Conservatorship of D.N.

Filed 2/19/10 Conservatorship of D.N. cA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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L. H., the conservator and mother of conservatee D. N., appeals from an order suspend[ing] her as conservator and appointing the Sacramento County Public Guardians Office (public guardian) successor conservator.

On appeal, L. H. and D. N. (who is a respondent) contend the court erred in suspending L. H. as conservator, trial counsel for D. N. did not have standing to bring the motion to suspend her, and in any event, he was ineffective for doing so against D. N.s wishes.

The public guardian responds the suspension order is not appealable and the appeal is moot. She further responds the court did not abuse its discretion by suspending L. H. as conservator.

As to the mootness issue, we rejected an identical argument in an order filed September 17, 2009, which we issued in response to the public guardians motion to dismiss filed approximately two months before she filed her respondents brief. We need not address the issue again.

As to the appealability issue, we find the order appealed from is actually an order removing L. H. as conservator (as opposed to simply suspending her) and appointing the public guardian as successor conservator. As such, it is appealable.

As to the standing and ineffective assistance of counsel issues, we find them irrelevant to the resolution of the case. D. N.s counsel brought a motion to temporarily suspend L. H. as conservator, and that motion was superseded by the public guardians motion to appoint the public guardian successor guardian, which the court granted.

Finally, as to the merits, we find the court did not abuse its discretion in removing L. H. as conservator. As such, we affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND[1]

D. N. has an extensive history of mental illness, including schizoactive disorder and antisocial personality disorder, that began when he was a teenager in the 1980s. (Conservatorship of the Person and Estate of [D. N.], supra, C057603, at p. 2.) He was found to be gravely disabled, and the public guardian was appointed conservator of his person and estate. (Ibid.)

He was initially admitted to the Sacramento County Mental Health Treatment Center (county treatment center), and over the next 16 years he was moved to different facilities due to repeatedly leaving the facilities without permission and exhibiting highly aggressive behavior and poor medical compliance. (Conservatorship of the Person and Estate of [D. N.], supra, C057603, at p. 2.)

In September 2000, he was referred to Napa State Hospital and lived there until June 2004. (Conservatorship of the Person and Estate of [D. N.], supra, C057603, at p. 2.) During that period, L. H. was appointed D. N.s successor conservator. (Ibid.)

L. H. felt that D. N. was deteriorating at Napa State Hospital and insisted he be placed in community facilities. (Conservatorship of the Person and Estate of [D. N.], supra, C057603, at p. 3.) In June 2004, he was returned to the county treatment center. (Ibid.)

In September 2006, the County of Sacramento (the county) informed L. H. she needed to find somewhere else to place D. N. (Conservatorship of the Person and Estate of [D. N.], supra, C057603, at p. 3.) The county believed he should be placed at Napa State Hospital, noting the exhaustive yet unsuccessful efforts that had been made to place D. N. at lesser levels of intensive restrictiveness. (Ibid.)

Despite referrals to numerous facilities, D. N. was denied admission to all due to his previous behavior and the need for a level of care those facilities were unable to provide. (Conservatorship of the Person and Estate of [D. N.], supra, C057603, at p. 3.)

In April 2007, L. H. toured Napa State Hospital but found the conditions unsatisfactory. (Conservatorship of the Person and Estate of [D. N.], supra, C057603, at p. 4.) The county, however, continued to recommend D. N. be placed there because it was the only facility that would both take him and provide him adequate care (i.e., a secure locked setting with a highly professional staff). (Id. at p. 5.)

In November 2007, the court held a trial on the proper placement for D. N. The court found [t]he least restrictive placement for [D. N.] is Napa State Hospital and ordered he be placed there forthwith. It further ordered L. H. to cooperate with Sacramento County Mental Health Intensive Placement Team and sign all consent forms necessary to facilitate the placement of [D. N.] at Napa State Hospital consistent with this order.

L. H. refused to do as ordered. The same day as the courts order, she refused to sign the application for voluntary admission to Napa State Hospital and provided her signature on the admission form only with the handwritten caveat that her consent [was] limited to 60 days. She also refused to sign the consent form for D. N.s examination or treatment.

In December 2007, L. H. refused to sign the forms when requested to do so by the intensive placement team. She repeatedly denied receiving faxes of the consent forms that were sent to her by an employee of the intensive placement team, although the employee received confirmation the forms had been sent. At times, she also claimed the faxes she did receive were of different forms.

On February 7, 2008, at a progress report hearing, [a]fter much reluctance, L. H. signed the forms to effectuate the placement referral to Napa State Hospital. However, only two weeks later, she in essence revok[ed] that consent by sending a letter to the hospitals director of admissions stating she agreed to commit D. N. to the hospital [u]nder extreme duress and now require[d] the hospital get her consent before any changes in [D. N.s] medications or treatments.

Four days after L. H. sent the letter, Napa State Hospital denied D. N. admission, citing in detail L. H.s past and present behavior that would preclud[e] any meaningful treatment.

On March 13, 2008, the attorney for D. N. filed an ex parte application to suspend the powers of L. H. and appoint the public guardian as temporary conservator. The application was based on L. H.s failure to comply with the courts order to facilitate D. N.s placement at Napa State Hospital.

The court held a hearing on the application the next day. Present were L. H., the attorney for D. N., and the attorney for the public guardian. The evidence was presented by way of an offer of proof by the attorney for D. N., a procedure to which the parties consented. The attorney then recounted the courts finding that the least restrictive and most appropriate alternative for placement was Napa State Hospital; L. H. failed to facilitate that placement; and because of that failure, the hospital denied D. N. admission. The attorney for D. N. argued it was in D. N.s best interest that [L. H.]s powers be suspended and that the [p]ublic [g]uardian be appointed as the temporary conservator of the person . . . [to] effectuate [D. N.]s placement program and treatment program.

The attorney for the public guardian ask[ed] the Court . . . to appoint the [p]ublic [g]uardian as the successor conservator and not a temporary conservator. In the attorneys view, a successor conservatorship is the appropriate method and would allow the [p]ublic [g]uardians office to act as the conservator. He urged the court to suspend the powers of . . . [L. H.] and appoint the [p]ublic [g]uardian at this time successor conservator and not temporary.

L. H. testified she could not give a blanket consent to Napa State Hospital, which had a substandard, unsafe facility that had shortages of staff, that had 50 percent vacancies in its pharmacy, who did not even have a director of pharmacy . . . . She had the duty and the obligation to safeguard [her] conservatee.

After hearing evidence and arguments, the court ruled as follows: [T]he Court will grant the motion to suspend . . . and will also grant the . . . motion that was also advanced to replace [L. H.] as conservator, at least for the time being, by the Public Guardian. On request for clarification by the attorney for the public guardian, the court confirmed that the [p]ublic [g]uardian . . . would be appointed as successor conservator of both [the] person and the [e]state.

L. H. filed a timely notice of appeal from this order.

DISCUSSION

I

The Order Is Appealable

Probate Code[2] section 1301, subdivision (a), designates the following orders as appealable: Granting or revoking of letters of guardianship or conservatorship, except letters of temporary guardianship or temporary conservatorship.

The public guardian contends the order here was only an interim suspension of the conservator, given the courts comment it was suspending L. H. and replacing her at least for the time being with the public guardian.

Admittedly, the courts order was ambiguous. It purported to simultaneously suspend (as opposed to remove) L. H. as conservator but then appoint the public guardian as successor conservator (as opposed to temporary conservator). By granting the public guardians motion to appoint the public guardian the successor conservator and not a temporary conservator, which the court clarified it was doing at her insistence, the court was in reality revoking [L. H.s] letters of . . . conservatorship. ( 1301, subd. (a).) There are no provisions in the law allowing for the appointment of a successor conservator when the conservator has been only temporarily suspended.

Contrary to the public guardians position, the court was not merely suspend[ing] the powers of the conservator from March 14, 2008 until May 8, 2008, when she claims a subsequent hearing was scheduled on the petition to remove the conservator. As the courts order stated, the May 8 hearing was for a progress report on placement. There was no time at which L. H.s powers as conservator would simply come back to life.

To be sure, there are statutory provisions providing for suspension of the powers of a conservator ( 2653, subd. (a)), the appointment of a temporary conservator ( 2250), and designation of time frames at which the powers of a temporary conservator terminate ( 2257). Here, though, the court specifically designated the public guardian as successor conservator, and although the court commented it was replacing L. H. with the public guardian at least for the time being, its order appointing the public guardian was not temporary in scope, and as such, effectuated the removal of L. H. as the conservator.

On this record, the courts order granting the public guardians motion to be appointed successor conservator resulted in the removal of L. H. as conservator and superseded the order simply suspending her as conservator. The operative order, therefore, falls within the ambit of section 1301, subdivision (a), making appealable an order revoking letters of conservatorship.

With this understanding of the operative motion and order in mind, we turn briefly to the issues of standing and ineffective assistance of counsel.

II

The Standing And Alleged Ineffectiveness Of D. N.s Trial Attorney Are Not Germane To This Appeal

L. H. contends the court should have denied the motion to suspend her as conservator filed by D. N.s attorney because the attorney lacked standing to bring the motion. Our discussion above makes this contention a nonissue. As we have just explained, the courts order granting the public guardians motion to appoint the public guardian successor conservator superseded the order simply suspending L. H. as conservator. As such, the suspension motion filed by D. N.s attorney and whether the attorney even had standing to bring it are not germane here.

A similar analysis applies to the arguments raised by L. H. and D. N. that D. N.s attorney was ineffective for seeking to suspend L. H. as the conservator against D. N.s wishes. Counsels alleged ineffectiveness in seeking an order for suspension is not germane here. The operative motion was the one raised by the public guardian seeking to be successive conservator, which could not be accomplished if L. H. had been temporarily suspended as opposed to removed. As such, we turn next to the crux of this appeal -- whether the removal of L. H. was an abuse of discretion.

III

The Court Did Not Abuse Its Discretion

In Removing L. H. As Conservator

A conservator may be removed for [c]ontinued failure to perform duties or incapacity to perform duties suitably or any other case in which the court in its discretion determines that removal is in the best interests of the . . . conservatee. ( 2650, subds. (c) & (i).) Whether sufficient cause exists to remove a conservator is a question of fact to be determined in the broad discretion of the trial court, whose determination will not be disturbed except for an abuse of that discretion. (See, e.g., Guardianship of Davis (1967) 253 Cal.App.2d 754, 761; Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1448-1449 [abuse of discretion standard on appeal].)

Here, there was no abuse. In November 2007, after a trial on the issue of the proper placement for D. N., the court found [t]he least restrictive placement for [D. N.] is the Napa State Hospital and ordered he be placed there. The court further ordered L. H. to cooperate with Sacramento County Mental Health Intensive Placement Team and sign all consent forms necessary to facilitate the placement of [D. N.] at Napa State Hospital consistent with this order.

L. H. refused to do as ordered. She refused to sign without conditions the application for D. N.s voluntary admission to Napa State Hospital and limited her consent on the admission form to 60 days. She also refused to sign the consent form for D. N.s examination or treatment. She similarly refused to sign the forms when requested to do so by the intensive placement team.

On February 7, 2008, at a progress report hearing, [a]fter much reluctance, L. H. signed the documents. However, only two weeks later, she revoked that consent by sending a letter to the hospitals director of admissions stating she acted [u]nder extreme duress and now require[d] the hospital get her consent before any changes in [D. N.s] medications or treatments. Four days after L. H. sent the letter, Napa State Hospital denied D. N. admission.

On this record, where the court found [t]he least restrictive placement for [D. N.] [wa]s the Napa State Hospital and ordered he be placed there, and L. H. repeatedly thwarted that effort to the point of D. N.s rejection for admission at the hospital, the court did not abuse its discretion in removing L. H. as conservator.

DISPOSITION

The order suspending (removing) L. H. as conservator and appointing the public guardian as successor conservator is affirmed. All parties are to bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)

ROBIE , J.

We concur:

HULL, Acting P. J.

BUTZ , J.

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[1] The factual and procedural background is drawn both from the record in this case and the opinion in a related case (Conservatorship of the Person and Estate of [D. N.] (July 21, 2009, C057603 [nonpub. opn.]) in which we affirmed the order placing D. N. at Napa State Hospital.

[2] Further section references are to the Probate Code.