Conservatorship of John D. CA4/3

Filed 8/25/22 Conservatorship of John D. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
Conservatorship of the Person of
JOHN D. II.
DEBORA D.,
G059954
Petitioner and Appellant,
(Super. Ct. No. 30-2019-01104251)
v.
OPINION
JOHN D.,
Petitioner and Respondent,
JOHN D. II, etc.,
Objectors and Respondents.
Appeal from a judgment of the Superior Court of Orange County, Kim R.
Hubbard, Judge. Affirmed. Appellant’s motion to augment denied.
Debora D., in pro. per., for Petitioner and Appellant.
John D., in pro. per., for Petitioner and Respondent.
No appearance for Objectors and Respondents John D. II, etc.
* * *
Debora D. and John D. are the parents of John D. II (J.J.), a young adult
who has severe autism and is unable to provide for his own medical, educational, and
welfare needs. After a significant period of disagreement regarding J.J.’s education,
Debora and John1 filed cross-petitions to be appointed as J.J.’s conservator with the
ability to make educational decisions on his behalf. The court granted John’s petition,
appointing John and Debora as limited co-conservators, but giving John exclusive power
to make educational decisions.
Debora appeals, although her opening brief contains no properly developed
arguments. To the extent we can discern her complaint, it is that the court erred by
appointing a guardian ad litem (GAL) to represent J.J.’s interests in the litigation, without
her agreement. There is no merit in that contention, and we affirm the judgment. We
also deny Debora’s motion to augment the record with a copy of the judgment dissolving
her marriage to John, which is irrelevant to both the appointment of a GAL and the
establishment of a conservatorship.
FACTS
John and Debora are the parents of J.J., who was 17 when this case was
initiated in October 2019. As Debora explained, “JJ has severe autism, is not able to
communicate effectively, and is unable to provide for his medical, educational or welfare
needs.”
1 Since both parties have the same last name, we use their first names for
purposes of clarity. We intend no disrespect.
2
In the fall of 2015, John and Debora agreed with the Los Alamitos School
District (the District) on an Individual Education Plan (IEP) for J.J. The District is
obligated to reassess students regularly and update their plans as appropriate; however,
Deborah did not agree to any proposed update to J.J.’s IEP after March of 2016.
In November 2017, Debora refused to have J.J. assessed by the District.
The District sought a “Due Process” administrative review, seeking permission to assess
J.J. without Debora’s consent. An expert for the District “felt it was imperative for the
school district to assess J.J. in order to move forward appropriately with identifying an
individualized education plan for him. And [John] had consented, but [Debora] did not.
And their order at that time required that both parents provide consent in order for [the
District] to move forward.” The District received permission to move forward with a
May 2019 assessment plan without Debora’s consent.
Although John was initially inclined to defer to Debora’s experience in
education, he became convinced over time that her inability to agree to an updated plan,
and her failure to cooperate with the District’s efforts to resolve their disputes through an
administrative proceeding, were harming J.J.’s opportunity to receive an appropriate
education.
On October 15, 2019, John filed a petition to be appointed J.J.’s limited
conservator. His primary concern was that J.J.’s opportunity for public education was
being thwarted because Debora repeatedly refused to agree to an IEP and would not
negotiate with the District on any proposed compromise.
Deborah opposed John’s petition for appointment of a conservator, and on
December 17, 2019, she filed her own petition to be appointed J.J.’s conservator.
Debora’s position was that because she has significant experience in education—holding
a master’s degree and working for a school district and also for a company that serves
special needs adults—she knows “what J.J. needs and what this is supposed to look like
and how it’s supposed to be prepared.”
3
In October 2019, the court appointed the Public Defender to represent J.J.
In October 2020, the court appointed Cheryl Walsh to serve as the GAL for J.J.
The trial on both petitions was scheduled to commence in early February
2021; Debora did not appear. The court entered judgment against her, but later set it
aside and scheduled a new trial date.
When trial was again set to commence remotely on February 22, 2021, the
court found it had not received exhibit binders from Debora; Debora also acknowledged
she had not provided copies of those binders to the GAL.2 The court then ordered
Debora to provide her exhibit binders to both the court and the GAL by 3:00 p.m. that
day, warning her that if the GAL did not have the exhibits by 3:00 p.m., Debora would
not be able to offer any exhibits at trial. The court continued the trial to the following
day, and informed Debora the trial would commence “regardless of whether or not her
exhibits are received.”
When the trial commenced remotely the next morning, Debora again
challenged the GAL. She stated she had “remove[d] former counsel for ineffective
representation . . . when this appointment happened.” The court reiterated that it had the
authority to “appoint a guardian ad litem in any situation where we have battling parents
over a child to determine what is in the best interest of the child or of . . . the independent
adult, which is what we have.”
The court also informed Debora that it had not received her exhibits and
reminded her that she had been warned the day before that if her exhibits were not
2 Debora claimed she paid to have the exhibits delivered to the court by
8:00 a.m.; the court reminded her she was required to lodge the exhibits five days before
the trial. As to the GAL, Debora appeared to justify her failure to serve on the basis she
was objecting to the GAL’s participation in the case. Debora asserted the GAL must be
removed from the case because Debora had not “stipulated” to the appointment of any
third party to represent J.J.’s interests. The court explained that its appointment of a GAL
did not require her stipulation and she had no standing to remove the GAL.
4
delivered by 3:00 p.m. that day, they would not be considered at trial. The court then
explained to Debora, citing many examples, that it had “bent over backwards to try to
make sure [she had her] day in court.” The court concluded, “we are done. You’re
taking advantage of the system. You’re taking advantage of the court. It ends now. We
are proceeding to trial right now.”
John’s first two witnesses were Debora’s mother, who testified that Debora
had not allowed her to visit J.J., and the father of another of Deborah’s sons, who testified
that Debora had also resisted having their son assessed for learning problems.
John’s third witness was Grace Delk, a director of special education and
mental health at the District. She testified to the District’s difficulties in reaching any
agreement with Debora about J.J.’s education plan. She opined that Debora’s conduct
was “delaying J.J.’s IEP development.”
Delk explained that J.J.’s IEP goals from 2015 were not appropriate for his
current age, and testified “it’s imperative that we’re able to update goals and provide
supports and services that will more align with when he transitions out of the school
district at the age of 22.”
Delk stated she did not feel the District would be able to work with Debora
going forward to create a new IEP. By contrast, the District had been able to work with
John to come up with a new IEP for J.J. and Delk felt comfortable continuing to work
with John in the future.
John’s final witness was Dr. Kim Huynen, a psychologist who provided
behavior intervention and consultation at J.J.’s school. She testified regarding efforts to
develop a new IEP for J.J., explaining that although Debora was asked several times what
she was looking for in terms of goals and services, she gave them no specific information
and no clear answers. She added Debora delayed, cancelled, or refused to attend IEP
meetings over the past several years.
5
Huynen stated the delay in developing goals has impacted J.J.’s ability to
become more self-sufficient by the time he ages out of the District program. She
explained that although Debora had expressed a preference for J.J. to be transferred to
Los Alamitos High School, no such transfer could be considered until the “whole IEP
team has . . . an approved set of goals.”
Debora’s first witness was the coach of a baseball program that J.J.
participates in. The coach testified briefly about J.J.’s participation in the program and
Debora’s support of it. Her second witness was a friend she had known since elementary
school, who also knew all three of her sons and sometimes helped out by picking J.J. up
from school and spending time with him.
Both John and Debora testified, and each was given the opportunity to
cross-examine the other. During her testimony, Debora acknowledged she did not want
to change J.J.’s 2015 IEP goals because his goals “generate services that J.J. currently
has, which are ADA, speech, OT, a one-to-one, and where he has a teacher and a certified
teacher working with him as well giving—giving him instructions during that time. . . .
And these goals that J.J. currently has are more appropriate than anything that’s offered.”
The GAL also participated in the trial; she cross-examined several
witnesses but called no witnesses of her own. The GAL acknowledged in her closing
argument that John and Debora cared deeply about J.J., and they both had been very
involved in his education. However, she believed they were no longer able to work
together in making decisions about J.J.’s education. She indicated J.J. needed an updated
IEP, and the District witnesses had made clear they were unable to work with Debora to
achieve that goal. If the court was inclined to appoint John and Debora as
co-conservators, she suggested giving John sole authority in the area of education.
The court agreed with the GAL’s suggestion. After finding that a limited
conservatorship of J.J.’s person was the least restrictive alternative to protect his interests,
and that both parents were suitable and qualified for appointment as conservator, the
6
court granted the conservatorship petition filed by John, and denied the petition filed by
Debora. The court then appointed both John and Debora as limited co-conservators of
J.J.’s person, giving them shared power to (1) fix his residence, (2) access his confidential
records, (3) contract, and (4) give/withhold medical treatment (albeit with a requirement
to notify the Public Defender before any withholding of life-sustaining treatment). The
court gave John the exclusive power to make decisions regarding J.J.’s education and
informed him if Debora failed to cooperate, he could file a petition or an ex parte
application to seek her removal.
DISCUSSION
1. Standards of Review
It is well settled that a judgment of the trial court is presumed to be correct;
the appellant has the burden to prove error by presenting legal authority to support each
argument made, along with an analysis of the pertinent facts supported by citations to the
appellate record. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784–785; Boyle
v. CertainTeed Corp. (2006) 137 Cal.App.4th 645, 649 [on appeal “the party asserting
trial court error may not . . . rest on the bare assertion of error but must present argument
and legal authority on each point raised”].) If the appellant fails to do those things, the
argument may be deemed forfeited.
“[T]he appellant must present each point separately in the opening brief
under an appropriate heading, showing the nature of the question to be presented and the
point to be made; otherwise, the point will be forfeited.” (Keyes v. Bowen (2010)
189 Cal.App.4th 647, 656; Cal. Rules of Court, rule 8.204(a)(1)(B).)
Debora was advised of those rules in a prior opinion of this court, which
arose out of her dispute over the custody of a different son with that son’s father.
“[N]one of mother’s ostensible legal arguments are supported by citation to authority, nor
are they placed under discrete headings setting out the issues, as required by California
7
Rules of Court, rule 8.204(a)(1)(B). When a party fails to cite proper legal authority to
support his or her legal contentions, this court need not consider them. [Citations.] [¶]
In fact, we could consider the entire appeal forfeited for mother’s failure to follow the
rules of court. [Citation.] Her decision to proceed in propria persona does not relieve
her of the obligation to follow those rules.” (D.M. v. D.D. (June 23, 2017, G051825
[nonpub. opn.].)
Despite that warning, Debora’s opening brief in this appeal again fails to
comply with the rules. The “Argument” section of Debora’s opening brief contains a
single paragraph; it lacks any headings, analysis, or authorities. It states in full: “The
court officers believe and operate outside procedure in ignorance of the Controlling Law
of the Individuals with Disabilities Education Act; therefore, position themselves that a
signature and agreement to an offer is an automatic advancement. The district court and
court officers do not demonstrate they are savvy of the Special Education procedure
which has and is posing a threat to the Proposed Conservatee.” That is not a legal
argument.
2. Appointment of GAL
To the extent we can extract any claim of error from other parts of Debora’s
opening brief, it seems her primary complaint focuses on the trial court’s appointment of
a GAL for J.J. without her permission. She also suggests the court allowed the GAL to
decide the case for it.
In the “Statement of Appealability” section of her brief, Debora states:
“This is an appeal from a judg[]ment following a limited conservatorship trial where
judg[]ment was made at the recommendation of a GAL to terminate Appellant’s
Education Decision Making for Her Son without cause, legal, lawful foundation, with
joint conservatorship in all other facets.” Debora claims (again without citation to the
record) that “[t]he GAL was requested by [John] under no compelling circumstance to
make a decision regarding conservatee’s education.” She also states that she “has
8
maintained objection to any 3rd part[ies], including a GAL [and] did not stipulate to the
3
Appointment of a GAL in this matter.”
Debora cites no authority to support her implied assertion that a court
cannot appoint a GAL to represent an 18-year-old disabled person in litigation to
establish a conservatorship when that person’s parents cannot agree on how to move
forward. We know of none.
In fact, this appears to present a model situation for a GAL. Code of Civil
Procedure section 372, subdivision(a)(1), provides that “[w]hen a minor, a person who
lacks legal capacity to make decisions, or a person for whom a conservator has been
appointed is a party, that person shall appear either by a guardian or conservator of the
estate or by a guardian ad litem appointed by the court in which the action or proceeding
is pending, or by a judge thereof, in each case. A guardian ad litem may be appointed in
any case when it is deemed by the court in which the action or proceeding is prosecuted,
or by a judge thereof, expedient to appoint a guardian ad litem to represent the minor,
person lacking legal capacity to make decisions, or person for whom a conservator has
been appointed, notwithstanding that the person may have a guardian or conservator of
the estate and may have appeared by the guardian or conservator of the estate.”
“A trial court has discretion to accept or deny an application for
appointment of a guardian ad litem [citation]. In the absence of a conflict of interest,
however, the appointment is usually made on application only and involves little exercise
of discretion.” (J.W. v. Superior Court (1993) 17 Cal.App.4th 958, 964, fn. 5.)
3
Debora also complains that in an August 23, 2021 order, the trial court
allowed John to “take full custody of [her] son” which “cut[] off [her] primary resource
as [J.J.’s] Full Time IHSS Care Provider since 2008 and [his] Social Security Payee since
2005, allowing [John] to commandeer all areas of the resource.” However, that alleged
order came nearly six months after Debora filed her March 1, 2021 notice of appeal in
this case. We therefore cannot consider it.
9
As explained by our Supreme Court in In re Marriage of Higgason (1973)
10 Cal.3d 476, 484, overruled on other grounds in In re Marriage of Dawley (1976)
17 Cal.3d 342, 352, “A guardian ad litem . . . is not a party to an action or proceeding, but
only a representative of a party, just as an attorney of record is not a party.”
In this case, J.J. is the subject of his parents’ competing conservatorship
petitions, which arise out of their different beliefs about how he would be best served by
any future educational plan. We are convinced that both parents are acting in good faith,
that they care deeply about J.J., and they both want what is best for him. The court has to
allow for the possibility that their respective positions may be colored by their own
self-interests or their conflict with each other. Under those circumstances, it is
appropriate for the court to appoint a GAL to represent J.J.’s interests. We find no error
in the appointment.
There is no evidence to support Debora’s suggestion that the GAL was
given too much authority over the outcome of the case. The GAL must advocate for the
outcome she feels is best for J.J., and she did so. We see nothing nefarious in the court
agreeing with the GAL’s recommendation.
3. Other Issues
In the “Conclusion” section of her brief, Debora offers additional
complaints, including the court’s refusal to accept her trial exhibits after she had failed to
comply with any of the court’s deadlines for filing them. Debora cites numerous facts in
an effort to demonstrate she attempted to get the exhibits filed, but she supports none of
those facts with citations to the record, and our own review of the record does not reveal
any such support.
Debora also contends that counsel who represented her during part of the
trial court proceedings was ineffective. Once again, she fails to support her allegations
with any citation to the record. Nor does she cite any authority for the proposition that
10
ineffective representation by the counsel she chose would entitle her to any relief on
appeal. Again, we know of none.
DISPOSITION
The judgment is affirmed. In light of this court’s issuance of a fee waiver,
in the interest of justice no costs are awarded.
GOETHALS, J.
WE CONCUR:
O’LEARY, P. J.
BEDSWORTH, J.
11