Conservatorship of Tanisha S.

Filed 3/7/07 Conservatorship of Tanisha S. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(El Dorado)

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Tanisha S. (conservatee) appeals from an order appointing the El Dorado County Public Guardian as conservator of her person and estate under the Lanterman-Petris-Short Act (LPS Act). (Welf. & Inst. Code,^[1] 5000 et seq.) She contends no substantial evidence supports the finding she was gravely disabled or the imposition of special disabilities. We agree the evidence does not support the grave disability finding and shall reverse the order of appointment. We therefore do not address conservatees contention regarding the imposition of special disabilities.

FACTUAL AND PROCEDURAL BACKGROUND

On or about March 3, 2006, conservatee made harassing phone calls to various public agencies. She called child protective services, threatened to kill the social workers there^[2]and alleged Public Health was forcing her to have a hysterectomy. She also claimed that a mental health worker was in her bed and stalking her and that El Dorado County medical staff propositioned her for sex. The police were summoned to her home and reported she had almost no food. She was deemed to be gravely disabled and a danger to others, placed on a 5150 hold,^[3]and admitted to the El Dorado County Psychiatric Health Facility (psychiatric health facility).

On March 15, 2006, the public guardian petitioned for appointment of a conservator for conservatees person and estate. The petition alleged conservatee, aged 31, was gravely disabled as a result of [a] mental disorder and is unable to provide for [her] basic personal needs for food, clothing or shelter. The petition was supported by a conservatorship investigation report (report) prepared by Marlene Hensley, a clinical social worker with El Dorado County Mental Health (mental health), and the declaration of Dr. Tien N. Tran, medical director at the psychiatric health facility.

According to the report, conservatee suffered from a bipolar disorder, most recent manic, w[ith] psychotic features. She had a history of non-compliance with mental health treatment, and without treatment, exhibit[ed] . . . threatening, bizarre, grandiose, delusional and erratic behaviors, which hinder[ed] [her] from functioning in daily life activit[i]es. Dr. Tran examined conservatee and found her mental disorder impair[ed] her ability to provide for her basic needs of food, clothing and shelter. He recommended a conservator be appointed and conservatee be placed in a structured environment, where close supervision and medication monitoring would help her recompensate and regain her premorbid level of functioning.

On March 15, 2006, the trial court appointed the public guardian as temporary conservator pending a hearing on the petition. A hearing on the petition was initially set for April 13, 2006.

On March 28, 2006, conservatee was transferred from the psychiatric health facility to American River Manor, a locked facility, for continued treatment.

A placement update, prepared by Jessica Solomon, a marriage and family therapist intern with mental health,^[4]said conservatee had been a client of mental health on and off since 2001 and had been hospitalized at the psychiatric health facility five times since 2001. She had been treated with many medications and had a history of failing to follow through with treatment. Her refusal to treat her mental disorder rendered her incapable of providing for her food, clothing, and shelter.

The update detailed some of conservatees more recent contacts with mental health. On May 24, 2005, conservatee contacted the South Lake Tahoe Mental Health Clinic, denied all symptoms, and reported things had been going great since she stopped coming to mental health. She disputed a doctors finding she suffered from a bipolar disorder and said that the medications he prescribed were going to kill her and that she had known people who had been killed by mental health.

On June 8, 2005, she left a voice mail message at the El Dorado County South Lake Tahoe Mental Health Clinic requesting food and shelter. When staff returned her call, she said she had nothing to eat and was starving. Staff scheduled an appointment for June 10. When conservatee failed to show up for her appointment, staff and officers from the South Lake Tahoe Police Department went to her home. Conservatee denied leaving the voice mail message or stating she was starving. She said she had everything she needed and showed them that her cabinets were fully stocked and that she had food in the refrigerator.

The update also chronicled conservatees hospitalizations. In addition to her most recent hospitalization in March 2006, she was briefly hospitalized in August 2001, after being arrested and engaging in bizarre behavior while in jail. She was discharged after her symptoms improved on medication. She was briefly hospitalized in September 2001, after again being arrested and engaging in bizarre behavior while in jail. Although she remained delusional throughout her hospitalization, she was able to care for her personal hygiene and to eat and sleep and was discharged. She was briefly hospitalized in August 2002, after being evicted from her residence and engaging in disruptive behavior in the waiting room of the South Lake Tahoe Mental Health Clinic. After being medicated, she was able to take care of her own needs and discharged. She was hospitalized in May 2003, after being arrested and engaging in erratic behavior while in jail. After being medicated, her condition stabilized, and she was released.

The update further indicated that conservatee received $800 per month from Social Security, and that her mother was her payee. She moved 16 times between May 2002 and January 2005. She was homeless on June 16, 2004, but found a place to live by July 5, 2004.

At the hearing on April 13, 2006, conservatee waived a jury trial and requested the matter be set for a court trial. A trial on the petition was set for July 7, 2006, and the temporary conservatorship was continued to that date.

At trial, the parties stipulated that Dr. Trans declaration, the report, and the placement update be admitted into evidence. The case manager and deputy public guardian assigned to conservatees case, conservatees mother, as well as conservatee testified.

Conservatees case manager, Tom Donahoe, said conservatee should remain in a locked facility because she needed structure, was not taking [her] medications appropriately, and continued to engage in [i]ntrusive demanding behaviors. Conservatee denied having a mental illness. Although she did not seem to be neglecting herself, Donahoe believed she was unable to care for herself.

Deputy public guardian Mari Robertson testified she was assigned to conservatee in March 2006, following the appointment of a temporary conservator.^[5] Conservatee refused to take her medication at night and continued to require PRN medication, which is prescribed-as-needed medication for agitation. She was verbally abusive to staff, and in mid-May, told a staff member she was lucky conservatee did not hit her. She also had trouble sleeping and denied having a mental illness. Robertson said conservatee was not presently able to provide for her food, shelter, and clothing, based on, among other things, her refusal to take her medications or pursue treatment. Robertson also observed that over the past several years conservatee experienced [a] lot of homelessness, a lot of evictions from different motels. Theres been some significant drug abuse, alcohol abuse, some suspicion of prostitution, [and other unspecified] unsafe behaviors . . . .

During cross-examination, Robertson acknowledged that she had no information that conservatee spent any great amount of time being homeless, wasnt meeting her basic needs for clothing, or suffered from malnutrition or exposure to the elements and had to be hospitalized during the one-year period prior to her most recent hospitalization. However, Robertson believed that [c]ontinually getting evicted would indicate . . . [conservatees] not able to provide for her own shelter.

Conservatees mother, Elenore Fleming, testified that she supported the appointment of a conservator because conservatee hasnt demonstrated in a long period of time that shes able to follow through with her mental health and drugs and taking her pills. She wont go to mental health, and . . . I dont think that . . . she can survive on her own. Conservatee was not violent. However, she did not know what was going on and saw and heard things. She disconnected the gas furnace at the last place she lived because she thought something was wrong with it and told Fleming that she did not want to watch television because people talked to her on television and that there were demons in her bathtub.

Prior to her most recent hospitalization, conservatee lived in an apartment Fleming rented for her. Fleming used conservatees Social Security benefits to pay the rent and to give conservatee money for groceries. Conservatee appeared to be eating. However, she wore ill-fitting clothes and did not have many changes of clothes. During the winter, she wore flip-flops but otherwise had warm clothing.

Conservatee testified on her own behalf. She denied being homeless or going to the hospital for medical conditions related to exposure during the one-year period prior to her hospitalization. She said that she lived in two different apartments during the year prior to her most recent hospitalization. Immediately prior to her hospitalization, she lived at 4005 Cedar Street in South Lake Tahoe. Her mother paid the rent, which included utilities, with her Social Security benefits. Conservatee lived in that apartment approximately three months and had a six-month lease. She received a check once a week to purchase groceries and did so from a store down the street and from Taco Bell. She acknowledged having a psychiatric condition and requiring medication and denied that she failed to take her medication in the past. She said that if she were released that day, she had a place to stay and money coming in, and therefore, could take care of herself.

The trial court found the evidence showed, beyond a reasonable doubt, that conservatee does presently have a grave disability. The court explained that while [s]he does fine when shes being treated, she has a long history of not taking her medication and not going to treatment, which causes her to have problems in her behavior. And those behavioral problems, I believe, rise to the level of indicating that shes unable to take care of herself at that time when shes in that condition. Accordingly, the court appointed the public guardian as conservator of conservatees person and estate.

The conservatorship automatically expires on July 7, 2007. ( 5361.)

DISCUSSION

The LPS Act was enacted, inter alia, [t]o end the inappropriate, indefinite, and involuntary commitment of mentally disordered and developmentally disabled persons. ( 5001, subd. (a); Conservatorship of Benvenuto (1986) 180 Cal.App.3d 1030, 1034.) The clear import of the LPS Act is to use the involuntary commitment power of the state sparingly and only for those truly necessary cases where a gravely disabled person is incapable of providing for his [or her] basic needs either alone or with help from others. (Conservatorship of Smith (1986) 187 Cal.App.3d 903, 908.)

A conservator of the person and the estate 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).) A person who is not gravely disabled, but as a result of a mental disorder, is a danger to others or himself or herself, may be involuntarily detained for examination and treatment as specified in sections 5150, 5250, 5260, 5270, and 5300.

A petitioner in a conservatorship proceeding brought under the LPS Act must prove the proposed conservatee is gravely disabled beyond a reasonable doubt. (Conservatorship of Roulet (1979) 23 Cal.3d 219, 229-230.) 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, supra, 187 Cal.App.3d at p. 909.)

The petitioner must show the conservatee is presently gravely disabled and not that [s]he may relapse and become gravely disabled in the future. [Citation.] Where the evidence establishes a person is not presently gravely disabled, but may become so because of a future failure to take medication, an LPS conservatorship cannot be established. [Citation.] Similarly, an individual cannot be found gravely disabled merely because [s]he will not voluntarily accept treatment. [Citation.] (Conservatorship of Guerrero (1999) 69 Cal.App.4th 442, 446.) Rather, an individual is gravely disabled when she cannot provide for herself without medication and/or treatment and will not take her medication and/or pursue her treatment without the supervision of a conservator. (Id. at pp. 446-447.)

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.)

Conservatee contends there is no substantial evidence to support the grave disability finding because there is no evidence she was presently unable to provide for her own food, clothing or shelter. We agree.

There is ample support in the record that conservatee will not take her medication or pursue treatment without the supervision of a conservator and absent medication or treatment exhibits . . . threatening, bizarre, grandiose, delusional and erratic behaviors. What is missing, however, is evidence that, without medication or treatment, conservatee could not provide for her basic needs for food, clothing or shelter. (Conservatorship of Guerrero, supra, 69 Cal.App.4th at pp. 446-447.) While it was the opinion of Dr. Tran and others that conservatee was unable to provide for those basic needs, as we shall discuss, that opinion is not supported by the evidence.

Immediately prior to her most recent hospitalization in March 2006, conservatee was living on her own in an apartment. She had been living there for three months and had a six-month lease. She received a check once a week, which she used to purchase food. While conservatees mother testified that conservatees clothes were ill-fitting and that she wore flip-flops during the winter, that testimony alone is not sufficient to support a finding that conservatee was unable to provide for her basic needs for clothing. This is particularly true where her mother testified that, aside from the flip-flops, conservatee wore warm clothing and there was no indication conservatee suffered any adverse affects as a result of her clothing choices. Although police officers investigating phone calls made by conservatee in March 2006 reported she had almost no food in her apartment, the absence of food on a single occasion does not constitute substantial evidence that she was unable to provide for her basic needs for food. Indeed, she testified she sometimes ate at Taco Bell, and there is no indication in the record she was not eating or was suffering from malnutrition. Finally, while there was evidence conservatee was [c]ontinually getting evicted, there was no evidence she was without a place to live during the one-year period prior to her most recent hospitalization. To the contrary, the evidence indicated that when she was evicted, she found another place to live. On this record, we cannot say conservatee was unable to provide for her basic needs for shelter.

Accordingly, the grave disability finding is not supported by substantial evidence.^[6]/[7]

DISPOSITION

The judgment (order of appointment) is reversed. Costs are awarded to objector and appellant. California Rules of Court, rule 8.276(a).

ROBIE , J.

We concur:

DAVIS, Acting P.J.

HULL, J.

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] Conservatees daughter was removed from her custody in 1999.

^[3] Section 5150 authorizes a peace officer, member of the attending staff at an evaluation facility and other designated professionals to take a person into custody and place him or her in a state-approved mental health facility for 72-hour treatment and evaluation when that person as a result of mental disorder, is a danger to others, or to himself or herself, or gravely disabled.

^[4] The report says Solomon is an MFTI, an apparent abbreviation for marriage and family therapist intern.

^[5] Conservatee stipulated Robertson was qualified with regard to public guardian [sic] and has the qualifications to give expert opinions in that field.

^[6] Of course, if it is determined that, as a result of her mental disorder, conservatee is a danger to herself or others, she may be involuntarily detained for examination and treatment. (See 5150, 5250, 5260, 5270 & 5300.)

^[7] Because we conclude there is insufficient evidence that conservatee was unable to provide for her food, clothing, or shelter, we need not address her remaining contentions that her inability to do so must be so serious as to present a significant physical danger and that the physical danger must be due to a lack of volitional capacity to control the behavior. We likewise need not address her claim that the public guardian [(Robertson)], conservatorship investigator [(Hensley)], and placement update reporter [(Solomon)] were not qualified to render psychiatric opinions and therefore not entitled to relate or rely on hearsay to support such an opinion, since even with that evidence the record does not support the grave disability finding.