In re Conservatorship of John L.

• Decision Date: 31 August 2007
• Docket Number: No. D048654.,D048654.
• Citation: 65 Cal.Rptr.3d 393,154 Cal.App.4th 1090
• Court: California Court of Appeals Court of Appeals
• Parties: CONSERVATORSHIP OF the Person of JOHN L. San Diego Health & Human Services Agency, Petitioner and Respondent, v. John L., Objector and Appellant.

65 Cal.Rptr.3d 393

154 Cal.App.4th 1090

CONSERVATORSHIP OF the Person of JOHN L. San Diego Health & Human Services Agency, Petitioner and Respondent, v. John L., Objector and Appellant.

No. D048654.

Court of Appeal, Fourth District, Division 1.

August 31, 2007.

Linda M. Fabian, under appointment by the Court of Appeal, San Diego, for Objector and Appellant.

John J. Sansone, County Counsel, and Leonard W. Pollard II, Deputy County Counsel, for Petitioner and Respondent.

O'ROURKE, Acting P.J.

John L.¹ appeals from a judgment establishing a conservatorship for him under the Lanterman-Petris-Short Act (LPS Act, Welf. & Inst.Code, § 5000 et seq.). The trial court entered judgment after excusing John from appearing at the conservatorship establishment hearing (Welf. & Inst.Code, § 5350) on his appointed counsel's assertion that John did not contest the conservatorship and did not wish to be present. On appeal, John contends the judgment establishing a conservatorship was reversible error because the trial court (1) improperly proceeded with his LPS hearing in his absence without satisfying conditions excusing his mandatory presence under Probate Code section 1825, and (2) did not conduct on-record voir dire required by Probate Code section 1828. He further contends the conservatorship judgment violated his state and federal constitutional due process rights because the court did riot comply with the aforementioned statutory safeguards intended to minimize the risk of error, and consequently it did not have evidence from which it could reasonably determine he knowingly and intelligently waived his rights. While we agree that a proposed conservatee has both a statutory and procedural due process right to be present at his LPS conservatorship establishment hearing, we hold that appointed counsel may communicate a proposed conservatee's waiver of his or her right, and an effective waiver will be inferred by virtue of counsel's authority to act on his or her client's behalf with the client's consent. Because counsel's representation in this case was sufficient to establish that John had waived his right to be present, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2006, the public conservator filed an ex parte petition for the appointment of a temporary conservator and conservator for John based on allegations that he was gravely disabled as a result of a mental disorder or chronic alcoholism. Appended to the petition was a social worker's sworn declaration requesting waiver of the notice requirement on grounds there was insufficient time to conduct a conservatorship investigation and serve notice based on John's manic and disorganized condition, inability to care for himself, and refusal to take medication or accept treatment voluntarily. In a declaration filed in lieu of a conservatorship investigation report, John's treating physician, Christopher Gorman, M.D., averred he had diagnosed John with "Bipolar Disorder, manic c psychotic features." Dr. Gorman stated John was unable to provide for his needs for food, clothing and shelter based on the fact he took food from other patient trays, was evicted from his apartment, barricaded the door to his room requiring fire department intervention, often walked around with his shirt open, and had attempted to leave his room one night unclothed from the waist down. In a separate "Declaration and Notice to Patient of Intent to Recommend Conservatorship of the Person" provided to John, Dr. Gorman averred he had advised John of the fact and nature of the conservatorship petition, the possible orders that could result from a hearing on the petition, John's right to be present at the hearing, his right to hire an attorney of his choice or have one appointed for him, his right to a court or jury trial, and his right to confront and cross-examine witnesses and produce witnesses in opposition to the petition.² The court granted the ex parte petition and appointed a temporary conservator.

Thereafter, on March 17, 2006, the public conservator filed a "Citation for Conservatorship and Conservatorship Investigation Report" (Investigation Report) that included recommendations that the public conservator be appointed as John's conservator and that the least restrictive placement be a locked treatment facility. The Investigation Report, notice of hearing for the LPS conservatorship and ex parte petition were served on John's appointed counsel, Lidia Garcia. In the Investigation Report, the county investigator summarized John's lengthy history of mental illness dating back to the early 1960's and noted he had previously been diagnosed with schizophrenia, but stated he was currently diagnosed as "Bipolar Manic with Psychosis." She reported John had numerous past involuntary hospitalizations with a long history of medication noncompliance, a significant history of violent and obstreperous behavior when hospitalized, and an "extremely turbulent" present course at Palomar Hospital.³ The investigator stated she had met with John on March 3, 2006, at Palomar Hospital, where although he appeared sedated and exhibited delusions, he "made it clear that he did not want a Conservator and thought that he did not need any assistance." John was personally served with the citation for conservatorship and ex parte petition on March 20, 2006.

The hearing on John's petition took place on April 4, 2006, in John's absence. The matter consisted entirely of the following colloquy:

"[John's counsel]: Lidia Garcia on behalf of Mr. L[ ]. Your honor, 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.

"The Court: His presence is excused.

"[Mr. Pollard]: Leonard Pollard representing the Public Conservator, your honor. In each of these cases a petition has been filed requesting establishment of a conservatorship, along with a supporting medical report. The medical report recommends the rights and disabilities to be imposed upon the conservatee, the least restrictive level of placement, and the individual to be served as conservator. I would ask the court receive the reports into evidence and establish conservatorship as requested.

"[John's counsel]: No objection.

"The Court: Then in each case the report is received in evidence and the order will be in accordance with the recommendations therein." The minute order states counsel stipulated that the Investigation Report be admitted into evidence.

John appeals from the judgment.

DISCUSSION

John contends the court violated his statutory rights as well as his state and federal constitutional rights to due process by proceeding with his LPS hearing in his absence and accepting what amounted to a waiver of his trial rights without evidence that his waiver was knowingly and intelligently given. Specifically, John points to Probate Code section 1825's dictate that the proposed conservatee "shall be produced" at the LPS hearing, unless (among other exceptions) the "court investigator" reports to the court that the proposed conservatee is not willing to attend and does not contest the conservatorship or the proposed conservator. (Prob.Code., § 1825, subd. (a)(3).)⁴ He argues the stated exception was not met because the investigator in his case specifically stated in her Investigation Report that John did not want a conservator. John maintains that, as a consequence, the petitioner did not prove he knowingly and intelligently waived his hearing rights; in particular, his counsel's unsworn statements at the hearing were not evidence and did not suffice to constitute a waiver of his right to be present.

In response, respondent San Diego Health and Human Services Agency (Agency) argues Probate Code section 1825's conditions were met through John's appointed legal counsel (Welf. & Inst. Code, § 5365), who communicated John's wishes to the court at the hearing. Noting the differences between Probate Code conservatorship investigations and LPS conservatorship investigations, Agency argues the role of a court investigator in LPS proceedings is in effect filled by a proposed conservatee's appointed counsel, who may advise the court as to whether the conservatee is willing to attend or does not contest the conservatorship. Agency maintains counsel is not prohibited from waiving the proposed conservatee's presence at the LPS hearing.

I. Standard of Review

This court recently addressed the proper standard of review on a conservatee's claim of a procedural due process violation in Christopher A, supra, 139 Cal.App.4th 604, 43 Cal.Rptr.3d 427. Christopher A involved the trial court's adoption of a proposed judgment establishing a conservatorship and delineating placement, disabilities and conservator's powers without first consulting the conservatee and obtaining his on-the-record consent. (Id. at pp. 608-610, 43 Cal.Rptr.3d 427.) We stated, "Determining if the trial court adhered to a constitutional principle is solely a question of law. [Citation.] The issue of whether procedural due process requires court consultation with and consent of a conservatee on the record before imposing the placement, disabilities, and conservator powers included in a judgment approved by the conservatee's attorney (stipulated judgment) is a question of law. Therefore, we review this issue de novo." (Id. at pp. 609-610, 43 Cal.Rptr.3d 427.)

John's contentions here likewise raise issues of law, because the underlying facts are undisputed and the question of whether the trial court met the requirements relating to a proposed conservatee's presence at his or her LPS hearing...