Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. PR 080762
Margulies, J.
The trial court established a temporary conservatorship for Jacqueline B. (conservatee) and later, after a court trial, found her to be “gravely disabled” under the Lanterman-Petris-Short Act (Welf. & Inst. Code, § 5000 et seq.) (LPS Act). Without any further proceedings, the court entered an order, drafted by the conservator’s counsel and approved as to form by conservatee’s counsel, establishing an LPS conservatorship, appointing respondent Public Guardian of Marin County (Public Guardian) conservator of the person, and imposing several “special disabilities” on the conservatee, including divesting her of the right to make her own medical treatment decisions. The conservatee appeals, contending the Public Guardian breached its fiduciary duty to her, the court improperly imposed the special disabilities, and imposition of the temporary conservatorship was unlawful.
All statutory references are to the Welfare and Institutions Code.
Although we decline to address her arguments with respect to the temporary conservatorship and find the fiduciary duty argument to have been waived, we conclude there is no indication the trial court made the findings necessary before imposing the special disabilities. We affirm the appointment of an LPS conservator, but we vacate the portion of the court’s order imposing special disabilities.
I. BACKGROUND
On February 15, 2008, the Public Guardian filed a joint application for a temporary conservatorship and petition for the appointment of an LPS conservator for the conservatee, a 68-year-old woman. In a declaration accompanying the joint application and petition, the conservatee’s treating physician stated that the conservatee suffered from schizoaffective disorder, as well as a host of physical disabilities, including diabetes. The physician described the conservatee as “isolative, uncooperative, intrusive, and paranoid,” unable to care for herself, unable to function independently because of her “psychosis and irritability,” and unwilling to accept treatment voluntarily. On the basis of this evidence, the trial court entered an order granting a 30-day temporary conservatorship under section 5352.1. The court also appointed counsel for the conservatee and scheduled a hearing on the petition for a one-year LPS conservatorship.
In a report prepared for the conservatorship hearing, the Public Guardian’s investigator explained that the conservatee was hospitalized after she called the local police in an incoherent state. When her son, a police officer, responded, she recognized him but believed he was an imposter, saw him as covered in blood, and believed his life was in danger from organized crime. After being hospitalized, the conservatee refused to cooperate in her treatment or care and was found to be “demanding, intrusive, irritable and agitated.” The investigator recommended appointment of a conservator because the conservatee could no longer provide for her own needs, was unwilling to accept treatment voluntarily, and had no one to care for her.
At the contested hearing on the petition, the trial court heard testimony from a nontreating psychiatrist, a case manager for the Housing Authority for the County of Marin (Housing Authority) who had been assigned to the conservatee, the conservatee’s son, and the conservatee herself. The psychiatrist testified that the conservatee was unable to live independently and perform basic functions, such as bathing and dressing herself. She suffered from a mental illness, characterized by auditory hallucinations, paranoid delusions, and depressive and manic behavior, and several debilitating physical ailments, including diabetes, hypertension, and incontinence. The conservatee required medication to deal with both her mental and physical disabilities, but she resisted treatment prior to her placement under the temporary conservatorship. Although the conservatee’s behavior since then was largely cooperative and appropriate, her treating doctors attributed that conduct to regular medication. The psychiatrist considered the conservatee’s physical ailments life-threatening but doubted she would take the necessary medication if released. Further, because the conservatee did not have an accurate perception of her mental illness, she was unlikely to comply with the treatment necessary to suppress the symptoms of mental illness. As a result, the psychiatrist concluded that it was a “medical danger for her to be living independently.”
The Housing Authority case manager explained that one of his job duties for the past five years had been to monitor the conservatee’s welfare while she was living in publicly subsidized housing. During that time, he had been in weekly contact with her. In the months immediately preceding her hospitalization, however, the conservatee had avoided contact with the case manager, refusing him admittance to her home and terminating their phone calls prematurely or refusing his calls altogether. Since her hospitalization, her housing subsidy had been terminated on the basis of a physician’s letter stating she could no longer live on her own. The case manager helped obtain the letter, he testified, because “knowing [the conservatee] as I do I don’t think she is able to live independently. And I think it becomes a life threatening situation to put her back in her house independently,” largely as a result of her inconsistent self-medication.
The conservatee’s son said that prior to her hospitalization he spoke with her about every other day and saw her once a week. He confirmed the description of the conservatee’s condition on the night she was hospitalized contained in the investigator’s report. Upon speaking with her that night, he determined that she needed to be evaluated for hospitalization and called for another officer. That officer concluded she should be detained.
In her testimony, the conservatee acknowledged she suffered from schizophrenia and had been so afflicted since she was a teenager. She acknowledged she “[didn’t] do well” when she failed to take mental health medications and generally “w[ou]nd up in the hospital” if she failed to take such medications for more than two weeks. Although the conservatee initially insisted she never forgot to take her medications, she acknowledged that “periodically” she would stop taking them, leading to hospitalization. The conservatee testified that although she liked and trusted the case manager, she had “tired of the calling, meddling in my life” of social workers and therefore refused to speak with him. She also believed her apartment neighbors were terrorizing her in various ways, but she made clear her desire to return to the apartment nonetheless.
The trial court found the conservatee to be gravely disabled as a result of her schizophrenia, diabetes, and hypertension. The day after the hearing, without further proceedings, the trial court entered a written order appointing a conservator, granting the conservator the authority to hospitalize the conservatee, and imposing on the conservatee various statutory “special disabilities,” including loss of the right or privilege to possess a driver’s license, enter into contracts or other significant financial transactions, refuse or consent to medical treatment, and possess firearms. The order had been drafted by county counsel and approved as to form by the conservatee’s counsel.
Explaining its decision, the court said, “While she does not have an issue providing for some of her personal needs, specifically food and clothing, she has a history of not taking satisfactory care on her own of her physical health by regularly taking her medications. And that has put her housing at issue. [¶] The Court finds therefore that she cannot provide for her personal needs at this time.”
Prior to oral argument of this appeal, the Public Guardian moved to dismiss the appeal as moot. In a declaration attached to the motion, counsel explained that in March 2009, the Public Guardian petitioned for renewal of the appointment of a conservator, anticipating the statutory expiration of the one-year LPS conservatorship in April 2009. (§ 5361.) A contested hearing on the petition for reappointment was heard on July 15, 2009, and the petition was granted in an order entered July 27, 2009, barely a week before the scheduled argument. Conservatee’s conservatorship is now governed by that order, rather than by the superseded order under review here. We agreed with the Public Guardian that the matter was moot and dismissed the appeal in an order filed August 12, 2009. In an order dated October 28, 2009, the Supreme Court granted review of our dismissal and transferred the matter back to us with directions to vacate the order, reinstate the appeal, and decide the matter on the merits. We reinstated the appeal by order of November 10, 2009.
II. DISCUSSION
A. LPS Conservatorship
The LPS Act authorizes the creation of a renewable one-year conservatorship for persons who are “gravely disabled” as a result of a mental disorder. (§ 5361) As relevant to this appeal, a person is gravely disabled if he or she, “as a result of a mental disorder, is unable to provide for his or her basic personal needs for food, clothing, or shelter.” (§ 5008, subd. (h)(1)(A).)
This LPS conservatorship proceeding was commenced under section 5352, which permits “the professional person in charge of an agency providing comprehensive evaluation or a facility providing intensive treatment” to recommend that a county begin such proceedings when that person “determines that a person in his care is gravely disabled as a result of mental disorder... and is unwilling to accept, or incapable of accepting, treatment voluntarily.” Under those circumstances, a temporary conservatorship lasting no more than 30 days may be established on the basis of a professional’s declaration, as occurred here. (§ 5352.1, subd. (a).)
During the period of temporary conservatorship, the matter is referred to an investigator, who must prepare a written report evaluating the various options for the proposed conservatee and recommending a course of action. (§§ 5354, 5356.) Among other things, the investigator is required to recommend for or against the imposition of a series of “special disabilities” on the proposed conservatee, including loss of a motor vehicle license, loss of control over certain medical treatment, loss of the right to conduct significant financial affairs, and disqualification from voting or possessing a firearm. (§ 5357, subds. (a)–(f).)
If a conservatorship is recommended after investigation, the conservatee is entitled to a court or jury trial on the issue of whether he or she is gravely disabled. (§ 5350, subd. (d).) If that finding is made, the court must appoint a conservator. (§ 5350, subd. (b).) The Public Guardian is the conservator of last resort, if “the court finds that no other person or entity is willing and able to serve as conservator.” (§ 5354.5.)
A finding of grave disability is not alone sufficient for the imposition of the various special disabilities enumerated in section 5357, particularly depriving the conservatee of control over medical treatment. (Riese v. St. Mary’s Hospital & Medical Center (1987) 209 Cal.App.3d 1303, 1313 (Riese).) The conservatee retains the rights and privileges covered by the special disabilities unless the court, after making appropriate findings regarding the conservatee’s competence, imposes the disabilities and confers corresponding authority on the conservator. (Ibid.; Conservatorship of George H. (2008)169 Cal.App.4th 157, 165 (George H.).)
B. The Public Guardian’s Purported Breach of Fiduciary Duty
The conservatee first contends that “all evidence of lack of shelter due to the absence of the [publicly subsidized housing] eligibility should be precluded” because it resulted from a breach of fiduciary duty by the Public Guardian. She argues she was found to be gravely disabled only because she lost her publicly subsidized housing, the loss of the housing resulted from the Housing Authority’s actions, which the Public Guardian did nothing to prevent while acting as her temporary conservator, and this was a breach of duty that should have resulted in the exclusion of any evidence regarding her loss of housing.
This claim was waived when no objection on this ground was made at the conservatorship hearing. Ordinarily, a decision cannot be set aside on grounds of improper admission of evidence unless a contemporary objection was made during trial, stating the specific grounds urged on appeal for exclusion. (Evid. Code, § 353; Boston v. Penny Lane Centers, Inc. (2009) 170 Cal.App.4th 936, 950.) Conservatee’s counsel at trial made no objection to this evidence, let alone an objection stating this particular ground for exclusion. As a result, the argument cannot be used to challenge the trial court’s decision.
A timely objection was particularly important to lay the groundwork for consideration of this objection on appeal. The conservatee’s theory necessarily rests on a number of substantial legal issues and supporting factual findings. If the conservatee intended to put these matters at issue, the Public Guardian was entitled to notice, the opportunity to respond through the presentation of evidence and argument, and the rendition of trial court factual findings. Because, as a result of the conservatee’s failure to object, no such opportunity was provided, we will not address this issue for the first time on appeal.
C. Imposition of Special Disabilities
The conservatee argues that the trial court erred in imposing special disabilities. For the reasons stated below, we agree with this contention.
As noted above, a finding of grave disability does not alone support the imposition of special disabilities under section 5357. A conservatee may be incapable of providing for one or more of the daily needs listed in the statute and yet sufficiently able in other respects that imposition of one or more of the special disabilities is inappropriate. Therefore, the court must make separate findings of incapacity to support imposition of the special disabilities. (George H., supra, 169 Cal.App.4th at p. 165; Riese, supra, 209 Cal.App.3d at p. 1313.) In Riese, the court outlined the factors to be evaluated by the court in considering whether a gravely disabled person is incapable of making medical treatment decisions, the most frequently discussed of the special disabilities: “(a) whether the patient is aware of his or her situation (e.g., if the court is satisfied of the existence of psychosis, does the individual acknowledge that condition); (b) whether the patient is able to understand the benefits and the risks of, as well as the alternatives to, the proposed intervention...; and (c) whether the patient is able to understand and to knowingly and intelligently evaluate the information required to be given patients whose informed consent is sought (§ 5326.2) and otherwise participate in the treatment decision by means of rational thought processes.” (Id. at pp. 1322–1323.) This is not merely a matter of statutory law. Because the special disabilities deprive the conservatee of substantial constitutional rights, due process must be afforded before these rights are compromised. (Conservatorship of Christopher A. (2006) 139 Cal.App.4th 604, 612 (Christopher A.).)
There is nothing in the record to suggest that the requisite findings of incapacity were ever made, or even considered, by the trial court. Although the court found that the conservatee was gravely disabled at the close of the conservatorship hearing, no mention was made by either court or counsel of special disabilities at this time. The first mention of the imposition of special disabilities in the record is the entry of the order that imposes them, which was prepared by county counsel and approved as to form by the conservatee’s counsel. The order repeats the court’s finding that the conservatee was gravely disabled, but it makes no separate findings with respect to incapacity underlying the special disabilities. Without explanation, it simply imposes them.
These circumstances lie at the intersection of two decisions construing the due process requirements of the LPS Act. The first, Conservatorship of Walker (1989) 206 Cal.App.3d 1572 (Walker), involved the reappointment of a conservator. At the reappointment hearing, a psychiatrist testified that the conservatee was a schizophrenic who failed to understand or acknowledge his illness. Without supervision, he would cease taking psychotropic medication and begin acting out in antisocial ways. On the basis of this evidence, the trial court found that the conservatee was gravely disabled and imposed a series of special disabilities. (Id. at pp. 1575–1576.) While the Court of Appeal found substantial evidence to support the finding of a grave disability, it was dissatisfied with the trial court’s imposition of special disabilities, commenting, “While respondent requested that the special disabilities previously imposed on appellant be continued for another year, the evidentiary basis to support his request is unclear.... [Respondent] failed to even address the issue during the hearing. The fact that appellant continued to be gravely disabled did not by itself satisfy the evidentiary requirements for the imposition of special disabilities under section 5357.... [¶] The trial court may have been satisfied by the content of the psychiatrist’s testimony that the special disabilities were warranted. However, the basis for the court’s order in this regard is unclear on this record. The better practice is for the conservator to disclose, by the questions asked or the argument made, the evidence relied upon to support special disabilities under section 5357.” (Id. at pp. 1577–1578, fn. omitted.) In other words, the court determined the record should provide some indication the trial court was aware of the type of findings it was required to make before imposing special disabilities. The court remanded the matter for further proceedings with respect to their imposition.
Walker is indistinguishable from this case. As in Walker, it is possible that sufficient evidence was presented from which the trial court could have concluded imposition of special disabilities was appropriate, but neither counsel nor the court mentioned special disabilities at the hearing. Because of that lack of argument and discussion, there is no way for us, or the conservatee, to know whether the court was even aware of the separate factual findings of incapacity necessary to support their imposition.
We recognize that Walker merely characterized separate discussion of the special disability findings as “[t]he better practice,” without necessarily requiring it. Nonetheless, Walker viewed this better practice to be sufficiently important to require a remand for reconsideration of the special disabilities. To affirm here would be inconsistent with the Walker court’s remand. In any event, as a result of the concerns raised by the second pertinent case, Christopher A., we decline to exercise any discretion we might have to excuse “[t]he better practice” for this conservatee.
In the second case, Christopher A., supra, 139 Cal.App.4th 604, the court conducted a jury trial on the issue of grave disability. Following the jury’s affirmative finding, the court conducted its own hearing on special disabilities and other issues. Before the end of that hearing, and prior to any further findings, the court entered a stipulated judgment submitted by counsel imposing several special disabilities. (Id. at p. 609.) Although the conservatee’s counsel had approved the stipulated judgment, there was no evidence counsel had obtained the consent of the conservatee. The Court of Appeal reversed the imposition of special disabilities in the stipulated judgment on the ground that entry of the judgment prior to any findings by the court as to the conservatee’s capacity had waived the conservatee’s right to a court trial on that issue. Because the conservatee’s consent to this waiver had not been obtained, it was held improper. (Id. at pp. 612–613.)
As a practical matter, the circumstances on this appeal are indistinguishable from those in Christopher A. Before the trial court made any finding on special disabilities, or, as far as the record discloses, had even considered the issue, counsel jointly submitted an order containing them. While the judgment was not literally a stipulated judgment, since the conservatee’s counsel purported to approve the order only “as to form,” the effect was the same as a stipulation in these circumstances. Approval of a proposed order “as to form” indicates counsel’s acknowledgment that the order accurately reflects the announced ruling of the court. Here, however, the court had not announced any ruling as to special disabilities at the time the order was submitted. As a result, counsel’s approval of the order conveyed consent to the substance of this portion of the order, not just approval of its form. Accordingly, as in Christopher A., the conservatee’s counsel effectively waived the conservatee’s right to a court determination of incapacity regarding the special disabilities without consent.
The Public Guardian contends the conservatee waived this issue because no objection was made in the trial court to the imposition of special disabilities. It is by no means clear when the conservatee could have made such an objection. The trial court did not mention special disabilities at the conservatorship hearing, and there is no evidence the conservatee was consulted by her counsel when counsel approved the order containing disabilities. Because the conservatee had no opportunity to object, we find no waiver.
Relying on George H., supra, 169 Cal.App.4th 157, the Public Guardian argues we should affirm the imposition of special disabilities on the basis of the general rule that a judgment is presumed valid if warranted by the evidence. (Id. at p. 165.) While we agree with George H.’s rejection of the claim that the trial court is required to make a separate finding for each special disability, George H. did not purport to reject the long-standing requirement that the trial court acknowledge the separate nature of the decision on special disabilities and make a finding of incapacity. As discussed above, because of the manner in which the special disabilities were imposed here, there is no indication such findings were even considered. Before we can presume the trial court acted properly, there should be some indication in the record that the court was, at a minimum, aware of the findings it was required to make in order to impose the special disabilities. Here, there was no such indication.
George H. does not state the exact manner in which the trial court imposed the special disabilities in that case, stating only that “[t]he trial court here properly specified each of the powers and disabilities it imposed.” (George H., supra, 169 Cal.App.4th at p. 165.) We cannot determine from the decision whether the type of argument demonstrating the trial court’s awareness of the findings it was required to make, deemed to be adequate by Walker, had occurred.
In reaching this decision, we do not mean to suggest agreement with all of the conservatee’s arguments regarding special disabilities. For example, the conservatee argues there was insufficient evidence to support imposition of the special disabilities because the matters covered by the disabilities were never separately and expressly addressed in testimony before the trial court. While it would undoubtedly have been helpful to the trial court to have expert opinion on the various specific matters covered by the special disabilities, this was not a requirement. The trial court is entitled to draw inferences relevant to the special disabilities from general testimony presented about the conservatee’s condition. If, based on testimony about the conservatee’s mental and emotional state, the trial court concludes that it would be appropriate to impose the special disabilities, the decision will not be reversed solely because a testifying expert did not expressly address the disabilities. (See, e.g., George H., supra, 169 Cal.App.4th at p. 165.)
In addition, the conservatee argues that the trial court was required to hold a separate hearing on special disabilities, citing In re Qawi (2004) 32 Cal.4th 1 (Qawi) and Riese, supra, 209 Cal.App.3d 1303, 1324. Neither case requires such a hearing. Qawi concerned mentally disordered offenders (MDO), not LPS conservatees. The central holding of Qawi, that the court cannot presume that a person is incompetent to determine his or her medical treatment merely because he or she has been found to be an MDO, echoes LPS principles. The hearing required by Qawi once an MDO’s parole status ends, however, is provided in an LPS case by the conservatorship hearing. There is no reason why the evidence bearing on special disabilities cannot be presented at the same time as evidence on the existence of a grave disability. Riese, discussed extensively in Qawi, at page 18, established the principle that an LPS conservatee cannot be deemed incompetent to determine his or her medication unless a separate finding has been made to that effect. (Riese, at pp. 1315–1316.) The primary focus of Riese was involuntary detention under section 5250, in which no formal hearing is statutorily required. The court did not suggest that in LPS conservatorship proceedings, in which a hearing is mandated, a separate hearing on incapacity must occur.
In sum, we hold that in an LPS conservatorship hearing, the trial court must, in the absence of consent by the conservatee, rule on the appropriateness of the imposition of a special disability. Ideally, counsel will argue the evidence relating to the finding of incapacity necessary to support imposition of each special disability sought by the conservator, and the court will make the necessary findings on the record as to any special disability imposed. At a minimum, however, there must be some indication in the record that the trial court was aware that an appropriate finding beyond the existence of a grave disability must be made before a special disability may be imposed, and substantial evidence must support the necessary findings.
D. Temporary Conservatorship
As the conservatee acknowledges, the issue of the propriety of the trial court’s proceedings with respect to the temporary conservatorship is long since moot. (E.g., In re Lemanuel C. (2007) 41 Cal.4th 33, 38, fn. 4 [appeal moot where defendant’s detention has ended].) Moreover, the findings necessary to justify the temporary conservatorship were effectively superseded by those made as a result of the contested conservatorship hearing. We therefore decline to exercise our discretion to consider the legality of the temporary conservatorship.
III. DISPOSITION
The portion of the trial court’s order appointing an LPS conservator is affirmed. The imposition of special disabilities stated in the court’s April 2008 order is vacated.
We concur: Marchiano, P.J., Graham, J.
Retired judge of the Marin County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.