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Conservatorship of the Person and Estate of E.B. v. E.B

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)


January 3, 2012

CONSERVATORSHIP OF THE PERSON AND ESTATE OF E.B. BUTTE COUNTY PUBLIC GUARDIAN, AS CONSERVATOR, ETC., PETITIONER AND RESPONDENT,
v.
E.B., OBJECTOR AND APPELLANT.

(Super. Ct. No. PR39649)

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

Conservatorship of E.B.

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Appellant, E.B., appeals from a judgment appointing a Lanterman-Petris-Short (LPS) Act mental health conservator. She also appeals the imposition of special disabilities in the letters of conservatorship; that is, the denial of the privilege of possessing a driver's license, the right to enter contracts, and the right to possess a firearm. She contends there is not substantial evidence supporting the grave disability finding that she cannot provide for her basic needs such as food, clothing, and shelter nor is there evidence supporting the imposition of the special disabilities. We affirm the order reappointing the public guardian as E.B.'s conservator and imposing the special disability denying her right to possess a firearm, but remand the case to the trial court for further proceedings regarding the imposition of special disabilities relating to her right to contract and the privilege of possessing a driver's license.

STATEMENT OF FACTS

Prior to these proceedings, E.B. was placed at a board and care facility in Chico called TLC. She felt her life was in danger there, so two days later she left and went to West Sacramento, where she lived in a motel for approximately eight days. The motel was paid for by her representative payee. The voucher presented to the motel established that there was enough money to pay for rent, food, clothing, bus fare, and laundry during the week. Police identified her as a missing person and arranged for her to be transferred back to the Psychiatric Health Facility (PHF).

Dr. James Glover, a Butte County behavioral health services psychiatrist was familiar with E.B. and her mental condition. He had diagnosed her with schizoaffective disorder, based on grandiose delusions, including her being employed by the FBI, owning a lot of property and expensive cars. E.B. had been psychiatrically hospitalized 27 times in the last nine years and approximately once a month for the last six to eight months. E.B. reported having a brain tumor, but that was not supported by any medical evidence. She claimed an employee of the "Butte Co[unty] Conservator Public Guardian" had told her he was a murderer and had stolen $1,700 in Social Security benefits. She believed she had recovered 659 children with law enforcement. She also believed she was poisoned several times a day while in the psychiatric hospital, that she had been kidnapped by illegal fugitives impersonating police officers, and numerous people had tried to kill her.

Dr. Glover prescribed E.B. Seroquel and Invega Sustenna. She was only compliant with taking her medications when she was in the inpatient unit and refused any outpatient follow-up care. She was not compliant, because she did not believe she had a mental illness, did not feel she needed the medication, and the medication complicated her humor.

E.B. confirmed she had left the board and care facility because she thought her life was in danger, people had "threatened me and were yelling at me to come out with my hands up because they were halfway, and they were people that had me kidnapped from the hospital July 29th of this year on false orders . . . ." She was afraid of the "criminals" in the facility, the employees had falsified information about her, she was not being given all of her medications, and the water was being contaminated. E.B. acknowledged that, if on her own, she would not take her medications because of their tranquilizing effect, and her belief that the "medication does change natural brain action of my head and causes me to have strokes."

Dr. Glover opined that E.B. was not able to provide for her own food, clothing, or shelter. He noted over the years she had not shown an ability to live independently for any length of time. He acknowledged although she appeared "well-dressed and groomed" when she came to the hospital, she also was hospitalized "a good part of the time." When she would leave the hospital, she did not take her medications and when she refuses treatment, she cannot live independently.

Deputy public guardian Matthew Garrahy had been familiar with E.B. since 2007. To prepare his comprehensive report, Garrahy reviewed past behavioral health reports, existing documentation from previous conservatorships of E.B., Dr. Glover's report, and the PHF staff notes. He concluded she was "obviously" not able to remain in housing or provide for her own food, clothing, and shelter. His conclusion was based on her historical inability to provide for her own food, clothing, or shelter.

E.B. believed that Garrahy wanted her under a conservatorship because he was "after" her Social Security money. She indicated she got $929 a month in Social Security. She also believed she was the beneficiary of a bank account containing $330,000. E.B. believed she could support herself with her own food, clothing, and shelter. She specifically stated she wanted the privilege of her driver's license. She also specifically indicated that she might petition the court for permission to own a firearm, so she could protect her home and family "because [she had] been so much life-endangered in the last few years."

The court found E.B. was not able to provide for herself for "extended periods of time. One week in a motel is not the same thing as being able to provide food, clothing and shelter." The court also found she was substantially unable to manage her financial resources or to resist fraud or undue influence. Accordingly, the court appointed the public guardian as the LPS Act conservator of the person and the estate. The court also imposed special disabilities, denying E.B. the privilege of possessing a driver's license, the right to enter into contracts, the right to refuse treatment related to grave disability, and the right to possess a firearm or other deadly weapon.

DISCUSSION

I

Grave Disability

E.B. contends there is not substantial evidence supporting the conclusion that she is gravely disabled. We disagree.

To establish a conservatorship under the LPS Act, the public guardian must prove the proposed conservatee is gravely disabled beyond a reasonable doubt. (Welf. & Inst. Code, § 5350;*fn1 Conservatorship of Smith (1986) 187 Cal.App.3d 903, 908-909 (Smith).) As relevant in this case, to establish "grave disability," the evidence must support an objective finding that due to 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 Carol K. (2010) 188 Cal.App.4th 123, 134.)

"In reviewing a conservatorship, we apply the substantial evidence standard to determine whether the record supports a finding of grave disability. The testimony of one witness may be sufficient to support such a finding. [Citation.] 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., supra, 188 Cal.App.4th at p. 134.) "Substantial evidence includes circumstantial evidence and the reasonable inferences flowing therefrom." (Conservatorship of Walker (1989) 206 Cal.App.3d 1572, 1577 (Walker).) A lack of insight into one's mental illness and the concomitant reluctance to accept treatment provides evidence in support of a finding of grave disability. (Id. at p. 1577; Conservator of Guerrero (1999) 69 Cal.App.4th 442, 446-447 (Guerrero).)

Both Garrahy and Dr. Glover had dealt with E.B. and her mental health history over the course of many years. Garrahy and Dr. Glover both concluded E.B. could not provide for her basic needs when she was not medicated. E.B. did not believe she had a mental illness and made clear she would not take her medication. That testimony was consistent with her history of leaving the hospital, not taking her medication, and refusing outpatient follow-up care. E.B. had numerous and repeated psychiatric hospitalizations, 27 in nine years. Over the past few months, she had been hospitalized once a month. The reasonable inference from E.B.'s significant and increasing pattern of psychiatric hospitalizations is that she is unable to live independently and provide for herself while not taking her medication. Where there is "substantial evidence the conservatee could not provide for [herself] without medication and that [s]he would not take [her] medication without the supervision of the conservator," there is substantial evidence of a grave disability. (Guerrero, supra, 69 Cal.App.4th at p. 446.) Her history of having to be hospitalized regularly and repeatedly when not medicated, her lack of insight into her mental illness and her self-proclaimed unwillingness to voluntarily medicate herself provide sufficient evidence that she is presently gravely disabled. (See Walker, supra, 206 Cal.App.3d at p. 1577.)

II

Special Disabilities

E.B. next contends there is not substantial evidence to support the imposition of special disabilities under section 5357 relative to her ability to possess a firearm, enter into contracts, or possess a driver's license.*fn2 As to the firearm restriction, we disagree. However, as to the restrictions regarding possession of a driver's license and ability to contract, we agree.

It is true that "'[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; [Walker, supra,] 206 Cal.App.3d [at p. 1578].)' . . . [Citation.]" (Conservatorship of George H. (2008) 169 Cal.App.4th 157, 165.) "Every institutionalized person is entitled to individualized treatment under the 'least restrictive' conditions feasible -- the institution should minimize interference with a patient's individual autonomy . . . . (Welf. & Inst. Code, §§ 5325.1, subds. (a), (b), (g); 5358, subds. (a), (c).)" (Foy v. Greenblott (1983) 141 Cal.App.3d 1, 10 & fn. 2.) Consistent with this goal, "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.]" (Conservatorship of Christopher A. (2006) 139 Cal.App.4th 604, 612, fn. omitted.) In other words, there must be evidence in the record to support each of the specific disabilities imposed. (Conservatorship of George H., supra, 169 Cal.App.4th at pp. 165-166.)

1. Possession of a Firearm or Other Deadly Weapon*fn3

To support a limitation on a conservatee's ability to possess a firearm or deadly weapon, the court must find "that possession of a firearm or any other deadly weapon by the person would present a danger to the safety of the person or to others." (§ 8103, subd. (e)(1).) Here, the conservator did not present any evidence that E.B. would present a danger to the safety of herself or others if she possessed a firearm. Had E.B. herself not testified, we would be inclined to agree with her that the need for this prohibition was not established. However, she did testify on this point.

E.B. perceived a number of life threatening dangers to herself and her family. These threats were products of her paranoid delusions and the villains threatening her life were embodied in real people who she had regular exposure to, for example, employees and nurses at the psychiatric hospital and the police officers who detained her, who she believed were fugitives bent on kidnapping her. She also believed she had assisted law enforcement in recovering children and had witnessed her granddaughter being kidnapped. E.B. wanted to be able to possess a firearm so she could protect herself and her family from all these threats to her life. With this testimony by E.B., we have no trouble finding there is sufficient evidence to support the court's implicit finding that E.B.'s possession of a firearm or deadly weapon would present a danger to herself or others. Accordingly, there is sufficient evidence to support the imposition of this disability.

2. Right to Possess a Driver's License and Right To Contract

As with the issue of possession of a firearm, the conservator did not present any evidence to support depriving E.B. of her driver's license or restricting her right to contract. And on these points, E.B.'s testimony does not fill the evidentiary void. Unlike its treatment of the right to possess a firearm, section 5357 does not provide standards to be applied in determining whether restrictions on driving or entering into contracts should be imposed. Accordingly, we will look to the Civil Code and Vehicle Code respectively for guidance.

The determination of grave disability under section 5350 is not the equivalent of a judicial determination of incapacity. (§§ 5357, 5331; Civ. Code, § 40; Board of Regents v. Davis (1975) 14 Cal.3d 33, 42.) "It is one of the cardinal principles of LPS that mental patients may not be presumed incompetent solely because of their hospitalization." (Riese v. St. Mary's Hospital & Medical Center (1987) 209 Cal.App.3d 1303, 1314.)

Under Civil Code section 1556, persons of "unsound mind" are not capable of entering into contracts. There are essentially three classifications of incapacity based on an "unsound mind," (1) entirely without understanding (Civ. Code, § 38); (2) unsound but not entirely without understanding (Civ. Code, § 39; and (3) susceptible to undue influence. (Civ. Code, § 1575; Smalley v. Baker (1968) 262 Cal.App.2d 824, 834-835, disapproved on another point in Weiner v. Fleischman (1991) 54 Cal.3d 476, 485-486.) Consistent with the objective of providing the conservatee with the least restrictive conditions possible and maximizing the preservation of their individual autonomy, the investigating officer preparing the report on conservatorship may recommend the limitation on the right to contract be tailored to restrict only "specified types of transactions or transactions in excess of specified money amounts." (§ 5357, subd. (b).) The incapacity to contract on a particular subject or in a particular kind of contract or business transaction does not necessarily establish incapacity to enter into any contract. "Rather the test is whether or not the party was mentally competent to deal with the subject before [her] with a full understanding of [her] rights." (Philbrook v. Howard (1958) 157 Cal.App.2d 210, 214.)

Here, there is no evidence that E.B. falls into any of the three classifications of incapacity to contract. There is no evidence that she lacks the capacity to enter into particular kinds of contracts or contracts over specified amounts. There is no evidence in the record at all regarding E.B.'s capacity to contract. Neither Dr. Glover nor Garrahy testified or offered any evidence on this point.

There is a similar lack of evidence regarding E.B.'s driving. Generally, the overriding concern in the issuance of a driver's licenses is whether the person is able to operate a motor vehicle safely. (Veh. Code, §§ 12800, subd. (g), 12805, subd. (d), 12806, subd. (c); People v. Superior Court (Wilson) (1993) 18 Cal.App.4th 31, 36-37.) Mental disorders may affect a person's "ability to exercise reasonable and ordinary control in operating a motor vehicle" and may be the basis for refusing that person a driver's license. (Veh. Code, §§ 12800, subd. (g), 12806, subd. (c).) However, existence of a mental disorder alone does not "satisfy the evidentiary requirements for the imposition of special disabilities under section 5357." (Walker, supra, 206 Cal.App.3d at p. 1578, fn. omitted.)

Here, no evidence was presented on E.B.'s ability to safely operate a motor vehicle. The issue was not addressed in any way, other than E.B.'s testimony she wanted to have her driver's license. Neither Garrahy nor Dr. Glover testified or offered evidence on this point.

The conservator's presentation of no evidence on the issue of the special disabilities makes this case strikingly similar to Walker, supra, 206 Cal.App.3d at pages 1577-1579. In Walker, the conservator requested imposition of special disabilities, but offered no evidence to support his request. (Id. at p. 1578.) At the hearing, neither the parties nor the trial court addressed the issue. The trial court's order nonetheless granted the conservator's request and imposed the special disabilities. (Ibid.)

The Court of Appeal held that the conservator failed his "burden of producing evidence to support the special disabilities which he sought." (Walker, supra, 206 Cal.App.3d at p. 1578.) In so holding, the appellate court advised: "The trial court may have been satisfied by the content of the psychiatrist's testimony that the special disabilities were warranted. However, the basis for the court's order in this regard is unclear on this record. The better practice is for the conservator to disclose, by the questions asked or the argument made, the evidence relied upon to support special disabilities under section 5357." (Walker, supra, 6 Cal.App.3d at p. 1578.) Accordingly, the appellate court remanded the matter for further proceedings to address the propriety of imposing special disabilities. (Id. at p. 1579.)

We find the Walker decision on point. As in Walker, the public guardian here requested that special disabilities be imposed upon E.B. relative to her possession of a driver's license and right to contract, but did not specifically address the issue at the hearing, whether by questions asked or arguments presented. The trial court's order then imposed these special disabilities upon E.B., without referring to relevant evidence or making specific factual findings. While there may be a basis for the imposition of these disabilities, the public guardian failed to establish an evidentiary foundation for the trial court's order. As such, the public guardian failed its burden to produce evidence supporting imposition of the special disabilities. (Walker, supra, 206 Cal.App.3d at p. 1578.) Accordingly, the case must be remanded for further proceedings regarding imposition upon E.B. of these special disabilities. (Id. at p. 1579.)

The lack of evidence on these special disabilities points up a particular problem in this case. The record makes clear that those in the courtroom, the witnesses, the lawyers, and the judge, were very familiar with E.B., her mental condition and her capacity to provide for her basic needs, particularly when she is not medicated. However, the majority of facts underlying this knowledge did not make it into the record as evidence. The evidentiary record in this case does not include the information contained in either the comprehensive report of conservatorship investigating officer or Dr. Glover's declaration recommending conservatorship through either Glover's or Garrahy's testimony. The entire issue of special disabilities was unaddressed at the hearing. The dearth of evidence actually put forward in this case might be explained by the familiarity of those in the courtroom with E.B. However, we do not know E.B. and are not familiar with her history, and even if we did, proper appellate review requires evidence in the record. Had the evidentiary record been more fully developed, it is unlikely this appeal would have even been taken. As the court in Walker pointed out above, the better practice would be for the parties and the court to ensure the factual basis underlying their conclusions is contained as evidence in the record.

DISPOSITION

The order reappointing the public guardian as conservator of E.B. person and estate is affirmed. The matter is remanded for further proceedings to address the propriety of imposing upon her the special disabilities requested by the public guardian as to her driver's license and right to contract.

We concur: RAYE , P. J. HOCH , J.


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