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In re MH2013-000134

Court of Appeals of Arizona, First Division, Department D

September 17, 2013

IN RE MH2013-000134

Not for Publication – Rule 28, Arizona Rules of Civil Appellate Procedure.

Appeal from the Superior Court in Maricopa County Cause No. MH2013-000134 The Honorable Susan G. White, Judge Pro Tempore

William G. Montgomery, Maricopa County Attorney By Anne C. Longo, Deputy County Attorney And Bruce P. White, Deputy County Attorney Attorneys for Appellee.

Marty Lieberman, Maricopa County Legal Defender By Cynthia Dawn Beck, Deputy Legal Defender Attorneys for Appellant.

MEMORANDUM DECISION

DONN KESSLER, Judge.

¶1 Appellant appeals from an order entered pursuant to Arizona Revised Statutes ("A.R.S.") section 36-540(A)(2) (Supp. 2012)[1] finding Appellant to be persistently or acutely disabled as the result of a mental disorder and requiring court-ordered, involuntary mental-health treatment. Appellant argues the superior court did not honor her statutory right to an independent mental health evaluation and abused its discretion by denying her request for a continuance. For the following reasons, we vacate the civil commitment order.

FACTUAL AND PROCEDURAL HISTORY

¶2 In October 2012, Phoenix Police responded to a report of a woman sleeping in an alley who appeared to have stopped breathing. Appellant refused assistance and refused to move out of the alley. The police arrested her, charging her with a misdemeanor for the prohibited use of a public right of way. In January 2013, the superior court found Appellant unable to assist in her own defense, and therefore incompetent pursuant to A.R.S. § 13-4517 (2009) in her criminal case. The court additionally found there was reasonable cause to believe that Appellant was a danger to herself, a danger to others, persistently or acutely disabled, or gravely disabled, and ordered the Maricopa County Attorney to file a petition for a court-ordered mental health evaluation pursuant to A.R.S. § 36-521 (2009).

¶3 Doctors Riley and Alexander evaluated Appellant and petitioned for court-ordered treatment alleging Appellant was persistently or acutely disabled. On January 25, 2013, the superior court scheduled a civil commitment hearing for February 1, 2013, see A.R.S. § 36-535(B) (Supp. 2012), appointed an attorney to represent Appellant, and issued notice to Appellant the same afternoon, see A.R.S. § 36-536(A) (Supp. 2012).

¶4 At the outset of the hearing, Appellant's counsel asked the court to waive Appellant's presence, see A.R.S. § 36-539(B) (Supp. 2012), and then requested a ten-day continuance until February 11, 2013, see A.R.S. § 36-535(B) . Appellant's counsel explained that she wanted to request a seven-day extension, but she had a scheduling conflict so she was requesting ten days. Counsel also explained that the reason for the request was three-fold: Appellant was not present and could not testify because she felt ill; Appellant requested that counsel search for some witnesses to testify on her behalf; and Appellant wanted to exercise her right to an independent mental health evaluation pursuant to A.R.S. § 36-538 (Supp. 2012). In response to the court's questioning, Appellant's counsel explained that although she did not think the additional witnesses would be helpful because they knew Appellant before the relevant time period, she did believe that an independent mental health evaluator may be helpful. Petitioner's counsel objected to the continuance, arguing that she and her witnesses were ready to proceed. Petitioner's counsel also asserted that Appellant had not been taking her medication over the last seventy-two hours in preparation for the hearing, and that the requested ten-day continuance was "rather lengthy."

¶5 The superior court denied Appellant's request for a continuance. Appellant's counsel then requested a six-day continuance which the court also refused, stating "I just don't see it. . . . Not under the circumstances, " and noting that it already had Appellant's Rule 11 records, Petitioner's evaluating doctors' reports, and that an extra week in the hospital was unnecessary. After speaking with Appellant during a brief recess, the hearing recommenced with Appellant present. Thereafter, the parties stipulated to the admission of both doctors' affidavits in lieu of their testimony. See A.R.S. § 36-539(B).

¶6 Two witnesses who were acquainted with Appellant testified for Petitioner. See id. The first was a behavioral health technician at the hospital where Appellant had been admitted, and the second was a mental health professional at the Lower Buckeye Jail where Appellant spent at least six weeks.

¶7 Appellant testified on her own behalf explaining why she did not want to take certain medications. She also testified about her frustrations dealing with the court and counsel in her criminal case, and her frustration in the current proceedings because she had no witnesses to testify for her, and she had only met with counsel for the first time two days prior to the hearing.

¶8 The superior court found by clear and convincing evidence that Appellant was persistently or acutely disabled as a result of a mental disorder and was unable or unwilling to accept voluntary treatment. See A.R.S. ยง 36-540(A). The court ordered Appellant to undergo combined inpatient and outpatient treatment for a period not to exceed 365 days, with ...


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