In Re: Mh 2020-004882

I
                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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: MH2020-004882

                            No. 1 CA-MH 20-0090
                                1 CA-MH 20-0098
                                (Consolidated)
                              FILED 4-1-2021


           Appeal from the Superior Court in Maricopa County
                          No. MH2020-004882
                              MH2020-005526
               The Honorable Aryeh D. Schwartz, Judge

                                  AFFIRMED


                                   COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Anne C. Longo, Tawn T. Tao
Counsel for Appellee

Maricopa County Legal Defender’s Office, Phoenix
By Cynthia D. Beck
Counsel for Appellants



                       MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge Randall M. Howe joined.
                          IN RE: MH 2020-004882
                           Decision of the Court

C R U Z, Judge:

¶1           In this consolidated appeal, J.H. and M.P. appeal superior
court orders requiring they each undergo involuntary inpatient and
outpatient mental health treatment. For the following reasons, we affirm.

               FACTUAL AND PROCEDURAL HISTORY

I.    Appellant J.H., MH 20-0090

¶2           F.M. is a licensed independent clinical social worker
employed at a hospital emergency room, serving as “crisis intervention” for
individuals who have made threats of self-harm. In this role, F.M. assesses
whether a patient can be safely discharged and sent home or requires
admission to the hospital for further evaluation by a psychiatrist.

¶3             J.H. went to the hospital for chest pains, and while in the
emergency room, he made statements to his attending nurse about harming
himself. J.H.’s attending nurse notified F.M. F.M. made contact with J.H.
to determine whether J.H. was suicidal and “oriented to person, place,
time.” F.M. warned J.H. that the confidentiality of their conversation had
limits, and if J.H. made statements about harming himself or others, F.M.
would be required to report it “to the appropriate authorities.”

¶4            J.H. told F.M. that he felt “unstable” and had thoughts of
cutting his wrists. F.M. asked J.H. if he had ever had these thoughts before,
and J.H. stated he had previously attempted suicide twice. F.M. asked J.H.
if he was taking the medications prescribed for his mental health, and J.H.
said he was not. Based on these statements, F.M. deemed it unsafe to
discharge J.H. and offered J.H. voluntary admission to the hospital to
undergo a psychiatric evaluation. J.H. said he would “think about it,”
although F.M. made it clear that J.H. would not be able to leave the hospital
because he was found to be at high risk for suicide. F.M. gave a voluntary
consent form to J.H. and left the room to give J.H. time to think.

¶5           F.M. returned to J.H.’s hospital room, and J.H. refused to sign
the voluntary consent form. F.M. notified J.H. that he would initiate an
involuntary petition, and J.H. began yelling, cursing, and making threats
towards F.M. F.M. filed a petition for a court-ordered evaluation and
emergency admission. J.H. was subsequently hospitalized and was
evaluated; the evaluating physicians opined that J.H. required inpatient
and outpatient treatment. Due to J.H.’s unwillingness to cooperate with a
voluntary treatment plan, a petition for court-ordered treatment was filed.



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                          IN RE: MH 2020-004882
                           Decision of the Court

¶6            An evidentiary hearing was held on the petition, which
requires that two acquaintance witnesses testify. See Ariz. Rev. Stat.
(“A.R.S.”) § 36-539(B). J.H. objected to F.M. testifying on the grounds he
and F.M. had a confidential behavioral health professional-client
relationship. After voir dire of F.M., the superior court found a confidential
behavioral health professional-client relationship did not exist, and it
permitted F.M. to testify as an acquaintance witness.

¶7             Following the testimony of F.M. and J.H.’s grandfather, and
after its review of the affidavits from the evaluating physicians, the court
found by clear and convincing evidence that J.H. “is suffering from a mental
disorder and, as a result, is persistently or acutely disabled, is a danger to
self and is in need of treatment and is either unwilling or unable to accept
voluntary treatment.” The court ordered J.H. to undergo combined
inpatient and outpatient treatment until he was no longer persistently or
acutely disabled, for a maximum of 365 days. J.H. timely appealed the
treatment order.

II.    Appellant M.P., MH 20-0098

¶8            W.G. is a licensed clinical social worker employed at a
hospital. M.P. came to that hospital’s emergency room due to psychosis,
and W.G. spoke with M.P. W.G. told M.P. that she would be asking
questions to determine if there was a risk M.P. may harm herself or others,
and if M.P. disclosed anything regarding those questions, those statements
would not be confidential. W.G. told M.P. that the statements she made
could be used in a petition for court-ordered treatment and as testimony in
a hearing related to such a petition.

¶9           W.G. noted that M.P. appeared to be very agitated and M.P.
stated she was experiencing “audio from the outside,” which caused her to
have thoughts about harming herself and suicide. W.G. tried to learn more
information about M.P.’s mental health history, but M.P. was fixated on the
audio and continued to make statements that “she didn’t want to be here”
anymore and that it “wasn’t worth it to live.” W.G. told M.P. that she
required mental health treatment, but M.P. was uncooperative and refused
voluntary treatment. M.P. stated she had gone to a psychiatric hospital
before and did not want to return because “they lied to her.” She stated she
stopped taking her psychiatric medications because they did not work.

¶10           W.G. filed a petition for a court-ordered evaluation, and M.P.
was involuntarily hospitalized for evaluation. M.P. objected to her
hospitalization and sought to participate in the evaluation process as



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                           IN RE: MH 2020-004882
                            Decision of the Court

outpatient. However, following a hearing, the superior court found
“reasonable cause to believe the proposed patient, as a result of a mental
disorder, is persistently or acutely disabled, danger to self, as alleged in the
Petition.” The court further found that M.P. would not voluntarily be
present for a court evaluation if she was released, and it ordered that she
“continue to be detained pending the involuntary inpatient evaluation.”

¶11          M.P. was subsequently evaluated and the evaluating
physicians opined that M.P. required inpatient treatment and intensive case
management under court order until she was stable enough for outpatient
treatment. A petition for court-ordered treatment was filed.

¶12            During the evidentiary hearing on the petition, M.P. objected
to W.G.’s testifying as an acquaintance witness due to an alleged
confidential behavioral health professional-client relationship. After voir
dire, the court found a confidential behavioral health professional-client
relationship did not exist and allowed W.G.’s testimony. Following the
testimony of W.G. and M.P.’s mother, and after reviewing the evaluating
physicians’ affidavits, the court found by clear and convincing evidence
that M.P. “is suffering from a mental disorder and, as a result, is persistently
or acutely disabled, is in need of treatment and is either unwilling or unable
to accept voluntary treatment.” The court ordered M.P. to undergo
combined inpatient and outpatient treatment until she was no longer
persistently or acutely disabled, for a maximum of 365 days. M.P. timely
appealed the treatment order.

¶13          We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1)
and 36-546.01.

                               DISCUSSION

¶14            Appellants argue that their treatment orders must be vacated
because the State did not comply with the statutory requirements of A.R.S.
§ 36-539(B). Appellants both allege that one of their two witnesses was not
permitted to testify due to a confidential behavioral health professional-
client relationship under A.R.S. § 32-3283. “The scope of the behavioral
health professional-client privilege is a question of law we review de novo.”
In re MH2019-004895, 

249 Ariz. 283

, 286, ¶ 6 (App. 2020). We review issues
of statutory interpretation de novo, but we view the facts in the light most
favorable to upholding the superior court’s judgment and will not set aside
its findings unless clearly erroneous. In re MH 2001-001139, 

203 Ariz. 351

,
353, ¶ 8 (App. 2002); In re MH 2008-002596, 

223 Ariz. 32

, 35, ¶ 12 (App. 2009).

¶15           Section 32-3283(A) provides:


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                          IN RE: MH 2020-004882
                           Decision of the Court

       The confidential relationship between a client and a licensee,
       including a temporary licensee, is the same as between an
       attorney and a client. Unless a client waives this privilege in
       writing or in court testimony, a licensee shall not voluntarily
       or involuntarily divulge information that is received by
       reason of the confidential nature of the behavioral health
       professional-client relationship.

A.R.S. § 32-3283(A).

¶16           Section 32-3251(2) defines client as a “patient who receives
behavioral health services from a person licensed pursuant to this chapter.”
“Practice of behavioral health” includes “professional counseling,” and
“[p]ractice of professional counseling” refers to “the professional
application of mental health, psychological and human development
theories, principles and techniques to:” (a) “[f]acilitate human development
and adjustment throughout the human life span”; (b) “[a]ssess and facilitate
career development”; (c) “[t]reat interpersonal relationship issues and
nervous, mental and emotional disorders that are cognitive, affective or
behavioral”; (d) “[m]anage symptoms of mental illness”; and (e) “[a]ssess,
appraise, evaluate, diagnose and treat individuals, couples, families and
groups through the use of psychotherapy.” A.R.S. § 32-3251(8), (10).
“Psychotherapy” is defined as “a variety of treatment methods developing
out of generally accepted theories about human behavior and
development.” A.R.S. § 32-3251(14).

¶17           F.M. testified that he did not provide therapy or counseling
during his interaction with J.H. and spoke with J.H. for only about fifteen
to twenty minutes. Similarly, W.G. testified that she did not provide M.P.
with any counseling or psychotherapy, and those services were not part of
her job. W.G. also spoke to M.P. on only one occasion and for about forty-
five minutes. Both F.M. and W.G. spoke to Appellants in the emergency
room of hospitals to determine only whether Appellants posed a risk of
harm to themselves or to others or required hospitalization to prevent such
harm from occurring.

¶18           Appellants, however, claim F.M. and W.G. provided
behavioral health services to them and formed a confidential relationship
with them during their interactions. Appellants cite MH2019-004895, which
found a behavioral health professional had a confidential relationship with
the patient, and her testimony as an acquaintance witness should not have
been 

permitted. 249 Ariz. at 289

, ¶¶ 17-18. The facts of that case differ from
those in the cases of J.H. and M.P., however. In MH2019-004895, the


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                          IN RE: MH 2020-004882
                           Decision of the Court

acquaintance witness at issue was a professional counselor, assigned to the
patient as a clinical liaison for her outpatient mental health services.

Id. at
285, ¶ 2.

The counselor had an on-going relationship with the patient,
speaking with the patient on about twelve different occasions.

Id. at 287,
¶ 12.

The counselor also admitted to having a confidential relationship
with the patient.

Id. at ¶ 13.

¶19

          MH2019-004895 also differs because “[n]o testimony was
offered showing that [the patient] was informed that her . . . interaction with
[the counselor], or any prior interactions, fell outside the scope of a
behavioral health professional client 

relationship.” 249 Ariz. at 287

, ¶ 13.
Here, the purpose of the conversations was to determine J.H. and M.P.’s
risk of suicide. Both F.M. and W.G. made clear that any statements
Appellants made about harming themselves would not remain
confidential. See 

MH2019-004895, 249 Ariz. at 286

, ¶ 7 (“[T]he behavioral
health professional-client privilege prohibits testimony that falls ‘within the
scope of the privilege.’”) (quoting Bain v. Superior Court, 

148 Ariz. 331

, 334-
36 (1986)). W.G. went so far as to tell M.P. that the statements she made
could be used in a petition for treatment or as testimony in a hearing. Based
on F.M.’s and W.G.’s pre-discussion warnings, it would be unreasonable
for Appellants to believe these statements would remain confidential. See
In re Pima Cnty. Mental Health Case No. MH1717-1-85, 

149 Ariz. 594

, 596
(App. 1986); State v. Ortiz, 

144 Ariz. 582

, 583-84 (App. 1985).

¶20            Nothing in the record suggests that the interactions between
F.M. and W.G. and Appellants rose to the level of behavioral health
services, thereby establishing a confidential behavioral health professional-
client relationship under A.R.S. § 32-3283. Accordingly, the superior court
did not err in allowing F.M. and W.G. to testify as acquaintance witnesses
at each of the two hearings on the petitions for court-ordered treatment.

                              CONCLUSION

¶21           For the foregoing reasons, we affirm.




                           AMY M. WOOD • Clerk of the Court
                           FILED: AA



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