Opinion
No. 2 CA-MH 2016-0008
03-06-2017
IN RE PIMA COUNTY MENTAL HEALTH CASE NO. MH20150479
COUNSEL Mental Health Defender's Office, Tucson By Molly Pettry Counsel for Appellant Nuccio & Shirly, Tucson By Jeanne Shirly Counsel for Appellee
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f) Appeal from the Superior Court in Pima County
No. MH20150479
The Honorable Lisa I. Abrams, Judge Pro Tempore
AFFIRMED
COUNSEL Mental Health Defender's Office, Tucson
By Molly Pettry
Counsel for Appellant Nuccio & Shirly, Tucson
By Jeanne Shirly
Counsel for Appellee
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Judge Espinosa and Judge Miller concurred. STARING, Presiding Judge:
¶1 L.G. appeals from the trial court's order that he continue to undergo involuntary mental health treatment for one year pursuant to A.R.S. § 36-540(A), arguing he was deprived of due process because the court prohibited his attorney from using his clinical records to cross-examine the petitioning doctor. L.G. asks that we vacate the court's order or remand for a new proceeding. For the reasons that follow, we affirm.
¶2 L.G. was ordered to undergo court-ordered treatment in July 2015 because he was persistently or acutely disabled. In May 2016, Dr. Kevin Goeta-Kreisler, L.G.'s treating psychiatrist, completed a psychiatric review of L.G. for his provider, UnitedHealthcare Community Plan (UHCP). Goeta-Kreisler recommended L.G. remain in court-ordered treatment. UHCP then filed a petition for continued treatment pursuant to A.R.S. § 36-543(G). After a hearing in August 2016, the trial court granted the petition, finding L.G. continued to be persistently or acutely disabled and should remain in treatment for an additional year with the ability to be placed in a level one facility for a period not to exceed 180 days. This appeal followed.
¶3 Goeta-Kreisler testified he had seen L.G. six times in the year before the hearing and opined that L.G. remained persistently and acutely disabled as a result of his schizoaffective disorder; he will not follow through with recommended treatment absent intervention; and he recently had escaped from the facility where he lived. Goeta-Kreisler further testified that leaving L.G. untreated "[c]ertainly and most likely [would] result in early morbidity and [possibly] mortality and death." And, as he stated in his report, admitted as an exhibit without objection from L.G., if left untreated L.G. had a substantial probability of suffering "severe and abnormal mental, emotional, or physical harm that significantly impair[ed] judgment, reason, behavior, or capacity to recognize reality."
¶4 Goeta-Kreisler opined L.G. suffered from psychosis, and stated he had based his diagnosis, in part, on the notes of the nurses from the facility where L.G. lived, who had reported L.G. believed they were "poisoning him; trying to kill him." Goeta-Kreisler confirmed he had access to the nurses' notes, and then read from or referred to them in response to other questions posed by L.G.'s attorney. UHCP's attorney then objected to the use of the notes on the ground she did not have access to them and had not seen them, arguing "if we are going to continue down the path of quoting records that we don't have access to I would like to stop that here."
¶5 The trial court stated it felt "uncomfortable using records that opposing counsel doesn't have access to." L.G.'s attorney responded that the notes came from the facility where L.G. resides; records to which UHCP had given L.G.'s attorney access. UHCP replied that merely because it provided L.G. with access to certain records did not mean they were given to UHCP's attorney prior to the hearing. The court then asked L.G.'s attorney, "[S]o if you intend to use those records shouldn't you disclose them? You're getting access to them to prepare but if you intend to actually use them and quote them wouldn't it be appropriate to then list them in a form of disclosure?" The court further stated, "[i]f you are going to quote records[,] everyone has to have the records[,] period. If you want to continue down this path we are going to have to have all these records disclosed." The court continued, "[w]e could take a break and it looks like you have [the records] electronically. [Opposing c]ounsel could review [the records] electronically but . . . it just defies basic concepts of judicial fairness to [proceed] otherwise so it is up to you. Do you want to take a recess?" L.G.'s attorney then responded, without further explanation, "No that's fine Your Honor."
¶6 At the conclusion of the hearing, the trial court granted UHCP's petition to continue L.G. on court-ordered treatment for one year. The court relied in part on Goeta-Kreisler's testimony and noted that the doctor's opinion had been based on contact with L.G., "along with information from the nursing staff as well as information obtained from the family." The court observed that "even Dr. [Michael] Christiansen [the psychologist who had conducted an independent evaluation of L.G.] referenced that [L.G.] may need placement," and further stated that before preparing his evaluation, Christiansen had met with L.G. for only one hour while he was "in a state of medication compliance."
Notably, Christiansen testified he was unaware of the medications L.G. was taking. And although he concluded L.G. is not persistently or acutely disabled due to a mental illness, he nonetheless opined, "he may need a placement of some kind or at a minimum he would appear to need assistance beyond what his family can provide if he was at home." --------
¶7 The trial court also pointed to Goeta-Kreisler's conclusions that placement "in a non-secure facility is simply not appropriate," and "without treatment [L.G.] will certainly and most likely result in early morbidity with a much higher incident of suicide or injuries sustained due to a lack of judgment." The court further relied on testimony by a certified nurse's assistant who was caring for L.G. and had testified about his efforts to leave the secure facility and his inability to care for his diabetes. Finally, the court referred to testimony by L.G.'s case manager that L.G. is unfamiliar with his mental health diagnosis and is unware of his medications, including why and when he should take them.
¶8 We will affirm an involuntary commitment order if it is supported by substantial evidence, viewing the evidence in the light most favorable to upholding the trial court's ruling. See In re MH-2008-000438, 220 Ariz. 277, ¶ 6, 205 P.3d 1124, 1125 (App. 2009). "We review, however, the application and interpretation of statutes de novo." Id. For a court to find a person acutely or persistently disabled by a mental disorder and that court-ordered treatment is required, there must be clear and convincing evidence that the person is:
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.A.R.S. §§ 36-501(31)(b), 36-540(A); see also In re Maricopa Cty. Mental Health No. MH 94-00592, 182 Ariz. 440, 445-46, 897 P.2d 742, 747-48 (App. 1995).
¶9 On appeal, L.G. contends the trial court denied him due process of law by preventing him from using the "clinical record" in his cross-examination of Goeta-Kreisler. In support, L.G. raises three arguments, essentially presented for the first time on appeal. First, he asserts that § 36-543(D) requires the medical director to conduct an annual review of the "mental health treatment and clinical records contained in the patient's treatment file," records to which L.G. maintains UHCP also had access, reviewed, and "kept." Second, § 36-543(G)(2), requires the patient's attorney to review the client's "medical records" within ten days of the attorney's appointment, the same records Goeta-Kreisler had reviewed and to which UHCP also had access. Therefore, L.G. argues, it was "unjust to hold [him] accountable for [UHCP's] ill-preparedness," and he maintains he had "no duty to disclose [UHCP's] own record to [UHCP]," nor could he have known he would need to refer to those records during his cross-examination of Goeta-Kreisler. Third, L.G. argues his attorney properly used the records to impeach Goeta-Kreisler.
¶10 Importantly, L.G. also argues for the first time on appeal that his attorney declined the trial court's suggestion that she permit opposing counsel to review the records on her computer because they were "part of her case file . . . and [they] contained her annotations of the record." L.G. similarly contends, again for the first time on appeal, that "[d]ue to the trial court's ruling, counsel either had to forfeit cross-examination based on the record of [Goeta-Kreisler], or hand her case notes over to the opposing counsel in the middle of the hearing." Notably, however, L.G.'s attorney did not inform the court that the electronic records contained her personal annotations, did not take advantage of the court's express offer to take a recess, and did not ask the court for a continuance to obtain an unannotated copy of the records. Instead, without explanation, she simply declined the court's offer.
¶11 Appellate courts generally will not address issues raised for the first time on appeal, Reid v. Reid, 222 Ariz. 204, ¶ 16, 213 P.3d 353, 357 (App. 2009), unless extraordinary circumstances exist, In re MH 2006-000023, 214 Ariz. 246, ¶ 11, 150 P.3d 1267, 1270 (App. 2007) ("Given the liberty interests at stake," involuntary treatment case can "present[] one of 'the extraordinary circumstances' in which an error not presented to the trial court may be presented to an appellate court in the first instance."). Based on the facts presented, however, this is not one of those cases. See Larsen v. Decker, 196 Ariz. 239, ¶ 6, 995 P.2d 281, 283 (App. 2000) ("We review the trial court's evidentiary rulings for a clear abuse of discretion; we will not reverse unless unfair prejudice resulted, or the court incorrectly applied the law.") (citations omitted).
¶12 L.G. neither requested a recess or a continuance to obtain a clean copy of the nurses' notes nor presented to the trial court the arguments he raises on appeal, thereby denying the court "'the opportunity to correct any asserted defects.'" MH 2006-000023, 214 Ariz. 246, ¶ 8, 150 P.3d at 1269, quoting Trantor v. Fredrikson, 179 Ariz. 299, 300, 878 P.2d 657, 658 (1994). "[A] party must timely present his legal theories to the trial court so as to give the trial court an opportunity to rule properly." Payne v. Payne, 12 Ariz. App. 434, 435, 471 P.2d 319, 320 (1970). Finally, although it does not appear L.G. is expressly challenging the sufficiency of the evidence supporting the order for continued involuntary treatment, we note the order is, in any event, supported by more than substantial evidence that L.G. continues to have a persistent or acute disability resulting from a mental disorder and is still in need of court-ordered treatment.
¶13 Accordingly, the trial court's order that L.G. continue to undergo involuntary treatment is affirmed.