                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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: MH2018-006681


                            No. 1 CA-MH 18-0080
                              FILED 9-12-2019


          Appeal from the Superior Court in Maricopa County
                         No. MH2018-006681
        The Honorable Amy Michelle Kalman, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

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

Maricopa County Legal Defender’s Office, Phoenix
By Anne H. Phillips
Counsel for Appellant
                          IN RE: MH2018-006681
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Michael J. Brown joined.


W I N T H R O P, Judge:

¶1            Appellant appeals a superior court order for involuntary
mental health treatment. Appellant argues the order should be vacated
because the court violated his due process rights by failing to make a
finding on the record that he knowingly and voluntarily waived his right
to be present at a hearing for an involuntary evaluation pursuant to Arizona
Revised Statutes (“A.R.S.”) section 36-529(D). For the following reasons,
we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            Appellant has a history of mental health issues and has
previously undergone court-ordered treatment at least five times. In late
2018, Appellant was undergoing an outpatient session of on-going court-
ordered treatment. He told various clinical staff that he did not have a
mental illness and he intended to stop taking his medication and engaging
with the clinical staff once his current court order expired. Prompted by
this information, the clinical staff filed an application for involuntary
evaluation and a petition for a court-ordered evaluation pursuant to A.R.S.
§ 36-523. The petition alleged Appellant refused to consistently take his
medication and had displayed odd behavior, such as buying feminine
products and defecating in the bathtub. A signed detention order for
evaluation and notice was sent to Appellant on October 25, 2018, and he
was involuntarily hospitalized for evaluation on October 26.

¶3            Appellant requested a hearing to determine whether he
should continue to be involuntarily hospitalized pending the psychiatric
evaluation pursuant to A.R.S. § 36-529(D). The superior court scheduled a
hearing for October 30, 2018. Counsel was appointed for Appellant, and he
received notice of the scheduled hearing. Appellant was not present at that
hearing, and his attorney asked the court to waive his presence. Appellant’s
attorney cross-examined the witness called by the State and offered
argument on Appellant’s behalf. At no time during the hearing did
Appellant’s counsel explain why Appellant was not at the hearing.


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                           IN RE: MH2018-006681
                            Decision of the Court

¶4             At conclusion of the hearing, the court ordered that Appellant
continue to be detained pending the psychiatric evaluation. The State then
filed a petition for court-ordered treatment. On November 2, the court
issued a detention order for treatment and notice to Appellant, pending a
hearing on the petition for court-ordered treatment. On November 5, the
court held a hearing and found Appellant to be persistently or acutely
disabled, then ordered Appellant to undergo court-ordered treatment.

¶5         Appellant filed a timely notice of appeal from the treatment
order. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and
36-546.01.

                                 ANALYSIS

¶6            Appellant argues the court violated his due process rights by
failing to make a finding on the record that he knowingly and voluntarily
waived his right to be present at the October 30 involuntary evaluation
hearing.

¶7            Appellant raises an issue in this appeal that was not argued
before the superior court. Even so, Appellant asserts we should reach the
merits because the issue is about statutory interpretation affecting a
constitutional right. This court generally does not consider arguments
raised for the first time on appeal except under exceptional circumstances.
In re MH 2008-002659, 224 Ariz. 25, 27, ¶ 9 (App. 2010).

¶8            This case does not constitute an exceptional circumstance.
There is no indication Appellant was prejudiced by the court accepting
counsel’s waiver of his presence at the October 30 hearing. The October 30
hearing was only conducted because of Appellant’s request, and regardless
whether the court found the seventy-two-hour detention during the
evaluation necessary, Appellant was still required to go through the
statutory involuntary evaluation process.1

¶9            Moreover, even assuming arguendo that Appellant’s claim on
appeal was not waived, he still has not made a cognizable argument for
relief. Appellant argues he had no notice of the hearing, but a review of the

1      The court found reasonable cause to believe Appellant was, as a
result of a mental disorder, persistently or acutely disabled. See A.R.S. § 36-
529(A) (requiring the court to determine whether “there is reasonable cause
to believe that the proposed patient is, as a result of a mental disorder, a
danger to self or others or has a persistent or acute disability or a grave
disability”).


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                           IN RE: MH2018-006681
                            Decision of the Court

record confirms that, through counsel, Appellant was given notice of the
time and place of the October 30 hearing. Appellant does not dispute that
an attorney was properly appointed to represent his interests at the
evaluation hearing. General due process principles require a person be
given an opportunity to be heard, and in other contexts, representation by
counsel satisfies that requirement. See Brenda D. v. Dep’t of Child Safety, 243
Ariz. 437, 446, ¶ 30 (2018) (holding that due process principles are satisfied
when an absent parent’s counsel has an opportunity to fully participate in
a termination adjudication hearing on the parent’s behalf (citing Bob H. v.
Ariz. Dep’t of Econ. Sec., 225 Ariz. 279, 283, ¶¶ 14-16 (App. 2010))). Appellant
does not assert that he wanted to testify at the hearing or that his counsel
inadequately represented his interests at the hearing, and we find no
prejudice in our review.

¶10            Further, Appellant relies on cases interpreting § 36-539, which
governs hearings for court-ordered treatment detention.2 However,
Appellant was present for that hearing on November 5. He was not present
at the October 30 hearing for the involuntary evaluation detention, which is
governed by § 36-529(D). Appellant asserts we should read into § 36-529(D)
the same requirements as found in § 36-539. But the seventy-two-hour
hospitalization for the involuntary evaluation under § 36-529 does not
amount to the same deprivation as the court-ordered treatment. The court
must only find “reasonable cause” that an involuntary evaluation is
necessary. A.R.S. § 36-529(A). In contrast, under § 36-539, the court must
find clear and convincing evidence that court-ordered treatment is
necessary, and the deprivation of liberty for such court-ordered treatment
is generally many months and can last up to a year. See A.R.S. § 36-540(A),
(F). Additionally, the hearing under § 36-529(D) is optional and is only
conducted at the request of the patient. In contrast, the hearing on the
court-ordered treatment is mandatory and a court may not detain a patient
without conducting it. See A.R.S. §§ 36-539, -540(A). Therefore, we are not
persuaded by Appellant’s argument to read a requirement into § 36-529(D)
that the legislature clearly chose to omit.




2       In reference to the court-ordered treatment hearing, § 36-539(C)
states, “If the patient, for medical or psychiatric reasons, is unable to be
present at the hearing and cannot appear by other reasonably feasible
means, the court shall require clear and convincing evidence that the
patient is unable to be present at the hearing and on such a finding may
proceed with the hearing in the patient’s absence.”


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                  IN RE: MH2018-006681
                   Decision of the Court

                      CONCLUSION

¶11   For the foregoing reasons, we affirm.




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




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