Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County. No. 02P0113. Steven D. Barnes, Judge.
Paul Bernstein, under appointment by the Court of Appeal, for Objector and Appellant.
Peter D. Moock, County Counsel, and David Hamilton, Deputy County Counsel, for Petitioner and Respondent.
OPINION
Before Levy, Acting P.J., Gomes, J., and Kane, J.
INTRODUCTION
Appellant James V. appeals from the order of the trial court appointing the Kings County Public Guardian as conservator of his person under the Lanterman-Petris-Short Act (LPS Act). (Welf. & Inst. Code, § 5000 et seq.) The order was made after a jury trial on the issue of whether appellant suffers from a grave disability as a result of a mental illness. Letters of conservatorship and an order appointing the conservator were filed on January 12, 2009.
All statutory references are to the Welfare and Institutions Code unless otherwise noted.
Appellant contends there is no substantial evidence to support the finding of grave disability; there was no evidence that he cannot provide for his food, clothing, and shelter; a social worker was not legally qualified to give a psychiatric opinion concerning his disability; the trial court failed to properly instruct the jury that it must find a danger of violent behavior due to a serious difficulty controlling behavior pursuant to In re Howard N. (2005) 35 Cal.4th 117 (Howard N.); and the expert who testified at trial was unqualified. We reject these contentions and will affirm the trial court’s findings and order.
FACTUAL HISTORY
David Rolfsema has worked at Kings View Mental Health Providers for twenty years and has a master’s degree in clinical social work from Fresno State University. Rolfsema consults in conservatorship evaluations and does group and individual therapy. He also supervises new clinical social workers. Rolfsema has examined between 80 and 100 patients to determine if they were gravely disabled and testified as an expert witness on this issue as many times. When asked if he wanted to voir dire Rolfsema concerning his qualifications, appellant’s counsel replied that he was “very familiar with Mr. Rolfsema’s qualifications” and stipulated Rolfsema could be designated as an expert witness.
In his opening statement to the jury, county counsel explained that Rolfsema was a Licensed Clinical Social Worker (LCSW).
Rolfsema examined appellant the week prior to the hearing and a month before that. Rolfsema had experience treating appellant many times over the preceding 20 years. Appellant first sought treatment from Kings County Mental Health in 1974. Rolfsema reviewed appellant’s medical records which consisted of nine files. As a result of his examination of appellant and appellant’s medical records, Rolfsema opined that appellant suffered from chronic paranoid schizophrenia, a long-term medical disorder that waxes and wanes.
Those who suffer from appellant’s illness have positive and negative symptoms. Positive symptoms include auditory hallucinations and hearing voices. They also include delusions, false beliefs that cannot be swayed no matter what logic is used against them, and disorganized thinking. Negative symptoms include flattening of affect, which is an inability to express a normal range of emotions, and volition, which is difficulty in having the will to plan and live one’s life. Other negative symptoms are the inability to experience pleasures in life, lack of judgment, and lack of insight concerning one’s disease.
People suffering from paranoid schizophrenia have paranoid, false beliefs that individuals or institutions are out to harm them. According to Rolfsema, appellant suffers from all of the positive and negative symptoms Rolfsema mentioned. Appellant denied hearing voices during Rolfsema’s interviews of him, but hospital staff noticed appellant talking to himself and appellant appeared to be listening to voices.
On September 9, 2008, appellant met the criteria for involuntary commitment to a psychiatric hospital and he was sent out of county. On September 16, 2008, appellant convinced a judge that he was well enough to leave the hospital. On October 6, 2008, appellant was re-hospitalized with serious problems. Appellant was taken to the hospital by the Hanford Police after a verbal altercation and erratic driving.
Appellant was easily angered and had not been staying in his apartment. He had been up for four nights without sleeping. Appellant had also stopped taking his medications. Appellant was sent to an acute psychiatric hospital in Ventura, but did not make any progress. On October 22, 2008, appellant was moved to a psychiatric facility in Fresno. Since being moved to Fresno, appellant had made a little bit of progress, but not enough to stop the conservatorship.
Appellant’s moods were up and down at a moment’s notice and for no apparent reason. He was very unpredictable. Appellant broke his shoulder and was having trouble following the doctor’s orders. Appellant had frequently tried to “cheek” his medication, putting it in the side of his mouth rather than swallowing it. Appellant tries to take half of his dose of medication and it takes a lot of debate to get him to take the full dose.
In November 2008, appellant brought a bowl of his feces to the nursing station and left it there. Appellant pushed the staff aside on one occasion, demanded to have a shower, stripped, and started a shower even though staff members were working with another patient. Appellant is loud and disruptive. Appellant broke his closet door in early December and was caught urinating in a drinking fountain. Rolfsema did not believe appellant was ready to be released.
On December 3, 2008, appellant kicked at Rolfsema, but missed him. In years of experience with appellant, Rolfsema explained that appellant never grasps that he has a problem and needs to take medication to solve it. Rolfsema found this unfortunate because appellant responds well to a very small amount of medication. Appellant currently takes three milligrams of the antipsychotic medication, Risperdal.
Risperdal helps appellant suppress his delusions, calm him, organize his thoughts, and stop auditory hallucinations. Without the medication, appellant would in the next week become very ill again and hear voices and become more delusional, disorganized, and unpredictable. Rolfsema thought there was a very low likelihood appellant would voluntarily take his medication at this point. Once appellant’s past conservatorships ended, his mental health history shows that he stops his medication and becomes very ill again.
Concerning appellant’s ability to provide for the basic needs of his food, clothing, and shelter, Rolfsema stated the most severe problem was appellant’s disorganization of thought. Appellant jumps from one topic to another and is unable to do the necessary planning to pay rent, look for an apartment, fill out an application for an apartment, or to follow through on such plans.
When Rolfsema asked appellant how he planned not to be homeless, appellant was unable to come up with a rational plan of where he would live once released from the hospital by the court. Appellant named some people he could live with, including friends and relatives. Rolfsema contacted these people to find out if appellant’s plan was accurate. Rolfsema learned that none of appellant’s plans were legitimate and none of the people appellant mentioned were ready to take care of him. Appellant still needs supervision.
Although appellant’s medication helps with appellant’s symptoms, there is no cure for his disorder. Appellant needs more than just medication, he requires the stability of a locked facility with a 24-hour nursing staff to insure he takes his medication, takes showers, and eats. At the time of the trial, the appellant’s hospital was the least restrictive placement for him.
Appellant was not currently capable of giving informed consent to his doctors or therapists concerning the treatment of his mental illness. According to Rolfsema, appellant could not safely drive a car, possess a firearm, or enter into a contract because appellant could easily be taken advantage of by a con man.
Appellant testified, stating his current address and prior residences in Ventura and Hanford. Appellant moved from one apartment after having health problems. Appellant explained that “[t]hey said it was mental illness. I thought I was being poisoned.” Appellant believed the poison was a bug spray. While in his apartment, appellant paid the rent of $515 a month, was not in danger of being evicted, and bought his groceries and clothing. Appellant paid for his expenses from a defense fund service annuity and supplemental social security.
When asked where he would live if not on a conservatorship, appellant replied he would stay with friends on Kensington Way. Appellant had enough money for rent and groceries. The person is a friend of the family appellant had known for years named James N. Appellant acknowledged he had a mental illness. Appellant said he was diagnosed as having paranoid schizophrenia and takes six milligrams of Risperdal a day. Appellant denied hearing voices; on occasion sings songs to himself. Appellant also likes to recite limericks.
If appellant lived on his own, he would be able to provide for his own clothing. Appellant would shop for food at Save Mart, Cost Less, RN Market, and Vons. On average, appellant’s groceries cost between $200 and $300 a month. Appellant stated that he would take his medications if he lived on his own. Appellant denied urinating in a drinking fountain, asserting he was attacked by a woman’s false accusation. The woman knocked appellant’s hat off his head and his glasses off his face.
Another patient at the hospital, Joseph M., also attacked appellant. In Ventura, appellant was assaulted by a patient. Appellant hit him on the head with a trash can. Appellant protected himself. Appellant explained that during the incident in which he was yelling, he was at a Burger King drive-through. He was being “ripped off” by someone in the store. Appellant owns a car, has a license to drive it, and has automobile insurance.
On cross examination, appellant explained he worked as a cartographer for the Navy when he was 14 years old. When asked if he had schizophrenia, appellant replied he was “not too sure.” Appellant explained that the medicine makes one silly. Medicine for schizophrenia “will make you sick.” Appellant stated, “I think I have mental illness, but I also have mental health.” Appellant described his mental health as “excellent.”
DISCUSSION
1. Substantial Evidence of Grave Disability and Special Disability
A conservatorship may be established under the LPS Act 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 basic personal needs for food, clothing or shelter. (§ 5008, subd. (h).) Grave disability must be proven beyond a reasonable doubt to establish and to renew an LPS conservatorship. (Conservatorship of Roulet (1979) 23 Cal.3d 219, 225-226; Conservatorship of Pollock (1989) 208 Cal.App.3d 1406, 1411.) On review, we apply the substantial evidence test to determine whether the record supports a finding of grave disability. “Substantial evidence includes circumstantial evidence and the reasonable inferences flowing therefrom.” (Conservatorship of Walker (1989) 206 Cal.App.3d 1572, 1577.)
Appellant claims the evidence is insufficient to support the finding that he is gravely disabled as a result of his mental disorder. Appellant contends there was no testimony that he did not eat or dress. Appellant argues that was placed on a conservatorship for being homeless and that homelessness does not constitute lack of shelter. We disagree with appellant’s characterization of his condition.
Appellant suffers from paranoid schizophrenia. Among appellant’s symptoms are delusions that directly affect his ability to evaluate how to provide for himself. Appellant believed he had friends and relatives he could stay with who, upon investigation by Rolfsema, were not willing or were unable to provide him care and shelter.
Rolfsema explained that appellant is currently hostile to taking his medication and that in the past, when conservatorships ended, appellant stopped taking his medication and would relapse into the serious symptoms of his mental illness. Appellant takes his medications only because he lives in a highly structured, supervised setting. Rolfsema testified that the likelihood of appellant voluntarily taking his medication was very low as of the time of trial. Appellant was equivocal even during trial on the issue of whether or not he has a mental illness. Appellant also showed hostility toward taking his medication which he described as making him sick. Appellant described his mental health as excellent.
Although appellant testified that he would have shelter with a friend, buy food, manage his finances, and take his medications if released from his conservatorship, the jury was permitted to draw different inferences from Rolfsema’s testimony. Rolfsema explained that appellant does not have insight into his mental illness, which causes him to be disorganized and unable to plan for his care and needs. Appellant’s relatives told Rolfsema appellant would not live in his apartment when he had one. Appellant had gone four nights without sleeping and had made only minimal progress in the hospital.
In Conservatorship of Guerrero (1999) 69 Cal.App.4th 442, 445-446, the court rejected the argument that a jury instruction created an alternative basis for a conservatorship based on grave disability not recognized by any statute. The challenged instruction set forth that the jury could consider evidence of past failure to take prescribed mental health medication, evidence of the patient’s lack of insight into his or her mental condition, whether the patient would take his or her medication unless required do so, and if the mental disorder makes the patient unable to provide for his or her basic personal needs for food, clothing, or shelter without medication. (Id. at p. 445.)
The jury here received a similar instruction which stated as follows:
We reject appellant’s assertion that the link between his mental illness and ability to care for himself was insufficiently shown by Rolfsema’s testimony. There was substantial evidence to support the jury’s finding of grave disability.
2. Howard N. Does Not Apply To LPS Commitments
Appellant contends the recent decision in Howard N. applies to all involuntary mental health commitments. Thus, to comport with due process, the definition of gravely disabled must now include a requirement of serious difficulty in controlling physically dangerous behavior to the public. Appellant challenges the constitutionality of the LPS Act. He argues that the jury was not instructed on what he believes to be a legal requirement of serious difficulty in controlling physically dangerous behavior to the public. We reject these contentions.
Howard N. addressed section 1800 et seq., a civil commitment scheme for juveniles. The juvenile commitment scheme required only a finding that the potential committee “would be physically dangerous to the public because of the [person’s] mental or physical deficiency, disorder or abnormality.” (§§ 1800, 1800.5.) The Supreme Court held the potential committee’s right to due process required a finding that “the mental deficiency, disorder, or abnormality causes [the potential committee] to have serious difficulty controlling his dangerous behavior.” (Howard N., supra, 35 Cal.4th at p. 135.) The Supreme Court, however, found section 1800 et seq. constitutional by interpreting the scheme to include this requirement. (Ibid.)
In arguing that Howard N. applies to the LPS Act, appellant reads the case too broadly. Howard N. is clearly directed at the involuntary civil commitment of individuals who are unable to control their behavior and thus pose a danger to the public. (Howard N., supra, 35 Cal.4th at p. 128.) The language appellant cites for the proposition that Howard N. applies to all civil commitments belies his argument. “[I]t is difficult to imagine on what basis the high court could articulate different due process standards for the civil commitment of dangerous mentally ill persons who happen to be sexually violent predators than for those dangerous mentally ill persons who are not sexually violent predators. Thus, while the high court performed its due process analysis in the sexually violent predator context, its constitutional pronouncements are instructive here [civil commitment of a juvenile alleged to be physically dangerous to the public because of a mental illness].” (Howard N., supra, 35 Cal.4th at p. 131, italics added.) The quotes taken from Howard N. on which appellant relies can be understood only by recognizing that the topic being discussed is dangerous criminals, who, if not civilly committed, will likely reoffend if returned to the general population.
The federal cases appellant cites do not support his argument. Foucha v. Louisiana (1992) 504 U.S. 71 concerned the continued confinement of an individual found not guilty by reason of insanity. The court held that a statute allowing continued confinement of the insanity acquittee on the basis of his antisocial personality, despite no evidence of current mental illness and dangerousness, violated due process. (Id. at pp. 78-79.) Similarly, in O’Connor v. Donaldson (1975) 422 U.S. 563, the court held that a finding of mental illness alone cannot justify a State’s locking a person up against his will and keeping him indefinitely in simple custodial confinement. There was no constitutional basis for confining such persons involuntarily if they are not dangerous to others and can live safely in freedom. (Id. at p. 575.)
In Doe v. Gallinot (1979) 486 F.Supp. 983, the court held that the “gravely disabled” standard for California’s LPS Acts was not unconstitutionally vague. Standards for commitment to mental institutions are constitutional only if they require a finding of dangerousness to others or to self. The court concluded that “gravely disabled” implicitly required a finding of harm to self, that is, an inability to provide for one’s basic physical needs. (Id. at p. 991.) Nothing in the federal cases supports appellant’s contention that an LPS committee must pose a danger to the public as well as to himself or to herself.
The Howard N. analysis is not applicable to an LPS commitment. The statutory schemes in question are designed to address different circumstances. (See e.g., Conservatorship of Chambers (1977) 71 Cal.App.3d 277, 281-285.) Persons committed under the LPS Act and those committed under statutes applicable to the dangerously mentally ill are not functional equivalents and are not similarly situated. (Cooley v. Superior Court (2002) 29 Cal.4th 228, 254.)
The United States Supreme Court has explained the difference: “The state has a legitimate interest under its parens patriae powers in providing care to its citizens who are unable because of emotional disorders to care for themselves; the state also has authority under its police power to protect the community from the dangerous tendencies of some who are mentally ill.” (Addington v. Texas (1979) 441 U.S. 418, 426.) Thus, the state may commit someone who is a danger to others, a situation in which the Howard N. analysis would apply, but also may commit those individuals who are unable to care for themselves because of their mental disorders. Appellant’s commitment exemplifies the latter situation, and Howard N. does not apply. The state has a compelling basis to protect those who pose a danger to themselves as well as to others.
In rejecting appellant’s legal contention, we necessarily reject his argument that the jury was improperly instructed regarding the correct legal standard in which to evaluate his disability.
3. Expert Witness
Appellant contends that Rolfsema was unqualified to testify concerning his medical diagnosis of paranoid schizophrenia because he was an LCSW, not a doctor. The parties spend considerable time reciting various portions of the Business and Professions code concerning the qualifications of physicians, psychologists, and those with a LCSW. We find ourselves guided, however, by the Welfare and Institutions Code and the stipulation by the parties concerning Rolfsema’s expertise.
Section 5008, subdivision (a) requires evaluation of a potential conservatee as follows: “Persons providing evaluation services shall be properly qualified professionals and may be full-time employees of an agency providing evaluation services or may be part-time employees or may be employed on a contractual basis.” This provision does not restrict the evaluation process to physicians or psychologists. A person who is a LCSW surely comes within the definition of a “properly qualified professional.”
As importantly, the parties stipulated that Rolfsema was an expert witness. This stipulation was entered before Rolfsema could testify further concerning his curriculum vitae. Failure to object to a witness’s testimony on the ground of testimonial competence forecloses the issue on appeal. (People v. Cudjo (1993) 6 Cal.4th 585, 622.) A challenge to the foundation of an expert’s opinion is also barred on appeal if the objecting party did not raise the objection with the trial court. (People v. Seaton (2001) 26 Cal.4th 598, 642-643.) Appellant’s counsel not only stipulated to Rolfsema’s status as an expert and failed to raise an objection to his qualifications, counsel further noted on the record that he was well aware of Rolfsema’s qualifications. We reject this contention.
The stipulation occurred before Rolfsema could explain that he was a licensed clinical social worker. Given Rolfsema’s testimony that he had a master’s degree in clinical social work and had group and individual patients, we can reasonably infer from the record that he was licensed in his field. Also, appellant’s trial counsel stated on the record that he was well acquainted with Rolfsema’s qualifications. We can again infer from this comment that appellant’s counsel had no reason to question Rolfsema’s qualifications. We therefore reject appellant’s argument that there was no evidence in the record that Rolfsema was a licensed social worker.
DISPOSITION
The order appointing a conservator for appellant is affirmed.
“The term ‘gravely disabled’ means that a person is presently unable to provide for his or her basic needs for food, clothing, or shelter because of a mental disorder.
“Psychosis, bizarre or eccentric behavior, delusions or hallucinations are not enough, by themselves, to find that [appellant] is gravely disabled. He must be unable to provide for the basic needs of food, clothing, or shelter because of a mental disorder. If you find [appellant] will not take his prescribed medication without supervision and that a mental disorder makes him unable to provide for his basic needs for food, clothing or shelter without such medication, then you may conclude [appellant] is presently gravely disabled.
“In determining whether [appellant] is presently gravely disabled, you may consider evidence that he did not take prescribed medication in the past. You may also consider evidence of his lack of insight into his medical condition.
“In considering whether [appellant] is presently gravely disabled, you may not consider the likelihood of future deterioration or relapse of a condition.”