Conservatorship of Deidre B.

180 Cal.App.4th 1306

103 Cal. Rptr. 3d 825

Conservatorship of the Person of DEIDRE B SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Petitioner and Respondent, v. DEIDRE B., Objector and Appellant.

No. D054783.

Court of Appeals of California, Fourth District, Division One.

January 11, 2010.

Suzanne M. Davidson, under appointment by the Court of Appeal, for Objector and Appellant.

John J. Sansone, County Counsel, and William A. Johnson, Jr., Deputy County Counsel, for Petitioner and Respondent.

OPINION

HALLER, J.

Deidre B. appeals from a judgment reestablishing conservatorship of her person. She contends the trial court violated her due process rights by accepting a stipulation filed by her attorney stating she consented to the reestablishment and waived her right to a formal hearing. We reject this contention.

(1) We also reject Deidre's assertion that we should consider a postjudgment declaration in which Deidre raises new factual allegations challenging her knowing consent to the stipulated reestablishment. Although filed with the trial court after the judgment, this declaration was never presented to the trial court for a ruling. When a conservatee seeks to challenge his or her consent after entry of a stipulated judgment, these new factual allegations should be resolved at the trial court level through a petition for rehearing or a habeas corpus petition. Pursuit of appellate remedies without obtaining a ruling from the trial court merely prolongs the process without providing the conservatee the opportunity to seek timely relief.

We affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

On October 21, 2008, the San Diego County Public Conservator filed a petition to reestablish a conservatorship of Deidre under the Lanterman-Petris-Short (LPS) Act on the grounds that she remained gravely disabled and was unable to provide for her basic needs of food, clothing, and shelter. (Welf. & Inst. Code, § 5000 et seq.)¹ The public conservator sought to place Deidre in a board and care facility and to impose various disabilities on her.² The petition was supported by the declarations of two physicians attesting to Deidre's mental illness (chronic paranoid schizophrenia), her inability to provide for her basic needs, and her need for placement in a board and care facility.

Deidre and the public defender's office were served with the citation, a copy of the petition, and a notice of the hearing date. These documents set forth the basis for the reestablishment, the requested disabilities and placement at a board and care facility, and the conservatee's right to counsel, to appear at the hearing, and to request a jury trial.

On January 28, 2009, Deidre's appointed attorney (Deputy Public Defender Susan McInerney) filed with the court a "Stipulation of Attorney to Reestablish L.P.S. Conservatorship." The stipulation, signed under penalty of perjury by McInerney, stated that on January 26, 2009, she had personally contacted Deidre by telephone and discussed the reestablishment with her, including the proposed placement and disabilities. The stipulation stated Deidre had knowingly and willingly consented to renewal of the conservatorship, consented to the matter being handled by stipulation and without a formal court hearing, and consented to the proposed placement and disabilities without a formal hearing.³

The stipulation was supported by a declaration entitled "Advisal to Proposed Conservatee" signed under penalty of perjury by McInerney setting forth the advisements she had given Deidre concerning the proposed reestablishment of the conservatorship. The advisements explained the nature and purpose of the proceedings, the consequences of reestablishment including the loss of certain rights, and the rights of the proposed conservatee to oppose the proceeding, to request a jury trial, and to be represented by counsel.

On February 3, 2009, the reestablishment petition was amended to request that Deidre be placed in a closed, locked facility. To support this, the county investigator submitted a declaration explaining that since November 23, 2008, Deidre had been in a locked facility rather than a board and care facility. Accordingly, the investigator stated that, with the concurrence of McInerney, this was the requested placement. However, on February 24, 2009 (the day of the reestablishment hearing), the petition was amended to again request placement in a board and care facility. In his declaration, the investigator explained that, again with the concurrence of McInerney, Deidre was ready to be discharged back to the board and care level because her condition had improved.

At the February 24, 2009 hearing on the reestablishment petition, Deputy Public Defender Stanley Jones appeared on behalf of Deidre (who was not present). Jones told the court that McInerney "was not convinced, based on discussions with [Deidre], that she was or was not contesting the reestablishment." To resolve this uncertainty, Jones stated that he had spoken to Deidre that morning by telephone, and she indicated she did not want to contest the proceeding or come to court.⁴ The trial court accepted the prior stipulation filed by McInerney, found that Deidre's presence had been waived by her counsel, and entered a judgment ordering that the conservatorship be reestablished with the requested disabilities and that placement be in a board and care facility.

Thereafter, on March 11, 2009, Deidre filed a declaration with the trial court stating that she believed she was able to provide for her basic needs. In the declaration, she claimed that McInerney had contacted her one time in a five-minute phone conversation, but did not advise her of her due process rights, including her right to request and appear at a court hearing or jury trial, and did not advise her of the disabilities that would be imposed on her. She stated that her attorney merely informed her that the public conservator would be appointed as her conservator, and that she had not opposed the reestablishment because her attorney "told [her] nothing." Further, she claimed the county investigator told her that if she waived her right to a hearing, he would move her to a board and care facility.

The record does not reflect the circumstances under which the declaration was generated. Apparently, Deidre's trial counsel was unaware of the declaration; the conservator was not served with a copy of the declaration; the declaration was unaccompanied by any pleading requesting review by the trial court; and the trial court never considered or ruled upon the matters raised in the declaration.

On March 12, 2009, Deidre filed a notice of appeal to contest the court's reestablishment judgment.⁵

DISCUSSION

Deidre contends the trial court violated her due process rights when it accepted the stipulation from her attorney stating that she consented to the reestablishment and waived her right to a formal hearing. Deidre asserts the court should not have accepted the stipulation once Attorney Jones informed the court that Attorney McInerney was not certain Deidre was consenting to reestablishment of the conservatorship.

(2) As Deidre recognizes, in prior cases we have evaluated procedures for reestablishing a conservatorship by a stipulated order and concluded they comport with due process. (Conservatorship of Tian L. (2007) 149 Cal.App.4th 1022 [57 Cal.Rptr.3d 382] (Tian); Conservatorship of Moore (1986) 185 Cal.App.3d 718 [229 Cal.Rptr. 875] (Moore).) (3) Under the LPS Act, conservatorships automatically terminate after one year. (§ 5361.) The conservatee and the conservatee's attorney are given at least 60 days' notice of the pending expiration, and 15 days' notice of the hearing date for reestablishment of the conservatorship. (§§ 5362, subd. (a), 5365; Prob. Code, § 1824⁶; Super. Ct. San Diego County, Local Rules, rules 8.2.31, 8.2.32C.)⁷ These notices include a statement informing the conservatee of the potential disabilities and the due process rights associated with establishment of a conservatorship, including the right to counsel and the right to request and appear at a court hearing or jury trial to contest reestablishment. (Prob. Code, § 1823; Welf. & Inst. Code, §§ 5362, 5350, subd. (d).)

(4) The reestablishment hearing is conducted according to the same rules that govern the initial establishment of a conservatorship. (§§ 5350, subd. (d), 5362, subds. (a), (b); rule 8.2.34; Conservatorship of Kevin M. (1996) 49 Cal.App.4th 79, 84 [56 Cal.Rptr.2d 765].) The state has the burden to prove beyond a reasonable doubt that the conservatee remains gravely disabled. (Conservatorship of Amanda B. (2009) 173 Cal.App.4th 1380, 1385 [93 Cal.Rptr.3d 817]; Conservatorship of Christopher A. (2006) 139 Cal.App.4th 604, 611 [43 Cal.Rptr.3d 427].) The conservatorship may be reestablished in summary fashion at an initial court hearing, or, upon request within five days of the initial hearing, through a full court or jury trial. (§§ 5350, subd. (d), 5365, 5362, subd. (b); Conservatorship of Chambers (1977) 71 Cal.App.3d 277, 283 [139 Cal.Rptr. 357]; Conservatorship of Delay (1988) 199 Cal.App.3d 1031, 1036 & fn. 4 [245 Cal.Rptr. 216] Conservatorship of Pollock (1989) 208 Cal.App.3d 1406, 1411 [257 Cal.Rptr. 14]; Conservatorship of Kevin M., supra, 49 Cal.App.4th at p. 84.)⁸ If a full court hearing or jury trial is not requested, "[t]he conservatee, or the attorney for the conservatee, may stipulate to the re-establishment of the conservatorship." (Rule 8.2.33.)

(5) The conservatee must be present at the reestablishment hearing, advised about his or her due process rights and the nature and consequences of a conservatorship, and questioned about his or her opinion concerning the proposed conservatorship. (Prob. Code, §§ 1825, subd. (a), 1828, subds. (a) (b); Tian, supra, 149 Cal.App.4th at p. 1029; Conservatorship of Ivey (1986) 186 Cal.App.3d 1559, 1567-1568 [231 Cal.Rptr. 376].) However,...