                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
               ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                       IN THE MATTER OF LARRY B.

                            No. 1 CA-MH 13-0089
                             FILED 05-29-2014


            Appeal from the Superior Court in Mohave County
                        No. S8015MH201300045
                The Honorable Lee Frank Jantzen, Judge

                                  AFFIRMED


                                   COUNSEL

Mohave County Attorney’s Office, Kingman
By Dolores H. Milkie
Counsel for Appellee

Mohave County Legal Defender’s Office, Kingman
By Diane S. McCoy
Counsel for Appellant
                     IN THE MATTER OF LARRY B.
                         Decision of the Court



                     MEMORANDUM DECISION

Judge Andrew W. Gould delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Maurice Portley joined.


G O U L D, Judge:

¶1           Appellant Larry B. appeals from the trial court’s order for
involuntary commitment. For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2             Appellant was admitted to the Mohave Mental Health Clinic
after his wife filed an application for a court-ordered evaluation pursuant
to Arizona Revised Statutes (“A.R.S.”) section 36-520. A few days later, a
petition for involuntary treatment was filed. The petition was supported
by the affidavits of two physicians, Doctors Calvin Flowers and Michael
Tofani. Both doctors opined that Appellant was persistently or acutely
disabled, a danger to others, and a danger to himself.1

¶3           A commitment hearing was held on December 3, 2013.
Flowers testified at the hearing; however, the parties stipulated to the
admission of Tofani’s affidavit in lieu of his testimony. At the conclusion
of the hearing, the court determined that Appellant was a danger to self
and others, was persistently and acutely disabled, and was unwilling or
unable to accept voluntary treatment. The court ordered Appellant to
undergo combined in-patient and out-patient treatment. Appellant filed a
timely appeal.




1      The first line of Tofani’s affidavit states, “Calvin Flowers, M.D.,
Medical Director, being first duly sworn, deposes and states. . . .” The
parties agree that this is a typographical error, and that the affidavit,
which is signed by Tofani, is in fact Tofani’s affidavit.




                                    2
                      IN THE MATTER OF LARRY B.
                          Decision of the Court

                               DISCUSSION

¶4             The State must prove a patient’s need for court-ordered
treatment by clear and convincing evidence. A.R.S. § 36-540(A).2 A trial
court’s factual findings supporting a civil commitment order “will not be
set aside unless clearly erroneous or unsupported by substantial
evidence.” In re MH 2007–001236, 220 Ariz. 160, 165, ¶ 15, 204 P.3d 418,
423 (App. 2008). However, we review de novo issues concerning
interpretation of the statutory requirements for civil commitment
proceedings. In re MH 2011-000914, 229 Ariz. 312, 314, ¶ 7, 275 P.3d 611,
613 (App. 2012); MH 2007–001236, 220 Ariz. at 165, ¶ 15, 204 P.3d at 423.
Because involuntary treatment proceedings may result in a serious
deprivation of a person’s liberty interests, the statutory requirements for
such proceedings must be strictly construed. MH 2007–001236, 220 Ariz.
at 165, ¶ 15, 204 P.3d at 423.


I.     Tofani’s Affidavit

¶5            Appellant contends that Tofani’s affidavit is insufficient to
support the trial court’s findings that he is suffering from a mental
disorder, is persistently or acutely disabled, is a danger to himself and
others, and is in need of treatment.

¶6              The evidence presented at a commitment hearing “shall
include . . . [the] testimony of . . . two physicians who participated in the
evaluation of the patient.” A.R.S. § 36-539(B). The testimony of the
physicians “may be satisfied by [the parties] stipulating to the admission”
of the physician’s affidavits that were submitted in support of the petition
for court-ordered treatment. Id; see A.R.S. § 36-537(D) (providing that an
attorney “may enter stipulations on behalf of the patient” at civil
commitment hearing).         A physician’s affidavit must include the
physician’s “opinion[s] concerning whether the patient is, as a result of
mental disorder, a danger to self or to others, is persistently or acutely
disabled or is gravely disabled and . . . whether the patient requires
treatment.” A.R.S. § 36-539(B); see A.R.S. § 36-533(B). The affidavit must
“describe in detail the behavior that indicates that the person, as a result of
mental disorder, is a danger to self or to others, is persistently or acutely
disabled or is gravely disabled.” A.R.S. § 36-533(B); see A.R.S. § 36-539(B)


2      Absent material revisions, we cite to the current version of
applicable statutes.



                                      3
                      IN THE MATTER OF LARRY B.
                          Decision of the Court

(stating that a physician’s testimony at a commitment hearing “shall state
specifically the nature and extent of the danger to self or to others, the
persistent or acute disability or the grave disability”). Thus, conclusory
statements and general assertions, “without more, are insufficient to meet
the statutory requirements” for a civil commitment. MH 2011-000914, 229
Ariz. at 316, ¶ 14, 275 P.3d at 615.

¶7            The opinions in a physician’s affidavit cannot be tentative or
equivocal; opinions must be “expressed to a reasonable degree of medical
certainty or probability.” MH 2007-001236, 220 Ariz. at 169, ¶ 29, 204 P.3d
at 427. However, a physician’s affidavit is not insufficient or inadmissible
merely because he fails to include the specific words “reasonable degree
of medical probability or certainty.” Id. at 169-70, ¶ 30, 204 P.3d at 427-28.
Rather, the trier of fact must decide, based on all of the evidence, whether
the physician’s opinions have been expressed to a reasonable degree of
medical certainty or probability. Id.

       A.     Admissibility of Attachments

¶8            Appellant argues that the documents attached to Tofani’s
affidavit should not have been considered by the trial court as part of his
affidavit.3 Appellant does not contend the attachments are hearsay, lack
authentication or are otherwise inadmissible, nor does Appellant argue
that the attachments were improperly admitted in lieu of Tofani’s
testimony. See In re MH 2009-001264, 224 Ariz. 270, 229 P.3d 1012 (App.
2010) (discussing due process considerations involved in admitting
physician affidavits in place of live testimony). Rather, Appellant asserts
that the parties’ stipulation only included the page entitled, “Affidavit,”
and did not include any of the documents attached to this page. In
contrast, the State asserts that the attached documents were part of the
affidavit Tofani submitted in support of the petition for court-ordered
treatment, and that all of these documents were included in the parties’
stipulation.

¶9            We review a trial court’s decision regarding the admission of
evidence for an abuse of discretion. MH 2011-000914, 229 Ariz. at 315,
¶ 13 n.8, 275 P.3d at 614 n.8; Waddell v. Titan Ins. Co., 207 Ariz. 529, 536,
¶ 28, 88 P.3d 1141, 1148 (App. 2004).


3      The attachments consist of the following documents: “Persistently
or Acutely Disabled (Addendum No. 1)”; “Client Progress Notes”; a form
entitled “Client Progress Note”; and a list of Appellant’s medications.



                                      4
                     IN THE MATTER OF LARRY B.
                         Decision of the Court

¶10          When Appellant’s counsel entered the stipulation at the
hearing, he did not object to the admission of the attachments, nor did he
urge the court to disregard or remove the attachments from the
“Affidavit” page. As a result, Appellant has waived any objection to the
admission of the attachments as part of Tofani’s affidavit. MH 2009-
001264, 224 Ariz. at 272, ¶ 7, 229 P.3d at 1014; In re MH 2007-001264, 218
Ariz. 538, 540, ¶ 16, 189 P.3d 1111, 1113 (App. 2008). Accordingly, we
conclude the trial court properly considered the documents attached to
the “Affidavit” page in reaching its decision.

      B.     Sufficiency of Tofani’s Affidavit

¶11          Appellant asserts there are several deficiencies in Tofani’s
affidavit. First, Appellant argues that Tofani’s opinion that he suffers
from a mental disorder is not expressed to a reasonable degree of medical
certainty or probability. Appellant bases this argument on Tofani’s
statement that Appellant is “suffering from a mental disorder diagnosed
as Schizophrenic Paranoid Type (Probable Diagnosis).”

¶12           Although Tofani does not use the specific phrase,
“reasonable degree of medical certainty or probability,” when read as a
whole, Tofani clearly diagnoses Appellant as suffering from a mental
disorder, specifically, Schizophrenic Paranoid Type. A.R.S. § 36-539(B).
We find no error.

¶13           Appellant also claims that Tofani’s affidavit lacks specificity
as to the basis for his diagnosis. We disagree. Tofani bases his diagnosis
on Appellant’s “[p]resentation of psychotic symptoms with paranoid
delusional thoughts, auditory hallucinations and threatening behavior to
others.” Tofani notes that Appellant has a past history of “recurrent
paranoid psychotic symptoms and multiple past hospitalizations,” and
that prior to his current hospitalization he had been taken to jail for
threatening to “stab someone.”

¶14           Appellant also claims Tofani’s affidavit is deficient because
it does not address the statutory elements required to show he is
persistently or acutely disabled. A.R.S § 36-501(32)(b). Appellant asserts
Tofani’s affidavit fails to show (1) he lacked the capacity to make an
informed decision about the advantages and disadvantages of accepting
treatment, as well the alternatives to treatment, and (2) there is a
reasonable prospect he is treatable by outpatient, inpatient or combined
inpatient and outpatient treatment. Id.




                                     5
                      IN THE MATTER OF LARRY B.
                          Decision of the Court

¶15           Our review of Tofani’s affidavit shows that he addresses
Appellant’s impaired capacity to make informed decisions about
treatment. Tofani states that Appellant has no “insight into how he got
back into this position,” and is “unable to offer a plan to get out of it.”
Tofani goes on to state that “all available alternatives have been
investigated and deemed inappropriate” based on “multiple attempts at
[outpatient] treatment which is much less restrictive,” and that these
attempts have failed “due to repeated noncompliance with therapeutic
medication and substance use.” Tofani opines that Appellant’s severe
mental disorder substantially impairs his capacity to make informed
decisions regarding treatment based on the fact Appellant “demonstrates
no insight into his illness or how to care for it and has markedly impaired
judgment preventing him from making informed decisions.”

¶16           Tofani further states that Appellant “does not appear to be
able to understand and retain the significance of maintaining treatment
which has been helpful to him in the past,” and that Appellant’s
“complete lack of insight into his illness and the complications provided
by substance use impairs his ability to make [a] meaningful determination
to continue treatment and avoid substance use.” As an example of
Appellant’s lack of insight, Tofani notes that Appellant minimizes his
substance abuse and “offers no plan on how he will be able to stay clean
other than relying on his brothers.” Tofani also testifies that there is a
reasonable prospect Appellant is treatable, but “only with complete
[abstinence]” from substance abuse. Accordingly, we conclude Tofani’s
affidavit establishes that Appellant is persistently or acutely disabled
pursuant to A.R.S. § 36-501 (32)(b).

¶17          Next, Appellant claims that Tofani’s affidavit is insufficient
to show he is a danger to others. A.R.S. § 36-501(5). The record does not
support Appellant’s argument. In his affidavit, Tofani notes Appellant’s
“agitation and threatening behavior,” and “threatening behavior towards
others.” Tofani also states that Appellant is currently hospitalized because
he threatened to “stab someone.” Based on this incident, the police took
Appellant to jail, he is facing “possible assault charges,” and his wife has
obtained an order of protection against him.

¶18           Finally, Appellant asserts that Tofani’s statement Appellant
suffers from suicidal ideation lacks the requisite specificity to show he is a
danger to himself. A.R.S. § 36-501(6). We disagree.

¶19          Tofani opines Appellant is a danger to himself, noting that
“[h]e appears overwhelmed by his emotions, presently feeling hopeless


                                      6
                     IN THE MATTER OF LARRY B.
                         Decision of the Court

and thinking about suicide,” and “present reference to suicidal ideation.”
Tofani states Appellant is experiencing auditory hallucinations, paranoid
and delusional thoughts, and is using methamphetamine. Tofani also
reports Appellant’s statement, “I think about killing myself if I cannot see
my kids.”

¶20          Based on our review of Tofani’s affidavit, we conclude it (1)
meets the requirements of A.R.S. §§ 36-539(B) and 36-533(B), and (2)
provides sufficient evidence to support the trial court’s findings that
Appellant is suffering from a mental disorder, is persistently or acutely
disabled, constitutes a danger to himself and others, and requires
treatment.

II.   Flowers’ Testimony

¶21            Appellant also argues that Flowers’ testimony is insufficient
to prove he is a danger to others and that he requires treatment.4
Appellant contends that Flowers’ testimony lacked specificity on these
issues, and that contrary to a finding he was a danger to others, Flowers
testified that Appellant has “no thoughts of harm” to others.

¶22          Flowers testified that Appellant’s auditory hallucinations
cause him to act out and behave in a manner that is dangerous to himself
and others. Flowers stated Appellant has poor impulse control, and that
he reasonably expects Appellant’s behavior will result in physical harm to
others because he tends to have violent thoughts and make threats to his
family. Flowers noted that prior to his current hospitalization Appellant
had been incarcerated for an incident of domestic violence. Flowers
testified on cross-examination Appellant “continues to have violent
thoughts and has asked for stronger medications on several occasions to
help combat the auditory hallucinations which prompt the violent
thoughts towards himself and others.”

¶23           Flowers also testified about Appellant’s need for treatment.
Flowers testified “there’s a high likelihood” that without “a combination
of inpatient and outpatient [treatment] and psychiatric medications,”


4     Appellant also argues that Flowers’ affidavit was insufficient to
show he is a danger to others and that he requires treatment. We do not,
however, consider Flowers’ affidavit in reviewing the sufficiency of the
evidence because it was not admitted as an exhibit at the commitment
hearing.



                                     7
                      IN THE MATTER OF LARRY B.
                          Decision of the Court

Appellant would “suffer severe and abnormal mental, emotion[al] or
physical harm” that would “significantly impair[] [his] judgment, reason,
behavior or capacity to recognize reality.” However, Flowers opined that
with treatment there is a very good chance Appellant’s symptoms will be
“reduced.”    Flowers stated that he discussed with Appellant the
advantages of treatment, including a “reduction in psychotic symptoms of
the auditory hallucinations . . . improvement in overall functioning . . . the
reduction in aggressive behaviors and thoughts and the ability to integrate
back into the community.” Flowers also advised Appellant that the
primary disadvantage of treatment was the side effects of antipsychotic
medications.

¶24          Flowers testified that he discussed alternative treatment
placements with Appellant, which consisted of “doing nothing” and
possible voluntary treatment, and the risk that these alternatives would
result in relapse and future hospitalization. Flowers testified that
Appellant had difficulty understanding these alternatives due to the
“acute nature” of his “psychotic symptoms.” Ultimately, Flowers
concluded that Appellant had no willingness or ability to undergo
voluntary treatment, and that he lacked the capacity to make an informed
decision about his treatment.

¶25           Our review of the record shows that Flowers provided
sufficient evidence that Appellant is a danger to others and in need of
treatment.




                                      8
                   IN THE MATTER OF LARRY B.
                       Decision of the Court

                          CONCLUSION

¶26          For the reasons discussed above, we conclude the trial
court’s order for involuntary treatment was supported by substantial
evidence. We therefore affirm.




                             :gsh




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