Speculation Sunday

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 Statement of facts


Conservatee requested a rehearing on the matter of grave disability. Scheduled several months out due to COVID. Counsel soon after told them that they could not submit via counsel or through the public conservator's CIR/statement of facts their
(1) Written plan of action/care if they were discharged: Psych tx, housing, SSI monies for tx, and work related plans
(2)  Written or oral statements from relatives and third party assistance
 
When pressed again, counsel said that the conservatee did not have right to call witnesses, have them submit statements for CIR/statement of facts, or present their plan of care in any capacity. When asking about whether it can be faxed and put into Panosoft counsel reaffirmed their position to conservatee told them that the court would not be considering the CIR/statement of facts nor ability to survive with third party assistance in an upcoming hearing. Unless I am missing something, this blows in the face of everything I know about grave disability standard and Manton and hearsay.
 
I examine my legal theory seriatim to demonstrate what I know and postulate on why the public defender refuses to allow any statements by conservatee in statement of facts, CIR/statement of facts, or third party testimony/written affidavits regarding assistance.
 
A smaller issue is counsel informed the conservatee recently they were going to hold a “joint trial” on the matter of grave disability and appropriateness of least restrictive placement. Unless I am mistaken I was under the assumption that the conservatee was given the right to request a hearing on grave disability and should that fail, they could request a separate hearing just on the matter of least restrictive placement. More legal statute on that issue will be provided below.
 
 
(I)
In the matter of the issue of whether the investigation report/statement of facts can be considered at the contested bench trial
 
At first look the law states that:
Individuals willing to assist the person to survive safely may also testify with respect to the issue of whether the person is gravely disabled. Clinicians such as social workers, family therapists, and nurses may also be able to provide important information in re. Welf & I C §5350(e).
 
CEB also notes that:
Counsel should carefully consider whether family members' testimony will be beneficial to the proposed conservatee and whether the family relationships will be adversely affected if family members are used as witnesses.
 
This should not be a contention as that is a matter of professional opinion on behalf of conservatee’s counsel. I understand direct and cross can bring out unknown statements which I have briefed the conservatee on (Never ask a question on direct/cross you don’t know the answer to). My issue is simply the mechanics of admissible testimony.
 
 
Legal authority states: If the third party member does want to testify, it seems that a writing would not be required. In re. Conservatorship of Johnson (1991) 235 CA3d 693, 699; Conservatorship of Early, supra.
 
To add, Welf & I C §5346(d)(4)(E)–(H) mandates that the conservatee has the right to be present at the hearing, to present evidence, to call witnesses on his or her behalf, and to cross examine witnesses.
 
Counsel’s contention I am sure lies in the following:
 
An LPS conservatorship investigation report containing hearsay statements from doctors, relatives, and other third parties can be admitted at a hearing; but it cannot be admitted into evidence in a contested trial on the issue of whether the person is gravely disabled. Conservatorship of Manton (1985) 39 C3d 645 and Welf & I C § 5354(a): these statements are not admissible at a contested jury trial on the issue of grave disability to the extent it contains inadmissible hearsay.
 
I construe that counsel finds that this request for rehearing is a contested matter hearing, but that they also are extending jury trial provisions to that of a bench trial(judge only).
 
I believe my two points of contention are that
(1)  How are the third party statements supposed to be considered by the judge if counsel is citing the Manton court and
(2)  Is counsel treating a contested bench trial as a jury trial thus negating a point I will make later**
 
If counsel is really deferring to Manton, the Manton opinion states that the main objective for keeping the CIR out of the contested bench trials and jury trials was the consideration of placement.
 
In re Conservatorship of Manton, 39 Cal. 3d 645, 651, 703 P.2d 1147, 1151 (1985)
At the time that the court considers the report of the officer providing conservatorship investigation ..., the court shall consider available placement alternatives.” At a trial, as opposed to a hearing, the issue is whether the proposed conservatee is gravely disabled; the question of placement is not decided until after a judgment is rendered on that issue. (§ 5350, subd. *652 (d)
 
At the initial P-con hearing the court considers the report providing conservatorship investigation and it shall consider available placement alternatives. At a trial, as opposed to a hearing, the issue is whether the proposed conservatee is gravely disabled; the question of placement is not decided until after a judgment is rendered on that issue.
 
If counsel wishes to proceed on this logic I would argue that the issue at hand is grave disability not placement but that is an argument for a different day.
 
 
 
Additionally, I defer to another CEB section which states: 
**Unlike Civil Code section 233 and similar statutes urged as analogous by county, Welf & I C § 5354 does not provide an express exception to the hearsay rule permitting use of the investigation report at a contested trial.
 
Additionally, patient’s counsel may be referring indirectly to a (dependency case) In re Malinda S. (1990) 51 Cal.3d 368, 384 that an LPS Conservatorship appellate case referred to argue that conservatees were similarly situated (a legal standard) to as the Malinda court found that due process/confrontation clause (calling witnesses) is a tough concept that pits “parent’s rights [against] the state's interest in resolve the child's [best interest issues]”.
 
Fundamentally, counsel would be arguing that the state’s interest of providing treatment of the conservatee and protection of the public would be pitted against the confrontation clause (due process/civil liberties) of the conservatee.
 
I wonder if this legal analysis is way too far fetched and this is a simple case of San Diego doing things different (wrong). Los Angeles LPS Conservatorship division head informed me recently that LA does allow for CIRs/statement of facts/family/third party member testimony/ and personal plans of care by conservatees to be admitted in contested bench trials and jury trials so I don’t believe I am imagining things with San Diego doing something different (read off).
 
 
(II)
In the matter of the issue of whether current grave disability contested matters should be bifurcated from placement review hearings
 
Conservatee was informed by counsel they would hold a joint hearing on the issues of current grave disability and appropriateness of closed locked placement. To my knowledge of challenging LPS Conservatorship, these issues can be handled in two separate hearings. I was informed by disability rights California and JFS that this was the case. Perhaps I was instructed incorrectly.
 
The conservatee is entitled to a rehearing on the issue of whether he or she is gravely disabled and in need of the conservatorship. Welf & I C §5364
 
At any time, a conservatee may petition the court for a hearing to contest the rights denied under Welf & I C §5357 or the powers granted to the conservator under Welf & I C §5358.3 (that would include closed locked placement powers no?)
 
Also it seems to fly in the face of the entire legal argument that I made in the earlier section to not bifurcate the issues as that seems to be the exactly problem the Manton court had with CIRs being in contested (jury) trials. 

You know why hear grave disability matters and placement matters in the same hearing if the Manton court would be upset

Update:
I was informed that San Diego does not bifurcate the hearings and instead considers both matters in one proceeding. My original contention remains. Additionally I would like to raise the issue that should the court deem that LPS Conservatorship appropriate as the conservatee remains currently gravely disabled, the matter of placement restrictiveness should not an operative issue at this hearing and instead be calendared for a separate day.

Should we rely on the Manton, case, the CIR would not be allowed in considering the issue of grave disability. However, when the focus shifts from grave disability to imposition of special disabilities and placement, I believe that the CIR, doctor statements, and patient testimony should all carry weight. Like dependency, counsel should be considering the totality of the facts and evidence. If (1) it is codified in WIC that jury trials shall not permit the CIR to the point that it contains inadmissible hearsay but WIC (2) states that bench hearings can allow for the CIR and (3) on the issues of rehearing over powers and placement there is not a right to jury trial, then the most logical application of the Manton judgement would be to allow the hearings to be birfurcated and allow the CIR into evidence on the subsequent hearings of placement and powers. 
 
 
 
Also a lesser point but was verbally stated to conservatee at some point in the last 6 months by their trial counsel. Conservatee does not want to pursue the issue anymore so it is legally moot but for the sake of future cases I will rehash it. Conservatee was informed by his counsel after a lost P-con hearing that he is not allowed to file an appeal (higher court review). I dissent and provide the following:
 
In re. Conservatorship of Jones (1989) 208 Cal.App.3d 292,
The Fourth District Court of Appeal held that denial of petition for rehearing of conservatorship status pursuant to CA W&I Code § 5364 is an appealable order.
 
Now the conservatee will most likely get a Ben C brief back and the conservatorship will not be stayed by the court but I have educated him on that matter and told him to ask the public defender if he had any more questions about that. However, did I miss something or did counsel misinstruct conservatee.
 
 
 




 
(I dream of more successful IAC claims for conservatees.)