In Re Daniel G.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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: DANIEL G.

No. 1 CA-MH 21-0028
FILED 2-22-2022

Appeal from the Superior Court in Coconino County
No. S0300MH202100085
The Honorable Cathleen Brown Nichols, Judge

AFFIRMED

COUNSEL

Coconino County Public Defender’s Office, Flagstaff
By Sandra Diehl
Counsel for Appellant Daniel G.

Coconino County Attorney’s Office, Flagstaff
By Mark D. Byrnes
Counsel for Appellee The Guidance Center

MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Michael J. Brown joined.
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Decision of the Court

T H U M M A, Judge:

¶1 Daniel G. appeals from the superior court’s order
involuntarily committing him to a mental health facility under Arizona
Revised Statutes (A.R.S.) § 36-540 (2022).1 Because he has shown no error,
the order is affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 Daniel is 62 years old and has a long history of significant
behavioral health issues. In 2008, he was involuntarily committed for
treatment. See In re Daniel G., No. 1 CA-MH 08-0009, 2008 WL 3879809 (Ariz.
Ct. App. Aug. 19, 2008). Since then, he has been hospitalized for behavioral
health issues several times. He has been prescribed long-acting
antipsychotic medication to help provide stability.

¶3 Daniel’s behavioral health issues have led to multiple
confrontations with law enforcement, resulting in arrests. On April 22, 2021,
Summer Wolfe, a mental health guidance clinician at The Guidance Center
(TGC), sought a court-ordered evaluation. The next day, Dr. Courtney
Keckich, a TGC psychiatrist, petitioned for an evaluation. The superior
court ordered an inpatient evaluation and appointed an attorney to
represent Daniel.

¶4 On April 28, after evaluating Daniel, Dr. Francis Gagliardi, a
TGC psychiatrist, petitioned for court-ordered treatment under A.R.S. § 36-
533. The petition was supported by written evaluations by Gagliardi and
Keckich as well as attestation letters by two service providers. The petition
alleged Daniel was suffering from a mental disorder, was a danger to others
and was persistently or acutely disabled, was not accepting treatment
voluntarily and sought a court order requiring him to undergo treatment.

¶5 At a May 6 hearing, held remotely given the COVID-19
pandemic, Daniel, his attorney and counsel for the State participated. As
the hearing began, Daniel’s attorney said that Daniel wanted a new
attorney, but if that request was denied, the attorney was prepared to
proceed. Daniel said he was “going to read and get due process and save
you a lot of time,” adding that it “will only take” half of the 30 minutes
allocated for the hearing. He then referenced getting “the tape of being

1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

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punched in the nose” and “perjury, as to even hearsay” by a doctor, adding
“I contend this is enough for new legal defender and new judge.” When the
court said “what is your reason for wanting –,” Daniel interrupted stating,
“I’m prosecuting you” as well as his attorney. When the court responded,
“can I ask you a question so I can answer your concerns, okay?”, Daniel
responded “Again, I will repeat.” The court then told Daniel not to repeat
and said, “I’ve got to get going on the hearing.” After another exchange,
when Daniel would not allow the court to ask a question, Daniel left the
hearing and did not return.

¶6 The court then said it “never got far enough to ask” why
Daniel wanted new counsel, adding “I never got to get a word in edgewise”
and that Daniel “just kept screaming and yelling at me and now he’s left
the room. So I view that as him absenting himself from the hearing.” The
court denied Daniel’s request for a new attorney as unsupported and
denied his request for a new judge.

¶7 The parties stipulated the doctors were experts and that their
affidavits, the attestation letters and a medication report were admissible.
Keckich testified that, based on her observation and evaluation, Daniel
suffered from schizophrenia, was a danger to others and is persistently or
acutely disabled. She testified that, in the three days before the hearing,
Daniel received Haldol, Ativan and Benadryl, and that the medications
would not impair Daniel’s ability to participate in the hearing. Keckich said
she tried without success to explain to Daniel the advantages and
disadvantages of treatment and medications.

¶8 Gagliardi testified that, based on his observation and
evaluation, Daniel suffers from paranoid schizophrenia, is persistently or
acutely disabled and is a danger to others. Gagliardi testified that, in the
three days before the hearing, Daniel received Haldol, Ativan and
Lorazepam, and that the medication would not impair Daniel’s ability to
participate in the hearing.

¶9 Daniel’s counsel cross-examined Keckich but had no
questions for Gagliardi. No other evidence was offered. After hearing
closing arguments, the court found by clear and convincing evidence that
the State had shown Daniel “suffers from mental-health disorders
specifically schizophrenia,” needed treatment and was persistently or
acutely disabled and a danger to others. The court ordered that Daniel be
treated in inpatient and then outpatient treatment for not more than 365
days. This court has jurisdiction over Daniel’s timely appeal pursuant to
A.R.S. §§ 36-546.01 and 12-2101(A)(10).

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DISCUSSION

¶10 This court will affirm an involuntary mental health treatment
order if it is supported by substantial evidence. In re MH 2008–001188, 221
Ariz. 177, 179 ¶ 14 (App. 2009). This court “view[s] the evidence in the light
most favorable to sustaining the order,” and will not set aside the findings
unless they are clearly erroneous. Cimarron Foothills Cmty. Ass’n v. Kippen,
206 Ariz. 455, 457 ¶ 2 (App. 2003); see also In re MH 2008–001188, 221 Ariz.
at 179 ¶ 14.

I. Daniel Has Not Shown a Denial of His Due Process Rights.

¶11 Daniel contends his due process rights were denied because
the court: (1) did not allocate sufficient time for the hearing or allow Daniel
to present evidence; (2) erred in denying his request for a different attorney;
(3) improperly proceeded with the hearing without Daniel knowingly and
intelligently waiving his right to be present and (4) was not presented with
proper evidence of all medications Daniel received three days before the
hearing. The court addresses these arguments in turn.

A. Daniel Has Not Shown the Court Failed to Allocate
Sufficient Time for the Hearing or Prevented Him from
Presenting Evidence.

¶12 Daniel argues the hearing was unreasonably short and that he
was not allowed to present evidence. The record, however, is to the
contrary. Working on a tight statutory timeline, A.R.S. § 36-535(B)
(requiring hearing be held not more than six business days after the petition
is filed), the court set the hearing to start at 4:30 p.m., suggesting the hearing
would last for 30 minutes. The record reveals no objection about the length
of the hearing before or during the hearing. Daniel’s counsel cross-
examined Keckich and had a chance to cross-examine Gagliardi. Although
authorized to call witnesses, Daniel’s counsel said “I do not have any
witnesses” to call. Nor did Daniel’s counsel offer any exhibits. The hearing
lasted from 4:32 p.m. to 5:05 p.m., which included the court’s detailed
findings in granting the petition.

¶13 Daniel has shown no other evidence he wished to offer or how
the time allocated failed to afford him due process. Although relying on
Volk v. Brame, Daniel has not shown the court purported to assess witness
credibility “without taking any sworn testimony.” 235 Ariz. 462, 466 ¶ 11
(App. 2014). On this record, Daniel has not shown that the court failed to
allocate sufficient time for the hearing or prevented him from presenting
evidence.

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B. Daniel Has Not Shown the Court Erred in Denying His
Request for Appointment of New Counsel or His Attempt
to Request a Notice of Change of Judge.

¶14 Daniel next argues that he was denied due process because
the court did not follow the “proper steps for considering a change of
counsel.” Daniel concedes, however, that he had the burden to show an
irreconcilable conflict with counsel or a completely fractured relationship.
The record shows no such issue here.

¶15 The court asked Daniel several questions to determine the
basis for his request for new counsel. Daniel, however, did not respond to
those questions, instead addressing other matters. After the court made
several more attempts, Daniel left the hearing. After he left, the court noted
Daniel had the chance to provide a basis but failed to do so. Because the
record revealed no irreconcilable conflict or a completely fractured
relationship, cf. State v. Johnson, 247 Ariz. 166, 208 ¶ 179 (2019), Daniel has
shown no error in the court denying his request for new counsel.

¶16 Daniel also argues that the court failed to address his
attempted verbal notice of change of judge. See Ariz. R. Civ. P. 42.1. Even
presuming that such a notice applies in mental health cases and can be
verbal, but see Ariz. R. Civ. P. 42.1(b)(1) (requiring “a written notice”),
Daniel has shown no error. A party waives the right to a notice of change
of judge if “a scheduled contested hearing begins.” Ariz. R. Civ. P.
42.1(d)(4). Because the purported notice was made after the hearing began,
there was no error in denying it.

C. Daniel Waived His Right to Be Present at the Hearing by
Voluntarily Leaving.

¶17 By statute, Daniel and his attorney had a right to be present at
the hearing. A.R.S. § 36-539(B). Daniel, however, decided to leave the
hearing. On appeal, Daniel argues that, in leaving, he did not voluntarily
and intentionally waive his right to be present at the hearing. In re MH 2006-
000749, 214 Ariz. 318, 322 (App. 2007). Again, Daniel has shown no error.

¶18 Daniel decided to leave the hearing while court was in
session, on the record and after an interaction where Daniel “just kept
screaming and yelling at” the court. Although Daniel appeared, his
voluntary absence precluded the court from asking him about his “reasons
for choosing not to participate and [his] understanding of the possible
consequences thereof.” Id., 214 Ariz. at 324 ¶ 29. This is not a case where the
court found the patient did not want to attend based on information

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provided by others and not the court’s own observation. Id. at 325 ¶ 32
(“The only facts before the court that specifically related to Appellant’s
failure to appear at the hearing were those offered by the transportation
officer.”). The court also made findings about Daniel’s decision to leave,
reflecting that he “chose to absent himself from the remainder of the
hearing after making his statement. So he had the ability to participate in
the hearing today and chose not to participate in the whole hearing.” On
this record, Daniel has shown no error in the court proceeding in his
absence. Id.

D. The State Provided Adequate Evidence of Daniel’s
Medications.

¶19 Daniel next argues the court violated A.R.S. § 36-539(A),
which requires evidence of all drugs Daniel received during the three days
right before the hearing. The court received into evidence a document
listing the start dates of various medications. Keckich and Gagliardi
testified about the specific drugs Daniel took within the three days before
the hearing. While Keckich and Gagliardi’s medication testimony was
inconsistent, both testified that the medications Daniel had taken would not
interfere with his ability to participate in the hearing. Daniel has not shown
legal authority that factual testimony on this point, or any other, from two
different witnesses must be identical to support the court’s finding. Nor
was this testimony addressed during cross-examination or in closing
arguments. Daniel has shown no error in applying A.R.S. § 36-539(A).

II. The Court Properly Concluded Clear and Convincing Evidence
Supported the Commitment Order.

¶20 Daniel argues that Keckich and Gagliardi’s evaluations were
incomplete in three specific ways: (1) only one psychiatrist evaluated Daniel
without observing him; (2) neither psychiatrist physically examined Daniel
and (3) Daniel was not properly advised of treatment alternatives. See
A.R.S. §§ 36-533(B), -539(B) and -501(12).

¶21 Daniel did not object to the affidavits or testimony provided
by both witnesses. The pre-hearing affidavits set forth facts supporting the
petition based on an examination of, and study of information about,
Daniel. The affidavits provide a detailed evaluation of Daniel’s medical
history and diagnosis in compliance with A.R.S. § 36-533(B).

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¶22 Because Keckich had limited access to him, Daniel argues it
was unclear how much her evaluation was based on observations. The
record shows Daniel refused to interact with Keckich despite multiple
attempts. Keckich, however, testified that she observed Daniel many times
in the past. Keckich based her diagnosis on his “numerous prior psychiatric
hospitalizations . . . that were months-long,” her “many prior encounters
with” him “showing the severity of his delusions and the provocative
behaviors that make it impossible for him to function in society,” his
“behaviors leading to situations in which his own life is in danger [which]
makes him a danger to himself” and his “aggression towards others and
numerous threats [which] are a danger to others.” Keckich found these
behaviors show that Daniel has been “persistently and acutely disabled for
many years.” This testimony, along with Keckich’s affidavit, properly
allowed the court to find the State made the required showing by clear and
convincing evidence. See A.R.S. § 36-539(C).

¶23 Daniel next argues a physical examination was required but
was not performed. A patient is to undergo a physical examination “if
relevant to the patient’s psychiatric condition.” A.R.S. § 36-533(B).
Although typically required, a physical examination may be excused if the
patient refuses or if it is otherwise impracticable. See In re MH 2015-003266,
240 Ariz. 514, 516 ¶ 10 (App. 2016). A doctor also need not conduct the
physical examination if doing so would trigger a confrontation. Id.

¶24 Daniel refused a physical examination by Keckich or
Gagliardi. Because Daniel’s psychiatric condition is not a result of any
physical condition and can only be treated with medication, no physical
examination was required. Id. Moreover, Daniel’s conduct suggests such an
examination would have triggered a physical confrontation, another reason
excusing that obligation. See id. at 516 ¶ 10.

¶25 Daniel’s final argument is that Keckich did not sufficiently
describe to him the advantages and disadvantages of treatment, a statutory
prerequisite to court-ordered treatment. A.R.S. § 36-501(32)(b). Keckich,
however, testified that she advised Daniel about the recommended
medications and the negative consequences associated with not taking
them. Keckich also testified to trying to discuss the consequences of
receiving treatment, adding that her ability to meaningfully do so was
“quite limited by his own mental illness.” Keckich and Gagliardi both
testified that Daniel’s mental illness causes him to be incapable of
understanding the advantages and disadvantages of accepting treatment.
This record contains far “more than a physician’s opinion that an individual
suffers from a mental disorder that impairs that person’s ability to make an

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informed decision about treatment.” In re MH 91-00558, 175 Ariz. 221, 225
(App. 1993). On this record, Daniel has shown no error.

CONCLUSION

¶26 The superior court’s order is affirmed.

AMY M. WOOD • Clerk of the Court
FILED: AA

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