Opinion
A118216
4-25-2008
Conservatorship of the Person and Estate of GLADYS MCDANIEL. GLADYS MCDANIEL, Petitioner and Respondent, v. KENNETH GREER, Objector and Appellant.
NOT TO BE PUBLISHED
I. INTRODUCTION
Appellant, the former conservator of the Estate of Gladys McDaniel (Estate), appeals from an order of the San Francisco Probate Court granting a petition filed by the attorney for the Estate removing him as its conservator. Finding no abuse of discretion by that court, we affirm the order.
II. FACTUAL AND PROCEDURAL BACKGROUND
The conservatee, Gladys McDaniel, is 97 years old. On August 19, 2005, the court appointed one Benjamin James, Jr., a San Francisco attorney as her attorney. On September 15, 2005, the court appointed a neighborhood friend, Jane Harvey, as conservator of the person of McDaniel and appellant Greer, McDaniels brother, as conservator of her Estate. At that point in time, another San Francisco attorney, Shaun Carberry, was acting as attorney for both conservator Harvey and appellant. The courts appointments were based on a finding that McDaniel was suffering from dementia as defined by Probate Code section 2356.5.
We shall refer many times hereafter to "the court" or "the probate court." Two judges heard the various motions and petitions, Judge John Dearman and Commissioner Dorothy McMath. The latter heard and ruled upon the petition at issue in this appeal.
All further statutory references are to the Probate Code, unless otherwise noted.
After the appointments, appellant apparently moved from his home in Arkansas to San Francisco and, specifically, into his sisters home on 10th Avenue in San Franciscos Sunset District. After he moved there, apparently sometime in late 2005, McDaniel returned to her home from an elder-care facility where she had previously resided.
Starting in May 2006, a major controversy arose over attorney Carberrys representation of appellant in the latters capacity as conservator of the Estate. More specifically, on May 12, 2006, a petition was filed by appellants current attorney, Bertram Izant, seeking Carberrys removal and detailing disagreements between appellant and Carberry. After the filing of Carberrys response, the probate court granted this petition. Carberry, still attorney for Harvey, the conservator of the person of McDaniel, then filed a petition to disqualify appellants then-and-current counsel as attorney for the conservator of the estate. Appellant and his counsel naturally opposed this motion which, on September 28, 2006, the court denied.
In the meantime, specifically on August 14, 2006, conservator Harvey, via attorney Carberry, filed a petition for instructions with the probate court. For some reason, this document is not included in the record. A hearing on this petition was continued several times, but apparently held on October 4, 2006. Again, no transcript of this hearing is included in the record before us. In any event, after that hearing the probate court issued an "Order of Instructions" dated November 1 and filed November 7, 2006. It ordered that Harvey, as conservator of the person of McDaniel, "should have the exclusive authority, supervision and responsibility of attendant care of the Conservatee, including hiring and/or firing" until a further hearing could be held on December 15, 2006.
Attorney James apparently passed away in late 2006. On December 12, 2006, the court appointed attorney Nancy Rasch as the new attorney for McDaniel.
The record is, again, unclear as to whether any hearing was held on December 15, 2006, but, in any event, on that date, Carberry and appellant stipulated that the November 7, 2006, order "shall be the permanent order of the court."
On April 23, 2007, Rasch filed a petition to remove Greer as conservator of the Estate, citing numerous examples of conflicts regarding the conservatorship, prior hearings in the matter, court investigator reports, and the like. Greer, through attorney Izant, filed an extensive opposition to the motion. The court held a hearing on the petition on June 7, 2007. At the conclusion of the hearing, it granted the petition and appointed Debra Dolch, a private professional fiduciary, as the new conservator of both the Estate and the person of McDaniel. It deferred any ruling on the request in the petition that appellant vacate his sisters home.
As, apparently, suggested by the new attorney for McDaniel, the conservator of the person of McDaniel, Harvey, tendered her resignation as such just before the June 7, 2007, hearing, contingent upon the courts appointment of a successor to her.
Greer filed a timely notice of appeal.
III. DISCUSSION
The order at issue here is specifically made appealable by section 1301, subdivision (a).
The parties agree, correctly, that our standard of review of an order such as this is abuse of discretion. (See, e.g., Estate of Beard (1999) 71 Cal.App.4th 753, 780; Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1448-1449; Guardianship of Davis (1967) 253 Cal.App.2d 754, 761.)
Respondent argues, however, that we do not even need to reach the issue of whether there was an abuse of discretion here because we can and should affirm based on the inadequacy of the record supplied to us by appellant. As we have already noted (and will note further below), there are indeed significant omissions in that record. The general rule is that "appealed judgments and orders are "presumed correct . . .; and appellant has the burden of overcoming this presumption by affirmatively showing error on an adequate record." (1 Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2007) ¶ 4:2.) However, we opt not to affirm on this basis because (1) the record provided us does permit our resolution of the matter on the merits, (2) respondent could have and should have timely augmented that record, and (3) our review of the record provided us suggests that many of the omissions from it could well have been deliberate and, a fortiori, the material omitted very possibly supportive of the probate courts order.
Pursuant to California Rules of Court rules 8.122(a)(2) and 8.130(a)(3) and rule 7(b) of the Local Rules of this District, respondent could have corrected the many omissions in the record by moving to augment it. Which it did—albeit belatedly—on November 20, 2007, resulting in our order of December 5, 2007, denying that motion.
The governing statute here is section 2650, which provides in pertinent part: "A guardian or conservator may be removed for any of the following causes: [¶] (a) Failure to use ordinary care and diligence in the management of the estate. . . . [¶] (c) Continued failure to perform duties or incapacity to perform duties suitably. . . . [¶] (f) Having such an interest adverse to the faithful performance of duties that there is an unreasonable risk that the guardian or conservator will fail faithfully to perform duties. . . . [¶] (i) In any other case in which the court in its discretion determines that removal is in the best interests of the ward or conservatee . . . ."
Appellant asserts that the probate court removed appellant as conservator of the Estate pursuant to subdivision (i) of this section. This is incorrect; neither in its verbal order on June 7, 2007, or in its written order, did the court cite any specific subdivision it was relying upon.
In its verbal ruling from the bench on June 7, 2007, the court explained, in response to argument from appellants counsel, the basis for its ruling: "The basis for this decision is the entire court record which the court has every ability to examine from all of the reports, all of the hearings, all of the minute orders, numerous, numerous reports of conflict in this operation of this conservatorship." This particular statement by the court was the third time it had summarized the basis for its decision, but appellants counsel continued to argue there were no "[f]acts . . . here in the record" upon which such an order could be based. The court responded: "I would refer you to the minute order of October 4 of 2006, the minute order of December 15, 2006, the signed order that was filed on November 7 of 2006, the original court investigators report. The file itself is replete with examples of discord, and discord is not in the conservatees best interest."
This order is yet another document not included in the record on appeal.
Appellant argues, at considerable length in his briefs to us, that the evidence cited by the probate court is insufficient upon which to base an order removing him as conservator of the Estate. We disagree, and in so doing itemize the evidence in the record which the probate court could have, and apparently from its remarks at the hearing did, rely upon:
In so doing, we frankly acknowledge that there could have been and should have been far more such evidence, i.e., the material not designated by appellant for the Clerks Transcript, and belatedly and unsuccessfully sought to be added as such by respondent.
1. The first evidence of discord between the two different conservators—or perhaps more accurately between their attorneys—apparently started around March 2006. As noted above, originally attorney Shaun Carberry represented both conservators. As attorney for the conservator of the Estate, i.e., appellant, he requested an increase in the bond to be posted by appellant. This started a firestorm of a court fight between Carberry and, on the other side, appellant, represented by his new attorney Izant. One of the people who apparently recommended to appellant that he terminate Carberry and hire a new attorney was appellants nephew, Norris Greer, a Kansas City, Missouri, attorney. The result of this intense disagreement, which extended into May and June 2006, was eventually a court order replacing Carberry with Izant as attorney for appellant.
According to the record before us, this discord apparently had an impact on the conservatee, McDaniel. Per a declaration signed and filed by Carberry opposing his replacement as attorney for appellant, McDaniel had a personal aversion to both Izant and Norris Greer. (She had, according to that declaration, known Izant in 1998 and 1999 when he represented her in a "Civil Harassment action" in San Francisco Superior Court.) According to Carberrys declaration, McDaniel told him "she wanted nothing to do ever with her former Attorney, Mr. Izant."
2. The discord between appellant and Izant on the one hand and Carberry and his remaining client, conservator of the person Harvey, continued into the months of August and September 2006. In those months the fight continued between, especially, the two lawyers over "whos in charge around here," specifically via an (ultimately unsuccessful) motion by Carberry to disqualify Izant from representing appellant.
According to an August 18, 2006, declaration submitted to the court by the-then attorney for McDaniel, and now-deceased attorney James: "`It is not clear whether the dispute between the conservators is a spillover of the dispute between the attorneys, or vice versa. One thing, however, is certain, and that is the disputes, particularly that between the conservators, adversely affects the interests of the conservatee."
This declaration is not included in the record provided us by appellant; it is, however, quoted in part in the declaration of the new attorney for McDaniel, Rasch, appointed by the court on December 12, 2006.
3. According to a letter Izant himself filed in the course of opposing the motion to remove appellant as conservator of the Estate, a few months after this the two conservators got into a very pointed and specific dispute, this one directly involving appellants presence in McDaniels home. According to Izants letter: "In an October 19, 2006, telephone conversation, Mrs. Harvey requested that Mr. Greer leave Mrs. McDaniels residence and stated that she would include her request in the status report that I see she now has filed." After then requesting a copy of that report, the letter continues: "Please be advised that if Mrs. Harvey, Mr. Carberry, and/or you take any action to require Mr. Greer to cease residing with his sister, we will resist any such action. We would regard any such action to be frivolous and brought in bad faith."
4. Perhaps the single most significant piece of evidence in the record showing how the probate court viewed the continuing discord is its "Order of Instructions" of November 7, 2006, quoted above. As noted, the record does not include the August 14, 2006, "Petition for Instructions" filed by Carberry, but the impact of that document clearly was substantial: when the hearing on it was finally held, the probate court ordered that Harvey would, until further order of the court, have "exclusive authority, supervision and responsibility of attendant care of the Conservatee . . . ."
And, as also noted above, this order was, apparently pursuant to stipulation, made permanent on December 15, 2006.
5. In the interim, i.e., on December 12, 2006, the court appointed attorney Rasch "as attorney to represent the above named Conservatee until further order of this court."
6. After her appointment, Rasch met with both conservators and, at least initially, believed "they had at least arrived at a working relationship." This premise was, apparently, substantially undermined by her later determination that appellant and his attorney, Izant, had not paid the invoices of Elizabeth Adler, a fiduciary who served as a "case manager" for McDaniel. Izant apparently was of the view that Adlers services were "unnecessary" but, per Raschs declaration to the court, "Mr. Greer himself stated that he had no problem with her involvement, would allow her to visit the conservatee, and would pay her invoices." (Emphasis added.)
But this did not happen. That declaration continues: "Unfortunately, despite Mr. Greers assurances, the invoices have remained unpaid. Furthermore Ms. Adlers attempts to visit have continued to provoke opposition from Mr. Greer and Mr. Izant. Recently Ms. Adler arranged a home visit to the conservatee through Jane Harvey and the care attendant. As a courtesy, she also notified Mr. Greer when she would be coming. That simple courtesy apparently prompted Mr. Greer to notify his attorney, who in turn felt it necessary to write to Ms. Adler stating that all visits should be arranged through the conservator of the person and reiterating that Mr. Greer would not pay the invoices for services rendered. Mr. Izant further stated that he did not believe `there is any legal basis for Mrs. McDaniel to pay for any visits by you."
7. Rasch also learned, per her declaration to the court, that, on February 28, 2007, McDaniel called the police to her residence "apparently in response to Mr. Greer moving in a cabinet without her permission, moving her things to make way for the cabinet, and about his not paying rent. When the police arrived she made it clear that she wished her brother to leave her home and when pressed by the officers, Mr. Greer indicated that he would leave within one month."
The above is, patently, more than sufficient evidence of the discord caused by the appointment of appellant (and, indeed, his later retention of Izant) as conservator of the Estate and the impact of that discord on McDaniel. There clearly was no abuse of discretion by the trial court in granting the petition to remove appellant as conservator of the Estate.
IV. DISPOSITION
The order appealed from is affirmed.
We concur:
Kline, P.J.
Lambden, J.