In re .

• Decision Date: 27 September 2011
• Docket Number: No. 1 CA–MH 11–0011.,1 CA–MH 11–0011.
• Citation: 228 Ariz. 74,263 P.3d 82,618 Ariz. Adv. Rep. 34
• Parties: In re MH2010–002637.
• Court: Arizona Court of Appeals

228 Ariz. 74

263 P.3d 82

618 Ariz. Adv. Rep. 34

In re MH2010–002637.

No. 1 CA–MH 11–0011.

Court of Appeals of Arizona, Division 1, Department E.

Sept. 27, 2011.

William G. Montgomery, Maricopa County Attorney by Bruce P. White, Deputy County Attorney and Anne C. Longo, Deputy County Attorney, Phoenix, Attorneys for Appellee.Martin Lieberman, Maricopa County Legal Defender by Colin F. Stearns, Deputy Legal Defender, Phoenix, Attorneys for Appellant.

OPINION

KESSLER, Judge.

¶ 1 In this appeal from the trial court's order involuntarily committing Appellant, we are asked to decide two issues. First, when the patient is absent from the evidentiary hearing required by Arizona Revised Statutes (“A.R.S.”) section 36–539(C) (Supp. 2010), may the court proceed with that hearing without first finding that the patient cannot appear through any other means? ¹ Second, does a person facing civil commitment have the right to effective assistance of counsel, and if so, how is a claim of ineffective assistance of counsel to be resolved? On this record, we hold that the trial court had an independent duty to inquire into alternative means of appearance before proceeding under A.R.S. § 36–539(C). We also hold that persons subject to civil commitment proceedings are entitled to effective assistance of counsel and, at a minimum, counsel must meet the statutory duties outlined in A.R.S. § 36–537(B) (Supp.2010).

¶ 2 For the reasons stated below, we remand this matter to the trial court for further proceedings consistent with this decision. If the court ultimately decides that Appellant could have been present by other means and/or counsel did not meet the statutory duties under A.R.S. § 36–537(B), the court shall vacate the order of commitment, but may hold a new hearing to determine if Appellant is still in need of services under the civil commitment statutes.

FACTUAL AND PROCEDURAL HISTORY

¶ 3 Appellant, a diagnosed schizophrenic, was admitted to Banner Good Samaritan Hospital after losing twenty-six pounds over the prior four-week period. Appellant was coughing severely and appeared to be quite ill. The Good Samaritan medical team determined that Appellant had a low white blood cell count, but was unable to determine the cause due to Appellant's repeated refusal to submit to treatment.

¶ 4 On November 23, 2010, after Appellant's continued refusal to accept treatment, a deputy medical director successfully petitioned for a court-ordered evaluation of Appellant. The order also appointed the public defender to represent Appellant. Appellant was then transferred from Good Samaritan to Maricopa Medical Center, where his mental and physical health were evaluated. On November 30, 2010, deputy medical director Boskailo filed a petition for court-ordered treatment. Dr. Boskailo asserted that Appellant was persistently or acutely disabled and that he was in need of a combination of in- and out-patient treatment.

¶ 5 Appellant was again appointed the public defender to represent him at the civil commitment hearing, which was scheduled for December 7, 2010. At the beginning of the hearing, Petitioner called Dr. Bailon to testify in regard to Appellant's absence from the hearing. Since Dr. Bailon was also unable to physically attend, the court allowed her to testify telephonically. Dr. Bailon testified that it would not be possible for Appellant to physically attend the hearing or for the hearing to be physically brought to him. She stated that Appellant was in isolation because he had a dangerously low white blood cell count. His condition gravely increased his risk of contracting an infection and made it impossible for him to have contact with anyone outside of his medical team and his social worker. Dr. Bailon said she did not believe that Appellant's condition would improve quickly enough to allow him to attend in person if the hearing was moved within the six-day window established by A.R.S. § 36–535(B) (Supp.2010), which would expire the following day.

¶ 6 During the cross-examination of Dr. Bailon, Appellant's counsel stated that he had not met or talked with Appellant, as required by A.R.S. § 36–537(B), because Appellant was in isolation due to his medical condition. Counsel stated that Appellant's prior attorney, who apparently was also with the public defender's office, had talked to Appellant, who wanted the hearing held without a continuance beyond the six-day statutory requirement. However, the hearing counsel was unaware whether Appellant desired to attend the hearing. After this admission, counsel proceeded to ask Dr. Bailon to further explain why Appellant could not attend and why it would be inadvisable to have the hearing moved to Appellant's location.

¶ 7 Counsel did not suggest that Appellant could participate at the hearing by other means, and without sua sponte inquiring into such a possibility, the trial court proceeded with the hearing without Appellant's presence under A.R.S. § 36–539(C). Appellant's counsel did not object, but asked the trial court to makes its decision based on Dr. Bailon's testimony.

¶ 8 Counsel then stipulated to the admission of the affidavits of Dr. Boskailo and another doctor named Pinson. These affidavits indicated that Appellant was persistently or acutely disabled and in need of involuntary commitment. Once the affidavits were entered in evidence, Petitioner called two witnesses, Nurse Janssen and Scott Chasan, to testify in support of Dr. Boskailo's and Dr. Pinson's conclusions.

¶ 9 Nurse Janssen testified about her experiences with Appellant while he was hospitalized at Good Samaritan. Specifically, she testified Appellant was “very disheveled and refusing ... his care.” During cross-examination, counsel asked Nurse Janssen only whether she personally thought Appellant needed psychiatric help and whether she had offered it to him. These questions did nothing to undermine Petitioner's case. If anything, they provided Nurse Janssen with an opportunity to give lay-opinion testimony about the need to involuntarily commit Appellant for treatment.

¶ 10 Petitioner then called Mr. Chasan to testify about Appellant's past and present mental and physical condition. Appellant's counsel chose not to cross-examine Mr. Chasan. Furthermore, Appellant's counsel did not offer any evidence on behalf of Appellant and did not give a closing argument.

¶ 11 After both parties rested, the trial court found by clear and convincing evidence that Appellant was persistently or acutely disabled and in need of court-ordered mental health treatment. The court then committed him to mandatory combined in- and out-patient treatment. The court ordered the treatment to continue until Appellant was no longer persistently or acutely disabled, but limited the treatment to a maximum of 180 days of in-patient treatment and 365 days of total treatment.²

¶ 12 Appellant timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12–2101(B), (K)(1) (2003) and 36–546.01 (2009).

STANDARD OF REVIEW

¶ 13 “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, ¶ 9, 196 P.3d 819, 822 (App.2008), superseded by statute on other grounds by A.R.S. § 36–537 and –539. The claim of ineffective assistance of counsel presents a mixed question of law and fact; we defer to the trial court's factual findings but review de novo the ultimate legal conclusion. See In re MH 2004–001987, 211 Ariz. 255, 260, ¶ 24, 120 P.3d 210, 215 (App.2005).

DISCUSSION

¶ 14 Appellant argues he was denied: (1) Procedural due process when the trial court waived his presence under A.R.S. § 36–539(C) without inquiring into alternative means of appearance; and (2) Effective assistance of counsel at the hearing.

I. The trial court had an independent duty to inquire into alternative means of appearance.

¶ 15 While it is uncontested that Appellant could not physically attend the hearing, Appellant argues that it was error for the trial court to proceed without his presence under A.R.S. § 36–539(C) without first establishing that he could not appear through alternative means. We agree.³

¶ 16 Due to the “massive curtailment of liberty” that accompanies involuntary treatment, a patient facing civil commitment must be afforded due-process protection. Vitek v. Jones, 445 U.S. 480, 491–92, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980) (citation and internal quotation marks omitted); see also In re MH 2007–000629, 219 Ariz. 289, 291, ¶ 8, 197 P.3d 750, 752 (App.2008). However, a civil commitment hearing is a civil proceeding, not a criminal one. MH 2007–000629, 219 Ariz. at 292, ¶ 13, 197 P.3d at 753. The requisite level of process that must be provided is different in a civil commitment case than it is in a criminal proceeding. Addington v. Texas, 441 U.S. 418, 428, 430–31, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979); In re MH–2008–000867, 225 Ariz. 178, 180–81, ¶ 8, 236 P.3d 405, 407–08 (2010). In determining whether due process has been afforded in a civil commitment case, we look to the three-factor test set forth in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976); MH–2008–000867, 225 Ariz. at 181, ¶ 9, 236 P.3d at 408; see also In re W.J.C., 124 Wis.2d 238, 369 N.W.2d 162, 163 (Wis.Ct.App.1985) (“The Mathews approach is appropriate to analyze the validity of a state's [civil] commitment procedure under a procedural due process challenge.”).

¶ 17 Under Mathews, we are to consider the following three factors when determining “the specific dictates of due process”:

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...