Conservatorship of Barry S.

Filed 5/31/07 Conservatorship of Barry 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Shasta)

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Barry S. appeals from the trial courts order of December 20, 2005, reappointing the Shasta County Public Guardian as conservator of his person under the Lanterman-Petris-Short Act. (Welf. & Inst. Code, 5000 et seq.; further section references are to this code.) He contends the evidence does not support the finding that he was gravely disabled or the courts imposition of special disabilities.

We shall dismiss the appeal as moot because, even if his claim of error is correct (a question we do not address), we are unable to provide Barry S. with effective relief because the order from which he appeals already has expired.

FACTUAL AND PROCEDURAL BACKGROUND

On December 16, 1998, the trial court appointed the public guardian as conservator of the person of Barry S. for one year. During each of the next seven years, the public guardians petitions for reappointment were granted.

On October 18, 2005, a petition for reappointment of the conservator was filed. Attached to the petition is a declaration by Dr. Bradley Strong and Dr. Willard Hunter, opining that Barry S. was gravely disabled as a result of a schizoaffective disorder. They cited the following evidence in support of their opinion: No ability to cook and prepare an adequate diet; Wears clothing which is inappropriate to weather conditions; Unable to realistically plan to obtain clothing; Can not [sic] formulate realistic plan to obtain shelter; Will not stay voluntarily in a supervised open setting i.e., board and care home; and Unrealistic plan to live with friend or relative[.] They also opined that Barry S. is not willing or able to accept treatment for his[] mental disorder on a voluntary basis, as evidenced by: repeated failure on outp[atien]t basis, poor insight.

At the hearing on December 20, 2005, Dr. Frederick Stich, a psychologist with Shasta County Mental Health Adult Systems of Care, testified that Barry S. suffered from schizo-affective, bipolar type disorder, resulting in manic symptoms, such as irritability, agitation and pressured speech, and that he also exhibited schizophrenic psychotic symptoms, including delusional ideation, paranoid delusions and grandiose delusions. Dr. Stich concluded that Barry S. was delusional on the day of the trial, based on comments made earlier that day that he was a millionaire and a prophet and had a recording contract.

Dr. Stich opined that (1) Barry S.s mental disorder impaired his ability to provide for his own food, clothing, and shelter, and (2) his plan to live in a particular room and board facility in Redding was unrealistic because Barry S. had no back-up plan and required prompting to take his medication and to shower. Dr. Stich explained: If [Barry S.] were in an unstructured board-and-care, hed have difficulty maintaining hygiene and dressing appropriately and managing his basic daily needs and activities of daily living. Dr. Stich also opined that Barry S. would not take his medication without the supervision of a conservator.

Barry S. testified as follows: He had spoken to the operator of a room and board facility in Redding a month earlier and was told he could live there. The rent was $600 a month and included meals. He wanted to live in Redding because his mother was there and she would assist him. He planned to take a bus to medical appointments. According to Barry S., he was taking Clozaril, Haldol, Depakote, and a whole bunch of other medications. He agreed that it was important to take his medications as prescribed because he had a chemical imbalance in [his] brain . . . . He knew that he took medication for diabetes and high blood pressure, but he otherwise was unable to explain the purpose of his medications. He also was unable to articulate a plan to ensure he would take his medication if not prompted to do so.

At the conclusion of the hearing on December 20, 2005, the court observed that Barry S. has been improving, but found that [h]e does, at this time, still need a conservator. In its written order, filed on December 29, 2005, the court found that Barry S. was still gravely disabled as a result of a mental disorder and was unable to provide for his personal needs for food, clothing, or shelter . . . . Accordingly, the court reappointed the public guardian as conservator of the person of Barry S. and imposed certain special disabilities.

On February 2, 2006, Barry S. filed a timely notice of appeal from the December 29 order of reappointment.

On March 1, 2006, Barry S. filed a petition for rehearing in the trial court, which was denied. (Conservatorship of Barry S. (Sept. 29, 2006, C052502) [nonpub. opn.].) He then filed a timely notice of appeal from the order denying his petition for rehearing. In that appeal, his counsel asked this court to review the record pursuant to People v. Wende (1979) 25 Cal.3d 436 to determine whether any arguable appellate issues existed. (Conservatorship of Barry S., supra, C052502.) This court found no arguable issues and affirmed the order denying the petition for rehearing. (Ibid.)

Meanwhile, Barry S.s appeal from the trial courts order of December 29, 2005, reappointing the conservator, remained pending in this court. This is so because Barry S. initially failed to file an opening brief in that appeal; consequently, the appeal was dismissed on May 9, 2006. (Cal. Rules of Court, former rule 17(a)(1), now rule 8.220(a)(1).) However, when Barry S. obtained counsel, the appeal was reinstated on July 24, 2006.

After appellants reply brief in this appeal was filed on October 4, 2006, we asked for supplemental briefing on the following question: Is this appeal rendered moot by this courts earlier opinion in Conservatorship of Barry S. (Sept. 29, 2006, C052502 [nonpub. opn.])?

Supplemental briefing was filed on November 3, 2006, and on November 16, 2006. We then expedited the appeal for decision, but the conservatorship automatically terminated on December 13, 2006.^[1]

Consequently, we calendared this matter for oral argument and directed the parties to address the following question: Is this appeal from the trial courts order of December 29, 2005, from which Barry S. appeals, rendered moot by the automatic termination of that order on December 13, 2006?

DISCUSSION

Barry S. acknowledges that an appeal becomes moot when a court ruling can have no practical impact or cannot provide the parties with effective relief. (Simi Corp. v. Garamendi (2003) 109 Cal.App.4th 1496, 1503.) Thus, he cites Consol. etc. Corp. v. United A. etc. Workers (1946) 27 Cal.2d 859, at page 863, for the proposition that when an event occurs while an appeal is pending and, as a result of that event, it is impossible for the appellate court to give the appellant any effective relief even if the court were to decide the appeal in the appellants favor, the court will not proceed to a formal judgment, but will dismiss the appeal.

Such is the situation here because the order from which Barry S. appeals, reappointing a conservator of his person, automatically terminated on December 13, 2006, during the pendency of his appeal. Thus, even if we were to reverse the order, such a disposition would not provide Barry S. with effective relief because the burdens of the judgment already have expired and could not be reimposed upon him without another order reappointing a conservator of his person.

As we will explain, this is not a situation where the appeal raises issues which are capable of repetition yet avoiding review (Conservatorship of Walker (1987) 196 Cal.App.3d 1082, 1088, fn. 1) and, thus, should not be deemed moot.

The sole issue raised in this appeal is that the evidence is insufficient to support the trial courts finding that Barry S. was gravely disabled on December 20, 2005. Specifically, it is argued that there [was] no substantial evidence to support the required finding that [he] would fail to eat, dress, or take shelter if he were not on a conservatorship and no evidence that he had serious difficulty in controlling physically dangerous behavior to the public and, hence, there was no justification for the special disabilities imposed by the trial court.

Thus, this is not a case where an issue of law, rather than an issue of fact, would be subject to repetition if the appeal were dismissed as moot. And, as reflected in the record in this case, Barry S.s mental condition is subject to change; consequently, the evidence in this case is not necessarily subject to repetition in a manner that would avoid review if the appeal were dismissed as moot.

Simply stated, this appeal is moot because the order from which Barry S. appeals has terminated and the appeal raises only questions of fact not subject to repetition because his mental condition is changeable and any later petition for reappointment of a conservator would have to be based upon facts present at the time of trial on the new petition. Accordingly, even if we were to decide this appeal in his favor, we cannot provide Barry S. with effective relief.

DISPOSITION

The appeal is dismissed as moot. Barry S. could have avoided this result if he had not been dilatory in pursuing his appeal or if he had filed a petition for writ relief rather than an appeal.

SCOTLAND, P.J.

We concur:

ROBIE , J.

BUTZ , J.

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^[1] According to respondent, a petition for reappointment was filed on October 24, 2006, to be heard on December 12, 2006.