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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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.

FILED 2-22-2022
IN RE: DANIEL G.

Decision of the Court

2

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 

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

refer to the current version unless otherwise indicated.
IN RE: DANIEL G.

Decision of the Court

3

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).
IN RE: DANIEL G.

Decision of the Court

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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 crossexamined 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.
IN RE: DANIEL G.

Decision of the Court

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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 
IN RE: DANIEL G.

Decision of the Court

6

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).
IN RE: DANIEL G.

Decision of the Court

7

¶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 
IN RE: DANIEL G.

Decision of the Court

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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.