Conservatorship of the Person of O.B.
S254938
IN THE SUPREME COURT OF CALIFORNIA
July 27, 2020
T.B. et al., as Coconservators, etc., Petitioners and Respondents, v. O.B., Objector and Appellant. Second Appellate District, Division Six, B290805. Santa Barbara County Superior Court, 17PR00325. Chief Justice Cantil-Sakauye authored the opinion of the Court, in which Justices Chin, Corrigan, Liu, Cuellar, Kruger and Groban concurred.
CONSERVATORSHIP OF O.B.
S254938
Opinion of the Court by
Measured by the certainty each demands, the standard of proof known as clear and convincing evidence — which requires proof making the existence of a fact highly probable — falls between the “more likely than not” standard commonly referred to as a preponderance of the evidence and the more rigorous standard of proof beyond a reasonable doubt. We granted review in this case to clarify how an appellate court is to review the sufficiency of the evidence associated with a finding made by the trier of fact pursuant to the clear and convincing standard.
The issue arises here after the probate court appointed limited coconservators for O.B., a young woman with autism. In challenging this order, O.B. argues that the proof before the probate court did not clearly and convincingly establish that a limited conservatorship was warranted. (See
There is a split of opinion over how an appellate court should address a claim of insufficient evidence such as the one advanced here. One approach accounts for the fact that the clear and convincing standard of proof requires greater certainty than the preponderance standard does. Courts adopting this view inquire whether the record
We conclude that appellate review of the sufficiency of the evidence in support of a finding requiring clear and convincing proof must account for the level of confidence this standard demands. In a matter such as the one before us, when reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the
Because the Court of Appeal below took the position that the clear and convincing standard of proof ” ’ “disappears” ’ ” on appeal (Conservatorship of O.B. (2019) 32 Cal.App.5th 626, 633) when it rejected O.B.‘s challenge to the sufficiency of the evidence, we reverse.
I. BACKGROUND
In August 2017, respondents T.B. and C.B. filed a petition in Santa Barbara County Superior Court requesting that they be appointed as limited coconservators for O.B., a young woman with autism spectrum disorder. T.B. and C.B. are O.B.‘s mother and older sister, respectively. At the time T.B. and C.B. filed their petition, O.B. was 18 years old and resided with her great-grandmother, L.K., in Santa Barbara County.
The public defender was appointed as counsel for O.B. (See
Before ruling on a limited conservatorship, the judge stated that he had “been involved in numerous hearings, and [O.B.] has been at all of them or most of them. So in addition to some of the different witnesses I am entitled to base my decision based in part on my own observation of [O.B.] at the proceedings.” The judge found that a limited conservatorship was “appropriate” and appointed T.B. and C.B. as limited coconservators. The parties were asked if any requested a statement of decision. No one did, and the judge did not otherwise explain in detail how he had arrived at his findings. He said, “I can go through and comment on everybody‘s testimony. I don‘t see any reason to do that. The reviewing court can look at the record.”
We granted review.
II. DISCUSSION
Our analysis of the issue before us begins with an explanation of the clear and convincing standard of proof and a survey of its various applications. We next assess how appellate courts have perceived their role in reviewing claims that the evidence before the trial court did or did not satisfy the clear and convincing standard. Ultimately, we conclude that logic, sound policy, and precedent all point toward the same conclusion: When reviewing a finding made pursuant to the clear and convincing standard of proof, an appellate court must attune its review for substantial evidence to the heightened degree of certainty required by this standard.
A. Clear and Convincing Evidence as a Standard of Proof
A ” ‘[b]urden of proof’ means the obligation of a party to establish by evidence a requisite degree of belief concerning a fact in the mind of the trier of fact or the court.” (
“The default standard of proof in civil cases is the preponderance of the evidence.” (Wendland, supra, 26 Cal.4th at p. 546, citing
The standard of proof known as clear and convincing evidence demands a degree of certainty greater than that involved with the preponderance standard, but less than what is required by the standard of proof beyond a reasonable doubt. This intermediate standard “requires a finding of high probability.” (In re Angelia P., supra, 28 Cal.3d at p. 919; see also CACI No. 201 [“Certain facts must be proved by clear and convincing evidence . . . . This means the party must persuade you that it is highly probable that the fact is true“].)2 One commentator has explicated, “The precise meaning of ‘clear and convincing proof’ does not lend itself readily to definition. It is, in reality, a question of how strongly the minds of the trier or triers of fact must be convinced that the facts are as contended by the proponent. . . . Where clear and convincing proof is required, the proponent must convince the jury or judge, as the case may be, that it is highly probable that the facts which he asserts are true. He
Today, the clear and convincing standard applies to various determinations ” ‘where particularly important individual interests or rights are at stake,’ such as the termination of parental rights, involuntary commitment, and deportation.” (Weiner v. Fleischman (1991) 54 Cal.3d 476, 487, quoting Herman & MacLean v. Huddleston (1983) 459 U.S. 375, 389; see also Santosky v. Kramer (1982) 455 U.S. 745, 769; Addington v. Texas (1979) 441 U.S. 418, 423-424; Woodby v. Immigration Service (1966) 385 U.S. 276, 285-286.) Other findings requiring clear and convincing proof include whether a civil defendant is guilty of the “oppression, fraud, or malice” that allows for the imposition of punitive damages (
Going further back in time, “[t]he requirement in civil actions of more than a preponderance of the evidence was first applied in equity to claims which experience had shown to be inherently subject to fabrication, lapse of memory, or the flexibility of conscience.” (Note, Appellate Review in the Federal Courts of Findings Requiring More than a Preponderance of the Evidence (1946) 60 Harv. L.Rev. 111, 112.) This court‘s early case law addressing the clear and convincing standard of proof commonly involved claims of this character, such as assertions that a written instrument should be reformed on the basis of fraud, mistake, or parol evidence. In one early case of this kind, Lestrade v. Barth (1862) 19 Cal. 660, we observed that when the correction of a mistake in a written instrument was sought in equity, the evidence showing such a mistake “must be clear and convincing, making out the mistake to the entire satisfaction of the Court, and not loose, equivocal or contradictory, leaving the mistake open to doubt.” (Id., at p. 675.) We later stated in Sheehan v. Sullivan (1899) 126 Cal. 189 (Sheehan) that “[t]he authorities are uniform to the point that to justify a court in determining from oral testimony that a deed which purports to convey land absolutely in fee simple was intended to be something different, as a mortgage or trust, such testimony must be clear, convincing, and conclusive — something more than that modicum of evidence which appellate courts sometimes hold
B. Consideration of the Clear and Convincing Standard in Appellate Review for Sufficiency of the Evidence
The court in Sheehan, supra, 126 Cal. 189, also addressed how other appellate courts had evaluated claims that parol evidence introduced before the trial court had not adequately established that a written deed instrument, absolute on its face, was in fact a mortgage or trust. Our opinion in Sheehan observed that through such matters (e.g., Mahoney v. Bostwick (1892) 96 Cal. 53) the authorities “clearly declare that the rule, as above stated [requiring clear and convincing evidence that the intent was contrary to the deed‘s terms], should govern trial courts, and that, where an absolute deed has been found to be something else, the sufficiency of the evidence to support the finding should be considered by the appellate court in the light of that rule.” (Sheehan, at p. 193, italics added.) In other words, even though the standard of clear and convincing evidence directly governed only the determination made by the trier of fact, appellate courts assessing the sufficiency of the evidence still had to take this standard of proof into account by appropriately reframing their inquiry.
It was understood even at the time Sheehan was decided that this adjustment in appellate perspective when the clear and convincing standard applied below did not provide reviewing courts with a liberal license to substitute their views for the conclusions drawn by the trier of fact on matters such as witness credibility and the resolution of conflicts in the evidence. In Jarnatt v. Cooper (1881) 59 Cal. 703, for example, this court had explained, “It is doubtless a well-settled rule that the party alleging fraud or mistake is bound to prove his allegation by clear and convincing evidence. That is, that the evidence which tends to prove the alleged fraud or mistake, if standing alone, uncontradicted, would establish a clear prima facie case of fraud or mistake. If it does not, this Court may reverse the judgment on the ground of insufficiency of the evidence to justify the decision. But where the evidence which tends to prove fraud or mistake, if standing alone, uncontradicted, is sufficiently clear and convincing, we can not reverse the judgment on the ground that such evidence is contradicted by other evidence, because the right to pass upon the credibility of witnesses is not vested in this Court.” (Id., at p. 706.)
Since Sheehan, we have reiterated — albeit sometimes subtly — that when the clear and convincing standard of proof applied in the trial court, an appellate court should review the record for sufficient evidence in a manner
Several of our more recent decisions involving the clear and convincing standard of proof also have recognized that this standard affects a reviewing court‘s assessment of the sufficiency of the evidence. In In re Angelia P., supra, 28 Cal.3d 908, we stated that when reviewing the sufficiency of the evidence supporting an order terminating parental rights, issued upon a finding of clear and convincing evidence (see
As respondents observe, we have on other occasions provided somewhat different descriptions of the reviewing court‘s role in evaluating a finding requiring clear and convincing evidence. We often have emphasized the appellate court‘s general responsibility to review the record for substantial evidence, even when the clear and convincing standard of proof applied before the trial court. (E.g., In re Marriage of Saslow (1985) 40 Cal.3d 848, 863; Crail v. Blakely (1973) 8 Cal.3d 744, 750 (Crail); Nat. Auto & Cas. Co. v. Ind. Acc. Com. (1949) 34 Cal.2d 20, 25; Viner v. Untrecht (1945) 26 Cal.2d 261, 267; Stromerson v. Averill (1943) 22 Cal.2d 808, 815 (Stromerson); Simonton v. Los Angeles T. & S. Bank (1928) 205 Cal. 252, 259; Treadwell v. Nickel (1924) 194 Cal. 243, 260-261; Steinberger v. Young (1917) 175 Cal. 81, 84-85 (Steinberger).) In Crail, we explained that the clear and convincing “standard was adopted . . . for the edification and guidance of the trial court, and was not intended as a standard for appellate review. ‘The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal.’ ” (Crail, at p. 750.) Respondents extract from these decisions the principle that appellate review of a finding made under the clear and convincing standard is limited to whether the finding is supported by evidence that is “credible, reasonable, and solid” — words commonly used in describing “substantial evidence.” (See In re Teed‘s Estate (1952) 112 Cal.App.2d 638, 644.)3
The decisions of the
Many courts have drawn a similar lesson from the Witkin treatise on California Procedure, which provides in relevant part, “In a few situations, the law requires that a party produce more than an ordinary preponderance; he or she must establish a fact by ‘clear and convincing evidence.’ [Citations.] But the requirement applies only in the trial court. The judge may reject a showing as not measuring up to the standard, but, if the judge decides in favor of the party with this heavy burden, the clear and convincing test disappears. On appeal, the usual rule of conflicting evidence is applied, giving full effect to the respondent‘s evidence, however slight, and disregarding the appellant‘s evidence, however strong.” (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 371, p. 428, italics added.) The assertion that “the clear and convincing test disappears” (ibid.) on appeal fairly imparts that this standard of proof has no bearing whatsoever on appellate review for sufficiency of the evidence.4
All in all, it would be a fair summarization to say that although the trend within our more recent decisions has been to recognize that the application of the clear and convincing standard of proof before the trial court affects appellate review for sufficiency of the evidence, our case law also contains
C. The Clear and Convincing Standard of Proof Informs Appellate Review for Substantial Evidence
We now dispel this uncertainty over the proper manner of appellate review by clarifying that an appellate court evaluating the sufficiency of the evidence in support of a finding must make an appropriate adjustment to its analysis when the clear and convincing standard of proof applied before the trial court. In general, when presented with a challenge to the sufficiency of the evidence associated with a finding requiring clear and convincing evidence, the court must determine whether the record, viewed as a whole, contains substantial evidence from which a reasonable trier of fact could have made the finding of high probability demanded by this standard of proof.6
This rule finds support in logic, in the policy interests that are often implicated when clear and convincing evidence supplies the standard of proof, and in precedent. First, “[a]s a matter of logic, a finding that must be based on clear and convincing evidence cannot be viewed on appeal the same as one that may be sustained on a mere preponderance.” (In re C.H. (Tex. 2002) 89 S.W.3d 17, 25.) As we have long acknowledged (see, e.g., Sheehan, supra, 126 Cal. at p. 193), the clear and convincing standard of proof normally applies directly only before the trial court; appellate courts normally do not decide
whether they themselves believe the evidence was so probative. And the fundamental question before an appellate court reviewing for sufficiency of the evidence is the same, regardless of the standard of proof that applied below: whether any reasonable trier of fact could have made the finding that is now challenged on appeal. But the issue before a reviewing court in a given case is whether the trier of fact could have made the finding it did arrive upon, rather than a hypothetical finding involving a different standard of proof. Therefore, when reviewing a finding that demands clear and convincing evidence, an appellate court must determine whether the evidence reasonably could have led to a finding made with the specific degree of confidence required by this standard.
Taking the clear and convincing standard into account in this context is also logically consistent with the principle that an appellate court addressing a claim of insufficient proof reviews the record for substantial evidence
Second, keeping the clear and convincing standard in mind when reviewing for sufficiency of the evidence helps ensure that an appropriate degree of appellate scrutiny attaches to findings to which this standard applies. As previously noted, the clear and convincing standard is used for various determinations where ” ‘particularly important individual interests or rights are at stake.’ ” (Weiner v. Fleischman, supra, 54 Cal.3d at p. 487.) The selection of the clear and convincing standard in these situations reflects “a very fundamental assessment of the comparative social costs of erroneous factual determinations.” (In re Winship, supra, 397 U.S. at p. 370 (conc. opn. of Harlan, J.).) That is to say, the significant consequences of an erroneous true finding when these interests or rights are involved — such as an improper deportation, an unnecessary involuntary commitment, or an unjustified termination of parental rights — support the application of a heightened standard of proof, relative to the preponderance standard. Yet the use of a clear and convincing standard of proof before the trial court may not by itself completely protect these interests, because “the trier of fact will sometimes, despite his best efforts, be wrong in his factual conclusions.” (Ibid.) Admittedly, an appellate court that gives appropriate deference to the trier of fact will not be in a position to detect or correct some of these erroneous findings. But an appellate court can at least determine whether the record contains enough evidence to allow a reasonable trier of fact to find the fact in question with the high probability required by the clear and convincing standard. In contrast, an appellate review that ignores this standard of proof fails to adequately protect the interests that the standard was meant to safeguard.
errors. But when a review of the record establishes that no reasonable factfinder could have found a matter proved to a degree of high probability, appellate intervention reaffirms that the interests involved are of special importance, that their deprivation requires a greater burden to be surmounted, and that the judicial system operates in a coordinated fashion to ensure as much.
Our approach also harmonizes with the firmly established rule in criminal cases that the prosecution‘s burden of proving a defendant‘s guilt beyond a reasonable doubt affects how an appellate court reviews the record for substantial evidence. In Jackson v. Virginia (1979) 443 U.S. 307 (Jackson), the United States Supreme Court considered “what standard is to be applied in a federal habeas corpus proceeding when the claim is made that a person has been convicted in a state court upon insufficient evidence.” (Id., at p. 309.) The Jackson court decided that “the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.” (Id., at p. 318.) The high court explained that “this inquiry does not require a court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ [Citation.] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citation.] This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve
The decision in Jackson prompted this court “to review and define the California standard for review” of a claim brought by a defendant on direct appeal alleging that a criminal conviction lacked sufficient support in the evidentiary record. (People v. Johnson (1980) 26 Cal.3d 557, 562.) We concluded in Johnson that the standard of review already established by our case law was consistent with the rule announced in Jackson. (Johnson, at p. 577.) “[W]henever the evidentiary support for a conviction faces a challenge on appeal,” we determined, “the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (Id., at p. 562.) We observed that when engaging in this review, an appellate court “‘must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.‘” (Id., at p. 576.)
Thus it has long been the law that appellate inquiry into the sufficiency of the evidence associated with a criminal conviction both accounts for the beyond a reasonable doubt standard of proof that applied before the trial court and extends an appropriate degree of deference to the perspective of the trier of fact. And with infrequent exceptions, appellate courts have grasped what this kind of review entails. This experience contradicts respondents’ argument that a rule that requires the clear and convincing standard of proof to be taken into account when reviewing for substantial evidence will encourage these same courts to overstep their authority by reweighing the evidence themselves. Out of an abundance of caution, however, we use this opportunity to emphasize that as in criminal appeals involving a challenge to the sufficiency of the evidence, an appellate court reviewing a finding made pursuant to the clear and convincing standard does not reweigh the evidence itself. In assessing how the evidence reasonably could have been evaluated by the trier of fact, an appellate court reviewing such a finding is to view the record in the light most favorable to the judgment below; it must indulge reasonable inferences that the trier of fact might have drawn from the evidence; it must accept the factfinder‘s resolution of conflicting evidence; and it may not insert its own views regarding the credibility of witnesses in place of the assessments conveyed by the judgment. (See, e.g., People v. Veamatahau (2020) 9 Cal.5th 16, 35-36; People v. Gomez (2018) 6 Cal.5th 243, 278, 307.) To paraphrase the high court in Jackson, supra, 443 U.S. at page 318, the question before a court reviewing a finding that a fact has been proved by clear and convincing evidence is not whether the appellate court itself regards the evidence as clear and convincing; it is whether a reasonable trier of fact could have regarded the evidence as satisfying this standard of proof.
This court‘s precedent offers less support for respondents’ position that appellate review for sufficiency of the evidence should in no way account for the clear and convincing standard of proof that applied before the trial court. As observed ante, respondents emphasize language appearing in a line of decisions beginning with Steinberger, supra, 175 Cal. 81 and including our statement in Crail, supra, 8 Cal.3d 744, that the clear and convincing “standard was adopted . . . for the edification and guidance of the trial court, and was not intended as a standard for appellate review. ‘The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal.‘” (Crail, at p. 750; see also In re Marriage of Saslow, supra, 40 Cal.3d at p. 863; Nat. Auto & Cas. Co. v. Ind. Acc. Com., supra, 34 Cal.2d at p. 25; Viner v. Untrecht, supra, 26 Cal.2d at p. 267; Stromerson, supra, 22 Cal.2d at p. 815; Simonton v. Los Angeles T. & S. Bank, supra, 205 Cal. at p. 259; Treadwell v. Nickel, supra, 194 Cal. at pp. 260-261; Steinberger, 175 Cal. at pp. 84-85.) Respondents assert that representations such as this commit this court to the position that the clear and convincing standard of proof has no bearing on appellate review for substantial evidence.
We disagree. For starters, it is not perfectly clear that Steinberger and its progeny all stand for the proposition that the clear and convincing standard of proof‘s application before the trial court has no effect upon appellate review for sufficiency of the evidence. As it appeared in Steinberger, supra, 175 Cal. 81, the assertion that “if there be substantial evidence to support the conclusion reached below, the finding is not open to review on appeal” served to clarify a point made earlier in the opinion, that it was the province of the fact-finder to resolve conflicts in the evidence. (Id., at p. 85.) Statements in our later decisions also could be read as stopping well short of the absolutist position respondents assign to them. To say that clear and convincing evidence is not a standard for appellate review is correct in the sense that an appellate court normally does not itself review the record for clear and convincing proof. Likewise, representations that an appellate court reviews the record for substantial evidence, without further explanation of what that evidence must establish, could be understood as more incomplete than incorrect.
We also use this opportunity to comment upon another provision within the Witkin treatise‘s discussion of appellate review of findings involving clear and convincing evidence. After observing that “the clear and convincing test disappears” on appeal, the treatise adds that “[o]n appeal, the usual rule of conflicting evidence is applied, giving full effect to the respondent‘s evidence, however slight, and disregarding the appellant‘s evidence, however strong.” (9 Witkin, Cal. Procedure, supra, Appeal, § 371, p. 428.) It should be understood that even if conflicts in the evidence are viewed this way by a reviewing court, giving “full effect” to the respondent‘s evidence, “however slight” (ibid.), does not necessarily mean that this evidence will amount to substantial evidence of “ponderable legal
Finally, respondents raise a narrower argument sounding in legislative intent. They assert that even if we were to conclude here that the clear and convincing standard of proof does not simply disappear when an appellate court reviews for substantial evidence, the Legislature thought this standard vanished on appeal when it enacted the limited conservatorship statute (Stats. 1990, ch. 79, § 14, p. 523; see also Stats. 1980, ch. 1304, § 6, p. 4400) and specified that the standard of proof for the appointment of a conservator is clear and convincing evidence (Stats. 1995, ch. 842, § 7, p. 6410). Respondents argue that we should defer to this expectation in interpreting the requirement of clear and convincing evidence found in
This argument is not persuasive. Respondents fail to identify anything within the text or legislative history of
To summarize, we hold that an appellate court must account for the clear and convincing standard of proof when addressing a claim that the evidence does not support a finding made under this standard. When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable factfinder could have found it highly probable that the fact was true. In conducting its review, the court must view the record in the light most favorable to the prevailing party below and give appropriate deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and
III. DISPOSITION
We reverse the judgment of the Court of Appeal and remand the cause to that court for further proceedings consistent with this opinion.
CANTIL-SAKAUYE, C. J.
We Concur:
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
GROBAN, J.