                              IN THE
            ARIZONA COURT OF APPEALS
                           DIVISION ONE


                  IN THE MATTER OF COLTON P.


                        No. 1 CA-MH 16-0026
                          FILED 5-18-2017


           Appeal from the Superior Court in Navajo County
                      No. S0900MH201600024
              The Honorable Michala M. Ruechel, Judge

                             AFFIRMED


                             COUNSEL

Emery K. LaBarge, Attorney at Law, Snowflake
By Emery K. LaBarge
Counsel for Appellant

Navajo County Attorney’s Office, Holbrook
By Jason S. Moore
Counsel for Appellee
                    IN THE MATTER OF COLTON P.
                         Opinion of the Court



                                OPINION

Chief Judge Michael J. Brown delivered the opinion of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Patricia A. Orozco1 joined.


B R O W N, Chief Judge:

¶1           Colton P. (“Appellant”) appeals the superior court’s order
committing him to a period of psychiatric treatment. For the following
reasons, we affirm.

                             BACKGROUND

¶2           In April 2016, the Pineview Hospital medical director
petitioned the superior court for court-ordered evaluations, alleging that
Appellant was a danger to himself, a danger to others, persistently and
acutely disabled, and in need of treatment. Finding reasonable cause, the
court ordered that Appellant be evaluated.

¶3           Following the evaluation, the Pineview medical director
petitioned for court-ordered treatment.         The physician affidavits
supporting the petition described Appellant as having an impulse disorder,
which caused him to have poor judgment and insight regarding his
treatment needs.

¶4            The superior court scheduled an evidentiary hearing on the
petition and directed that a digital recording be made of the proceeding. At
the April 28 hearing, the court heard testimony from witnesses and
admitted several exhibits, including the affidavits signed by the two
physician witnesses and Appellant’s Individual Service Plan (“ISP”). The
ISP described Appellant’s history of a suicide attempt and physical violence
against his parents, and stated he had run away from his previous
placement and into traffic. The physician affidavits stated Appellant had
two reported traumatic brain injuries as a child and that he has an impulse
disorder. Following the hearing, the court found Appellant needed


1      The Honorable Patricia A. Orozco, Retired Judge of the Court of
Appeals, Division One, has been authorized to sit in this matter pursuant
to Article VI, Section 3 of the Arizona Constitution.



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                    IN THE MATTER OF COLTON P.
                         Opinion of the Court

treatment as set forth in the petition. The court ordered Appellant to
undergo a combination of inpatient and outpatient treatment not to exceed
one year in total duration, with the inpatient treatment not to exceed 180
days.

¶5            Appellant timely appealed. In attempting to prepare a
transcript of the April 28 hearing, however, the Navajo County
Transcription Coordinator reported the digital recording was inaudible
because it had too much “background and feedback” noise. Appellant then
filed a motion asking us to remand the case to the superior court for a “new
hearing.” We issued an order staying the appeal and directing the superior
court to settle the record pursuant to Arizona Rule of Civil Appellate
Procedure (“ARCAP”) 11. After conducting a hearing, the court issued a
minute entry outlining the recollections of counsel and the court as to the
evidence presented at the April 28 hearing. We now consider the merits of
the appeal based on the record before us.

                              DISCUSSION

¶6            Appellant’s sole argument on appeal is that the superior court
failed to substantively comply with the statutory requirement that it hear
testimony from two acquaintance witnesses, because there is no transcript
of the witnesses’ testimony from the commitment hearing. Appellant does
not raise any substantive argument regarding the content of the witnesses’
testimony or otherwise challenge the sufficiency of the totality of the
evidence presented at the hearing.

¶7            We review questions concerning the application of statutes de
novo. In re MH 2007-001236, 220 Ariz. 160, 165, ¶ 15 (App. 2008) (citations
omitted). Statutory requirements concerning civil commitment are strictly
construed to protect the liberty interests of those involved. Id. (citation
omitted). At a hearing on a petition for court-ordered treatment, Arizona
law requires that the evidence presented include “the testimony of two or
more witnesses acquainted with the patient at the time of the alleged mental
disorder.” Ariz. Rev. Stat. (“A.R.S.”) § 36-539(B). Regarding the
transcription of hearings on petitions for court-ordered treatment, A.R.S.
§ 36-539(E) provides:

      A verbatim record of all proceedings under this section shall
      be made by stenographic means by a court reporter if a
      written request for a court reporter is made by any party . . . .
      If stenographic means are not requested . . . , electronic means
      shall be directed by the presiding judge.



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                     IN THE MATTER OF COLTON P.
                          Opinion of the Court

¶8            Our supreme court has held that when a portion of the record
is destroyed or unavailable, the proper procedure “is to file in the court in
which the appeal is pending, a motion to suspend the progress of the appeal
and to reinstate the [superior] court’s jurisdiction over the case for the
limited purpose of reconstructing the record.” Rodriguez v. Williams, 104 Ariz.
280, 283 (1969) (emphasis added). The superior court should then “assist
counsel to overcome the loss of the missing records[.]” Id. Further, where
no transcript is available for appellate review, “the appellant may prepare
and file a narrative statement of the evidence or proceedings from the best
available source, including the appellant’s recollection.” ARCAP 11(d).
The narrative statement must then be reviewed and approved by the
superior court judge. Id.

¶9             On remand in this case, the superior court held a hearing to
reconstruct the record. During this hearing, at which Appellant’s trial and
appellate counsel were both present, the court noted that at the April 28
evidentiary hearing on the petition “two lay witnesses, Devon Lawrence
and Barbara Stone . . . testified regarding their observations of behavior by
[Appellant].” The court also listed the physician witnesses and referenced
the exhibits that had been admitted. Nevertheless, Appellant asserts on
appeal that the parties “did not stipulate to any of the record” and that “no
evidence . . . was presented from two acquaintance witnesses,” as required
by A.R.S. § 36-539(B).

¶10           Contrary to this contention, at the hearing called to
reconstruct the record, Appellant’s trial counsel responded to the court’s
summary of the evidence and witnesses by indicating he did not have any
objection to the exhibits and he was “in agreement with who testified.”
Appellant’s trial counsel also had the opportunity to add to the record his
recollection of the testimony and evidence presented at the original hearing;
but neither party discussed the content of the lay witnesses’ testimony.
Further, the court asked multiple times whether there was anything else the
parties wished to add to the record. Neither Appellant’s trial counsel nor
appellate counsel noted any deficiencies in the record or asked to
reconstruct the testimony of the lay witnesses. Appellant’s trial counsel
could have supplemented the record with his own recollection of the
testimony, but did not do so. See ARCAP 11(d).

¶11           “It is the appellant’s burden to ensure that the record on
appeal contains all transcripts or other documents necessary for us to
consider the issues raised.” Blain v. Burgener, 226 Ariz. 213, 217, ¶ 9 (App.
2010) (internal quotations and citation omitted). This is because we are
unable to determine the validity of an appellant’s contention when we


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                    IN THE MATTER OF COLTON P.
                         Opinion of the Court

cannot review the evidence upon which the appellant relies. Cf. Adams v.
Valley Nat’l Bank of Ariz., 139 Ariz. 340, 342 (App. 1984) (stating appellate
courts prefer to decide cases on their merits, rather than on procedural
grounds). But when portions of a trial record are not available because they
no longer exist, the appellate court should reinstate the superior court’s
jurisdiction for reconstruction of the record and thereby provide the
appellant a reasonable opportunity to pursue the appeal. See Rodriguez, 104
Ariz. at 282-83. However, it is not the superior court’s responsibility to
independently reconstruct the record for the appellant, but only to “assist”
the parties in doing so, pursuant to the appellant’s available remedies under
Rule 11. See id.; see also ARCAP 11(d).

¶12           Appellant suggests the superior court failed to follow our
order requiring it to transmit its “written findings and/or the reconstructed
materials” to this court. The superior court, however, was not required to
make any specific findings or provide additional materials. The verbatim
discussion between the superior court and counsel is reflected in the
reconstruction hearing transcript and is summarized in the court’s minute
entry. The transcript and minute entry constitute “reconstructed materials”
as contemplated by ARCAP 11(g).

¶13          We conclude that the record on appeal in this case, as
reconstructed by the parties and the superior court, confirms that the
statutory requirement of receiving testimony from two acquaintance
witnesses under A.R.S. § 36-539(B) was satisfied.

                               CONCLUSION

¶14           We affirm the superior court’s order committing Appellant to
a period of combined inpatient and outpatient psychiatric treatment.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




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