                        NOTICE: NOT FOR PUBLICATION.
       UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
          PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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

                            No. 1 CA-MH 14-0042
                               FILED 1-20-2015


           Appeal from the Superior Court in Mohave County
                       No. S8015MH201400022
               The Honorable Lee Frank Jantzen, Judge

                      VACATED AND REMANDED


                                  COUNSEL

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

Mohave County Legal Defender’s Office, Kingman
By Ronald S. Gilleo
Counsel for Appellant
                    IN THE MATTER OF AMANDA G.
                          Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Andrew W. Gould delivered the decision of the Court, in
which Judge Maurice Portley and Judge Jon W. Thompson joined.


G O U L D, Judge:

¶1             Amanda G. appeals the trial court’s finding that she waived
the right to attend her commitment hearing. For the following reasons, we
conclude there was insufficient evidence to support this finding. As a
result, we vacate the order compelling Amanda to undergo involuntary
treatment and remand this matter to the trial court for further proceedings
consistent with this decision.

                FACTS AND PROCEDURAL HISTORY

¶2           A medical doctor and clinical liaison filed a petition for court
ordered evaluation of Amanda. The petition alleged that Amanda was a
danger to self, a danger to others, and persistently or acutely disabled.
After Amanda’s evaluation, her doctor filed a petition seeking compelled
treatment. A hearing was set for May 21, 2014, and Amanda was detained
at the Mohave County Adult Detention Facility pending the hearing.

¶3            Amanda was not present when the hearing commenced.
Because Amanda’s counsel did not speak to her before the hearing, he was
unable to provide an explanation for her absence. As a result, Amanda’s
counsel requested an evidentiary hearing to determine whether, given
Amanda’s mental condition, her absence from the hearing was voluntary.
The court granted the request and held a brief hearing regarding Amanda’s
failure to appear.

¶4            Larry Townsley, the mental health coordinator at the Mohave
County Adult Detention Facility, testified that when the detention officers
attempted to transport Amanda, she refused to come to court. Townsley
noted that it is common for Amanda to refuse to appear at her pending
criminal court proceedings.

¶5          At the conclusion of the evidentiary hearing, the trial court
determined that Amanda had voluntarily waived her right to be present




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                    IN THE MATTER OF AMANDA G.
                          Decision of the Court

and proceeded with the commitment hearing in Amanda’s absence.1 The
court subsequently found that Amanda was persistently or acutely
disabled, a danger to self and others, and was not willing to voluntarily
comply with treatment. The court ordered Amanda to undergo combined
inpatient and outpatient treatment for a period not to exceed 365 days.
Amanda timely appealed.

                               DISCUSSION

¶6          Amanda asserts that there was insufficient evidence showing
that she knowingly and intelligently waived her right to attend the
commitment hearing.

¶7            We review a trial court’s factual findings regarding a patient’s
waiver of her attendance at a commitment hearing for an abuse of
discretion. In re MH 2006-000749, 214 Ariz. 318, 325, ¶ 30, 152 P.3d 1201,
1208 (App. 2007).

¶8            Although a mental health patient has the right to be present
at all hearings, she may waive her right to be present. Ariz. Rev. Stat.
(“A.R.S.”) § 36-539(B) (2014);2 MH 2006-000749, 214 Ariz. at 322, ¶ 20, 152
P.3d at 1205. Given the purpose of commitment proceedings, which is to
determine whether the patient suffers from a serious mental disorder
rendering her “unwilling or incapable of accepting treatment,” the trial
court must “scrutinize carefully any contention that a mentally impaired
person has waived” her right to be present. MH 2006-000749, 214 Ariz. at
323, ¶¶ 24–25, 152 P.3d at 1206. As a result, a patient’s waiver “is not valid
absent an express finding by the court that the patient has knowingly and
intelligently waived her right to be present.” Id., 214 Ariz. at 324, ¶ 27, 152
P.3d at 1207.

¶9             “The finding of voluntary absence, and, therefore, the
existence of a waiver of the right to be present, is basically a question of
fact.” State v. Bishop, 139 Ariz. 567, 569, 679 P.2d 1054, 1056 (1984) (quoting
Brewer v. Raines, 670 F.2d 117, 120 (9th Cir. 1982)). In determining whether


1      When the court overruled defense counsel’s objection, counsel
moved for a continuance, which was denied. Amanda asserts the court’s
denial of the motion to continue was an abuse of discretion. However,
because we remand on the waiver issue, we do not reach this issue on
appeal.
2      We cite the current version of the applicable statutes, unless material
revisions have since occurred.


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                    IN THE MATTER OF AMANDA G.
                          Decision of the Court

a waiver is valid, the trial court must consider the nature and extent of a
patient’s mental disorder and its effect on the patient’s ability to voluntarily
and intelligently waive her right to be present. MH 2006-000749, 214 Ariz.
at 325, ¶ 33, 152 P.3d at 1208. If the patient is not present to explain her
decision, third parties, such as detention officers, may testify as to whether
the patient understood the nature and significance of failing to attend the
proceeding. Id., at 324–25, ¶¶ 29–31, 152 P.3d at 1207–08.

¶10            Here, the trial court was presented with evidence that
Amanda is suffering from a mental disorder that impairs her judgment,
reason, behavior, and capacity to recognize reality. At the commitment
hearing, one of the medical doctors testified that Amanda experiences
audio and visual hallucinations. She also suffers from a psychotic disorder
that impairs and disrupts her thought processes. The doctor testified that
as a result of her mental illness, Amanda lacks the capacity to make
intelligent, informed decisions about her condition and treatment. The
doctor concluded that Amanda is persistently and acutely disabled, a
danger to self, and a danger to others.

¶11            Roberta Gillaspie, a field training officer at the Mohave
County Adult Detention Facility, testified that the detention officers
observed Amanda engaging in disorganized and impulsive behaviors in
the jail. Gillaspie testified that Amanda had a history of being combative
with the detention officers and refusing to appear in court; at times,
Amanda became so aggressive and violent towards the officers she had to
be placed in shackles. The detention officers also observed Amanda
laughing and talking to herself, and appearing to display multiple
personalities.

¶12           There is no evidence in the record before us showing that the
doctors or detention officers discussed with Amanda the nature of the
commitment proceeding, or that she understood the significance of her
failure to attend it. Accordingly, we conclude there was insufficient
evidence to show that Amanda knowingly and intelligently waived her
right to be present at the hearing.




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                  IN THE MATTER OF AMANDA G.
                        Decision of the Court

                            CONCLUSION

¶13         For the foregoing reasons, we vacate the trial court’s order
compelling Amanda to undergo involuntary treatment and remand this
matter to the trial court for further proceedings consistent with this
decision.




                                :ama




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