Filed 11/20/18 Conservatorship of Marissa S. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. William D. Palmer, Judge.

Isaac W. Choy, Jr., under appointment of the Court of Appeal, for Objector and Appellant.

Mark L. Nations, County Counsel, and Andrew C. Thomson, Deputy County Counsel, for Petitioner and Respondent.

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INTRODUCTION

At the conclusion of a contested hearing on May 17, 2017, a jury found appellant Marissa S. gravely disabled due to a mental disorder. The trial court placed Marissa S. under a conservatorship with the Kern County Public Guardian (guardian or conservator) pursuant to Welfare and Institutions Code[1] sections 5008, subdivision (h)(1)(A), and 5358 of the Lanterman-Petris-Short Act (LPS). The court ordered the termination of the conservatorship on April 25, 2018. Marissa S. contends the trial court improperly relied on testimonial hearsay evidence of an examining physician that her husband was done trying to help or care for her. The conservator responds Marissa S.’s conservatorship is only for one year, terminated on April 25, 2018, and the appeal is now moot. We agree this case is moot, necessitating dismissal of the appeal.

FACTS AND PROCEEDINGS

County counsel for Kern County filed a petition for appointment of a temporary conservator for Marissa S. on March 28, 2017, because of her grave disability due to a mental disorder. The conservator maintained she was gravely disabled pursuant to section 5008, subdivision (h)(1)(A) due to a severe mental illness, and could not provide for her basic personal needs for food, clothing, and shelter. The trial court granted the petition for a temporary conservatorship the following day and the matter was set for trial.

Javon Kemp graduated with a degree in psychology with a minor in sociology from California State University, Bakersfield. He worked at Crestwood Behavioral Health and Kern Behavioral Health and Recovery Services. Kemp currently works for the conservator’s office as a deputy conservator and has worked as a deputy conservator since 2013. Kemp’s general duties include managing estates of individuals, taking care of people’s finances, applying for social security for individuals, and applying for SSI for individuals.

Kemp’s caseload consists of between 50 to 75 conservatees. Kemp also participates in investigations relating to referrals the public conservator receives from the four different hospitals in the county. These investigations look into how many times a person has been hospitalized, how successful a person has been in the community, and if a person has ever lived at a board and care or room and board that would assist a person with their medications. Kemp was familiar with Marissa. He investigated whether a conservatorship was necessary for her after she was referred to the public conservator in March 2016. During his investigation, Kemp examined the number of hospitalizations Marissa has had, her ambivalence toward taking medication, whether she had family support, and whether Marissa believed she had a mental illness requiring medication.

Kemp spoke to Valerie S., Marissa’s daughter, and Roger S., Marissa’s husband. Roger S. told Kemp he had separated from Marissa and had filed for divorce. Marissa’s counsel objected on the ground that the statements Roger S. made to Kemp were hearsay. The court overruled the objection, finding Roger S.’s statements were admissible to evaluate Kemp’s state of mind concerning why he wanted to move forward with the conservatorship. The court instructed the jury not to consider the statements for the truth of the matters asserted. Roger S. told Kemp that he would not be able to take Marissa back because he was done, explaining he did not want anything to do with her.

Kemp confronted Marissa with Roger S.’s statement and she insisted that she was

going to go home despite his statement that he would not be able to provide her support. Kemp said he spoke with Valerie S. who said she could not provide her mother support. Kemp reviewed records of Marissa’s hospital stays as well as electronic records at the conservator’s office. Within those records he found family contacts regarding placement history. He also found documentation for a program called Cerner that is accessible through Kern Behavioral Health System. The Cerner documentation included medical records and observations from case managers who had seen Marissa in the community. The medical records included medication records, doctors’ notes, authorizations for releases, daily notes based on how often the case manager sees the client, and the case manager’s experiences when in contact with Marissa.

Kemp explained that several members of the team attempted to speak with Marissa. He described reports that Marissa was guarded, not forthcoming with information, and not willing to sit in either one-on-one meetings or group meetings with the treatment team. Marissa told members of the treatment team that her husband would provide for her food, clothing, and shelter. At other treatment team meetings, Marissa told the team she did not need help with meeting her needs because her husband was going to take care of her.

Kemp also considered Marissa’s medication history, which included antipsychotics and mood stabilizers. One of these medications is Clozaril, otherwise known as clozapine, which is so potent and sensitive that if a patient stops taking it for more than 48 hours the patient must start treatment over again. A Clozaril dosage may only be increased in small increments each week because precipitous increases can be dangerous. There was a concern that if the patient stopped the medication, she would miss the laboratory work needed to continue the medication.

During the investigation, Kemp learned that Marissa was supposed to be receiving $450 from Social Security and $1,200 from Roger S. monthly. Kemp did not know if Marissa was actually receiving the $1,200 per month from Roger S. Kemp explained that Marissa had improved with treatment and would be able to leave a locked facility in a few months. Because Marissa did not believe she had a mental illness, she was at risk of decompensating if she was released at that time and it would be in her own best interests to remain in a conservatorship.

Marissa testified at trial over her counsel’s objection. She finished high school and worked at Taco Bell for six months. Marissa said she understood what the LPS conservatorship was but did not want one because there were too many terms. Marissa denied having a mental illness and said she did not need to take medication. Marissa said she only needed her daughter’s assistance. If released from her current care facility, Marissa would get her car and find an apartment by searching the newspaper. Marissa would seek financial help from her husband who she described as “Roger Dale Trump.” Marissa explained that Mr. Trump lived in Bakersfield. He was her grandpa with whom she had lived in the past.

Marissa planned to take care of her food, clothing, and shelter needs by attending a group. Marissa denied having a mental illness or having been diagnosed with one. Marissa explained that after taking medication for a time, she can stop taking it and not need food, water, or medication for 30 or 40 days. When asked what happens at the end of 30 days, Marissa said the “cops” would come and take her from Denny’s Restaurant because “something was very scary,” and she was hiding. Marissa acknowledged that her medications helped her, and she still planned to take them. She admitted she stopped taking them in March.

Dr. Ranjit Padhy is a psychiatrist and associate program director of the inpatient psychiatric unit at Kern Medical Center. Among Dr. Padhy’s responsibilities is the treatment of gravely disabled patients who are unable to care for themselves making them subject to the LPS Act. If a patient has a support system of friends or family, that patient may not need a conservatorship even if he or she is gravely disabled. Marissa was treated by Dr. Padhy for more than six weeks in the inpatient psychiatric unit because she was suffering from paranoia, unusual fear, and was sometimes aggressive. Marissa was delusional, believing her husband and other people would still care for her. Her second delusion was her assertion she could not take medication because she was pregnant.

Dr. Padhy reviewed Marissa’s medical records and had discussions with other doctors. Dr. Padhy diagnosed Marissa with schizoaffective disorder, a mental disease with a schizophrenia component and a mood disorder. Marissa was seen responding to hallucinations caused by internal stimuli. Her speech and behavior were disorganized. Marissa was grandiose, offering $1 million if Dr. Padhy released her. Marissa’s past medical records also diagnosed her condition as schizoaffective disorder. Medications help to stabilize Marissa’s mood and decrease her paranoia. Marissa was beginning to stabilize with long-term medications and was able to comply with treatment within a structured facility. In the past, however, Marissa had left treatment only to return later with a relapse of her symptoms.

When Marissa left the hospital for an inpatient treatment facility, she was not able to accept third party assistance because she did not understand that she needed medication to stabilize. Marissa was willing to have her husband care for her, but after multiple conversations with Roger S., Dr. Padhy realized he was no longer part of Marissa’s life. Other placement options were offered to Marissa, but she refused them. Marissa was not doing this deliberately, but it was a condition of her mental illness that she was not accepting help from anyone.

Dr. Padhy’s diagnosis was confirmed by Dr. Jagdeep Garewal, who also described Marissa’s disease as schizoaffective disorder of bipolar type. Dr. Garewal was working with Marissa at the long-term care facility. Even with proper medications and control of her symptoms, Marissa suffers from psychotic symptoms and mood swings. Dr. Garewal did not think Marissa understood the need to take medications. He believed she needed more time to focus on recovery and assistance with taking her medications. Dr. Garewal further believed Marissa would currently have difficulty providing herself food, water, and shelter. She was beginning to follow instructions and maintain basic grooming at the long-term care facility but still was not able to follow treatment voluntarily.

Marissa’s daughter testified that her mother and father had been separated since 2013 or 2014. She tried to help her mother, but it was difficult. Marissa’s daughter explained she was her mother’s only child in California who had tried to help her, tried to get her to take her medications, and tried to salvage relationships with landlords or roommates. Marissa kept making decisions that were not helping her situation. Her daughter said Marissa needed to be monitored with someone there to make sure she is taking her medication; Marissa needed a public conservator.

DISCUSSION

On appeal, Marissa S.’s counsel stated that he was not sure if her conservatorship had yet ended or if she was under a new conservatorship. Counsel for the conservator asserts the conservatorship concluded by its own terms on April 25, 2018, making the current appeal moot. Marissa S. asserts that even if the appeal is technically moot, she should have a decision on the merits of a claim the expert’s opinion relied on case-specific hearsay in violation of the California Supreme Court’s holding in People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). Marissa S. argues this is a matter of broad public policy likely to recur. Counsel for the conservator argues this case does not present an issue of broad public policy and should further be rejected on its merits. We agree with the conservator and do not reach the remaining claims.

Generally, appellate review is limited to actual controversies. A case involving abstract or academic questions of law does not present justiciable controversies. (People v. DeLong (2002) 101 Cal.App.4th 482, 486.) Actions originally based on a justiciable controversy cannot be maintained on appeal if the questions presented have become moot by subsequent acts or events. Reversal in such a case is without practical effect and the appeal is usually dismissed. (Ibid.)

An appeal should be dismissed as moot when the occurrence of events makes it impossible for the reviewing court to grant an appellant any effective relief. (Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479 (Cucamongans).) Since the order appealed from here has expired, resolving the issues presented would not confer any effective relief to the parties. There are three discretionary exceptions to the rule against adjudicating moot claims. A reviewing court may decide an appeal on the merits when: (1) the case presents an issue of broad public interest likely to recur; (2) when there can be a recurrence of the controversy between the parties; and (3) a material issue or question remains for the reviewing court’s determination. (Santa Monica Baykeeper v. City of Malibu (2011) 193 Cal.App.4th 1538, 1547–1548; Cucamongans, supra, at pp. 479–480.)

We are aware of our discretionary authority, but decline to exercise it under the circumstances of this case. Assuming arguendo that evidentiary errors occurred in the trial court’s acceptance of the conservator’s testimony, we will not presume they are likely to recur in the future.[2] Instead, we presume that, going forward, the court and counsel will be aware of Sanchez’s reasoning and holding, and to the extent it is applicable, apply its holding accordingly. (Sanchez, supra, 63 Cal.4th at pp. 674–686).[3]

DISPOSITION

The appeal is dismissed as moot.