                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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 MH2014-003019


                            No. 1 CA-MH 14-0083
                             FILED 6-10-2015

           Appeal from the Superior Court in Maricopa County
                          No. MH2014-003019
            The Honorable Susan G. White, Judge Pro Tempore

                                  VACATED


                                   COUNSEL

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

Maricopa County Attorney’s Office, Phoenix
By Anne C. Longo and Bruce P. White
Counsel for Appellee/Petitioner
                          IN RE MH2014-003019
                           Decision of the Court



                        MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Lawrence F. Winthrop and Judge Samuel A. Thumma joined.


K E S S L E R, Judge:

¶1           Appellant appeals the trial court’s September 18, 2014 order
compelling him to undergo involuntary inpatient and outpatient mental
health treatment. For the following reasons, we vacate the court’s order.

               FACTUAL AND PROCEDURAL HISTORY

¶2            On September 10, 2014, a doctor petitioned for a court-
ordered evaluation of Appellant pursuant to Arizona Revised Statutes
(“A.R.S.”) section 36-523 (Supp. 2014).1 The next day, the trial court issued
a detention order for evaluation and notice, which was served on
Appellant. The evaluating doctors petitioned the court for court-ordered
treatment of Appellant pursuant to A.R.S. § 36-533 (Supp. 2014).

¶3            On September 15, the trial court issued a detention order for
treatment and notice of hearing pursuant to A.R.S. § 36-535 (Supp. 2014).2
Appellant was served with the petition, detention order, and notice of
hearing on September 15 and counsel was appointed to represent
Appellant. The hearing was set for September 19.          At a hearing on
September 18 where Appellant was not present counsel for both parties
stipulated to accelerate the September 19 hearing to September 18. At the
accelerated hearing, Appellant’s counsel waived Appellant’s presence.
When the court asked if Appellant’s counsel was comfortable continuing
without Appellant, rather than waiting to proceed on September 19,
counsel stated he did not “believe that anything w[ould] change” because


1 We cite to the current versions of statutes when no changes material to
this decision have since occurred. Although this section has recently been
amended, the amendment is not material to this decision. See 2015 Ariz.
Sess. Laws, ch. 195, § 36-523 (1st Reg. Sess.).
2 Although this section has recently been amended, the amendment is not

material to this decision. See 2015 Ariz. Sess. Laws, ch. 195, § 36-535 (1st
Reg. Sess.).



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                            Decision of the Court

Appellant’s doctor had informed him that Appellant was in the safe and
secure room.3

¶4            Without making further inquiries, the court proceeded with
the hearing. Counsel stipulated to the admission of the doctors’ affidavits.
Two witnesses, a behavioral technician and a psychiatric nurse employed
by the facility where Appellant had been admitted, also testified at the
hearing. At the conclusion of the hearing, the court dismissed the allegation
that Appellant was a danger to himself for insufficiency of the evidence, but
found Appellant to be “persistently or acutely disabled as a result of a
mental disorder” and unable or unwilling to accept voluntary treatment.
The court ordered Appellant undergo combined inpatient and outpatient
treatment. See A.R.S. § 36-540 (Supp. 2014).

¶5           Appellant timely appealed the order. We have jurisdiction
pursuant to A.R.S. §§ 12-120.21(A) (2003) and 36-546.01 (2009).

                               DISCUSSION

¶6              Appellant argues the trial court’s order for involuntary
treatment must be vacated because: (1) Appellant’s due process rights were
violated when his trial counsel waived his presence and the court failed to
determine whether Appellant’s waiver was voluntary, knowing, and
intelligent; (2) Appellant’s due process rights were violated when the court
failed to inquire into alternative means by which Appellant could appear at
the civil commitment hearing; (3) Appellant did not receive sufficient notice
of the A.R.S. § 36-539 (Supp. 2014)4 hearing, as required by A.R.S. § 36-536
(Supp. 2014); and (4) Appellant was denied effective assistance of counsel.
“We review the application and interpretation of statutes as well as
constitutional claims de novo because they are questions of law.” In re MH
2007-001275, 219 Ariz. 216, 219, ¶ 19, 196 P.3d 819, 822 (App. 2008),
superseded by statute on other grounds by A.R.S. §§ 36-537 and -539.

¶7            Preliminarily, Petitioner contends that because Appellant
failed to argue to the trial court that there was any issue regarding his
counsel’s waiver of his appearance or that the court should have explored
alternative means by which he could attend the hearing, Appellant has


3 Later testimony revealed doctors had placed Appellant in the safe and
secure room as a result of an incident with a staff member that morning.
4 Although this section has recently been amended, the amendment is not

material to this decision. See 2015 Ariz. Sess. Laws, ch. 75, § 36-539 (1st Reg.
Sess.).


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                            IN RE MH2014-003019
                             Decision of the Court

waived these arguments and cannot now raise them on appeal. However,
constitutional arguments may be raised at any time and this Court has the
discretion to decide whether to consider those arguments. Olson v. Walker,
162 Ariz. 174, 181, 781 P.2d 1015, 1022 (App. 1989). “Further, this Court
does not have to apply waiver when justice requires, because the waiver
rule is procedural rather than jurisdictional.” MH 2007-001275, 219 Ariz. at
219, ¶ 11, 196 P.3d at 822 (internal citation omitted). It is unrealistic to think
the same counsel who agreed to accelerate the hearing and waived
Appellant’s appearance would either object to proceeding in such fashion
or argue that the court accepting such stipulations was committing error.
Under these circumstances, and in an exercise of our discretion, we will
address these due process issues.

¶8             Court ordered involuntary treatment constitutes “a serious
deprivation of liberty” which requires the State to afford a patient with due
process protections. Id. at ¶ 13; In re MH 2006-000749, 214 Ariz. 318, 321, ¶
14, 152 P.3d 1201,1204 (App. 2007); see also In re MH-2008-000867, 225 Ariz.
178, 180, ¶ 4, 236 P.3d 405, 407 (2010) (stating civil commitment is “a
massive curtailment of liberty” and requires due process protection)
(internal quotations marks and citation omitted). In determining whether
appropriate due process protections have been provided for a patient
during proceedings such as this, the Arizona Supreme Court has looked to
the test set out in Mathews v. Eldridge, 424 U.S. 319, 335 (1973). MH-2008-
000867, 225 Ariz. at 181, ¶¶ 9-10, 236 P.3d at 408. Mathews identifies three
factors to be weighed in considering whether due process has been
appropriately provided:

       First, the private interest that will be affected by the official
       action; second, the risk of an erroneous deprivation of such
       interest through the procedures used, and the probable value,
       if any, of additional or substitute procedural safeguards; and
       finally, the Government’s interest, including the function
       involved and the fiscal and administrative burdens that the
       additional or substitute procedural requirement would entail.

424 U.S. at 335. “Similarly, in determining whether civil mental health
commitment proceedings afford basic Fourteenth Amendment due
process, we must balance the liberty interests of the patient against the
various interests of the state, and consider whether the procedures used or
proposed alternatives will likely lead to more reliable outcomes.” MH-
2008-000867, 225 Ariz. at 181, ¶ 10, 236 P.3d at 408.




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                            Decision of the Court

I.     Voluntary, Knowing, and Intelligent Waiver of Presence at A.R.S. §
       36-539 Hearing

¶9             As applied to this case, under Mathews, Appellant was denied
basic due process when the A.R.S. § 36-539 evidentiary hearing proceeded
in his absence without a determination that Appellant voluntarily,
knowingly, and intelligently waived his right to attend the hearing. As to
the first factor of Mathews, which requires the consideration of the private
interest affected, 424 U.S. at 335, involuntary treatment massively curtails
an individual’s liberty. In re MH2010-002637, 228 Ariz. 74, 79, ¶ 18, 263 P.3d
82, 87 (App. 2011). As such, procedural safeguards are needed to protect
the patient against erroneous orders for involuntary treatment. Id.
Although the procedural protections in a civil commitment proceeding are
different than those required in a criminal proceeding, “[a]mong the
minimum procedural safeguards [against error] is the need to provide the
patient with a meaningful opportunity to be heard at the civil commitment
hearing.” Id. The patient’s personal waiver of his presence at the hearing
after being informed of what he is waiving is a minimum procedural
safeguard. Without such steps, a patient’s presence could easily be
erroneously waived.

¶10           The second Mathews factor requires the consideration of “the
risk of an erroneous deprivation of such interest through the procedures
used, and the probable value . . . of additional or substitute procedural
safeguards.” 424 U.S. 335. Under the facts of this case, the risk of a patient’s
presence being waived erroneously is much greater if a court fails to
determine that there is sufficient evidence to support that counsel’s waiver
on behalf of the patient was voluntarily, knowingly, and intelligently
authorized by the patient. Further, the patient, the patient’s counsel, or
third parties may be examined on the record to ensure the waiver was
proper and to determine whether the patient was competent to waive his
right. The imposition of such a duty is not excessive or overly burdensome.

¶11           Finally, as to the third factor set out in Mathews, which entails
the consideration of the government’s interest, requiring the court to ensure
any waiver of presence by a patient is voluntary, knowing, and intelligent
is in the government’s interest. This is especially so given the strong public
policy to have the patient attend the civil commitment hearing, as
articulated in A.R.S. § 36-539.5 Id. at 80, ¶ 22, 263 P.3d at 88. Further, the
government has no legitimate interest in precluding the court from making

5 “The patient and the patient’s counsel shall be present at all hearings . . .
.” A.R.S. § 36-539(B).


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                           IN RE MH2014-003019
                            Decision of the Court

inquiries into the voluntary, knowing, and intelligent nature of such a
waiver.

¶12           Petitioner argues that the 2009 amendment to A.R.S. § 36-539
supersedes Appellant’s due process rights, permitting counsel to waive
Appellant’s presence, even without consulting Appellant. According to
Petitioner, because A.R.S. § 36-539(B) was amended in 2009 and now states
that “[t]he patient may choose to not attend the hearing or the patient’s
attorney may waive the patient’s presence,” no further inquiry by the court
was necessary.

¶13           We disagree that the language used in A.R.S. § 36-539,
without additional court inquiry, trumps Appellant’s constitutional due
process rights. Due process protections entitle “[a]n adult who is the subject
of a proposed involuntary treatment order . . . to [a] full and fair adversary
hearing[].” MH 2006-000749, 214 Ariz. at 321, ¶ 14, 152 P.3d at 1204 (internal
quotations marks and citations omitted). As discussed above, part of that
due process right is to be present at the hearing unless the patient
voluntarily, knowingly, and intelligently waives that right. Section 36-
539(B) requires that “[t]he patient and the patient’s attorney shall be present
at all hearings . . . .” It is generally accepted that intended beneficiaries of
statutory protections may waive the benefit of the statute. MH 2006-000749,
214 Ariz. at 322, ¶ 18, 152 P.3d at 1205. Section 36-539(B) expressly allows
for the patient to waive his right to be present at the hearing by choosing
not to attend or for the patient’s counsel to waive the patient’s presence.
However, this express statutory language does not negate the need for
further court inquiry when a patient or a patient’s counsel seeks to waive a
fundamental right. The court must ensure that the waiver is voluntarily,
knowingly, and intelligently made or that the patient is mentally
incompetent to waive his presence. See MH 2007-001275, 219 Ariz. at 220,
¶ 16, 196 P.3d at 823.6

¶14            A court “may not presume that a patient who is absent from
[his] involuntary treatment hearing has knowingly and intelligently waived
[his] right to be present.” MH 2006-000749, 214 Ariz. at 323, ¶ 24, 152 P.3d
at 1206. The trial court must determine there is sufficient evidence to
support “that counsel’s waiver [of a due process right] on behalf of the
patient was in fact voluntarily, knowingly and intelligently made by the

6 The Arizona legislature’s 2009 amendments of A.R.S. §§ 36-537 and -539
supersede MH 2007-001275 only to the extent that the Court relied on these
statutes. The amendments do not supersede the Court’s analysis of a
mental health patient’s due process rights.


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                          IN RE MH2014-003019
                           Decision of the Court

patient.” MH 2007-001275, 219 Ariz. at 221, ¶ 19, 196 P.3d at 824.
Specifically, the court is required to make this determination “either
through conducting a colloquy with the patient or by review of the record.”
Id. The express language in A.R.S. § 36-539(B) allowing for a patient’s
counsel to waive a patient’s presence does not supersede the patient’s due
process rights.

¶15           This does not mean that in all cases the patient’s presence may
only be waived if the trial court personally examines the patient. The very
nature of commitment hearings may involve a patient who is simply not
mentally competent to waive presence or cannot be present in the court to
waive them. When the court is presented with evidence that the patient is
not competent to waive the right to presence from either the counsel who
attempted to see if the client wanted to attend the hearing or third parties
with knowledge of the patient’s mental state at the time of the hearing, it
can conclude that the waiver by counsel is valid or determine whether the
patient can participate without being physically present.

¶16           The court did not make such determinations here and the
record does not contain the information required to make such
determinations. The court made no inquiry into whether the waiver of
Appellant’s presence by Appellant’s counsel was voluntarily, knowingly,
and intelligently made by Appellant. Instead, Appellant’s counsel
conceded he never met with Appellant to determine if he wanted to waive
his appearance or if he could competently waive his appearance. Nor did
the court hear evidence about the Appellant’s competence to waive
attendance at the time of the hearing. Rather, the court simply relied upon
a hearsay statement that Appellant was in restraints, apparently for
pushing a staff member. This is insufficient to provide the basis for the
findings required to comply with due process. Therefore, on these facts,
the trial court erred in accepting Appellant’s trial counsel’s waiver of
Appellant’s presence.

II.   Alternative Means of Appearance

¶17           Appellant also argues his due process rights were violated as
a result of the trial court’s failure to explore alternative means by which
Appellant could attend the hearing. Petitioner contends that because
Appellant’s counsel waived Appellant’s presence at the hearing, the court
was not required to explore alternative means for Appellant to participate
in the hearing. As previously discussed, however, the trial court erred in
allowing Appellant’s counsel to waive Appellant’s presence. Although
Petitioner attempts to distinguish this case from cases in which a court is


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                           IN RE MH2014-003019
                            Decision of the Court

required to explore alternative means to allow a patient to participate, we
do not find this case to be distinguishable. The record contains no evidence
that Appellant’s counsel knew Appellant did not wish to participate. In
fact, there is no evidence on the record that Appellant’s trial counsel even
informed Appellant that the hearing was taking place on September 18.
Further, although there is testimony that Appellant was in restraints, we
will not assume, without further inquiry by the court, that an attempt to
allow for Appellant’s telephonic appearance at the hearing would have
been futile as Petitioner suggests.

¶18           “When Appellant’s trial counsel has not inquired into
whether the patient desires to attend the hearing and whether electronic
attendance is feasible . . . Mathews requires the court to at least consider
alternative means of appearance when the patient cannot otherwise
attend.” MH 2010-002637, 228 Ariz. at 80, ¶ 23, 236 P.3d at 88. This
independent duty imposed on the court is based on “considerations of the
patient’s substantial interest, the increased risk of error when a patient does
not have the opportunity to be heard, the ease of providing the patient with
an alternative means of attending the hearing, and the important
government interest in having the patient attend the hearing.” Id.

¶19            Although the record suggests that Appellant may have been
unable to physically attend the hearing as a result of his medical condition
and being restrained, the court made no inquiries into whether Appellant
desired to attend the hearing or the existence of alternative means by which
Appellant could appear at the hearing. The record lacks any evidence that
Appellant’s trial counsel spoke to Appellant about whether he desired to
attend the hearing, or that Appellant would have been unable to appear by
alternative means.

¶20          Consequently, because there is no evidence indicating that
Appellant’s counsel’s waiver of Appellant’s presence was voluntarily,
knowingly, and intelligently made by Appellant, that Appellant was
incompetent to make such a waiver, or that Appellant was unable to appear
at the hearing by alternative means, the order for involuntary treatment
must be vacated.




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                            Decision of the Court

                              CONCLUSION

¶21           For the foregoing reasons, we vacate the trial court’s order for
Appellant’s involuntary treatment.7




                                   :ama




7Because our decision regarding waiver of presence and alternative means
of attending the hearing requires vacating the civil commitment order, we
do not address Appellant’s other arguments.


                                      9
