                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE




                            IN RE KATHERINE N.



                            No. 1 CA-MH 18-0022
                              FILED 11-8-2018


           Appeal from the Superior Court in Navajo County
                       No. S0900MH201800024
         The Honorable David Joseph Martin, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Navajo County Attorney’s Office, Holbrook
By Jason S. Moore
Counsel for Appellee

Coronado Law Firm PLLC, Lakeside
By Eduardo H. Coronado
Counsel for Appellant
                          IN RE KATHERINE N
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which Chief
Judge Samuel A. Thumma and Judge Maria Elena Cruz joined.


H O W E, Judge:

¶1           K.N. appeals the trial court’s order committing her to
involuntary inpatient and outpatient mental health treatment. For the
following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            Between December 2014 and January 2016, K.N. had been
admitted to ChangePoint Psychiatric Hospital five times to undergo
psychiatric treatment. Treatment records during that time show that K.N.
was under court-ordered psychiatric treatment from January 2015 to
January 2016 and that she was specifically advised to take psychotropic
medication to treat her psychiatric symptoms. When that order expired,
however, K.N. refused to take her medication and immediately disenrolled
from the hospital’s services.

¶3             While K.N. was in the Navajo County Jail on drug charges in
March 2018, she exhibited bizarre behavior, such as accusing detention
officers of killing her children, stating that the other inmates “need[ed] to
die,” and making salacious comments. Thereafter, K.N. was released from
the jail and admitted to ChangePoint, for the sixth time, to undergo an
emergency medical evaluation.

¶4           A nurse practitioner evaluated K.N. and determined that she
suffered from paranoid schizophrenia. The nurse practitioner noted that
although K.N. did not appear in acute physical distress, she suffered from
audio and visual hallucinations, exhibited disorganized thinking and
hyper-religiosity, and was incapable of answering questions intelligently.

¶5            Two ChangePoint psychiatrists, Drs. Worthen and Eltomi,
also evaluated K.N., and they each diagnosed K.N. as suffering from
Schizoaffective Disorder and found that K.N. was persistently and acutely
disabled. They also found that K.N. suffered from delusions, paranoia, and
hallucinations. Although K.N. denied to them that she suffered from a
mental disorder, she insisted that Worthen had put her children in a freezer


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                            Decision of the Court

and sexually molested them, and explained that “meth is made and being
sold ‘from ant droppings from their brain.’”

¶6           After the evaluations, the Navajo County Attorney petitioned
for court-ordered treatment of K.N., alleging that K.N. was persistently or
acutely disabled. The petition sought combined inpatient and outpatient
treatment. At the subsequent evidentiary hearing, the court heard
testimony from the two examining physicians and other ChangePoint staff.

¶7            Eltomi testified that K.N. had been previously hospitalized
and medicated, had a history of being noncompliant with treatment,
showed symptoms of mental illness, and would decompensate without
treatment. Eltomi further noted that K.N. abused marijuana and
methamphetamine—drugs that he explained are likely to worsen her
condition. He also mentioned that although K.N. did not exhibit any
behavior suggesting that she was a danger to herself or others, her previous
lack of medication compliance and insight into her condition had caused
her to become suicidal and threaten to murder her parents. Eltomi opined
that K.N. suffered from Schizoaffective Disorder and stated that he had
based his diagnosis on the notes of Worthen and his interview with K.N.,
during which she was “irrational, ranting at times,” and “responding to
internal stimuli, like hearing children’s voices[.]”

¶8             Eltomi also discussed K.N.’s ability to accept treatment
voluntarily. He specifically stated that when he interviewed K.N., she did
not believe that she needed medication or that she suffered from a mental
illness. He affirmed that before a psychiatric patient will voluntarily accept
treatment, she must typically understand the nature of her illness and the
need for medication. He also noted K.N. failed to take her medication when
she was not under court order. Eltomi therefore determined that K.N. was
incapable of accepting voluntary treatment and would benefit from a
combination of inpatient and outpatient treatment.

¶9            Worthen testified that K.N. suffers from Schizoaffective
Disorder, a mental illness that will cause her to experience disorder, bizarre
thinking, and to “decompensate rather rapidly” without court-ordered
treatment. Worthen also said that K.N. was “starting to unravel a little
bit[.]” More specifically, he reported that K.N. recently accused another
ChangePoint patient of “putting 666 on her” and stated that when she was
at the Navajo County Jail “a guard stuck a fork in her butt and removed a
hemorrhoid, and then . . . fed it to her.”




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                           Decision of the Court

¶10            Worthen also spoke about K.N.’s failure to accept treatment
and comply with her medication regimen. He testified that the Navajo
County Jail staff “were having a hard time with [K.N.] taking medication
and being treated appropriately for her mental illness.” He further testified
that after examining K.N., he recommended that she take Risperdal twice
per day, but that K.N. initially refused the medication and “said she didn’t
need [it].” He also reported that she complained that the Risperdal upset
her stomach—an uncommon side effect. Nevertheless, he took K.N. off
Risperdal and placed her on Abilify—a medication that is less therapeutic
than Risperdal—to accommodate her complaint. Worthen further stated
that despite her “history of noncompliance with medication regimens,”
K.N. has been “fairly compliant” with taking the Abilify and has refused it
only on one occasion. He also expressed concern, however, that K.N. would
not continue to take her medication because she is known to exhibit
impaired judgment and insight. He further indicated that if K.N. did not
take her medication on a set schedule, she would regress and “start having
delusional thoughts[.]” Worthen thus recommended a combined inpatient
and outpatient treatment plan and insisted that it would be the least
restrictive treatment plan for K.N.

¶11            A ChangePoint psychiatric technician and K.N.’s social
worker also testified at the hearing. The social worker testified that K.N.
persistently denied needing treatment, was “mostly compliant” with taking
her medication, but made several strange statements to her. As an example
of a strange statement, the social worker recounted K.N.’s stating that her
daughter was hanged at the Holbrook courthouse. The psychiatric
technician also recounted a strange interaction that he had with K.N. He
testified that even though K.N. is probably not pregnant, “she said that
when she was in the jail that she was raped by a guard, and [that] she had
a baby inside her . . . trying to crawl and get out[.]” On cross-examination,
he further testified that “[K.N.] was starting to cooperate more” and that
she has been calm lately.

¶12            After the hearing, the court found by clear and convincing
evidence that K.N. was persistently and acutely disabled due to a mental
disorder, in need of treatment, and is either unwilling or unable to accept
voluntary treatment. The court ordered combined inpatient and outpatient
treatment for no more than 365 days, with inpatient treatment not to exceed
180 days. The court further determined that the ordered treatment plan was
the least restrictive alternative. K.N. timely appealed.




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                             Decision of the Court

                                DISCUSSION

              1. Sufficiency of Evidence Under A.R.S. § 36–540(A)

¶13            K.N. contends that the trial court erred by finding that she
suffered from an acute and persistent disability and that she was unwilling
or unable to accept voluntary treatment. This Court will not disturb a trial
court’s involuntary commitment order that the evidence substantially
supports. In re Pima Cty. Mental Health No. MH–1140–6–93, 176 Ariz. 565,
566 (App. 1993). We view the facts in the light most favorable to sustaining
the trial court’s decision and will not set aside its factual findings unless
those findings are clearly erroneous. In re Mental Health Case No. MH
94–00592, 182 Ariz. 440, 443 (App. 1995). The interpretation and application
of a statute, however, is reviewed de novo. In re MH2010–002637, 228 Ariz.
74, 78 ¶ 13 (App. 2011).

¶14             A court may order an individual to undergo involuntary
mental health treatment if it finds by clear and convincing evidence that the
individual is either unwilling or unable to accept voluntary treatment and,
as a result of a mental disorder, is a danger to self or others, has a persistent
or acute mental disability, or a grave disability. A.R.S. § 36–540(A). Under
A.R.S. § 36–501(32), a “persistent or acute disability” means a severe mental
disorder that meets the following criteria:

       (a) If not treated has a substantial probability of causing the
           person to suffer or continue to suffer severe and abnormal
           mental, emotional, or physical harm that significantly
           impairs judgment, reason, behavior or capacity to
           recognize reality.

       (b) Substantially impairs the person’s capacity to make an
           informed decision regarding treatment, and this
           impairment causes the person to be incapable of
           understanding and expressing an understanding of the
           advantages and disadvantages of accepting treatment and
           understanding and expressing an understanding of the
           alternatives to the particular treatment offered after the
           advantages, disadvantages and alternatives are explained
           to that person.

       (c) Has a reasonable prospect of being treatable by outpatient,
           inpatient or combined inpatient and outpatient treatment.




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                          IN RE KATHERINE N
                           Decision of the Court

¶15            In this case, the evidence is sufficient to satisfy the first
criterion for finding K.N. persistently or acutely disabled. The testimony
from two physicians, a nurse practitioner, and a psychiatric technician
clearly show that K.N. is profoundly paranoid and delusional and that her
paranoid delusions have led to her recurring hospitalization and irrational
behavior. Furthermore, Eltomi and Worthen’s testimony and affidavits
indicated that K.N. suffered from Schizoaffective Disorder and that she had
a history of refusing medication. Both physicians also thought that if K.N.
were not under a court order for treatment, she would likely decompensate.
In addition, Eltomi reported that K.N. suffered from a substance abuse
problem that could worsen her condition. Accordingly, substantial
evidence supports finding that K.N.’s mental disorder will cause her to
suffer further harm if left untreated.

¶16           Substantial evidence also supports the second criterion for
finding K.N. persistently or acutely disabled. As the record reflects, K.N.
has resisted medical treatment on several occasions and has stated
numerous times that she does not believe that she has a mental illness. As
such, the record is sufficient to support the trial court’s finding that K.N.
lacks the capacity to make an informed treatment decision.

¶17           K.N. contends nonetheless that she cannot be classified as
having a persistent or acute disability because she has been cooperative
with her treatment at ChangePoint, willingly and voluntarily complied
with her medication plan, and “participated, even if partially, in the
development of her treatment plan.” This argument fails because, as
established above, K.N. clearly has a history of being violent and medically
noncompliant. See MH 94–00592, 182 Ariz. at 444 (“In evaluating a patient’s
mental condition, physicians not only examine the patient’s current
behavior and statements, but also consider his treatment history and past
behavior. Consideration of current behavior alone would be manifestly
misleading.”). Moreover, the evidence of K.N.’s compliance with her
treatment regimen occurred in a supervised and structured environment
and even then, her compliance has been inconsistent. See id. at 444–45 (“A
patient may not display any current aberrant behavior because of intensive
therapy, supervision, and medication and yet pose a danger of harm to
himself because of inability to make treatment decisions if released from the
therapeutically structured environment.”). As such, K.N.’s argument is not
persuasive.

¶18          In a related argument, K.N. claims insufficient evidence
supports the trial court’s finding that she is unwilling or unable to accept
voluntary treatment. The record shows, however, that although K.N. has


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                            Decision of the Court

been repeatedly advised that she must take medication for her condition,
she has failed to do so when she is not subject to court order. Furthermore,
K.N. has persistently denied having any mental illness and that she needs
medication. Thus, sufficient evidence supports the trial court’s finding.

              2. Least Restrictive Treatment Alternative

¶19           K.N. argues that the trial court erred by finding that the
treatment plan it ordered is the least restrictive treatment alternative. We
review the interpretation and application of statutes involving involuntary
commitments de novo. MH2010–002637, 228 Ariz. at 78 ¶ 13. Under A.R.S.
§ 36–540(B), the court must consider all available and appropriate treatment
alternatives for a patient and must order the least restrictive treatment
alternative available. The “[l]east restrictive treatment alternative” is “the
treatment plan and setting that infringe in the least possible degree with the
patient’s right to liberty and that are consistent with providing needed
treatment in a safe and humane manner.” A.R.S. § 36–501(21).

¶20            Here, both examining physicians testified that the court-
ordered treatment plan was the least restrictive alternative for K.N. The
physicians concluded that, due to K.N.’s history of noncompliance with
medical treatment, both inpatient and outpatient treatment is the most
appropriate alternative. Moreover, Worthen specifically expressed concern
that K.N. would not continue to take her medication because she is known
to exhibit impaired judgment and insight. Eltomi also indicated that if K.N.
left ChangePoint without a treatment order in place, her condition would
get worse. In light of the physicians’ testimony, the court-ordered treatment
plan is the least restrictive alternative for K.N.

¶21          K.N. suggests that the more appropriate treatment plan for
her would be outpatient treatment. The record does not mandate this
conclusion. The record instead shows that K.N. has a history of medical
noncompliance and that she is compliant with her treatment plan and
medication regimen only when she is at ChangePoint. As such, K.N.’s
argument is not persuasive.




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                  IN RE KATHERINE N
                   Decision of the Court

                       CONCLUSION

¶22   For the foregoing reasons, we affirm.




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




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