T.B. v. O.B. (In re O.B.)
| Decision Date | 26 February 2019 |
| Docket Number | 2d Civil No. B290805 |
| Citation | 32 Cal.App.5th 626,244 Cal.Rptr.3d 192 |
| Court | California Court of Appeals Court of Appeals |
| Parties | CONSERVATORSHIP OF the Person of O.B. T.B. et al., as Coconservators, etc., Petitioners and Respondents, v. O.B., Objector and Appellant. |
Gerald J. Miller, under appointment by the Court of Appeal for Appellant.
Law Offices of Laura Hoffman King and Laura Hoffman King, Orcutt; Tardiff Law Offices and Neil S. Tardiff for Respondents.
O.B. is a person with autism
spectrum disorder (autism ).1 She appeals from an order establishing a limited conservatorship of her person and appointing respondents T.B., her mother (mother), and C.B., her elder sister, as conservators. Appellant’s principal contentions are (1) the probate court acted in excess of its jurisdiction by modifying her special education plan, and (2) the evidence is insufficient to support the probate court’s findings.
A person with autism
is not automatically a candidate for a limited conservatorship. Each case requires a fact-specific inquiry by the probate court. "Autism is known as a ‘spectrum’ disorder because there is wide variation in the type and severity of symptoms people experience." (https://www.nimh.nih.gov/health/topics/autism-spectrum-disorders-asd/index.shtml.) Based on the facts here, we affirm the order establishing a limited conservatorship of appellant’s person.
The limited conservatorship was imposed after a contested evidentiary hearing (also referred to herein as "trial"). Our summary of the facts is based on evidence presented at the trial in the form of testimony and exhibits. We disregard respondents’ summary of the facts based upon reports and declarations that were neither offered nor received in evidence. During the parties’ closing argument, the probate court made clear that it would consider only evidence presented at the trial: "We have had lengthy proceedings outside of the evidentiary proceeding, so you need to limit your arguments to the record inside of the evidentiary proceeding." (See also Prob. Code, § 1046 [].)2 Moreover, because the evidentiary hearing was contested, declarations were inadmissible pursuant to section 1022.3
In August 2017 respondents filed a verified petition requesting that they be appointed limited conservators of appellant’s person. The petition alleged that appellant had been diagnosed with autism
and "is unable to properly provide for ... her personal needs for physical health, food, clothing, or shelter."
When the petition was filed, appellant was 18 years old. She was living with her great-grandmother in Lompoc, County of Santa Barbara, and was repeating the 12th grade at Cabrillo High School. She had been living with her great-grandmother since she was three or four years old. Mother resided in Orange County.
An expert witness, Dr. Kathy Khoie, testified on appellant’s behalf. Khoie, a psychologist, opined that appellant "is not a candidate for conservatorship." Khoie explained: In her report, Khoie concluded that although appellant "has a diagnosis of Autism
Spectrum Disorder," she
In her report Khoie said she had reviewed the "Conservator Evaluation" report of the "Tri-Counties Regional Center." The regional center report, which was neither offered nor received in evidence, was prepared by David Jacobs, Ph.D. Section 1827.5, subdivision (a) provides that the proposed limited conservatee, 4 Khoie stated: Since Dr. Khoie’s report was received in evidence without objection, we may consider her report’s reference to Dr. Jacobs’ recommendations even though Dr. Jacobs’ report was not received in evidence. (See Estate of Nicholas , supra , 177 Cal.App.3d at p. 1088, 223 Cal.Rptr. 410.)
Appellant’s other expert witness, Christopher Donati, is the probate investigator for the Santa Barbara County Public Guardian’s Office. Pursuant to a "non-court ordered" referral, he met with appellant and evaluated her "to determine if conservatorship was appropriate." Appellant said she "was opposed to the idea of a conservatorship." She wanted to continue living with her great-grandmother in Lompoc and continue attending Cabrillo High School. Donati spoke to mother, who said "she was hoping to move [appellant] and have her attend a different educational institution and begin regional services where [mother] resides [in Orange County]." Donati opined that he did not "see any ... way that the conservatorship would benefit [appellant] at this point." His primary concern was the removal of appellant from her great-grandmother’s home. The removal could cause her to "experience trauma."
Donati reviewed Dr. Jacobs’ regional center report as well as the "capacity declaration by Dr. [Cindy] Blifeld." Her declaration was neither offered nor received in evidence, but Donati testified that Dr. Blifeld’s declaration contained the required "medical component [for a limited conservatorship] where a medical professional is in support of a conservatorship and [declares] that they feel that the ... potential conservatee lacks capacity." Dr. Blifeld "did feel that ... [appellant] lacked capacity." Donati continued:
L.K. is appellant’s 82-year-old great-grandmother. She testified that, since the conservatorship proceedings began, appellant has been "a nervous wreck." L.K. opined that appellant does not need a conservatorship and can take care of herself "[a]s much as any teenager can." She also opined that it was "a bad idea for [appellant] to live with her mom and her dad and her sisters" because "Her mother yells and swears at her and takes her electronics ... away from her."
Mother testified: For the past 10 years, she has had "[n]early daily" contact with appellant. Mother lives with appellant’s father and two sisters in a "large five bedroom home" in Orange County. She "filed the petition to basically protect [appellant] from the school [Cabrillo High School in Lompoc] and then long term just [to] protect her." Appellant "has had ... like 160 missed class periods, but she still manages to get passing grades, even high grades, in all of her academics." Mother referred to the grades as " ‘get this kid out of my class’ grades." Sometimes the school placed appellant in detention for the entire day.
If the requested conservatorship were established, mother said appellant would attend El Modena High School in the Orange County School District. Mother asserted that this school is "one of the highest rated schools in the district and has a really good reputation for their special education program." Mother spoke to the "special education coordinator of the district."
Mother further testified: Appellant needs guidance in making routine decisions and assistance in performing daily tasks. Appellant "really struggles with taking in information needed to make decisions." Mother needs to ask her, " " Appellant asks mother, " " Mother, appellant’s father, or her great-grandmother "handles her medication." Appellant cannot cook or do her laundry. Appellant has "behavioral outbursts" where she will "run off or scream and yell." She "screams and yells and fights and gets her way no matter what she does, ... and it stresses her out and makes her upset."
Mother also testified that appellant is too trusting of other people. She will trust Two years ago, appellant "ran off" to see "Sponge Bob on Hollywood Boulevard." She trusts Sponge Bob.5 She also trusts "all of her family and anyone at school, anyone she’s seen before, people at restaurants, restaurant staff." If a person she trusts asks her to sign a document, "she’ll just sign it no matter what." If "you’re explaining [the document], she doesn’t really care."
Tammi L. Faulks, appellant’s guardian ad litem, filed an action against the Lompoc Unified School District claiming that appellant had not "received the education to which she was entitled." Faulks sought to "get the school district to either set aside a compensatory education fund [for appellant] or allow [her] to continue to obtain high school services and all of...
To continue reading
Request your trial
- Conservatorship the Pers. of O.B. T.B. v. O.B.
- Carlisle v. Carlisle (In re Carlisle)
- Moland v. McWane, Inc.
-
Taylor T. v. Anthony N. (In re Aubrey T.)
...to the Family Code.2 The California Supreme Court has granted review in Conservatorship of O.B. (Cal.App. 2 Dist. May 1, 2019, S254938) 32 Cal.App.5th 626, limited to the following question: "On appellate review in a conservatorship proceeding of a trial court order that must be based on cl......
-
Chapter 2 - §13. Judicial notice
...31 Cal.App.5th 899, 912 n.4 (court took judicial notice of peso's value on particular date); Conservatorship of O.B. (2d Dist.2019) 32 Cal.App.5th 626, 631 n.5 (court took judicial notice of certain cartoon character's depiction as good-natured, optimistic, naive, and enthusiastic yellow se......
-
Table of Cases null
...XII, LLC, 42 Cal. App. 5th 546, 255 Cal. Rptr. 3d 596 (1st Dist. 2019)—Ch. 4-C, §1.6.1(1)(a); §4.3.3(1) O.B., Conservatorship of, 32 Cal. App. 5th 626, 244 Cal. Rptr. 3d 192 (2d Dist. 2019)—Ch. 2, §13.1.2(9) Ochoa v. Davis, 16 F.4th 1314 (9th Cir. 2021)—Ch. 4-C, §1.4.3(2)(a)[2][a]; §1.4.3(2......
-
Tips of the Trade: New Standard for Appellate Review of Findings Supported by Clear and Convincing Evidence
...1034.20. In re Michael G. (2012) 203 Cal.App.4th 580, 589.21. Civil Appeals & Writs, supra, at 8:43.22. Conservatorship of O.B. (2019) 32 Cal.App.5th 626.23. Id. at 628-632.24. Prob. Code, section 1801, subd. (e).25. Conservatorship of O.B., supra, 32 Cal.App.5th at pp. 633-634.26. Id. at 6......
-
Appeals and Writs
...evidence" standard governs de novo review of order denying summary adjudication on punitive damages].91. Conservatorship of O.B. (2019) 32 Cal.App.5th 626, 633.92. (2019) 33 Cal.App.5th 230.93. Id. at pp. 233-234.94. Id. at p. 260.95. Id. at pp. 249-260, 262.96. Id. at p. 260.97. Id. at pp.......