Conservatorship of the Pers. of Joseph W. Imperial Cnty. Behavioral Health Servs. v. And

199 Cal.App.4th 953

131 Cal.Rptr.3d 896

CONSERVATORSHIP OF the Person of JOSEPH W.

Imperial County Behavioral Health Services, Petitioner and Respondent,

v.Joseph W., Objector and Appellant.

No. D057900.

Court of Appeal, Fourth District, Division 1, California.

Oct. 3, 2011.

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

Michael L. Rood, County Counsel, and Kyle Sand, Deputy County Counsel, for Petitioner and Respondent.

McDONALD, J.

Joseph W. appeals a judgment reestablishing a conservatorship of his person under the Lanterman-Petris-Short (LPS) Act ( Welf. & Inst. Code, § 5000 et seq. ).¹ Following a court (or bench) trial, the trial court found Joseph gravely disabled because, as a result of a mental disorder, he is unable to provide for his basic needs for food, clothing, or shelter. Three days later, Joseph filed a section 5350, subdivision (d), demand for a jury trial on the issue of whether he is gravely disabled. The court concluded Joseph elected to have a court trial on that issue and therefore no longer had a statutory right to a jury trial. On appeal, Joseph contends the trial court (1) erred by denying his demand for a jury trial; and (2) violated his constitutional due process rights by denying his statutory right to a jury trial.² We conclude that, although the trial court erred by misinterpreting Joseph's request for a hearing as a request for a court trial, he waived or forfeited that error, and we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In April 2009, Imperial County Behavioral Health Services (County) filed an LPS ( § 5350 ) petition for appointment of a conservator of Joseph's person, alleging that as a result of a mental disorder, he was gravely disabled in that he was unable to provide for his basic needs for food, clothing, or shelter. On May 19, the trial court entered a judgment appointing County as Joseph's conservator for a one-year period and placing him in a closed, locked treatment facility. On May 24, 2010, the trial court issued an order accepting the parties' stipulation extending Joseph's conservatorship until June 18.

On May 25, County filed an LPS petition (Petition) for ratification of acts and retroactive reappointment of conservatorship of Joseph's person for a one-year period. The Petition alleged that Joseph was gravely disabled because, as a result of a mental disorder, he was unable to provide for his basic needs for food, clothing, or shelter. A declaration by two doctors (one psychiatrist and one psychologist) was attached to the Petition, in which they stated their opinions that Joseph was gravely disabled as a result of a mental disorder and was unable to provide for his basic personal needs for food, clothing, or shelter. Also attached to the Petition was a notice of Joseph's rights and the consequences of reestablishment of conservatorship (attachment A), which stated in part:

"1.... If the Conservator of the person ... wishes to reestablish conservatorship for another year, the conservator must petition the Court to do so. Subject to a request for a court hearing by jury trial[,] the judge may, on the judge's own motion, accept or reject the conservator's petition.

"2. If the conservator petitions to reestablish conservatorship, the conservatee, ... the conservatee's attorney ... shall be notified. If any of them request it, there shall be a court hearing or a jury trial, whichever is requested, on the issue whether the conservatee is still gravely disabled and in need of conservatorship.... [¶] ... [¶]

"4. If the conservator files a petition to reestablish your conservatorship and you object, objection shall be made by filing a written Request for Hearing with the Clerk of the Court within fifteen (15) days of mailing to you of the Notice of Filing of Petition to Reappoint Conservator(s). Otherwise, the Court may, on its own motion, accept or reject the petition. [¶] ... [¶]

"6. If you request a hearing to object to the petition, you have the right to appear at the hearing for reestablishing your conservatorship and to oppose the petition to reestablish your conservatorship. You have the right to an attorney, and the court must appoint, if it has not already done so, the Public Defender or other attorney for you within five days of the date of the petition.... [¶] ... [¶] "8. You have a right to demand a court or jury trial on the issue whether you are gravely disabled. Demand for court or jury trial must be made within five days following the hearing you may request. If you demand a court or jury trial before the date of the hearing, such demand constitutes a waiver of the hearing. The court or jury trial must commence within ten days of the date of the demand.... The burden is on the petitioner [(County)] to prove beyond a reasonable doubt that you are gravely disabled. The verdict by a jury trial must be unanimous."

Joseph and the Imperial County Public Defender (his appointed counsel) were served with the Petition and its attachments.

On May 25, Joseph, through his counsel, filed an objection to the Petition and "request[ed] a hearing on the matter." He also served on County a notice of the hearing set for June 14.

On June 14, the trial court announced the matter and stated that Joseph and his counsel were present. The court stated: "We're here on a reappointment. We have an objection filed May the 25th. Are we ready to proceed?" County's counsel confirmed she was ready and called her first witness, Vijay Chennamchetty, a psychiatrist, to testify. He testified that he had interviewed Joseph twice and reviewed his (Joseph's) medical records showing his condition had been diagnosed as schizoaffective disorder. Chennamchetty expressed his opinion that Joseph suffered from a mental illness and was gravely disabled. Joseph's counsel then extensively cross-examined Chennamchetty regarding his opinion.³ County's counsel then called Joseph to testify and extensively questioned him on direct examination.⁴ Joseph's counsel then cross-examined him. County's counsel then recalled Chennamchetty and conducted redirect examination. Joseph's counsel conducted recross-examination of Chennamchetty. County's counsel then called Patricia Carl, a County employee, who testified regarding statements Joseph made at the end of a November 2009 court hearing.

County's counsel then rested. Joseph's counsel stated: "I don't have any witnesses." Joseph's counsel made his closing arguments opposing the reestablishment of the conservatorship and then County's counsel made her rebuttal arguments in favor of reestablishment. Following counsel's closing arguments, the trial court stated:

"This is a close case. The threshold issue of course is whether or not [Joseph] suffers from a mental illness. And I believe it's been shown that he does have schizoaffective disorder of schizophrenia. So the question then becomes whether by reason of that mental illness he's able to provide an assessment to provide food, clothing, shelter.

"And we get into sort of a tight spot in these cases when a person who is able to provide those things while on medication, the question then becomes will they continue with the medication after they're not on conservatorship. And I think it's been shown, frankly, beyond a reasonable doubt, that [Joseph] at least at this point will not."

The trial court overruled Joseph's objection to the Petition and reestablished the conservatorship. The court entered a judgment finding Joseph gravely disabled because, as a result of a mental disorder, he was unable to provide for his basic needs for food, clothing, or shelter. The court reestablished Joseph's LPS conservatorship for an additional one-year period and ordered that he be placed in a closed, locked treatment facility.

On June 17, Joseph, through his counsel, "demand[ed] a jury trial on the issue of grave disability pursuant to ... § 5350 [, subdivision] (d)." On July 19, after hearing arguments of counsel, the trial court confirmed its judgment reestablishing the conservatorship. The court stated: "The request for hearing filed by [Joseph] on May 25th elected a court trial and there is no statutory right to have a jury trial now." Joseph timely filed a notice of appeal.

DISCUSSION

IMootness

County asserts Joseph's appeal should be dismissed because he no longer is subject to a conservatorship and therefore his appeal is moot. On or about January 20, 2011, we granted Joseph's December 6, 2010, request for judicial notice of the trial court's order terminating his conservatorship. County argues that because we cannot grant any effective relief to Joseph, we should dismiss his appeal as moot. (See Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541 [63 Cal.Rptr. 21, 432 P.2d 717].)

Because Joseph is no longer a conservatee, we cannot grant him any effective relief. Nevertheless, we agree with Joseph that because the issue presented by his appeal is capable of recurring, but evading review, and involves a matter of general public interest, we should exercise our discretion to address the merits of his appeal, in which he contends he was erroneously denied the right to a jury trial after requesting a hearing under section 5362.

"Because a conservatorship is relatively brief (one year) in comparison with the appellate process, we find it likely that this issue ... is one capable of recurring, yet of evading review because of mootness." (Conservatorship of Susan T. (1994) 8 Cal.4th 1005, 1011, fn. 5 [36 Cal.Rptr.2d 40, 884 P.2d 988].) Because procedures for reestablishment of conservatorships "are of great public interest" and a reestablishment issue "could perpetually evade appellate scrutiny" (Conservatorship of Moore (1986) 185 Cal.App.3d 718, 725 [229 Cal.Rptr. 875]), we exercise our discretion to consider, and address the merits of, this appeal. ( Ibid.; Conservatorship of Rodney M. (1996) 50 Cal.App.4th 1266, 1269, fn. 4, 58...