                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 MH 2013-004303

                            No. 1 CA-MH 16-0028
                                FILED 2-2-2017


           Appeal from the Superior Court in Maricopa County
                         No. MH 2013-004303
               The Honorable Edward W. Bassett, Judge

                                  AFFIRMED


                                   COUNSEL

Steven Wiggs PC, Gilbert
By Steven P. Wiggs
Counsel for Appellee

Maricopa County Legal Defender’s Office, Phoenix
By Anne H. Phillips
Counsel for Appellant



                       MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Chief Judge Michael J. Brown
joined.
                          IN RE MH 2013-004303
                           Decision of the Court


D O W N I E, Judge:

¶1          C.L. (“Appellant”) appeals an order continuing his
involuntary mental health treatment. For the following reasons, we
affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            Appellant was the subject of petitions filed in 2013 for court-
ordered mental health evaluation and treatment. Appellant has been
diagnosed with schizophrenia, and the 2013 petitions alleged he was not
taking prescribed medications and was sending threatening e-mails. In
December 2013, the superior court found Appellant persistently or acutely
disabled and ordered him to participate in combined inpatient and
outpatient treatment for a period not to exceed 365 days.

¶3            In November 2014, Appellant’s outpatient treatment
provider filed an application for continued treatment. The superior court
granted that application, ordering Appellant to participate in mental
health treatment for a period not to exceed an additional year.

¶4             At issue in these proceedings is the treatment provider’s
November 2015 application for continued treatment. That application
alleged that Appellant “continue[s] to display lack of engagement and
lack [of] adherence to treatment, paranoia, grandiose delusions, agitation,
irritability, verbal aggression, and vague threats towards the clinical
team.” The superior court appointed counsel for Appellant, who
requested a hearing on the application for continued treatment pursuant
to A.R.S. § 36-543(G).

¶5           After numerous continuances and unsuccessful attempts to
gain Appellant’s presence, the superior court held an evidentiary hearing
on March 4, 2016 and concluded that Appellant had received notice of the
proceedings and had knowingly and intelligently waived his right to
appear.1 The court continued the hearing on the application for continued



1      While the 2015 application for continued treatment was pending,
the treatment provider petitioned the court to return Appellant to
inpatient treatment, stating, in pertinent part:




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                          Decision of the Court

treatment to March 15, 2016, stating that it would proceed in Appellant’s
absence if he failed to appear on that date.

¶6            Appellant did not appear on March 15, and the hearing
proceeded with his attorney’s participation. At the conclusion of the
hearing, the court issued an order continuing Appellant’s mental health
treatment for a period not to exceed 365 days.

¶7           Appellant timely appealed. We have jurisdiction pursuant
to Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A), -2101(A)(10)
and 36-546.01.

                             DISCUSSION

¶8            Appellant does not deny receiving e-mail notification of the
application for continued treatment and associated court hearings. And
his court-appointed counsel in the superior court conceded that he
personally received appropriate notices, though he could not make



      [Appellant] no showed his COT court hearings on 12/22/15,
      1/5/16, 1/12/16, 1/19/16, 1/26/16 and 2/2/16 despite
      responding to e-mail notices regarding these hearings and
      offered transportation. [Appellant] also no showed his RN
      appointment on 1/5/16 for his injection and continues to
      refuse to engage with the Clinical Team regarding this
      medication. [Appellant] e-mailed the Clinical Team prior to
      this RN appointment stating he was not willing to continue
      to receive his injection though [he] was open to taking oral
      medications. [Appellant] was informed that he would need
      to discuss his medical concerns with the prescriber and
      provided a time on 1/7/16. [Appellant] e-mailed on 1/7/16
      stated that he felt he was clear in his previous e-mail and to
      “finish what you started.” . . . The Clinical Team e-mailed
      [Appellant] regarding his court hearing on 2/2/16 and
      [Appellant] responded with 3 e-mails where he reports
      injustice, denies any mental illness and threatens the Clinical
      Team to “Enforce the laws honestly or I will.” [Appellant]
      was again e-mailed on 2/12/16 indicating his rescheduled
      court date for 3/4/16 and Clinical Team requested a read
      receipt that indicates he accessed the e-mail on 2/12/16.




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                          IN RE MH 2013-004303
                           Decision of the Court

contact with his client.2 Appellant’s position on appeal is that giving him
notice of the proceedings by e-mail violated his due process rights. We
review constitutional claims de novo. In re Estate of Snure, 234 Ariz. 203,
204, ¶ 5 (App. 2014).

¶9           As a threshold matter, we reject Appellant’s suggestion he
should have received notice in the same manner prescribed by A.R.S.
§ 36-536. That statute applies to hearings on initial petitions for court-
ordered treatment and provides, in pertinent part:

      At least seventy-two hours before the court conducts the
      hearing on the petition for court-ordered treatment, a copy
      of the petition, affidavits in support of the petition and the
      notice of the hearing shall be served on the patient, who
      shall be informed of the purpose of the hearing and advised
      of the patient’s right to consult counsel.

A.R.S. § 36-536(A).

¶10           Applications for continued court-ordered treatment are a
continuation of existing mental health proceedings and are governed by
A.R.S. § 36-543. Although that statute specifies numerous procedural and
substantive requirements, it does not address service. A.R.S. § 36-536(A)
demonstrates that the legislature knows how to mandate a specific
manner of service for mental health proceedings when it wishes to do so.

¶11           The question thus becomes whether Appellant was deprived
of due process because he was given notice of the proceedings by e-mail,
rather than by some other form of communication. “The type of notice
that due process requires is that which is reasonably calculated under all
of the circumstances to apprise interested parties of the pendency of the
action and afford them the opportunity to present their objections.”
Comeau v. Ariz. State Bd. of Dental Exam’rs, 196 Ariz. 102, 108, ¶ 28 (App.
1999). In evaluating “the specific dictates of due process,” In re
MH-2008-000867, 225 Ariz. 178, 181 (2010), courts also consider the
following factors:

      First, the private interest that will be affected by the official
      action; second, the risk of an erroneous deprivation of such

2     The record includes e-mails from the clinical team to Appellant
asking him to contact his attorney and providing the lawyer’s e-mail
address and telephone number.



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                           IN RE MH 2013-004303
                            Decision of the Court

       interest through the procedures used, and the probative
       value, if any, of additional or substitute procedural
       safeguards; and finally, the Government’s interest, including
       the function involved and the fiscal and administrative
       burdens that the additional or substitute procedural
       requirement would entail.

Id. (quoting Mathews v. Eldridge, 424 U.S. 319 (1976)).

¶12            At issue here is Appellant’s liberty interest in being free of
government-imposed mental health treatment. See Vitek v. Jones, 445 U.S.
480, 491 (1980) (“We have recognized that for the ordinary citizen,
commitment to a mental hospital produces ‘a massive curtailment of
liberty.’”). In assessing the risk of “an erroneous deprivation” of that
interest “through the procedures used,” it is well-established that due
process “is not a static concept; it must account for ‘the practicalities and
peculiarities of the case.’” Comeau, 196 Ariz. at 107, ¶ 20 (quoting Mullane
v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950)). In other words,
assessing the adequacy of procedural due process is an individualized
inquiry based on the facts and circumstances of a given case. See, e.g.,
Comeau, 196 Ariz. at 107, ¶ 23 (“We hold that the investigative interview in
this case satisfied the requirements of procedural due process.”).

¶13            At the March 4 hearing, the treatment provider’s clinical
director testified that e-mail is Appellant’s preferred mode of
communication and that Appellant advised e-mail is “how he wanted to
communicate.” The record includes numerous e-mail messages from
clinical staff to Appellant with details about the court proceedings and
hearings.      Appellant responded to some of these messages and
maintained the same subject heading as the original message — “NOTICE
OF HEARING” — on at least one such response. The clinical team offered
to arrange transportation to court for Appellant. Even when Appellant
did not respond to a particular message from the clinical team, the sender
received notification that the e-mail had been opened.

¶14           E-mail notification will not be appropriate in all cases,
especially considering the minimal burden entailed in providing notice by
more established means, such as regular mail. Nonetheless, the record in
this case establishes that communicating with Appellant by e-mail was
reasonably calculated to give him notice and an opportunity to be heard.
And as noted supra, Appellant has not claimed he did not in fact receive
the e-mail communications. Taking into account the “practicalities and



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                           IN RE MH 2013-004303
                            Decision of the Court

peculiarities of the case,” Mullane, 339 U.S. at 314, we conclude Appellant
has not established a due process violation.

¶15           Appellant also challenges the superior court’s determination
that he “knowingly and intelligently waived his right to appear.” A party
may waive his or her presence at a hearing conducted pursuant to A.R.S.
§ 36-543(G) if the waiver is knowing and intelligent. See In re MH 2006-
000749, 214 Ariz. 318, 319, ¶ 1 (App. 2007). Whether a party has waived
his or her right to appear is a question of fact. See, e.g., State v. Bishop, 139
Ariz. 567, 569 (1984) (“The finding of voluntary absence, and, therefore,
the existence of a waiver of the right to be present, is basically a question
of fact.”). “We will affirm the trial court’s findings of fact unless they are
clearly erroneous or unsupported by substantial evidence.” In re
MH 2006-000749, 214 Ariz. at 321, ¶ 13.

¶16           The record supports the finding that Appellant had the
capacity to knowingly and intelligently waive his appearance and that he
in fact did so. The clinical director testified that Appellant understands
the current proceedings, that he has no “thought disorder that prevents
him from understanding or being aware of what his rights are,” and that
he is “avoiding these proceedings in order to avoid a continuation of a
court order.” The psychiatrist who evaluated Appellant in connection
with the 2015 application testified that Appellant is “very bright” and
appears “to understand court-ordered treatment fairly well.” In opining
that Appellant’s “understanding is very clear” of matters other than his
own mental illness and need for treatment, the psychiatrist explained:

       [H]is understanding of the reality of what it means to be in
       court-ordered treatment, I think even what it means to be
       here today, or not be here today, I think he would totally
       understand that. I think if I were to say to him, you know,
       the way to not continue court-ordered treatment is to not
       show up, he would totally understand that.

The psychiatrist testified that Appellant was willfully failing to appear in
court “to avoid another court order.”

¶17            Although Appellant presented a psychiatrist who testified
he “has no insight into getting treatment and declining coming here for
the hearing,” that individual did not examine Appellant, and the superior
court found her testimony less credible than that of the other witnesses.
The “credibility of a witness is for the trier-of-fact, not an appellate court.”
State v. Gallagher, 169 Ariz. 202, 203 (App. 1991).



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                         IN RE MH 2013-004303
                          Decision of the Court

¶18           The record supports the determination that Appellant had
the capacity to knowingly and intelligently waive his presence at hearings
regarding the 2015 application for continued treatment and that he in fact
did so.

                             CONCLUSION

¶19          For the foregoing reasons, we affirm the judgment of the
superior court.




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




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