Opinion
H039899 H040550 H040971
05-23-2018
Conservatorship of the Person of N.W. ALISTAIR LOPEZ, Petitioner and Respondent, v. GEORGE WILLIAMS, Objector and Appellant. ALISTAIR LOPEZ, Plaintiff and Respondent, v. GEORGE MARK WILLIAMS, Defendant and Appellant. MAURICE ROBERSON, Plaintiff and Respondent, v. GEORGE M. WILLIAMS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 1-12-PR-171052) (Santa Clara County Super. Ct. No. 1-12-DV-016133) (Santa Clara County Super. Ct. No. 1-12-CH-004419)
George Williams challenges an order appointing his adult daughter's mother and grandmother as her conservators (Conservatorship of N.W., case No. H039899). He separately appeals a domestic violence restraining order against him obtained by his daughter's mother (Lopez v. Williams, case No. H04550), and a civil harassment restraining order against him obtained by Maurice Roberson (Roberson v. Williams, case No. H040971). We ordered the appeals considered together and will affirm the decisions in the conservatorship and domestic violence restraining order cases. We will dismiss the appeal of the civil harassment restraining order as moot.
I. BACKGROUND
George Williams is the father of an adult daughter, N.W., who is autistic and epileptic. N.W. lives with her grandmother and her mother, Alistair Lopez. N.W. has minimal language skills and needs help with daily living activities like dressing, preparing food, and bathing. She requires constant care and supervision to keep her safe. Williams visited N.W. often, though not according to any set schedule; he dropped by when she was at home or arranged for her mother to bring her to a restaurant to meet.
In August 2012, Maurice Roberson petitioned for a civil harassment restraining order against Williams. Roberson works at the apartment complex where N.W. lives, and is a friend of N.W.'s mother (Williams believes they are romantically involved). Roberson alleged that after a verbal altercation at the apartment complex, Williams threatened him by making a hand gesture mimicking a gun. Williams filed a response to the petition, calling Roberson's claims "without merit" and "r[i]diculous lies." He also filed his own petition for a restraining order against Roberson, alleging that Roberson harassed and threatened him at a health club. After a hearing, the trial court granted both parties' petitions, ordering each to stay 100 yards away from the other. The restraining orders expired after three years, on February 18, 2017.
In October 2012, Alistair Lopez petitioned the probate court for an order appointing her and N.W.'s grandmother as conservators of N.W.'s person. Several months later, Williams filed his own petition seeking appointment as conservator. Williams agreed that N.W.'s disabilities left her unable to care for herself, but asked that he be appointed conservator instead of the mother and grandmother. He objected to any restrictions on his visitation of N.W. and any supervision during his visits. The court granted the petition of N.W.'s mother and grandmother, appointing them limited conservators of her person. Among the powers the court granted to the conservators were the powers to fix N.W.'s residence, to make decisions about her education, and to manage her contact with Williams. The order specifically reserved to the conservators the power to decide whether visitation with Williams would be supervised or unsupervised. The court later modified that order to require that Williams be allowed two-hour visits with N.W. twice a week, supervised by Lopez's brother and Williams' brother.
In November 2013, during the pendency of the conservatorship proceedings, Lopez requested a domestic violence restraining order against Williams. She alleged that Williams was coming to her home and work without notice and being verbally abusive. The court issued a restraining order for five years, prohibiting Williams from contacting her. The order provides, however, that "[i]t is not a violation of this order for restrained party to contact protected party regarding their adult child, [N.W.] ... for visitation, mediation or similar court-ordered contact."
II. DISCUSSION
Williams, who is representing himself on appeal, contends that neither of the restraining orders against him should have issued, and that the probate court should not have appointed N.W.'s mother and grandmother as her conservators. But it is apparent from his briefing that his most pressing concern is the power granted to the conservators to control N.W.'s contact with him and to decide when and how he can visit her. As we will discuss, Williams has not shown error in the decision to appoint a conservator for N.W, nor in the decision to issue a domestic violence restraining order. The civil harassment restraining order has long since expired, rendering moot any claims of error associated with it.
A. CONSERVATORSHIP OF N.W.
Under the Probate Code, a conservator may be appointed for a developmentally disabled adult if necessary to protect that person's wellbeing. (Prob. Code, § 1801, subd. (d).) "Developmental disability" includes the conditions of autism and epilepsy. (Prob. Code, § 1420.) The conservatee is not presumed incompetent and retains all legal and civil rights, except for the rights specifically granted by the court to the conservator. (Prob. Code, § 1801, subd. (d).)
We review an order appointing a limited conservator for substantial evidence; that is, we determine whether there is any legally significant evidence in the record to support the judgment. (Conservatorship of Ramirez (2001) 90 Cal.App.4th 390, 401.) It is undisputed that N.W. is unable to provide for her own needs due to autism and epilepsy—Williams himself stated that to be true in his petition to be appointed conservator. The appointment of a conservator under Probate Code section 1801, subdivision (d) is therefore supported by substantial evidence.
What Williams appears to contest more vigorously is the appointment of N.W.'s mother and grandmother as her conservators, and the order granting them the power to control his visitation. The selection of the conservator and the extent of that person's control over the conservatee's affairs are matters left to the discretion of the trial court. (See Prob. Code, § 1812, subd. (a) [selection of a conservator "is solely in the discretion of the court and, in making the selection, the court is to be guided by what appears to be for the best interests of the proposed conservatee"]; see also Prob. Code, §§ 1801, subd. (d) [conservatee retains all rights except those which the court specifically grants to the limited conservator] and 1828.5, subd. (e) ["The court shall define the powers and duties of the limited conservator so as to permit the developmentally disabled adult to care for himself or herself or to manage his or her financial resources commensurate with his or her ability to do so."].) We accordingly review for abuse of discretion decisions regarding the identity of the conservator and the scope of the conservator's powers. An abuse of discretion occurs only where the decision is outside of what is allowed by the governing law or where there is no reasonable basis for the court's action. (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773.)
We find no abuse of discretion in the order selecting N.W.'s mother and grandmother as her conservators. Indeed, given that N.W. lived with them and they were already acting as her caregivers, that seems a logical choice. Regarding the order granting them the power to control when and how Williams visits N.W., we are likewise satisfied it does not constitute an abuse of discretion. The Probate Code confers on the trial court the discretion to define the powers and duties of the conservators commensurate with the conservatee's ability to care for herself. (Prob. Code, § 1828.5, subd. (e).) The parties agree that N.W.'s ability to care for herself is extremely limited, which supports a correspondingly broad grant of powers to her conservators. And while we would not hesitate to find an abuse of discretion if the trial court arbitrarily disrupted the relationship between N.W. and her father, nothing indicates that is what occurred here. On this record, granting the conservators control over Williams' visits was a reasonable decision to promote N.W.'s best interests: there was evidence that because of N.W.'s autism it is important that she follow a strict routine, which would be interrupted by unannounced visits. Providing for visits to be supervised was a rational choice given evidence that Williams had on one occasion driven away with N.W. without informing anyone where they were going or when they would return. And the court ensured that Williams would be allowed to visit at least twice per week by later order modifying the conservators' power to control visitation. The probate court also retains jurisdiction to monitor the situation and make further appropriate orders should the circumstances warrant. (See Prob. Code, § 1850 [providing for periodic court review of conservatorship].) We trust that the court will continue to exercise its discretion in a manner that protects N.W.'s best interest without unduly restricting Williams' contact with her.
Williams argues that allowing the conservators to control his visitation of N.W. is an unconstitutional interference with his parental rights, citing several juvenile dependency cases to support his argument. But N.W. is an adult, and the proceedings at issue occurred in the probate court, under Probate Code provisions allowing conservators to be appointed for developmentally disabled adults. Juvenile dependency proceedings, which pertain to the care and custody of children who are at risk (Welf. & Inst. Code, § 300), are different. The law governing parental rights in dependency cases does not apply here.
Williams also contends that he was improperly denied an evidentiary hearing. Probate Code section 1827 requires that "[t]he court shall hear and determine the matter of the establishment of the conservatorship according to the law and procedure relating to the trial of civil actions, including trial by jury if demanded by the proposed conservatee." Williams was not the proposed conservatee, so he had no right to a jury trial, and he did not demand one in any event. It is true that the probate court reached its decision based on the declarations and other documentary evidence on file without taking testimony from live witnesses. But Williams' counsel at the time did not object to that procedure, nor did he request an evidentiary hearing or ask to call witnesses. And Williams personally addressed the court suggesting his preference was not to have an evidentiary hearing, saying, "I don't want to go through hearings and all this. If we can mediate and come to some understanding[,] that's why I am here." Therefore, under the doctrines of forfeiture and invited error, Williams cannot now challenge the trial court's failure to conduct an evidentiary hearing. (San Mateo Union High School Dist. v. County of San Mateo (2013) 213 Cal.App.4th 418, 436 [a reviewing court will not consider a challenge to a ruling if no objection was made in the trial court; and where a party's own conduct induces the error it cannot be challenged on appeal].) We further note that Williams has not articulated what witnesses he would have called or what evidence he would have presented that might have led to a different outcome, so we would find no prejudice from the lack of an evidentiary hearing even on the merits of the issue.
B. DOMESTIC VIOLENCE RESTRAINING ORDER
A restraining order may be issued under the Domestic Violence Prevention Act (Fam. Code, § 6200, et seq.) to protect a victim of domestic violence and separate the parties to prevent a recurrence of abuse. (Rodriguez v. Menjivar (2015) 243 Cal.App.4th 816, 820.) Acts that destroy the mental or emotional calm of the protected party will support the issuance of a domestic violence restraining order. (Ibid.) We review the decision to issue such an order for abuse of discretion. (Ibid.)
The only specific claim of error Williams makes regarding the domestic violence restraining order is that Lopez pursued it for an improper purpose: to gain an advantage in the conservatorship proceedings. But so long as there is evidence to support the order, it was not error for the trial court to issue it, regardless of Lopez's motivations. Lopez submitted evidence that Williams had previously physically abused her and that he was verbally harassing her and causing her emotional distress, facts which provide a reasonable basis for a restraining order. Further, the order contained an exception for visitation of N.W., mitigating any disadvantage to Williams in the conservatorship case.
To the extent that Williams' argument can be construed as a contention of evidentiary error in the conservatorship proceedings (that is, that the probate court should not have considered evidence relating to the domestic violence restraining order), any such claim was forfeited because Williams never objected to the admission of the evidence. The contention would fail on its merits regardless, because the existence of the restraining order and the underlying facts leading to its issuance were appropriate matters for the probate court to consider in assessing how to structure the conservatorship to best protect N.W.'s interests.
C. CIVIL HARASSMENT RESTRAINING ORDER
Williams advances numerous claims of error relating to the civil harassment restraining order protecting Marcus Roberson: that it too was pursued for an improper purpose, that the trial court lacked subject matter jurisdiction and committed evidentiary error, and that racial stereotyping prevented him from receiving a fair trial. We need not decide any of those issues, however, because the restraining order has expired by its terms. As it does not appear from the record that the order has been renewed, Williams' appeal from it is moot. (Harris v. Stampolis (2016) 248 Cal.App.4th 484, 495 [appeal of expired restraining order is moot unless the order has been renewed].)
III. DISPOSITION
The order granting letters of conservatorship (case No. H039899) is affirmed. The domestic violence restraining order (case No. H040550) is affirmed. The appeal of the civil harassment restraining order (case No. H040971) is moot and is therefore dismissed. The parties shall bear their own costs on appeal.
/s/_________
Grover, J.
WE CONCUR:
/s/_________
Premo, Acting P. J. /s/_________
Elia, J.