                          NOTICE: NOT FOR PUBLICATION.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 GARY P.

                            No. 1 CA-MH 13-0088
                             FILED 5-20-2014


            Appeal from the Superior Court in Mohave County
                        No. S8015MH201300044
                  The Honorable Lee F. Jantzen, Judge

                                  AFFIRMED


                                   COUNSEL

Mohave County Legal Defender’s Office, Kingman
By Diane S. McCoy
Counsel for Appellant

Mohave County Attorney’s Office, Kingman
By Dolores H. Milkie
Counsel for Appellee
                      IN THE MATTER OF GARY P.
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.


B R O W N, Judge:

¶1            Gary P. appeals the superior court’s order for involuntary
treatment entered after the court found he suffers from a mental disorder
rendering him persistently or acutely disabled and a danger to himself or
others. For the following reasons, we affirm.

                             BACKGROUND

¶2            In November 2013, Gary contacted the police because he
believed “someone was stealing guns from him.” When police officers
responded to his call, Gary became “hostile and threatening.” As a result,
he was initially transported to Kingman Regional Medical Center for
“psychiatric stabilization,” and later transferred to Mohave Mental Health
Clinic.

¶3            Shortly thereafter, Calvin Flowers, M.D., Deputy Medical
Director of Mohave Mental Health Clinic, filed a petition for court-
ordered evaluation of Gary. The petition alleged reasonable cause to
believe that Gary has a mental disorder and, as a result, is persistently or
acutely disabled and a danger to himself or others. The petition explained
that (1) Gary “has a history of psychosis with paranoid delusional
thinking,” (2) current examination “reveals continue[d] violent ideations
and paranoia,” and (3) Gary “has become uncooperative with inpatient
evaluation and treatment [and] lacks insight into [the] nature of [his]
psychosis” and corresponding need for treatment. Later that day, the
superior granted the request for evaluation and appointed counsel to
represent Gary.

¶4           After evaluating Gary, Dr. Flowers filed a petition for court-
ordered treatment pursuant to Arizona Revised Statutes (A.R.S.) section
36-533. The petition (1) alleged that Gary has a mental disorder that
renders him persistently or acutely disabled and a danger to himself and
others; and (2) sought an order for combined inpatient and outpatient
treatment pursuant to A.R.S. § 36-540(A)(2).



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                      IN THE MATTER OF GARY P.
                          Decision of the Court

¶5             The petition included a November 27, 2013, affidavit of Dr.
Flowers, his addendum, client progress notes, treatment plan, and
recommendations. Based on his evaluation of Gary, Dr. Flowers opined
that Gary is (1) suffering from a psychotic disorder not otherwise
specified, (2) acutely or persistently disabled, and (3) a danger to himself
and others. Dr. Flowers reported that Gary exhibits “acute psychotic
agitation, marked mood disturbance, homicidal and suicidal ideation”
and has “repeated[ly] threat[ened] to harm [himself] and others in the
community.”

¶6            Also attached to the petition was the affidavit of Laurence
Seltzer, M.D. a psychiatrist at Mohave Mental Health Clinic. Dr. Seltzer
also opined that Gary suffers from a psychotic disorder not otherwise
specified. Dr. Seltzer reported that Gary was agitated and uncooperative
with the interview; “[h]e instead hurled verbal profane expletives[.]” Dr.
Seltzer also reported that Gary’s thinking “was disjointed and maybe
paranoid” and that Gary informed Dr. Seltzer he wanted to “be left
alone.” Noting Gary’s physical disabilities (“difficulty in ambulating”)
and admitted pain, Dr. Seltzer concluded Gary is “unable to look after his
own needs.” Attached to Dr. Seltzer’s affidavit were his addendum, client
progress notes, and the social work evaluations of Jettie Blanton and
Lauren Retzer-Greer, both of whom work for the Mohave Mental Health
Clinic.

¶7            On December 3, 2013, the superior court held a hearing on
the petition for court-ordered treatment. Initially, Gary, his attorney, and
counsel for the State were present. The parties stipulated that Dr. Seltzer’s
affidavit would be admitted as his testimony. Gary’s attorney informed
the court that Gary wished to represent himself at the proceedings. After
discussing the matter with Gary, the court denied his request for self-
representation and Gary voluntarily left the hearing.

¶8            Dr. Flowers testified that based on his observations and
evaluations, Gary suffers from a psychotic disorder not otherwise
specified. He opined that Gary is a danger to himself because “[h]e
believes that he is being targeted, persecuted, and he acts in a way that
would endanger his physical health” and has repeatedly expressed
thoughts of suicide. He further opined that Gary is a danger to others
“because he feels he’s being targeted by other people” and that “the police
are out to get him[.]” To illustrate this point, Dr. Flowers explained that
Gary was transported to Mohave Mental Health Clinic after he had made
“threats of harm to himself and others,” and, at the time Gary was taken
into custody by police, he was in possession of numerous firearms and


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                      IN THE MATTER OF GARY P.
                          Decision of the Court

substantial ammunition. Dr. Flowers further testified that Gary has
“delusions” about firearms and the need to protect himself through force
and opined that these “delusions” “represent[] a significant danger to the
community.” Finally, Dr. Flowers opined that Gary suffers from a mental
disorder that renders him persistently or acutely disabled as
demonstrated by Gary’s inability “to make rational decisions” and his lack
of “impulse control.” Because Gary declined all voluntary treatment, Dr.
Flowers recommended a treatment plan consisting of both inpatient and
outpatient services designed to “reduce the level of delusional thought
content.”

¶9             Following Dr. Flowers testimony, Carol Panaggio, a
registered nurse, testified regarding her observations of Gary. She stated
that at times, Gary has been “very cooperative,” but at other times he has
“tr[ied] to break things and threaten[ed] everybody[.]” She explained that
“[i]f you try . . . to get him to calm down, he will try to strike out at you”
and that Gary threatened “to come back and get us all” once he is released
from the facility. Finally, Rick St. Germaine, a mental health services
worker, testified regarding his observations of Gary. He testified that
Gary has threatened to “get everybody in here” as soon as he is released.

¶10           After the presentation of evidence and argument, the
superior court found the State proved, by clear and convincing evidence,
that Gary suffers from “a psychotic disorder that needs treatment.” The
court also found that Gary is persistently or acutely disabled and that he is
a danger to himself and others. The court therefore ordered Gary to
undergo inpatient and outpatient treatment for no more than 365 days,
with the period of inpatient treatment not to exceed 180 days. This timely
appeal followed.

                               DISCUSSION

¶11           Gary argues the superior court’s order for involuntary
treatment must be vacated because there was insufficient evidence to
support the court’s findings that he suffers from a mental disorder, that he
is persistently or acutely disabled, or that he is a danger to himself or
others.

¶12            “We view the facts in a light most favorable to upholding the
court’s ruling and will not reverse an order for involuntary treatment
unless it is clearly erroneous and unsupported by any credible evidence.”
In re MH 2009-002120, 225 Ariz. 284, 290, ¶ 17, 237 P.3d 637, 643 (App.
2010) (internal quotations omitted). To the extent Gary raises issues of



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                      IN THE MATTER OF GARY P.
                          Decision of the Court

statutory interpretation, our review is de novo. In re MH 2012-002480, 232
Ariz. 421, 422, ¶ 5, 306 P.3d 78, 79 (App. 2013). We may sustain the
superior court’s decision if the result is correct, “regardless of the
underlying reasoning.” In re MH 94-00592, 182 Ariz. 440, 445, 897 P.2d
742, 747 (App. 1995).

¶13           The petitioner requesting a court order for treatment shall
present, at the hearing on the petition, testimony of two physicians “who
participated in the evaluation of the patient[.]” Pursuant to A.R.S. § 36-
539(B):

      The physicians shall testify as to their personal observations
      of the patient. They shall also testify as to their opinions
      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 as to whether the
      patient requires treatment. Such testimony shall state
      specifically the nature and extent of the danger to self or to
      others, the persistent or acute disability or the grave
      disability.

“[T]he testimony from each physician must be to a reasonable degree of
medical certainty or probability as to the statutory elements before a court
may find that the clear and convincing standard [required to order
involuntary treatment] has been met.” In re MH 2007-001236, 220 Ariz.
160, 169, ¶ 29, 204 P.3d 418, 427 (App. 2008). Under this rule, “[i]f one
physician’s opinion is sufficient and the other physician’s opinion is
insufficient, a court should not be able to find the statutory requirements
were proven by clear and convincing evidence because the statute
specifically requires the opinions of the two examining physicians, both of
whom performed evaluations.” Id. at 170, ¶ 32, 204 P.3d at 428. The
testimonial requirement of A.R.S. § 36-539(B) may be satisfied, upon
stipulation of the parties, by admitting the evaluating physicians’
affidavits. See also In re MH 2006-000490, 214 Ariz. 485, 487-88, ¶ 9, 154
P.3d 387, 389-90 (App. 2007) (“In lieu of in-court testimony, a court may
admit or take judicial notice of the physicians’ affidavits appended to the
petition.”).

¶14           As defined in A.R.S. § 36-501(25), a mental disorder “means
a substantial disorder of the person’s emotional processes, thought,
cognition or memory.” Persistent or acute disability is defined as “a
severe mental disorder” that, if not treated: (1) “has a substantial
probability of causing the person to suffer . . . abnormal mental, emotional


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                      IN THE MATTER OF GARY P.
                          Decision of the Court

or physical harm that significantly impairs judgment, reason, behavior or
capacity to recognize reality;” (2) “[s]ubstantially impairs the person’s
capacity to make an informed decision regarding treatment;” and (3)
“[h]as a reasonable prospect of being treatable by outpatient, inpatient or
combined inpatient and outpatient treatment.” A.R.S. § 36-501(32). A
“danger to self” means behavior that, as a result of a mental disorder: (1)
“[c]onstitutes a danger of inflicting serious physical harm on oneself . . . if
the threat is such that, when considered in light of its context and in light
of the individual’s previous acts, it is substantially supportive of an
expectation that the threat will be carried out,” and (2) “[w]ithout
hospitalization will result in serious physical harm or serious illness to the
person.” A.R.S. § 36-501(6). Finally, “danger to others” is defined as “the
judgment of a person who has a mental disorder is so impaired that the
person is unable to understand the person’s need for treatment and as a
result of the person’s mental disorder the person’s continued behavior can
reasonably be expected, on the basis of competent medical opinion, to
result in serious physical harm.” A.R.S. § 36-501(5).

¶15           Gary contends that Dr. Seltzer’s affidavit is deficient and,
therefore, applying the testimonial requirements set forth in A.R.S. § 36-
539(B), insufficient evidence supported the superior court’s findings that
Gary is persistently or acutely disabled and a danger to himself and
others. Specifically, Gary argues that the court could only consider the
single page titled “Affidavit” when reviewing Dr. Seltzer’s affidavit
pursuant to the stipulation.

¶16            At the outset of hearing, the parties summarily stipulated
“that the affidavit of Dr. Seltzer would be admitted as his testimony.”
Neither the hearing transcript nor the hearing minute entry reflect that
either party submitted an affidavit for the court’s consideration
contemporaneous to the stipulation. Rather, Dr. Seltzer’s affidavit was
already part of the court record as an attachment to the petition for
treatment. The attachment to the petition for treatment included not only
the notarized first page, but also his addendum, client progress notes, and
the social work evaluations of Blanton and Retzer-Greer. When parties
stipulate that the court may consider a document already included in the
superior court record, it is incumbent on counsel to limit or qualify the
stipulation if the entire document is not intended to be submitted for the
court’s consideration.      Here, the parties presented an unqualified
stipulation to the court and therefore the court could properly consider
Dr. Seltzer’s affidavit and the attached documents in evaluating the
sufficiency of the evidence.



                                      6
                      IN THE MATTER OF GARY P.
                          Decision of the Court

¶17           Dr. Seltzer’s affidavit minimally addressed Gary’s mental
disorder, persistent or acute disability, and his danger to himself. Dr.
Seltzer noted that Gary was agitated, in pain, and physically disabled. Dr.
Seltzer also observed that Gary’s thinking was disjointed and possibly
paranoid, and opined that Gary is “unable to look after his own needs.”
Other than noting Gary threatened law enforcement officers and
concluding that Gary “presents a danger to himself” given his “state of
agitation” and lack of judgment, Dr. Seltzer’s addendum and progress
notes do not expand on the brevity set forth in the affidavit regarding
Gary’s mental disorder, persistent or acute disability, or danger to self.

¶18           Dr. Seltzer’s affidavit, addendum, and progress notes do
thoroughly explain, however, Gary’s refusal to cooperate during the
attempted examination. Dr. Seltzer reported that Gary “did not cooperate
with the interview” and instead “hurled verbal profane expletives.” Dr.
Seltzer was unable to discuss treatment options with Gary because Gary
was “unwilling to cooperate with the interview and listen to any
explanation.” Gary “did not allow a discussion of his need for treatment
to take place. He covered his ears and made sounds.” Gary did not want
to make eye contact with Dr. Seltzer and requested that the light in his
room remain off and covered his eyes. Dr. Seltzer noted that “[t]he fact
that he refused to take part in any discussion . . . would lead one to believe
that he is incapable of understanding.” When Dr. Seltzer attempted to
solicit cooperation by explaining that the evaluation was pursuant to a
court order, Gary responded that Dr. Selzter could “stick the report up
[his] a__.” 1

¶19            Based on this record, we conclude that Gary willfully
refused to participate in the examination process. Although some
resistance from patients “can be expected,” a physician need not pursue
examination when it would be futile to do so. In re MH 2009-002120, 225
Ariz. at 288, ¶¶ 11-12, 237 P.3d at 641. “[C]ertain actions by a patient, such
as ‘excessive verbal abuse, physical abuse, repeatedly walking away when
the physicians attempt to discuss the matters or nonresponsiveness may
render further explanation by the physician unnecessary.’” Id. at ¶ 11

1      The social work evaluations of Blanton and Retzer-Greer explained
that Gary was initially hospitalized after threatening to kill police officers
and shoot himself, and has subsequently been charged with aggravated
assault on a police officer, endangerment, and disorderly conduct.
Although attached to his affidavit, Dr. Seltzer did not specifically refer to
the evaluations as part of the basis for his opinions.



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                      IN THE MATTER OF GARY P.
                          Decision of the Court

(quoting In re MH 94-00592, 182 Ariz. at 446, 897 P.2d at 748); see also In re
MH-1140-6-93, 176 Ariz. 565, 863 P.2d 284 (App. 1993) (upholding
involuntary commitment order, although physicians were unable to
explain the advantages and disadvantages of treatment alternatives to the
patient, because mental health officials are not required to “engage in a
confrontation with a mentally ill patient or have the patient physically
restrained” in order to satisfy statutory requirements). The record does
not reflect that Gary requested to see a different physician or that he was
not advised of that right. See In re MH 2009-002120, 225 Ariz. at 289, ¶ 16,
237 P.3d at 642. Therefore, because Gary willfully refused to participate in
the evaluation process with Dr. Selzter, we decline to vacate the treatment
order on the basis that Dr. Selzter’s affidavit was insufficient.

¶20            The superior court’s findings that Gary suffers from a
mental disorder rendering him persistently or acutely disabled and a
danger to himself and others is supported by the record. Dr. Flowers
testified regarding Gary’s inability to make rational decisions and lack of
impulse control, his “delusions” regarding firearms and his paranoia that
he is being widely targeted, and his suicidal and homicidal ideations. 2
Based on the evidence provided at the hearing, we conclude that the court
did not err in finding sufficient grounds for involuntary commitment.

                              CONCLUSION

¶21           Based on the foregoing, we affirm the superior court’s order
of treatment.




                                    :MJT




2      To the extent Gary argues there is insufficient evidence to support
the finding that he is a danger to others, we disagree. Dr. Flowers
specifically testified that Gary suffers from paranoia, homicidal ideations
and delusions regarding firearms and concluded that these conditions
present a substantial threat of harm to the community.



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