A.P.S. v. R.C. (In re Conservatorship of Person & Estate of B.S.)

Conservatorship of the Person and Estate of B.S.

A.P.S., Petitioner and Appellant, v. R.C., as Conservator, etc., Objector and Respondent.

A154819

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR

September 24, 2019

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Contra Costa County Super. Ct. No. MSP1600887)

A.P.S. (Father) and R.C. (Mother) are the parents of an adult developmentally disabled son who requires significant ongoing care. The parents are embroiled in a dispute over which of them should serve as limited conservator for their son,¹ which in turn reflects their differing views of what form of treatment and what living situation is best for him. Mother is currently the limited conservator and has acted in that capacity since June 2016. Father's primary complaint is that Mother has not followed medical recommendations from doctors at UCSF Medical Center (UCSF) and, over a considerable period of time, has treated their son with cannabis instead. In October 2017, Father filed a petition to remove Mother as limited conservator and a petition to beappointed himself as successor limited conservator. In May 2018, Father's petitions were denied and Mother was retained as limited conservator of the person and estate of their son. Father now appeals.

We find Father has established grounds for reversal based on the trial court's exclusion of significant relevant medical and other evidence in the May 2018 trial in response to two motions in limine filed by Mother. Because we conclude there is a reasonable probability that consideration of the excluded evidence could lead to a different result, we remand the cause for retrial on Father's petitions.

I. BACKGROUND

Father and Mother were once married and had a son, B.S., who, though normal at birth and throughout his childhood, developed psychiatric problems and developmental delays in his early teens that have affected his intellectual development, rendering him disabled and in need of a limited conservator, as both parties acknowledge.² B.S.'s symptoms include becoming hostile and even violent at times, especially with Mother. Father and Mother divorced some 15 years ago in Solano County, where Mother lives. Father lives in Contra Costa County. The couple shared custody of B.S. equally through his teen years up until his 18th birthday, apparently without acrimony, but things changed when he became an adult.

Shortly after B.S. turned 18, in June 2016, Mother, represented by attorney Konstantine Demiris, filed in Contra Costa County an ex parte petition to become B.S.'stemporary limited conservator, along with a petition to become his limited conservator on an ongoing basis. (Prob. Code, §§ 1820, subd. (a)(3), 1821, 2250.) Mother alleged, as the reason for proceeding ex parte—with no notice to Father—that Father was planning within a matter of days to take B.S. to India permanently, against Mother's and B.S.'s wishes, and contrary to the best interests of B.S. She alleged B.S. was receiving specialized care from UCSF and no commensurate level of care was available in India.³ The petition for temporary conservatorship was granted with a termination date of March 17, 2017 (see Prob. Code, §§ 2251, 2257, subd. (b)), and a hearing on the petition for ongoing conservatorship was set for August 24, 2016. An attorney, Matthew Toth, was appointed to represent B.S.

Before the scheduled hearing, Father, acting pro se, filed a written objection to the appointment of Mother as conservator. (Prob. Code, §§ 1020, 1043, 1829.) Attached as exhibits were letters from two psychiatrists, a psychologist, and four family friends, all of whom attested to Father's meticulous care for B.S. and the improvement in B.S.'s medical condition under Father's care. On August 17, 2016, a court investigator, Corey Ordonez, signed a report recommending that Mother's petition be granted, but Ordonez anticipated that Mother would file an amended petition requesting that both parents be appointed co-conservators, as that was their mutual desire when he interviewed them. (See Prob. Code, §§ 1419, 1454, 1826, 1851, 2250.6.) Included in Ordonez's report was a statement by Father denying that he wanted to relocate B.S. to India, and saying he only wanted to take B.S. there for a vacation. B.S.'s attorney (Toth) recommended granting Mother's petition, but he had not spoken to Father before reaching that conclusion. The court continued the matter to October 17, 2016.

On that date Father, still acting pro se, filed a petition to be appointed limited conservator for his son. The court ordered the parties to mediation and continued the matter to December 7, 2016.

According to Father, on November 7, 2016, B.S. became very aggressive with Mother, and the police were called. B.S. was put on a hold under Welfare and Institutions Code section 5150 (section 5150) at the Sutter Solano Medical Center (Sutter Solano) emergency room in Vallejo for three nights. He was later moved to the Sierra Vista Behavioral Center in Sacramento and held there under Welfare and Institutions Code section 5250 until November 22, 2016. Father alleged this was at least the fourth section 5150 commitment for B.S. since Mother had been appointed temporary conservator.

At the continued hearing on December 7, 2016, Father requested regular visitation with B.S. and asked to be allowed to make medical appointments for him. By that time, according to a letter attached to Father's objection to appointment of Mother as conservator, B.S.'s doctor at UCSF was recommending that he be moved to a residential treatment center as the "most likely means by which his long-term recovery can be maximized." A trial was set for both parties' petitions for January 27, 2017.

Around this time, according to Father, Mother stopped taking B.S. to UCSF for treatment and stopped giving him the prescribed medications. She explained that she did not like taking him to doctors' appointments because he might act out in the doctor's office. Father accuses her of ignoring B.S.'s best interests.

A few days before the trial in January, Father filed an amended request for visitation, a request for joint conservatorship, and a request to make medical appointments for B.S. Specifically, Father requested the court's permission "to place him in a long term residential treatment facility of at least 4-6 months in the short term, and in the long term allow [Father] to schedule and transport him to the doctor office for his regular medical appointments."

Although we have no transcript of the trial, it went forward on January 27, 2017, and at its conclusion, Judge John Sugiyama granted Mother's petition, giving her therights, inter alia, to fix B.S.'s place of residence and to give or withhold medical consent. (See Prob. Code, § 2351.5, subd. (b)(1) & (b)(5).) Judge Sugiyama set a hearing on Father's request for visitation for March 2017. He set Father's petition to be appointed conservator for trial on April 7, 2017.

On March 8, 2017, judgment was entered on the January 27 orders, and the next day, letters of limited conservatorship issued to Mother. Also on March 9, Father substituted in an attorney, Nathan Pastor, to represent him.

At the March hearing on visitation, Mother continued to assert that Father intended to take B.S. to India. B.S.'s attorney Toth told the judge he had requested B.S.'s passport from Father, but it had not been turned over. The judge ordered Father to have no visitation until the passport was turned over and ordered the parties to meet and confer regarding visitation.

Two days before the scheduled April 7 trial, Pastor filed a status report saying Father would not appear. The matter was held in abeyance. In May 2017, Father again began representing himself, but took no further action for several months.

On October 2, 2017, Father substituted in new counsel, Terence Murphy. On the same date, Father filed a petition to remove Mother as limited conservator and a subsequent petition to be appointed successor limited conservator for B.S., which were opposed by Mother.⁴ At the hearing on October 30, 2017, Father said he was seeking to become conservator so he could get B.S. enrolled in a long-term care treatment program, instead of taking him to the emergency room or calling the police when problems arose, as Mother had been doing. The court appointed Mother and Father as co-conservators temporarily, instructed Father to investigate the eligibility requirements for the long-term care program, and set a hearing for December 11, 2017.

In November 2017, B.S. was again placed on a section 5150 hold at Fremont Hospital. On that occasion he punched Mother, broke an air conditioning unit in their home, and destroyed some window treatments. B.S. again had cannabis in his system and was diagnosed with cannabis abuse disorder.

In a report signed December 7, 2017, the court's investigator Ordonez concluded: "It appears that both parents care about the conservatee, however, it is apparent to this investigator that [Father's] thoroughness and dedication would make him the preferred person to deal with the conservatee's medical affairs. [Mother] has been less than forthcoming with information and has not been responsive to this investigator. It appears that her lack of responsiveness is not isolated to her interactions with the Court; [Mother] also apparently fails to follow up with medical professionals as well. [Father], however, has been very responsive and appears to have plans to stabilize the conservatee so that he can be placed in a care facility." This report was admitted at trial.

A bench trial on Father's petitions began on May 9, 2018 before Judge...