Conservatorship of the Person and Estate of JESSE G.
No. A145749
First Dist., Div. Two.
June 23, 2016.
453
PUBLIC GUARDIAN OF MENDOCINO COUNTY, Petitioner and Respondent, v. JESSE G., Objector and Appellant.
Jeremy T. Price and Jonathan Soglin, under appointments by the Court of Appeal, for Objector and Appellant.
Katharine L. Elliott, Acting County Counsel, and Rebecca L. Chenoweth, Deputy County Counsel, for Petitioner and Respondent.
OPINION
KLINE, P. J.—Appellant Jesse G. appeals from the trial court‘s orders appointing the Mendocino County Public Guardian (public guardian) conservator of his person and estate pursuant to section 5350 of the Lanterman-Petris-Short Act (LPS Act) (
BACKGROUND
On April 9, 2015, the public guardian filed an LPS Act conservatorship petition for appointment of a conservator of appellant‘s person and estate, pursuant to section 5350, and also seeking imposition of several special disabilities, pursuant to section 5357. On May 7, the public guardian filed an investigator‘s report, pursuant to section 5354, recommending the appointment of an LPS Act conservator and imposition of the requested special disabilities.
After appellant informed the court of his intention to contest the petition, the court held a bench trial on June 29, 2015. Dr. James Holden testified for the public guardian as an expert on the issue of grave disability. On June 16, Dr. Holden had interviewed appellant for 65 minutes and had reviewed numerous documents, including a recent functional assessment and psychological evaluation, the conservatorship investigator‘s report, and recent hospital treatment and progress notes. Dr. Holden testified that appellant had recently been hospitalized after bystanders who saw him near or on a bridge over the Russian River became concerned and called police. The police took
Appellant had a history of “[m]ultiple” prior hospitalizations in both Texas and California. He had been diagnosed during his most recent hospitalization with schizoaffective disorder, bipolar type. He had previously been diagnosed with antisocial personality disorder, as well as various substance abuse disorders, including amphetamine abuse, cannabis abuse, benzodiazepine dependence/abuse, caffeine-related disorder, and nicotine dependence/abuse. Appellant told Dr. Holden that he has taken psychiatric medications since childhood, starting with medication for attention deficit disorder. He also reported that he has had auditory hallucinations since childhood, but said, “[l]uckily I know the voices aren‘t real. When I put the right kind of energy out, they go away.”
Dr. Holden further testified that appellant had not been compliant with his medications at the time of his most recent hospitalization, and had a history of being noncompliant. At the time Dr. Holden interviewed him, appellant was on his medications and told Dr. Holden that he would contact his former psychiatrist and continue taking his medications if released from conservatorship. Appellant said he believed there were two medications that were particularly helpful to him: Zyprexa and Invega. Even on these medications, however, he continued to experience auditory hallucinations, which he had described as being “just pissed-off white kids. They are listening to us right now. They go away when I am around good energy and good memories.” Appellant also exhibited “paranoid ideations” during the interview, saying that the police and some of the medical staff had plotted against him and inaccurately described his condition. With schizoaffective disorder, the symptoms can be kept under control “[t]o a degree. There can be residual symptoms even with the medication.”
Appellant told Dr. Holden that he had a friend he wanted to stay with. The friend, Mike Elmer, called Dr. Holden and told him that he knew appellant‘s father well and had prior experience helping appellant. Nevertheless, after evaluating appellant, Dr. Holden concluded “that he currently remains gravely disabled. I didn‘t find a verifiable plan, [a] realistic verifiable plan to provide for his own food, shelter, and clothing or the presence of a third person that could assure those things were provided for him.” When the court asked how appellant‘s mental condition interferes with his ability to provide for his food, shelter, and clothing, Dr. Holden stated, “It disrupts his thinking, his logic, reasoning. It‘s led him to live out in the woods on various occasions. And [to] have aspirations to live a free lifestyle that I felt would be very difficult for him to pull off. I felt he would be very easily taken advantage of and has
Appellant testified, as part of the public guardian‘s case in chief, that he first learned of his schizophrenia diagnosis when he was 17 years old, and he began “breaking down and hearing voices” when he was 22. He did not really believe the voices were real, but nonetheless thought “there is some sort of motivation somewhere to where these people are bothering me. I don‘t really think I have a mental condition. I think [I] am being victimized by other people that are jealous of me.” When asked if he did not believe he has a mental illness, appellant responded, “No. I didn‘t say I don‘t have mental conditions, but it doesn‘t make me ill. [] ... [] I don‘t really think I have a mental condition. I am actually a very intelligent person.” Appellant believed people victimized him because they had taken his kindness for weakness and they stole things from him.
Appellant testified that the medications he was taking—Cogentin, Trileptal, perphenazine, and Invega—helped, but also believed that “it really doesn‘t matter if I take them or not, because it is more of a psychological problem and drugs . . . just null [sic] the pain, but they—they can‘t they can‘t really heal schizophrenia.” Regarding Dr. Holden‘s testimony that appellant had said he believed the police and medical personnel had plotted against him, appellant testified that that was not true, and that the people who called the police “made up a story saying I was going to jump. . . . [They] were saying I was waiving [sic] my hands, that I was . . . going to jump or something. That is an absolute lie.” Instead, appellant testified, “I was lured up there by four of these kids who have just . . . been out to get me.” As he was lying in the sun, “these kids came along and they started throwing pebbles at me, started calling me names and stuff. So I went out there to see what their deal was, I got to the top [of] the bridge and the four of them weren‘t even facing me. They had their backs turned to me, like they were scheming something, whatever. So I walked . . . across to the middle of the bridge, looking around, kind of enjoying the view and stuff.” Appellant believed the claim that he was waving his hands and looking like he was going to jump “was a false report.”
When asked about a statement he made to Dr. Holden that voices spied on him through his eyes, appellant said, “that was more of a religious belief” than anything else, “because it‘s the truth.” He affirmed that he would take his medication if he were not on a conservatorship because it did help his vision and helped him to relax, even though it could not stop the voices. Regarding his specific plan to provide for himself, appellant testified that he had a steady income through Social Security, which would total $845 per month if he had a place to live. He wanted to live with his buddy Mike,
Michael Elmer testified on appellant‘s behalf. He had known appellant for about eight years and appellant had lived with him off and on for about a year. When appellant lived with him, he was compliant with household rules and had not exhibited any violent conduct. If appellant lived with him, there would be no drugs or drinking, and they would start going to church. He would keep any alcohol in his home locked up in his room. He also would drive appellant to appointments with his psychiatrist. Appellant would pay him $250 per month in rent. Elmer worked at Johnson‘s Pear Sheds and he planned to get appellant a job there too.
Elmer would also help appellant with buying groceries and taking his medicine twice a day. He was not aware of appellant having a drug problem, but believed “all kids have experimented.” When asked what he would do if appellant did not take his medication, Elmer testified, “[H]e would have to. You know, he—he needs to stay focused.” When appellant had stayed with Elmer in the past, he had been taking his medication “[a]s far as I know.” Elmer testified that, when appellant was with him, appellant was “a good kid” and had never shown any indication that he might want to harm himself.
When asked on cross-examination whether appellant had been suffering from mental illness for the entire time Elmer had known him, Elmer responded, “I—I haven‘t really seen much of that. When he‘s with me, he seems straight down on it, you know.” Elmer would not allow any drugs in his home and would get appellant to quit smoking. He would watch appellant take his medication and, if he refused to take it, Elmer would make sure he did so. Elmer had never seen appellant act out, but if he had problems, Elmer would take him to seek help. He also would have appellant sign a release so that he could consult with appellant‘s doctors.
At the conclusion of the trial, the court found appellant gravely disabled. It therefore granted the petition and appointed the public guardian conservator of appellant‘s person and estate. The court explained that appellant “impresses me as a very intelligent person. He seems to have some awareness of mental issues and that he‘s been aware of them for some time. He also states his willingness to take medications. He—he appears to be candid about the existence of the voices that he‘s hearing. He doesn‘t—he seems aware of it—well, he‘s aware of the voices certainly. But also seems to be able to distinguish . . . when he‘s hearing them and doesn‘t seem to allow them to
“However I am concerned based on the testimony of Dr. Holden that even when [appellant] is on his medications that the underlying medical condition interferes with his ability to provide for his food, shelter, and clothing. I think[] it‘s a very close case because [appellant] is aware of—has such a strong awareness of his problems and of his medication and so on. And . . . it seems that he‘s—he‘s attempting, not withstanding that, to cope with life and to cope with stressors during his life. But I think based on . . . the record on which Dr. Holden has relied, that he—he hasn‘t quite reached that ability to overcome the problem with his mental illness to allow him to provide for his own food, shelter, and clothing.
“I have listened to the testimony of Mr. Elmer, who I think is very sincere in his ability to help his friend [appellant]. But I just don‘t think that the assurance is there that he will be able to provide the assistance to [appellant] when he needs it. . . . If Mr. Elmer is going to be at work during all or part of the day, then he‘s not there to help [appellant] when and if he needs help. And Mr. Elmer didn‘t really seem to have developed a plan of how he could help [appellant] when he‘s not able to take his medication or whether his mental illness perhaps is breaking through or not being controlled by his [medication].
“So I . . . don‘t think at this time that [appellant] is able to take care of his—provide for his own food, shelter, and clothing. I think it‘s a situation where he can, hopefully perhaps soon, I don‘t know with some additional medication. I don‘t know what particular—what would give him that ability. But I think right now I find he‘s gravely disabled and unable to take care of his food, shelter, and clothing.”
Although not mentioned during the trial, in the written order appointing the conservator, the court also imposed special disabilities prohibiting appellant from possessing a driver‘s license, entering into contracts in excess of $25, refusing to consent to treatment related to his grave disability, and possessing any firearm. The court found that the least restrictive appropriate level of placement for appellant was a locked facility.
On July 15, 2015, appellant filed a notice of appeal.
The Sufficiency of the Evidence That Appellant Was Gravely Disabled
The LPS Act affirms that “[p]ersons with mental illness have the same legal rights and responsibilities guaranteed all other persons by the Federal Constitution and laws and the Constitution and laws of the State of California, unless specifically limited by federal or state law or regulations.” (
Under the LPS Act, a conservator may be appointed “for a person who is gravely disabled as a result of a mental heath disorder.” (
In the trial court, “to establish that a person is gravely disabled, the evidence must support an objective finding that the person, due to mental disorder, is incapacitated or rendered unable to carry out the transactions necessary for survival or otherwise provide for his or her basic needs of food,
In the present case, appellant does not dispute that he suffers from a mental disorder. He contends, however, that the evidence was insufficient to support the trial court‘s finding that he is gravely disabled as a result. The court found that this was a “very close case” because appellant had “such a strong awareness of his problems and of his medication,” including some understanding that the voices he heard were not real; he did not “seem to allow [the voices] to interfere with his life.” The court nevertheless concluded that appellant had not “quite reached that ability to overcome the problem with his mental illness to allow him to provide for his own food, shelter, and clothing.”
We agree with the court that this is a close case. Had the evidence presented solely addressed appellant‘s ability to survive safely on his own, without any third party assistance, we may well have concluded the court‘s ruling was supported by substantial evidence. However, regardless of whether appellant would be gravely disabled if he were on his own, we find that, in light of evidence regarding the offer of third party assistance by appellant‘s friend, Michael Elmer, the evidence presented at trial was insufficient to demonstrate that appellant could not survive safely in the community. (See
Appellant cites Smith, supra, 187 Cal.App.3d 903 in support of his argument that the public guardian did not prove beyond a reasonable doubt that he was gravely disabled. Smith involved a proposed conservatee described as suffering “from a mental disorder which commands her to maintain a vigil outside a particular church. At times, she engages in displays of disruptive behavior, interrupting church services. Her fixation on the church results in her sleeping on the sidewalk in front of the church at night, and on one past occasion this may have caused her to become sick.” (Smith, at p. 910.) The record revealed, however, that the psychiatrist who testified at trial believed that she received regular offers of help and was able to obtain food, clothing, and shelter. (Ibid.)
Here, as with the proposed conservatee in Smith, no testimony was adduced at trial showing that, due to his mental disorder, appellant “was suffering from malnutrition, overexposure, or any other sign of poor health or neglect.” (Smith, supra, 187 Cal.App.3d at p. 910.) Importantly, even if the evidence showed that appellant could not provide for his basic needs without third party assistance, it did not show that with such help, he would lack the provision of his basic needs for food, clothing, and shelter. (See id. at p. 907;
At trial, Dr. Holden testified that appellant told him that he had a friend with whom he wanted to stay. Dr. Holden had then spoken with Elmer, who said he had previous experience helping appellant. Despite his awareness of Elmer‘s plan to again assist appellant, Dr. Holden testified without explanation that he had not found a “realistic verifiable plan to provide for his own food, shelter, and clothing or the presence of a third person that could assure those things were provided for him.” For its part, the court concluded that, while Elmer sincerely wanted to help appellant, there was no assurance “that he will be able to provide the assistance to [appellant] when he needs it.” We do not believe substantial evidence supports this conclusion.
As respondent acknowledges, Elmer testified at trial that appellant “could live with him in his home, that he would help appellant with taking his medications, getting a job, buying food, and paying rent.”3 In addition, although Elmer‘s testimony shows that he was not fully aware of the extent of appellant‘s mental health and substance abuse issues, he was able to
The totality of the evidence presented in this case thus did not support the court‘s finding that appellant was gravely disabled under the LPS Act. On the contrary, the evidence demonstrated that he would be able to “survive safely without involuntary detention with the help of [a] responsible [friend] who [was] both willing and able to help provide for [his] basic personal needs for food, clothing, or shelter.” (
Respondent nonetheless argues that this case is analogous to Johnson, supra, 235 Cal.App.3d at pages 698–699, in which the proposed conservatee, who had a history of suicide attempts and noncompliance with medication, alleged that she was not gravely disabled because her mother was willing and able to provide assistance in meeting her basic needs. The appellate court disagreed, finding that the trial court could reasonably conclude that the mother would be unable to provide the kind of structured environment her daughter needed. (Ibid.) The mother had six other children in the home and was employed four days a week. She testified that a friend would care for her daughter while she was at work, but there was no evidence that person was qualified to assume such a responsibility. (Ibid.) In addition, there were questions about the mother‘s ability to ensure her daughter‘s participation in treatment, given the daughter‘s lack of insight into her condition and her inconsistent testimony about whether she would take her medication. (Ibid.) Finally, the mother had admitted four months earlier that she was not capable of taking care of her daughter or of meeting her needs and, in fact, the daughter‘s most recent suicide attempt had occurred while released to her mother‘s care for a home visit. (Id. at p. 699.) The appellate
In this case, the trial court found that appellant had a strong awareness of his mental health issues and medication needs. In addition, Dr. Holden testified that appellant had said that, if released, he would take his medications and meet with his psychiatrist. Elmer also had a plan for ensuring that appellant continued taking his medications and participated in treatment, and was prepared to seek additional help if needed. This evidence distinguishes the present case from Johnson, in which the appellate court questioned the mother‘s ability to ensure her daughter‘s participation in treatment in light of the daughter‘s “lack of insight into her condition.” (Johnson, supra, 235 Cal.App.3d at p. 699.) Moreover, the proposed conservatee in Johnson had been admitted to the hospital “after a nearly successful suicide attempt” that occurred while she was in her mother‘s care for a home visit. (Id. at p. 697.) Here, although appellant was initially detained pursuant to section 5150 after he was observed on a bridge waving his hands, the only actual evidence offered at trial regarding whether appellant had been threatening suicide was appellant‘s testimony that he was not doing so.5
Further distinguishing this case from Johnson is the evidence that the mother in that case had six other children at home and had admitted less than four months before trial that she was incapable of taking care of appellant or meeting her needs, whereas Elmer had assisted appellant in the past and expressed confidence in his ability to do so again. (See Johnson, supra, 235 Cal.App.3d at pp. 698-699.) Also, unlike the expert witness in Johnson, Dr. Holden did not testify that appellant had failed to cooperate in his treatment during his hospitalization or that he should be in a locked facility due to his need for a ” ‘structured place that has [a] high level of professional staffing . . . [and] supervision.’ ” (Id. at p. 698.) Nor did the trial court in this case find that appellant‘s condition was “beyond an ordinary person‘s ability to deal with, . . . [requiring] expert assistance,” as did the trial court in Johnson. (Ibid.)
Although it is true that Elmer, like the mother in Johnson, worked outside the home, as already discussed, ante, there was evidence in Johnson, not present in this case, which showed that the proposed conservatee needed a
Because the evidence at trial did not “support an objective finding that [appellant, as a result of his] mental disorder, is incapacitated or rendered unable to carry out the transactions necessary for survival,” substantial evidence did not support the trial court‘s finding that the public guardian had satisfied its burden of proving beyond a reasonable doubt that, even with Elmer‘s assistance, appellant would remain gravely disabled. (Carol K., supra, 188 Cal.App.4th at p. 134; see
Finally, like the appellate court in Smith, we recognize the possibility that “[o]ur conclusion might have changed had more extensive testimony on the effect of appellant‘s behavior on [his] health and well-being been elicited, or [an] investigation properly introduced into evidence been presented.” (Smith, supra, 187 Cal.App.3d at p. 910.)7 However, in light of the limited evidence adduced at trial on these issues, as well as the evidence that a third party was willing and able to help provide for appellant‘s basic needs for
DISPOSITION
The order appointing the public guardian as the conservator of appellant‘s person and estate is reversed.
Stewart, J., and Miller, J., concurred.