Opinion
H044021
05-24-2018
Conservatorship of the Person of A.L. P.L., as Conservator, etc., Petitioner and Appellant, v. A.L., as Conservatee, Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. MH028209)
The conservatee, A.L. (Allen), was involuntarily committed by the superior court in early 1984 in proceedings under the Lanterman-Petris-Short Act (Welf. & Inst.Code, § 5000 et seq.; LPS Act or Act), the court finding Allen gravely disabled under the Act. Allen's sister, P.L. (Pamela), was named conservator of the person. Pamela remained as Allen's conservator over the next 32 years, with both of them living in California and, for 10 years, in Nevada. In the summer of 2016, Pamela, as conservator, filed separate petitions for least restrictive placement and for reappointment as conservator for an additional year. After multiple hearings, and after the removal of Allen from institutional care and his placement in Pamela's home, the court on August 19, 2016, over Pamela's objection, dismissed both petitions and terminated the LPS conservatorship.
Further statutory references are to the Welfare and Institutions Code unless otherwise stated.
Pamela contends on appeal that there was no legal basis for the court's termination of the LPS conservatorship upon a finding that Allen was not gravely disabled. Although Allen's trial counsel urged the court to terminate the conservatorship upon placement of Allen in Pamela's home, Allen now contends that such termination was error. We agree, and we will therefore reverse the August 19, 2016 order of the court dismissing Pamela's petitions and terminating the LPS conservatorship.
I. PROCEDURAL HISTORY
A. Prior Proceedings
In January 1984, the office of the Public Guardian of the County of Santa Clara (public guardian) filed a petition for appointment of a conservator of the person of Allen, then 29 years old, alleging that he was gravely disabled within the meaning of the LPS Act. In an order filed February 2, 1984, the court found Allen gravely disabled and appointed Pamela as conservator of his person.
The appellate record reflects that from 1985 through 2002, the court, upon petitions filed annually by Pamela, issued orders reappointing her as Allen's conservator pursuant to sections 5361 and 5362. On May 15, 2003, the court entered a decree terminating the conservatorship, effective February 2, 2003.
Upon the filing of a new conservatorship petition on March 15, 2013, the court appointed the public guardian as Allen's temporary conservator. The petition was accompanied by declarations from two psychiatrists affiliated with San Francisco General Hospital, who diagnosed Allen with "Psychosis NOS, Chronic Paranoid Schizophrenia, [and] Cognitive Impairment." Thereafter, in August 2013, a conservatorship report was filed with the court pursuant to section 5354. The report provided a detailed history concerning Allen and recommendations that he be found gravely disabled and that Pamela be appointed his conservator. On August 14, 2013, the court appointed Pamela conservator of the person of Allen under the LPS Act. Upon Pamela's petitions accompanied by physicians' declarations establishing that Allen continued to be gravely disabled, the court issued orders reappointing Pamela as Allen's conservator in 2014 and 2015.
In a March 2013 court filing, it was noted that beginning in 2002 and for approximately 10 years thereafter, Allen was the subject of a conservatorship in Las Vegas, Nevada. Because of her business, Pamela had relocated Allen to Nevada, but she "was never able to stabilize her brother in Nevada, and he ha[d] been hospitalized" more than 10 times and "ultimately failed placement in [seven b]oard and [c]are facilities."
B. Current Pleadings Filed By Conservator Pamela (May to July 2016)
In May 2016, Pamela filed a request seeking an order requiring Good Samaritan Hospital (Good Sam) to release Allen's medical records. She alleged that Allen had recently been hospitalized at Good Sam after he had ingested foreign objects. He had swallowed two AAA batteries, staples, a penny, and an earring. Pamela alleged that, as Allen's conservator, she had requested his medical records and Good Sam had refused to provide them. She detailed her complaints concerning Good Sam's care of Allen, including the fact that it had, over her objection, transferred Allen to Valley Medical Center (VMC).
All dates hereafter stated are 2016 unless otherwise specified.
In June, Pamela filed a petition for least restrictive placement. She alleged that the least restrictive placement for Allen was a locked skilled nursing facility. Pamela stated that Allen was currently living at VMC's Barbara Arons Pavilion (VMC Pavilion). She detailed in her petition specific problems with Allen's care at VMC Pavilion, including that (1) there had been periods of time when he was left unsupervised; (2) he had been allowed to drink excessive amounts of water and to ingest sugar packets with limited supervision, causing medical problems for him due to his diabetes; (3) vermin were present in the housing unit; (4) there had been an incident in which Allen stated "he was a cop and wanted to kill Michelle Obama," prompting staff to contact unnecessarily (given that he was already in a locked facility) the Secret Service; (5) there was an allegation that a staff member had pushed Allen on the bed; (6) Allen had ingested a sharp screw and another foreign object, evidencing that "staff were insensitive to Allen's special needs"; (7) staff had provided Allen with Haldol, despite Pamela's written and oral requests not to provide the drug because of its adverse side effects upon Allen, including violent behaviors, difficulty speaking and swallowing, and hallucinations; and (8) Pamela had received complaints from other patients that Allen was being unfairly treated at VMC Pavilion and they feared for his safety.
In July, Pamela filed a petition for her reappointment as conservator of Allen. She alleged that Allen was presently residing at VMC Pavilion and that there had been no substantial change in his condition since her appointment. Pamela accompanied the petition with the confidential declarations of two physicians indicating that Allen at that time suffered from "schizophrenia paranoid type." One of the physicians, Dr. Mya Kyaw, elaborated that Allen experienced "paranoid delusions, command auditory hallucinations, illogical thought process, depression, anxiety, . . . ingestion of foreign objects, irrational behaviors, [and] poor insight and judgment." Dr. Kyaw declared that Allen continued to require "24/7 1:1 supervision to do ADLs [activities of daily living], to take meds, [and] to prevent from swallowing foreign objects." The second physician, Dr. Clayton Tamura, similarly declared that Allen required one-to-one nursing supervision for his own safety.
C. Current Hearings (May to August 2016)
Between May and August, the court conducted five hearings concerning Allen's conservatorship. Allen did not attend any of the hearings. The principal participants at the five hearings were the trial judge, Pamela, and counsel for Allen, Mallory Street of the Office of the Public Defender. The discussions at those hearings relevant to this appeal are presented below.
1. May 26 , 2016 Hearing
After the filing of Pamela's request for release of Good Sam's medical records, the court conducted a hearing on May 26. The record reflects that the court scheduled the hearing at Pamela's request because she had "had some difficulties in her conservatorship responsibilities." Pamela stated that she had been involved in the conservatorship of her brother for 30 years, and that he had been diagnosed with "schizophrenia[,] paranoia and pica." She complained that portions of Allen's medical records over the years had been "severely falsified." Pamela explained by way of background that she had previously—in 2015—removed Allen from VMC Pavilion because of substandard care and he had then lived with Pamela for a period of four months before he was taken to the emergency room of Good Sam in April 2016. Pamela stated her complaints about her brother's care at VMC Pavilion. She also stated that numerous facilities had declined to be candidates for Allen's placement. Pamela noted her objection to the proposed placement of Allen at Napa State Hospital. She stated that a skilled nursing facility would be the best location for Allen. And Pamela stated: "He can't just be thrown out in the street. I can't take him back home with me because I don't have the skill set to do that." The court continued the matter for a further hearing.
No expert testimony or declarations are present in the record to identify or describe pica. It is apparent from the record that it is a condition under which a person compulsively eats nonnutritive material. In T.L. v. New York City Department of Educ. (E.D.N.Y. 2013) 938 F.Supp.2d 417 (T.L.), the court describes pica in detail, stating in part: "PICA is a neurological and eating disorder, the essential feature of which is 'the eating of one or more nonnutritive substances on a persistent basis for a period of at least 1 month.' [Citation.] . . . [¶] . . . [¶] PICA is often associated with mental disabilities and pervasive developmental disorders. [Citation.] '[T]he prevalence of the disorder appears to increase with the severity of the [mental disability].' [Citation.] PICA 'has been reported to be as high as 15% in adults with Severe Mental [Disabilities].' [Citation.] . . . If PICA occurs 'exclusively during the course of another mental disorder . . . it is sufficiently severe to warrant independent clinical attention.' [Citation.]" (Id. at pp. 434-435.) In its discussion of pica, the T.L. court quoted from the authoritative source, DSM-IV (Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (1994)), which was published by the American Psychiatric Association, and " 'is recognized by the courts as a standard reference work containing a comprehensive classification and terminology of mental disorders.' [Citation.]" (People v. Mills (2010) 48 Cal.4th 158, 205, fn. 17.)
2. June 16 , 2016 Hearing
The court held a further hearing on June 16, two weeks after Pamela had filed her petition for least restrictive placement. Pamela reiterated her complaints concerning Allen's care at VMC Pavilion, including the claim that staff had overmedicated Allen to the extent that he could not walk and did not recognize Pamela She again objected to Allen's proposed placement at Napa State Hospital, stating he "would die there." Pamela expressed the view that a skilled nursing facility would be the best location for Allen.
Allen's attorney, Street, stated that the social worker at VMC Pavilion had documented in May that the facility had contacted a number of IMD facilities both inside and outside Santa Clara County to inquire about placement for Allen in a locked psychiatric facility, but no facility would accept him. Street advised that the clinical director for VMC Pavilion had conducted a study and had concluded that Allen's problem with swallowing foreign materials was not a neurological issue; Allen therefore did not qualify for placement in a skilled nursing facility. Street advised the court that the "entire team" at VMC Pavilion had agreed that a locked IMD facility, not a skilled nursing facility, was the appropriate placement for Allen. Street stated that because no facility would accept Allen and the only potential placement remaining was Napa State Hospital—to which Pamela objected, and which Street agreed ideally was not a preferred location—"we are at a stalemate." Street agreed that VMC Pavilion was not the least restrictive placement for Allen. She contended there were one or more IMD facilities that had refused to accept Allen because of perceived difficulties in dealing with his sister, Pamela. Street stated that Pamela's "behavior" in dealing with institutions was "an impediment to Allen being appropriately placed." She therefore requested that the court consider removing Pamela as conservator.
From the record, an IMD facility was described only as a locked facility. As explained in County of Colusa v. Douglas (2014) 227 Cal.App.4th 1123 (Douglas), IMDs—an IMD being an institution for mental diseases, as referenced in section 14053.1—are "hospitals, nursing facilities, and other institutions that primarily treat and care for patients with mental diseases. (42 U.S.C. § 1396d(i).) Nearly all individuals placed within IMD's are gravely disabled by mental disease and unable to provide for themselves; most IMD patients qualify for Medi-Cal." (Douglas, supra, at p. 1126.)
Toward the conclusion of the hearing, the court told Pamela that, based upon Street's argument, it appeared it had two options: either order Pamela to address the problem by arranging for Allen's placement at Napa State Hospital, or remove Pamela as conservator and appoint the public guardian, who might be able to arrange for suitable alternative placement. Pamela suggested another alternative: that she take care of her brother herself. The court continued the matter for further hearing. Prior to doing so, it granted Pamela's prior request requiring that Good Sam release copies of Allen's medical records to her.
3. July 14 , 2016 Hearing
On July 14—six days after Pamela filed her petition for reappointment as conservator—the court conducted a further hearing. Allen's attorney, Street, reiterated her position that VMC Pavilion was not the least restrictive placement for Allen, and that, because other IMDs had rejected Allen, Napa State Hospital was the only alternative placement. There was further discussion about placement in Pamela's home. Pamela stated: "Yes, I have no problem taking my brother in, but there has [sic] to be some stipulations. Okay. My brother is a handful." She later stated, "I would love to bring [Allen] home with me, but there has [sic] to be some stipulations, because I don't think he's going to get the care he wants." Pamela said that she required at least one month's preparation before she could care for Allen, including time to prepare the home to guard against Allen's pica and to plan for the move's impact on Pamela's business. Street stated she had no opposition to having Allen placed in Pamela's home. Street stated that Pamela "will be fully responsible for him" and would "stay[] as his conservator."
The court concluded that it would be appropriate to continue the hearing for one month to August 18, to allow time for Pamela to make arrangements to take Allen into her home. Street advised the court that if Allen were placed in Pamela's home, Pamela could remain as his conservator. Later in the hearing, the trial judge indicated that at the next hearing, "[W]hat I'm most likely to hear from [Pamela] is Allen is now at home with [Pamela] and [her fiancé]. And if I hear that, then I sign the reappointment order, and we're done."
4. August 11 , 2016 Hearing
At a further hearing on August 11, Pamela reported that she planned to relocate Allen to her home by August 18. Allen's attorney, Street, advised the court that she had been attempting without success to obtain information from Pamela regarding Allen's planned relocation, including the identity of Allen's new doctor and how Pamela planned to provide one-to-one care of Allen. Street explained that the doctors and staff at VMC Pavilion needed to be informed in order to assist with referrals and discharge plans. Street also stated that the proposed placement of Allen in Pamela's home involved "taking him to the lower level of care" while "the doctors have indicated that he needs a higher level of care." Pamela responded that she had made arrangements through the agency, UJIMA, and Allen's first appointment with the doctor at UJIMA was scheduled for August 30.
The court inquired of Street whether its understanding was correct that if Allen were to be released into Pamela's care, the conservatorship would then "just go[] away." Street responded that Pamela wanted the conservatorship to continue. The court asked, "The conservatorship can't continue; right?" Street responded, "Arguably it could, yes. [¶] . . . [¶] Your Honor, this is the issue: [Pamela] has asked to be reappointed as the conservator. If she chooses to withdraw her petition, the reappointment goes away." The court ordered that Pamela's letters of conservatorship be extended to August 18, thereby deferring action until the next hearing on Pamela's petition for reappointment as conservator.
5. August 18 , 2016 Hearing
At the hearing on August 18, Street advised the court that Allen had been discharged from VMC Pavilion into Pamela's care on August 16. Upon inquiry from the court, Street stated that her position was that this development had the effect of terminating the conservatorship and that Pamela's application for reappointment as conservator should be dismissed. Street argued that because Pamela "ha[d] elected to take [Allen] home, I believe that's third party assistance. I don't believe he qualifies any longer for conservatorship, so I'm asking the Court to deny the petition for reapplication as dismissal no longer gravely disabled or as a alternative plan." (Sic.)
Pamela objected to the court's denial or dismissal of her petition for reappointment, stating, among other things, that she had understood from the July 14 hearing that if she were to relocate Allen to her home, the court would "sign [her] conservatorship papers." She noted further that she thought the termination was a "set up" because there had been prior instances in which she had placed Allen under her care and in those cases, "no facility, no judge, no attorney has ever said [Allen] is off of conservatorship, he is not gravely disabled." The court stated, "The conservatorship proceeding is complete."
The court signed a formal order the next day, August 19 (Order). It concluded that as a result of Allen's having been released into Pamela's care, Allen "no longer [met] the definition of being 'gravely disabled' and the conservatorship [should] be dismissed." The court reasoned that "Allen's discharge mooted [Pamela's] Reappointment Petition. Because Pamela and her family agreed to provide food, clothing and shelter to Allen, he was no longer gravely disabled and therefore was not eligible for an LPS conservatorship." The court confirmed in the Order that it had dismissed Pamela's petitions for least restrictive placement and reappointment as conservator at the hearing on August 18, and held that "[b]ecause the existing conservatorship expired on August 18, 2016, the Court no longer has jurisdiction over Allen."
Neither the minute order nor the reporter's transcript from the August 18 hearing reflects a direct order of the court that it was dismissing Pamela's petitions.
Pamela filed a timely notice of appeal from the Order.
II. DISCUSSION
A. Involuntary Commitment Under The LPS Act
The LPS Act was enacted by the Legislature in 1967. (See Stats. 1967, ch. 1667, § 36, p. 4074.) Included among the goals of the Act are "ending the inappropriate and indefinite commitment of the mentally ill, providing prompt evaluation and treatment of persons with serious mental disorders, guaranteeing and protecting public safety, safeguarding the rights of the involuntarily committed through judicial review, and providing individualized treatment, supervision and placement services for the gravely disabled by means of a conservatorship program. (§ 5001.) The act limits involuntary commitment to successive periods of increasingly longer duration." (Conservatorship of Susan T. (1994) 8 Cal.4th 1005, 1009; see §§ 5150 [72-hour detention for evaluation and treatment], 5250 [extension of 72-hour detention upon certification for 14 days of intensive treatment], 5270.15 [extension of 14-day period of intensive treatment under § 5250 for additional 30-day period, in counties that have elected to do so], 5300 [extension of up to 180 days beyond 14-day period for imminently dangerous persons].)
"The LPS Act governs the involuntary detention, evaluation, and treatment of persons who, as a result of mental disorder, are dangerous or gravely disabled. (§ 5150 et seq.) The Act authorizes the superior court to appoint a conservator of the person for one who is determined to be gravely disabled (§ 5350 et seq.), so that he or she may receive individualized treatment, supervision, and placement (§ 5350.1). As defined by the Act, a person is 'gravely disabled' if, as a result of a mental disorder, the person 'is unable to provide for his or her basic personal needs for food, clothing, or shelter.' (§ 5008, subd. (h)(1)(A).)" (Conservatorship of John L. (2010) 48 Cal.4th 131, 142.) Upon a finding that a conservatee is gravely disabled because of an inability to provide for his or her basic personal needs, the court must determine, and the conservator must later select, the least restrictive and most appropriate facility for placement of the conservatee. (§ 5358, subds. (a)(1)(A), (c)(1).)
A person may also be found to be gravely disabled if he or she has been found mentally incompetent under Penal Code section 1370. (§ 5008, subd. (h)(1)(B).) That definition is inapplicable to Allen here.
There is a statutory exception under which a proposed conservatee who, by himself or herself, would be gravely disabled, may not fall under the LPS Act. Section 5350, subdivision (e)(1) (§ 5350(e)(1)) provides: "[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, or shelter." Under this exception, the person is not gravely disabled "if he or she is capable of surviving safely in freedom with the help of willing and responsible family members, friends or third parties." (Conservatorship of Davis (1981) 124 Cal.App.3d 313, 321.) In applying this statute, the court must consider not only whether a third party is willing to care for the proposed conservatee, but also whether the proposed conservatee is able to survive safely in the care of a third party. (Id. at pp. 325-326; see Conservatorship of Johnson (1991) 235 Cal.App.3d 693, 699 [where proposed conservatee's mother was willing to provide care but evidence revealed she might not survive safely in her mother's care, LPS conservatorship proper].) In order for this statutory exception to apply, the party or parties offering help must "specifically indicate in writing [his, her, or] their willingness and ability to help." (§ 5350, subd. (e)(2); § 5350(e)(2).) This requirement of a writing may be satisfied when the prospective caregiver gives testimony to the effect that he or she is willing and able to help. (Conservatorship of Johnson, supra, at p. 699, fn. 5.)
Under the LPS Act, a conservator of a gravely disabled person may be appointed for up to one year (§ 5350). He or she may petition to reestablish the conservatorship for additional one-year periods before the expiration of each one-year term. (§§ 5361, 5362.) "Because an involuntary civil commitment constitutes a deprivation of liberty and places a stigma upon the conservatee's reputation, due process under the California Constitution requires that a finding of grave disability in an LPS jury trial must be unanimous and based upon proof beyond a reasonable doubt. [Citations.]" (Sorenson v. Superior Court (2013) 219 Cal.App.4th 409, 424; see also Conservatorship of Amanda B. (2009) 173 Cal.App.4th 1380, 1385.)
A conservatee has a statutory right to a rehearing on the adjudication that he or she is gravely disabled. (§ 5364.) After the filing of the first such rehearing petition, the conservatee may not file another petition for rehearing for a period of six months. (Ibid.) At the rehearing, the conservatee bears the burden of proving by a preponderance of the evidence that he or she is no longer gravely disabled. (Conservatorship of John L., supra, 48 Cal.4th at p. 152.)
B. Standard of Review
As noted above, in a proceeding to appoint or reappoint a conservator, the state bears the burden of proving beyond a reasonable doubt that the conservatee is gravely disabled. (Conservatorship of Amanda B., supra, 173 Cal.App.4th at p. 1385.) When, however, the conservatee petitions for a rehearing to modify the terms of or to end a conservatorship, then he or she bears the burden to prove by preponderance of evidence he or she is no longer gravely disabled. (Conservatorship of John L., supra, 48 Cal.4th at p. 152; see also 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 Johnson, supra, 235 Cal.App.3d at p. 697; Conservatorship of Walker (1989) 206 Cal.App.3d 1572, 1577.)
We apply familiar principles in reviewing a trial court order for substantial evidence. "We review the record as a whole in the light most favorable to the trial court judgment to determine whether it discloses substantial evidence. Substantial evidence, which is evidence that is reasonable, credible, and of solid value, also includes circumstantial evidence. [Citation.]" (Conservatorship of Carol K. (2010) 188 Cal.App.4th 123, 134.) In determining whether the judgment is supported by substantial evidence, we defer to the trial court concerning its role of "judg[ing] the credibility of witnesses and . . . resolv[ing] conflicts in the testimony." (In re Carpenter (1995) 9 Cal.4th 634, 646.) The testimony of a single witness, if credited by the trier of fact, constitutes substantial evidence. (Conservatorship of Johnson, supra, 235 Cal.App.3d at p. 697.)
C. The Order Was Not Supported By Substantial Evidence
Pamela challenges the Order. She contends that the trial court erred by "conduct[ing] no investigation and . . . [no] evidentiary hearing as to whether [Pamela] could continue to serve as conservator for [Allen]." She argues further that the court's finding that once Allen was transferred to Pamela's care, "with third party assistance, [Allen] . . . no longer [met] the definition of being 'gravely disabled' [thereby warranting] dismissing the conservatorship."
Pamela makes a number of additional arguments concerning alleged error by the trial court. One concerns her claim that the court erred in purportedly finding that Napa State Hospital was the least restrictive placement for Allen. She contends that the record "does not show any evidence, written or otherwise, showing that Napa State Hospital was the least restrictive placement." We agree that there was only the argument of Allen's counsel, and not evidence, suggesting that Napa State Hospital represented the least restrictive placement for Allen. But we do not read the August 19, 2016 Order from which this appeal was taken as including a finding by the court that Napa State Hospital was, in fact, the least restrictive placement. Similarly, Pamela argues on appeal that the court erred by purportedly refusing to select her as conservator, notwithstanding her long history of service in that capacity. The record does not reflect that the court specifically rejected Pamela as a proposed conservator for Allen. Rather, it shows that the court determined that Allen's discharge from VMC Pavilion and his placement in Pamela's care mooted the petitions for reappointment and for least restrictive placement, and that Allen was no longer gravely disabled and was thus ineligible for an LPS conservatorship. As we discuss, post, the court erred in reaching these conclusions.
In his respondent's brief, Allen, through counsel, agrees with Pamela that the trial court erred. Allen contends that the court's finding that Allen was not gravely disabled was made "without having sufficient evidence that [Pamela] was willing and able to provide assistance to [Allen] . . . necessary to keep him safe." Allen argues that the court had almost no admissible evidence before it to make this determination.
Appointed counsel representing Allen in this appeal is not the same as appointed counsel who represented him in the proceedings below.
We conclude that the record does not support the trial court's conclusion that Allen was not gravely disabled because, under section 5350(e)(1), he was "capable of surviving safely in freedom with the help of willing and responsible family members, friends or third parties." (Conservatorship of Davis, supra, 124 Cal.App.3d at p. 321.) For the three reasons we discuss below, the court erred in finding that the exception for third-party assistance under section 5350(e)(1) applied.
We have been made aware of subsequent developments relevant to Allen's conservatorship. In a motion for preference filed on February 9, 2018—which was granted by this court on February 22, 2018—Pamela noted that Allen "was admitted into an IMD facility under conservatorship on January 11, 2018." She alleged that Allen "ha[d] been conserved by the Public Guardian[] . . . since [she] filed [her] appeal." We have since been advised by Pamela that the superior court appointed the public guardian conservator of the person and estate of Allen by order filed April 16, 2018.
We acknowledge that the reinstitution of an LPS conservatorship raises a question of mootness in this appeal. (See City of Hollister v. Monterey Ins. Co. (2008) 165 Cal.App.4th 455, 479 [appellate court "may examine a suggestion of mootness on its own motion"].) But "[b]ecause a conservatorship is relatively brief (one year) in comparison with the appellate process," appellate courts may elect to address an issue that "is one capable of recurring, yet of evading review because of mootness." (Conservatorship of Susan T., supra, 8 Cal.4th at p. 1011, fn. 5.) Indeed, because of the brief duration of LPS conservatorships, it is not uncommon for appellate courts to exercise their discretion to decide a case notwithstanding the fact that subsequent procedural events may have rendered the case moot. (See In re Conservatorship of George H. (2008) 169 Cal.App.4th 157, 161, fn. 2.) Here, we will exercise our discretion to decide the validity of the August 2016 Order terminating the conservatorship despite being advised that an LPS conservatorship was reinstituted on Allen's behalf in 2018.
1. No Withdrawal or Mooting of Reappointment Petition
The LPS Act vests with the conservator the power to petition the superior court for reappointment at the end of the one-year period (or renewal period) of the conservatorship if he or she determines the conservatee remains gravely disabled. (§§ 5361, 5362.) It is therefore within the power of the appointed conservator, before trial, to withdraw a petition for reappointment when investigation shows the conservatee is no longer gravely disabled. (Conservatorship of Martha P. (2004) 117 Cal.App.4th 857, 868.) At no time did Pamela withdraw her petition for reappointment.
Notwithstanding the fact that Pamela's petition for reappointment remained pending at the August 18 hearing, the language of the court's Order suggests that the court did not act on the merits of that petition. The court held that "Allen's discharge mooted [Pamela's] Reappointment Petition." It stated further that, at the hearing, it had "dismissed" the reappointment petition (as well as the least restrictive placement petition) as a consequence of Allen's having been released into Pamela's care. Pamela and Allen were entitled to a decision on the merits of Pamela's petition for reappointment, based upon the court's consideration of available evidence on the question of whether Allen remained gravely disabled. To the extent the trial court held that Allen's placement into Pamela's care rendered the petition moot or subject to dismissal without consideration of its merits, the trial court erred.
The court's comments at the August 11 and August 18 hearings likewise suggest a misapprehension concerning the effect of Allen's placement in Pamela's care upon the petition for reappointment. At the August 11 hearing, the court expressed the belief that if the placement occurred, the conservatorship then "just goes away." And at the August 18 hearing, the court stated that Allen's discharge from VMC Pavilion and placement into Pamela's care had the procedural "effect of terminating the conservatorship." The court later advised Pamela at the August 18 hearing that because Allen was living at Pamela's home under her supervision, "at that point there isn't a ground for conservatorship." --------
Assuming the trial court did not hold that Allen's placement with Pamela had the effect of mooting her reappointment petition and that the court in fact considered the merits of that petition and found Allen, pursuant to section 5350(e)(2) was not gravely disabled, the court nonetheless erred as discussed below.
2. No Third-Party Writing
There is no evidence that Pamela fulfilled the requirement of section 5350(e)(2) that she "specifically indicate in writing [her] willingness and ability to help." While this writing requirement may be satisfied when the prospective caregiver of the proposed conservatee gives testimony to the effect that he or she is willing and able to help (Conservatorship of Johnson, supra, 235 Cal.App.3d at p. 699, fn. 5), Pamela gave no sworn testimony. Further, even were it proper for the court to have considered Pamela's unsworn statements made at the various hearings, it does not appear that she expressed both a willingness and an ability to help by caring for Allen. Through the evolution of five hearings, Pamela stated she was willing to care for Allen. But the record shows that she did so because she was constrained to take him into her home because she saw no viable alternatives. She forcefully and repeatedly stated that the care Allen was receiving at VMC Pavilion was very poor. And Pamela repeatedly told the court that, in her view, Allen's prospective placement in Napa State Hospital would be disastrous, stating at the second hearing that he "would die there." Because she believed it necessary to move Allen from VMC Pavilion and she opposed his placement in Napa State Hospital, Pamela expressed the view at the third hearing that she was being forced to take Allen into her home: "I have been stopped—they have put a foot on me about doing things. I have to take my mentally ill brother and deal with him by myself."
Moreover, the record does not support a finding that Pamela expressed that she had the ability to care for Allen. She stated on multiple occasions that Allen needed to be placed in a locked facility (which her home was not). She specifically told the court at the first hearing that she could not safely care for Allen: "I can't take him back home with me because I don't have the skill set to do that." And at the third hearing, Pamela advised the court, "Yes, I have no problem taking my brother in, but there has [sic] to be some stipulations. Okay. My brother is a handful."
We conclude therefore that it was improper for the trial court to have found Allen not gravely disabled because of the third-party assistance provision of section 5350(e)(1). Because there was no specific indication by Pamela in writing (or its equivalent through testimony in court) of her "willingness and ability to help," there was no compliance with section 5350(e)(2).
3. No Evidence Allen Could Safely Survive With Third-Party Care
Putting aside the absence of a written statement in the record as required by section 5350(e)(2), there was a lack of evidence in the record demonstrating that Allen could "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, or shelter." (§ 5350(e)(1).) There was no testimony to that effect. The medical information in the record—consisting of psychiatrists' declarations of March 2013, July 2014, July 2015, and July 2016—demonstrate a uniform opinion that Allen was gravely disabled. The psychiatrists' declarations offer no opinions regarding Allen's ability to survive safely in the prospective care of his sister. Moreover, the court did not have before it a current conservatorship report filed pursuant to section 5354 that may have provided some insight regarding the third-party assistance question; the most recent conservatorship report was three years old.
Further, the unsworn information before the court—including the statements of Allen's counsel and Pamela, and the discharge papers from VMC Pavilion—support the conclusion that Allen could not "survive safely without involuntary detention" (§ 5350(e)(1)) with third-party assistance from Pamela. Historically, it had been only four months since Allen, then living with Pamela, had been admitted to the Good Sam emergency room as a result of his having swallowed two AAA batteries, staples, a penny, and an earring. No testimony or other evidence was provided to the court on August 18 concerning what measures had been taken by Pamela to ensure that Allen would not again swallow foreign objects under her care. And no testimony or other evidence was presented with specifics regarding the prospective care Pamela would be providing Allen. Pamela herself as late as May 26 told the court that she couldn't take Allen "back home with [her] because [she didn't] have the skill set" to take care of him.
In addition, attorney Street advised the court that Pamela's taking Allen into her home involved "taking him to the lower level of care" than his doctors had indicated was needed. Moreover, VMC Pavilion, advised Pamela that its release of Allen into her care on August 16 was contrary to the advice of Allen's attending physician.
The suggestion of attorney Street below notwithstanding, the mere fact that Allen had, in fact, been discharged from institutional care and was living with Pamela did not compel termination of the LPS conservatorship. The LPS Act contemplates that a gravely disabled conservatee may nonetheless be placed in the care of a relative. Subdivision (c)(1) of section 5358 provides in part: "For a conservatee who is gravely disabled . . . if the conservatee is not to be placed in his or her own home or the home of a relative, first priority shall be to placement in a suitable facility as close as possible to his or her home or the home of a relative." That subdivision concludes: "The fact that a person for whom conservatorship is recommended is not an inpatient shall not be construed by the court as an indication that the person does not meet the criteria of grave disability." (Ibid.)
There was thus no substantial evidence upon which the court could have concluded that Allen was "capable of surviving safely in freedom with the help of willing and responsible family members, friends or third parties." (Conservatorship of Davis, supra, 124 Cal.App.3d at p. 321.) It was therefore error for the court to conclude that Allen, pursuant to section 5350(e)(1), was not gravely disabled. (Cf. Conservatorship of Johnson, supra, 235 Cal.App.3d at pp. 698-699 [trial court properly held that conservatee was gravely disabled, notwithstanding testimony of conservatee's mother that she was willing to care for daughter; evidence showed that proposed assistance "fell short of that required under" § 5350(e)(1)].)
III. DISPOSITION
The August 19, 2016 order (1) dismissing P.L.'s petition for least restrictive placement, (2) dismissing P.L.'s petition for reappointment as conservator, and (3) terminating the conservatorship, is reversed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.