T.B. v. O.B. (In re O.B.)

Decision Date26 February 2019
Docket Number2d Civil No. B290805
Citation32 Cal.App.5th 626,244 Cal.Rptr.3d 192
CourtCalifornia 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.

YEGAN, J.

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.

Factual and Procedural Background

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 ["The court shall hear and determine any matter at issue and any response or objection presented, consider evidence presented , and make appropriate orders" (italics added) ].)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: "My opinion is based on her intellectual functioning level. I believe that [she] has at least average intelligence. She’s high average in her nonverbal functioning." "[S]he is verbal. She’s able to talk about her likes and dislikes." In her report, Khoie concluded that although appellant "has a diagnosis of Autism

Spectrum Disorder," she "has the potential to live independently with support. She does not require a high level of supervision and decision making by a conservator."

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, "with his or her consent, shall be assessed at a regional center .... The regional center shall submit a written report of its findings and recommendations to the court."4 Khoie stated: "Dr. Jacobs recommended limited conservatorship concerning habilitation, education/training, medical and psychological services; access to confidential records, and the right to enter into a contract. Recommended power for education and medical treatment were reiterated. Dr. Jacobs did not recommend conservatorship for decision regarding place of residence." 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: "There seemed to be conflicting reports where certain professionals felt ... that she did lack capacity. And I believe Dr. Khoie was a professional that felt like she did have capacity and the conservatorship was not appropriate. So there seemed to be conflicting information."

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 "[s]he’s afraid of them. She’s afraid that she won’t be able to come back and see me." "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." "[S]he’s not in class to earn the grades. She’s not producing work to earn the 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, " ‘Are you going to wear a sweater today? Are you putting on clean underwear? Are you going to brush your hair? Did you brush your teeth? Did you take your pills? ... Is it hot out? Do you need to wear shorts?’ " Appellant asks mother, " ‘Can you lay my clothes out for me. ... Can you turn the shower on.’ " 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 "people who are just nice to her .... She will go off with people she shouldn’t and trust people she shouldn’t. It’s dangerous." 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...

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