Pub. Guardian of Contra Costa Cty. v. T.B.

318 Cal.Rptr.3d 641

CONSERVATORSHIP OF the Person of T.B.

Public Guardian of Contra Costa County, Petitioner and Respondent,

v.T.B., Objector and Appellant.

A167919

Court of Appeal, First District, Division 2.

Filed February 27, 2024

Trial Court: Contra Costa County Superior Court; Trial Judge: Honorable Kirk J. Athanasiou; (Contra Costa County Super. Ct. No. P2201606)

Attorney for Petitioner and Respondent, Public Guardian of Contra Costa County: Thomas L. Geiger, County Counsel, Nina Florence Dong, Deputy County Counsel;

Attorney for Objector and Appellant, T.B.: Rudy Kraft under appointment by the Court of Appeal.

Richman, Acting P. J.

Following a court trial, T.B. was found to be gravely disabled and appointed a conservator under the Lanterman-Petris-Short Act (Welf. & Inst. Code, § 5000 et seq.; LPS Act or Act).¹ T.B. appeals, arguing the trial court violated section 5350, subdivision (d)(2) (section 5350(d)(2)) and denied her due process when it failed to commence her trial within 10 days of her demand for one and denied her motions to dismiss the proceedings on the basis of the delay.

The issue presented involves the proper interpretation of section 5350(d)(2), which, effective January 1, 2023, the Legislature amended to add that the "[f]ailure to commence the trial within [10 days of a demand for trial] is grounds for dismissal." (Assembly Bill No. 2275 (2021-2022 Reg. Sess.) (Assembly Bill 2275); Stats. 2022, ch. 960, § 5.) We hold that the time limit for commencing trials set forth in amended section 5350(d)(2) is directory, not mandatory, and that dismissal for the failure to comply with the time limit is discretionary.

Applying this construction to the facts before us, we conclude that the trial court abused its discretion in denying T.B.’s motions to dismiss the proceedings, but that reversal is not required because T.B. has not demonstrated prejudice. We further conclude that T.B. has not shown her due process rights were violated by the delay. We therefore affirm.

BACKGROUND

The Petition and Pre-Trial Proceedings

On August 4, 2022, after T.B. was charged in a criminal case with two counts of misdemeanor battery upon a peace offi- cer (Pen. Code, § 243, subd. (b)) and found incompetent to stand trial (id., § 1368), her case was referred to the Public Guardian’s Office of Contra Costa County (Public Guardian) to investigate a possible conservatorship for her. (Id. § 1370.01, subd. (b)(1)(D)(iii).)

Deputy Conservator Melinda Shrock, MFT, prepared a report on her investigation. In the report, Shrock noted that she had evaluated T.B. at the detention facility and reviewed T.B.’s medical and psychiatric history, as well police reports from the criminal proceedings. Shrock reported that T.B., then 46 years old, had been diagnosed with schizoaffective disorder and methamphetamine use disorder. She had been homeless since at least 2011, Shrock determined that T.B. was gravely disabled in that she was unable to provide for her food, clothing, and shelter due to having a major mental illness. Shrock thus recommended that T.B. be placed in locked mental health facility where she could obtain structured treatment and safety and be appointed a conservator of her person. Shrock also recommended that certain disabilities be imposed on T.B., including on the privilege of possessing a motor vehicle license, as well as the rights to refuse treatment relating to grave disability, enter into contracts, and possess a firearm or other deadly weapon.

On October 10, the Public Guardian filed a petition for appointment of a conservator, for appointment of a temporary conservator pending resolution of that petition, and for imposition of certain disabilities as recommended in Deputy Conservator Shrock’s investigation report. On the same day the petition was filed, the trial court appointed T.B. both a temporary conservator and counsel.

At a hearing held on November 4, T.B.’s attorney, Deputy Public Defender Alyssa Huff, requested a "jury trial time not waived." The court granted the request. It set trial for 10 days later, on November 14, consistent with section 5350(d)(2), which provided that "trial shall commence within 10 days of the date of the demand."

When the parties appeared at the scheduled trial on November 14, the Public Guardian’s attorney, Monica Mueller of the County Counsel’s Office, requested a continuance because she was "still awaiting records." The court also noted that it was going forward with other trials that week and that no other departments would be available to cover the calendar on conservatorship cases. The court found good cause to continue trial and scheduled it for December 5. T.B.’s attorney did not object to the continuance.

On December 5, the court informed the parties that it was expecting to proceed on another conservatorship trial that week; that there were two potential trials scheduled for that week as well; and that no other departments would be available to cover the conservatorship case calendar. Also, according to the minute order, counsel (of which party was not specified) was going on vacation from December 19 to 26. The court found "good cause to continue this matter due to Court and Counsel unavailability." Trial was continued to January 9, 2023. T.B.’s attorney did not object to the continuance.

Meanwhile, on January 1, 2023, Assembly Bill 2275 took effect. Among other changes, it amended section 5350(d)(2) to include that the "[f]ailure to commence the trial within [the statutory time period] is grounds for dismissal of the conservatorship proceedings." (Stats. 2022, ch. 960, §5.)

On January 9, the parties appeared in court, and, for a third time, attorney Mueller asked for continuance, because she was still awaiting records from one of T.B.’s prior psychiatric providers and was scheduled for another trial that week. The court noted it, too, would be engaged in another trial that week. T.B.’s attorney did not object to the continuance request. Finding good cause to continue trial based on "[c]ourt and [c]ounsel unavailability," the court scheduled trial on February 27 in Department 14.²

On February 27, Mueller reported she had received the records from T.B.’s providers. However, she requested another continuance, stating: "As Your Honor’s already aware, Petitioner has prepared two court trials and two jury trials for this week, prioritizing based on dates set, as well as other issues such as the need for interpreters in certain trials, and in light of being prepared for four trials, Petitioner is not prepared on all 12 that are set for today, and so Petitioner would be moving to continue on this matter based on essentially Petitioner preparing for four others."³

This time, T.B.’s attorney, apparently anticipating another continuance request, filed earlier that day T.B.’s "Objection to Continuance and Motions for Release and Dismissal" pursuant to amended section 5350(d)(2) and the due process clause of the Fourteenth Amendment. She argued that "trial continuances beyond statutory deadlines must occur only for good cause" and that "the trial court’s choice to limit the LPS trial schedule to one [d]epartment only two and a half days per week is not good cause …."

The court found good cause to continue trial, thus overruling T.B.’s objections and denying her motion to dismiss, and scheduled trial for March 27.

On March 27, another attorney from the County Counsel’s office, Nina Dong, appeared on behalf of the Public Guardian and stated she was ready to proceed with trial. The court, however, informed the parties that it was currently occupied in another trial, and that Department 14 was the only department available for conservatorship trials. Again, T.B. had filed earlier that day written objections to any further continuance and another motion to dismiss the proceedings. The court found good cause to continue trial and set it for May 1.⁴

On April 17, although the matter was not formally on calendar, the parties appeared before the court. Without opposition, attorney Mueller requested that the court advance the scheduled May 1 trial date to April 24. The court granted the request.

The Trial

A court trial commenced on April 24—171 days after T.B.’s initial demand for trial—and concluded the following day. T.B. refused transport to the court from the facility where she was placed and also refused to appear via Zoom. T.B., through her counsel, waived her right to be present and to a jury trial.

The Public Guardian called three witnesses: Deputy Conservator Melissa Shrock, T.B.’s father, Andre B., and psychiatrist Dr. Shahbaz Khan.

Shrock qualified as an expert on grave disability. She testified that T.B. was placed at Villa Fairmont Rehabilitation Center, an institution for mental disease. When Shrock had previously interviewed T.B., T.B. stated she had lived with her grandmother until her grandmother passed away 10 years ago. T.B. believed her grandmother was still in the home, even though she had passed, the home had been sold, and other people were living there.

T.B. admitted to Shrock that she had a history of drug and alcohol use. During Shrock’s evaluation, T.B. was observed to be having visual hallucinations. She would swat the counter as if to swat bugs, which were not actually there. She also appeared startled at times, turning around to look as if someone was behind her. In addition, T.B. told Shrock that her father was "Jason" from the movie, "Friday the 13th." T.B. also said that she had never met her father, but Shrock had spoken to her father, who reported that T.B. had lived with him previously. T.B. also had paranoid delusions that someone had electrocuted her during the night and that people could hear her thoughts. T.B. denied having a mental illness diagnosis or needing psychiatric medication.

T.B. told Shrock that she "likes to stay outside." She would obtain food and clothing by asking people for money and, whenever she was at Target, by putting food and...