                               IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE



                        IN RE MH2014-002674



                        No. 1 CA-MH 14-0073
                          FILED 9-3-2015


          Appeal from the Superior Court in Maricopa County
                         No. MH2014-002674
          The Honorable Susan G. White, Judge Pro Tempore

                             AFFIRMED


                              COUNSEL

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

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



                             OPINION

Judge Maurice Portley delivered the Opinion of the Court, in which
Presiding Judge Patricia K. Norris and Judge Patricia A. Orozco joined.
                             IN RE MH2014-002674
                              Opinion of the Court

P O R T L E Y, Judge:

¶1           Appellant, who is deaf, challenges the trial court’s order that
she undergo a combination of inpatient and outpatient treatment at a
mental health treatment facility. She argues that her statutorily defined due
process rights were violated because the court-ordered evaluations were
conducted through written communications despite her request for an
American Sign Language (“ASL”) interpreter. Because a reasonable
attempt was made to secure an ASL interpreter and Appellant effectively
communicated with both evaluating doctors during the evaluations, we
find no due process violation and affirm the court’s order.

               FACTS AND PROCEDURAL BACKGROUND

¶2            After Appellant refused voluntary inpatient treatment to
stabilize her condition, her psychiatrist filed a petition for court-ordered
evaluation in August 2011 alleging that Appellant was persistently or
acutely disabled as a result of a mental disorder. The court granted the
petition and, based on Appellant’s request, also ordered the Court
Interpretation and Translation Services office to provide an ASL interpreter.

¶3            Appellant renewed her request for an ASL interpreter the
next day before she was interviewed by two psychiatrists, Dr. Michael
Hughes, who was on her outpatient treatment team, and Dr. Sead
Hadziahmetovic. The hospital social worker attempted to get an ASL
interpreter, but one was not available during the time the doctors had to
evaluate Appellant. As a result, each doctor interviewed Appellant by
asking her written questions in English and getting her written responses.

¶4             After the evaluations were completed, Dr. Hughes filed a
petition for court-ordered treatment (“COT”) pursuant to Arizona Revised
Statutes (“A.R.S.”) section 36-533,1 and attached the affidavits of the
evaluating doctors. The affidavits reflected that both doctors made
probable diagnoses of “unspecified psychotic disorder” and
“schizophrenia,” and both explained how Appellant was persistently or
acutely disabled and concluded that there was no alternative to involuntary
treatment.

¶5           Appellant filed a motion to dismiss, arguing the hospital
failed to adhere to statutorily defined due process standards by not
providing an ASL interpreter to assist her during the court-ordered


1   We cite the current version of the statute unless otherwise noted.


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                            Opinion of the Court

evaluations. She argued that because the doctors did not use an ASL
interpreter during the interviews, the doctors’ affidavits were legally
insufficient under A.R.S. § 36-501(12)(a)(ii). The trial court considered the
motion during the hearing on the COT petition, where she had the benefit
of an ASL interpreter.

¶6            Dr. Hughes testified that Appellant requested an ASL
interpreter and he passed along the request to the social worker to make the
arrangements. The social worker contacted the interpreter service
provider, but no ASL interpreters were available. As a result, Dr. Hughes
conducted his interview by writing out the questions he wanted Appellant
to answer. He also testified that he was able to read Appellant’s
handwriting, Appellant appeared to understand the written questions, and
her answers were appropriately related to the written questions.2

¶7            After setting a briefing schedule on Appellant’s motion to
dismiss, the court continued the hearing to September 12, 2014. At the
hearing, the court denied Appellant’s motion to dismiss, finding that an
attempt had been made to secure an ASL interpreter, but an ASL interpreter
was not available during the time the psychiatrists had to evaluate
Appellant; and Appellant appeared to be comfortable communicating in
writing, especially since “she has done [so] historically and . . . there were
little to no indications that there were communicational problems or
impediments because she was communicating in writing in English with
both doctors.” Then, based on all of the evidence presented, the court found
that Appellant had a mental disorder and was persistently or acutely
disabled and in need of psychiatric treatment, and ordered her to undergo
combined inpatient and outpatient treatment.

¶8            Appellant filed a timely notice of appeal.          We have
jurisdiction pursuant to A.R.S. §§ 36-546.01 and 12-2101(A)(10)(a).




2  Appellant stipulated to the admissibility of Dr. Hadziahmetovic’s
affidavit because he was unavailable to testify at the hearing. His affidavit
similarly noted: “The patient has bilateral deafness, and the social worker
made attempts to have a sign language interpreter come in to help perform
this psychiatric interview; however, the interpreter was not available until
the next day, and since this affidavit was due today by 1600 hours, I
conducted the interview with the patient writing down the questions and
having her respond to me in the same manner.”


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                            Opinion of the Court

                               DISCUSSION

¶9              We will not disturb an order for treatment unless it is “clearly
erroneous or unsupported by any credible evidence.” In re Mental Health
Case No. MH 94–00592, 182 Ariz. 440, 443, 897 P.2d 742, 745 (App. 1995)
(citing In re Coconino Cty. No. MH 1425, 176 Ariz. 525, 528, 862 P.2d 898, 901
(App. 1993)). In reviewing the record to determine whether the order is
supported by substantial evidence, see Pima County Mental Health Service
Action No. MH–1140–6–93, 176 Ariz. 565, 566, 863 P.2d 284, 285 (App. 1993)
(citing Commitment of an Alleged Mentally Disordered Person MH 91–00558,
175 Ariz. 221, 224, 854 P.2d 1207, 1210 (App. 1993)), “[w]e view the facts in
the light most favorable to sustaining the trial court’s judgment.” Cimarron
Foothills Cmty. Ass’n v. Kippen, 206 Ariz. 455, 457, ¶ 2, 79 P.3d 1214, 1216
(App. 2003) (quoting Sw. Soil Remediation, Inc. v. City of Tucson, 201 Ariz.
438, 440, ¶ 2, 36 P.3d 1208, 1210 (App. 2001)) (internal quotation marks
omitted). We review the application and interpretation of statutes de novo.
In re MH2011-000914, 229 Ariz. 312, 314, ¶ 7, 275 P.3d 611, 613 (App. 2012);
see also In re MH2010-002348, 228 Ariz. 441, 444, ¶ 7, 268 P.3d 392, 395 (App.
2011).

¶10           Appellant argues that her due process rights were violated
because the hospital failed to secure an ASL interpreter to assist during her
interviews with the evaluating psychiatrists.          Relying on A.R.S.
§ 36-501(12)(a)(ii), she contends that because she was not provided an ASL
interpreter, the doctors’ affidavits were legally insufficient and the trial
court’s involuntary treatment order must be vacated. We disagree.

¶11            Due process requires courts to adhere strictly to statutes
pertaining to court-ordered treatment. In re MH 2007–001264, 218 Ariz. 538,
539, ¶ 6, 189 P.3d 1111, 1112 (App. 2008); see also A.R.S. §§ 36–501 to -550.08;
In re Pinal Cty. Mental Health No. MH-201000029, 225 Ariz. 500, 501, ¶ 5, 240
P.3d 1262, 1263 (App. 2010) (stating that a lack of strict compliance makes
the proceedings void).

¶12           The statutory framework provides that a petition for
involuntary treatment “shall be accompanied by the affidavits of the two
physicians who participated in the evaluation,” A.R.S. § 36-533(B), and that
“every reasonable attempt shall be made to conduct the evaluation in any
language preferred by the person,” A.R.S. § 36-501(12)(a)(ii). The plain
language of the statute does not mandate that the court-ordered evaluations
be conducted with an ASL interpreter if requested by a deaf patient. Id.
Instead, § 36-501(12)(a)(ii) requires that “every reasonable attempt” be




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                            Opinion of the Court

made to acquire an interpreter to assist the patient in order to ensure that
the patient and doctors can communicate during the evaluations.

¶13            Section 36-501(12)(a)(ii) does not, however, define “every
reasonable attempt.” As a result, we look to the ordinary meaning of the
words. See A.R.S. § 1–213; HCZ Constr., Inc. v. First Franklin Fin. Corp., 199
Ariz. 361, 364, ¶ 10, 18 P.3d 155, 158 (App. 2001) (“Words are given their
ordinary meaning unless the context of the statute requires otherwise.”)
(citation omitted). “Reasonable” is defined to include “[g]overned by or in
accordance with reason or sound thinking . . . [w]ithin the bounds of
common sense . . . fair.” Webster’s II New College Dictionary (1995); see
also Black’s Law Dictionary (10th ed. 2014) (defining “reasonable” as “[f]air,
proper, or moderate under the circumstances”). And, “attempt” is defined
as including “[t]o try to do, make, or achieve.” Webster’s II New College
Dictionary (1995). Consequently, the determination of “every reasonable
attempt” will be an ad hoc determination based on specific facts, as well as
the patient’s ability to communicate with or without an interpreter in the
patient’s preferred language.

¶14            The doctors had, by statute, “less than seventy-two hours” to
evaluate Appellant and submit their reports after learning that the court
had ordered her evaluation. A.R.S. § 36-530(B). And like the other
requirements for involuntary treatment proceedings, it is one that requires
strict compliance. See In re MH 2008-000438, 220 Ariz. 277, 279, ¶ 7, 205 P.3d
1124, 1126 (App. 2009). Here, the court heard that the doctors attempted to
secure an ASL interpreter for Appellant before their interviews with her
and when they learned that one was not readily available, and would not
be in the time they had to conduct their evaluations, they communicated
with Appellant in writing. In fact, Dr. Hadziahmetovic stated in his
stipulated affidavit that the interpreter was not available and would not be
by 4:00 p.m. (1600 hours), the time he had to submit his evaluation. And
because the doctors, like Appellant’s treatment coordinator and others,
were able to communicate with Appellant in writing, the court did not err
by finding the doctors made a reasonable effort to secure an ASL interpreter
and denying Appellant’s motion to dismiss.

¶15            Moreover, there was no evidence indicating that there was a
more reasonable option available or that further efforts to secure an ASL
interpreter from another source would have been successful. And although
communicating in writing was not Appellant’s preferred method of
communication, she does not complain about, and the record does not
show, any communication problems or impediments during the
evaluations.


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¶16           Appellant also argues that the Americans with Disabilities
Act (“ADA”) and federal case law support her argument. The ADA
provides that “no qualified individual with a disability shall, by reason of
such disability, be excluded from participation in or be denied the benefits
of the services, programs, or activities of a public entity, or be subjected to
discrimination by any such entity.” 42 U.S.C. § 12132 (1990). The regulation
implementing the ADA states that:

       Although in some circumstances a notepad and written
       materials may be sufficient to permit effective
       communication, in other circumstances they may not be
       sufficient. For example, a qualified interpreter may be
       necessary when the information being communicated is
       complex, or is exchanged for a lengthy period of time.
       Generally, factors to be considered in determining whether an
       interpreter is required include the context in which the
       communication is taking place, the number of people
       involved, and the importance of the communication.

28 C.F.R. Pt. 35, App. B § 35.160 (2011). Consequently, based on the plain
language of the ADA and the implementing regulations, the ADA does not
mandate that a deaf patient have an ASL interpreter for an evaluation when
one is not available in the short time required for the evaluation and the
patient is able to effectively communicate in writing.

¶17            Appellant also relies on Randolph v. Rodgers, 170 F.3d 850 (8th
Cir. 1999) and Tucker v. Tennessee, 539 F.3d 526 (6th Cir. 2008) to support her
argument. In Randolph, a deaf inmate secured a permanent injunction in
federal district court arguing that the Missouri Department of Corrections
had violated Missouri Statute § 476.753(1)(4) by failing to provide him with
an ASL interpreter during disciplinary proceedings. 170 F.3d at 854-55. On
appeal, the circuit court vacated the injunction on other grounds, and in
doing so noted that the plain language of the Missouri statute required that
“a designated responsible authority shall provide” a qualified interpreter at
certain proceedings. Id. at 859 (emphasis added). Here, and unlike the
mandatory language of the Missouri statute that the responsible authority
“shall provide,” the Arizona statute only requires that “every reasonable
attempt” be made to provide an interpreter. Compare A.R.S. § 36-
501(12)(a)(ii) with Mo. Stat. § 476.753(1)(4). Consequently, Randolph does
not inform our analysis in this appeal.

¶18           In Tucker, the police responded to a domestic dispute and
after learning that the family members suffered from hearing and speech


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                            Opinion of the Court

impediments, communicated in writing. 539 F.3d at 528. The police
arrested a number of family members for assault, disorderly conduct and
resisting arrest. Id. at 528-29. The arrestees, and their deaf mother,
subsequently sued the city and county for civil rights violations, alleging in
part that the city’s failure to provide an interpreter when the police
responded to the domestic disturbance call, as well as during their arrest,
post-arrest detention, initial appeal and dispositional hearing violated the
ADA. Id. at 530. The federal district court granted summary judgment for
the city and county, and the Sixth Circuit affirmed after finding there was
no intentional discrimination and that the police officers were able to
communicate effectively with all parties in writing. Id. at 535-36.
Consequently, in looking at the evidence, the court found that even if an
ASL interpreter had been requested for certain court hearings, the
individuals properly proceeded without one, and affirmed the summary
judgment. Id. at 540-42.

¶19            Here, like the litigants in Randolph and Tucker, Appellant
communicated with the psychiatrists in writing after reasonable efforts to
locate an ASL interpreter proved unsuccessful. Therefore, based on the
record, the trial court did not err by denying Appellant’s motion to dismiss
for violating her due process rights.

                              CONCLUSION

¶20           For the foregoing reasons, we affirm the court’s order.




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