Conservatorship the Pers. of O.B. T.B. v. O.B.

• Decision Date: 27 July 2020
• Docket Number: S254938
• Citation: 470 P.3d 41,9 Cal.5th 989,266 Cal.Rptr.3d 329
• Court: California Supreme Court
• Parties: CONSERVATORSHIP OF the Person of O.B. T.B. et al., as Coconservators, etc., Petitioners and Respondents, v. O.B., Objector and Appellant.

9 Cal.5th 989

470 P.3d 41

266 Cal.Rptr.3d 329

CONSERVATORSHIP OF the Person of O.B.

T.B. et al., as Coconservators, etc., Petitioners and Respondents,

v.O.B., Objector and Appellant.

S254938

Supreme Court of California.

July 27, 2020

Gerald J. Miller, under appointment by the Supreme Court, for Objector and Appellant.

Greines, Martin, Stein & Richland, Robert A. Olson and Edward L. Xanders, Los Angeles, for Association of Southern California Defense Counsel as Amicus Curiae on behalf of Objector and Appellant.

Keiter Appellate Law and Mitchell Keiter for Protecting Our Elders as Amicus Curiae on behalf of Objector and Appellant.

Law Offices of Laura Hoffman King, Laura Hoffman King, Orcutt; Tardiff Law Offices, Neil S. Tardiff ; and Shaun P. Martin, San Diego, for Petitioners and Respondents.

Nelson & Fraenkel and Gretchen M. Nelson, Los Angeles, for Consumer Attorneys of California as Amicus Curiae on behalf of Petitioners and Respondents.

Rita Himes for Legal Services for Prisoners with Children as Amicus Curiae.

Horovitz & Levy, Curt Cutting, Jeremy B. Rosen, Burbank; U.S. Chamber Litigation Center and Janet Galeria for Chamber of Commerce of the United States as Amicus Curiae.

Thomas F. Coleman ; Fitzgerald Yap Kredito and Brook J. Changala, Santa Ana, for Spectrum Institute, TASH, and Siblings Leadership Network as Amici Curiae.

Opinion of the Court by Cantil-Sakauye, C. J.

Measured by the certainty each demands, the standard of proof known as clear and convincing evidence — which requires proof making the existence of a fact highly probable — falls between the "more likely than not" standard commonly referred to as a preponderance of the evidence and the more rigorous standard of proof beyond a reasonable doubt. We granted review in this case to clarify how an appellate court is to review the sufficiency of the evidence associated with a finding made by the trier of fact pursuant to the clear and convincing standard.

The issue arises here after the probate court appointed limited coconservators for O.B., a young woman with autism

. In challenging this order, O.B. argues that the proof before the probate court did not clearly and convincingly establish that a limited conservatorship was warranted. (See Prob. Code, § 1801, subd. (e) ["The standard of proof for the appointment of a conservator pursuant to this section shall be clear and convincing evidence"].)

There is a split of opinion over how an appellate court should address a claim of insufficient evidence such as the one advanced here. One approach accounts for the fact that the clear and convincing standard of proof requires greater certainty than the preponderance standard does. Courts adopting this view inquire whether the record developed before the trial court contains substantial evidence allowing a reasonable factfinder to make the challenged finding with the confidence required by the clear and convincing standard. (E.g., T.J. v. Superior Court (2018) 21 Cal.App.5th 1229, 1239-1240, 230 Cal.Rptr.3d 928 ( T.J. ).) Another position maintains that the clear and convincing standard of proof has no bearing on appellate review for sufficiency of the evidence. (E.g., In re Marriage of Murray (2002) 101 Cal.App.4th 581, 604, 124 Cal.Rptr.2d 342.) From this perspective, a court reviewing a finding requiring clear and convincing proof surveys the record for substantial evidence, without also considering whether this evidence reasonably could have yielded a finding made with the specific degree of certainty required by the clear and convincing standard.

We conclude that appellate review of the sufficiency of the evidence in support of a finding requiring clear and convincing proof must account for the level of confidence this standard demands. In a matter such as the one before us, when reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable factfinder could have found it highly probable that the fact was true. Consistent with well-established principles governing review for sufficiency of the evidence, in making this assessment the appellate court must view the record in the light most favorable to the prevailing party below and give due deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence.

Because the Court of Appeal below took the position that the clear and convincing standard of proof " ‘ "disappears" ’ " on appeal ( Conservatorship of O.B. (2019) 32 Cal.App.5th 626, 633, 244 Cal.Rptr.3d 192 ) when it rejected O.B.’s challenge to the sufficiency of the evidence, we reverse.

I. BACKGROUND

In August 2017, respondents T.B. and C.B. filed a petition in Santa Barbara County Superior Court requesting that they be appointed as limited coconservators for O.B., a young woman with autism

spectrum disorder. T.B. and C.B. are O.B.’s mother and older sister, respectively. At the time T.B. and C.B. filed their petition, O.B. was 18 years old and resided with her great-grandmother, L.K., in Santa Barbara County.

The public defender was appointed as counsel for O.B. (See Prob. Code, § 1471.) A contested evidentiary hearing was held in the probate court to determine whether a limited conservatorship should be imposed. This hearing was conducted across several court sessions occurring between September 2017 and May 2018, with the probate court judge sitting as the trier of fact. Several witnesses testified at the hearing. Among them, T.B., C.B., L.K., and a cousin of O.B. testified to their interactions with and observations of O.B. Dr. Kathy Khoie, a psychologist, testified that in her opinion, O.B. was not a proper candidate for a limited conservatorship.

Christopher Donati, an investigator with the Santa Barbara County Public Guardian's Office, similarly testified that he did not feel a limited conservatorship was necessary.

Before ruling on a limited conservatorship, the judge stated that he had "been involved in numerous hearings, and [O.B.] has been at all of them or most of them. So in addition to some of the different witnesses I am entitled to base my decision based in part on my own observation of [O.B.] at the proceedings." The judge found that a limited conservatorship was "appropriate" and appointed T.B. and C.B. as limited coconservators. The parties were asked if any requested a statement of decision. No one did, and the judge did not otherwise explain in detail how he had arrived at his findings. He said, "I can go through and comment on everybody's testimony. I don't see any reason to do that. The reviewing court can look at the record."

O.B. appealed, raising several claims of error. The Court of Appeal affirmed. As relevant here, the appellate court rejected O.B.’s argument that the evidence before the probate court was insufficient to justify the appointment of limited coconservators. In making this argument, O.B. explained that the clear and convincing standard of proof applies to the decision to appoint a limited conservator and argued that the Court of Appeal "must apply the same standard in determining whether ‘substantial evidence’ supports the judgment." ( Conservatorship of O.B. , supra , 32 Cal.App.5th at p. 633, 244 Cal.Rptr.3d 192.) In finding the evidence sufficient, the Court of Appeal observed that, contrary to O.B.’s position, " ‘The "clear and convincing" standard ... is for the edification and guidance of the trial court and not a standard for appellate review. [Citations.] " ‘The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal.’ [Citations.]" [Citation.] Thus, on appeal from a judgment required to be based upon clear and convincing evidence, "the clear and convincing test disappears ... [and] the usual rule of conflicting evidence is applied, giving full effect to the respondent's evidence, however slight, and disregarding the appellant's evidence, however strong." [Citation.]’ [Citation.]" ( Id ., at pp. 633-634, 244 Cal.Rptr.3d 192.)¹

We granted review.

II. DISCUSSION

Our analysis of the issue before us begins with an explanation of the clear and convincing standard of proof and a survey of its various applications. We next assess how appellate courts have perceived their role in reviewing claims that the evidence before the trial court did or did not satisfy the clear and convincing standard. Ultimately, we conclude that logic, sound policy, and precedent all point toward the same conclusion: When reviewing a finding made pursuant to the clear and convincing standard of proof, an appellate court must attune its review for substantial evidence to the heightened degree of certainty required by this standard.

A. Clear and Convincing Evidence as a Standard of Proof

A " ‘[b]urden of proof’ means the obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court." ( Evid. Code, § 115.) "The burden of proof may require a party to ... establish the existence or nonexistence of a fact by a preponderance of the evidence, by clear and convincing proof, or by proof beyond a reasonable doubt." (Ibid .) The standard of proof that applies to a particular determination serves "to instruct the fact finder concerning the degree of confidence our society deems necessary in the correctness of factual conclusions for a particular type of adjudication, to allocate the risk of error between the litigants, and to indicate the relative importance attached to the ultimate decision." ( Conservatorship of Wendland (2001) 26 Cal.4th 519, 546, 110 Cal.Rptr.2d 412, 28 P.3d 151 ( Wendland );...