                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 MH2015-000579


                            No. 1 CA-MH 15-0045
                              FILED 1-12-2016


           Appeal from the Superior Court in Maricopa County
                          No. MH2015-000579
            The Honorable Susan G. White, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Gerald G., Phoenix
Appellant

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


                       MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Peter B. Swann joined.
                          IN RE MH2015-000579
                           Decision of the Court

J O N E S, Judge:


¶1           Appellant appeals the superior court’s order finding him not
indigent and committing him to combined inpatient and outpatient
treatment. For the following reasons, we affirm.

                FACTS1 AND PROCEDURAL HISTORY

¶2            Appellant was arrested in February 2015 by the Scottsdale
Police Department (the Department) after it received a call from a law firm
reporting Appellant had sent multiple threatening emails to its employees.
A crisis intervention specialist with the Department evaluated Appellant
and, believing him to be a danger to others, completed an application for
involuntary evaluation pursuant to Arizona Revised Statutes (A.R.S.)
section 36-520(A),2 and an application for emergency admission for
evaluation pursuant to A.R.S. § 36-524. On February 17, 2015, Dr. John Lee
filed a petition for court-ordered evaluation with the superior court
pursuant to A.R.S. § 36-523, and the court issued a “detention order for
evaluation and notice” on February 18, 2015. On February 20, 2015,
following Appellant’s evaluation, Dr. Gretchen Alexander filed a petition
for court-ordered treatment pursuant to A.R.S. § 36-533 alleging Appellant
posed a danger to others and was persistently or acutely disabled; the
petition sought an order for combined inpatient and outpatient treatment
pursuant to A.R.S. § 36-540(A)(2).

¶3            The Maricopa County Public Advocate filed a “Motion for
Determination of Counsel” alleging Appellant was not indigent and wished
to “represent himself, pro per, in this matter.” The motion asserted
Appellant claimed to have “the necessary background and expertise to
represent himself” and “adequate resources to compensate private counsel
for representation in the pending mental health matter.” The court ordered
the Public Advocate to remain as counsel, and an evidentiary hearing on




1       We view the facts in the light most favorable to sustaining the
superior court’s judgment and, absent clear error, will not set aside its
related findings. In re MH 2008-002596, 223 Ariz. 32, 35, ¶ 12 (App. 2009)
(citing In re MH 94-00592, 182 Ariz. 440, 443 (App. 1995)).

2     Absent material revisions from the relevant date, we cite a statute’s
current version.

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                           Decision of the Court

the petition for court-ordered treatment was held on February 27, 2015, five
business days after the petition was filed.

¶4            At the hearing, Appellant requested to represent himself, and
the court denied his request. After Petitioner rested its case, the court was
addressed by the Public Advocate, but ultimately “advised that [Appellant]
is requesting to no longer be represented by Counsel and does not wish to
defend his case.” Appellant rested, and the court found by clear and
convincing evidence Appellant suffered from a mental disorder, was
persistently or acutely disabled, was in need of treatment, and was either
unwilling or unable to accept voluntary treatment. The court dismissed the
allegation that Appellant was a danger to others and found Appellant not
indigent for purposes of A.R.S. § 11-584(A). The court further ordered
Appellant submit to a maximum of 365 days of combined inpatient and
outpatient treatment with a maximum of 180 days of inpatient treatment.
Appellant timely appealed, and we have jurisdiction pursuant to A.R.S.
§§ 12-120.21(A)(1), -2101(A)(10)(a), and 36-546.01.

                              DISCUSSION

¶5             Appellant argues the superior court erred in finding him not
indigent and in ordering a combination of inpatient and outpatient
treatment. Inasmuch as these issues present questions of law, we review
them de novo. See In re MH 2012-002480, 232 Ariz. 421, 422, ¶ 5 (App. 2013)
(citing In re MH 2006-000749, 214 Ariz. 318, 321, ¶ 13 (App. 2007)).

I.    Finding of Indigence

¶6            Appellant argues he has no funds and the superior court
erred in finding him not indigent. As relevant here, a public defender shall
be appointed where an individual is “entitled to counsel as a matter of law
and . . . not financially able to employ counsel in . . . [m]ental disorder
hearings only if appointed by the court under title 36, chapter 5.” A.R.S.
§ 11-584(A)(3).

¶7            Here, a public defender was appointed to assist Appellant,
and did assist Appellant, before and throughout the hearing, despite
Appellant’s numerous attempts to waive the appointment. However,
Appellant did not make a transcript of the hearing part of the record. See
ARCAP 11(c)(1)(A) (requiring the appellant to “order transcripts of
superior court proceedings not already in the official record that the
appellant deems necessary for proper consideration of the issues on
appeal”). In the absence of a hearing transcript, we assume the superior
court’s findings and conclusions are supported by the record. See Romero v.


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                             Decision of the Court

Sw. Ambulance, 211 Ariz. 200, 203, ¶ 4 (App. 2005) (citing State ex. rel Dep’t
of Econ. Sec. v. Burton, 205 Ariz. 27, 30, ¶ 16 (App. 2003); Bolm v. Custodian of
Records, 193 Ariz. 35, 41-42, ¶ 19 (App. 1998); and Baker v. Baker, 183 Ariz.
70, 73 (App. 1995)). Appellant’s unsupported argument that the superior
court erred is insufficient to overcome that presumption.

II.    Request for Counsel

¶8            Appellant also argues he cannot effectively represent himself
because he “[s]uffers from symptoms of Mild Cognitive Impairment, and is
being evaluated for a designation of early onset dementia.”3 But, Arizona’s
public defender statute only permits appointment of appellate counsel if
the appellant is “entitled to counsel as a matter of law and . . . is not
financially able to employ counsel.” A.R.S. § 11-584(A)(7). Because the
superior court found Appellant not indigent, he is not entitled to a public
defender on appeal. See id. Furthermore, Appellant has not shown that his
condition precludes effective self-representation on appeal, let alone that
such a showing would, alone, justify the appointment of counsel. See A.R.S.
§ 11-584(A)(3). Therefore, we find no error.4



3      Because Appellant was represented by counsel throughout the
superior court proceedings, his only apparent remedy is the appointment
of counsel on appeal. However, Appellant has not cited any legal authority
or mechanism by which this Court could provide such relief, and we find
none.

4      We recognize civil commitment proceedings “differ from criminal
proceedings” and “should not be constitutionally ‘equated to a criminal
prosecution’ because the state is not acting in a punitive manner.” In re MH
2008-000867, 225 Ariz. 178, 180-81, ¶ 8 (2010) (quoting Addington v. Texas,
441 U.S. 418, 428 (1979)). However, we note our concern with the
incongruity our necessary finding presents in light of precedent stating,
“involuntary treatment by court order constitutes ‘a serious deprivation of
liberty,’ . . . accord[ing a proposed patient] due process protection,
including a full and fair adversarial proceeding.’” Pima Cnty. Mental Health
No. MH 3079-4-11, 228 Ariz. 341, 342, ¶ 5 (App. 2011) (quoting MH 2006-
000749, 214 Ariz. at 321, ¶ 14); accord Vitek v. Jones, 445 U.S. 480, 491 (1980)
(noting a court-ordered “commitment to a mental hospital produces ‘a
massive curtailment of liberty’”) (quoting Humphrey v. Cady, 405 U.S. 504,
509 (1972)). An irreconcilable tension appears to exist in the law where, as
here, the superior court makes a finding — of which we find no legal error



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                             Decision of the Court

III.   Court-Ordered Treatment

¶9            Appellant argues the superior court erred in ordering he
submit to psychiatric treatment because the statutory requirements were
not met, his “pre-court hold period” violated state and federal law, and he
was not allowed to fully defend the action. The record does not support
these assertions.

       A.     The Superior Court’s Order is Supported by the Requisite
              Findings.

¶10            Arizona’s statutory requirements must be strictly followed in
an involuntary treatment proceeding given that the result may seriously
deprive Appellant of his liberty interests. See MH 2008-002596, 223 Ariz. at
35, ¶ 12 (citations omitted). From our review, the superior court properly
concluded the statutory requirements were met, and the order was
supported by sufficient evidence.

¶11           As relevant here, A.R.S. § 36-540(A)(2) provides:

       If the court finds by clear and convincing evidence that the
       proposed patient, as a result of mental disorder, is a danger
       to self, is a danger to others, has a persistent or acute disability
       or a grave disability and [is] in need of treatment, and is either
       unwilling or unable to accept voluntary treatment, the court
       shall order the patient to undergo . . . [t]reatment in a program
       consisting of combined inpatient and outpatient treatment.

“Persistent or acute disability” is a severe mental disorder meeting the
following criteria:

       (a) If not treated has a substantial probability of causing the
           person to suffer or continue to suffer severe and abnormal

— that an individual is not indigent, and therefore either responsible for
obtaining counsel on appeal or representing himself, despite the court’s
additional finding that the individual suffers from a mental disorder of
sufficient magnitude to warrant court-ordered treatment. Under these
circumstances, the court’s findings are likely to be affirmed on appeal,
given the deferential standard of review, with the practical effect that the
individual, who is arguably unable to obtain counsel or represent himself
as a result of a mental impairment, would be subject to a serious liberty
deprivation without the benefit of counsel to intelligibly challenge the
legitimacy of those findings.

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                            Decision of the Court

          mental, emotional or physical harm that significantly
          impairs judgment, reason, behavior or capacity to
          recognize reality.

       (b) Substantially impairs the person’s capacity to make an
           informed decision regarding treatment, and this
           impairment causes the person to be incapable of
           understanding and expressing an understanding of the
           advantages and disadvantages of accepting treatment and
           understanding and expressing an understanding of the
           alternatives to the particular treatment offered after the
           advantages, disadvantages and alternatives are explained
           to that person.

       (c) Has a reasonable prospect of being treatable by outpatient,
           inpatient or combined inpatient and outpatient treatment.

A.R.S. § 36-501(31). Contrary to Appellant’s concerns, the relevant statutes
do not require the superior court to find Appellant’s treatment is required
for public safety. See id.; A.R.S. § 36-540(A)(2); cf. MH 94-00592, 182 Ariz. at
443-45 (holding that a court may find an individual has a persistent and
acute disability, even without evidence of an overt act or current behavior
demonstrating that disability, so long as other clear and convincing
evidence of the disability is presented) (citing In re MH 90-00566, 173 Ariz.
177, 184 (App. 1992)).

¶12            Additionally, although the superior court dismissed the
allegation that Appellant was a danger to others, it found by clear and
convincing evidence that, as a result of a mental disorder, Appellant has a
persistent or acute disability in need of treatment and is unwilling or unable
to accept voluntary treatment. Without a transcript of the hearing in which
the court heard testimony supporting its findings, we assume its findings
are supported by the record. See supra ¶ 7. These findings were sufficient
for the court to order involuntary treatment under A.R.S. § 36-540(A). See
MH 94-00592, 182 Ariz. at 445 (noting an order for involuntary treatment
may be upheld where the court has clear and convincing evidence that the
defendant is persistently or acutely disabled and is either unwilling or
unable to accept voluntary treatment). We find no error.




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                            Decision of the Court

       B.     Appellant’s Detention Period Did Not Violate State or
              Federal Law.

¶13            The record reflects Appellant was detained on February 18,
2015 after a petition for evaluation was filed pursuant to A.R.S. § 36-529(B).
This statute states:

       If, from review of the petition for evaluation, there is
       reasonable cause to believe that the proposed patient is, as a
       result of a mental disorder, a danger to self or others, has a
       persistent or acute disability or a grave disability and that the
       person requires immediate or continued hospitalization prior
       to his hearing on court-ordered treatment, the court shall
       order the proposed patient taken into custody and evaluated
       at an evaluation agency.

Appellant was evaluated, and a petition for court-ordered treatment was
filed on February 20, 2015. Pursuant to A.R.S. § 36-535(B), the court must
“order the hearing to be held within six business days after the petition is
filed, except that, on good cause shown, the court may continue the hearing
at the request of either party.” There was no continuance, and the hearing
was held on February 25, 2015, five business days after the petition for
court-ordered treatment was filed. Therefore, the length of Appellant’s
detention does not violate Arizona law.

¶14            Appellant fails to cite any federal law governing time
limitations for detention following an order for evaluation and, by failing
to do so, waives any claim that his detention violated federal law. See
Ritchie v. Krasner, 221 Ariz. 288, 305, ¶ 62 (App. 2009) (noting ARCAP
13(a)(6) “requires the appellant to provide ‘citations to the authorities,
statutes and parts of the record relied on’” and “[f]ailure to do so can
constitute abandonment and waiver of that claim”) (citing State v. Moody,
208 Ariz. 424, 452 n.9, ¶ 101 (2004)). We therefore find no error in the period
of Appellant’s detention.

       C.     The Petition for Court-Ordered Treatment was Properly
              Filed, and Appellant was Allowed to Fully Defend the
              Action.

¶15           Appellant contends the court-ordered treatment process was
“seriously flawed” because the petition for court-ordered treatment was
improperly filed and he was not allowed to put on an adequate defense.
Appellee argues Appellant waived these claims by not raising them before
the superior court. It is worth repeating that Appellant was represented by


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                           Decision of the Court

counsel throughout the superior court proceeding during which this
alleged impropriety would have occurred.            Beyond that, we are
unpersuaded by Appellant’s arguments because, as stated above, in the
absence of a hearing transcript, we assume the court’s findings and
conclusions are supported by the record, see supra ¶ 7, including those
asserting the petition was properly filed and Appellant was permitted a
sufficient opportunity to defend the action. On this basis, we find no error.

                              CONCLUSION

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




                                 :ama




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