Conservatorship of C. D.
Filed 5/22/13 Conservatorship of C. D. CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
>
Conservatorship of the Person and Estate of C. D. | B242814 (Los Angeles County Super. Ct. No. BP126875) |
RICHARD D. as Conservators, et al., Petitioners and Respondents, v. C. D., Objector and Appellant. |
APPEAL from
an order of the Superior Court
of
County, Michael I. LeVanas, Judge. Affirmed.
Linda J.
Vogel, under appointment by the Court of Appeal, for Objector and Appellant.
No
appearance for Petitioners and Respondents.
I. INTRODUCTION
C. D. appeals from an order establishing a
probate conservatorship over her person.
C.D. argues there is insufficient evidence to support the
conservatorship order appointing her brothers, Richard and Timothy
court’s finding that C.D. is unable to provide properly for her personal needs
for physical health, food, clothing or shelter.
(Prob. Code § 1801, subd. (a).)
We affirm the judgment.
II. BACKGROUND
A.
Petition For Appointment of Conservators
On February
7, 2011, Richard filed petitions seeking appointment of himself as
a temporary and permanent probate conservator of his sister, C.D. The petitions were also filed on behalf of
Richard’s brother, Timothy. The
petitions allege C.D.: is 62 years old;
suffers from schizophrenia; has been under a Lanterman-Petris-Short Act
conservatorship in the past; did not currently have a conservator; lives in a
long term unlocked residential psychiatric facility named MHA Village in Long
Beach; refuses to take psychotropic
medications; and her condition has worsened to the point she was “making bizarre
and vaguely threatening statements to her family.†The brothers sought temporary and general
probate conservatorship in order to access C.D.’s medical records and
communicate and receive psychiatric information from her health care
providers. The brothers also wanted a
conservatorship to: facilitate
comprehensive psychiatric care and treatment; explore re-establishment of a
Lanterman-Petris-Short Act conservatorship; and obtain a capacity declaration. In addition, the brothers wanted to be
appointed conservators to apply for public benefits for C.D. Represented by appointed counsel, C.D.
opposed the imposition of a conservatorship.
B. C.D.’s Attorney’s Report
On February
9, 2011 Violet Boskovich was appointed as C.D.’s counsel. The probate court authorized Ms. Boskovich to
review and copy C.D.’s medical records.
The probate court ordered the review and copying of the medical records
without C.D.’s consent. On February 17, 2011, Ms. Boskovich
filed a report concerning the temporary conservatorship. The report relates Ms. Boskovich
interviewed: C.D.; the brothers; C.D.’s
mother, Ilene D. (Ilene); Sandra Cosgrove-Provencal; C.D.’s caseworker at MHA
Village; and Dr. Mark Ragins, a MHA
Village psychiatrist. Ms. Boskovich reported C.D. was able but
unwilling to attend the hearing and objected to the imposition of a
conservatorship. Ms. Boskovich
recommended the probate court waive C.D.’s appearance at the hearing. In addition, Ms. Boskovich recommended the
appointment of an “Evidence Code section 730 Expert†to advise the probate
court on C.D.’s best interests.
On February
25, 2011, C.D.’s brothers were appointed as temporary probate
conservators of her person. The
temporary probate conservatorship was established for the limited purpose of
appointing Dr. Stephen Read, pursuant to Evidence Code section 730 to conduct a
psychiatric examination. Dr. Read was
also to prepare a report and complete a capacity declaration.
C. Probate Investigator’s Reports
On February
25, 2011, probate investigator Gailyn Spence interviewed C.D. at MHA
Village. The interview occurred in the presence of
C.D.’s social worker, Darlene Fernandez.
Ms. Spence described the village as a day program for individuals with
mental health issues. MHA
Village provides C.D. with shelter
under a grant for the homeless.
According to Ms. Spence, C.D. initially appeared anxious to speak. But the interview did not go in the direction
C.D. wanted. Then, according to
Ms. Spence, C.D. could not focus on the conservatorship and “exhibited
bizarre†behavior. Ms. Spence
reported: “She did advocate regarding a
medical problem to her social worker. In
the same breath, she states the feeling was coming from, ‘James Brown was
trying to kill Marvin Gaye.’ The undersigned
asked [C.D.] for her birth date. It took
a while before she would divulge the information. She went into a discussion about her brothers
and their alleged marital problems. C.D.
would not focus on the issues regarding the proposed conservatorship and after
a while, it became futile to engage her.
She just would not focus, even with the assistance of Ms.
Fernandez.†C.D. denied she was in need
a of a conservatorship and stated her brothers did not take care of her. C.D. did not want to attend court
proceedings, stating, “I want to win without going to court.â€
Ms. Fernandez believed C.D. is stressed by
the proposed conservatorship. C.D.
does not respond appropriately under stress.
Ms. Fernandez believed C.D. is able to advocate for her basic needs and
has managed to hold onto her current housing as long as she is under the
direction of MHA Village
staff. C.D.’s abilities are
questionable when she is not directed by the staff.
But Timothy stated C.D. has a college
education and was a licensed vocational nurse.
Timothy stated his sister is very smart but has a history of mental
health issues and delusional behavior.
Timothy said C.D. harassed their elderly mother, his wife and Richard’s
spouse. Timothy believed his sister’s condition
was getting worse because she made “veiled threats of the wives being killedâ€
by an unspecified source. In addition,
C.D. has refused to apply for public benefits, which would give her an income
and allow her access to medical treatment.
Timothy stated C.D.’s illness has taken her away from the family. He feared C.D. will end up on the streets if
she becomes resistant to the rules at her current living facility. C.D. does not have any income and had a
history of homelessness. The brothers sought
the establishment of a conservatorship so they could gain access to C.D.’s
medical information and apply for income and medical benefits for her.
Ms. Spence found, “[C.D.] is not able to
discuss her medical issues in significant terms and appears to lack the
capacity to give informed medical consent.â€
Ms. Spence observed C.D. exhibited delusional behavior and was in
denial, unable to focus on the issues.
Because C.D. was resistant to medical treatment, her prognosis was
uncertain and her stability compromised.
Ms. Spence concluded, “[C.D.] has been resistant to act independently
regarding entitlement benefits and demonstrates an inability to manage which
places her at risk.†Ms. Spence
concluded C.D. was an appropriate candidate for a conservatorship. Ms. Spence recommended the brothers be
granted conservatorship of C.D.’s person and estate.
On February
27, 2011, Ms. Spence conducted a follow-up investigation. Ms. Spence reported the MHA
Village staff indicated C.D. was
not prescribed any medications and is resistant to any psychotropic
prescriptions. On March 7, 2011, Ms. Spence received a phone call
from C.D.’s mother, Ilene. The mother
was afraid for C.D.’s safety. This was
because C.D.’s condition was getting worse.
Ms. Spence reported: “[C.D.] is
threatening [the mother] verbally and through the mail. [C.D.] is making [demands] that she wants the
deed to her mother’s house, the car, and $300,000.00 placed in her bank
account. Ilene does not know what her
daughter will do next. Also, [the
mother] reports [C.D.] is threatening her brothers’ wives. Her mother wants [C.D.] to get help because
she is in denial regarding her illness.
Her mother does not want her to get into trouble.â€
D. Dr. Read’s Report
On June
13, 2011, Dr. Read’s Evidence Code section 730 report was
filed with the probate court. Dr. Read
is a psychiatrist and clinical professor in the Department of Psychiatry and
Biobehavioral Sciences, at the University
of California at Los Angeles School
of Medicine. Dr. Read reported he was
unable to directly evaluate C.D. because she refused to meet him and evaded his
efforts to interview her. As a result,
Dr. Read’s evaluation of her was based on:
Ms. Spence’s probate investigation reports; correspondence with the
brothers’ counsel; a letter appointing Ilene as conservator for C.D. in April
1997; an April 23, 2010
letter to Ilene from C.D.; and interviews with C.D.’s appointed counsel and MHA
Village staff members, Ms.
Cosgrove-Provencal and Ms. Sandoval.
Dr. Read indicated he went twice to MHA
Village in an attempt to interview
C.D. Dr. Read stated C.D. lives near MHA
Village in an apartment made
available by funds from the homeless assistance program. These funds derive from donations to MHA
Village. C.D. does not have any independent source of
income. Although C.D. had worked in the
past, she had not done so for at least 10 years if not longer. She has participated in the programs at MHA
Village on a daily basis for about
a decade. Before that, C.D. was homeless
and destitute. According to Ms.
Cosgrove-Provencal, C.D. has not demonstrated any behaviors or made any
statements that have raised dangerousness concerns. MHA
Village staff reported C.D. can
manage her basic needs on a day-to-day basis through the support of its
programs. But Ms. Cosgrove-Provencal and
Ms. Sandoval said C.D. needed constant input and vigilance from staff to stay
on track. C.D. had made no progress
towards being able to manage on her own without help from MHA
Village.
The MHA
Village staff and others have
encouraged C.D. to apply for Social Security Disability but she has
consistently and adamantly refused to do so.
C.D. stated she: was not
disabled; did not have any mental illness; did not need money; and did not have
schizophrenia. She has been seen on a
regular but infrequent basis by Dr. Ragins.
C.D. consistently refused to consider taking any kind of psychotropic
medication.
Dr. Read
wrote C.D. appeared grossly impaired by psychosis. Dr. Read indicated C.D. had written an April 23, 2010 letter to Ilene
demanding $300,000. C.D.’s letter
escalated her demands in the letter to, “$300 million a year and as much as I
own.†Dr. Read wrote: “I do not know whether she has any kind of
hallucinations, but the communications in the letter of 4/23/10 and the description of her tangential and
irrelevant comments in the interview with the probate investigator are best
characterized as disordered thought. It
is clear that these eruptions intrude on any ability to exchange goal-oriented
comments or discussion with C.D. In
addition, C.D. appears to be prone to making unsupportable assertions and
refusing to examine them or tolerate any questioning. Her refusal to follow advice of
court-appointed counsel, despite pointed statements as to the importance of
complying with the court order is one functional example of this
delusional-based intentionality. Another
is C.D.’s refusal to appreciate at the Probate Investigator’s interview the
importance of appearing in court on her behalf.
A third example is the psychotically-phrased demand in the 4/23/10 letter to her mother.†Dr. Read diagnosed C.D. with schizophrenia
based on the persistence of her thought disorder and her ability, when stress
is carefully managed, to function superficially at simple tasks. Dr. Read reported C.D. resisted any
medications for her chronic schizophrenia but her brothers recalled when she
was on medications, her mind had cleared and she functioned better.
Dr. Read
concluded: “[I]n my professional
opinion, Ms. [C. D. ]appears chronically and unrelievedly to have severely
impaired thought processes with prominence of delusional thinking. Probably as a consequence of this primary
deficit in mental function, C.D. also demonstrates severely impaired abilities
due to severe anxiety, inability to concentrate and ‘stay with’ a particular
problem, inability to appreciate and manage quantities and financially-valued
judgments, impaired reasoning, and the severe inability to plan, organize, and
carry out activities in her own self-interest.
As a consequence of these persistent deficits in multiple mental
functions, in my professional opinion, Ms. [C. D.] cannot understand and
appreciate or make and carry out decisions in her own self interest both as
regards to her finances and her personal care.â€
Although
there was no indication C.D. suffered a physical symptom or condition, she was
approaching an age group in which it became more likely that illness would
occur. In addition, there was little to
suggest C.D. could reliably appreciate the significance of some symptom that
would arouse concern in a reasonable person.
Dr. Read wrote: “In my professional
opinion, the prominence of C.D.’s delusions and thought disorder raise the real
possibility that Ms. [C.D.], the proposed conservatee, does in fact lack the
capacity to give informed consent to any form of
she is unable to (1) reliably comprehend the risk and benefits of a proposed
treatment, (2) respond knowingly and intelligently regarding medical treatment,
(3) participate in a treatment decision by means of a rational thought process,
or (4) to communicate reliably a decision she might make, i.e. that the
deficits in Ms. [C.D.’s] mental
functions described above significantly impair her ability to understand and
appreciate and to communicate the consequences of medical decisions.†Dr. Read urged caution in moving C.D. from
her current living arrangement given the services and supported provided by MHA
Village. Finally, Dr. Read indicated he
was troubled by the threats C.D. made against the sisters-in-law and
Ilene. But Dr. Read could not
assess C.D.’s potential dangerousness without a full neuropsychiatric
evaluation.
E. Permanent Conservatorship Hearing
On February 10, 2012, the trial on the
conservatorship was conducted. The
conservators’ counsel stated his clients tried numerous times to serve C.D.
with the citation because she actively evaded service. Further, the conservators met C.D. at a Long
Beach church to inform her of the trial and offered her transportation to and
from court. They handed C.D. a copy of
the citation and petition. C.D.
replied: “I am not mentally ill. I am not going to court.†She then threw the papers on the ground.
All counsel requested waiver of C.D.’s
appearance. C.D.’s counsel
reported: “She is aware of these
proceedings. It’s impossible for me to
communicate with her.†The probate court
found C.D. knew about the hearing and refused to attend. The probate court waived further notice and
citation to C.D. The probate court
received Dr. Read’s report into evidence.
The probate court granted the conservators a conservatorship of C.D.’s
estate and person. But the probate court
reserved a decision on whether the conservators had the power to make medical
decisions for C.D. pending filing of Dr. Read’s supplemental report.
On March 23, 2012, the probate court held a
hearing regarding C.D.’s medical capacity.
Dr. Read’s supplement report was received into evidence. Dr. Read recommended the probate court grant
medical decision-making powers to the conservators. Dr. Read concluded C.D. lacked the capacity
to give informed consent and would benefit from medication for treatment of her
severe psychiatric disorder. At the
hearing, the probate court found C.D. lacked capacity to make informed medical
decisions and granted that power to the conservators.
III. DISCUSSION
C.D. challenges the probate conservatorship
of her person. Probate Code section
1801, subdivision (a) provides, “A conservator of the person may be appointed
for a person who is unable to provide properly for his or her personal needs
for physical health, food, clothing, or shelter . . . .†Appointment of a conservator requires proof
by clear and convincing evidence. (Prob.
Code § 1801, subd. (e).) On appeal, we
review the probate court’s decision for substantial evidence. We consider all of the evidence in the light
most favorable to the prevailing party and resolve conflicts in support of the
conservatorship order. (
Cal.App.4th 581, 601-604; Rubin v. Los
Angeles Fed. Sav. & Loan Assn. (1984) 159 Cal.App.3d 292, 298.)
C.D. argues there is insufficient evidence
to support the appointment of a conservatorship of her person. C.D. contends the record is devoid of
substantial evidence she was unable to provide properly for her physical health,
food, clothing or shelter. C.D. asserts
she has been able to maintain housing and meet her basic needs including
medical needs with MHA staff support. We
disagree.
Substantial evidence supports the probate
court’s decision to appoint the conservators.
C.D. is a 63-year-old chronic schizophrenic who refuses to take any
medication for her condition. C.D.
threatened other family members and made irrational demands for money. Her brothers, the conservators, state that
when she has been on medication in the past, her mind has cleared and she
functioned better. Ms. Spence indicated
that C.D. could not focus during their conversation. Rather, C.D. exhibited bizarre behavior
during their conversation. Ms.
Spence concluded, “[C.D.] is not able to discuss her medical issues in significant
terms and appears to lack the capacity to give informed medical consent.†Dr. Read concluded C.D. did not in fact
possess the capacity to provide informed consent for medical treatment. This was because she lacks the ability to
engage in rational discussions and to intelligently understand the consequences
of medical decisions. Moreover, Dr. Read
noted that C.D. was approaching an age group in which illness was more likely
to occur. According to Dr. Read, C.D.’s
inability to knowledgeably evaluate medications contributes to her chronic
psychosis. Thus, her diminished capacity
presented a real threat to C.D.’s long-term safety. Further, C.D. was incapable of
participating in the present proceedings in a rational manner. Ms. Spence and Ms. Boskovich notified C.D. of
the conservatorship proceedings. C.D.’s
brothers offered to provide transportation to and from the trial. But C.D. adamantly refused to make any court
appearances. C.D. told Ms. Spence, “I want to win without going to court.†In addition, C.D. refused to cooperate with
Dr. Read. Dr. Read visited her twice in
order to conduct a psychiatric examination.
Additionally, according to Ms. Spence, C.D. could not focus on the
conservatorship issues even with the help of a MHA Village staff member. Dr. Read’s and Ms. Spence’s reports
constitute substantial evidence to support the order under review.
IV. DISPOSITION
The
conservatorship order is affirmed.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER,
P. J.
We concur:
ARMSTRONG,
J.
KRIEGLER,
J.
title="">[1]
For clarity’s purposes, we shall
refer to the brothers by their first names.
