Conservatorship of N.
| Decision Date | 10 May 1983 |
| Court | California Court of Appeals Court of Appeals |
| Parties | CONSERVATORSHIP of the Person of Valerie N. Mildred G. et al., Petitioners and Appellants, v. Valerie N., Objector and Respondent. A012215. Civ. 53699. |
Allen H. Fleishman, San Jose, for petitioners and appellants.
Quin Denvir, State Public Defender, Paul D. Fogel, Deputy State Public Defender, San Francisco, for objector and respondent.
Respondent Valerie N. is a mentally retarded adult. Appellants are her natural mother and stepfather. They petitioned the superior court, sitting in probate, for orders appointing them as conservators of respondent's person and authorizing them to have her sterilized. The probate court appointed them as conservators of her person; conducted an evidentiary hearing on their application for authority to have her sterilized; and made an order denying the application. They appeal from the order.
For reasons which will appear, we recite this sequence in chronological detail. On September 5, 1980, appellants petitioned the probate court for their appointment as conservators of respondent's person "with additional powers." They alleged in their petition that respondent "is unable properly to provide for her personal needs" because she is "severely retarded." They requested that they be appointed as conservators of her person with the "additional power ... to authorize the performance on conservatee of a salpingectomy or any other operation or treatment that will permanently sterilize but not unisex [sic ] the conservatee ... because physicians have informed the petitioners that conservatee's mental retardation is a permanent condition."
On September 25, 1980, the probate court conducted a hearing on the petition. Respondent was interviewed in open court by a court-appointed investigator who reported that she (respondent) "had no comprehension of the proceedings." The court made a finding to that effect and appointed the public defender to represent respondent. The public defender informed the court that there was "no objection" to the appointment of conservators as prayed, but that respondent objected to the "additional power" requested. The court made an order appointing appellants as co-conservators An evidentiary hearing on the application was conducted on December 10, 1980. In its support, appellants filed declarations by two physicians and by a counselor who specializes in "behavior management with developmentally disabled clients." The court also heard testimony by appellant Mildred G., respondent's mother. At the conclusion of the hearing, the court orally denied the application for "additional power." On the same day (December 10, 1980), the court made a minute order stating: "ORDER: Application by Conservators for Additional Power to perform [sic ] surgery upon ... the Conservatee herein is DENIED."
of respondent's person. Proceedings on their application for the "additional power" were continued.
On December 22, 1980, appellants filed a notice of appeal "from the Order entered herein on December 10, 1980."
On June 12, 1981, the probate court signed and filed a formal order in which appellant's "request for special powers" was denied nunc pro tunc as of December 10, 1980. 1
On August 18, 1981, appellants filed an "Amended Notice Of Appeal" in which they stated that they appealed "from the Nunc Pro Tunc Order filed on June 12, 1981, denying the special powers requested." 2
As previously recited, the evidence received at the hearing conducted on December 10, 1980, included testimony by respondent's mother and declarations by two physicians and a counselor. The evidence may be summarized and quoted as follows:
Respondent is 25 years old. She is "severely retarded as a result of Down's syndrome," and has an IQ of 30. She lives with appellants in their home. Her "social behavior in a lot of areas is not acceptable." This is particularly true with regard to men and boys, with whom she is "very aggressive" and "very affectionate" physically. The counselor described this behavior as "inappropriate sexual attention to adult males."
Appellants had attempted to have respondent take "birth control pills ..., which she rejected and became ill." Her mother testified that the use of contraceptive devices was not feasible because respondent "would not know how to apply them," and that there was no "possibility for an IUD [intrauterine device] at this time" because respondent "won't cooperate" in having a pelvic examination performed.
The mother also testified to her opinions that an IUD was not "medically safe," that tubal ligation was a "medically safe procedure," and that there was no "feasible alternative to tubal ligation at this time." Asked why she wanted to have respondent sterilized, the mother stated:
Both physicians stated in their declarations that they were "aware of the family's desire to have a tubal ligation performed" on respondent, and that the "procedure is advisable and medically appropriate." There was agreement among the three declarants
that pregnancy would cause "psychiatric harm" to respondent.
Probate Code section 2356, subdivision (d) (), effectively prohibits the sterilization of any person who is under conservatorship in proceedings conducted pursuant to the provisions of the Probate Code pertaining to guardianship and conservatorship. 3 As will appear in further detail, the statute was not in effect when the order under review was made; appellants and the probate court ignored this fact and treated the statute as if it were in effect; and appellants have accordingly presented the principal question on appeal in terms of a contention that the statute is unconstitutional. As will also appear, the chronology of the proceedings is such that we may affirm the order under review without regard to the constitutional challenge of the statute. These features of the appeal are discussed in the full chronology which is recited next.
In Guardianship of Kemp (1974) 43 Cal.App.3d 758, 118 Cal.Rptr. 64, a mentally incompetent ward appealed from an order of the probate court authorizing her guardian to have her sterilized. (Id., at p. 760, 118 Cal.Rptr. 64.) This court reversed the order on the grounds that the jurisdiction and powers of a probate court were "wholly statutory"; that no statute authorized it to order the sterilization of an incompetent ward; and that the order was therefore invalid for lack of jurisdiction. (Id., at pp. 761-762, 765, 118 Cal.Rptr. 64.) We observed that Welfare and Institutions Code section 7254 then established a "comprehensive scheme" for the sterilization of mentally incompetent persons who had been committed to state hospitals, and that "it may be concluded that the Legislature did not intend that sterilization of the mentally retarded was to be carried out without meeting the requirements" of that statute's prescribed "examination, notice, administrative hearings, administrative review, and judicial review." (Id., at p. 763, 118 Cal.Rptr. 64.) 4
In Guardianship of Tulley (1978) 83 Cal.App.3d 698, 146 Cal.Rptr. 266, cert. den., 440 U.S. 967, 99 S.Ct. 1519, 59 L.Ed.2d 783, a guardian petitioned the probate court for an order requiring the sterilization of his mentally incompetent ward; the petition was denied; and the guardian appealed. (Id., 83 Cal.App.3d at pp. 700-701, 146 Cal.Rptr. 266.) The Court of Appeal affirmed, principally on the authority of Kemp. (See id., at pp. 702-704, 146 Cal.Rptr. 266.) Avoiding a contention by the guardian that the probate court's refusal to order the sterilization violated the ward's constitutional right of privacy, the Tulley court pointed out that Welfare and Institutions Code section 7254, as it read at the time (see fn. 4, ante ), did not "erect an absolute bar" to the sterilization of mentally incompetent persons if they were "inmates of a mental hospital" and if the "procedural safeguards" prescribed in that statute were met. (83 Cal.App.3d at p. 705, 146 Cal.Rptr. 266.)
Significant statutory changes were made in two 1979 enactments. In the first one, the Legislature repealed Welfare and Institutions Code section 7254 effective January 1, 1980. (Stats.1979, ch. 730, § 156.5, p 2540; id., § 188, p. 2552.) In the second enactment, the Legislature adopted Probate Code section 2356 (). (Stats.1979, ch. 726, § 3.01, p. 2453.) The Legislature thereby followed a recommendation made by the California Law Revision Commission as part of a program for comprehensive changes in the statutes pertaining to guardianships and conservatorships. (See 14 Cal.Law Revision Com.Rep. (1978) pp. 501, 724-725; 15 Cal.Law Revision Com.Rep. (1980) pp. 451, 699-700.) The commission pointed out in a contemporaneous comment that the enactment of section 2356, subdivision (d), was "consistent" with Guardianship of Kemp, supra, 43 Cal.App.3d 758, 118 Cal.Rptr. 64, and Guardianship of Tulley, supra, 83 Cal.App.3d 698, 146 Cal.Rptr. 266. (15 Cal.Law Revision Com.Rep., supra, at p. 700.)
The 1979 enactment which added section 2356, subdivision (d), provided that it was not to become operative until January 1, 1981. (Stats.1979, ch. 726, § 4, p. 2454.) Although it was consequently not in effect when appellants applied to the probate court for the "power" to have respondent sterilized, they treated it as the principal impediment to the relief...
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