Edward v. Lamkins

• Decision Date: 20 June 2002
• Docket Number: No. A096401.,A096401.
• Citation: 122 Cal.Rptr.2d 1,99 Cal.App.4th 516
• Parties: EDWARD W., Jr., an Incompetent Person, etc., Plaintiff and Appellant, v. Gail LAMKINS, as Public Guardian, etc., Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

122 Cal.Rptr.2d 1

99 Cal.App.4th 516

EDWARD W., Jr., an Incompetent Person, etc., Plaintiff and Appellant, v. Gail LAMKINS, as Public Guardian, etc., Defendant and Respondent.

No. A096401.

Court of Appeal, First District.

June 20, 2002.

Review Denied October 2, 2002.

Morton P. Cohen, Michael John Stortz, San Francisco, for Appellant.

Dennis Bunting, County Counsel, Wendy Gomez Getty, Assistant County Counsel, and Geoffrey Scott Allen, Deputy County Counsel, for Respondent.

Public Interest Law Firm, Kyra Kazantzis, San Jose, James F. Zahradka, Mental Health Advocacy Project, Dan Brook, Alison Brunner, San Jose, Mental Health Advocacy Services, James Preis, for Amici Curiae CAMHPRA.

KLINE, P.J.

Edward W., Jr., by his guardian ad litem, Connie Steers, appeals from the trial court's denial of his petition for a writ of mandate. Appellant challenges what he views as the Solano County Public Guardian's practice of failing to provide notice to individuals detained in psychiatric treatment facilities before obtaining temporary conservatorships to allow an additional 30 days of treatment. He argues the temporary conservatees have a due process right to notice and an opportunity to be heard before establishment of the conservatorship; prior notice is required by Probate Code section 2250, subdivision (c); the absence of notice violates his right to equal protection; and the trial court erred in concluding it had no authority to grant the requested relief.

STATEMENT OF THE CASE AND FACTS

This action challenges the ex parte appointment of temporary conservatorships for individuals determined to be gravely disabled within the meaning of the Lanterman Petris Short Act (LPS) (Welf. & Inst. Code,¹ §§ 5000, et seq.). Under section 5150, a person who, "as a result of mental disorder, is a danger to others, or to himself or herself, or gravely disabled," may be taken into custody and placed in a designated facility for 72 hours of treatment and evaluation. The person may then be certified for 14 days of intensive treatment if the evaluation determines he or she is "gravely disabled" or a danger to self or others as a result of a mental disorder, and he or she is unable or unwilling to accept voluntary treatment. (§ 5250.) At the conclusion of the 14-day period, the person may be certified for an additional period of up to 30 days of intensive treatment if he or she remains gravely disabled and unable or unwilling to accept treatment voluntarily. (§§ 5270.15, 5270.20, 5270.25, 5270.30.)

Prior to the end of these certification periods, the person in charge of the facility providing treatment may recommend establishment of a conservatorship, if the patient is "gravely disabled as a result of mental disorder" and unwilling to accept or incapable of accepting treatment voluntarily. (§§ 5350, 5352.) A temporary conservator may be appointed for no more than 30 days (§ 5352.1); a permanent conservatorship may be established for up to one year, at the end of which the conservator may petition for reappointment for successive one-year periods. (§ 5361.) When a conservatorship is sought, the proposed conservatee may be held in the facility providing intensive treatment for no more than three days beyond the designated period for intensive treatment "if the additional time period is necessary for a filing of the petition for temporary conservatorship and the establishment of the temporary conservatorship by the court." (§ 5352.3.)

A proposed temporary conservatee is entitled to five days' notice of the proceeding, unless the court orders otherwise for good cause. (Prob.Code, § 2250.)

When a petition for conservatorship is filed, the proposed conservatee has a right to demand a court hearing or jury trial on the issue of whether he or she is gravely disabled, to appear at the hearing and to be represented by counsel. (§ 5350.)² When a conservator petitions for reestablishment of the conservatorship, the conservatee, as well as his or her attorney, must be notified and has a right to a court hearing or jury trial on the question whether the conservatee remains gravely disabled. (§ 5362.)

On April 25, 2000, appellant was taken into custody and placed in a facility pursuant to section 5150. On April 28, appellant was certified for 14 days of intensive treatment, until May 12, 2000, pursuant to section 5250. On May 10, the professionals in charge of Telecare Solano Psychiatric Facility, where appellant was detained, recommended a one-year conservatorship and temporary conservatorship pursuant to section 5352. The recommendation stated that appellant was cooperating with oral medications but refusing to take Prolixin Decanoate medications, on which he did best in the community. Issuance of the recommendation extended the period of appellant's certification to May 15, 2000, pursuant to section 5352.3. The recommendation was received by the officer providing conservatorship investigation for Solano County, Walter Boggan, on May 11.

On May 12, 2000, the office of respondent, the Solano County Public Guardian, prepared a petition to appoint a temporary conservator and a one-year conservator for appellant under sections 5350, 5352.1 and 5353 and Probate Code section 2250. The petition stated, among other things, that appellant was "not presently receiving treatment for grave disability and [was] in need of involuntary treatment before a hearing [could] be calendared and heard for the appointment of a permanent conservator." The petition sought a waiver of the five days' notice generally required under Probate Code section 2250, subdivision (c), for appointment of a temporary conservator because "it is necessary that the proposed conservatee continue to receive treatment." The facility where appellant was receiving treatment is located about a 10 minute drive from respondent's office. Respondent testified that once a petition for appointment of a conservator had been prepared, it would take approximately one hour to personally serve the documents on an individual at the Telecare facility.

On May 15, the petition for a notice waiver was granted by the Solano County Superior Court and respondent was appointed as appellant's temporary conservator. On May 18, respondent served appellant by mail with a copy of the order appointing the conservator, a May 17 order appointing an attorney, letters of temporary conservatorship and the May 12 conservatorship petition, which ordered that five days' notice was not to be required. The documents were mailed to appellant at Telecare. By May 18, however, appellant had been transferred to the Crestwood Behavioral Center.

On May 31, 2000, appellant filed the present petition for a peremptory writ of mandate and declaratory relief against respondent, on behalf of himself and others similarly situated. Appellant requested the court to declare that "persons institutionalized under Sections 5150 or 5250, W & I Code, for whom temporary conservatorships are sought under the Welfare & Institutions Code have a right to five days written notice as is mandated by the Probate Code prior to the creation of a temporary conservatorship, or at least reasonable prior written notice of the petition for a temporary conservatorship sufficient to enable them to respond." Appellant sought an order directing respondent to "give such notice of the petition for a temporary conservatorship as is mandated by the Probate Code prior to filing petitions for a temporary conservatorship" and to inform potential conservatees in such notice that they have a right to respond to the petition. Appellant additionally requested the court to declare that "persons for whom temporary conservatorships are sought under the Welfare & Institutions Code have a right to respond to the petition for a temporary conservatorship prior to the creation of a temporary conservatorship."

On June 9, 2000, Connie Steers was appointed guardian ad litem to prosecute the present action, which was consolidated with the pending conservatorship case. The conservatorship was terminated by the superior court on June 29, 2000, on respondent's motion.

Respondent's return to the petition for a writ of mandate was filed on July 10, 2000. Respondent argued that the issues raised in the petition were moot because appellant's conservatorship had been terminated; that appellant had not named the appropriate respondent because he was seeking to vacate an order of the superior court; that review of the trial court's order could only be obtained in a court of superior jurisdiction, and appellant had not attempted to obtain such review; that respondent did not abuse her discretion in seeking ex parte appointment of the conservator; and that Probate Code section 2250 does not violate due process or equal protection guarantees. Appellant's reply was filed on July 25, 2000.

After a hearing on August 22, the trial court determined that the issues raised in the petition were not moot;³ that the petition pled a cause of action against respondent; that the petition was filed in the proper court; and that an evidentiary hearing was required for determination of whether appellant had other available remedies and whether respondent's conduct or Probate Code section 2250 violated appellant's constitutional rights.

The evidentiary hearing was held on May 2 and 3, 2001. Greta Jenkins testified that she was employed as a deputy public defender in Solano County from June 1998 to March 2000, during which time she handled approximately 300 conservatorship cases. Respondent was the petitioner in the majority of these cases. Jenkins estimated that about 50 to 75 of these cases were Probate Code conservatorships, approximately 25 of which involved requests for temporary conservatorships. In all of these cases, the prospective temporary conservatee was personally served with prior notice. The other approximately 250 cases Jenkins handled were conservatorships under the Welfare and...