Conservatorship of O.B.

Filed 2/26/19
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. B290805
of O.B. (Super. Ct. No. 17PR00325)
(Santa Barbara County)
T.B. et al., as Coconservators,
etc.,
Petitioners and Respondents,
v.
O.B.,
Objector and Appellant.
O.B. is a person with autism spectrum disorder (autism).1
She appeals from an order establishing a limited conservatorship
“Autism spectrum disorder is characterized by persistent
1
deficits in social communication and social interaction across
multiple contexts, including deficits in social reciprocity,
nonverbal communicative behaviors used for social interaction,
and skills in developing, maintaining, and understanding
relationships. In addition to the social communication deficits,
the diagnosis of autism spectrum disorder requires the presence
of restricted, repetitive patterns of behavior, interests, or
of her person and appointing respondents T.B., her mother
(mother), and C.B., her elder sister, as conservators. Appellant’s
principal contentions are (1) the probate court acted in excess of
its jurisdiction by modifying her special education plan, and (2)
the evidence is insufficient to support the probate court’s
findings.
A person with autism is not automatically a candidate for a
limited conservatorship. Each case requires a fact-specific
inquiry by the probate court. “Autism is known as a ‘spectrum’
disorder because there is wide variation in the type and severity
of symptoms people experience.” (https://www.nimh.nih.gov/
health/topics/autism-spectrum-disorders-asd/index.shtml.) Based
on the facts here, we affirm the order establishing a limited
conservatorship of appellant’s person.
Factual and Procedural Background
The limited conservatorship was imposed after a contested
evidentiary hearing (also referred to herein as “trial”). Our
summary of the facts is based on evidence presented at the trial
in the form of testimony and exhibits. We disregard respondents’
summary of the facts based upon reports and declarations that
were neither offered nor received in evidence. During the parties’
closing argument, the probate court made clear that it would
consider only evidence presented at the trial: “We have had
lengthy proceedings outside of the evidentiary proceeding, so you
need to limit your arguments to the record inside of the
evidentiary proceeding.” (See also Prob. Code, § 1046 [“The court
shall hear and determine any matter at issue and any response
or objection presented, consider evidence presented, and make
activities.” (American Psychiatric Assn., Diagnostic and
Statistical Manual of Mental Disorders (5th ed. 2013) p. 31.)
2
appropriate orders” (italics added)].)2 Moreover, because the
evidentiary hearing was contested, declarations were
inadmissible pursuant to section 1022.3
In August 2017 respondents filed a verified petition
requesting that they be appointed limited conservators of
appellant’s person. The petition alleged that appellant had been
diagnosed with autism and “is unable to properly provide for . . .
her personal needs for physical health, food, clothing, or shelter.”
When the petition was filed, appellant was 18 years old.
She was living with her great-grandmother in Lompoc, County of
Santa Barbara, and was repeating the 12th grade at Cabrillo
High School. She had been living with her great-grandmother
since she was three or four years old. Mother resided in Orange
County.
2Unless otherwise stated, all statutory references are to
the Probate Code.
3
Section 1022 provides, “An affidavit or verified petition
shall be received as evidence when offered in an uncontested
proceeding under this code.” “[S]ection 1022 authorizes the use of
declarations only in an ‘uncontested proceeding.’” (Estate of
Bennett (2008) 163 Cal. App. 4th 1303, 1309.) “When a petition is
contested, as it was here, . . . absent a stipulation among the
parties to the contrary, each allegation in a verified petition and
each fact set forth in a supporting affidavit must be established
by competent evidence. [Citations.]” (Estate of Lensch (2009) 177
Cal. App. 4th 667, 676.) On the other hand, a declaration or report
received in evidence without objection at a contested hearing may
properly be considered as competent evidence. (See Estate of
Nicholas (1986) 177 Cal. App. 3d 1071, 1088.) Here, no one
objected to the exhibits received in evidence.
3
An expert witness, Dr. Kathy Khoie, testified on appellant’s
behalf. Khoie, a psychologist, opined that appellant “is not a
candidate for conservatorship.” Khoie explained: “My opinion is
based on her intellectual functioning level. I believe that [she]
has at least average intelligence. She’s high average in her non-
verbal functioning.” “[S]he is verbal. She’s able to talk about her
likes and dislikes.” In her report, Khoie concluded that although
appellant “has a diagnosis of Autism Spectrum Disorder,” she
“has the potential to live independently with support. She does
not require a high level of supervision and decision making by a
conservator.”
In her report Khoie said she had reviewed the “Conservator
Evaluation” report of the “Tri-Counties Regional Center.” The
regional center report, which was neither offered nor received in
evidence, was prepared by David Jacobs, Ph.D. Section 1827.5,
subdivision (a) provides that the proposed limited conservatee,
“with his or her consent, shall be assessed at a regional
center . . . . The regional center shall submit a written report of
its findings and recommendations to the court.”4 Khoie stated:
“Dr. Jacobs recommended limited conservatorship concerning
habilitation, education/training, medical and psychological
services; access to confidential records, and the right to enter into
4
See Cal. Conservatorship Practice (Cont.Ed.Bar 2018
update) § 22.7 D. Role of Regional Center: “The regional center
plays a very significant role in the establishment of a limited
conservatorship. Before a limited conservatorship is created, the
regional center performs an assessment of the proposed limited
conservatee and submits a written report of its findings and
recommendations to the court. [Citations.]” “[T]he regional
center report is required before the court can proceed to decide
the petition for a limited conservatorship.”
4
a contract. Recommended power for education and medical
treatment were reiterated. Dr. Jacobs did not recommend
conservatorship for decision regarding place of residence.” Since
Dr. Khoie’s report was received in evidence without objection, we
may consider her report’s reference to Dr. Jacobs’
recommendations even though Dr. Jacobs’ report was not
received in evidence. (See Estate of Nicholas, supra, 177
Cal.App.3d at p. 1088.)
Appellant’s other expert witness, Christopher Donati, is the
probate investigator for the Santa Barbara County Public
Guardian’s Office. Pursuant to a “non-court ordered” referral, he
met with appellant and evaluated her “to determine if
conservatorship was appropriate.” Appellant said she “was
opposed to the idea of a conservatorship.” She wanted to
continue living with her great-grandmother in Lompoc and
continue attending Cabrillo High School. Donati spoke to
mother, who said “she was hoping to move [appellant] and have
her attend a different educational institution and begin regional
services where [mother] resides [in Orange County].” Donati
opined that he did not “see any . . . way that the conservatorship
would benefit [appellant] at this point.” His primary concern was
the removal of appellant from her great-grandmother’s home.
The removal could cause her to “experience trauma.”
Donati reviewed Dr. Jacobs’ regional center report as well
as the “capacity declaration by Dr. [Cindy] Blifeld.” Her
declaration was neither offered nor received in evidence, but
Donati testified that Dr. Blifeld’s declaration contained the
required “medical component [for a limited conservatorship]
where a medical professional is in support of a conservatorship
and [declares] that they feel that the . . . potential conservatee
5
lacks capacity.” Dr. Blifeld “did feel that . . . [appellant] lacked
capacity.” Donati continued: “There seemed to be conflicting
reports where certain professionals felt . . . that she did lack
capacity. And I believe Dr. Khoie was a professional that felt like
she did have capacity and the conservatorship was not
appropriate. So there seemed to be conflicting information.”
L.K. is appellant’s 82-year-old great-grandmother. She
testified that, since the conservatorship proceedings began,
appellant has been “a nervous wreck.” L.K. opined that appellant
does not need a conservatorship and can take care of herself “[a]s
much as any teenager can.” She also opined that it was “a bad
idea for [appellant] to live with her mom and her dad and her
sisters” because “[s]he’s afraid of them. She’s afraid that she
won’t be able to come back and see me.” “Her mother yells and
swears at her and takes her electronics . . . away from her.”
Mother testified: For the past 10 years, she has had
“[n]early daily” contact with appellant. Mother lives with
appellant’s father and two sisters in a “large five bedroom home”
in Orange County. She “filed the petition to basically protect
[appellant] from the school [Cabrillo High School in Lompoc] and
then long term just [to] protect her.” Appellant “has had . . . like
160 missed class periods, but she still manages to get passing
grades, even high grades, in all of her academics.” Mother
referred to the grades as “‘get this kid out of my class’ grades.”
“[S]he’s not in class to earn the grades. She’s not producing work
to earn the grades.” Sometimes the school placed appellant in
detention for the entire day.
If the requested conservatorship were established, mother
said appellant would attend El Modena High School in the
Orange County School District. Mother asserted that this school
6
is “one of the highest rated schools in the district and has a really
good reputation for their special education program.” Mother
spoke to the “special education coordinator of the district.”
Mother further testified: Appellant needs guidance in
making routine decisions and assistance in performing daily
tasks. Appellant “really struggles with taking in information
needed to make decisions.” Mother needs to ask her, “‘Are you
going to wear a sweater today? Are you putting on clean
underwear? Are you going to brush your hair? Did you brush
your teeth? Did you take your pills? . . . Is it hot out? Do you
need to wear shorts?’” Appellant asks mother, “‘Can you lay my
clothes out for me. . . . Can you turn the shower on.’” Mother,
appellant’s father, or her great-grandmother “handles her
medication.” Appellant cannot cook or do her laundry. Appellant
has “behavioral outbursts” where she will “run off or scream and
yell.” She “screams and yells and fights and gets her way no
matter what she does, . . . and it stresses her out and makes her
upset.”
Mother also testified that appellant is too trusting of other
people. She will trust “people who are just nice to her . . . . She
will go off with people she shouldn’t and trust people she
shouldn’t. It’s dangerous.” Two years ago, appellant “ran off” to
see “Sponge Bob on Hollywood Boulevard.” She trusts Sponge
Bob.5 She also trusts “all of her family and anyone at school,
5
Pursuant to Evidence Code sections 452, subdivision (h)
and 459, we take judicial notice that “SpongeBob is depicted as
being a good-natured, optimistic, naïve, and enthusiastic yellow
sea sponge residing in the undersea city of Bikini Bottom
alongside an array of anthropomorphic aquatic creatures.”
(https://en.wikipedia.org/wiki/SpongeBob_SquarePants_
(character).)
7
anyone she’s seen before, people at restaurants, restaurant staff.”
If a person she trusts asks her to sign a document, “she’ll just
sign it no matter what.” If “you’re explaining [the document], she
doesn’t really care.”
Tammi L. Faulks, appellant’s guardian ad litem, filed an
action against the Lompoc Unified School District claiming that
appellant had not “received the education to which she was
entitled.” Faulks sought to “get the school district to either set
aside a compensatory education fund [for appellant] or allow
[her] to continue to obtain high school services and all of the
benefits that go with that until she’s age 22.” Faulks told the
court she was “very worried that [school employees] seem to . . .
do whatever it takes to push [appellant] out of the school
regardless of whether she gets a proper education.”
During closing argument, respondents’ counsel stated that
appellant “has had 312 unexcused class absences this year, so far,
and numerous suspensions.” No one objected to this statement.
Appellant’s guardian ad litem said, “[I]t’s true that she’s missed
over 300 class periods . . . this school year.”
The trial court found that a limited conservatorship “is
appropriate” and that appellant “is unable properly to provide for
. . . her personal needs for physical health, food, clothing, or
shelter.” The court also found that she “lacks the capacity to give
informed consent for medical treatment.” The court remarked
that appellant’s treatment at Cabrillo High School has “been a
failure of the education system for her.” The court characterized
this remark as “just dicta because the County of Santa Barbara
Education Office” and the “Lompoc Unified School District [are]
not . . . part[ies] to this action.” None of the parties requested a
statement of decision.
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Limited Conservatorship
“A limited conservator of the person . . . may be appointed
for a developmentally disabled adult. A limited conservatorship
may be utilized only as necessary to promote and protect the
well-being of the individual, 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. The
conservatee of the limited conservator shall not be presumed to
be incompetent and shall retain all legal and civil rights except
those which by court order have been designated as legal
disabilities and have been specifically granted to the limited
conservator.” (§ 1801, subd. (d).)
Court’s Alleged Lack of Jurisdiction to Modify
Appellant’s Educational Plan
Section 2351.5, subdivision (b)(7) provides that, “in its
order appointing the limited conservator,” the probate court may
grant to the conservator the power to make “[d]ecisions
concerning the education of the limited conservatee.” The
probate court expressly granted this power to respondents.
Appellant argues: The probate court’s “jurisdiction was
preempted by the Federal and State Education Statutes.” (Bold
and capitalization omitted.) “[T]he [probate] court . . . lacked the
ability to modify or alter the special education plan instituted by
the local school district under requirements established under
federal and state education statutes.” “As a result, . . . the
[probate] court’s order granting [respondents’] petition, which
prevented [appellant] from . . . graduating from Cabrillo High
School, and resulted in the removal of [appellant] from both her
9
school and her home, exceeded the court’s jurisdiction and was
legally invalid.”
Appellant’s argument lacks merit. The probate court did
not modify her special education plan. As authorized by section
2351.5, subdivision (b)(7), the court merely granted to the limited
conservators the power to make decisions concerning her
education. The court stated, “I’m not involved in her education,
really, at all, except to the extent that if I impose the . . . limited
conservatorship, . . . that might affect who gets to talk about her
education.”
Appellant has not cited authority prohibiting the
establishment of a limited conservatorship solely because it may
result in an adult student’s transfer from a school that has failed
to meet her educational needs. “‘It is a fundamental rule of
appellate review that the judgment appealed from is presumed
correct and “‘“all intendments and presumptions are indulged in
favor of its correctness.”’ [Citation.]” [Citation.] An appellant
must provide an argument and legal authority to support his
contentions. . . .’” (Dietz v. Meisenheimer & Herron (2009) 177
Cal. App. 4th 771, 799.)
Substantial Evidence Supports the Establishment
of a Limited Conservatorship of Appellant’s Person
At the hearing on a petition for appointment of a limited
conservator of the person, the court shall make the appointment
“[i]f the court finds that the proposed limited conservatee lacks
the capacity to perform some, but not all, of the tasks necessary
to provide properly for his or her own personal needs for physical
health, food, clothing, or shelter, or to manage his or her own
financial resources.” (§ 1828.5, subd. (c), italics added.)
10
Appellant contends that the evidence is insufficient to support
the required findings.
We review the probate court’s findings to determine
whether they are “supported by substantial evidence. In making
that determination, we view the entire record in the light most
favorable to the . . . findings. [Citations.] We must resolve
all conflicts in the evidence and draw all reasonable inferences in
favor of the findings. [Citation.]” (Conservatorship of Ramirez
(2001) 90 Cal. App. 4th 390, 401.)
The “clear and convincing” standard of proof applies to the
appointment of a limited conservator. (§ 1801, subd. (e).)
Appellant erroneously contends that we “must apply the same
standard in determining whether ‘substantial evidence’ supports
the judgment.” “The ‘clear and convincing’ standard . . . is for the
edification and guidance of the trial court and not a standard for
appellate review. [Citations.] ‘“The sufficiency of evidence to
establish a given fact, where the law requires proof of the fact to
be clear and convincing, is primarily a question for the trial court
to determine, and if there is substantial evidence to support its
conclusion, the determination is not open to review on appeal.”
[Citations.]’ [Citation.] Thus, on appeal from a judgment
required to be based upon clear and convincing evidence, ‘the
clear and convincing test disappears . . . [and] the usual rule of
conflicting evidence is applied, giving full effect to the
respondent’s evidence, however slight, and disregarding the
appellant’s evidence, however strong.’ [Citation.]” (Sheila S. v.
Superior Court (2000) 84 Cal. App. 4th 872, 880-881.)
Mother’s testimony constitutes substantial evidence in
support of the required finding that “[appellant] lacks the
capacity to perform some . . . of the tasks necessary to provide
11
properly for . . . her own personal needs for physical health, food,
clothing, or shelter, or to manage . . . her own financial
resources.” (§ 1828.5, subd. (c), italics added.) “The testimony
of one witness may be sufficient to support the findings.”
(Conservatorship of B.C. (2016) 6 Cal.App.5th 1028, 1034.) For
purposes of determining the sufficiency of the evidence, it is of no
consequence that appellant’s experts, Dr. Khoie and Donati,
opined that a limited conservatorship is inappropriate. “An
appellate court . . . will sustain the trial court's factual findings if
there is substantial evidence to support those findings, even if
there exists evidence to the contrary. [Citation.]”
(Conservatorship of Amanda B. (2007) 149 Cal. App. 4th 342, 347.)
Dr. Khoie’s and probate investigator Donati’s opinions
conflict with the regional center evaluation prepared by Dr.
Jacobs, who recommended a limited conservatorship. Their
opinions also conflict with Dr. Blifeld’s evaluation of appellant.
Donati testified that Dr. Blifeld had provided the required
“medical component [for a limited conservatorship] where a
medical professional is in support of a conservatorship and
[declares] that they feel that the . . . potential conservatee lacks
capacity.” The opinions of Drs. Jacobs and Blifeld add to the
already substantial evidence in support of the probate court’s
findings.
In deciding to appoint a limited conservator of appellant’s
person, the probate court took into account its personal
observations of appellant during the proceedings. The court
stated: “I’ve been involved in numerous hearings, and [appellant]
has been at all of them or most of them. So in addition to some of
the different witnesses[,] I am entitled to base my decision . . . in
part on my own observation of [appellant] at the proceedings.”
12
We reject appellant’s assertion that “[t]he fact that the trial
court ‘observed’ [appellant] - who was sitting right in front of him
- over a ten month period [citation], proves nothing.” The court’s
personal observations of appellant contribute to the substantial
evidence in support of its findings. (See People v. Rodas (2018) 6
Cal.5th 219, 234 [“when a competency hearing has already been
held, [in determining whether to conduct a second competency
hearing] ‘the trial court may appropriately take its personal
observations into account in determining whether there has been
some significant change in the defendant’s mental state,’
particularly if the defendant has ‘actively participated in the
trial’ and the trial court has had the opportunity to observe and
converse with the defendant”].) The probate court had the
opportunity to observe and converse with appellant. (See also
People v. Fairbank (1997) 16 Cal. 4th 1223, 1254 [“substantial
evidence, including the trial court's own observations of
defendant, supports the court's factual determination that
defendant was not intoxicated at the time he entered his guilty
plea and that his plea was knowing, intelligent, and voluntary”].)
The Probate Court Did Not Violate Principles
of Conservatorship Law
Appellant claims that the probate “court’s actions and
orders violated basic principles under the State Conservatorship
Statute.” (Bold and capitalization omitted.) “[O]f particular
significance, the [probate] court’s conservatorship order ignored
or disregarded the wishes and desires of [appellant] herself,
contrary to both the letter and the spirit of conservatorship
statutes.”
The probate court considered appellant’s personal
preferences. Although appellant did not testify, the court
13
permitted her to explain at length in open court why she wanted
to stay in Lompoc and attend Cabrillo High School. The court
was not required to accede to her wishes.
Appellant argues that the probate court “failed to consider
the clear availability of less restrictive alternatives to a
conservatorship.” (Bold and capitalization omitted.) “No
conservatorship of the person . . . shall be granted by the court
unless the court makes an express finding that the granting of
the conservatorship is the least restrictive alternative needed for
the protection of the conservatee.” (§ 1800.3, subd. (b).) The
probate court expressly made this exact finding. Appellant does
not cite authority requiring the court to set forth on the record
the less restrictive alternatives to a conservatorship that it
considered. “Because such express findings are not required, we
presume the court followed the law in making its determination
[citation], including a consideration of [less restrictive
alternatives].” (Landry v. Berryessa Union School Dist. (1995) 39
Cal. App. 4th 691, 698-699; see also Wilson v. Sunshine Meat &
Liquor Co. (1983) 34 Cal. 3d 554, 563 [“it is presumed that the
court followed the law. . . . The mere fact that the court did not
explicitly refer to rule 203.5(e), when the statute contains no such
requirement does not support the conclusion that it was
ignored”].)
The Probate Court Did Not Prejudge the Case
Appellant contends, “[T]he statements and actions by the
[probate] court demonstrate that it had already prejudged the
case, and the purported need for a conservatorship.” In support
of her contention, appellant refers to the court’s remarks at a
pretrial hearing concerning “[a] placement decision,” i.e.,
“whether or not [appellant] stays at Cabrillo [High School] or she
14
goes down to a high school in Orange County.” The court said
appellant’s counsel should “be prepared to show cause why I
shouldn’t impose a permanent conservatorship on the date of the
[upcoming trial] because . . . . I believe that the mother has
shown a prima facie case [at the pretrial hearing] of why a
permanent conservatorship is probably appropriate.” A prima
facie case is shown when a party produces “enough evidence to
allow the fact-trier to infer the fact at issue and rule in the
party's favor.” (Blacks Law Dict. (9th ed. 2009) p. 1310, col.1.)
The court continued, “So . . . you need to make sure that if you
object to that, . . . you make it clear to both sides and to the Court
on that day [the day of trial] that you don’t want a
conservatorship because when that day is over, I’m going to
probably impose one, unless you change my mind.” Appellant’s
counsel replied, “Understood, Your Honor.”
The probate court’s statements do not demonstrate that it
prejudged the limited conservatorship issue before hearing the
evidence at trial. As a courtesy to appellant, the court informed
her counsel that at the pretrial hearing mother had made a
prima facie case that a limited conservatorship “is probably
appropriate.” (Italics added.) Thus, the court warned counsel
that at trial she should be prepared to present evidence showing
that a limited conservatorship is not appropriate. The court
made clear that it would not make up its mind until it had heard
all of the evidence.
Disposition
The order establishing a limited conservatorship of
appellant’s person and appointing respondents as conservators is
affirmed. The parties shall bear their own costs on appeal.
15
CERTIFIED FOR PUBLICATION.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
16
James Rigali, Judge
Superior Court County of Santa Barbara
______________________________
Gerald J. Miller, under appointment by the Court of Appeal
for Appellant.
Law Offices of Laura Hoffman King and Laura Hoffman
King; Tardiff Law Offices and Neil S. Tardiff for Respondents.
17