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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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: MH2019-007059

No. 1 CA-MH 19-0089

Appeal from the Superior Court in Maricopa County

No. MH2019-007059

The Honorable Julia Ann Mata, Judge Pro Tempore

AFFIRMED

COUNSEL

Maricopa County Attorney’s Office, Phoenix

By Anne C. Longo

Counsel for Appellee

John L. Popilek, P.C., Scottsdale

By John L. Popilek

Counsel for Appellant

FILED 9-29-2020
IN RE: MH2019-007059

Decision of the Court

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MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which 

Presiding Judge Jennifer B. Campbell and Judge Maurice Portley1 joined.

W I N T H R O P, Judge:

¶1 Appellant appeals a superior court order requiring he 

undergo involuntary inpatient mental health treatment. He argues the 

grounds for such order were not proven by clear and convincing evidence. 

For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In September 2019, the Medical Director at Desert Vista 

Hospital Behavioral Health Center submitted a petition for court-ordered 

evaluation of Appellant following a screening evaluation and the 

recommendation of a social worker at the Behavioral Health Center. That 

petition noted Appellant’s history of methamphetamine use, paranoia, 

delusions, a lack of insight into his mental health status, and current refusal 

to take prescribed medications.

¶3 Following a court-ordered evaluation of Appellant, Dr. Aaron 

Riley concluded Appellant met DSM-5 criteria for psychotic disorders. In 

the evaluation, Appellant denied he was suffering from any psychotic 

disorder but claimed to have overturned a Ninth Circuit court case that 

resulted in a $40 million settlement to be deposited on his Electronic Benefit 

Transfer card. Appellant denied all psychiatric symptoms, stated his 

prescribed medications were unnecessary, and continued to refuse to take 

the medication. Dr. Riley noted that Appellant’s family reported Appellant 

had experienced persistent psychotic symptoms for the past two years and 

that he exhibited aggressive and threatening tendencies in the home.

1 The Honorable Maurice Portley, Retired Judge of the Court of 

Appeals, Division One, has been authorized to sit in this matter pursuant 

to Article 6, Section 3, of the Arizona Constitution.
IN RE: MH2019-007059

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¶4 Dr. Riley filed a petition for court-ordered treatment of 

Appellant in October 2019, supported by an affidavit outlining his 

evaluation of Appellant’s mental status and summarizing the other relevant 

information gathered to date concerning Appellant’s mental health history 

and status. The affidavit documents Dr. Riley’s diagnosis that Appellant 

has an Unspecified Psychotic Disorder and Psychoactive Substance Use 

Disorder, rendering Appellant both persistently or acutely disabled and a 

danger to others. Dr. Riley recommended involuntary treatment based on 

the persistence of Appellant’s symptoms and Appellant’s continued 

agitated state while at the Behavioral Health Center.

¶5 Dr. Lydia Torio also met with Appellant, but her evaluation 

session with Appellant was interrupted by an unrelated patient emergency. 

When Dr. Torio returned to complete Appellant’s evaluation she was 

unable to proceed because Appellant refused to cooperate, despite multiple 

attempts by Dr. Torio to reengage Appellant. Accordingly, Dr. Torio

completed the evaluation based upon Appellant’s hospital chart

documentation and available mental health records and submitted an 

admissible affidavit.

2 In her affidavit, Dr. Torio noted Appellant’s refusal

to take medications and to participate in diagnostic laboratory work, and

his fear of mental health assessments, stating that doctors do not have 

permission to read Appellant’s mind. Dr. Torio diagnosed Appellant with 

Unspecified Psychotic Disorder, opined that Appellant was a danger to 

others and was persistently or acutely disabled and concluded that, under 

these circumstances, involuntary treatment was the only viable option to 

provide appropriate care to Appellant.

¶6 Appellant requested a hearing regarding the court-ordered 

evaluation which was held on October 2, 2019. Based on the petition and 

supporting affidavits, the court found reasonable cause to believe that, as a 

result of a mental disorder, Appellant was persistently or acutely disabled 

and a danger to others. Appellant was ordered detained pending 

involuntary inpatient evaluation.

2 While Arizona Revised Statutes (“A.R.S.”) section 36-539(B) requires 

physicians to conduct an evaluation, physicians need not engage in a 

confrontation with the patient or have the patient restrained to fulfill this 

requirement. In re Pima Cnty. No. MH-1140-6-93, 176 Ariz. 565, 568 (App.

1993); see In re MH2011-000914, 229 Ariz. 312, 315, ¶ 11 (App. 2012) (holding 

patient cannot thwart examination and later claim State did not meet its 

burden).
IN RE: MH2019-007059

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¶7 An evidentiary hearing regarding the petition for courtordered treatment was conducted on October 8, 2019. Prior to attending 

the hearing, Appellant was evaluated and determined to be clear of any 

medications that might hamper his ability to participate in the hearing.

3

¶8 Both parties agreed to the admission of Drs. Riley’s and 

Torio’s affidavits and Appellant’s 72-hour medication affidavit; however, 

Appellant reserved any objections to statutory compliance or to the 

conclusions contained in the affidavits. The court also heard testimony 

from two hospital nurses involved in Appellant’s care at the Behavioral 

Health Center. These witnesses testified to Appellant’s demonstrated and 

continuing signs of mental disorder, including incoherent conversations, 

outbursts, irritability, aggression, self-talk, delusional comments, and 

refusal to take prescribed medications.

4 Appellant did not offer any 

contravening expert testimony, but did testify regarding his understanding 

of the nature of the hearing and his assessment of his mental health status.

¶9 At the conclusion of the hearing, the court dismissed the 

danger-to-others allegation for insufficient evidence and proceeded to rule 

on the persistent-or-acute-disability allegation. Based on the evidence 

presented, the court found Appellant was suffering from a mental disorder, 

was persistently and acutely disabled and was in need of but unwilling to 

accept voluntary psychiatric treatment. Accordingly, the court ordered 

Appellant to undergo 180 days of inpatient treatment.

3 At the start of the hearing, Appellant requested to represent himself 

in lieu of his appointed attorney. Appellant acknowledged he had a right 

to have an attorney present, but argued he had a background in paralegal 

studies that provided him adequate insight into the proceedings. The court 

initially granted Appellant’s request to proceed pro per. But, after outbursts 

by the Appellant, the court reviewed Appellant’s medication affidavit, 

found a history of non-compliance, and reversed its prior ruling and 

reappointed Appellant’s attorney.

4 To the extent Appellant suggests the nurses’ testimony lacked 

foundation and/or was insufficient to support the court’s ultimate finding, 

we note “acquaintance” witnesses are only required to have relevant 

knowledge of the alleged mental disorder, In re MH2012-002480, 232 Ariz. 

421, 423, ¶ 9 (App. 2013), and familiarity with the patient at the time the 

mental disorder was alleged. In re Coconino Cnty. No. MH 1425, 181 Ariz. 

290, 292 (1995).
IN RE: MH2019-007059

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¶10 Appellant filed a timely notice of appeal from the treatment 

order. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 36-

546.01.

ANALYSIS

I. Mootness

¶11 Appellant’s court-ordered treatment expired on April 6, 2020,

and he has completed his 180-day confinement term. As such, Appellee 

argues this appeal became moot during the appellate process and should 

be dismissed.

¶12 Generally, appellate courts will not consider moot questions. 

Slade v. Schneider, 212 Ariz. 176, 179, ¶ 15 (App. 2006). In our discretion, 

however, we may choose to address a moot question when the order at 

issue entails collateral consequences that will continue to affect a party. In 

re M.H. 2007-001236, 220 Ariz. 160, 165, ¶ 12 n.3 (App. 2008). We exercise 

that discretion in light of the potential collateral consequences of an 

involuntary treatment order upon Appellant’s future interests and, unless 

otherwise stated, we consider the merits of Appellant’s arguments in this

appeal.

II. Sufficiency of Evidence

¶13 Appellant argues the evidence was insufficient to support an 

order for involuntary treatment. Appellant contends that Appellee did not 

prove the elements of subsection (a) of § 36-501(32) by clear and convincing 

evidence because the evidence submitted did not establish that a

“significant impairment” would persist if Appellant were left untreated. 

We disagree.

¶14 We generally review the superior court’s decision for an 

abuse of discretion and will not vacate an order for involuntary treatment 

unless it is clearly erroneous or unsupported by substantial evidence. Id. at 

¶ 15; MH-1140-6-93, 176 Ariz. at 566.

¶15 To order involuntary treatment, the court must, among other 

statutory requirements, find by clear and convincing evidence that a patient 

“has a persistent or acute disability” resulting from a mental disorder, for 

which the patient is unwilling or unable to accept voluntary treatment. 

A.R.S. § 36-540(A). To find that the clear and convincing standard has been 

met, the record must contain all statutorily required information, including 
IN RE: MH2019-007059

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medical evidence describing the patient’s disorder to a reasonable degree 

of medical certainty. M.H. 2007-001236, 220 Ariz. at 164, ¶ 10.

¶16 A physician’s finding of “persistent or acute disability” must 

meet the definitional criteria provided in A.R.S. § 36-501(32).

5 The inclusion 

of a “significant” impairment in the statute generally limits a physician’s 

finding of persistent or acute disability to instances where an untreated 

disorder has the probability of rising to a level of harm that would impair 

the individual’s judgment or capacity to recognize reality. In re Maricopa 

Cnty. MH 90-00566, 173 Ariz. 177, 183 (App. 1992).

¶17 Here, the physicians’ affidavits established Appellant was 

disabled based on clinical interviews, family input, and chart review 

demonstrating the patient was experiencing on-going paranoia, delusional 

thinking, hallucinations, and disorganized thought. The evidence, 

including the testimony from the nurses, was replete with reported 

instances of Appellant’s past and continuing diminished capacity to 

recognize reality, including the beliefs that he won millions of dollars from 

the Powerball lottery and that he won a $40 million settlement from 

overturning a Ninth Circuit case. The record also shows Appellant engaged 

in dangerous behavior such as “holding onto knives in his home because 

5 A “persistent or acute disability” as defined in § 36-501(32) is one 

that:

(a) If not treated has a substantial probability of causing the person 

to suffer or continue to suffer severe and abnormal mental, 

emotional or physical harm that significantly impairs judgment, 

reason, behavior or capacity to recognize reality. 

(b) 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 particular treatment 

offered after the advantages, disadvantages and alternatives are 

explained to that person.

(c) Has a reasonable prospect of being treatable by outpatient, 

inpatient or combined inpatient and outpatient treatment.
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he thinks people are following him.” The affidavits and other testimony 

established that Appellant was refusing to follow his treatment plan and 

felt that medications prescribed for his safety and mental health were 

unnecessary. The physicians reasonably concluded that, without 

treatment, Appellant would continue to suffer. On this record, substantial

evidence supports the court’s finding that Appellee established the 

probability for potential harm arising from Appellant’s impaired judgment

and demonstrated inability to recognize reality.

CONCLUSION

¶18 For the foregoing reasons, we affirm the superior court’s 

order for Appellant’s involuntary mental health treatment.