In re MH 2009-001264

229 P.3d 1012, 224 Ariz. 270, 583 Ariz. Adv. Rep. 6, 2010 Ariz. App. LEXIS 75
CourtCourt of Appeals of Arizona
DecidedFebruary 25, 2010
DocketNo. 1 CA-MH 09-0048
StatusPublished
Cited by5 cases

This text of 229 P.3d 1012 (In re MH 2009-001264) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re MH 2009-001264, 229 P.3d 1012, 224 Ariz. 270, 583 Ariz. Adv. Rep. 6, 2010 Ariz. App. LEXIS 75 (Ark. Ct. App. 2010).

Opinion

MEMORANDUM DECISION

WINTHROP, Judge.

¶ 1 Appellant seeks reversal of the superi- or court’s order for involuntary mental health treatment. He argues that the superior court was required to engage in a colloquy with him personally to determine whether he knowingly, voluntarily, and intelligently waived his right to have the physicians who evaluated him testify in person. As support for his argument, he also contends that the evaluating physicians’ credentials were not satisfactorily established. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2 Appellant suffers from paranoid schizophrenia, has had previous inpatient hospitalizations, and has resided in a group home for approximately the past two years. While traveling in a vehicle with others from the group home, Appellant suddenly jumped out of the vehicle and ran into oncoming traffic, requiring police officers to apprehend him. Appellant’s history includes escalating aggression, disorganized thoughts, suicidal ideations, and threats to harm others. At the group home, Appellant refused medication, was verbally abusive, and believed others sought to kill him. He also lacked insight into his current symptoms and had refused voluntary outpatient treatment and assessment.

¶ 3 After the traffic incident, Appellant’s ease manager filed applications for Appellant’s involuntary evaluation and emergency admission for evaluation; ultimately, a petition for court-ordered evaluation was filed. The superior court ordered that Appellant be involuntarily detained, and he was evaluated by two physicians. Next, a petition for court-ordered treatment was filed, supported by the affidavits of the evaluating physicians, who recommended combined inpatient and outpatient treatment after concluding Appellant was a danger to self and others and persistently or acutely disabled. The superi- or court issued a detention order for treatment and notice, setting a hearing on the petition for court-ordered treatment.

¶ 4 At the hearing on the petition for court-ordered treatment, counsel for both parties stipulated to admit the two evaluating physicians’ affidavits and the 72-hour medication affidavit in lieu of in-person testimony. When specifically asked by the superior court if that was the agreement, Appellant’s counsel confirmed the stipulation. The court, however, did not engage in a colloquy with Appellant to determine whether he knowingly, voluntarily, and intelligently waived the physicians’ in-person testimony. Two acquaintance witnesses then testified in support of the petition and were cross-examined. Appellant testified against the petition, and counsel for both sides made closing arguments to the court.

¶ 5 At the conclusion of the hearing, the superior court found, by clear and convincing evidence, that Appellant was suffering from a mental disorder and, as a result, was a danger to self, persistently or acutely disabled, and in need of psychiatric treatment. The court ordered a combination of inpatient and outpatient treatment for a period not to exceed 365 days, with the period of inpatient treatment not to exceed 180 days.

¶ 6 Appellant filed a timely notice of appeal from the treatment order.1 We have jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) sections 12-2101(K) (2003) and 36-546.01 (2009).2

[272]*272ANALYSIS

I. Admission of the Physicians’ Affidavits

¶ 7 Framing the issue as one of constitutional due process, Appellant asserts that the superior court was required to engage in a colloquy with him personally to determine whether he knowingly, voluntarily, and intelligently agreed to the stipulation of the physicians’ affidavits in lieu of their in-person testimony. We generally review constitutional and statutory claims de novo. In re MH 2007-001275, 219 Ariz. 216, 219, ¶ 9, 196 P.3d 819, 822 (App.2008). Appellant failed to raise his argument in the superior court, however, “and we generally do not consider issues, even constitutional issues, raised for the first time on appeal.” Englert v. Carondelet Health Network, 199 Ariz. 21, 26, ¶ 13, 13 P.3d 763, 768 (App.2000) (citation omitted).

¶ 8 Additionally, Appellant invited the alleged error in jointly moving or stipulating the physicians’ affidavits into evidence. “By the rule of invited error, one who deliberately leads the court to take certain action may not upon appeal assign that action as error.” Schlecht v. Schiel, 76 Ariz. 214, 220, 262 P.2d 252, 256 (1953); accord State v. Armstrong, 208 Ariz. 345, 357 n. 7, ¶ 59, 93 P.3d 1061, 1073 n. 7 (2004) (stating that the invited error doctrine exists to prevent a party from injecting error into the record and then profiting from that error on appeal).

¶ 9 Further, even assuming arguendo that we were to consider Appellant’s claim, we would find no error. Appellant relies almost entirely on a footnote in which we stated, in dictum, that, “[bjefore accepting a stipulation to the admission of the physicians’ affidavits in lieu of testimony, the court should ascertain that the patient has voluntarily, knowingly and intelligently waived her statutory right to have the physicians testify.” In re MH 2008-001752, 222 Ariz. 225, 213 P.3d 3743 (emphasis added), withdrawn and amended by 222 Ariz. 567, 218 P.3d 1024 (App.2009).4 The footnote cited MH 2007-001275, a case in which the patient waived the entire adversarial heating by stipulating to the contents of the court’s file, including the physicians’ affidavits and witness’s statements, and agreeing that the witness’s statements “will support a finding of persistently and acutely disabled.” 219 Ariz. at 217-18, ¶ 4, 196 P.3d at 820-21. We remanded for the superior court to determine whether “counsel’s waiver on behalf of the patient was in fact voluntarily, knowingly and intelligently made by the patient”; if it was not, we required the court to “conduct the A.R.S. § 36-539 hearing and afford the patient the rights to subpoena witnesses, present evidence and confront and cross-examine witnesses.” Id. at 221, ¶ 19, 196 P.Sd at 824 (emphasis added). We further explained as follows:

We are not opining that this test would affect every decision made by counsel at the hearing, e.g., whether to cross-examine particular witnesses. Rather, we only address the issue before us — that it must be apparent from the record or from a discussion with the patient that waiving the rights attendant to a contested testimonial hearing were voluntarily, knowingly and intelligently made.

Id. at n. 5.

¶ 10 In this case, the superior court held a hearing at which Appellant presented testimony and cross-examined witnesses. The only right he waived was to confront and [273]

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Bluebook (online)
229 P.3d 1012, 224 Ariz. 270, 583 Ariz. Adv. Rep. 6, 2010 Ariz. App. LEXIS 75, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mh-2009-001264-arizctapp-2010.