Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, No. 30-2010-00355508- MH-CN-LJC Caryl Lee, Judge.
Linda J. Vogel, under appointment by the Court of Appeal, for Objector and Appellant.
Nicholas S. Chrisos, County Counsel, and Thomas F. Morse, Deputy County Counsel, for Petitioner and Respondent.
OPINION
O’LEARY, ACTING P. J.
Conservatee Randy H. appeals from a postjudgment order denying his petition for rehearing on his status as a conservatee under the Lanterman-Petris-Short Act (the LPS) (Welf. & Inst. Code, § 5000 et seq.). Randy contends he demonstrated he was not gravely disabled as defined in the LPS and thus the court abused its discretion by failing to terminate the conservatorship. We find no error and affirm the order.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
FACTS AND PROCEDURE
Original Conservatorship Hearing
On March 18, 2010, the Orange County Public Guardian filed a petition to establish a conservatorship over the person and estate of 43-year-old Randy, who suffers from schizoaffective disorder, along with a seizure disorder and other health problems. Since 1992, Randy’s mental condition has resulted in numerous hospitalizations. The public guardian has been appointed conservator of Randy five times previously, the most recent being in the summer of 2009.
In June 2009, Randy was hospitalized at UCI Medical Center. Over the following nine months, Randy was hospitalized six times, with three hospitalizations in early 2010. During those hospitalizations, Randy engaged in self-harming behavior resulting from command hallucinations, such as refusing food and drink, and banging his head against walls. Medical staff were forced to restrain Randy and administer emergency medications.
Of Randy’s nine siblings, only one, Thomas H., is involved in assisting with Randy’s care. After his release from the UCI Medical Center on March 1, 2010, Randy returned to the hospital with Thomas two days later. Randy was not taking his medications, claiming voices told him not to, and was engaged in suicidal behavior. The hospital placed Randy on an involuntary hold pursuant to section 5150.
On March 9, 2010, Dr. Rimal Bera filed a declaration in support of a conservatorship for Randy, stating Randy’s mental illness rendered him gravely disabled in that he was unable to provide for his food, clothing, or shelter. Of particular concern for Bera was Randy’s mental condition preventing him from taking his anti-seizure medications, and his recent seizures. On March 18, 2010, the superior court appointed the public guardian as temporary conservator of Randy.
A deputy public guardian interviewed Randy in the hospital on March 25, 2010. Randy told the deputy public guardian he believed he had mental illness, needed psychotropic medications, needed a conservator and wanted the public guardian’s office to act as his conservator. Randy also stated he would have no place to go if he were released from the hospital. Randy stated, “‘My family told the courts they would take care of me and make sure I’d have my medications and have a roof over my head. Instead they were taking money from me and throwing me out on the streets. I don’t want to go back there. I want to go to Landmark [Medical Center].’”
The deputy public guardian also interviewed Randy’s social worker, Lori Beers. Beers expressed concern Randy was being taken advantage of financially by his brother. Randy receives $1,054 a month in disability income. Randy told Beers he had been sleeping on a lawn chair in Thomas’s apartment and was only allowed to be in the apartment between the hours of 10 p.m. and 5 a.m. Randy’s hospital chart noted he told charge nurses his family was taking advantage of him financially.
Thomas did not attend Randy’s April 22, 2010 conservatorship hearing. The court appointed the public guardian conservator of Randy on May 10, 2010. The conservatorship will expire on April 21, 2011.
Petition for Rehearing
On May 24, 2010, Randy petitioned for a rehearing, seeking termination of his public guardian conservatorship, with the hope Thomas would be made his conservator. At the hearing on the petition, Dr. Michelle Vorwerk, who examined Randy at Royale Hospital on July 1, 2010, offered her expert opinion that Randy remained gravely disabled. Her opinion was based on Randy’s severe symptoms resulting from his mood disorder. Although during the interview Randy was calm and cooperative, since his current conservatorship was established, Randy’s doctors had documented instances of Randy’s childlike behavior, mood swings, and self-injurious behavior. In June 2010, Randy was sent out of Royale Hospital for acute hospitalization at Western Medical Center where he was stabilized after two weeks. Randy’s doctors reported Randy had made threats to kill himself via starvation.
Thomas testified that as a baby, Randy was removed from his parents’ custody after they severely abused him, and he spent most of his childhood in foster care and hospitals. Thomas testified he has taken care of Randy for the last 15 to 20 years. If Randy were released from the public guardian conservatorship, Thomas would provide Randy with his own room and food and monitor Randy’s medications. Thomas explained Randy would be cared for by Thomas’s wife, who stays at home with their two children, while Thomas works full time. Thomas acknowledged, however, that while his wife was taking care of Randy and the children in the past, Randy had to be hospitalized twice. Thomas also testified Randy sometimes lied about taking his medication. When Thomas realized Randy was not taking his medication, he sometimes would take Randy to the hospital for an immediate medication injection.
Randy testified and denied ever saying he did not want Thomas to act as his conservator. Randy claimed that prior to 2010 he mostly lived independently, staying with Thomas only if he could not pay his rent. Randy always enjoyed living with his brother. Randy also testified he had never gone without his medications and his March 2010 trip to UCI Medical Center was merely to refill a prescription.
In ruling, the trial court noted its concern about Thomas’s ability to safely care for Randy. Thomas lived in a small apartment and Thomas’s wife was already caring for two small children. The court was concerned it would be difficult for her to care for three people. It denied Randy’s rehearing petition finding he remained gravely disabled despite his brother’s offer of care.
DISCUSSION
A conservatorship may be established under the LPS for any person who is gravely disabled as a result of a mental disorder. (§ 5350.) “‘Gravely disabled’” is defined as a condition in which, as a result of a mental disorder, a person is unable to provide for his or her basic personal needs for food, clothing or shelter.” (Conservatorship of Johnson (1991) 235 Cal.App.3d 693, 696 (Johnson).) “[A] person is not ‘gravely disabled’ if that person can survive safely without involuntary detention with the help of responsible family, friends, or others who are both willing and able to help provide for the person’s basic personal needs for food, clothing and shelter.” (§ 5350, subd. (e)(1).)
“Upon the establishment of a conservatorship, the conservatee may be placed in an approved medical or nonmedical facility pursuant to the court order.... To insure short-term commitment, the conservatorship automatically terminates at the end of one year.... When the conservatorship terminates, any facility in which the conservatee has been placed must release him (§ 5361). Additionally, the conservatee may request a rehearing every six months (§ 5364).” (Conservatorship of Chambers (1977) 71 Cal.App.3d 277, 283).
In a proceeding to appoint or reappoint a conservator, the state bears the burden of proving beyond a reasonable doubt the conservatee is gravely disabled. However, when petitioning for a rehearing to modify the terms of or to end a conservatorship, the conservatee bears the burden to prove by preponderance of evidence he or she is no longer gravely disabled. (See Conservatorship of Amanda B. (2009) 173 Cal.App.4th 1380, 1385; Conservatorship of Kevin M. (1996) 49 Cal.App.4th 79, 84.) In either case, on appeal, we review the trial court’s order for substantial evidence. (Conservatorship of Walker (1989) 206 Cal.App.3d 1572, 1577.)
Randy contends the court’s order denying his request to terminate his conservatorship is not supported by substantial evidence. He complains the court mistakenly considered evidence regarding his mental condition when the conservatorship was established two months earlier, rather than considering only his mental condition at the time of the rehearing, and it did not give appropriate consideration to Thomas’s ability to care for Randy as a third party. We reject both contentions.
1. Present Disability
Relying on Conservatorship of Benvenuto (1986) 180 Cal.App.3d 1030, 1034 (Benvenuto) [conservatee must be presently gravely disabled], and Conservatorship of Murphy (1982) 134 Cal.App.3d 15, 18-19 (Murphy) [same], Randy contends he was not presently gravely disabled at the time of his rehearing. He argues Vorwerk’s opinion was based on his mental state weeks earlier when the conservatorship was established, not on his present condition. We disagree.
In Benvenuto, supra, 180 Cal.App.3d 1030, and Murphy, supra, 134 Cal.App.3d 15, conservatorships were based on expert medical testimony the conservatee was not presently disabled but could become so in the future. But here Vorwerk testified Randy, who had already been found gravely disabled, remained gravely disabled. She examined Randy just a few days before the hearing on Randy’s petition and found he continued to suffer severe symptoms including childlike behavior, mood swings, and self-injurious behavior such as threats to kill himself by starvation, documented by medical professionals. Just the month before the hearing, Randy was placed in an acute care facility for two weeks for stabilization.
Furthermore, Benvento and Murphy both concerned findings at the original conservatorship hearing where the burden was on the state to prove grave disability beyond a reasonable doubt. Here, the court was considering a petition for rehearing on the conservatorship at which Randy bore the burden of proof to demonstrate he was not presently gravely disabled. Randy offered his own testimony to demonstrate he was no longer gravely disabled-he did not present any medical testimony-but notable inconsistencies exist in his testimony. For instance, the public guardian reported Randy went to UCI Medical Center in March 2010 due to severe command hallucinations rendering him suicidal. Medical records indicated Randy was not taking his medications because voices told him not to. But Randy testified he never stopped taking his medications and asserted he had gone to the hospital simply to refill his prescriptions. Vorwerk’s expert testimony is uncontroverted by any medical evidence, and constitutes substantial evidence to support the trial court’s conclusion Randy continued to be presently gravely disabled.
2. Ability of Thomas to Care for Randy
Under the LPS, “A person is not ‘gravely disabled’ if that person can survive safely without involuntary detention with the help of responsible family, friends, or others who are both willing and able to help provide for the person’s basic personal needs for food, clothing and shelter.” (§ 5350, subd. (e)(1).) Randy contends the trial court incorrectly concluded Thomas was unable to adequately care for him. We disagree.
Vorwerk testified that based on her interviews with Randy and Thomas, and her review of Randy’s medical records, she had grave concerns about Thomas’s ability to safely care for Randy. Randy had accused Thomas of mishandling his money and not providing him with care; Thomas denied that Randy had a mental illness, and medical records indicated family contact caused Randy to become agitated and triggered his self-injurious behavior. Randy argues Vorwerk’s testimony about Thomas’s ability to care for him was outside the scope of her expertise and thus improperly considered by the court. (Evid. Code, § 801.) Given that there was no such objection raised below, we decline to consider the point further. (Evid. Code, § 353, subd. (a).)
Randy also complains the trial court improperly based its conclusion on generalized beliefs concerning the ability of Thomas’s wife to simultaneously care for her young children and an adult with a mental illness. We disagree. The trial court expressed concern Randy’s sister-in-law would have a difficult time caring for Randy and her two young children, but given the totality of the circumstances, this was a realistic, not a paternalistic, conclusion. The court must not only consider whether a third party is willing to care for a conservatee, but also whether a conservatee is able to survive safely in the care of a third party. (§ 5350 subd. (e)(1); Johnson, supra, 235 Cal.App.3d at p. 699 [conservatorship proper where conservatee’s mother was willing to provide care but evidence revealed conservatee might not survive safely in mother’s care].)
There was ample evidence giving the trial court cause for concern about Thomas’s ability to care for Randy. Thomas works full time, leaving Randy to be cared for solely by Thomas’s wife. Randy has lied to his family about taking his medications and has experienced suicidal thoughts as a result. Randy has a history of repeated hospitalizations due to his mental condition and required hospitalization on more than one occasion while in the care of Thomas. Even while in the constant care of medical nurses, Randy has required acute hospitalizations, evidencing the severity of his condition. The suitability of Thomas’s two-bedroom apartment to accommodate five people was questionable, especially when the investigative report documented Randy having slept in a lawn chair while previously in the care of Thomas. Finally, Randy told hospital staff his family was taking financial advantage of him. Cumulatively, this evidence raises sufficient doubt regarding Thomas’s ability to provide a safe environment for Randy. In short, substantial evidence supports the trial court’s finding Randy is presently gravely disabled without a current viable option to seek care from an able third party.
DISPOSITION
The order is affirmed.
WE CONCUR: ARONSON, J., IKOLA, J.,