Opinion
Shеlbe Wilkinson was found to be a mentally retarded person pursuant to Welfare and Institutions Code section 6500. 1 She argues the commitment must be reversed because her attorney waived her appearance at the hearing without consulting with her and against her expressed desire to be present. She also asserts that the trial court’s order was not supported by substantiаl evidence.
We agree that the trial court erred in accepting the attorney’s waiver of Wilkinson’s right to be present at the hearing over her objection. Ample case law recognizes that a proposed conservatee has the right under the due process clauses of the federal and state Constitutions to be present at a hearing that could result in the substantial deprivation of liberty. We also conclude the error was not harmless and reverse the trial court’s order. We also address, and reject, Wilkinson’s remaining arguments.
Finally, the People contend that Wilkinson is incompetent to appeal from the trial court’s order and, even if she has the right to appeal, she is not entitled to appointed cоunsel. We reject these arguments as unsupported by logic or authority.
FACTUAL AND PROCEDURAL SUMMARY
The Kern County District Attorney’s Office filed a petition pursuant to section 6500 et seq. seeking to have Wilkinson committed because she is mentally retarded and dangerous to herself and others. Section 6500 permits the commitment of an individual who is (1) mentally retarded, (2) dangerous to himself, herself, or others, and (3) has serious difficulty in controlling his or her dangerous behavior because of his or her mental retardation.
(People v. Sweeney
(2009)
*547 It is undisputed that Wilkinson is mentally retarded within the meaning of the statute. In addition, she is bilaterally deaf, is an insulin-dependent diabetic, and her psychological diagnoses include bipolar disorder, oppositional defiant disorder, and intermittent explosive disorder. Wilkinson is unable to control her diet and her diabetes, putting her in serious danger of harming herself because of fluctuations in her blood-sugar levels. The trial court reached this conclusion and ordered Wilkinson committed to the State Department of Developmental Services for placement at a nonsecure treatment facility or institution that provides 24-hour staffing and is capable of providing services to meet Wilkinson’s needs.
DISCUSSION
Initially, we must address the People’s argument that this appeal is moot. The order appealed from was entered over one year ago. A commitment under section 6500 must be renewed on an annual basis. (Ibid.) Therefore, Wilkinson either has been released from her commitment or she currently is committed under a new order.
The issues raised here, however, are of continuing public importance. Since a section 6500 order typically will expire before an appeal can be heard, the issues will evade review unless we exercise our discretion to address the merits of the issues.
(Sweeney, supra,
I. Wilkinson’s Absence from the Trial
While a section 6500 commitment results in a substantial loss of liberty, it is a civil proceeding, not a criminal proceeding, because the goal of the proceeding is the treatment of the potential committee, not punishment.
(Sweeney, supra,
175 Cal.App.4th at pp. 221-222;
In re Watson
(1979)
The main issue in this case is one of those procedural protections guarаnteed to a criminal defendant—the right to be present at the hearing that could *548 result in a loss of liberty. (Cal. Const., art. I, § 15.) Wilkinson was represented by counsel (hereafter appointed counsel) at trial, but Wilkinson did not appear at the initial hearing. The trial court asked appointed counsel about Wilkinson’s absence and appointed counsel stated that she wоuld waive Wilkinson’s presence.
Wilkinson’s grandmother, who was Wilkinson’s legal guardian until Wilkinson’s 18th birthday, also appeared. She was accompanied by an attorney (hereafter grandmother’s counsel) who had acted as an advocate on behalf of Wilkinson while Wilkinson was a minor. The trial court permitted grandmother’s counsel to appear in the action as an advоcate for Wilkinson based on grandmother’s perceptions of Wilkinson’s needs. Grandmother’s counsel stated she had spoken to Wilkinson and Wilkinson wanted to be present for the hearing. Grandmother’s counsel also stated that appointed counsel had not spoken to Wilkinson. Appointed counsel did not voice disagreement with either statement. The trial court accepted the waiver by appointed counsel and proceeded in Wilkinson’s absence. Wilkinson argues this ruling was erroneous.
Applicable case law supports Wilkinson’s argument. We have located three cases addressing the issue. In
Watson, supra,
After concluding the circumstances in the case justified review of Watson’s petition for a writ of habeas corpus, the appellate court turned to the issue of Watson’s absence from the hearing. The appellate court first recognized that a one-year commitment as a mentally retarded individual resulted in “a substantial loss of personal liberty.”
(Watson, supra,
After rejecting Watson’s assertion that because of the potential loss of liberty she was entitled to all the procedural rights of a criminal defеndant,
*549
the appellate court concluded she had the “right to be present during the presentation of evidence against her which could and did result in a substantial loss of personal liberty, absent an on-the-record showing that she waived that right or was incapable of doing so by reason of either physical or mental incapacity.”
(Watson, supra,
Money v. Krall
(1982)
This issue was addressed most recently in
People v. Fisher
(2009)
The appellate court began by noting that the right to refuse psychotropic medication was protected by both the United States and California Constitutions. (Fisher, supra, 172 Cal.App.4th at pp. 1012-1013.) This right could be overcome in nonemergency situations if a court determined the patient was incompetent or was dangerous within the meaning of section 5300. (Fisher, at p. 1013.)
The appellate court next addressed Fisher’s absence from the hearing, at which evidence was presented. It noted thаt the proceeding was civil in nature and not criminal. Nonetheless, “in civil commitment proceedings, due process guarantees the right to be present during the presentation of evidence absent personal waiver or demonstrated inability to attend. [Citation.] An attorney’s authority to control procedural matters in a civil case [citation] does not authоrize relinquishment of substantial rights, such as the right to be present, without the client’s consent. [Citation.] [Fisher’s] constitutional right to a fair hearing was violated here because he did not personally waive his right to be present and was not unable to attend the hearing.” (Fisher, supra, 172 Cal.App.4th at pp. 1013-1014.)
Our facts, if anything, are more egregious than those in Fisher. The trial court was informed by grandmother’s counsel that Wilkinson wished to be present at the hearing. Appointed counsel did not disрute this assertion, nor did she dispute the assertion that she (appointed counsel) had not spoken to Wilkinson at the time she waived Wilkinson’s appearance at the trial. Nor was any evidence presented to suggest that Wilkinson was incapable of attending the hearing because of physical or mental incapacity. It is difficult to envision a more blatant violаtion of an individual’s right to due process than that which occurred here.
The People have not cited, nor has our research located, any case that suggests a commitment hearing may proceed in the absence of the proposed conservatee where the proposed conservatee does not waive that right, either directly tо the trial court or through counsel after counsel has discussed the issue with his or her client. Instead, the People rely on a line of cases that hold that an attorney may waive the right to a jury trial, even over the
*551
objections of the client.
(People
v.
Otis
(1999)
“The role of an attorney in litigation is to ‘[protect] the client’s rights and [achieve] the client’s fundamental goals.’ [Citation.] In carrying out this duty, the attorney has the general authority to stipulate to procedural matters that may ‘ “be necessаry or expedient for the advancement of [the] client’s interest^].” ’ [Citation.] However, the attorney may not, without the consent of his or her client, enter into an agreement that ‘impair[s] the client’s substantial rights or the cause of action itself.’ [Citation.]”
(Conservatorship of Christopher A.
(2006)
In
Christopher A.
the proposed conservatee’s counsel stipulated to a judgment establishing a conservatorship for Christophеr pursuant to the LPS Act. The record did not suggest that Christopher had consented to the terms of the proposed judgment. The appellate court applied the above principles to conclude this procedure was constitutionally infirm. “To allow the conservatee’s attorney to waive the right to a hearing and agree to the extent of the deprivation without the express consent of the conservatee is contrary to the principles of procedural due process. A waiver of the right to a hearing on these issues eliminates a procedural safeguard already in place. Therefore, we conclude that before accepting a stipulated judgment on placement, disabilities, and conservator powers, the court on the record must consult with the conservatee to instruct him or her on the consequences of the stipulation and obtain the conservatee’s express consent to the stipulation on those issues.”
(Christopher A., supra,
We readily conclude that a stipulation to proceed in the absence of the proposed conservatee substantially impairs the right of that individual. As noted in Watson, the conduct of the allegedly mentally retarded person is *552 likely to affect the reliability of the proceeding, and the absence of the proposed conservatee suggests the outcome of the proceeding is predetermined before any evidence has been presented. (Watson, supra, 91 Cal.App.3d at pp. 461-62.) To permit an attorney to waive his or her client’s presence at the trial without the client’s permission is error.
The People also argue that even if the trial court erred, reversal is not required because the error was harmless beyond a reasonable doubt.
(Fisher, supra,
We are faced with dramatically different circumstances in this case. Wilkinson was not at any of the hearings in this matter. Indeed, her appointed counsel only belatedly consulted with her at all. And while grandmother’s counsel conceded that Wilkinson was mentally retarded within the meaning of section 6500, there was considerable dispute about the best placement for Wilkinson.
Grandmother’s counsel raised questions about the treatment Wilkinson was receiving at the institution in which she was placed and about the unreasonableness of some of the guidelines that institution had imposed before it would conclude Wilkinson was making progress. Grandmother’s counsel also argued that placing Wilkinson with grandmother while providing services would be a mоre appropriate placement for Wilkinson.
Since the People argued that Wilkinson’s behavior was a major obstacle to reunification with grandmother, it is reasonable to presume that, had Wilkinson attended the hearing and been given the opportunity to testify, the trial court may have reached a different conclusion about the appropriаte placement for Wilkinson. In Wilkinson’s absence, the trial court was forced to rely on the reports and grandmother’s testimony, which justifiably could have been viewed with some skepticism.
Under these circumstances, we are not confident that the trial court would have reached the same conclusion had Wilkinson been present. It is possible, perhaps even probable, that the result would not have changed had Wilkinson been present for the hearing. But a mere possibility will not permit us to *553 affirm the order. Accordingly, the error was not harmless beyond a reasonable doubt and the judgment must be reversed.
II, III. *
DISPOSITION
The order appealed from is reversed and remanded to the trial court for further proceedings.
Dawson, J., and Hill, J., concurred.
Notes
All further statutory references arе to the Welfare and Institutions Code unless otherwise noted.
We did not locate a case holding that an attorney may waive the potential committee’s right to a jury trial over the potential committee’s objection in a section 6500 proceeding. Two cases,
People v. Bailie
(2006)
See footnote, ante, page 543.