                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
               ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                            IN RE MH2013-001793


                            No. 1 CA-MH 13-0045
                             FILED 03/11/2014


           Appeal from the Superior Court in Maricopa County
                          No. MH2013-001793
            The Honorable Susan G. White, 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



                       MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Michael J. Brown joined.


D O W N I E, Judge:
                           IN RE MH2013-001793
                            Decision of the Court

¶1          J.M. appeals from an order requiring him to undergo
involuntary mental health treatment. For the following reasons, we
affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2           J.M. was hit by a car, resulting in paraplegia. While
hospitalized, J.M. refused medical treatment, which exacerbated his
condition and resulted in serious complications, including infections,
stage four skin ulcers, pneumonia, and osteomyelitis. J.M. also refused
medications.

¶3            J.M. was diagnosed with paranoid schizophrenia and
displayed delusional thought processes and disorganized thinking. He
believed doctors “were trying to poison him, get him addicted to heroin.”
J.M. talked about “robots that he saw in a movie that may be real, people
who live in tunnels that he has visited and . . . ‘signs’ on the walls marking
their presence.” He believed family members were involved in his
accident because they wanted a piece of his leg. J.M. refused psychotropic
medications and voluntary psychiatric treatment. His medical condition
prevented moving him to a psychiatric facility.

¶4           A hospital psychiatrist deemed J.M. incapable of making
medical decisions. J.M.’s mother was appointed as a surrogate decision-
maker. She, however, deferred to her son’s decisions regarding medical
care.

¶5            A Petition for Court-Ordered Evaluation was filed, and the
court issued a standard order requiring J.M. to be evaluated at the
Maricopa Medical Center Desert Vista Campus. J.M., though, was
confined to his hospital bed, so Doctors Kingsley and Fife evaluated him
at the hospital. J.M. refused to “cap” his tracheostomy tube and speak to
Dr. Kingsley; he instead communicated via “terse” notes. However, J.M.
communicated with Dr. Fife orally and through notes. Both doctors
concluded that J.M. was persistently or acutely disabled and that he
suffered from a mental disorder.

¶6           A Petition for Court-Ordered Treatment was filed, and J.M.
was ordered to appear at the Maricopa Medical Center Desert Vista
Campus for a hearing. Petitioner’s counsel advised the court that J.M.
could not be transported for the hearing and that his medical condition




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                            Decision of the Court

was becoming “graver with the passage of time.” 1 Petitioner’s counsel
requested that J.M. appear telephonically. J.M.’s attorney objected and
asked the court to go to J.M.’s hospital room to conduct the hearing.

¶7             In discussing how to proceed, the court inquired whether
an immediate treatment order was necessary. Counsel for petitioner
responded that J.M. was “in very poor health, has severe bedsores, stage 3
and 4 where the sore goes to the bone, and he’s refusing treatment,
psychiatric treatment. . . . So his physical health is declining rapidly.” The
court then engaged in the following colloquy with J.M.’s attorney:

       THE COURT: . . . [T]his gets into a sticky area. You know,
       number one, in order to know for sure whether we can
       conduct the hearing there we have to know from the
       administration at that hospital, because it’s not an MIHS
       hospital, whether there’s any objection to the Court
       conducting proceedings there. I don’t know, is he in a room
       by himself?

       [COUNSEL]: He is by . . . himself. And when I spoke to [the
       hospital social worker], she said if we needed to hear from
       his physician or anybody else in administration, she would
       make sure that would happen.

       ....

       And I would disagree with [petitioner’s counsel]. I think the
       law is very clear. It doesn’t say if we can go there, it’s or can
       we go there.

       THE COURT: Well, but that --

       [COUNSEL]: Regardless of whether we want to or not.

       THE COURT:          Right.   And I understand that, but
       theoretically . . . I can go anywhere in the county, but
       practically speaking, this Court is not able to do that. With
       the calendars we have at this time, this Court can barely get
       through the hearing schedule --

1     J.M.’s counsel confirmed that her client could not leave his hospital
bed “even for five minutes” and could not be transported because his bed
was too heavy and required a generator.



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                         IN RE MH2013-001793
                          Decision of the Court

      ....

      [COUNSEL]: And I – I understand and respect that. . . .
      When I last spoke with my client, he did want to be present.
      And the issue becomes also my effective representation of
      him, because if I’m here, he’s on a trach and has to write
      everything.

      THE COURT: Right.

      [COUNSEL]: If I’m there, how can I effectively cross? . . . I
      understand the Court’s booked. Just -- and I -- when I did
      speak to the nurses there, he is taking the antibiotics because
      they put it in his IV. It’s any oral meds that he has to get
      permission for.

      ....

      THE COURT: . . . . And is he in any way contagious?

      [COUNSEL]: He’s on contact precautions. So as long as we
      gown up and wear gloves, we’re fine. And that’s as long as
      we don’t touch him. That was as of a week ago. I’ve done it
      at the annex before. He’s no longer airborne contact
      precautions, so we don’t have to wear a mask or anything.

¶8           The court declined to conduct the hearing in J.M.’s hospital
room, stating:

      I do understand the predicaments, but under the
      circumstances the Court does not feel it’s able to go out there
      to conduct this hearing. Even if there’s, you know, currently
      a potential that he’s contagious, it’s a public safety issue. I
      can’t be requiring the witnesses to go out there. It’s just not
      safe for people.

      And aside from that, the secondary issue is that the calendar
      is just completely booked, and time wise the Court doesn’t
      believe that it would be able to accommodate that type of
      hearing.

      So we will conduct the hearing telephonically. I know that
      leaves you in an awkward position, you have to decide




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                          IN RE MH2013-001793
                           Decision of the Court

      whether to be there or be here. And you can certainly make
      your record as you need to.

¶9            At the outset of the hearing, J.M.’s counsel asked the court to
reconsider its refusal to travel to the hospital. The court responded:

      The Court still finds that there are public health and safety
      concerns. The Court did review in the doctor’s affidavits the
      client also suffers from MRSA [staph infection]. Apparently
      he has open wounds on his body that are very severe. He is
      under contact precaution. The notion of the Court bringing
      a judge, attorneys, and at least five witnesses over to the
      patient’s room does not, to this Court, seem to be a feasible
      alternative. And the Court finds that pursuant to the statute
      of -– public safety, public health issues override.

      And the Court also does mention that [the] Court does have
      some powers regarding the administration of justice to make
      decisions that are appropriate. This is one of those cases. It
      is a rare type situation, but considering the totality of the
      circumstances, the Court does not believe that the Court
      attempting to conduct a hearing at [J.M.’s] bedside would be
      an appropriate resolution.

¶10          The hearing commenced. A hospital social worker contacted
the court from a telephone in J.M.’s hospital room. J.M. orally confirmed
that he was able to hear the proceedings and identified himself by name
and birth date. The court advised J.M. to let it know in the event he could
not hear what was happening in the courtroom; J.M. responded that he
would do so. The social worker remained in J.M.’s room throughout the
hearing, and the court checked periodically to confirm that J.M. was still
on the line.

¶11            Doctors Kingsley and Fife testified, and their affidavits were
admitted into evidence. A crisis therapist and crisis counselor also
testified, as did J.M. and his mother. At the conclusion of the hearing, the
court found that J.M. was persistently or acutely disabled, in need of
psychiatric treatment, and unwilling or unable to accept voluntary
treatment. The court ordered him to participate in treatment for a period
of time not to exceed one year.

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



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                             DISCUSSION

¶13           Pursuant to A.R.S. § 36-539(B), a patient and his attorney
“shall be present at all hearings” unless the patient chooses not to attend
or counsel waives his presence. Section 36-539(C), though, states:

      If the patient, for medical reasons, is unable to be present at
      the hearing and the hearing cannot be conducted where the
      patient is being treated or confined, 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.

¶14          It is undisputed that J.M. was unable to be present at the
hearing for medical reasons. The question thus becomes whether the
record supports the superior court’s determination that the hearing could
not be “conducted where the patient is being treated or confined.” Id.

¶15           J.M. “concedes that the court made a proper inquiry into
[him] appearing at the hearing and that the court accommodated him by
permitting him to appear telephonically, as required by In re MH2010-
002637.” See MH2010-002637, 228 Ariz. 74, 81, ¶ 26, 263 P.3d 82, 89 (App.
2011) (“[W]hen it is not feasible to move the hearing to the patient’s
location, assuming the patient desires to attend, the trial court must find
by clear and convincing evidence that the patient is unable to appear and
participate through some other reasonably feasible means.”). J.M.
nevertheless asserts a due process violation because the court’s “only
reasoning was that it was too busy” to go to the hospital. The record does
not support this characterization.

¶16           As detailed supra, the court articulated significant issues
over and above calendar logistics, which it specifically labeled a
“secondary” concern. The court noted legitimate health and safety
impediments to taking court staff and witnesses to J.M.’s bedside. Among
other things, the court observed that J.M. had been diagnosed with MRSA
and had “severe” open wounds.            Counsel did not dispute these
statements.

¶17          J.M. mentions communications difficulties posed by his
tracheostomy tube. But witnesses testified that J.M. could speak without
complication when he chose to do so. J.M. responded to questions posed
during the hearing and never mentioned any difficulty he was
experiencing in communicating.



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                           IN RE MH2013-001793
                            Decision of the Court

¶18           Based on the record before it, the court did not err in
declining to conduct the hearing at J.M.’s bedside.             The court
accommodated J.M.’s medical condition by permitting him to appear
telephonically and by making concerted efforts to ensure that he could
fully participate. See Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (“The
fundamental requirement of due process is the opportunity to be heard at
a meaningful time and in a meaningful manner.”) (internal quotation
marks omitted); MH2010-002637, 228 Ariz. at 80, ¶ 21, 263 P.3d at 88
(holding that “appearance by telephone provides a meaningful
opportunity to be heard and ‘is an appropriate alternative to personal
appearance’”).

¶19           J.M. also contends he was deprived of his right to counsel
because his attorney was not in his hospital room to advise him during the
hearing. We conclude otherwise.

¶20           “[A] patient facing a civil commitment proceeding is entitled
to assistance of counsel.” MH2010-002637, 228 Ariz. at 81, ¶ 29, 263 P.3d
at 89. J.M. had court-appointed counsel who ably represented him
throughout the proceedings. Nothing in the record supports J.M.’s
generalized assertion that the physical distance between him and his
lawyer affected his representation. J.M. fully participated in the hearing,
and his counsel cross-examined witnesses and presented evidence. At no
time did J.M. or his attorney request an opportunity to speak privately.
Nor did counsel make an offer of proof regarding what she would have
done differently had she been in the same location as her client.

¶21           J.M. also contends the court should have appointed
“additional” counsel to be at his bedside. He, however, never made such
a request and has therefore waived this argument for purposes of appeal.
See Trantor v. Fredrikson, 179 Ariz. 299, 300, 878 P.2d 657, 658 (1994)
(“[E]rrors not raised in the trial court cannot be raised on appeal.”).
Moreover, J.M. cites no authority for the proposition that the court was
required to sua sponte appoint an additional attorney to represent him. See
Cullum v. Cullum, 215 Ariz. 352, 355 n.5, ¶ 14, 160 P.3d 231, 234 n.5 (App.
2007) (“We will not consider arguments posited without authority.”).

¶22            J.M. claims it was impossible for his lawyer to effectively
represent him because communication was impeded by his tracheostomy
tube. A civil commitment patient has a due process right to effective
assistance of counsel. MH2010-002637, 228 Ariz. at 82, ¶ 30, 263 P.3d at 90;
see also A.R.S. § 36-537 (outlining the minimal duties of counsel in the civil
commitment process). But J.M. does not articulate how his lawyer’s


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                          IN RE MH2013-001793
                           Decision of the Court

representation was deficient or identify anything in the record suggesting
actual communication difficulties. J.M. responded to questions posed by
the court and counsel. At no time did he or his lawyer alert the court to
any difficulties they were experiencing in communicating.

¶23          Finally, J.M. contends his due process rights were violated
because no medication affidavit was provided at the hearing. Section
36-539(A) provides:

      The medical director of the agency shall issue instructions to
      the physicians or the psychiatric and mental health nurse
      practitioner treating the proposed patient to take all
      reasonable precautions to ensure that at the time of the
      hearing the proposed patient shall not be so under the
      influence of or so suffer the effects of drugs, medication or
      other treatment as to be hampered in preparing for or
      participating in the hearing. The court at the time of the
      hearing shall be presented a record of all drugs, medication
      or other treatment that the person has received during the
      seventy-two hours immediately before the hearing.

¶24           At the conclusion of the hearing, the court stated that it had
reviewed the file, including the medication affidavit. When Petitioner’s
counsel questioned whether a medication affidavit had in fact been filed,
the court responded that it had spoken in error and that there was no
72-hour medication affidavit, noting that J.M. was not an inpatient at the
psychiatric facility. 2 The court then asked counsel if there was “anything
else,” to which J.M.’s attorney replied, “No, Your Honor.” Counsel did
not object to the missing affidavit or request any relief based on its
absence.

¶25           On appeal, J.M. contends for the first time that the treatment
order must be set aside because of the missing medication affidavit. “We
do not consider arguments raised for the first time on appeal except under
exceptional circumstances.” In re MH 2008-002659, 224 Ariz. 25, 27, ¶ 9,
226 P.3d 394, 396 (App. 2010). “[T]he mere invocation of a liberty interest
or due process challenge is not necessarily a sufficient reason to forego
application of the waiver rule.” Id. at ¶ 10. The trial court and opposing
parties “should be afforded the opportunity to correct any asserted defects


2     During an earlier hearing, J.M.’s attorney confirmed that J.M. was
“on an outpatient status.”



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                           IN RE MH2013-001793
                            Decision of the Court

before error may be raised on appeal.” Trantor, 179 Ariz. at 300, 878 P.2d
at 658.

¶26            The briefing in this case underscores the need to litigate this
issue in the superior court in the first instance so that we have an adequate
record to review on appeal. In the answering brief, for example, the
county attorney offers not only statutory analysis, but factual avowals,
“longstanding practice[s]” in mental health cases and policy arguments
premised on circumstances we have no way of evaluating for the first time
on appeal. The general rule against considering new arguments on appeal
is also appropriate here because nothing in the record suggests that J.M.
was adversely affected by any medications he took prior to the hearing.

                              CONCLUSION

¶27           For the reasons stated, we affirm the involuntary treatment
order.




                                    :gsh




                                      9
