¶ 1 In this appeal from the trial court’s order involuntarily committing Appellant, we are asked to decide two issues. First, when the patient is absent from the evidentiary hearing required by Arizona Revised Statutes (“AR.S.”) section 36-539(C) (Supp. 2010), may the court proceed with that hearing without first finding that the patient can
not
¶2 For the reasons stated below, we remand this matter to the trial court for further proceedings consistent with this decision. If the court ultimately decides that Appellant could have been present by other means and/or counsel did not meet the statutory duties under A.R.S. § 36-537(B), the court shall vacate the order of commitment, but may hold a new hearing to determine if Appellant is still in need of services under the civil commitment statutes.
FACTUAL AND PROCEDURAL HISTORY
¶3 Appellant, a diagnosed schizophrenic, was admitted to Banner Good Samaritan Hospital after losing twenty-six pounds over the prior four-week period. Appellant was coughing severely and appeared to be quite ill. The Good Samaritan medical team determined that Appellant had a low white blood cell count, but was unable to determine the cause due to Appellant’s repeated refusal to submit to treatment.
¶4 On November 23, 2010, after Appellant’s continued refusal to accept treatment, a deputy medical director successfully petitioned for a court-ordered evaluation of Appellant. The order also appointed the public defender to represent Appellant. Appellant was then transferred from Good Samaritan to Maricopa Medical Center, where his mental and physical health were evaluated. On November 30, 2010, deputy medical director Boskailo filed a petition for court-ordered treatment. Dr. Boskailo asserted that Appellant was persistently or acutely disabled and that he was in need of a combination of in- and out-patient treatment.
¶ 5 Appellant was again appointed the public defender to represent him at the civil commitment hearing, which was scheduled for December 7, 2010. At the beginning of the hearing, Petitioner called Dr. Bailón to testify in regard to Appellant’s absence from the hearing. Since Dr. Bailón was also unable to physically attend, the court allowed her to testify telephonically. Dr. Bailón testified that it would not be possible for Appellant to physically attend the hearing or for the hearing to be physically brought to him. She stated that Appellant was in isolation because he had a dangerously low white blood cell count. His condition gravely increased his risk of contracting an infection and made it impossible for him to have contact with anyone outside of his medical team and his social worker. Dr. Bailón said she did not believe that Appellant’s condition would improve quickly enough to allow him to attend in person if the hearing was moved within the six-day window established by A.R.S. § 36-535(B) (Supp.2010), which would expire the following day.
¶ 6 During the cross-examination of Dr. Bailón, Appellant’s counsel stated that he had not met or talked with Appellant, as required by A.R.S. § 36-537(B), because Appellant was in isolation due to his medical condition. Counsel stated that Appellant’s prior attorney, who apparently was also with the public defender’s office, had talked to Appellant, who wanted the hearing held without a continuance beyond the six-day statutory requirement. However, the hearing counsel was unaware whether Appellant desired to attend the hearing. After this admission, counsel proceeded to ask Dr. Bailón to further explain why Appellant could not attend and why it would be inadvisable to have the hearing moved to Appellant’s location.
¶ 7 Counsel did not suggest that Appellant could participate at the hearing by other
¶8 Counsel then stipulated to the admission of the affidavits of Dr. Boskailo and another doctor named Pinson. These affidavits indicated that Appellant was persistently or acutely disabled and in need of involuntary commitment. Once the affidavits were entered in evidence, Petitioner called two witnesses, Nurse Janssen and Scott Chasan, to testify in support of Dr. Boskailo’s and Dr. Pinson’s conclusions.
¶ 9 Nurse Janssen testified about her experiences with Appellant while he was hospitalized at Good Samaritan. Specifically, she testified Appellant was “very disheveled and refusing ... his care.” During cross-examination, counsel asked Nurse Janssen only whether she personally thought Appellant needed psychiatric help and whether she had offered it to him. These questions did nothing to undermine Petitioner’s case. If anything, they provided Nurse Janssen with an opportunity to give lay-opinion testimony about the need to involuntarily commit Appellant for treatment.
¶ 10 Petitioner then called Mr. Chasan to testify about Appellant’s past and present mental and physical condition. Appellant’s counsel chose not to cross-examine Mr. Cha-san. Furthermore, Appellant’s counsel did not offer any evidence on behalf of Appellant and did not give a closing argument.
¶ 11 After both parties rested, the trial coui’t found by clear and convincing evidence that Appellant was persistently or acutely disabled and in need of court-ordered mental health treatment. The court then committed him to mandatory combined in- and outpatient treatment. The court ordered the treatment to continue until Appellant was no longer persistently or acutely disabled, but limited the treatment to a maximum of 180 days of in-patient treatment and 365 days of total treatment. 2
¶ 12 Appellant timely appealed. We have jurisdiction pursuant to AR.S. §§ 12-2101(B), (K)(l) (2003) and 36-546.01 (2009).
STANDARD OF REVIEW
¶ 13 “We review the application and interpretation of statutes as well as constitutional claims
de novo
because they are questions of law.”
In re MH 2007-001275,
DISCUSSION
¶ 14 Appellant argues he was denied: (1) Procedural due process when the trial court waived his presence under AR.S. § 36-539(C) without inquiring into alternative means of appearance; and (2) Effective assistance of counsel at the hearing.
I. The trial court had an independent duty to inquire into alternative means of appearance.
¶ 15 While it is uncontested that Appellant could not physically attend the hearing, Appellant argues that it was error for the trial coui’t to proceed without his presence under A.R.S. § 36-539(C) without first establishing that he could not appear through alternative means. We agree. 3
¶ 17 Under Mathews, we are to consider the following three factors when determining “the specific dictates of due process”:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
¶ 18 As to the first factor, it is uncontested that a patient’s liberty can be massively curtailed through civil commitment.
Vitek,
¶ 19 As to the second factor, risk of an erroneous deprivation of such interest through the procedures used, the Supreme Court has recognized that a civil commitment case “turns on the
meaning
of the facts which must be interpreted by expert psychiatrists and psychologists.”
Addington,
The subtleties and nuances of psychiatric diagnosis render certainties virtually beyond reach in most situations____ Psychiatric diagnosis ... is to a large extent based on medical “impressions” drawn from subjective analysis and filtered through the experience of the diagnostician. This process often makes it very difficult for the expert physician to offer definite conclusions about any particular patient.
Id.
at 430,
¶ 20 Section 36-539 outlines Arizona’s procedural requirements for a civil commitment hearing. It mandates that “[t]he patient and the patient’s attorney shall be present at all hearings,” thereby ensuring that the patient has a meaningful opportunity to be heard. A.R.S. § 36-539(B). However, A.R.S. § 36-539(C) provides that a court may continue a civil commitment hearing in the patient’s absence “[i]f the patient, for medical reasons, is unable to be present at the hearing and the hearing cannot be conducted where the patient is being treated or confined.” When a patient is absent, the patient is no longer afforded the opportunity to be heard personally and possibly observed by the court, which participation might assist the court in determining the alleged need for court-ordered mental health treatment.
¶ 21 Appellant urges us to require the trial court to consider alternate means for the patient to participate prior to proceeding without the patient being present. One alternative Appellant proposes is that the trial court should inquire into whether the patient can appear telephonically. This alternative is sensible considering that we have already held that appearance by telephone provides a meaningful opportunity to be heard and “is an appropriate alternative to personal appearance.”
Dep’t of Econ. Sec. v. Valentine,
¶ 22 Third, we are hard pressed to find any government interest in precluding a patient from appearing telephonically or remotely or in not requiring a trial court to simply inquire as to such an appearance. In fact, the Arizona Supreme Court has already held that “allowing telephonic testimony [at a civil commitment hearing] serves important governmental interests.” Id. 4 When we consider the state’s strong public policy to have the patient attend the civil commitment hearing, as articulated in A.R.S. § 36-539, we see no reason why it is not also in the petitioner’s interest to allow a patient, who otherwise could not attend, to appear telephonically or remotely if feasible.
¶ 23 When Appellant’s trial counsel has not inquired into whether the patient desires to attend the hearing and whether electronic attendance is feasible, we conclude that Mathews requires the court to at least consider alternative means of appearance when the patient cannot otherwise attend. Our holding is based upon considerations of the patient’s substantial interest, the increased risk of error when a patient does not have the opportunity to be heard, the ease of providing the patient with an alternative means of attending the hearing, and the important government interest in having the patient attend the hearing.
¶ 24 In addition to
Mathews,
the dictates of A.R.S. § 36-539(C) also support our holding. When construing the meaning of a statute, “[w]e give clear and unambiguous statutory language its plain and ordinary meaning unless absurd consequences would result.”
State v. Hasson,
¶ 25 On its face, AR.S. § 36-539(0 appears to allow the trial court to proceed with the hearing in the patient’s absence when the patient, due to medical reasons, is unable to be physically present at the hearing and the hearing cannot physically be conducted where the patient is located. However, a patient should not be denied the right to be present simply because he or she is medically unable to physically attend. The spirit and purpose of AR.S. § 36-539(B) and (C) are clear: the patient has the right to attend the civil commitment hearing.
In re MH 2006-000749,
¶26 Accordingly, we interpret the terms “present” and “conducted” in A.R.S. § 36-539(C) in a less hypertechnieal manner. While hearings once had to be conducted in person, that is no longer the ease. With today’s technology, a hearing can be conducted telephonically from multiple locations and telephonic testimony is expressly condoned.
MH-2008-000867,
¶ 27 At the hearing, there was no evidence that the patient chose to waive his right to be present. Similarly, while the record indicates that Appellant’s medical condition prevented him from physically attending the hearing, there is nothing to suggest that Appellant was unable to appear through some other means. Accordingly, we remand this matter for additional factfinding on this issue. If the trial court finds that Appellant could have appeared by another means, it should vacate the order of commitment and hold a new commitment hearing, if necessary.
II. Effective assistance of counsel.
¶28 Appellant also argues that he was denied effective assistance of counsel because his appointed counsel at the hearing never interviewed him, did not seek to have him participate at the hearing, offered no evidence at the hearing to oppose the petition, cross-examined only one witness (which permitted that witness to testify about the need for mental health treatment) and made no closing argument. Petitioner conceded at oral argument on appeal that Appellant has a right to effective assistance of counsel. We agree that Appellant has a right to effective assistance of counsel and on this record, remand to the trial court to determine if counsel failed to meet his obligations under A.R.S. § 36-537.
¶ 29 Under A.R.S. § 36-528(D) (2009), - 535(A), -536(A), and -539(B) (Supp.2010), a patient facing a civil commitment proceeding is entitled to assistance of counsel. The patient’s rights are found in the Due Process Clause of the Fourteenth Amendment; Afi-ele 2, Section 4, of the Aizona Constitution;
¶30 Because the right to effective assistance of counsel is a due process question, we must turn to
Mathews.
Given the significant liberty interests involved, the substantial risk of error without a competent attorney, and the government interest that patients are represented, the Due Process Clause of the Fourteenth Amendment requires that a civil commitment patient receive effective assistance of counsel.
In re Beverly,
¶ 31 A.R.S. § 36-537(B) provides a lengthy outline of the minimal duties of counsel for a patient. It requires that, among other things, counsel shall review the petition for evaluation and various documents and records related to the petition, interview the patient, the petitioner, and various other witnesses, and investigate any possible alternatives to involuntary treatment. A.R.S. § 36-537(B). The statutory requirements must be strictly adhered to.
See In re Commitment of Alleged Mentally Disordered Pers.,
¶ 32 This does not mean that appellate courts should assume or readily find ineffective assistance of counsel simply because an Appellant from a civil commitment hearing can point to isolated instances of alleged failures of counsel to possibly adequately communicate with the client or to present evidence. Rather, a person subjected to civil commitment hearings and the trial court may have a number of means to effectively create a record as to ineffective assistance of counsel prior to appellate review, including a party raising that issue before the superior court at the appropriate time or newly appointed appellate counsel seeking post-trial relief to have the superior court determine whether counsel’s representation was so deficient as to amount to ineffective assistance of counsel. See Ariz. R. Civ. P. 60. 5
¶ 33 Simply because the hearing counsel did not cross-examine most of the witnesses or present evidence to oppose the petition does not mean that counsel was ineffective.
State v. Gerlaugh,
CONCLUSION
¶34 For the aforementioned reasons we remand this matter to the trial court for further proceedings consistent with this decision.
Notes
. We cite the current version of applicable statutes because no revisions material to this decision have since occurred.
. At oral argument on appeal, the parties informed this Court that Appellant remains subject to the trial court’s order but is currently receiving treatment on an out-patient basis.
. In the criminal context, we will review error alleged for the first time on appeal under a fundamental error analysis.
State v. Henderson,
. During this hearing the court allowed Dr. Bail-on to testily telephonically from the hospital at which the patient was located.
. Alternatively, an appellate court could remand the matter to the superior court for evidentiary hearings and findings on the effectiveness of appointed counsel.
See In re Condry's Estate,
. Given our holding on counsel’s statutory duties and the lack of any record regarding the other acts alleged to show ineffective assistance of counsel, we do not address those other allegations. Nothing in our opinion precludes the trial court from addressing those alleged acts if Appellant raises those issues on remand and the trial court does not otherwise order a new hearing based on Appellant's ability to appear remotely at the earlier hearing or hearing counsel’s alleged failure to comply with his statutory duties.
As to any other duties of counsel, we note that there are at least several possible standards to determine effective assistance of counsel in this context.
Compare Strickland v. Washington,