In Re: Mh 2025-004813

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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: MH 2025-004813

No. 1 CA-MH 25-0147
FILED 02-09-2026

Appeal from the Superior Court in Maricopa County
No. MH2025-004813
The Honorable Nicolas B. Hoskins, Judge Pro Tempore

AFFIRMED

COUNSEL

Maricopa County Legal Defender’s Office, Phoenix
By Robert Shipman, Lindsay Ficklin
Counsel for Appellant

Maricopa County Attorney’s Office, Phoenix
By Joseph J. Branco, Sean M. Moore, Caitlyn T. Mitchell
Counsel for Appellee

MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Andrew J. Becke and Judge Kent E. Cattani joined.
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Decision of the Court

T H U M M A, Judge:

¶1 J.M. appeals from an order finding him persistently or acutely
disabled and committing him to inpatient and outpatient mental health
treatment. See Ariz. Rev. Stat. (A.R.S.) § 36-540 (2026).1 J.M. argues a written
outpatient treatment plan failed to comply with A.R.S. § 36-540.01(B) and
that his due process rights were violated because he was not given notice
that electroconvulsive therapy would be used. Because J.M. has shown no
error, the commitment order is affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 J.M. has been subject to court-ordered mental health
treatment for several years, having been hospitalized for nearly two years.
On May 14, 2025, Dr. Carlos Diaz filed a petition seeking an evaluation of
J.M. See A.R.S. § 36-523. The superior court issued an order appointing an
attorney to represent J.M. and directing that J.M. be evaluated. See A.R.S. §
36-529(A).

¶3 Doctors Raphael Golebiowski and Kesley Pike evaluated J.M.
and concluded he was suffering from a severe mental disorder requiring
court-ordered treatment. On May 19, 2025, Dr. Pike filed a petition for
court-ordered treatment, alleging J.M. was persistently or acutely disabled
and unable or unwilling to accept treatment voluntarily. See A.R.S. § 36-
540(A)(2) & (3). As required by statute, the petition attached affidavits from
Drs. Golebiowski and Pike. See A.R.S. § 36-533(B). Dr. Golebiowski’s
affidavit disclosed that J.M. “is currently receiving electroconvulsive
therapy (ECT) secondary to limited response to pharmacological
treatment.”2 He noted J.M. “has a history of multiple prior court ordered
treatments,” tracing back to 2018. The petition sought an order for a
combination of inpatient and outpatient mental health treatment. See A.R.S.

1 Absent material revisions after the relevant dates, statutes and rules cited

refer to the current version unless otherwise indicated.

2 ECT involves “passing a small current of electricity through the brain of

the patient in order to induce a grand mal type of convulsion. . . . In
competent hands, ECT is usually regarded as a safe and painless therapy,
and it has a higher cure rate than medication.” Richard J. Kohlman, Medical
Malpractice: Electroconvulsive Therapy, 44 AM. JUR. PROOF OF FACTS 2d 499 §§
1 & 2 (2025) (footnotes omitted).

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§ 36-540(A)(2). Dr. Pike later filed an outpatient treatment plan to be
initiated after J.M. “no longer require[d] continued inpatient
hospitalization.” See A.R.S. §§ 36-540(C)(2) & -540.01(B).

¶4 On May 23, 2025, the court held an evidentiary hearing on the
petition. The parties stipulated to the admission of the Pike and
Golebiowski affidavits and other documents. Two other witnesses testified
to their observations of J.M. Although given an opportunity to cross-
examine those witnesses, J.M.’s counsel asked no questions. J.M. was
afforded an opportunity to address the court, and he did so.

¶5 J.M. objected to ECT, arguing the outpatient treatment plan
did not disclose its use, and that it could only be used if it was listed in that
plan and specifically approved by the court. J.M. argued further briefing
was needed before the court could order ECT treatment. The court stated it
would “retain jurisdiction to consider briefing” on the ECT issue.

¶6 After J.M. made additional statements to the court, in closing
argument, J.M.’s attorney stated J.M. “doesn’t feel like he needs to be in
inpatient any longer.” The court then found, by clear and convincing
evidence, that J.M. is persistently and acutely disabled due to a mental
disorder and unwilling or unable to accept voluntary treatment. The court
ordered combined inpatient and outpatient treatment for no more than 365
days, with inpatient treatment not to exceed 180 days. J.M. timely filed a
notice of appeal from that May 2025 commitment order.

¶7 Meanwhile, the parties filed briefs discussing whether ECT
had to be disclosed in the outpatient treatment plan. In July 2025, the court
found no authority supporting the argument that ECT must be disclosed or
approved by the court before it is used. J.M. did not appeal from that ruling.
This court has jurisdiction over J.M.’s timely appeal challenging the May
2025 commitment order under A.R.S. §§ 36-546.01 and 12-2101(A)(10).

DISCUSSION

I. Appellate Jurisdiction.

¶8 Given J.M.’s timely appeal, this court has appellate
jurisdiction to review the May 2025 commitment order. See A.R.S. § 36-
546.01 (“An order for court ordered treatment may be reviewed by appeal
to the court of appeals as prescribed in the Arizona rules of civil procedure
or by special action. Such appeal or special action shall be entitled to
preference.”). J.M.’s briefing on appeal, however, focuses on matters

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occurring after the May 2025 commitment order, including the July 2025
ruling on the outpatient treatment plan. J.M., however, did not appeal from
that July 2025 ruling. Therefore, this court lacks appellate jurisdiction to
consider the July 2025 ruling, or arguments raised in superior court after
the May 2025 commitment order.

II. J.M. Has Shown No Error in the May 2025 Commitment Order.

¶9 The superior court’s findings of fact will be affirmed unless
clearly erroneous, viewing the facts in a light most favorable to sustaining
those findings. See In re MH 2008-001188, 221 Ariz. 177, 179 ¶ 14 (App. 2009)
(citing cases). Issues of law, by contrast, are reviewed de novo. See In re
MH2010-002637, 228 Ariz. 74, 78 ¶ 13 (App. 2011) (citing cases). Particularly
given these proceedings can result in a deprivation of an individual’s
liberty interests, the record must show “complete compliance with each
statute's requirements.” In re Pima Cnty. Mental Health No. 20200860221, 255
Ariz. 519, 524 ¶¶ 10-11 (2023). In doing so, the court looks to the “the plain
meaning of the words the legislature chose to use, viewed in their broader
statutory context.” In re Drummond, 257 Ariz. 15, 18 ¶ 5 (2024) (citation
omitted). Courts “‘will not inflate, expand, stretch or extend a statute to
matters not falling within its expressed provisions.’” In re M.N., 259 Ariz.
120, 141 ¶ 28 (2025) (citation omitted).

¶10 J.M. does not directly challenge the validity of the May 2025
commitment order. At the evidentiary hearing, the court received, without
objection, the Pike and Golebiowski affidavits and other documents, heard
testimony from two witnesses who had observed J.M., heard from J.M.
himself and heard argument from counsel. The court then found, by clear
and convincing evidence, that as a result of a mental disorder, J.M. is
persistently or acutely disabled, needs psychiatric treatment and is
unwilling or unable to accept voluntary treatment, and that there were no
appropriate and available alternatives short of court-ordered treatment.
The resulting commitment order directs that J.M. undergo a program of
combined inpatient treatment (not to exceed 180 days) and outpatient
treatment (in total, not to exceed 365 days), unless he is otherwise
discharged earlier. From the record provided, all of these actions are
factually supported and completely comply with statutory requirements.
See A.R.S. §§ 36-539, -540.

III. J.M. Has Not Shown that the Outpatient Treatment Plan Failed to
Comply with A.R.S. § 36-540.01(B).

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¶11 J.M.’s primary argument is that the outpatient treatment plan
did not comply with A.R.S. § 36-540.01(B). Where, as here, a commitment
order directs “combined inpatient and outpatient treatment,” the court
must be presented with and approve “a written treatment plan that
conforms with” A.R.S. § 36-540.01(B). See A.R.S. § 36-540(C)(2). The record
shows the superior court was presented with and approved a written
treatment plan for J.M.3

¶12 The petition disclosed that ECT was being used as a treatment
modality for J.M. The outpatient treatment plan, however, does not
mention ECT. Although he argues that omission was error, J.M. has not
shown that the outpatient treatment plan was required to mention ECT or
any other specific treatment modality.

¶13 An outpatient treatment plan must include five categories of
information. See A.R.S. § 36-540.01(B)(1) – (5). J.M. does not claim error
based on the first three categories, which address a patient’s ability to meet
basic needs, living circumstances for outpatient treatment, and identifying
who will supervise outpatient treatment. See A.R.S. § 36-540.01(B)(1) – (3).
J.M. argues, however, that the two remaining categories required that
possible ECT use be disclosed in the outpatient treatment plan. Specifically,
J.M. argues that, in failing to mention ECT, the outpatient treatment plan
failed to provide the following required categories of information:

4. The conditions for continued outpatient
treatment, which may require periodic
reporting, continuation of medication and
submission to testing, and may restrict travel,
consumption of spirituous liquor and drugs,
associations with others and incurrence of debts
and obligations or such other reasonable
conditions as the medical director may specify.

5. Any other provisions that the medical
director or the court believes are necessary to
protect the well-being of the patient and the
public.

A.R.S. § 36-540.01(B)(4) & (5).

3 The court ordered that the plan be followed, including requiring J.M. to

“follow a prescribed outpatient treatment plan,” negating J.M.’s suggestion
that it was not approved by the court.

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¶14 The outpatient treatment plan requires J.M. to take prescribed
medications, adding J.M. “currently requires treatment with psychiatric
medication . . . continuing after discharge to the community” and listing
several classes of medication. It does not list any specific medication or
treatment modality, but A.R.S. § 36-540.01(B)(4) does not require that
specificity. This lack of required specificity reflects the function of an
outpatient treatment plan, which addresses “conditional outpatient
treatment” in the future, and applies only after the medical director
determines the patient no longer requires continuous inpatient treatment.
See A.R.S. § 36-540.01(B) & (A)(1). Even when an outpatient treatment plan
becomes operative, this patient-focused requirement addresses the
patient’s “conditions for continued outpatient treatment.” A.R.S. § 36-
540.01(B)(4). Indeed, outpatient treatment can be rescinded, and the
individual returned to inpatient treatment, if “the patient has failed to
comply with a term of the outpatient treatment plan.” A.R.S. § 36-540.01(J).
For these reasons, it is no surprise that this statutory requirement for an
outpatient treatment plan does not require listing specific medications or
treatment modalities such as ECT. And J.M. has not shown any basis to
conclude that the medical director or the court believed it was necessary to
specify ECT “to protect the well-being of the patient and the public.” A.R.S.
§ 36-540.01(B)(5).

¶15 During oral argument before this court, J.M. argued that ECT
is a “different type of treatment,” meaning the statute should be read to
require disclosure of intended ECT use in an outpatient treatment plan. The
statute, however, does not require such disclosure and the Legislature
knows how to require disclosure and court approval when it wants to do
so. Indeed, treatment under a commitment order “shall not include
psychosurgery, lobotomy or any other brain surgery” without both prior
consent “and an order of the superior court.” A.R.S. § 36-540(L). Short of
that, however, the statute does not require disclosure or approval of
treatment modalities, including ECT, and this court will not imply such a
requirement in the statute. See In re M.N., 259 Ariz. at 141 ¶ 28 (citing cases).
For these reasons, J.M.’s argument that the written outpatient treatment
plan did not comply with A.R.S. § 36-540.01(B) fails.4

IV. J.M. Has Not Shown There is a Due Process Right to Disclosure of
ECT.

4 J.M.’s argument that ECT could be administered on an outpatient basis

but, as to J.M., was being administered on an inpatient basis, does not
change this conclusion.

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¶16 J.M.’s remaining argument is based on the thought that ECT
use was not disclosed before the May 2025 commitment order. Although
J.M. asserts that was fundamental error, the argument fails because it is not
factually supported regardless of the standard of review. The petition
disclosed that ECT was being used as a treatment modality for J.M. before
the evidentiary hearing on the petition and before the court issued the May
2025 commitment order. Accordingly, J.M. had notice of ECT as a treatment
modality before the May 2025 commitment order.

¶17 J.M.’s remaining due process arguments fail for the same
reason. Because he was given notice of ECT use, J.M. was not (as he argues
on appeal) “deprived of a full opportunity to exercise his right to an
independent evaluator” under A.R.S. § 36-538. In fact, even with notice of
ECT use, J.M. waived the right to obtain an independent evaluator. Nor has
J.M. shown that he was “deprived . . . of making an informed choice about
whether, and how, to cross-examine the hospital’s witnesses.” J.M. waived
any objections to the doctors’ affidavits, including waiving the right to have
them testify and to cross-examine them, instead stipulating to the
admission of the affidavits. Likewise, J.M. waived the right to cross-
examine the two observation witnesses who testified at the evidentiary
hearing. Further, J.M. has not shown that he was “denied the opportunity
to make an informed decision about whether to personally testify.” And,
although not formally testifying, J.M. addressed the court directly during
the hearing on more than one occasion.

¶18 J.M. also argues he was denied effective assistance of counsel.
To the extent this argument is based on the claim that ECT was not
disclosed, it is not factually supported. Apart from the notice issue, J.M. had
a right to effective assistance of counsel, requiring counsel to, at a
minimum, comply with the duties set forth in A.R.S. § 36-537(B). See In re
MH2010-002637, 228 Ariz. at 81-82 ¶¶ 28-31. J.M. has not shown a
deprivation of that right, or that he was otherwise deprived of effective
assistance of counsel. See A.R.S. § 36-537(B).

CONCLUSION

¶19 The commitment order is affirmed.

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