Conservatorship of Katherine H.
Filed 7/5/07 Conservatorship of Katherine H. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
Conservatorship of the Person and Estate of KATHERINE H. | |
LAKE COUNTY PUBLIC GUARDIAN, Petitioner and Respondent, v. KATHERINE H., Objector and Appellant. | A115496 (Lake County Super. Ct. No. MH600631) |
Appellant Katherine H. appeals from an order establishing a conservatorship of her person and estate on the ground she is gravely disabled as a result of a mental disorder.[1] Appellant contends (1) she has been denied the right to a jury trial; (2) the evidence is insufficient to support the order appointing a conservator; and (3) the evidence is insufficient to support the portion of the order with respect to four of the six special disabilities imposed. For the reasons set forth below, we vacate the order imposing the four special disabilities. In all other respects we affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On June 8, 2006, the Lake County Public Guardian (respondent) filed a petition to be appointed the conservator of the person and estate of appellant, then 39 years old, pursuant to the Lanterman-Petris-Short Act (LPS). The petition alleged that appellant was gravely disabled due to a mental disorder. Supplemental information indicated that she was diagnosed as bipolar and had a psychiatric history going back to the age of 19. The petition further alleged that a doctor had determined appellant was unwilling and/or incapable of accepting treatment voluntarily and recommended she be placed in a conservatorship. The petition also asserted that all six disabilities enumerated in section 5357[2] should be imposed on appellant.
An order appointing respondent as appellants temporary conservator was issued on June 9, 2006. On July 3, 2006, the matter was set for trial after hearing. The temporary orders were extended to the trial date.
The trial on respondents petition was held on July 28, 2006. The matter was tried before the court sitting without a jury. Called by respondent as an adverse witness, appellants mother testified that appellant had experienced psychiatric hospitalizations over the past five years. Appellants mother felt these hospitalizations were not appropriate because appellants problems were more medical than psychological. She also stated that she did not trust the county mental health agency and that she would have an independent doctor evaluate the necessity for psychiatric drugs that the county authorities might prescribe for her daughter.
Appellants mother admitted that a few months earlier she failed to return her daughter to the board and care home where she had been staying, even though the county mental health agency had recommended that appellant not live at home. She also admitted that she did not contact a physician to get approval before making this decision. She again expressed disagreement with the decision to initiate appellants psychiatric hospitalizations.
Dr. Williams testified that appellant met the criteria for grave disability because of her repeated recent hospitalizations. He stated that there was conflict between appellants mother and the mental health providers in that directions regarding appellants medications were not being followed. He also reported that appellant had previously killed the family dog by giving it her medications. He recommended that she be placed in a locked psychiatric facility until stabilized.
The court found that a conservatorship was needed and granted respondents petition in all respects. The court found beyond a reasonable doubt that appellant was gravely disabled and that the least restrictive alternative placement would be a board and care facility. The court imposed all six special disabilities.
On the same day as the trial, appellants mother filed a petition for writ of habeas corpus on appellants behalf. The hearing on the petition was continued to August 28, 2006, in order for appellants trial counsel to appear, whereupon the petition was denied.
On August 31, 2006, appellant filed her own habeas petition. She claimed her right to a jury trial had been violated at her conservatorship hearing. A declaration prepared by the familys attorney further alleged that her trial attorney had provided ineffective assistance of counsel by failing to obtain an independent psychiatric evaluation. The court continued the matter to September 25, 2006, and then again to October 13, 2006. Appellant filed a notice of appeal on September 27, 2006.[3]
In a decision rendered October 23, 2006, the court denied relief on appellants habeas petition. The court found that appellant failed to prove that she did not consent to waive jury trial or that the waiver was not authorized. The court noted Attorneys can waive trial as a tactical issue. The court further determined that it was not necessary for her trial counsel to have obtained a second expert opinion. The court also found there was no evidence that if [appellants counsel] had done any of the things that [appellant] alleges he failed to do, that it would have had a different outcome for [appellant].
Appellants subsequent renewed petitions for writ of habeas corpus were summarily denied.
DISCUSSION
A conservator of the person may be appointed under the LPS Act for any person who is gravely disabled as a result of a mental disorder. ( 5350.) A person is gravely disabled if, as a result of a mental disorder, [he or she] is unable to provide for his or her basic personal needs for food, clothing, or shelter. ( 5008, subd. (h)(1)(A).)
I. Right to Jury Trial
The following discussion took place at the July 3, 2006 hearing on the petition: The Court: Okay. [Trial counsel], youve had a fair chance to talk with [appellant]? [] [Trial Counsel]: I have, your Honor, briefly, but shes adamant about she does not wish a conservator appointed. Id like to set the matter following short cause.
The minutes of this hearing state: [Trial counsel] indicates to the court that [appellant] is opposed to the appointment and requests the matter be set for court trial. The matter was set for trial on July 28, 2006, which was a Friday.[4]
Appellant contends she was denied her right to a jury trial. We disagree. The constitutional right to a jury trial exists only with respect to those actions in which the right existed at common law at the time the California Constitution was adopted. [Citation.] Since conservatorship proceedings were unknown to the common law, the right to a jury trial therein exists only as provided by statute. [Citations.] A statutory right to jury trial in conservatorship proceedings was established in 1967 by section 5350, subdivision (d), which states in part that [t]he person for whom conservatorship is sought shall have the right to demand a court or jury trial on the issue whether he [or she] is gravely disabled. Demand for court or jury trial shall be made within five days following the hearing on the conservatorship petition. (Conservatorship of Maldonado (1985) 173 Cal.App.3d 144, 147 (Maldonado), italics omitted.)
In finding that conservatorship trials do not implicate constitutional concerns, the court in Maldonado concluded: We are persuaded and therefore hold that civil procedural law determines whether an individual has waived the right to a jury trial in a conservatorship proceeding. (Maldonado, supra, 173 Cal.App.3d 144, 148.)
Under the civil procedure standard, [a] trial by jury may be waived [b]y oral consent, in open court, entered in the minutes or docket. [Citation.] The purpose of this requirement is to furnish record evidence of the waiver which would otherwise rest solely on parol proof. [Citation.] . . . Further, an attorney has authority to bind his client in any of the steps of an action or proceeding by his agreement entered upon the minutes of the court. [Citation.] We find that this evidence of . . . waiver serves the statutory purpose and thus substantially complies with its requirements. (Maldonado, supra, 173 Cal.App.3d 144, 148.) Thus, a proposed conservatees attorney may waive the right to a jury trial without the necessity of a record documenting the proposed conservatees assent.
In the present case, we first point out that no objection regarding this issue was raised at any point during the trial. When the matter was called for hearing, neither appellant nor her trial counsel objected to the absence of a jury. This is strong circumstantial evidence supporting the conclusion that counsel had previously waived the right to a jury trial.
Additionally, the minutes entered following the July 3, 2006 hearing clearly indicate that a court trial was requested.[5] While appellant argues that the terminology used by her attorney to set the matter following short cause cannot be reasonably interpreted as a request for a court trial, the notation in the courts minutes and the lack of any objection to the proceedings at the outset of the trial suggests otherwise. Accordingly, we find no violation of appellants right to a jury trial.[6]
Appellant attempts to buttress her argument by asserting the proceedings were flawed because she did not receive advisements regarding the proceedings as required Probate Code section 1828.[7]
The appellate court in Conservatorship of Mary K. (1991) 234 Cal.App.3d 265, 269271, held that counsel may waive a reading of the advisements under Probate Code section 1828 just as counsel may waive the statutory right to a jury trial. The court further found that the record need not reflect that counsel discussed the waiver of this right with the client. (Conservatorship of Mary K., supra, at p. 272.) It explained that in the absence of evidence to the contrary, the court must assume counsel is competent. (Ibid.) Such competence includes fully communicating with the proposed conservatee about the entire proceeding. (Ibid; see also Conservatorship of Benvenuto (1986) 180 Cal.App.3d 1030, 1037 [Of course, it is a duty of counsel to inform the conservatee of his procedural rights in the impending proceedings].)
The reporters transcript in the present case does not contain explicit evidence indicating that appellant or her trial counsel waived her right to a reading of the advisements. This lack of evidence, however, does not give rise to reversible error. We note that in construing Probate Code section 1828, subdivision (b), which requires the court to consult with the conservatee, appellate courts have observed that the section, by its terms, requires neither individual consultation nor a record of the consultation given. (Conservatorship of Ivey (1986) 186 Cal.App.3d 1559, 1567, second italics added; but see Conservatorship of Christopher A. (2006) 139 Cal.App.4th 604, 611 [The court is also required to conduct an on-the-record voir dire of the proposed conservatee regarding the nature of the proceeding and the effect of the proceeding on his or her basic rights].)
We believe this statement applies with equal force to subdivision (a) of Probate Code section 1828. Additionally, we are satisfied after our review of the record that appellant was aware of the nature of the proceedings and of her right to oppose the conservatorship. Furthermore, contrary to appellants assertion, we do not believe the record is entirely silent. The portion of the reporters transcript quoted above demonstrates that appellant had the opportunity to discuss the proceeding with her attorney prior to the initial hearing on the petition. Moreover, she does not argue on appeal that her attorney failed to act competently. Accordingly, the trial court would have been justified in presuming that counsel had informed her of her procedural rights.
II. Substantial Evidence
Appellant contends substantial evidence does not support the grave disability finding because no evidence was offered to show that she was presently unable to provide for her own food, clothing or shelter.
A petitioner in a conservatorship proceeding brought under LPS must prove the proposed conservatee is gravely disabled beyond a reasonable doubt. (Conservatorship of Roulet (1979) 23 Cal.3d 219, 229230.) To support a finding a person is gravely disabled, the evidence must support an objective finding that the person, due to mental disorder, is incapacitated or rendered unable to carry out the transactions necessary for survival or otherwise provide for her basic needs of food, clothing, or shelter. [] . . . Bizarre or eccentric behavior, even if it interferes with a persons normal intercourse with society, does not rise to a level warranting conservatorship except where such behavior renders the individual helpless to fend for herself or destroys her ability to meet those basic needs for survival. Only then does the interest of the state override her individual liberty interests. (Conservatorship of Smith (1986) 187 Cal.App.3d 903, 909.)
When reviewing the establishment of a conservatorship, we employ the substantial evidence test to determine whether the record supports a finding of grave disability. (Conservatorship of Johnson (1991) 235 Cal.App.3d 693, 697.) The testimony of a single witness may be sufficient to support such a finding. (Ibid.) We review the whole record in the light most favorable to the trial court judgment to determine whether it discloses substantial evidence, that is, evidence that is reasonable, credible, and of solid value. (Conservatorship of Walker (1989) 206 Cal.App.3d 1572, 1577.) Substantial evidence includes circumstantial evidence and the reasonable inferences flowing therefrom. (Ibid.)
We believe substantial evidence exists to support the finding that appellant was presently gravely disabled. The report prepared by the deputy public guardian indicates that appellant had been diagnosed with bipolar disorder. She had been hospitalized involuntarily three times within a recent three-month period. Her mother had been her care provider when these hospitalizations occurred.
The attached physicians declaration prepared by Dr. R. Allen Kayser, dated June 2, 2006, states that in his opinion appellant was presently unable to provide for her basic personal needs for food, clothing, and shelter and was either unwilling to or incapable of accepting treatment voluntarily. Dr. Kayser reported that one of her recent hospitalizations had been precipitated by threatening her mother with a knife and the other by her throwing a chair in a fit of rage. He also stated: It does not seem very likely that she would be able to provide for her own basic food, clothing, and shelter without being in a supportive environment, and it appears that her home environment with her mother is a destabilizing force at this time.
An evaluation of appellant was prepared by Dr. David Williams on July 20, 2006. Dr. Williams confirmed the diagnosis of bipolar disorder and indicated that appellants recent hospitalizations were due to the difficulty of [appellant] and her mother getting along. The evaluation indicates that appellants mother attempts to control the medications that appellant takes, contributing to her becoming destabilized.
Thus, the record reveals substantial evidence supporting the determination that appellant could not provide for her basic needs by herself. She had experienced successive involuntary commitments to a psychiatric facility, indicating that she had difficulty maintaining stability in her daily life. At least some of these commitments were precipitated by threats of violence towards others. At times she was not compliant in taking her medications, even to the extent of giving them to the family dog, resulting in the dogs death. This evidence goes beyond the bizarre and eccentric behavior that does not otherwise justify conservatorship proceedings. Nor does the evidence support appellants assertion that the difficulties she experienced stemmed primarily from her physical health problems.
An individual does not meet the statutory definition of gravely disabled if that person can survive safely without involuntary detention with the help of responsible family, friends, or others who are both willing and able to help provide for the persons basic personal needs for food, clothing, or shelter. ( 5350, subd. (e)(1).) Contrary to appellants contentions, there was substantial evidence that appellants mother, while willing to provide care for her daughter, was unable to provide an environment that was stable enough to avoid the repeated hospitalizations. There was also evidence that appellants mother was unwilling to cooperate with county mental health authorities to ensure that appellants condition would not worsen at home. Accordingly, we find no error in the trial courts determination that appellant was gravely disabled.
III. Remand Is Required As To The Special Disabilities Findings
Finally, appellant contends the trial court did not have an evidentiary basis from which to order four of the special disabilities, which deprived her of the right to enter into contracts, the right to refuse treatment specifically relating to her grave disability, the right to refuse routine medical treatment unrelated to remedying or preventing the reoccurrence of her alleged grave disability, and her right to vote. We agree.
Establishing an LPS conservatorship gives the conservator the general powers granted under the Probate Code to manage the affairs of the conservatee (Welf. & Inst. Code 5357), but the conservatee does not, without more, forfeit any legal rights or suffer any legal disabilities. Section 5357 does allow the court to impose certain special disabilities upon a conservatee, including revocation of a drivers license; revocation of the right to enter contracts; disqualification from voting; revocation of the right to refuse medical treatment specifically relating to the grave disability, and disqualification from the right to possess a firearm.
However, a court order imposing such special disabilities must be supported by specific evidence related thereto. (Conservatorship of Walker, supra, 206 Cal.App.3d 1572, 1578.) It is not enough that the evidence supports a finding that the conservatee is gravely disabled. (Ibid.)
In this case, the trial court imposed all six special disabilities, even though specific evidence was not introduced with respect to four of them. At trial, Dr. Williams was questioned regarding whether he had any recommendation regarding the specific disabilities to be imposed. He responded affirmatively, but was asked no further questions regarding what his recommendations actually were. In his report, he recommended the imposition of all six disabilities, solely on the basis of her mental disorder and the fact that she was gravely disabled. Yet he testified that she was presently competent to consent to a major operation, which appears to contradict the special disability finding denying her the right to consent or refuse routine medical treatment.
We do not mean to suggest that evidence sufficient to sustain one or more of the four special disabilities challenged by appellant could not be presented, only that it was not presented at the hearing. Respondent offers no counter-argument other than relying on Dr. Williamss conclusory statements. The appropriate remedy is to vacate the special disability findings and remand for further proceedings, including the entry of the necessary findings, if warranted by the evidence. (See Conservatorship of Walker, supra, 206 Cal.App.3d 1572, 15781579.) We will so order.
DISPOSITION
The order appointing a conservator is affirmed. The matter, however, is remanded for further proceedings consistent with this opinion concerning the restrictions on appellants right to vote, right to contract, right to refuse nonpsychiatric medical treatment, and right to refuse psychiatric treatment.
Swager, J. | |
We concur: Marchiano, P. J. Stein, J. |
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[1] This proceeding is authorized by the Lanterman-Petris-Short Act, which has been codified at Welfare and Institutions Code sections 50005405. The conservatorship provisions commence at section 5350. All further references are to the Welfare and Institutions Code unless otherwise indicated.
[2] Section 5357 provides, in part: The report shall set forth which, if any, of the additional powers it recommends. The report shall also recommend for or against the imposition of each of the following disabilities on the proposed conservatee:
(a) The privilege of possessing a license to operate a motor vehicle. If the report recommends against this right and if the court follows the recommendation, the agency providing conservatorship investigation shall, upon the appointment of the conservator, so notify the Department of Motor Vehicles.
(b) The right to enter into contracts. The officer may recommend against the person having the right to enter specified types of transactions or transactions in excess of specified money amounts.
(c) The disqualification of the person from voting pursuant to Section 2208 of the Elections Code.
(d) The right to refuse or consent to treatment related specifically to the conservatees being gravely disabled. The conservatee shall retain all rights specified in Section 5325.
(e) The right to refuse or consent to routine medical treatment unrelated to remedying or preventing the recurrence of the conservatees being gravely disabled. The court shall make a specific determination regarding imposition of this disability.
(f) The disqualification of the person from possessing a firearm pursuant to subdivision (e) of Section 8103.
[3] We granted appellants motion for constructive filing of late notice of appeal.
[4] While the record contains no evidence regarding local procedures, respondent asserts that by established practice the Lake County court does not conduct jury trials on Fridays. It also asserts that by indicating that he wanted to set the matter following short cause, appellants attorney was requesting a court trial because it is understood in Lake County that short cause matters are nonjury proceedings.
[5] We also note that a declaration from appellants trial attorney submitted in connection with the subsequent habeas corpus proceeding states that he explained to her that she had a right to a jury trial and that she refused.
[6] Appellant argues that she was never informed of her right to a jury trial, while conceding that the citation for conservatorship form, which was served on her, states in paragraph four: You have the right to a jury trial if you wish. (Judicial Council Forms, form GC-320.)
[7] Probate Code section 1828, subdivision (a) provides in part: [P]rior to the establishment of a conservatorship of the person or estate, or both, the court shall inform the proposed conservatee of all of the following:
(1) The nature and purpose of the proceeding.
(2) The establishment of a conservatorship is a legal adjudication of the conservatees inability properly to provide for the conservatees personal needs or to manage the conservatees own financial resources, or both, depending on the allegations made and the determinations requested in the petition, and the effect of such an adjudication on the conservatees basic rights.
(3) The proposed conservatee may be disqualified from voting if not capable of completing an affidavit of voter registration.
(4) The identity of the proposed conservator.
(5) The nature and effect on the conservatees basic rights of any order requested under Chapter 4 (commencing with Section 1870), and in the case of an allegedly developmentally disabled adult, the specific effects of each limitation requested in such order.
(6) The proposed conservatee has the right to oppose the proceeding, to have the matter of the establishment of the conservatorship tried by jury, to be represented by legal counsel if the proposed conservatee so chooses, and to have legal counsel appointed by the court if unable to retain legal counsel.
