NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
IN RE: MH2018-004459
No. 1 CA-MH 18-0061
FILED 6-13-2019
Appeal from the Superior Court in Maricopa County
No. MH2018-004459
The Honorable Thomas Marquoit, Judge Pro Tempore
AFFIRMED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Anne C. Longo, Joseph J. Branco
Counsel for Appellee
Maricopa County Legal Defender’s Office, Phoenix
By Anne H. Phillips
Counsel for Appellant
IN RE MH2018-004459
Decision of the Court
MEMORANDUM DECISION
Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge James B. Morse Jr. joined.
C R U Z, Judge:
¶1 Appellant appeals the superior court’s order committing him
to involuntary treatment for a period not to exceed 365 days, with inpatient
treatment not to exceed 180 days. Appellant argues the order should be
vacated because he enjoyed a confidential professional-client relationship
with one of two acquaintance witnesses who testified at the hearing. For
the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Appellant was arrested and charged with felony criminal
damage for throwing rocks at a Phoenix Public Library window. Following
a Rule 11 evaluation and participation in the Maricopa County Correctional
Health Services Restoration to Competency Program, in the Final
Competency Report the doctors concluded Appellant was not competent to
stand trial and not restorable. The superior court ordered the criminal
charges dismissed and that Appellant be transported to Desert Vista
Hospital for psychiatric evaluation.
¶3 The county attorney filed an application for involuntary
evaluation, pursuant to the superior court’s order. After evaluating
Appellant, one treating doctor filed a petition for court-ordered treatment
alleging that Appellant was persistently or acutely disabled and unwilling
to accept voluntary treatment. As required by Arizona Revised Statutes
(“A.R.S.”) section 36-544(B), the petition was supported by the affidavits of
Drs. H. and G. Their probable diagnoses were “Schizoaffective Disorder”
and “Unspecified Schizophrenia Spectrum and Other Psychotic Disorder.”
Both doctors concluded that Appellant required inpatient psychiatric
treatment and attached addendums to the affidavits explaining how
Appellant was persistently or acutely disabled.
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IN RE MH2018-004459
Decision of the Court
¶4 In the affidavit, Dr. H. explained Appellant’s thought process
was “grossly disorganized and loose” and this “thought content included
paranoia, bizarre delusions, and ideas of reference.” Dr. H. also noted
Appellant’s history of non-compliance with medication. Dr. H. stated in
the addendum Appellant is “currently suffering from symptoms of severe
psychosis,” which made him “unable to make an informed decision
regarding treatment.”
¶5 In the second affidavit, Dr. G. explained that Appellant had
“difficulty maintaining a coherent thought” and showed “loosening of
associations.” Dr. G. also explained Appellant had “numerous symptoms
of psychosis,” including “hallucinations, delusions, and disorganization of
thought and speech.” Further, Dr. G. noted in the addendum that
Appellant refused medication, not recognizing the severity of Appellant’s
illness.
¶6 The court held a hearing on the petition for court-ordered
treatment on July 27, 2018. Two witnesses testified at the hearing, including
B.O., a Desert Vista employee who observed and treated Appellant while
he was a patient, and J.D., a mental health associate with Maricopa County
Correctional Health Services. Appellant objected to J.D. testifying as an
acquaintance witness, arguing J.D. had a confidential professional-client
relationship with Appellant pursuant to A.R.S. § 32-3283(A). The court
allowed J.D.’s testimony, finding she did not provide behavioral health
services to Appellant. The court accepted Appellant’s belief that his
conversation with J.D. was confidential, but found J.D. reliable when she
testified that Appellant signed a confidentiality waiver at intake when
booked in the jail.
¶7 Based on the evidence presented, the court found by clear and
convincing evidence that as a result of a mental disorder, Appellant was
persistently or acutely disabled, in need of psychiatric treatment, and
unwilling or unable to accept treatment voluntarily. The court also found
there were “no appropriate and available alternatives other than court
ordered treatment at this time.” The court ordered Appellant to undergo a
combined inpatient/outpatient treatment program for no longer than 365
days, with a maximum inpatient treatment of 180 days.
¶8 Appellant timely appealed. We have jurisdiction pursuant to
A.R.S. §§ 12-2101(A)(10)(a) and 36-546.01.
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IN RE MH2018-004459
Decision of the Court
DISCUSSION
¶9 On appeal, Appellant does not challenge the physicians’
affidavits or conclusions. Appellant argues only that the involuntary
treatment order should be vacated because the court erred by allowing
improper acquaintance witness testimony. We disagree.
¶10 We review the facts in the light most favorable to upholding
the superior court’s judgment and will not set aside the court’s findings
unless clearly erroneous. In re MH 2008-002596, 223 Ariz. 32, 35, ¶ 12 (App.
2009) (citation omitted). Because involuntary treatment strongly implicates
the patient’s liberty interests, “statutory requirements must be strictly
construed and followed.” Id. (citation omitted). We review issues of
statutory interpretation de novo. In re MH 2001-001139, 203 Ariz. 351, 353,
¶ 8 (App. 2002).
¶11 Appellant contends that J.D. was not a qualified acquaintance
witness because she had a professional-client relationship with Appellant
under A.R.S. § 32-3283(A), and testifying would violate confidentiality.
Section 32-3283(A) states, a
confidential relationship between a client and a licensee, . . .
is the same as between an attorney and a client. Unless a
client waives this privilege in writing or in court testimony, a
licensee shall not voluntarily or involuntarily divulge
information that is received by reason of the confidential
nature of the behavioral health professional-client
relationship.
Section 32-3251(2) defines client as a “patient who receives behavioral
health services from a person licensed pursuant to this chapter;” and A.R.S.
§ 32-3251(8) provides, the “[p]ractice of behavioral health” includes
“professional counseling.”
¶12 Under A.R.S. § 36-539(B), evidence presented at the treatment
hearing “shall include the testimony of two or more witnesses acquainted
with the patient at the time of the alleged mental disorder.” The
acquaintance witness requirement is designed to supplement the
psychiatric evaluations with an “informal, day-to-day observation of [the
patient],” to “give the court a perspective of the patient different from that
of the professionals who examined the patient as part of the commitment
evaluation process.” MH 2001-001139, 203 Ariz. at 355, ¶¶ 24-25.
Acquaintance testimony of medical personnel who are not part of the
statutorily defined evaluation team satisfies the requirements under A.R.S.
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IN RE MH2018-004459
Decision of the Court
§ 36-539(B). See In re Commitment of an Alleged Mentally Disordered Person,
MH-1425, 181 Ariz. 290, 293 (1995); In re MH 2001-001139, 203 Ariz. at 355,
¶¶ 24-25.
¶13 J.D. was one of two acquaintance witnesses; she worked as a
mental health associate at the Lower Buckeye Jail. J.D. testified that during
Appellant’s stay at the unit, she met with him once for five minutes in the
medical clinic, and asked about his sleep, appetite, and mood. This meeting
was to check in with Appellant and ensure “safety and stability in the jail
setting for the inmates,” not to provide Appellant counseling or
psychotherapy. During their meeting, she observed bizarre behavior, and
believed Appellant needed mental health stabilization. Based on her
observations, she concluded that he was not capable of getting help on his
own. J.D. was not part of the statutorily defined evaluation team. See MH
2001-001139, 203 Ariz. at 355, ¶ 23. Nothing in the record suggests that J.D.
provided behavioral health services to Appellant thereby establishing a
confidential relationship. Nor does the record suggest that J.D. and
Appellant’s interaction rose to the level of behavioral health services. And
Appellant cites no authority or support in the record suggesting otherwise.
Accordingly, the superior court did not err.
¶14 Appellant next argues the superior court erred because “the
petitioner only presented one acquaintance witness who qualified under
A.R.S. § 36-539(B).” Because we conclude that J.D.’s testimony met the
statutory standard and the superior court did not err by allowing her
testimony, the A.R.S. § 36-539(B) requirement of two or more acquaintance
witnesses is met and Appellant’s argument fails.
CONCLUSION
¶15 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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