LPS MENTAL HEALTH CONSERVATORSHIP

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  • LPS CONSERVATORSHIPS FOR THE GRAVELY DISABLED
    • LPS Conservatorship Court Overview >
      • Public Conservator >
        • Los Angeles Public Guardian
        • CONSERVATORSHIP INVESTIGATION REPORT
        • CAREER >
          • Continuing Education
          • Public Conservator County Numbers '16
          • San Diego Public Conservator '19
        • LPS Conservatorship for Dependent Parents and Minors
      • WHY ARE LPS CONSERVATORSHIP AND PROBATE CONSERVATORSHIPS DIFFERENT
      • Court of Appeals >
        • In re Ben C- Wende Brief no issue writ
      • Trial Court Transcript
      • Conservatorship Legal Documents
      • INITIAL INVOLUNTARY PROCEEDINGS >
        • Grave Disability >
          • Present Grave Disability
        • Venue
        • Conservator's Bond
        • When the Conservatee Goes AWOL
        • Involuntary Commitment
        • Conservatorship Factors
        • Riese Hearing >
          • Riese Hearing
        • Supplemental Security Income/ SSI >
          • Applying for SSI
          • Documents for SSI
          • Process and Appeal
          • Award Letter
          • Rep Payee
          • SSI Amounts 2018/2019
  • LPS Conservatorship Case Law
    • THE ABSOLUTE STATE OF THE COURT OF APPEALS
    • Conservatorship of Isaac O- court report omission and jurisdiction
    • Disparate Treatment- Conservatorship of E.B
    • Conservatorship of KW- hearsay and jury instructions
    • Peremptory Challenges and Conservatorship of Gordon
    • Conservatorship of Sorenson privacy rights and LPS matters
    • Imposition of special disabilities- Conservatorship of Walker
    • Continuing Jurisdiction/Jury Instruction and Conservatorship of McKeown
    • Hearsay and conservatorship of Manton
    • Conservatorship of the Person of S.A.
    • Writ of Habeas Corpus burden of proof
    • Conservatorship of Roulet- burden of proof
    • Special disabilities and due process- Conservatorship of K.G and Donna H.
    • Conservatorship of Davis and Third party assistance
    • Marsden hearings/ due process Conservatorship of David
    • Conservatorship of Torres and admissibility
    • Jury Instruction and Conservatorship of Law
    • Conservatorship of George H- jury instruction
    • Public Conservator's Exclusive Power to Initiate LPS Conservatorship Kaplan v. Superior Court
    • Constitutionality of LPS conservatorship- Conservatorship of Delay
    • Investigation report- Conservatorship of Ivey
    • Conservatorship of Jesse G
    • Grave Disability Standard and Jury trial notice Conservatorship of Benvenuto
    • Conservatorship of Kennebrew vs Conservatorship of Karriker
    • Jury Trial Delays - Conservatorship of Joanne R.
    • Conservatorship of Hofferber- criminal incompetence and LPS
    • "Discretionary abuse" Conservatorship of G.H.
    • In re Elizabeth R- LPS Conserved Parent with a concurrent dependency case
    • Conservatorship of C.O. - Waiver of Jury Trial
    • Conservatorship of Smith and strange behaviour
    • Jury Trials- ​Conservatorship of Jose B
    • Conservatorship of Baber and Double jeopardy and third party evidence >
      • WIP- Conservatorship of Tedesco
      • Conservatorship of Symington (1989)
      • Effective Counsel
      • Faretta and Marsden
      • Exceptions: Third Party Evidence
      • Exclusionary Rule WIP
      • Fifth Amendment Rights
  • LIFETIME PROHIBITOR WELF & INST CODE § 8103 SUBD. (F)(1)(B) 18 U.S.C. § 922 (G) (4)
    • CA MHRS >
      • Armed and Prohibited Person System
    • National Instant Criminal Background Check System (NICS)
    • Registration
  • For LPS Conservatees
    • RIGHT TO APPEAR IN COURT
    • JUDICIAL REVIEW >
      • WRIT OF HABEAS CORPUS
    • NOTICE
    • MEDICATION
    • PLAN OF CARE IF DISCHARGED
    • RIGHT TO COUNSEL
  • BUILDING A STRONG CASE FOR CONSERVATORSHIP
    • POWERS OF CONSERVATOR >
      • Placement Powers
      • Medication powers
    • WHY ONLY THE PUBLIC CONSERVATOR IS ALLOWED TO FILE FOR LPS CONSERVATORSHIP
    • SERVING AS CONSERVATOR
    • DSM V DIAGNOSIS LIMITS
    • CONSERVATEE INTERVIEW
    • HISTORY OF DECOMPENSATION AND LACK OF INSIGHT
    • WRAPPING IT ALL TOGETHER AND CREATING THE NEXUS BETWEEN SYMPTOMS, HISTORY, COMPLIANCE, THIRD PARTY ASSISTANCE TO PROOF OF CURRENT GRAVE DISABILITY BEYOND A REASONABLE DOUBT
  • JUVENILE DEPENDENCY
    • FAST TRACK DEPENDENCY
    • DEPENDENCY APPEALS
    • DETENTION
    • JURISDICTION DISPOSITION (JURIS/DISPO)
    • §366.26 Hearing: Selection and Implementation
    • 730 Evaluators
    • Case Plan
  • New Updates
    • Right to Choose

10/12/2021

litigating 300 (b) counts

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Defending failure to protect counts (B) counts
 
 
In order to sustain a b count, the department must demonstrate by by a preponderance of the evidence that a minor has suffered or there is a substantial risk that the child will suffer serious physical harm or illness as a result of the parent’s failure or inability to adequately supervise and protect the child. There may also be a finding that the parent willfully or negligently failed to protect the child from an abusive caretaker.
 
First counsel needs to remember what factors go into a b count.
 
 
In determining negligence parent’s counsel will need to understand the three factors that go into making a finding of negligence. The first is (1) was there negligent conduct by the parent that (2) caused or resulted in (3) serious physical harm or illness to the minor.
 
These criteria are laid on in in re Rocco M., 1 Cal. App. 4th 814, 2 Cal. Rptr. 2d 429 (1991), modified (Dec. 19, 1991), and abrogated by In re R.T., 3 Cal. 5th 622, 399 P.3d 1 (2017)
 
BUT REMEMBER that this case is currently uncitable.
 
 
Remember that this is dependency court so the department will also be examining to determine whether there was a substantial risk posed by the parent’s negligence. The department likes to err on the safe side of things so they will often make the case for substantial risk and not wait for an actual event to happen to the child. They will create the nexus between two incidents be it mental illness or past drug use and it is incumbent on parent’s counsel to disprove the nexus.
 
 
 
Negligence brief overview
 
Negligence is doing something that an ordinary prudent person would not have done or not doing something that such a person would have done in a certain situation. If there was a traumatizing or harmful event that transpired to the child negligence via omission would be failure to provide therapy and medical care to the minor. Remember negligence can be an act or failure to act. Do not forget that omission carries equal weight as doing an act.
 
 
Defending on negligence cases.
In cases where the court looks at whether the parent acted in a manner to keep a minor safe from a dangerous person, counsel need be mindful of several issues. First, did the parent know that the other person was dangerous or has a pattern of acting in a way that would put the minor in danger. Demonstrating that parent did not have access to social media posts, text messages, or situations where they could see the person acting dangerously, will be key to proving that parent did not have an idea of the other caretaker’s ability to keep minor safe. In gathering this evidence make the nexus between the availability of this evidence and how accessible it would be for a reasonable person/parent to know. If there are secret conversations about how dangerous a relative may be but those conversations are never disclosed or made accessible for a reasonable parent to find then counsel has a strong case for the parent should they mistakenly place their child in the care of that person and the minor gets hurt later on.
 
In the same vein, consider foreseeability. If the parent may have known about the potential ability to put their child in danger, then would a reasonable parent have the ability to foresee the dangerous act and act on it. For example if the parent left the minor with a relative and then another family member tells the parent that that relative has a history of hitting or leaving the child at home alone, then the parent has the insight or foreseeability to know that there is an elevated risk of that caretaker hurting or allowing the child to become injured should they leave the minor in that relative’s care again. If the abuse happened and the parent learns about it later, the department and minor’s counsel will look to see, did the parent separate from that person. Did they go to DV classes if ordered to? Did they express an understanding of why return to that abusive person is bad for them and the minor? Initial denial may be forgivable as shock and disbelief is very common but persistent refusal or denial may be grounds to show that the parent is in denial that will set up the grounds for a finding that the FTP will happen again.
 
However, counsel need be mindful that isolated incidents are harder to prove foreseeability. Take for example if the parent leaves the minor home with their adult aunt and the aunt picks up an urgent work call and the child accidently touches the stove as the aunt is out of the room for five minutes, then parent’s counsel can make an argument that the parent did not that this one incident was going to happen and that they could not have prevented it. However, this argument is predicated on whether the aunt has a history with the family/parent of being reliable in the past. When it comes to daycares and babysitters although most parents check criminal history and other records, it is not legally incumbent on the parent to comb through the state’s register before sending the minor there. The risk of abuse occurring within the professional setting is not considered in determining the foreseeability of a reasonably prudent person/parent as the state has licensing boards to prevent just any person from supervising the minor.
 
 
 
Finally, should client act in a negligent manner once, parent’s counsel carries the burden to demonstrate that their client will (1) not fail to protect another time and (2) that there is not current risk at the day of the hearing. Given that the department usually conducts a CFT, some meetings, and create a safety plan with back up support persons before the Juri/Dispo hearing, counsel has time to prepare an argument to demonstrate that parent is remorseful and will not allow the FTP to happen again. Counsel should strive to enter into the record any therapy sessions, parenting class progress notes, and title 20’s that show the parent is making an active effort to learn and that the circumstances have changed. The court will look at these pieces of evidence and make a determination of whether there is no current risk or there still is a current risk to the minor despite the parent’s progress in addressing and redressing the risk factors that brought the minor to the attention of the juvenile court.
 
It is important to note that there are some acts of abuse considered so serious that the court will not consider any progress the parent has made. It should also be noted that minor’s counsel likes to mention emotional harm or the minor was sad. These are not jurisdictional as for b counts the court needs to see that the minor was placed at risk of serious physical harm or illness. The department will need to make a finding by a preponderance of the evidence that there is a risk of severe physical harm and that the acts will continue in the future.
 
 
Remember that the department must show that there is risk that the acts will continue in the future and that one bad incident does not warrant jurisdiction In re Nicholas B., 88 Cal. App. 4th 1126, 106 Cal. Rptr. 2d 465 (2001).


Again all of this is predicated on the fact pattern. If the fact pattern indicates clear failure to protect or certain life threatening serious injury to the minor,  these defenses will not hold much weight. Use with proper discretion.
                                                                                        
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Los Angeles Office of the Public Guardian 
510 S Vermont Ave, 14th Floor 
Los Angeles, California 90020 
Phone: LPS (213) 974-0527
(213) 974- 0407
Los Angeles Mental Health Court 
5925 Hollywood Blvd 
Los Angeles, California 90028 
Fax: (442) 247-3972


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1100 Union St, Dept 1902
​LPS Hearings Tuesday/Thursday 9am
San Diego, California 92101 
Phone: (619) 844-2700



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Office of the Public Conservator

5560 Overland Ave Ste 130
San Diego, California 92123
Phone: (858) 694-3500 ext 2
© 2017 LPS Conserved   ALL RIGHTS RESERVED.
  • LPS CONSERVATORSHIPS FOR THE GRAVELY DISABLED
    • LPS Conservatorship Court Overview >
      • Public Conservator >
        • Los Angeles Public Guardian
        • CONSERVATORSHIP INVESTIGATION REPORT
        • CAREER >
          • Continuing Education
          • Public Conservator County Numbers '16
          • San Diego Public Conservator '19
        • LPS Conservatorship for Dependent Parents and Minors
      • WHY ARE LPS CONSERVATORSHIP AND PROBATE CONSERVATORSHIPS DIFFERENT
      • Court of Appeals >
        • In re Ben C- Wende Brief no issue writ
      • Trial Court Transcript
      • Conservatorship Legal Documents
      • INITIAL INVOLUNTARY PROCEEDINGS >
        • Grave Disability >
          • Present Grave Disability
        • Venue
        • Conservator's Bond
        • When the Conservatee Goes AWOL
        • Involuntary Commitment
        • Conservatorship Factors
        • Riese Hearing >
          • Riese Hearing
        • Supplemental Security Income/ SSI >
          • Applying for SSI
          • Documents for SSI
          • Process and Appeal
          • Award Letter
          • Rep Payee
          • SSI Amounts 2018/2019
  • LPS Conservatorship Case Law
    • THE ABSOLUTE STATE OF THE COURT OF APPEALS
    • Conservatorship of Isaac O- court report omission and jurisdiction
    • Disparate Treatment- Conservatorship of E.B
    • Conservatorship of KW- hearsay and jury instructions
    • Peremptory Challenges and Conservatorship of Gordon
    • Conservatorship of Sorenson privacy rights and LPS matters
    • Imposition of special disabilities- Conservatorship of Walker
    • Continuing Jurisdiction/Jury Instruction and Conservatorship of McKeown
    • Hearsay and conservatorship of Manton
    • Conservatorship of the Person of S.A.
    • Writ of Habeas Corpus burden of proof
    • Conservatorship of Roulet- burden of proof
    • Special disabilities and due process- Conservatorship of K.G and Donna H.
    • Conservatorship of Davis and Third party assistance
    • Marsden hearings/ due process Conservatorship of David
    • Conservatorship of Torres and admissibility
    • Jury Instruction and Conservatorship of Law
    • Conservatorship of George H- jury instruction
    • Public Conservator's Exclusive Power to Initiate LPS Conservatorship Kaplan v. Superior Court
    • Constitutionality of LPS conservatorship- Conservatorship of Delay
    • Investigation report- Conservatorship of Ivey
    • Conservatorship of Jesse G
    • Grave Disability Standard and Jury trial notice Conservatorship of Benvenuto
    • Conservatorship of Kennebrew vs Conservatorship of Karriker
    • Jury Trial Delays - Conservatorship of Joanne R.
    • Conservatorship of Hofferber- criminal incompetence and LPS
    • "Discretionary abuse" Conservatorship of G.H.
    • In re Elizabeth R- LPS Conserved Parent with a concurrent dependency case
    • Conservatorship of C.O. - Waiver of Jury Trial
    • Conservatorship of Smith and strange behaviour
    • Jury Trials- ​Conservatorship of Jose B
    • Conservatorship of Baber and Double jeopardy and third party evidence >
      • WIP- Conservatorship of Tedesco
      • Conservatorship of Symington (1989)
      • Effective Counsel
      • Faretta and Marsden
      • Exceptions: Third Party Evidence
      • Exclusionary Rule WIP
      • Fifth Amendment Rights
  • LIFETIME PROHIBITOR WELF & INST CODE § 8103 SUBD. (F)(1)(B) 18 U.S.C. § 922 (G) (4)
    • CA MHRS >
      • Armed and Prohibited Person System
    • National Instant Criminal Background Check System (NICS)
    • Registration
  • For LPS Conservatees
    • RIGHT TO APPEAR IN COURT
    • JUDICIAL REVIEW >
      • WRIT OF HABEAS CORPUS
    • NOTICE
    • MEDICATION
    • PLAN OF CARE IF DISCHARGED
    • RIGHT TO COUNSEL
  • BUILDING A STRONG CASE FOR CONSERVATORSHIP
    • POWERS OF CONSERVATOR >
      • Placement Powers
      • Medication powers
    • WHY ONLY THE PUBLIC CONSERVATOR IS ALLOWED TO FILE FOR LPS CONSERVATORSHIP
    • SERVING AS CONSERVATOR
    • DSM V DIAGNOSIS LIMITS
    • CONSERVATEE INTERVIEW
    • HISTORY OF DECOMPENSATION AND LACK OF INSIGHT
    • WRAPPING IT ALL TOGETHER AND CREATING THE NEXUS BETWEEN SYMPTOMS, HISTORY, COMPLIANCE, THIRD PARTY ASSISTANCE TO PROOF OF CURRENT GRAVE DISABILITY BEYOND A REASONABLE DOUBT
  • JUVENILE DEPENDENCY
    • FAST TRACK DEPENDENCY
    • DEPENDENCY APPEALS
    • DETENTION
    • JURISDICTION DISPOSITION (JURIS/DISPO)
    • §366.26 Hearing: Selection and Implementation
    • 730 Evaluators
    • Case Plan
  • New Updates
    • Right to Choose