Conservatorship of A.E. ( 2020 )

Filed 2/18/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
Conservatorship of the Person 2d Civil No. B297092
of A.E. (Super. Ct. No. 56-2018-
00518054-PR-CP-OXN)
(Ventura County)
KRISTINE A.,
Petitioner and Appellant,
v.
VENTURA COUNTY PUBLIC
GUARDIAN, as Conservator,
etc.,
Objector and Respondent.
A prospective conservatee who suffers from Autism
Spectrum Disorder, regardless of the degree of mental
impairment, has due process rights. The Legislature has
provided protection for a “special needs” person. Presence in
court so that the trial judge may see and hear the person is a
necessary component of the process. Such a person may fear
coming to court and will, generally speaking, fear change. Fear
of a change in the living arrangement is especially true where the
person has lived with the same parent for 26 years.
Kristine A., mother, appeals the trial court’s order
denying her petition to be appointed conservator of her 26-year-
old “autistic” daughter, A.E. She also appeals the trial court’s
sua sponte order appointing the Ventura County Public Guardian
as the permanent limited conservator of A.E.’s person. A.E. did
not appear at the hearing on the petition or tell anyone she was
waiving her right to be present. We reverse. The trial court
failed to make the requisite finding that A.E. did not want to
attend the hearing, or could not be produced for the hearing due
to medical inability, or that her appearance was likely to cause
serious and immediate physiological damage. (Prob. Code,
§ 1825, subds. (a)(2)-(3) & (b), (c).)1 We need not, and do not,
reach other constitutional and statutory issues.
Facts and Procedural History
A.E. is 26 years old. She suffers from Autism
Spectrum Disorder, and has lived with appellant most of her life.
A.E. does not like to be touched, is resistant to hygiene and self-
care, and has been placed on several psychiatric holds (Welf. &
Inst. Code, § 5150) for Psychotic Disorder NOS, anxiety, post-
traumatic stress disorder, depression, and intermittent explosive
disorder.
On September 25, 2018, appellant filed a petition to
be appointed conservator of the person so that she could
authorize medical treatment. A.E. had a painful tooth abscess
but no dentist would treat her without a court order even though
A.E. was a Ventura County Tri-County Regional Center (Tri-
All statutory references are to the Probate Code unless
1
otherwise stated.
2
Counties) client. Lanette Hatch, a licensed physician assistant,
submitted a declaration that A.E. lacked the capacity to give
informed consent to any form of medical treatment.
Five weeks after the petition was filed, the court
investigator reported that she was unable to communicate with
A.E. The report summarized a lengthy history of referrals to
child protective services and Adult Protective Services for abuse
and neglect. But many of the referrals were unfounded or
inconclusive. Tri-Counties advised that A.E. lacked the ability to
make medical decisions and that appellant was “doing her best
for” A.E. but had declined services in the past. The court
investigator recommended that appellant’s petition be denied and
that the public guardian be appointed as A.E.’s conservator. The
public guardian did not file a petition to be appointed as
conservator.
The trial court appointed the public defender to
represent A.E. (§ 1471, subd. (c)) and continued the matter so Tri-
Counties could complete A.E.’s evaluation. It also denied
appellant’s temporary request for conservatorship and appointed
the Ventura County Public Guardian as temporary conservator.
Two months later, Doctor Tammy K. Brandt
prepared a written evaluation recommending a limited
conservatorship for A.E.’s medical treatment. Dr. Brandt did not
rule out appellant as a conservator but was concerned about the
prior referrals for neglect and alcohol abuse.2
A month later, the trial court discussed the matter
with counsel and appellant. The public defender, who
2Appellant was convicted of 1998 Colorado misdemeanors,
driving without a license, driving under the influence, and
reckless endangerment.
3
represented A.E., stated that A.E. was living with appellant and
“I can’t point to anything that says [appellant] is not doing a good
job at this point.” Appellant was concerned about A.E.’s tooth
abscess and told the court: “I found a dentist that takes care of
adult autism, . . . and [A.E.] needs this. She’s in so much pain
that she’s acting out . . . [a]nd I don’t have the [temporary]
conservator[ship] to say, okay, you got . . . to go honey. And she
knows this, but she’s – she’s scared. . . . I called the [public]
guardian and they - - they said there’s nothing we can do.
Call 9-1-1.”
The trial court asked about A.E.’s permanent
placement and was told it is “still up in the air.” The public
defender stated that Tri-Counties requested placement at several
facilities and “all of them have declined to accept [A.E.] because
of . . . the autism and the behavioral issues.” The public
guardian’s attorney stated that “we’ve had similar cases, . . .
where it can take up to a year to place someone with – with
[A.E.’s] type of disabilities.”
The trial court was concerned. “[W]e’re here now,
pretty far down the line, without medical treatment, without
dental treatment, without access to services. . . . I have complete
sympathy for [appellant and]. . . everybody involved, mostly A.E.
. . . And I think that I’ve got to do what’s best – appoint the
person or entity who is going to make things happen in a much
more quick manner than they have happened.” The public
guardian’s attorney said the public guardian, acting as A.E.’s
conservator could work with Tri-Counties and appellant but
conceded “the only choice would be to leave [A.E.] at home [with
appellant] with the in-home services.”
4
Appellant’s trial counsel asked “Why not Tri-
Counties working directly with [appellant]? If [A.E.] is going to
be at home with her mother, her mother needs to be the
conservator with these limited powers and work directly with Tri-
Counties. If the Court wants to bring us back at the end of six
months to see how things are going, great. I think that’s
appropriate. But I think [appellant] is the more appropriate
person to be the conservator during this six-month period or a
year period while we’re waiting to get her placed. She absolutely
wants [A.E.] to get the help she needs.”
The trial court appointed the public guardian as the
limited conservator of A.E.’s person and clarified its order.
“[T]his is not an extension of a temporary appointment. This is a
permanent appointment.”
Discussion
Section 1825, subdivision (a) requires that the
proposed conservatee “be produced” at the hearing on the
guardianship petition unless certain exceptions are met.3 (See,
e.g., Conservatorship of John L. (2010) 48 Cal.4th 131, 146
3 Section 1825, subdivision (a) states: “The proposed
conservatee shall be produced at the hearing except in the
following cases: [¶] (1) Where the proposed conservatee is out of
the state when served and is not the petitioner. [¶] (2) Where the
proposed conservatee is unable to attend the hearing by reason of
medical inability. [¶] (3) Where the court investigator has
reported to the court that the proposed conservatee has expressly
communicated that the proposed conservatee (i) is not willing to
attend the hearing, (ii) does not wish to contest the establishment
of the conservatorship, and (iii) does not object to the proposed
conservator or prefer that another person act as conservator, and
the court makes an order that the proposed conservatee need not
attend the hearing.”
5
[section 1825 procedure for proposed conservatee’s production
and attendance must be followed at hearing on LPS proceeding].)
Section 1825, subdivision (c) provides: “Emotional or
psychological instability is not good cause for the absence of the
proposed conservatee from the hearing unless, by reason of such
instability, attendance at the hearing is likely to cause serious and
immediate physiological damage to the proposed conservatee.”
(Italics added.) There is no evidence of that. “If the proposed
conservatee is unable to attend the hearing because of medical
inability, such inability shall be established (1) by the affidavit or
certificate of a licensed medical practitioner . . . .” (§ 1825, subd.
(b).)
Respondent argues: “There is nothing in the record
to indicate that A.E. desired to attend the hearing, . . . [and] the
Court Investigator’s Report, the [Tri-Counties] report, and
[appellant’s] own petition make it clear that A.E.’s mental and
emotional condition made her both unable and unwilling to
attend the court hearing.” That does not satisfy section 1825.
The record is silent on whether A.E. was asked if she
wanted to attend the hearing or agreed to the proposed public
guardian conservatorship. Section 1825, subdivision (a)(3)
provides that a proposed conservatee may be excused from
attending the hearing if he or she “expressly communicated” that
he or she is unwilling to attend and does not contest the
conservatorship or oppose the proposed conservator. This did not
happen.
Respondent argues that appellant forfeited the
section 1825 issue by not objecting. Respondent cites no
authority, and we have found none, that a biological parent can
6
waive the section 1825 rights of an adult proposed conservatee,
regardless of the degree of mental impairment.
When a petition is filed to establish a
conservatorship, the matter must be conducted according to the
law and procedure relating to the trial of civil actions, including
trial by jury if requested by the proposed conservatee. (§ 1827.)
The proposed conservatee is presumed to be competent and
retains all his or her legal and civil rights. (§ 810, subd. (a).) The
Legislature has declared that a conservatorship is to “[p]rotect
the rights of persons who are placed under conservatorship,” to
“[p]rovide that the health and psychosocial needs of the proposed
conservatee are met,” and to “allow the conservatee to remain as
independent and in the least restrictive setting as possible.”
(§ 1800, subds. (a), (c), & (d).) A limited conservator may be
appointed for a developmentally disabled adult to be utilized
“only as necessary to promote and protect the well-being of the
individual” and “shall be designed to encourage the development
of maximum self-reliance and independence of the individual,
and shall be ordered only to the extent necessitated by the
individual’s proven mental and adaptive limitations.” (§ 1801,
subd. (d).) The standard of proof for appointment of a
conservator is clear and convincing evidence (§ 1801, subd. (e))
and one of the goals of the conservatorship is to “[p]rovide that
the health and psychosocial needs of the proposed conservatee
are met.” (§ 1800, subd. (c).)
Appellant and A.E. complain there was no testimony
under oath, no opportunity for cross-examination, no opportunity
to examine the biological parents, caregivers, or investigators,
and that the conservatorship order violates the American with
Disabilities Act (42 USC § 12101 et seq.). We do not reach those
7
issues because section 1825 required that A.E. consent to the
appointment of the proposed conservator or a showing had to be
made that A.E. was unable or unwilling to attend the hearing.4
“Probate Code section 1825(a)(3)’s procedure pertaining to a
proposed conservatee’s production and attendance at the hearing
must be followed . . . .” (Conservatorship of John L., supra, 48
Cal.4th at p. 146.) Section 1825 is like the light switch to the
courtroom and until it is turned on (i.e., satisfied), the trial court
cannot truly see the big picture. It is precluded from ruling on
the merits of a petition to appoint a conservator until it complies
with section 1825.
Disposition
The judgment (order denying appellant’s petition for
appointment of conservator and orders appointing the Ventura
County Public Guardian as temporary and permanent limited
conservatorship of the person of A.E.) are reversed. The matter is
remanded for further proceedings. We express no opinion on how
the trial court should rule, on the merits. Costs are awarded to
appellant.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
We concur:
GILBERT, P. J. TANGEMAN, J.
4 The physician assistant saw A.E. once and submitted a
declaration stating that “[A.E.] has autism. The one visit I had
with her she was able to follow very basic instructions with the
help of her mother.”
8
Roger L. Lund, Judge
Superior Court County of Ventura
______________________________
MacCarley & Rosen, Mark MacCarley and Lisa
MacCarley; Law Offices of Ann C. Schneider and Ann C.
Schneider for Petitioner and Appellant.
Gerald J. Miller, under appointment by the Court of
Appeal for Conservatee.
Leroy Smith, County Counsel, Mitchell B. Davis,
Assistant County Counsel for Respondent.