior court.
¶8 Although Appellant did not object to the failure to file proof of service in superior court, this court may address such an argument for the first time on appeal. See In re MH 2006-000023, 214 at 248, 150 P.3d at 1269. A facially valid proof of service has now been filed, albeit with this court and not the superior court. Accordingly, and recognizing such a filing should have been made in a timely fashion with the superior court, because the record before this court contains proof of service as required by A.R.S. § 36-536(D), and because such service was timely, Appellant's claim that the civil commitment order must be vacated fails.
CONCLUSION
¶9 Because the record shows that Appellant was timely served with proper notice of the hearing for court-ordered treatment, the superior court's civil commitment order is affirmed.