Opinion
A170238
11-26-2024
Conservatorship of the Person of E.K. v. E.K., Objector and Appellant. PUBLIC GUARDIAN OF SONOMA COUNTY, Petitioner and Respondent,
NOT TO BE PUBLISHED
(Sonoma County Super. Ct. No. 23PR00208)
STREETER, Acting P. J.
Conservatee E.K. appeals from the trial court's order that certain disabilities be imposed on him and his conservator be granted related powers upon the court's establishment of a stipulated conservatorship for E.K. E.K. contends that, while the trial court properly ordered the conservatorship and his placement in an open board and care facility, it violated his due process rights by failing to hold a formal hearing on issues concerning the imposed disabilities or the conservator's powers issues, or to obtain his express consent to either. We conclude E.K.'s arguments lack merit and will affirm.
I. BACKGROUND
In October 2023, the Sonoma County Public Conservator (Conservator) filed a verified ex parte petition in the Sonoma County Superior Court pursuant to the Lanterman-Petris-Short Act (LPS; Welf. &Inst. Code, § 5000 et seq.) requesting the court appoint it as the temporary and permanent conservator of E.K. (petition). The Conservator alleged that E.K. was 78 years old, single, homeless, and unemployed. He allegedly was gravely disabled as defined by section 5008, subdivision (h)(1)(A), as he was unable to provide for his basic personal needs because of his mental disorder, and he was incapable of accepting treatment voluntarily. Further, according to the examining psychiatrist, Dr. Andrea Kummer (referred to in the petition incorrectly as "Adrian"), he lacked the capacity to consent to treatment with psychiatric medication.
Undesignated statutory references are to the Welfare and Institutions Code.
The Conservator also asked the court to impose certain disabilities on E.K. Specifically, it alleged that under section 5357, E.K. should be denied the privilege of possessing a license to operate a motor vehicle; the right to possess a firearm or other deadly weapon; and the right to refuse or consent to treatment related to his being gravely disabled.
A declaration by Dr. Kummer was attached as an exhibit to the petition. In it, she stated that she had examined E.K. and that he was gravely disabled as a result of a schizoaffective disorder, bipolar type, which diagnosis apparently was first made in August 2003. He was admitted to the hospital due to his exhibiting paranoia and delusional thought content while at the emergency room; he continued to exhibit mood lability, a disorganized thought process, and paranoia regarding staff and peers; he refused to acknowledge his condition, symptoms, or the severity of his mental illness; and he was unable to articulate a viable discharge plan.
Dr. Kummer further stated that before his admission into the hospital, E.K. had stayed in an unair-conditioned vehicle in dangerous summer heat. Also, in June 2023, he was evicted from an apartment due to unsanitary conditions, and had been turned down by shelters "due to the acuity of his mental health symptoms."
Dr. Kummer recommended that E.K. be placed in a closed, locked facility. She further recommended that the legal disabilities requested in the petition be imposed on E.K. because of his medical condition (i.e., his grave psychiatric disability and resulting inability to care for himself).
The petition and the exhibits that accompanied it, including Dr. Kummer's declaration, were personally served on E.K. The Conservator also indicated that E.K. had received oral notice of his psychiatrist's conservatorship recommendation, and was specifically notified that the Conservator was seeking authorization to consent to E.K.'s treatment with psychiatric medication.
The court issued a written order on October 27, 2023, appointing Conservator as E.K.'s temporary conservator. In the order, it imposed the legal disabilities requested in the petition. It further ordered that an "IMD," an institution for mental diseases, was the least restrictive placement for E.K.
See § 14053.1; 42 U.S.C., § 1396d(i) (defining an IMD as "a hospital, nursing facility, or other institution of more than 16 beds, that is primarily engaged in providing diagnosis, treatment, or care of persons with mental diseases, including medical attention, nursing care, and related services").
At a November 2023 hearing, E.K., represented by counsel, requested the matter be set for a jury trial, which, after four continuances, was set to commence on March 27, 2024. Upon ordering each of the continuances, the court issued an order keeping its October 27, 2023 temporary conservator order in full force and effect.
On March 27, 2024, the parties, including E.K. and his counsel, appeared before the court to begin the trial. The court, having been informed that E.K. and his counsel had talked privately a few minutes before, asked E.K.'s counsel to summarize their conversation. Counsel stated that he and E.K. "spoke outside a moment ago about some communications I had with County Counsel this morning and yesterday evening, and after his understanding that he would have the opportunity for a rehearing between now and October, and the possibility to then request a jury trial starting in October, he is willing to now go to a board and care." County counsel indicated the county's agreement with this plan, and clarified that E.K. would be placed in an unlocked facility.
The court then spoke directly with E.K. It asked him, "[I]s that your understanding of what you want to do this morning?" E.K. responded, "Yes, pretty much," and discussed his experience with board and care facilities, emphasizing that he valued being placed in an open facility. The court then said, "Okay. So you want to agree this morning, or stipulate, to the conservatorship petition with the understanding that the least restrictive placement for you is a board and care. Is that right?" E.K. responded, "Right, right. And the six-month thing, that's there." The court confirmed that it was and then turned to the preparation and execution of appropriate order. It also clarified with E.K. that the conservatorship would be for one year, but that he had the opportunity for a rehearing in six months.
The court's written order, dated March 27, 2024, adjudged E.K. to be a gravely disabled person who was, among other things, incompetent to make judgments and to give informed consent with respect to the need for psychiatric care and treatment, including hospitalization and medication. The court appointed the Conservator as E.K.'s conservator for a period of one year. The court imposed the disabilities on E.K. requested in the petition and included in the court's October 27, 2023 conservator order, specifically ordering that he was denied the privilege of possessing a license to operate a motor vehicle, the right to possess a firearm or other deadly weapon, and the right to refuse or consent to medical treatment relating to his grave disability.
E.K. filed a notice of appeal from the stipulation and order of the court establishing his conservatorship. No respondent's brief has been filed.
II. DISCUSSION
E.K. agrees the trial court properly accepted his stipulation to the establishment of his conservatorship and his placement at an open board and care facility. However, he argues the order specifying the disabilities the court imposed on him- denying him the privilege of possessing a license to operate a motor vehicle, the right to possess a firearm or other deadly weapon, and the right to refuse or consent to medical treatment relating to his grave disability-and related powers of the Conservator must be reversed. He contends the court should have, but failed to, separately hold a formal court hearing to determine what disabilities to impose or, in the alternative, obtain his express consent before accepting these disabilities and powers. He argues his constitutional due process rights required one or the other, as discussed in Conservatorship of Christopher A. (2006) 139 Cal.App.4th 604, 612 (Christopher A.).
" 'Appellate courts conduct an independent review of questions of law; they decide them without deference to the decision made below.' [Citation.]
Determining if the trial court adhered to a constitutional principle is solely a question of law." (Christopher A., supra, 139 Cal.App.4th at pp. 609-610.)
"' "The question of whether due process has obtained can only be answered by scrutinizing the circumstances in which the deprivatory action arose. [Citations.] 'Because of the broad spectrum of concerns to which the term must apply, flexibility is necessary to gear the process to the particular need; the quantum and quality of the process due in a particular situation depend upon the need to serve the purpose of minimizing the risk of error.'" '" (Conservatorship of John L. (2010) 48 Cal.4th 131, 150, quoting Conservatorship of Tian L. (2007) 149 Cal.App.4th 1022, 1028 (Tian L.).)
As explained in Christopher A., we evaluate a due process challenge to a conservatorship proceeding under the Fourteenth Amendment to the United States Constitution "based on the consideration of: (1) the private interests involved, (2) the risk of erroneous deprivation under the current procedures, (3) the probable value of additional safeguards, and (4) the government interests involved. [Citations.] The California Constitution focuses broadly on the 'individual's due process liberty interest to be free from arbitrary adjudicative procedures.' [Citation.] This requires' "consideration of (1) the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, (3) the dignitary interest in informing individuals of the nature, grounds and consequences of the action and in enabling them to present their side of the story before a responsible government official, and (4) the governmental interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. [Citation.]"' [Citation.]
"The private interests involved in a conservatorship proceeding are the potential loss of liberty and stigma resulting from the disabilities imposed on a conservatee.... If a conservatorship is established, the court may order the conservatee placed in a mental health facility for a period of up to one year, 'with the possibility of additional year-long extensions (§§ 5358, 5361).' [Citation.] As a result, 'civil commitment to a mental hospital, despite its civil label, threatens a person's liberty and dignity on as massive a scale as that traditionally associated with criminal prosecutions.'" (Christopher A., supra, 139 Cal.App.4th at pp. 610-611.)
Here, again, E.K. does not challenge the validity of the court's acceptance of his stipulation that he is gravely disabled and should be placed in a board and care facility; rather, it is the disabilities and related conservator powers the court ordered that he contests. He may do so because, "[i]f a person is found gravely disabled and a conservatorship is established, the conservatee does not forfeit legal rights or suffer legal disabilities merely by virtue of the disability. (§ 5005; [citation].) The court must separately determine the duties and powers of the conservator, the disabilities imposed on the conservatee, and the level of placement appropriate for the conservatee. (§§ 5357, 5358.) The party seeking conservatorship has the burden of producing evidence to support the disabilities sought, the placement, and the powers of the conservator, and the conservatee may produce evidence in rebuttal. [Citation.] Although the proposed conservatee waives the right to a prompt court hearing after requesting a jury trial (§ 5350, subd. (d)), this waiver extends only to a hearing on the issue of grave disability. Section 5365 suggests the purpose of the LPS hearing is to consider 'all petitions.' The petition is filed by the County (§ 5352) and includes, or is later supplemented by, the investigator's report, which includes recommendations on placement, disabilities, and powers of the conservator (§§ 5354, 5356). Therefore, a proposed conservatee has a right to a hearing or jury trial on the issue of grave disability and a court hearing to determine placement, disabilities, and conservator duties and powers." (Christopher A., supra, 139 Cal.App.4th at p. 612, italics and fn. omitted; id. at pp. 610-611.)
In Christopher A., upon which E.K. heavily relies, a jury found that Christopher A. was gravely disabled under the LPS. (Christopher A., supra, 139 Cal.App.4th at p. 609.) After it returned its verdict, the county and Christopher A.'s attorney submitted a proposed judgment to the court that included orders regarding placement, imposed disabilities, and granted powers to the conservator. (Id. at pp. 608, 609.) The court signed the proposed order without obtaining on the record Christopher A.'s consent regarding the contents and consequences of the stipulated judgment his counsel had approved. (Id. at p. 609.)
On appeal to Division One of the Fourth Appellate District, Christopher A. argued his attorney did not have the authority to agree to the judgment to the extent it included placement, disabilities, and conservator powers without the court obtaining his on-the-record consent. (Christopher A., supra, 139 Cal.App.4th at p. 608.)
The court agreed because of "the significant liberty interests at risk by imposing LPS conservatorships." (Christopher A., supra, 139 Cal.App.4th at p. 608.) It concluded that "a stipulated judgment approved by the conservatee's attorney and adopted by the court after no formal hearing on the issues of placement, disabilities, and powers of the conservator is not a constitutionally sound safeguard against error," even though there was evidence to support the conclusions in the judgment, because "[a] proposed conservatee's at risk of substantial deprivation of his or her liberty interests for at least a period of one year. [Citation.] To allow the conservatee's attorney to waive the right to a hearing and agree to the extent of the deprivation without the express consent of the conservatee is contrary to the principles of procedural due process. A waiver of the right to a hearing on these issues eliminates a procedural safeguard already in place." (Id. at p. 613, italics omitted.) The court concluded, "before accepting a stipulated judgment on placement, disabilities, and conservator powers, the court on the record must consult with the conservatee to instruct him or her on the consequences of the stipulation and obtain the conservatee's express consent to the stipulation on those issues." (Ibid.)
Christopher A. was soon followed by two cases in which the same court-Division One of the Fourth Appellate District-held that due process requirements also allowed a trial court to find a conservatee had validly waived a hearing on disabilities and powers and consented to those stipulated to by the parties under a broader range of circumstances than those discussed in Christopher A. E.K. fails to discuss either case.
In Tian L., supra, 149 Cal.App.4th 1022, a county conservator petitioned for the reestablishment of a conservatorship for Tian L. because she remained gravely disabled due to psychosis and poor judgment caused by schizophrenia. (Tian L., supra, at p. 1026.) The conservator sought Tian L.'s continued placement in a locked facility and the imposition of certain disabilities. (Ibid.) Subsequently, Tian's counsel filed a sworn statement with the court indicating she had personally visited Tian the previous day, that Tian had knowingly and willingly consented to reestablishment of the conservancy by stipulation and without a formal court hearing after discussion of the matter, and that she, counsel, had read the petition and medical declaration and stipulated to the reestablishment of the conservatorship with the requested placement and disabilities, without a formal hearing. (Id. at p. 1027.) The court found, based on counsel's sworn statement, that Tian waived an appearance and stipulated to the physicians' report and qualifications. (Ibid.) The court reestablished the conservatorship, ordered Tian placed in a locked facility, and imposed the disabilities. (Ibid.)
"A reestablishment hearing is conducted according to the same rules that govern the initial establishment of the conservatorship." (Conservatorship of Deidre B. (2010) 180 Cal.App.4th 1306, 1312 (Deidre B.)
On appeal, Tian, relying on Christopher A., argued the court violated her procedural due process rights by accepting her counsel's sworn statement that Tian had no objection to the reestablishment of the conservatorship on an ex parte basis. She contended her signature was necessary on the stipulation form before the court could rely on it to find a valid waiver of a separate hearing on disabilities. (Tian L., supra, 149 Cal.App.4th at pp. 1027, 1031.)
Division One of the Fourth Appellate District rejected Tian's argument in light of her concession that she received all the necessary statutory notices, a copy of the petition, which included the physician's declaration, and notice of the intended placement in the locked facility and the precise nature of the proposed disabilities. (Tian L., supra, 149 Cal.App.4th at p. 1031.) Further, the court wrote, although the stipulation form signed by her counsel "did not expressly state she discussed the proposed placement and disabilities or right to a hearing with Tian, she presumably did so," as "[t]he form states [counsel] 'discussed reestablishment' with Tian, and central to reestablishment are issues of placement and disabilities. Also, Tian's signature was not required on the stipulation, as [counsel], as an officer of the court, signed the form under penalty of perjury. Had [counsel] not accurately reported Tian's wishes to the court, Tian had recourse in superior court ...." (Ibid., fn. omitted.) It distinguished Christopher A. on the ground that" '[n]othing in the record show[ed] Christopher consented to the terms of the proposed judgment regarding placement, disabilities, and conservator powers.'" (Id. at p. 1032.)
Here, the court cited an earlier Fourth Appellate District opinion, Conservatorship of Moore (1986) 185 Cal.App.3d 718, in which the court noted that a conservatee had statutory authority to directly and immediately challenge the ex parte reestablishment of a conservatorship. (Tian L., supra, 149 Cal.App.4th at p. 1031, citing Moore, at p. 730.)
Similarly, in Deidre B., supra, 180 Cal.App.4th 1306, Division One of the Fourth Appellate District considered the contention by the conservatee, Deidre, that the trial court had violated her due process rights by accepting a stipulation filed by her attorney and unsigned by her stating that she consented to the reestablishment of her conservatorship, finding that she had waived her right to a formal hearing, and imposing the same disabilities as those imposed on E.K. here. (Id. at pp. 1309-1310, 1309, fn. 2.) The appellate court concluded that, despite the trial court not obtaining Deidre's express statement of approval to the stipulation, the court did not violate her due process rights because the overall circumstances indicated her agreement to it. (Id. at pp. 1309, 1315.)
In Deidre B., a county conservator petitioned the trial court to reestablish a conservatorship of Deidre, alleging she was gravely disabled due to her chronic paranoid schizophrenia, and asked the court to order her placed in a locked facility (as the petition was ultimately amended) and impose certain disabilities on her. (Deidre B., supra, 180 Cal.App.4th at pp. 1309, 1310.) About four weeks before the hearing, her attorney, a deputy public defender, filed a stipulation which stated that Deidre had knowingly and willingly consented to renewal of the conservatorship, consented to the matter being handled by stipulation and without a formal court hearing, and consented to the proposed placement and disabilities without a formal hearing. (Deidre B., supra, 180 Cal.App.4th at pp. 1310, 1314-1315.) The stipulation was supported by the attorney's signed declaration setting forth the advisements she had given Deidre, which were about the nature and purpose of the proceedings, the consequences of reestablishing the conservatorship, and Deidre's rights to oppose the proceeding, request a jury trial, and be represented by counsel. (Ibid.)
At the petition hearing, neither Deidre nor that attorney appeared. Rather, another deputy public defender representing Deidre told the court that the attorney who filed the stipulation" 'was not convinced, based on discussions with [Deidre], that she was or was not contesting the reestablishment.'" (Deidre B., supra, 180 Cal.App.4th at p. 1310.) The appearing attorney told the court that, to resolve this uncertainty, he "had spoken to Deidre that morning by telephone, and she indicated she did not want to contest the proceeding or come to court." (Id. at pp. 1310-1311.) There is no indication that he referred to any of the proposed disabilities (ibid.), which, again, were the same as those imposed on E.K. in this case (id. at pp. 1309-1310, 1309, fn. 2). The court then accepted the previously filed stipulation. (Id. at p. 1311.)
Subsequently, Deidre filed a declaration stating that she was able to provide for her basic needs, that her attorney had only spoken to her for five minutes on the phone and did not advise her of her due process rights, and that the county investigator had told her that he would move her to a board and care facility if she waived her right to a hearing. (Deidre B., supra, 180 Cal.App.4th at p. 1311.) The declaration was flawed, however, and the trial court never considered or ruled on the matters raised in it. (Ibid.)
On appeal, Deidre argued the trial court violated her due process rights by accepting her attorney's stipulation even though it was told that attorney was not certain Deidre consented to reestablishment of the conservatorship. She contended the court was required to, but did not, confirm that she had knowingly consented to the stipulation, and she raised related questions about her absence from the hearing, what her attorneys represented and did not represent to the trial court, and the court's failure to determine that she could meaningfully consent to the stipulation. (Deidre B., supra, 180 Cal.App.4th at pp. 1311, 1314, 1315-1317.) The court, after discussing Tian L., Moore, and Christopher A. at some length, rejected Deidre's contentions. (Id. at pp. 1312-1316.)
Specifically, the court presumed her attorney was competent and that any questions she had about Deidre's consent to the stipulation occurred after its filing because she would not have filed it otherwise. (Deidre B., supra, 180 Cal.App.4th at p. 1314.) The court then noted the representations by the attorney who appeared at the hearing on Deidre's behalf that he had just spoken to her and confirmed her consent. (Ibid.) It concluded, "Given that [the attorney who filed the stipulation] had already filed a declaration and stipulation stating that she had advised Deidre concerning the conservatorship and Deidre had consented to reestablishment without a formal hearing, the court did not abuse its discretion in accepting [the appearing attorney's] representation. This is not a case where the court accepted a stipulation in the absence of a sworn statement from the conservatee's counsel setting forth the conservatee's informed consent. Rather, the court had sworn documents on file, and the oral statements by [the appearing attorney] confirmed that the consents set forth in the stipulation were still accurate." (Id. at pp. 1314-1315.)
Turning to the case before us, we think it involves circumstances much closer to those discussed in Tian L. and Deidre B. than those discussed in Christopher A. As was true in Tian L., the record indicates E.K. knew, in his case many months before the March 2024 petition hearing, that the conservatorship petition requested the court impose the disabilities on him that it ultimately imposed because he was personally served with petition at the time it was filed. He expressly stated at the March 2024 petition hearing that he was stipulating to that petition upon being queried directly by the court. Specifically, the court asked him, "So you want to agree this morning, or stipulate, to the conservatorship petition with the understanding that the least restrictive placement for you is a board and care. Is that right?" (Italics added.) E.K. specifically responded, "Right, right. And the six-month thing, that's there."
This and other comments E.K. made at the hearing indicate he was concerned with his placement in an open facility and not any disabilities that might be imposed. Unlike in Christopher A., and contrary to E.K.'s assertion on appeal that the record does not anywhere show his waiver of a formal hearing regarding the disabilities and his consent to them as imposed by the court, E.K. waived that hearing and expressly agreed to imposition of those disabilities stated in the petition, which were all the court imposed. This is reason enough for us to conclude that E.K.'s due process argument lacks merit.
Even if he had not given his express consent, there are ample indications in the record that E.K. agreed to these disabilities. Certainly, E.K. was well aware of them. Not only was he personally served with the petition that he later stipulated to (including Dr. Kummar's declaration recommending the disabilities), but he was given oral notice that Dr. Kummer was recommending the conservator be authorized to consent to treatment with psychiatric medication. And most importantly, the court also issued a written temporary conservator order in October 2023, five months before the March 2024 petition hearing, in which it imposed the disabilities on E.K.-and then extended this same order, including the imposition of these same disabilities, four times.
Both the Deidre B. and Tian L. courts' holdings rest in part on the presumption that counsel had discussed the proposed disabilities with their clients. This presumption is implied in Deidre B., where the court affirmed the lower court's approval of the subject stipulation after recounting that her appearing attorney told the trial court she approved "reestablishment" without reference to any proposed disabilities (which, again, were the same as those imposed here). (Deidre B., supra, 180 Cal.App.4th at pp. 1309-1310, 1309, fn. 2.) In Tian L., the appellate court expressly presumed from the record that Tian's counsel discussed the proposed disabilities with her, particularly given their centrality to the reestablishment of her conservatorship. (Tian L., supra, 149 Cal.App.4th at p. 1031.)
Likewise, we presume from the record that E.K. was well aware of the proposed disabilities, not only because they are in the petition, but also because his attorney was competent and would have discussed the temporary conservatorship order with him, which included the imposition of these same disabilities. Further, E.K. lived with these disabilities for many months before the March 2024 petition hearing. Given these facts, the centrality of these disabilities to the establishment of his conservatorship (particularly the disability regarding E.K.'s right to refuse or consent to treatment), and the representations to the court at the March 2024 hearing by E.K.'s attorney and E.K. indicating E.K.'s stipulation to the petition, we also presume that E.K.'s attorney discussed the disabilities with him in their conversation just prior to the March 2024 hearing and that E.K. approved them. This is a second, independent reason for our conclusion that E.K.'s due process argument is without merit.
III. DISPOSITION
The stipulation and order appealed from are affirmed.
WE CONCUR: GOLDMAN, J., DOUGLAS, J.[*]
[*] Judge of the Superior Court of California, County of Contra Costa, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.