                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 THE MATTER OF PATRICIA E.

                            No. 1 CA-MH 15-0075
                              FILED 3-31-2016


             Appeal from the Superior Court in Yuma County
                        No. S1400MH200900049
                The Honorable John Neff Nelson, Judge

                                  AFFIRMED


                                   COUNSEL


Elizabeth Brown, Attorney at Law, Goodyear
By Elizabeth Brown
Counsel for Appellant

Yuma County Attorney’s Office, Yuma
By Theresa W. Fox
Counsel for Appellee




                       MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Acting Presiding Judge John C. Gemmill and Judge Samuel A. Thumma
joined.
                           IN RE: PATRICIA E.
                           Decision of the Court

D O W N I E, Judge:

¶1           Patricia E. (“Appellant”) appeals an order for involuntary
mental health treatment. For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2             An Application for Emergency Admission was filed on June
23, 2015, alleging that Appellant — who had been subject to court-ordered
treatment since July 2014 — had stopped taking her medication, was
talking to herself, and had become increasingly aggressive toward family
members. See Ariz. Rev. Stat. (“A.R.S.”) § 36-524 (application for
emergency admission for evaluation). A petition for court-ordered
treatment followed. After an evidentiary hearing, the superior court
concluded Appellant was “persistently or acutely disabled and in need of
treatment” and ordered her to undergo “combined inpatient treatment
and outpatient treatment” not to exceed one year in duration.

¶3            Appellant timely appealed. We have jurisdiction pursuant
to A.R.S. §§ 12-2101(A)(10)(a) and 36-546.01.

                              DISCUSSION

¶4            Appellant presents one argument on appeal: that the
treatment order must be vacated because there is no transcript of the
involuntary commitment hearing, and the audio recording system used to
memorialize the hearing failed.1 Appellant contends the lack of a
transcript or a reliable means of creating one “is in violation of Arizona’s
involuntary commitment statute and because the statutory requirements
were not strictly met, the [treatment] order should be reversed.”

1     The appellate record includes a letter from the Yuma County
Superior Court’s Supervising Court Reporter stating:

      I have listened to the FTR [For the Record] recording
      provided to me by the clerk’s office in the above-referenced
      matter and have determined that I cannot produce a
      transcript from the recording. Most of the recording is
      inaudible due to a technical malfunction of unknown origin.
      It is my understanding that counsel have [listened] to the
      recording and arrived at the same conclusion.




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                            IN RE: PATRICIA E.
                            Decision of the Court

¶5             Arizona Revised Statutes § 36-539(E) governs hearings on
petitions for court-ordered treatment and provides:

       A verbatim record of all proceedings under this section shall
       be made by stenographic means by a court reporter if a
       written request for a court reporter is made by any party to
       the proceedings at least twenty-four hours in advance of
       such proceedings. If stenographic means are not requested
       in the manner provided by this subsection, electronic means
       shall be directed by the presiding judge. The stenographic
       notes or electronic tape shall be retained as provided by
       statute.

Appellant does not contend she requested a court reporter, and the
presiding judge did not fail to direct recording by electronic means, as the
statute requires.2

¶6            In Rodriquez v. Williams, the superior court clerk
inadvertently destroyed all trial exhibits after the jury rendered its verdict.
104 Ariz. 280, 281 (1969). The Arizona Supreme Court identified the issue
before it as: “What, then, is a litigant’s remedy when, because of new
evidence or because of a loss of an essential part of the record, his appeal
will not be able to give him justice?” Id. at 282. In civil cases, the court
held:

       The proper procedure . . . is to file in the court in which the
       appeal is pending, a motion to suspend the progress of the
       appeal and to reinstate the trial court’s jurisdiction over the
       case for the limited purpose of reconstructing the record.
       Appellant should attach to his motion, a verified statement
       of facts showing his right to such relief. Among such facts
       would be the cause of the loss of the record, the materiality
       of the lost items, the impossibility of reproducing them, etc.

Id. at 283.

¶7          Appellant did not request a new hearing in the superior
court. Nor did she pursue remedies available to her under Arizona Rule
of Civil Appellate Procedure 11 to recreate the 30-minute evidentiary

2      The minute entry from the commitment hearing states that “a
transcript of the FTR Gold Audio Recording shall be the official record of
this proceeding.”



                                      3
                           IN RE: PATRICIA E.
                           Decision of the Court

hearing in a manner adequate for appellate review. Rule 11(d) states that
“[i]f no transcript of oral proceedings is available, the appellant may
prepare and file a narrative statement of the evidence or proceedings from
the best available source, including the appellant’s recollection.” And
Rule 11(e) permits the parties to “prepare an agreed-upon statement that
contains the evidence or proceedings that are essential to a decision of the
issues presented by the appeal.” Had Appellant unsuccessfully sought a
new hearing or pursued relief under Rule 11 to no avail, our analysis
would differ. But a litigant cannot bypass such potentially curative
measures and instead seek outright reversal of the underlying judgment.
See Rodriquez, 104 Ariz. at 283.

¶8           The cases Appellant cites do not compel a contrary
conclusion and, in any event, are decisions by this Court that cannot limit
or overrule Rodriquez. See State v. Sullivan, 205 Ariz. 285, 288, ¶ 15 (App.
2003) (Court of Appeals is constrained by decisions of Arizona Supreme
Court and may not overrule, modify, or disregard them).

¶9            In re Pima County Mental Health No. MH20130801 dealt with a
psychiatric evaluation that did not comply with substantive statutory
requirements. 237 Ariz. 152, 153, ¶ 1 (App. 2015). In violation of A.R.S. §
36-543(D), the evaluating physician performed only a “chart review” and
did not speak with the patient. See id. at 154, ¶¶ 5–6. Under those
circumstances, we vacated the treatment order because the statutory
requirements had not been “strictly met.” Id. at 155, 157, ¶¶ 13, 26.

¶10           Unlike Pima County, the appellate record we do have in this
case reflects adherence to substantive statutory requirements, and
Appellant does not suggest any deficiency besides the missing recording.
After Appellant’s attending physician petitioned for inpatient evaluation,
two psychiatrists conducted evaluations and submitted affidavits. Both
concluded Appellant was persistently or acutely disabled and, because of
her unwillingness to engage in voluntary psychiatric services, required
court-ordered treatment. Appellant received notice of the commitment
hearing and was represented by counsel. See A.R.S. § 36-536; cf. In re MH
2006-000023, 214 Ariz. 246, 247, ¶ 1 (App. 2007) (commitment order
vacated for lack of timely notice). She stipulated to the affidavits of the
two evaluating psychiatrists, two acquaintance witnesses testified, her
counsel cross-examined witnesses, and she addressed the court. Cf.
Coconino Cty. No. MH 1425, 181 Ariz. 290, 292–93 (1995) (order vacated
because evidence at involuntary commitment hearing did not include
testimony of two evaluating physicians and two or more witnesses
acquainted with patient). The court found by clear and convincing


                                     4
                           IN RE: PATRICIA E.
                           Decision of the Court

evidence that Appellant was persistently or acutely disabled and in need
of continued treatment.

¶11           Appellant’s reliance on In re Jesse M., 217 Ariz. 74 (App.
2007), is similarly unavailing. In Jesse M., we considered the trial court’s
instruction to the court reporter to “not take down” comments by Jesse M.
after he engaged in several outbursts. Id. at 81, ¶ 36. We held that the
court lacked discretion “to disregard the statutory requirement for a
verbatim record.” Id. at 82, ¶ 38. We concluded, though, that the failure
to strictly comply with the statutory requirement was harmless error. Id.
at ¶ 39. We also observed that Jesse M. “did not seek a new trial for any
resulting transcript omission” or suggest on appeal “that the court
reporter omitted one or more statements that were pertinent to some
portion of the proceeding.” Id.

¶12           As in Jesse M., Appellant did not request a new hearing in
the superior court, file other post-hearing motions, or seek to recreate the
relatively brief commitment hearing under Rule 11. Under these
circumstances, we conclude she is not entitled to reversal of the
involuntary treatment order.

                             CONCLUSION

¶13          For the reasons stated, we affirm the judgment of the
superior court.




                                 :ama




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