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In re Conservatorship of the Person of John L.

February 25, 2010


Ct.App. 4/1 D048654 San Diego County Super. Ct. No. MH99550. Court: Superior County: San Diego Judge: Kerry Wells.

The opinion of the court was delivered by: Baxter, J.

At a hearing on April 4, 2006, the superior court considered a petition to establish a conservatorship of the person of John L. pursuant to the Lanterman-Petris-Short Act (LPS Act or Act; Welf. & Inst. Code, § 5000 et seq.).*fn1 A report prepared by a conservatorship investigator the month before the hearing stated that John "made it clear" he did not want a conservator and did not need any assistance. At the hearing, however, John's appointed attorney informed the court that John did not want to be present in court and was not contesting the conservatorship. Relying on the attorney's representations, the court excused John's presence, granted the petition, and appointed the Public Conservator of San Diego County as conservator of John's person. We conclude the superior court did not commit any statutory or due process violation in doing so. We therefore affirm the judgment of the Court of Appeal.

Factual and Procedural Background

The LPS Act authorizes the superior court to establish a conservatorship of a person who is gravely disabled as a result of a mental disorder. (§§ 5350, 5008, subd. (h)(1).) Here, the Public Conservator of San Diego County (Public Conservator) sought to establish an LPS conservatorship of the person of 60-year-old John L. The relevant facts, all of which occurred in 2006, are undisputed.

On February 15, John was taken to an emergency psychiatric unit in San Diego on an involuntary basis. He was yelling and screaming and unable to provide a chief complaint. Later that day, John was transferred to the behavioral health unit at Palomar Hospital, under the care of Dr. Christopher Gorman. During John's stay, he was described as extremely manic, grandiose, nondirectable, intrusive, manipulative, and having poor boundaries. He refused antipsychotic medication until February 22, when a court-appointed hearing officer found that he lacked the capacity to withhold his consent on the matter. (See Riese v. St. Mary's Hospital & Medical Center (1987) 209 Cal.App.3d 1303.)

On February 24, Dr. Gorman executed a declaration recommending a conservatorship based on his belief that John was gravely disabled as a result of a mental disorder, diagnosed as "Bipolar Disorder, manic [with] psychotic features." (§ 5352.1.) He cited the circumstances that John had been evicted from his apartment, and that while residing at Palomar Hospital he took food from other patients' trays, barricaded the door to his room (which required fire department intervention), often walked around with his shirt open, and had attempted to leave his room one night naked from the waist down. Although Dr. Gorman considered other alternatives to conservatorship, he found no suitable alternative available for John.

Dr. Gorman executed a second declaration stating he had informed John that a recommendation for conservatorship of the person was being filed with the court, and that a petition for appointment of a conservator also might be filed. He explained to John what the appointment of a conservator meant and identified the possible orders that could result from a hearing on the petition. He also informed John of his rights to be present at the hearing, to hire an attorney of his choice or to have one appointed for him, to demand a court or jury trial on the issue of grave disability, to confront and cross-examine witnesses, and to produce witnesses in opposition to the petition.

On March 7, the Public Conservator filed an "Ex Parte Petition for Appointment of Temporary Conservator and Conservator of the Person" for John (the petition), along with Dr. Gorman's two declarations. (§§ 5350, 5352.) That same day, the court appointed the Public Conservator as temporary conservator. (§ 5352.1.)

On March 17, a "Citation for Conservatorship" was issued, notifying John he was required to appear at a hearing on April 4, at which time the court would determine whether to appoint the Public Conservator as a conservator of his person. (§ 5350; Prob. Code, § 1823.) The temporary conservator filed a "Conservatorship Investigation Report" (the investigation report), prepared by investigator Candy Elson of the Public Conservator's office, which recommended that a conservatorship be established to ensure John would obtain necessary mental heath treatment. (§ 5354.) The investigation report summarized John's lengthy history of mental illness dating back to the early 1960's and noted both his previous diagnosis of schizophrenia and his current diagnosis as "Bipolar Manic with Psychosis." The report recounted that John had numerous past involuntary hospitalizations with a long history of medication noncompliance, a significant history of violent, agitated, and obstreperous behavior when hospitalized, and an "extremely turbulent" present course at Palomar Hospital.

The investigation report additionally described investigator Elson's meeting with John at Palomar Hospital on March 3. According to Elson, John appeared somewhat subdued and sedated, and also was "religiously preoccupied" and delusional. John, however, "made it clear that he did not want a Conservator and thought that he did not need any assistance." The report concluded there was no viable alternative to conservatorship, and recommended "a closed, locked facility" as "the least restrictive, most appropriate placement to meet [John's] needs." (§ 5354.)

John was personally served with the petition and citation for conservatorship. His appointed counsel, Lidia Garcia, was served with the petition, the investigation report, and notice of the April 4 hearing for the appointment of the Public Conservator as a conservator of the person for John.

John did not attend the April 4 hearing. As relevant here, Garcia appeared at the hearing on John's behalf and reported to the court, "Your [H]onor, I have visited with him at Telecare Choices. Recently he was here. He had requested a writ which he took off calendar. At any rate Mr. L[.] is doing much better. [¶] We discussed the conservatorship and on Friday then he wished to put it over until yesterday so that he could think about it. When we met he indicated that at this time he was not contesting the conservatorship. He did not want to be present in court. So we would ask the court to excuse his presence."

After excusing John's presence from the hearing, the superior court received the investigation report into evidence. (§ 5354.) It then ordered the appointment of the Public Conservator as conservator of the person of John and further ordered that John not be permitted to vote or contract, to possess a driver's license or a firearm, or to refuse or consent to medical treatment. Consistent with the investigation report's recommendation, the court determined that the least restrictive placement available and necessary for John was a closed, locked treatment facility.

On appeal, John contended his rights under the LPS Act, as well as his state and federal constitutional due process rights, were violated when the superior court proceeded with the April 4 conservatorship hearing in his absence and ordered the conservatorship without any admissible evidence that he knowingly and intelligently waived his right to appear at the hearing. The Court of Appeal affirmed.*fn2


The central issue is whether the superior court properly proceeded with the April 4, 2006, hearing on the petition to establish a conservatorship of the person in John's absence. It bears emphasis that, before his appeal, John raised no objection to the court's actions; in fact, it is undisputed he told his appointed attorney he was not contesting the proposed conservatorship and did not wish to appear at the hearing. The court excused John's presence and appointed a conservator only after hearing the attorney's representations on the matter.

We first review the requirements of the LPS Act to determine whether a violation occurred when the superior court excused John's absence based upon his appointed counsel's representations. If no statutory violation appears, we must then determine if the court nonetheless deprived John of due process in establishing the conservatorship as it did. These are legal issues subject to de novo review. (See Smith v. ...

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