                          NOTICE: NOT FOR PUBLICATION.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 RE MH 2013-002179

                            No. 1 CA-MH 13-0058
                             FILED 05-15-2014


           Appeal from the Superior Court in Maricopa County
                         No. MH 2013-002179
                The Honorable Rodrick J. Coffey, Judge

                                  AFFIRMED


                                   COUNSEL

Maricopa County Attorney's Office, Phoenix
By Anne C. Longo, Bruce P. White
Counsel for Appellee

Maricopa County Legal Defender's Office, Phoenix
By Anne H. Phillips
Counsel for Appellant
                          IN RE MH 2013-002179
                           Decision of the Court




                      MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Donn Kessler joined.


D O W N I E, Judge:

¶1          L.W. appeals a superior court order requiring her to receive
involuntary mental health treatment. For the reasons that follow, we
affirm.

                FACTS AND PROCEDURAL HISTORY 1

¶2           Police officers stopped L.W., who was driving 100 miles per
hour. L.W. stated she was speeding to get away from mold. Officers
brought L.W. to a hospital, where crisis counselor Randy Call conducted
an evaluation. Call described L.W. as “manically wild all over the place,”
pacing, and exhibiting “scattered” and “racing” thoughts. Call testified
that “in my 12 years of evaluating patients, I’ve never seen somebody so
manic.” L.W. told Call that she ran several red lights “in an attempt to
escape the mold and that she was hoping she could get pulled over by
police.” When Call suggested mental health treatment, L.W. responded
“that she’s not crazy, that she doesn’t need inpatient treatment, that she
used to be on medications . . . but that she tapered herself off her
medications because they’re poisonous and that she believes in mother
earth.”

¶3            While hospitalized, L.W. was cared for by behavioral health
technician Ann Ivey. Ivey testified that L.W. was manic, would not sleep,
had pressured speech, would not follow staff’s directions, was “concerned
about the air, . . . the water, the foods, saying that we were poisoning her,”
and was “grabbing the phone out of other patients’ hands” and telling the
callers “we were holding their loved ones hostage and poisoning them.”


1      We view the facts in the light most favorable to sustaining the
superior court’s judgment. In re MH 2008-001188, 221 Ariz. 177, 179, ¶ 14,
211 P.3d 1161, 1163 (App. 2009).



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                             Decision of the Court

¶4             L.W. was evaluated by two medical doctors, who submitted
affidavits in conjunction with the petition for court-ordered treatment. The
physicians’ affidavits were also admitted by stipulation at the
commitment hearing. Dr. Wey concluded L.W. was persistently or
acutely disabled as a result of a mental disorder, with a probable
diagnosis of bipolar disorder, “Most Recent Episode Manic, Severe With
Psychosis.” Dr. Wey relied on information from the Psychiatric Recovery
Center (“PRC”), which reflected that L.W. “believed there were toxins in
the interview room at PRC,” refused medications, and made a statement
that, “maybe I should’ve just killed myself.” L.W. also reportedly stated
“that she can drive better than the police who pulled her over and that she
has a race car, although she then stated that she did not know that she had
a race car.” L.W. was “selectively mute” during Dr. Wey’s evaluation.
Dr. Hadziahmetovic also evaluated L.W. and listed a probable diagnosis
of “psychotic disorder.” Dr. Hadziahmetovic stated that L.W. had
received inpatient psychiatric care “at least three times in the past,”
observed that she had exposed herself and others to serious danger, noted
a past history of suicide attempt, and stated that L.W. had bitten the police
officer.

¶5           The superior court held a commitment hearing over the
course of several days. Call and Ivey testified about their involvement
with L.W. L.W. also testified and, as the following excerpt reflects,
exhibited some of the behaviors previously discussed:

      Q: There’s been testimony here --

      A: Honorable Judge.

      Q: -- that you are not amenable to any type of mental health
      treatment --

      A: Correct.

      Q: -- is that true?

      A: Correct, yes.

      Q: Why?

      A: Because they want to poison the crap out of me.

      Q: Okay.




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                          Decision of the Court

     A: You know what I can say about it, please ask me. Some
     rogue attorney said this once, I believed him.

     Q: And do you think that you’re acting what others would
     call normal?

     A: No.

     Q: Why?

     A: Well because I’m a genius, I’m just trying to fit in. Every
     genius is a misfit; you’re a misfit; he’s a misfit. Look up, I can
     tell you -- can I tell you who I -- we can look up?

     Q: Not right now, [L.W.]

     A: Good, perfect.

     Q: Okay. You were running away from your home due to
     mold, correct?

     A: Yeah.

     Q: Why were you in your car and going to another facility or
     trying to get pulled over?

     A: Well I was actually -- went to the police station, but the
     police station was closed, so I didn’t remember where the
     police station was. I’ve been there the other day because I
     had some thieves steal my wallet, but I couldn’t remember
     where it was, so I called 911. She said is this an emergency, I
     said, no, I can’t find the police station, it’s hidden. Where in
     the heck is it? So she tells me, you know, just give me good
     directions.

     I show up, I said, I need an officer to meet me there. She says
     fine. I said I’m on my way there and I see an officer, she said
     sure. Well, you know, I show up, I’m waiting at the police
     station, waiting for the officer. Why am I doing this? Because
     I can’t even go into my house, this man is an illegal
     boyfriend of my girlfriend.

L.W. also repeatedly interrupted the proceedings, made profane
comments, and asked the judge what he “smell[ed] like.”



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                          Decision of the Court

¶6           After petitioner’s witnesses and before L.W. testified, L.W.’s
attorney requested a continuance in order to present two expert witnesses:
an individual who inspected L.W.’s home for mold and a medical doctor.
According to counsel, the inspector found “a very large amount of mold”
in L.W.’s home, and “this type of mold can cause people to have
psychological reactions, such as the one that [L.W.] is having.” The court
granted a continuance and set a status conference for July 9, 2013 to give
counsel time to procure the witnesses.

¶7           At the July 9 status conference, L.W.’s counsel stated that he
was prepared to disclose Dr. Rapp, an expert “in allergy, pediatrics and
environmental medicine,” and Russell Olinsky, who would testify about
mold in L.W.’s home. The following exchange occurred between the court
and L.W.’s counsel:

      [Court]: . . . [T]he concern I have is whether your experts are
      going to be able to connect the dots. As I understand it,
      you’ve got Mr. Olinsky, who you said will opine about the
      level of mold in [L.W.’s] home, and you’ve got Dr. Rapp,
      who can say that people who are sensitive to mold may have
      certain behaviors if they’re exposed to it, but I – what I don’t
      hear is that you’ve got somebody who’s going to say that . . .
      [L.W.] has this sensitivity or that her behavior is a result of
      the mold, which really, I think, is the missing link.

      [Counsel]: Your Honor, that is a fair assessment.

      ....

      [Court]: I guess without that . . . dot being connected, you
      know, to have someone say that [L.W.] is one who . . . has
      that sensitivity and that her behaviors are a result of the
      mold, I don’t really think that there’s going to be sufficient
      evidence to rebut what’s been presented at this point, and I
      would be inclined to go forward on just what’s been
      presented under those circumstances.

¶8           In ruling that the proffered testimony was irrelevant and
unhelpful, the court stated, in pertinent part:

      [T]he Patient did not identify any experts to testify that she
      is susceptible to mold or that the mold in her home was
      causing any of her behaviors. Testimony about the levels of
      mold in the Patient’s home and that some people have


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                          IN RE MH 2013-002179
                           Decision of the Court

       reactions to mold without expert testimony that mold was
       actually causing the Patient’s behaviors is insufficient and
       for that reason, such expert testimony is not relevant and
       would not assist the trier of fact in this case.

¶9           At the continued hearing on July 10, 2013, the court found by
clear and convincing evidence that, as a result of a mental disorder, L.W.
was “persistently or acutely disabled, and in need of psychiatric
treatment.” The court ordered L.W. to participate in combined inpatient
and outpatient treatment.

¶10           L.W. timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution and Arizona Revised
Statutes (“A.R.S.”) section 12-2101(A)(10)(a).

                               DISCUSSION

¶11           L.W. contends the superior court violated her due process
rights by precluding her proffered expert testimony and improperly
shifted the burden of proof. We conclude otherwise.

¶12            Court-ordered involuntary mental health treatment
implicates due process rights under the federal and Arizona
constitutions. 2 See A.R.S. § 36-539(B)-(C) (listing strict procedural
requirements for commitment hearings); Vitek v. Jones, 445 U.S. 480, 491-92
(1980) (“[C]ommitment to a mental [health] hospital produces a massive
curtailment of liberty, and in consequence requires due process
protection.”) (internal quotation marks and citation omitted); In re Pima
County Mental Health No. MH 3079-4-11, 228 Ariz. 341, 342, ¶ 5, 266 P.3d
367, 368 (App. 2011) (Due process protection includes a “full and fair
adversarial proceeding.”). Due process requires that the patient “be
present with counsel, have an opportunity to be heard, be confronted with
witnesses against him, have the right to cross-examine, and to offer
evidence of his own.” In re Jesse M., 217 Ariz. 74, 76, ¶ 9, 170 P.3d 683, 685
(App. 2007). “The right to offer the testimony of witnesses, and to compel
their attendance, if necessary, is in plain terms the right to present a


2       The Fifth Amendment to the United States Constitution, applicable
to the states through the Fourteenth Amendment, and Article 2, Section 4,
of the Arizona Constitution declare that “[n]o person shall be . . . deprived
of life, liberty, or property, without due process of law.” U.S. Const.
amend. V.



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                          IN RE MH 2013-002179
                           Decision of the Court

defense . . . .” Washington v. Texas, 388 U.S. 14, 19 (1967). “This right is a
fundamental element of due process law.” Id.

¶13            The rules of evidence generally apply to civil commitment
proceedings. In re MH-2008-000867, 225 Ariz. 178, 181, ¶ 11, 236 P.3d 405,
408 (2010). The superior court has “broad discretion in determining
whether to admit expert testimony,” and we will not reverse its ruling
absent a clear abuse of discretion. Escamilla v. Cuello, 230 Ariz. 202, 206, ¶
20, 282 P.3d 403, 407 (2012). Arizona Rule of Evidence 702 states, in
relevant part:

       A witness who is qualified as an expert by knowledge, skill,
       experience, training, or education may testify in the form of
       an opinion or otherwise if:

       (a) The expert’s scientific, technical, or other specialized
           knowledge will help the trier of fact to understand the
           evidence or to determine a fact in issue . . . .

¶14            Expert testimony that “does not relate to any issue in the
case is not relevant and, ergo, non-helpful.” Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579, 591 (1993). The requirement that expert testimony assist
the trier of fact “goes primarily to relevance.” Id. “Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would
be without the evidence; and (b) the fact is of consequence in determining
the action.” Ariz. R. Evid. 401.

¶15          The superior court did not abuse its discretion by ruling that
the proffered expert testimony was irrelevant and unhelpful because it
would not “connect the dots” between the existence of mold in L.W.’s
home and her condition. Additionally, substantial evidence, including
witness testimony, physician affidavits, and L.W.’s own testimony and
behavior, supports the determination that L.W. suffers from a substantial
disorder of her emotional processes, thought, cognition, or memory. See
In re MH 2008-001188, 221 Ariz. 177, 179, ¶ 14, 211 P.3d 1161, 1163 (App.
2009) (appellate court will affirm order for involuntary treatment when
supported by substantial evidence). L.W. has a history of mental illness
and psychiatric medications. Despite being hospitalized and away from
her home for several weeks, L.W. continued to exhibit manic behavior.
She refused to eat or take medication, accusing hospital staff of poisoning
her, and projecting her own paranoid beliefs onto other patients. The
doctors who examined L.W. offered probable diagnoses of bipolar
disorder and psychotic disorder.



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                          Decision of the Court

                            CONCLUSION 3

¶16          For the reasons stated, we affirm the superior court’s order
for involuntary mental health treatment.




                                :gsh




3     We do not independently address L.W.’s contention that the court
improperly shifted the burden of proof by requiring her experts to supply
more than “possible causes of the Appellant’s mental health condition.”
As discussed supra, the evidence was properly precluded on relevance
grounds and because, as proffered, it would not assist the trier of fact.



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