IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

IN THE MATTER OF COLTON P.

No. 1 CA-MH 16-0026

Appeal from the Superior Court in Navajo County

No. S0900MH201600024

The Honorable Michala M. Ruechel, Judge

AFFIRMED

COUNSEL

Emery K. LaBarge, Attorney at Law, Snowflake

By Emery K. LaBarge

Counsel for Appellant

Navajo County Attorney’s Office, Holbrook

By Jason S. Moore

Counsel for Appellee
IN THE MATTER OF COLTON P.

Opinion of the Court

2

OPINION

Chief Judge Michael J. Brown delivered the opinion of the Court, in which 

Presiding Judge Samuel A. Thumma and Judge Patricia A. Orozco1 joined.

B R O W N, Chief Judge:

¶1 Colton P. (“Appellant”) appeals the superior court’s order 

committing him to a period of psychiatric treatment. For the following 

reasons, we affirm.

BACKGROUND

¶2 In April 2016, the Pineview Hospital medical director 

petitioned the superior court for court-ordered evaluations, alleging that 

Appellant was a danger to himself, a danger to others, persistently and 

acutely disabled, and in need of treatment. Finding reasonable cause, the 

court ordered that Appellant be evaluated. 

¶3 Following the evaluation, the Pineview medical director

petitioned for court-ordered treatment. The physician affidavits 

supporting the petition described Appellant as having an impulse disorder,

which caused him to have poor judgment and insight regarding his 

treatment needs. 

¶4 The superior court scheduled an evidentiary hearing on the 

petition and directed that a digital recording be made of the proceeding. At 

the April 28 hearing, the court heard testimony from witnesses and 

admitted several exhibits, including the affidavits signed by the two

physician witnesses and Appellant’s Individual Service Plan (“ISP”). The 

ISP described Appellant’s history of a suicide attempt and physical violence 

against his parents, and stated he had run away from his previous 

placement and into traffic. The physician affidavits stated Appellant had 

two reported traumatic brain injuries as a child and that he has an impulse 

disorder. Following the hearing, the court found Appellant needed

 

1 The Honorable Patricia A. Orozco, Retired Judge of the Court of 

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

to Article VI, Section 3 of the Arizona Constitution.
IN THE MATTER OF COLTON P.

Opinion of the Court

3

treatment as set forth in the petition. The court ordered Appellant to 

undergo a combination of inpatient and outpatient treatment not to exceed 

one year in total duration, with the inpatient treatment not to exceed 180

days. 

¶5 Appellant timely appealed. In attempting to prepare a 

transcript of the April 28 hearing, however, the Navajo County 

Transcription Coordinator reported the digital recording was inaudible 

because it had too much “background and feedback” noise. Appellant then 

filed a motion asking us to remand the case to the superior court for a “new 

hearing.” We issued an order staying the appeal and directing the superior 

court to settle the record pursuant to Arizona Rule of Civil Appellate 

Procedure (“ARCAP”) 11. After conducting a hearing, the court issued a 

minute entry outlining the recollections of counsel and the court as to the 

evidence presented at the April 28 hearing. We now consider the merits of 

the appeal based on the record before us.

DISCUSSION

¶6 Appellant’s sole argument on appeal is that the superior court 

failed to substantively comply with the statutory requirement that it hear 

testimony from two acquaintance witnesses, because there is no transcript 

of the witnesses’ testimony from the commitment hearing. Appellant does 

not raise any substantive argument regarding the content of the witnesses’ 

testimony or otherwise challenge the sufficiency of the totality of the 

evidence presented at the hearing. 

¶7 We review questions concerning the application of statutes de 

novo. In re MH 2007-001236, 220 Ariz. 160, 165, ¶ 15 (App. 2008) (citations 

omitted). Statutory requirements concerning civil commitment are strictly 

construed to protect the liberty interests of those involved. Id. (citation 

omitted). At a hearing on a petition for court-ordered treatment, Arizona 

law requires that the evidence presented include “the testimony of two or 

more witnesses acquainted with the patient at the time of the alleged mental 

disorder.” Ariz. Rev. Stat. (“A.R.S.”) § 36-539(B). Regarding the 

transcription of hearings on petitions for court-ordered treatment, A.R.S. 

§ 36-539(E) provides: 

A verbatim record of all proceedings under this section shall 

be made by stenographic means by a court reporter if a 

written request for a court reporter is made by any party . . . . 

If stenographic means are not requested . . . , electronic means 

shall be directed by the presiding judge. 
IN THE MATTER OF COLTON P.

Opinion of the Court

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¶8 Our supreme court has held that when a portion of the record 

is destroyed or unavailable, the proper procedure “is to file in the court in 

which the appeal is pending, a motion to suspend the progress of the appeal 

and to reinstate the [superior] court’s jurisdiction over the case for the 

limited purpose of reconstructing the record.” Rodriguez v. Williams, 104 Ariz. 

280, 283 (1969) (emphasis added). The superior court should then “assist 

counsel to overcome the loss of the missing records[.]” Id. Further, where 

no transcript is available for appellate review, “the appellant may prepare 

and file a narrative statement of the evidence or proceedings from the best 

available source, including the appellant’s recollection.” ARCAP 11(d). 

The narrative statement must then be reviewed and approved by the 

superior court judge. Id. 

¶9 On remand in this case, the superior court held a hearing to

reconstruct the record. During this hearing, at which Appellant’s trial and 

appellate counsel were both present, the court noted that at the April 28

evidentiary hearing on the petition “two lay witnesses, Devon Lawrence 

and Barbara Stone . . . testified regarding their observations of behavior by 

[Appellant].” The court also listed the physician witnesses and referenced 

the exhibits that had been admitted. Nevertheless, Appellant asserts on 

appeal that the parties “did not stipulate to any of the record” and that “no 

evidence . . . was presented from two acquaintance witnesses,” as required 

by A.R.S. § 36-539(B). 

¶10 Contrary to this contention, at the hearing called to 

reconstruct the record, Appellant’s trial counsel responded to the court’s 

summary of the evidence and witnesses by indicating he did not have any 

objection to the exhibits and he was “in agreement with who testified.” 

Appellant’s trial counsel also had the opportunity to add to the record his 

recollection of the testimony and evidence presented at the original hearing;

but neither party discussed the content of the lay witnesses’ testimony. 

Further, the court asked multiple times whether there was anything else the 

parties wished to add to the record. Neither Appellant’s trial counsel nor 

appellate counsel noted any deficiencies in the record or asked to 

reconstruct the testimony of the lay witnesses. Appellant’s trial counsel 

could have supplemented the record with his own recollection of the 

testimony, but did not do so. See ARCAP 11(d). 

¶11 “It is the appellant’s burden to ensure that the record on 

appeal contains all transcripts or other documents necessary for us to 

consider the issues raised.” Blain v. Burgener, 226 Ariz. 213, 217, ¶ 9 (App. 

2010) (internal quotations and citation omitted). This is because we are 

unable to determine the validity of an appellant’s contention when we 
IN THE MATTER OF COLTON P.

Opinion of the Court

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cannot review the evidence upon which the appellant relies. Cf. Adams v. 

Valley Nat’l Bank of Ariz., 139 Ariz. 340, 342 (App. 1984) (stating appellate 

courts prefer to decide cases on their merits, rather than on procedural 

grounds). But when portions of a trial record are not available because they 

no longer exist, the appellate court should reinstate the superior court’s 

jurisdiction for reconstruction of the record and thereby provide the 

appellant a reasonable opportunity to pursue the appeal. See Rodriguez, 104 

Ariz. at 282-83. However, it is not the superior court’s responsibility to 

independently reconstruct the record for the appellant, but only to “assist”

the parties in doing so, pursuant to the appellant’s available remedies under 

Rule 11. See id.; see also ARCAP 11(d). 

¶12 Appellant suggests the superior court failed to follow our 

order requiring it to transmit its “written findings and/or the reconstructed 

materials” to this court. The superior court, however, was not required to 

make any specific findings or provide additional materials. The verbatim 

discussion between the superior court and counsel is reflected in the 

reconstruction hearing transcript and is summarized in the court’s minute 

entry. The transcript and minute entry constitute “reconstructed materials” 

as contemplated by ARCAP 11(g). 

¶13 We conclude that the record on appeal in this case, as 

reconstructed by the parties and the superior court, confirms that the 

statutory requirement of receiving testimony from two acquaintance 

witnesses under A.R.S. § 36-539(B) was satisfied.

CONCLUSION

¶14 We affirm the superior court’s order committing Appellant to 

a period of combined inpatient and outpatient psychiatric treatment.