Opinion
1 CA-MH 12-0094
06-18-2013
IN RE MH2012-003236
William G. Montgomery, Maricopa County Attorney By Anne C. Longo, Deputy County Attorney and Bruce P. White, Deputy County Attorney Attorneys for Appellee Marty Lieberman, Maricopa County Office of the Legal Defender By Cynthia Dawn Beck, Deputy Legal Defender Attorneys for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication
- Rule 28, Arizona
Rules of Civil
Appellate Procedure)
Appeal from the Superior Court in Maricopa County
Cause No. MH2012-003236
The Honorable Susan G. White, Commissioner
AFFIRMED
William G. Montgomery, Maricopa County Attorney
By Anne C. Longo, Deputy County Attorney
and Bruce P. White, Deputy County Attorney
Attorneys for Appellee
Phoenix Marty Lieberman, Maricopa County
Office of the Legal Defender
By Cynthia Dawn Beck, Deputy Legal Defender
Attorneys for Appellant
Phoenix NORRIS, Judge ¶1 After conducting an evidentiary hearing, the superior court found by clear and convincing evidence Appellant was, as a result of a mental disorder, persistently or acutely disabled, in need of psychiatric treatment, but unwilling and unable to accept voluntary treatment. Accordingly, the court ordered Appellant to undergo a combination of inpatient and outpatient treatment ("treatment order"). ¶2 On appeal, Appellant argues we should vacate the treatment order because, contrary to Arizona Revised Statute ("A.R.S.") section 36-539(B) (Supp. 2012), Appellant's father, D.B., called by Appellee, petitioner in the superior court, as an acquaintance witness, was not "acquainted with the patient at the time of the alleged mental disorder." We disagree. ¶3 First, as an initial matter, Appellant raised no objection to the sufficiency of D.B.'s testimony as an acquaintance witness. Normally, we do not consider arguments raised for the first time on appeal except under exceptional circumstances. In re MH2008-002659, 224 Ariz. 25, 27, ¶ 9, 226 P.3d 394, 396 (App. 2010). In our view, this is not an exceptional circumstance warranting relief from this waiver rule. The reason is simple -- Appellant's failure to object to the sufficiency of D.B.'s testimony at the hearing prejudiced Appellee as Appellee points out on appeal. If Appellant's counsel had raised the issue at the hearing, then "counsel for Petitioner could have further examined [D.B.] or called another witness to testify, and the issue could have easily been addressed by the erior court." ¶4 Second, even if not waived, Appellant's argument is not well taken. As we explained in In re MH2008-002596, 223 Ariz. 32, 36, ¶ 17, 219 P.3d 242, 246 (App. 2009), A.R.S. § 36-539(B) does not "impose a specific length of time over which the acquaintance or familiarity with the patient must take place or the manner in which the witness's familiarity with the patient must be acquired." Instead, the statute focuses on the nature and relevance of the witness's testimony. The acquaintance witness must have personal and relevant information as to whether the patient is suffering from a mental disorder. Id. at 36, ¶¶ 16-17, 219 P.3d at 246. ¶5 Here, D.B.'s testimony met these requirements. As Appellant's father, D.B. had known Appellant for at least 30 years. He was familiar with Appellant's behavior based on his own first-hand personal experiences with Appellant. As of the date of the hearing, D.B. had spoken or met with Appellant at least four times over the prior ten months. Although D.B. was unable to identify the precise dates of these communications, he explained he had been concerned about Appellant's mental health "for years" and, although Appellant had never done anything that would indicate he was going to harm anyone, Appellant nevertheless gave "the impression of being very violent. He has a loud voice, and he screams and rants and raves and parades up and down." ¶6 For the foregoing reasons, therefore, we affirm the superior court's treatment order.
____________________________
PATRICIA K. NORRIS, Presiding Judge
CONCURRING: ____________________________
MICHAEL J. BROWN, Judge
____________________________
JOHN C. GEMMILL, Judge