Kern Regional Center v. H.S. CA5 ( 2021 )

Filed 5/21/21 Kern Regional Center v. H.S. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
KERN REGIONAL CENTER,
F081442
Plaintiff and Respondent,
(Super. Ct. No. MI-3687)
v.
H.S., OPINION
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Kern County. Marcos R.
Camacho, Judge.
Rachel Lederman, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P.J., Poochigian, J. and DeSantos, J.
H.S. appeals from an order adjudging him a developmentally disabled person who
is a danger to himself and/or others and committing him to the custody of the State
Department of Developmental Services in an outpatient placement with supported living
services supervision 24 hours a day, seven days a week. (Welf. & Inst. Code, § 6500.)1
He contends that the trial court’s conclusion violated his Fourteenth Amendment due
process rights because there was insufficient evidence for the court to have concluded
that 24-hour supervision is the least restrictive appropriate placement. Kern Regional
Center has not responded. We affirm.
PROCEDURAL SUMMARY
On April 1, 2020,2 the Kern County District Attorney filed a petition for
commitment of H.S. as a person with a developmental disability who is a danger to
themselves or others (§ 6500, subd. (b)(1)). The petition alleged H.S., “age 75, presents
Mild Intellectual Disability (IQ=63–73), Antisocial Behavior Disorder, Cognitive
Disorder and Paraphilia (NOS). In the past, he was diagnosed with Sexual Sadism (in
institutional remission), Dementia, and Anti-Social Personality Disorder. His Dementia
is due to a head injury, which occurred when he was in the 7th grade. [His] head injury
resulted in a major change in his cognitive status. Soon after this occurrence, he was
expelled from the 7th Grade for molesting young girls and was made a ward of the
Court.”
The petition further alleged H.S. was released in 1972. In 1984, he was convicted
of kidnapping and assault with a deadly weapon and served time in prison. In 1991, he
was charged with four counts of sodomy by force but was found incompetent to stand
trial (Pen. Code, § 1370.1) and committed to the Stockton Developmental Center.
1 All further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
2 All further dates refer to the year 2020 unless otherwise stated.
2.
H.S. has not regained competency; his commitment has been repeatedly renewed
(§ 6500). In that time, he was transferred between multiple treatment centers until 2009,
when he reached his current placement—his own apartment where he receives 24-hour
supported living services.
The petition alleged H.S.’s transfer to supported living was largely positive and his
problem behaviors decreased. However, H.S. had also displayed noncompliant and
combative behavior toward supported living staff regarding his medications. The petition
alleges he took a bottle of his medication that staff normally distribute for him at
specified times and refused to give it back. When asked to return the bottle he became
verbally combative and told staff that he was able to administer his own medication.
However, when asked what times he took his medications, H.S. was unable to verbalize
his medication times and thereafter was unable to remember to take his medications
without staff prompting. H.S. had similar problems accepting nebulizer treatments for
his COPD. He repeatedly told staff he did not need the treatment but accepted the
treatments when provided.
The petition further alleged H.S. “has open behavioral plans for maladaptive
sexual behavior, emotional outburst/verbal aggression, poor hygiene, inappropriate social
behavior and [engages in inappropriate] horseplay,” all as a result of his developmental
disability. In the most recently reported period,3 he has displayed maladaptive sexual
behavior two to four times per month. For example, he touches staff on the arms, legs,
and shoulders; he has expressed romantic interest in a neighbor (who may not be
interested in him); and he stares at the breasts of women in the community, neighbors,
and staff. Staff that monitor H.S. have opined that he “continues to exhibit behaviors that
3 The petition alleged frequency of problem behaviors based on notes from the first
half of 2019.
3.
lead [them] to believe that he is still capable of assaulting women under the right
conditions.”
The petition alleged H.S. has emotional outbursts and/or verbal aggression
between two and 10 times per month. He needs verbal prompting five days per week to
successfully complete daily hygiene tasks. He required redirection at least seven times
over the course of a “few months” when he attempted to visit his elderly neighbor’s
apartment between 10:00 p.m. and 7:00 a.m. In one incident, H.S. refused staff’s
attempts at redirection and stood outside the same woman’s “apartment in the early hours
of the morning yelling her name and yelling for her to open the door.”
The petition alleged H.S. “shows little regard for his personal safety.” He goes
outside between midnight and 6:00 a.m. to smoke cigarettes, leaves his doors and
windows unlocked at night and when he goes to the store, and refuses to close his
windows at night, even when the temperatures drop to the low 30’s.
On July 1, the trial court sustained the petition and concluded that the least
restrictive placement necessary to achieve treatment is to continue outpatient placement
with supported living services 24 hours per day, seven days per week.
On July 15, H.S. filed a notice of appeal.
FACTUAL SUMMARY
A. Rebecca Thorson
On July 1, Rebecca Thorson was a manager for a supported living agency that
supported developmentally disabled adults, including H.S. She had worked for the
agency for 10 years and with H.S. for four years. She presently did not provide care
directly for H.S., but she did supervise those who provided his care. She also kept the
progress notes taken by H.S.’s caretakers.
Thorson summarized all the incidents of note that were reflected in the progress
notes between January 2019 and June 30: H.S. needed redirection regarding his physical
health and safety. For instance, H.S. was directed to not share cigarettes with neighbors
4.
because they have germs, at least twice to bathe, twice to not leave his food cooking
unattended on the stove, once to not lean on the hot stove, and three times to not sit or
stand in the rain. He also refused medication five times. On one occasion, H.S. became
upset that he was not permitted to manage his own medication. He took a bottle of his
medication and refused to return it. Thorson made a deal with H.S. that if he could
request his medication at appropriate times for two weeks, then he could manage his own
medication. H.S. was unable to do so.4
H.S. did not understand that there are inappropriate times and purposes to visit
neighbors. He attempted three times in one day to use a neighbor’s telephone to make a
long distance call. He twice yelled at neighbors. On at least 15 occasions he approached
neighbors asking for cigarettes, one time waking his neighbor between midnight and
8:00 a.m. for that purpose. H.S. had inappropriately touched staff on at least
14 instances, despite being told to keep his hands to himself. H.S. also needed
redirection regarding “maladaptive sexual behavior.” On two occasions, he was
redirected while watching a neighbor girl playing outside.5 H.S. also made aggressive
and/or sexual comments toward staff on at least 10 occasions.
Based on her observations of H.S., Thorson opined that “he could [not] do well”
living independently.
B. Dr. Michael Musacco
On March 18, Dr. Michael Musacco conducted a mental status evaluation of H.S.
and discussed his condition with the assigned supported living services staff. During the
evaluation, H.S. appeared confused and had difficultly “follow[ing] the conversation in a
logical manner.” Musacco explained that H.S. is diagnosed with “an intellectual
disability” as a result of a brain injury when he was young, “which is a chronic kind of
4 According to the § 6500 petition, H.S. is prescribed 18 different medications.
5 H.S.’s offenses previously targeted adult females and children.
5.
steady condition,” but he is also “diagnosed with dementia, which is a condition
involving a progressive deterioration of his mental acuity.” As a result, H.S.’s cognitive
functioning had “declined substantially over the years … to the extent that it’s fairly
difficult to have back-and-forth coherent conversation with him.” During the evaluation,
H.S. was unable to provide the correct date, month or year, did not know the number of
days in a week, did not know the number of months in a year, misidentified his age, and
was unable to identify the names or functions of any of his medications.
Further, while H.S. expressed a desire to “function and live independently, he
wasn’t able to show any insight into his need for care or supervision.” For example,
when he was confronted about refusing medication for a diagnosed breathing condition,
his answer was that he did not need the medication because he did not have a breathing
condition. In years past, H.S. recognized his need for care, at least in providing
medication, assistance with transportation, and food preparation. Musacco attributed
H.S.’s decline in insight to his dementia.
Musacco opined that H.S. could not live independently in the community because
he “would be immediately a serious risk of harm to himself.” He further opined that any
placement less restrictive than his current placement “would be insufficient to help him
maintain his safety and the safety of those around him.”6
C. H.S.
H.S. testified that he was able to care for himself. He cooked his own meals,
cleaned his home, bathed himself,7 and was usually able to take his own medicine. He
6 Musacco commented that, as H.S. has aged, he has become less physically able
and “would be unable to incapacitate a healthy adult female….” The “bigger concern
[Musacco] ha[d] for him … [was] the ability to care for himself.” Nevertheless, Musacco
opined that “obviously, there [was] a concern for others given [H.S.’s] history of
assaultive behaviors.”
7 H.S. testified that he did not want staff’s assistance, in part, because they falsely
reported that he did not shower.
6.
previously inadvertently took the wrong medication—a sleeping pill—but he did not
believe he would do so again. He did not think he needed his breathing machine.
Instead, he planned to smoke fewer cigarettes. He acknowledged, however, that it would
be difficult for him to stop smoking because he had been smoking since he was
14 years old.
H.S. also testified he would not reoffend because he spent most of his time
listening to music on his radio and praying.
H.S. mistakenly believed the day was Thursday (it was Wednesday), the month
was May or December (it was July), and the year was 2000 (it was 2020). He also
mistakenly believed that there were “about a hundred … days in a week” and “hundreds”
of months in a year.
DISCUSSION
H.S. argues that substantial evidence was not presented to support the trial court’s
finding that the most appropriate and least restrictive placement was outpatient placement
with supported living services 24 hours a day, seven days a week.8 We disagree and
therefore affirm.
Section 6500, subdivision (b)(1), states: “A person with a developmental
disability may be committed to the State Department of Developmental Services for
residential placement other than in a state developmental center or state-operated
8 H.S. does not dispute the findings that he has a developmental disability, and that
he poses a danger to himself as a result of that disability. However, he contends that “[i]t
is undisputed” that he is currently not dangerous to others. The record does not support
his contention. Musacco opined that H.S., because of his age, could not overpower a
“healthy adult female,” but concluded that he still posed a risk of harm to others because
of his history of assaultive behaviors. Musacco’s opinion is consistent with the
information relayed by Thorson from the progress notes, detailing H.S.’s observing a
female child, touching staff, shouting at neighbors, and making aggressive and/or sexual
comments to staff.
7.
community facility … if the person is found to be a danger to self or others.” Such an
order of commitment expires automatically after one year. (§ 6500, subd. (b)(1)(A).)
In a proceeding pursuant to section 6500, the prosecution has the burden to prove
beyond a reasonable doubt that the person to be committed was developmentally disabled
and a danger to himself or to others, and that his developmental disability was a
substantial factor in causing his serious difficulty controlling his dangerous behavior.
(In re O.P. (2012) 207 Cal.App.4th 924, 928.) The evidence must show proof of current
dangerousness linked to the committed person’s developmental disability. (Id. at p. 932.)
Specifically, the developmental disability must be a substantial factor in causing the
person serious difficulty in controlling his behavior. (People v. Cuevas (2013)
213 Cal.App.4th 94, 106–107.) “[T]he ‘danger’ referenced in section 6500 must involve
conduct that presents the likelihood of serious physical injury.” (People v. Hartshorn
(2012) 202 Cal.App.4th 1145, 1153–1154.) “The vagaries of emotional injury, mere
apprehension of physical injury, speculation and conjecture are not enough to justify the
need for commitment.” (Id. at p. 1154.)
Once the showing has been made that a person to be committed has a
developmental disability that causes the person to be dangerous to themselves or others,
the court may place the person only in the most appropriate and least restrictive
placement necessary to achieve treatment of the person and safety of the community.
(§ 6509, subds. (a), (b)(1); see § 6504.5, subd. (c); People v. Barrett (2012) 54 Cal.4th
1081, 1095–1096.)
We review the entire record in the “ ‘ “light most favorable to respondent,” ’ ” and
we presume in support of the order of commitment “ ‘ “the existence of every fact the
[court] could reasonably deduce from the evidence[,]” ’ … [which] must be …
‘ “reasonable in nature, credible and of solid value.” ’ ” (People v. Cuevas, supra,
213 Cal.App.4th at pp. 106–107.)
8.
Here, Musacco testified that, as a result of H.S.’s developmental disability, H.S.
could not care for his basic physical needs like managing his medications, food
preparation, and transportation. Musacco opined, in addition to lacking the ability to care
for himself because of his developmental disability, H.S. lacked any awareness that he
could not care for himself as a result of his dementia. Musacco’s opinion that H.S. could
not care for himself was supported by anecdotes from progress notes relayed by
Thorson—H.S. was unable to take his medication without prompting and would attempt
to refuse some prescribed medication; H.S. occasionally had to be reminded not to leave
food cooking unattended and not to lean on the stove; H.S. also occasionally had to be
reminded to bathe and insisted that he had bathed when he had clearly not done so.
Indeed, H.S. testified that he had once inadvertently taken sleeping medication instead of
his prescribed medications. And, although he believed he could administer his own
medication, he was previously unable to do so when given the opportunity and routinely
refused to take medication. Substantial evidence supported the trial court’s finding that
H.S. required supported living services 24 hours per day, seven days per week because, if
H.S. was unsupervised, he would likely cause himself serious injury.
Beyond the risk that H.S. posed to himself by being unable to care for his basic
physical needs, he also posed a risk to himself and others as a result of his inability to
control his behaviors in interacting with others. H.S. had to be redirected from
attempting to interact with neighbors late at night, shouting at neighbors, staring at a
female child, and touching staff. H.S. also appeared not to understand romantic and/or
sexual relationships. For instance, he proposed to a staff member, asked a staff member
to shower with him, kissed a former staff member on the cheek without permission, asked
a staff member to transport him to a grocery store so he could give his telephone number
to a young woman who worked there, and asked two nurses, a phlebotomist, and an
X-ray technician for their telephone numbers when he went to a doctor’s appointment. In
all of those situations, a staff member was there to redirect H.S. Without staff
9.
intervention, similar situations would reoccur and could result in serious physical harm to
H.S. or others.
Based on H.S.’s inability to care for his basic needs, apparent lack of
understanding of romantic and/or sexual relationships, problems with impulse control,
and history of offending, as well as Musacco and Thorson’s opinions that H.S. could
present a risk to himself or others if left alone, substantial evidence supported the trial
court’s finding that the most appropriate and least restrictive placement was a placement
with supervision 24 hour hours per day, seven days per week.
DISPOSITION
The order is affirmed.
10.