Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, No. MH90596. Theodore M. Weathers, Judge.
McINTYRE, J.
Seth H. appeals from an order in a conservatorship proceeding under the Lanterman-Petris-Short Act (the Act, Welf. & Inst. Code, § 5000, et seq.) removing his mother, Debra H., as his conservator and granting the public conservator's petition to succeed Debra as his conservator. He asserts the trial court erred because it failed to follow statutorily mandated procedures and substantial evidence did not support the order. We disagree and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Seth, currently 29-years old, has suffered from paranoid schizophrenia since he was 16-years old. In 1999, when Seth was 18-years old, the court appointed Seth's father, Larry H., as his conservator. In 2006, the court appointed Debra as Seth's successor conservator after Larry and Debra separated for a period of time. In July 2008, the public conservator of San Diego County filed a petition requesting that Debra be relieved as Seth's conservator and it be appointed as Seth's successor conservator for the remainder of the conservatorship. The conservatorship investigation report accompanying the petition revealed the following.
Between October 2007 and January 2008, Seth was hospitalized on three separate occasions and later returned home. In February 2008, Debra called the police after Seth threatened her with a pair of scissors. Seth was hospitalized for nine days after this incident and then transferred home. Less than ten days later, Seth's parents called the sheriff after Seth threatened them with a knife and he was hospitalized for about a month. In April 2008, Seth was hospitalized for ten days.
In June 2008, Seth's parents had him hospitalized after he poked Larry with a knife and slapped Debra in the face. During this hospitalization, Seth's treating psychiatrist, Dr. Marc Sternberg, wrote a letter recommending that Debra be removed as Seth's conservator and that Seth be placed in a board and care facility. He opined that Seth's recent behavior "represented an escalation from previous aggressive behaviors" and strongly recommended that Seth not return home. Although Dr. Sternberg had a lengthy telephone conversation with Debra in which he predicted future violence, Debra insisted that Seth be returned home. The hospital, however, transferred Seth to a special residential treatment program.
Dr. Brian Miller, the treating psychiatrist at the program, also recommended that Debra be removed as Seth's conservator "based on her inability to properly provide for him." He noted that Debra refused to place Seth in a board and care facility and rejected ongoing use of long-acting injectable medications despite the fact that Seth's refusal to take his medications and resulting aggressive behavior toward his parents caused Seth's hospitalizations over the last year. Dr. Miller opined that Debra was unable to properly act on Seth's behalf to ensure effective treatment of Seth's condition and expressed concern that Seth would act dangerously if his illness was not better controlled.
Debra opposed the request, contending that adverse side effects from a long-acting injectable medication caused Seth's last hospitalization. She provided details about the incidents involving the scissors and the knife, asserting that Seth never threatened her with the scissors and that he "gently poked" Larry with the knife in a "playful manner" and did not slap her hard. At the same time, Debra noted that Seth had been pocketing or spitting out his medication before the incident involving the knife. She also conceded that Seth had medication compliance problems and that his failure to take his medications caused his aggressive behavior.
At the hearing on the petition, Dr. Sternberg testified that Seth has never shown aggression towards anyone outside the family and has always demonstrated medication compliance in a hospital setting. He opined that Seth had a better chance of complying with his medication regime in a non-home environment because patients were more compliant taking medicine from an objective third person. After hearing testimony from Seth and Debra and the arguments of counsel, the court found it was in Seth's best interest to relieve Debra as Seth's conservator and appoint the public conservator as Seth's successor conservator.
DISCUSSION
A. Legal Principles and Standard of Review
A conservator may be appointed under the Act for those persons who are found to be "gravely disabled" as a result of a mental disorder. (Welf. & Inst. Code, § 5350.) The court has discretion to appoint a conservator, guided by the best interests of the conservatee (Prob. Code, § 1812, subd. (a), all undesignated statutory references are to the Probate Code), with preference given to relatives of the conservatee unless the investigating officer recommends otherwise. (Welf. & Inst. Code, § 5350, subd. (b)(1); § 1812, subd. (b).) If the conservatee is present at the hearing for appointment of a successor conservator, before making an order appointing the successor conservator, the court must inform the conservatee that, among other things, the conservatee has the right to nominate a person to be appointed as successor conservator. (§ 2685, subd. (c).)
A conservator may be removed only under certain situations (§ 2650, subd. (a)-(h)) and "[i]n any other case in which the court in its discretion determines that removal is in the best interests of the ward or conservatee...." (§ 2650, subd. (i).) The decision to remove a conservator involves a factual decision by the trial court and its decision will not be disturbed on appeal absent an abuse of discretion. (See, e.g., In re Estate and Guardianship of Davis (1967) 253 Cal.App.2d 754, 761; In re Howard's Estate (1955) 133 Cal.App.2d 535, 539 [addressing former § 1580].) Unless a clear case of abuse is shown and there has been a miscarriage of justice, we will not substitute our judgment for that of the trial court. (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)
B. Analysis
As a threshold matter, we reject Seth's assertion that a conservator can be removed only for a serious violation of trust. This contention is not supported by any authority or the plain language of subdivision (i) of section 2650. We also reject Seth's assertion that the order must be reversed because the trial court neglected to inquire who he wanted to be appointed as his successor conservator as required by subdivision (c) of section 2685. Seth waived the error because he failed to raise this procedural deficiency in the trial court when it could have been easily corrected. (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 285-286.) Additionally, he presented no authority or argument to support his assertion that the court's failure to so inquire amounted to a miscarriage of justice warranting reversal of the order. (Cal. Const., art. VI, § 13.) In any event, Seth testified that his parents have always acted as his conservator and that he wanted his mother to remain his conservator. His counsel noted the statutory preference that a family member act as conservator, but suggested no alternative to the public conservator should the court decide to remove Debra as Seth's conservator.
We conclude that the trial court did not abuse its discretion in removing Debra as Seth's conservator and appointing the public conservator because substantial evidence supports the court's decision.
Drs. Sternberg and Miller noted that Seth's noncompliance regarding his medications caused him to become aggressive towards his parents and that his aggression had escalated over the past year. Debra admitted that Seth spit out or pocketed his medications and that his behavior suffered as a result. She also acknowledged Seth's dangerous propensities, but explained that she and Larry were extremely cautious and often called the police earlier than necessary.
It appears, however, that Debra did nothing to address Seth's noncompliance; rather, she waited until Seth's behavior became menacing and then called the police to have him removed and hospitalized before his behavior became violent. Although Debra claims the physicians overstated the facts surrounding the incidents involving the scissors and the knife, her actions belie this. Seth's behavior must have intimidated her because she called the police and insisted that he be hospitalized. Dr. Sternberg was rightfully concerned that the situation was a "disaster waiting to happen" should Debra miscalculate Seth's mental state.
While it is undisputed that Debra loves Seth and has his best interests in mind, Dr. Sternberg opined that love sometimes clouds a person's judgment. Under these facts, the trial court acted in Seth's best interests when it removed Debra as Seth's conservator and appointed the public conservator as the successor conservator.
DISPOSITION
The order is affirmed.
WE CONCUR: McCONNELL, P. J. BENKE, J.