Opinion
C088321
11-19-2019
Conservatorship of the Person and Estate of O.T. KATRINA PLEASANT, Petitioner and Appellant, v. AMY SELF, Objector and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 34201700208757PRCPFRC)
Katrina Pleasant challenges the trial court's order appointing private fiduciary Amy Self as conservator of O.T.'s person. Pleasant contends the probate court erred in appointing Self because, pursuant to Probate Code section 1810, the court was required to appoint Pleasant unless the trial court determined it was not in O.T.'s best interests to do so. While the probate court implicitly made this determination, Pleasant argues there is not substantial evidence in the record supporting that decision. Self has not responded to this appeal. Pleasant nevertheless maintains the burden of affirmatively demonstrating trial court error that has prejudiced her. (Cal. Const., art. VI, § 13.)
We find Pleasant's appeal fails for two reasons. First, the record presented contains substantial evidence supporting the probate court's determination that appointing Pleasant conservator of O.T.'s person was not in his best interests. Second, assuming arguendo that the evidence might be lacking because it primarily concerned fiscal issues, and not defendant's care, Pleasant's failure to include probate investigator reports in the record on appeal prevents her from overcoming the presumption of correctness and mandates affirmance of the probate court's order.
FACTS AND PROCEEDINGS
On March 3, 2017, Pleasant originally sought a temporary and permanent conservatorship of the person of O.T. alleging the need to move O.T. to a care facility (Atria) and inability to maintain him at his home due to financial constraints. Pleasant is O.T.'s step-daughter and was named conservator in O.T.'s health care directive attached to the petition. The court appointed Jennifer Moss to represent O.T. in the proceedings.
Pleasant's request for appointment as temporary conservator was granted, but her request for the move was denied after O.T. voiced his opposition and his son (C.F.) promised to move in with him to assist with his care. Soon thereafter, in an ex parte filing, Pleasant again sought to move O.T. to Atria alleging C.F. was unfit to care for O.T. due to his criminal history. The court granted this request, although it was later discovered that the criminal records presented to the court related to a different C.F. Shortly thereafter, Pleasant allegedly told O.T. and C.F. that she was taking O.T. to breakfast, but instead placed him at Atria.
Once placed at Atria, Pleasant initially barred all family from visiting O.T., but later allowed phone contact. C.F. was prohibited from visiting Atria because of his behavior towards staff and threats to bring the police.
Pleasant allegedly sold O.T.'s personal belongings at an estate sale without informing the family and put his home on the market. C.F. wanted to maintain O.T. at home and was still willing to care for him, although he admitted he had a prior conviction for domestic violence related to an old girlfriend.
O.T.'s attorney Moss questioned Pleasant's attorney about the sale of O.T.'s personal property and the placing of O.T.'s residence on the market prior to any order establishing a general conservatorship. Pleasant's attorney advised these actions were necessary to pay for O.T.'s care at Atria and that his home was part of a trust such that she did not have to consult the court. O.T.'s daughter A.T. told Moss that she is an alternately named conservator, willing to serve, and complained that Pleasant was not transparent regarding O.T.'s finances. A.T. also questioned the propriety of certain changes to O.T.'s estate plans orchestrated by Pleasant.
Dr. Theam Leng Tay's March 17, 2017, capacity declaration opined O.T. was unable to consent to medical treatment, nor could he consent to the administration of his necessary psychotropic medications. In addition, O.T. required placement in a locked or secured-perimeter facility and did not have the capacity to consent to such placement. This report was filed with the court on May 16, 2017.
On May 19, 2017, the probate court investigator filed a report, but this report is not part of the record on appeal. Moss described the report as noting O.T.'s objection to the conservatorship and questioning the estate planning documents, which were signed a year after O.T.'s dementia diagnosis. The investigator recommended Moss review these documents.
Pleasant refused to provide copies of these documents, but Moss obtained a copy of estate planning changes from 2016 directly from O.T.'s attorney. The original trust documents had named A.T., Pleasant, and another step-daughter Y.W. as "co-trustees" of the trust should O.T.'s wife predecease him. Documents executed in 2016 after O.T. was suffering from Alzheimer's disease made Pleasant the sole trustee, with A.T. and Y.W. as successor trustees. New powers of attorney, a health care directive, and a will were also executed at that time. Pleasant was with O.T. when he signed these documents, and the changes were allegedly made because "the family was dysfunctional."
On May 24, 2017, Pleasant dismissed her petition to conserve O.T. allegedly because O.T. opposed the conservatorship, was safely placed at Atria, and had been medication compliant. However, Moss was warned by Atria that if the conservatorship were dismissed, they would have no authority to keep O.T. at their facility should he wish to leave or medicate him should he refuse to take those medications.
Prior to a hearing on May 25, 2017, Moss told Pleasant that it was in O.T.'s best interests that the conservatorship continue and would seek a public guardian if necessary. This same day, O.T. told Moss he did not want Pleasant to help him; instead, he wanted one of his children to be in charge. Moss suggested a private fiduciary should be appointed in the interim.
Presumably in response to Pleasant's abandonment of the conservatorship action, on May 27, 2017, C.F. filed a petition for temporary and permanent appointment of a conservator, nominating a private fiduciary and questioning the propriety of Pleasant's actions. Pleasant opposed this request and filed another ex parte petition seeking her own appointment as temporary conservator of O.T.'s person. Pleasant's renewed petition alleged malfeasance by C.F., who had removed O.T. from Atria for a court hearing over his objection and then rather than immediately returning him, had first showed O.T. his vacant home and also took O.T. to his bank to remove Pleasant's power of attorney. Pleasant allegedly attempted to move all of O.T.'s money, and the bank froze his accounts.
Moss's June 15, 2017, report to the court advised that O.T. wanted one of his children or A.T. to handle things for him, but not Pleasant. O.T. continued to oppose the sale of his house and wanted to return to living at home. He did not want Pleasant handling trust matters. Moss recommended a private fiduciary on a temporary basis and opposed either C.F. or Pleasant acting as a temporary conservator because "both have exhibited bad judgment regarding [O.T.'s] well-being and also due to the obvious conflict between them." Moss also expressed concern over anyone who does not live in California serving as a conservator because O.T.'s "care and issues with visitation seem to need local oversight." At the initiation of this case, Pleasant lived in Texas and had later moved to South Carolina. The next year she was living in North Carolina.
Moss suggested the private fiduciary should investigate whether it would be feasible to return O.T. home, stating O.T. "deserves an independent review of the situation with all facts and factors openly disclosed and considered."
Proceedings continued, and Moss filed another report on August 24, 2017. This report noted that certain family members had met to discuss the resolution of the cross-petitions, including considering moving O.T. out of state. The sale of O.T.'s home had been completed, although Pleasant had not brought A.T. to the closing despite her promise to do so. Pleasant refused to provide either A.T. or Moss copies of the closing statement related to the sale of O.T.'s home or an accounting of O.T.'s money during the time that Pleasant had acted pursuant to her powers of attorney over O.T. Moss believed some commingling of O.T.'s funds and Pleasants funds may have occurred and that an accounting was necessary.
When Moss visited O.T. on August 22nd, he refused to speak to her, stating he had received a phone call telling him "not to speak with the lawyer." O.T. refused to say who had called. Staff intervened, convincing O.T. to speak with Moss. From their conversation, Moss opined that O.T. did not understand where he was, thought that he worked at Atria, and seemed to be living "in the moment or in the distant past." Moss expressed concern about Pleasant's refusal to provide financial and estate planning information, noting her lack of transparency.
On September 22, 2017, the court appointed private fiduciary Amy Self and Pleasant temporary co-conservators of the person of O.T. Self was appointed temporary conservator of O.T.'s estate.
On March 15, 2018, the court held a hearing at which Self's attorney represented that only $2,000 of the $97,000 that Pleasant had transferred and ostensibly co-mingled were unaccounted for, and that they were "not in a position at [that] point to make a conclusion that there was misappropriation or any fraud related to that." Further, the parties had located a facility in Louisiana where O.T. would have a studio instead of having to share a room. Moss consented to his move if that was what O.T. wanted.
Pleasant objected to any move to Louisiana, arguing O.T. had visited Louisiana earlier in the year and asked to come home early. The court questioned why Pleasant wanted to keep him in Sacramento given that she lived in North Carolina. Pleasant explained he was already adjusted to his present placement, his condition has continued to progress, and as a result, any move would be difficult.
A.T. disagreed, noting that Pleasant, Y.W., and A.T. had agreed at a previous hearing that it would be in his best interests to move to Louisiana. O.T had A.T. and his son in Louisiana, as well as cousins and other family in Mississippi. A.T. explained the visit to Louisiana had been cut short because O.T. wanted to return to see a lady friend in Sacramento. A.T. also complained about O.T.'s unshaven appearance at her last visit, expressing that he had always been "a well-shopped dresser" and questioning why he was unkept and smelled of urine if he was being visited regularly by his stepdaughters in Sacramento.
Ultimately, the court ordered Pleasant and Self to continue as temporary co-conservators of O.T., but deferred the decision on whether to move him to Louisiana. The court ordered the parties to meet and confer. C.F.'s competing petition was dismissed given the appointment of Self.
On June 8, 2018, Pleasant filed a status report, which indicated the family had not agreed on a placement for O.T., that Pleasant opposed moving O.T. to Louisiana, and that no one had filed formal objections to Pleasant's petition for conservatorship of the person of O.T. Pleasant argued all complaints were concerning her financial management of O.T.'s affairs, which had been addressed by the appointment of Self as the temporary conservatorship of O.T.'s estate and Pleasant's offer to appoint Self as the successor trustee to O.T.'s trust.
The court held another hearing on the matter on August 30, 2018. The parties agreed that Self would be appointed as the permanent conservator of the estate of O.T. Pleasant requested appointment as the sole conservator of O.T.'s person. A.T. and Moss opposed Pleasant's appointment, instead requesting that Self be appointed the sole, permanent conservator of O.T.'s person. Moss worried that under a co-appointment, Pleasant would veto decisions made by Self that were uncolored by preexisting family animosity and that Pleasant lived across the county such that she would not visit regularly. She also worried that Pleasant had acted outside of O.T.'s best interest in the past and had O.T. sign documents to alter his estate plans after his diagnosis. For example, Moss complained that Pleasant had sold O.T.'s house without telling the court and despite O.T.'s wish to return home and be cared for by his son. Pleasant argued she had been nominated and should be appointed sole conservator, although she was willing to serve as co-conservator.
Ultimately, the court appointed Self O.T.'s permanent conservator of the person, distinguishing Pleasant's case law on family animosity not preventing her appointment. Specifically, Pleasant lived across the country, would be effectively "calling all the shots" in any co-conservatorship, and the level of family dysfunction here was greater than in Conservatorship of Ramirez (2001) 90 Cal.App.4th 390 (Ramirez).
DISCUSSION
Pleasant argues the trial court erred in appointing Self as conservator of O.T.'s person because there is not substantial evidence in the record supporting the court's determination that appointing Pleasant would not be in O.T.'s best interests as required by Probate Code section 1810.
Probate Code section 1810 provides: "If the proposed conservatee has sufficient capacity at the time to form an intelligent preference, the proposed conservatee may nominate a conservator in the petition or in a writing signed either before or after the petition is filed. The court shall appoint the nominee as conservator unless the court finds that the appointment of the nominee is not in the best interests of the proposed conservatee." Thus, in finding that Self should act as the sole conservator of the person of O.T., the court necessarily determined that it would not be in O.T's best interests to appoint Pleasant to that position. (Ramirez, supra, 90 Cal.App.4th at p. 401.) We must determine whether substantial evidence supports this decision. (Ibid.)
"To determine if the order is supported by substantial evidence, we review the record in the light most favorable to the trial court's findings, resolving all evidentiary conflicts and drawing all reasonable inferences in favor of the judgment. [Citations.] The testimony of one witness may be sufficient to support the findings." (Conservatorship of the Person of B.C. (2016) 6 Cal.App.5th 1028, 1033-1034; see Conservatorship of Isaac O. (1987) 190 Cal.App.3d 50, 57 [reviewing court " 'ordinarily looks only at the evidence supporting the successful party, and disregards the contrary showing' "].) "Substantial evidence includes circumstantial evidence and the reasonable inferences flowing therefrom." (Conservatorship of Walker (1989) 206 Cal.App.3d 1572, 1577; see Conservatorship of Carol K. (2010) 188 Cal.App.4th 123, 134 ["[s]ubstantial evidence, which is evidence that is reasonable, credible, and of solid value, also includes circumstantial evidence"].) We "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." (In re Conservatorship of Amanda B. (2007) 149 Cal.App.4th 342, 347.)
Viewing the evidence in this light, the trial court's decision that appointment of Pleasant as the conservator of O.T.'s person was not in his best interests is supported by substantial evidence. Pleasant dropped her request to become O.T.'s conservator despite warnings from O.T.'s attorney Moss that Atria would not be able to keep O.T. at their facility without the conservatorship and in the face of undisputed evidence, that he required placement in a secured facility, which could not be accomplished through a health care directive.
Moreover, Pleasant knew that O.T. wished to return home and live with his son, but Pleasant nonetheless sold O.T.'s personal possessions and home before the conservatorship was finalized. These actions upset O.T., who withdrew his support of Pleasant's managing any of his affairs. Further, Pleasant acted to prevent family visitation, lived on the other side of the country and, ostensibly because of a family conflict, had taken O.T. to alter his estate related documents a year after his dementia diagnosis.
Pleasant opposed moving O.T. to Louisiana to be closer to family, but at least one family member worried that O.T. was not being regularly visited in Sacramento because of his unshaven appearance and the odor of urine on his body. O.T. had also had interpersonal issues within his placement discovered during visitation by Moss and requiring onsite intervention and careful monitoring by Self. Finally, Pleasant refused to be transparent in her actions related to the sale of the house or estate documents, despite requests from O.T.'s attorney Moss and O.T.'s daughter A.T., who was also named as a potential conservator and trustee in the various iterations of the estate documents. Both Moss and A.T. opposed Pleasant's appointment as either co or sole conservator of O.T.'s person. These facts clearly distinguish this matter from the mere sibling conflict present in Ramirez. (Ramirez, supra, 90 Cal.App.4th at pp. 401-403.)
Further, assuming arguendo there could be any question as to the sufficiency of this evidence as supporting the trial court's selection of Self over Pleasant to be conservator of O.T.'s person, we find Pleasant's failure to include the numerous probate investigator reports associated with this matter dooms her appeal. (See, e.g., Gonzalez v. Rebollo (2014) 226 Cal.App.4th 969, 977 ["Without a complete record, we are unable to determine whether substantial evidence supported the implied findings underlying the trial court's order"]; Christie v. Kimball (2012) 202 Cal.App.4th 1407, 1412 ["[w]e cannot presume error from an incomplete record"].)
As recognized by the Supreme Court in Denham v. Superior Court (1970) 2 Cal.3d 557, 564: "[I]t is settled that: 'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' [Citations.]" (See also Cal. Const., art. VI, § 13 [forbidding reversal of judgment absent a showing of error that "has resulted in a miscarriage of justice"].) Based on the foregoing, Pleasant has not met her burden of demonstrating error by an adequate record, requiring we reject her claim on appeal.
DISPOSITION
The judgment is affirmed. Respondent Self is entitled to costs, if any, on appeal. (Cal. Rules of Court, rule 8.278(a).)
/s/_________
HULL, Acting P. J. We concur: /s/_________
DUARTE, J. /s/_________
KRAUSE, J.