In Re: Anna Marie J.

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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: ANNA MARIE J.

No. 1 CA-MH 25-0071

FILED 11-04-2025

Appeal from the Superior Court in Coconino County
No. S0300MH202500071
The Honorable Brent Davidson Harris, Judge Pro Tempore

VACATED

COUNSEL

Coconino County Attorney’s Office, Flagstaff
By William P. Ring
Counsel for Appellee The Guidance Center, Inc.

Coconino County Legal Defender’s Office, Flagstaff
By Jillian N. Marini
Counsel for Appellant Anna Marie J.
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MEMORANDUM DECISION

Judge Veronika Fabian delivered the decision of the Court, in which
Presiding Judge James B. Morse Jr. and Judge Anni Hill Foster joined.

F A B I A N, Judge:

¶1 Anna Marie J. appeals an order for court-ordered treatment,
arguing there was insufficient evidence to support the court’s finding of a
persistent or acute disability because the medical professionals at the
treatment facility did not explain to her the advantages, disadvantages, and
alternatives to treatment as required under A.R.S. § 36-501(33)(c) (“the
consultation obligation”). Because neither the statutory requirement nor the
impracticability exception to that requirement was met by clear and
convincing evidence, the superior court’s order is vacated. See In re Pima
Cnty. Mental Health No. MH20130801, 237 Ariz. 152, 155 ¶ 13 (App. 2015).1

FACTS AND PROCEDURAL HISTORY

¶2 Anna’s mother called the police after an altercation in which
Anna “hit her mother in the arm very hard because her mother refused to
do what she demanded.” The police brought Anna to the crisis department
of The Guidance Center (“TGC”). TGC is a mental health treatment facility
in Flagstaff where medical professionals provide crisis management along
with in-patient and out-patient psychiatric services. After TGC found Anna
was not “competent for voluntary inpatient admission,” it filed a petition
for evaluation alleging she was a danger to herself and others. The court
ordered an evaluation and found she required immediate or continued
hospitalization prior to any hearing or court-ordered treatment.

¶3 TGC then filed a petition for court-ordered treatment of Anna
pursuant to A.R.S. § 36-540(A), alleging she had a persistent or acute
disability as defined by A.R.S. § 36-501(33). At the hearing on the petition,

1 Because this Court vacates the order for involuntary treatment based on

insufficient evidence to support this statutory requirement, this Court does
not address Anna’s remaining arguments.

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Anna’s doctor and nurse practitioner at TGC testified as to their
observations of Anna while she was on the unit.

¶4 The court found Anna was persistently or acutely disabled
and ordered involuntary treatment. This Court has jurisdiction over Anna’s
timely appeal pursuant to A.R.S. §§ 36-546.01 and 12-120.21(A)(1).

DISCUSSION

I. This Court Reviews an Involuntary Treatment Order for Complete
Compliance with Each Statutory Element.

¶5 Court-ordered treatment “constitutes a significant
deprivation of liberty that requires due process protection.” In re Jesse M.,
217 Ariz. 74, 77 ¶ 14 (App. 2007) (quoting Addington v. Texas, 441 U.S. 418,
425 (1979)). The legislature has set forth a statutory scheme specifying
adequate due process protections in A.R.S. §§ 36-532 through 544 (“the
Statute”). See In re MH 2007–001264, 218 Ariz. 538, 539, ¶ 6 (App. 2008).
Because of the due process interests at stake, “complete compliance,”
although not necessarily technical compliance, with the statute is required.
In re Pima Cnty. Mental Health No. 20200860221, 255 Ariz. 519, 524 ¶¶ 10-11
(2023). This Court reviews an involuntary treatment order to determine if it
is supported by substantial evidence. In re MH 91-00558, 175 Ariz. 221, 224
(App. 1993).

¶6 Under the Statute, for a superior court to order involuntary
treatment, it must find by clear and convincing evidence:

[T]hat the proposed patient, as a result of mental disorder, is
a danger to self, is a danger to others or has a persistent or
acute disability or a grave disability and is in need of
treatment, and is either unwilling or unable to accept
voluntary treatment.

A.R.S. § 36-540(A). Here, the court did not find Anna was a danger to herself
or others. Instead, it found Anna suffered from a “persistent or acute
disability,” which the Statute defines as one that, among other things:

Substantially impairs the person’s capacity to make an
informed decision regarding treatment, and this impairment
causes the person to be 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

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particular treatment offered after the advantages,
disadvantages and alternatives are explained to that person.

A.R.S. § 36-501(33)(c).

¶7 This Court explained this statutory requirement in In re MH
91-00558, 175 Ariz. 221, 225 (App. 1993), stating:

[T]wo things are required as a predicate to determining
whether a mentally-ill person is capable of engaging in a
rational decision-making process: first, the doctors must
explain the advantages and disadvantages of accepting
treatment; and second, the doctors must explain the
alternatives to such treatment and the advantages and
disadvantages of such alternatives. Unless the doctors have
explained these matters to the mentally-ill person, the
applicant cannot establish that such person's capacity to
make an informed decision is impaired.

(Second emphasis added).

¶8 To meet this statutory requirement, medical professionals
must provide more than conclusory statements that a patient is incapable
of making informed decisions regarding treatment. In re MH2011-000914,
229 Ariz. 312, 316 ¶ 14 (App. 2012). Furthermore, when medical
professionals believe there are no alternatives to the proposed treatment
plan, as is usually the case, they must explain the alternative of receiving
no treatment. MH 91-00558, 175 Ariz at 226.

II. TGC Did Not Explain the Advantages, Disadvantages, and
Alternatives to Treatment.

¶9 Anna asserts the court erred in finding she suffered from a
persistent and acute disability because TGC did not explain to her the
advantages, disadvantages, and alternatives to treatment. The court did not
make a specific finding with respect to the consultation obligation, instead
stating only that “[a]s a result of [a] mental disorder, the patient’s capacity
to make an informed decision regarding treatment is substantially
impaired.”

¶10 There is no dispute that TGC did not explain the advantages,
disadvantages, and alternatives to treatment. Nor did TGC explain the
alternatives of receiving no treatment to Anna. Instead, the medical
professional testified they tried to explain the advantages, disadvantages,

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and alternatives to treatment but Anna did not want to talk about them.
Thus, this Court turns to whether the consultation obligation is excused
here.

III. TGC Did Not Meet the Standard for the Impracticability
Exception.

¶11 Although no statutory exception to the consultation
obligation exists, in In re Pima County Mental Health No. MH-1140-6-93, this
Court held:

[W]e do not believe that mental health officials must engage
in a confrontation with a mentally ill patient or have the
patient physically restrained in order to fulfill the letter of the
requirement. This is particularly true where, as here, the
record reflects a long history of mental illness, and the
testimony of four witnesses establishes current behavior
supporting the diagnosis of an acute and persistent disorder.

176 Ariz. 565, 568 (App. 1993). Thus, this Court found a departure from the
express language of the Statute was appropriate because requiring a
confrontation or restraints to meet the consultation obligation would be an
absurd result. Id.

¶12 Subsequently, this Court held an exception to the consultation
obligation could be shown “if the proof is clear and convincing that it was
impracticable to [explain the advantages, disadvantages, and alternatives
to treatment].” In re MH 94-00592, 182 Ariz. 440, 446 (App. 1995). This Court
suggested the exception may sometimes be met where there is “excessive
verbal abuse, physical abuse, repeatedly walking away when the
physicians attempt to discuss the matters, or nonresponsiveness.” Id.
However, any such reaction by the patient must be “so extreme as to
frustrate” the medical professionals’ attempts. Id.

¶13 Although this Court has held that confrontation is not
required under the impracticability exception, see MH20130801, 237 Ariz. at
158 ¶ 30, testimony that a person was vulgar and sarcastic for an “unstated
duration and degree” and became “even like threatening” rather than
actually threatening is not enough. MH 94-00592, 182 Ariz. at 446.

¶14 As this Court has stated, “[s]ome degree of resistance to
treatment can be expected” in these types of cases. Id. If a patient does not
become confrontational or walk away, a medical professional can still,

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without undue burden, explain the advantages, disadvantages and
alternatives to treatment.

¶15 In this case, the testimony was as follows:

Q: Okay. Thank you. Now regarding, regarding your
conversations with her about treatments. I understand that
it’s your testimony that she does not wish to hear anything
about potential treatment options, is that correct?

A: That’s correct.

Q: Did you attempt to discuss with her the option of receiving
no treatment?

A: Um, I couldn’t get there, counsel…

Q: Okay.

A: … it’s almost like a taboo talking. Anything that has to do
with treatments is out of bounds.

Q: Sure. But this would have to do with not receiving
treatments? Was that approached with her?

A: I did not have, she didn’t give me an opportunity.

Q: Okay. Was that because you tried to leave the room when
you met with her?

A: It goes to a different subject. The only option in her mind
is no treatment and without an opportunity for me to explain
what would happen, no treatment, she’d receive no
treatment.

Q: Okay. So, she would move on to another subject but she
wouldn’t, for example, get aggressive?

A: No.

Q: Or try to leave the room?

A: No. She dismissed me when treatment…on a number of
occasions but she hasn’t tried to leave the room herself.

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....

Q: Doctor, you indicated that when discussing the pros and
cons of treatment and her demeanor in response to your
discussion there, she, I believe you said, dismissed me? Could
you elaborate on that a little bit?

A: The…when I, if I said, so [Anna] demands to be discharged
and if I said to [Anna], [Anna], unfortunately I’m not able to
discharge you at this time. Then she’d say, okay, we’re done.
It’s nothing, there’s nothing for us to talk anymore and I don’t
want to talk to you anymore. So, I would be dismissed.

Q: Okay.

A: The next day I could come back, and we could talk again
but for that time I would be dismissed.

¶16 Anna’s nurse practitioner testified similarly:

A: But she did say that she didn’t want to go any further when
I wasn’t going to discharge her that day and then she became
upset at me and got a little bit angry and wanted to
(inaudible) and said, (inaudible) so.

....

Q: But given her current conditions based upon your
examination, I want to ask you if you took the opportunity to
explain advantages and disadvantages of treatment with her?

A: I did try. I have tried to. And I did again when I met with
her last week. She is adamant that, that this is a religious
experience that she’s having and she does not need
medication.

Q: So you attempted to explain those advantages and
disadvantages?

A: I did, yes.

¶17 Thus, Anna did nothing that would have prevented TGC
from complying with the consultation obligation. Although she may have
told her medical professionals she didn’t want them to explain to her the
advantages and disadvantages of treatment or non-treatment, there is no

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testimony Anna ever left the room, which would have made it
impracticable to satisfy the consultation obligation. There was never
evidence that she became verbally or physically abusive or made any
threats. At most, she got a “little bit angry” when her nurse practitioner
refused to discharge her. And although Anna did ask the doctor to leave
when he refused to discharge her, he testified Anna was always willing to
talk to him when he returned to speak to her the next day.

¶18 Under this record, this Court cannot say there was clear and
convincing evidence that Anna’s reaction was “so extreme as to frustrate”
the medical professionals’ attempts to comply with the consultation
obligation. MH 94-00592, 182 Ariz. at 446. TGC presented no evidence to
suggest it was impossible or impracticable to recite the advantages or
disadvantages of treatment or no treatment, even if Anna was unwilling to
really consider treatment. To hold otherwise, would expand the
impracticability exception to the express statutory language further than
necessary to prevent an absurd result.

¶19 Although TGC criticizes the necessity of “robotic gestures,” it
provides no real reason why medical professionals should not have to
comply with such a minimal obligation specifically required by the Statute
to ensure due process protections. See Cnty. Att’y, Pima Cnty. v. Kaplan, 124
Ariz. 510, 511 (App. 1980).

IV. This Court Will Not Expand the Exception to the Consultation
Obligation as Requested by TGC.

¶20 TGC concedes that case law places “the burden . . . on the
Petitioner and the test at trial and on appeal is an antagonistic and
confrontational one.” It argues this Court should expand the
impracticability exception to include circumstances such as Anna’s.

¶21 First, TGC argues “[a] literal reading of the predicate ‘after’ in
§36-501(33)(c) is interfering with the purpose of the legislation and the
greater meaning of the facts at issue.” It maintains the consultation
obligation should be satisfied based on “substantial evidence of efforts at
consultation.” But this is not what the Statute says. Nor does TGC show
how a strict reading of “after” results in an absurdity beyond the exception
already created by this Court. See In re Maricopa Cnty. No. MH2003–000240,
206 Ariz. 367, 369 ¶ 6 (App. 2003). This Court will not interfere with the
exclusive domain of the legislature by amending its valid procedural
safeguards. See Shaw v. State, 8 Ariz. App. 447, 452 (1968) (“The judiciary
cannot sit as a super-legislature to determine the wisdom, the necessity, or

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the inconvenience of a legislative enactment.”). This is particularly true for
legislative enactments protecting substantive rights like due process. See
State v. McCartney, 251 Ariz. 478, 480 ¶ 10 (App. 2021).

¶22 Second, relying on In re Pima County Mental Health No.
20200860221, TGC argues the consultation obligation is excused here
because strict compliance in the mental health context allows for
“compliance [that] is technically different from what the statute requires.”
255 Ariz. at 524 ¶ 11. However, that case is distinguishable because it
involved technical, not substantive, noncompliance with the statute.
Specifically, A.R.S. § 36-533(B) requires two physician affidavits containing
specific information be submitted in support of a petition for court-ordered
treatment. Id. at 524 ¶ 12. The Arizona Supreme Court held that boilerplate
affidavits not including the specific information could nonetheless be
adequate if they incorporated by reference extrinsic documents that
included the required information. Id. at 526 ¶ 17. Therefore, there was
complete, but not technical, compliance with the statute. Here, TGC is
asking to avoid complete compliance with the consultation obligation.

¶23 Third, TGC argues this Court should adopt the standard set
forth by the dissent in In re MH 94-00592, which it claims allows for an
exception to the consultation obligation where literal compliance is not
possible; “results in absurdity or impossibility;” or “is implausible,
impractical, and therefore not necessary.”

¶24 However, TGC misreads the dissent in In re MH 94-00592.
Instead of adopting a different standard, the dissent disagreed with the
majority’s application of the impracticability standard because it believed
“the patient’s history and likelihood of harm befalling him or others,” met
the impracticability standard. MH 94-00592, 182 Ariz. at 448. The majority
found that appellant did not meet the exception even though he displayed
“aggressive, delusional, and unpredictable behavior such as setting fire to
his mother’s carpet, assaulting his mother, throwing a telephone at elderly
people while in the hospital, hearing voices, and seeing demons.” Id. at 442.
The dissent disagreed, pointing to additional factors such as the patient’s
“long history of mental illness and his numerous involuntary
hospitalizations” after “neglecting to take his medication and relaps[ing]
into substance abuse” and “verbal abuse, threatening demeanor and
nonresponsiveness.” Id. 448.

¶25 Here, the record does not include behavior coming close to
that considered by the dissent in In re MH 94-00592. Although Anna “has
been in psychiatric treatment since 2018” and “had a distant hospitalization

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at [TGC] approximately 18 years ago” for paranoid schizophrenia, she was
“stable and compliant with treatment for many years” until she became
medically noncompliant in November 2024. According to the testimony
from the medical professionals, she never got anything more than “a little
bit angry” when they tried to fulfill the consultation obligation. She did not
prevent TGC from satisfying its consultation obligation.

¶26 Finally, TGC urges this Court to shift the burden onto Anna
to show consultation was still practical “[w]here the patient exhibits
recalcitrant agitation and worse” and suggests the requirement be excused
here because physicians tried to explain treatment alternatives “but were
willfully refused.” As noted above, supra ¶ 21, such arguments are better
left for the legislature.

CONCLUSION

¶27 This Court must vacate an involuntary treatment order when
statutory requirements are not met. See MH20130801, 237 Ariz. at 155 ¶ 13.
Because, as discussed above, there was not clear and convincing evidence
that TGC met the consultation obligation or met the impracticability
exception to that statutory requirement, the order for involuntary
commitment is vacated.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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