Another interesting read is Inside the Insane by Erica Loberg. She writes from the perspective of a social working with the mentally ill. Working on the inpatient unit has granted her a view of what it is like on the inside from the perspective of a mental health professional. She unlike a “consumer” or their family knows more about the system, but still demonstrates there are biases and misinformation about the LPS Conservatorship process.
I never heard the word “conservatorship” when I first came to the hospital. Conservatorship was dualfold. Either you were conserved by the Public Guardian, aka the PG, or a private conservator, aka a brother, mother, blood relative. It meant you had someone else calling the shots. You had someone deciding your destiny as far as where you would go and when you would go was concerned. It required a court and a judge and a reasonable reason for having a person give up their inalienable rights as an individual and have someone else become that God that initially gave everyone the right of free will which was now taken away and given to another person. There was no free will when you were conserved. Your first amendment in the bible “God gave us free will” was taken away. Game over.
This suggests that not all health care providers agree with how LPS Conservatorships are administered. LPS Conservatorship is considered “the holy grail of control” and depending on the perspective is a good or bad thing. However, from a legal standpoint LPS Conservatorships are definitely a serious deprivation of civil liberties as evidenced by the fact that the burden of proof is proof beyond a reasonable doubt. Additionally, there are many conservatees who do have a private conservator but more conservatees do not have family members or ones who are burned out and thus the public conservator steps in and is the conservator. However, LPS Conservatorships are limited and cannot take away a person’s inalienable rights. They have their “patient bill of rights” that cannot be taken away regardless, and some rights that can be taken away with a show of good cause. For most patients it does feel as if all of their rights are stripped when they are sent to a closed locked facility.
“Do you know what a conservatorship is?” “No. I don’t understand that word.” Opens Cases, a registered nurse from my office, was there to open up a case for me. Please don’t explain to this poor girl what a conservatorship is; that she wouldn’t be leaving in three days but might be stuck in a nightmare year of her pending life. “A conservatorship means you have a person that is assigned to you. Like a guardian. And they help make decisions to do what’s best for you.” “So, like a guardian. OK.” She nodded her lice less head which thankfully after being shaved to the nines she was free from tiny menacing lines.
This is a pretty common reaction. Very few persons actually discuss what is implicated in LPS Conservatorship with patients. The wording on the notice of intent to establish LPS Conservatorship is along the lines of A conservator may be appointed to assist you with your in meeting your food, clothing, and shelter needs and to assure that you receive necessary mental health care and treatment. Doesn’t that wording make it sound like the conservatee is going to get some help like a home health aid? Nowhere does it really implicate closed locked placement or involuntary psychiatric treatment. Understandably the conservatees are upset when they find out about the other half. Lots of conservatees become desperate and seek any form of help they can once finding out what conservatorship means. Additionally, a lot of conservatees are mentally disoriented due to their psychosis and may not understand what is meant by LPS Conservatorship.
“Do you know what conservatorship is?” “I get to go to a place. I went to court and I told the judge I wanted to be conserved because they told me if I did that then I could leave the hospital and go to a place.” Well that may be the worse lie yet announced in what is supposed to be a “just” environment. Justice for all!! Unless you were mentally ill. They were easy to manipulate and toss into a system of grim and sour cheese. “Yes, you will have a place to go. It will be a locked facility.” News to him. “It’s a mental place?” “Yes.” “Do I get to go to the movies and beach and stuff?” I don’t even have words to describe my thoughts and once again was not going to go there. I took out my notebook and drew a picture to explain the process of referrals and said that I didn’t have all the details about the places but that those facilities would come interview him and tell him everything he needed to know and answer all his questions. I wanted to die but thought that was the best thing to do. I still don’t know what’s worse. Knowing the whole truth of the future of your terrible locked life with movies you could watch in the mental infested common room and having to deal with that thought every day until it was time to go. Or not know and get there and find out. No news is good news, right?
I choose this quote as it really captures how breaking the news for conservatees is. I remember one clear moment when I first heard of conservatorship. They were informing a young lady that she was facing a LPS Conservatorship hearing in a week. She said ok but through her tone of voice you just understood that she didn’t fully understand the weight of LPS Conservatorship. She also didn’t really have any questions for the nurse explaining the process. Naturally even someone educated about the matter should have questions about what was going on. This in my opinion points toward the fact that she was in a bit of a shock. I do disagree with the sentiment that no news is good news. Although the author implied the internal struggle between choosing, I find that telling someone although distressing is far more important. Knowing that someone tried to explain conservatorship no matter how upsetting should demonstrate to a patient that the treatment team is valuing their participation just as much as anyone else’s.
I would like to state that if the following actually happened: “I went to court and I told the judge I wanted to be conserved because they told me if I did that then I could leave the hospital and go to a place.” Well that may be the worse lie yet announced in what is supposed to be a “just” environment. Justice for all!!” then the court officers should be sanctioned. Again, a clear explanation of the rights lost and powers granted to the LPS Conservator should be first in order. I have never heard of this being stated in San Diego but I am sure someone out in California may have stated such inappropriate statements at some point.
Overall her work provides an interesting review of what it is like dealing with LPS Conservatorship from the professional standpoint.
Appealing and preserving the record with specific objections
An issue I do not see much in LPS Conservatorship appeals but happens a lot in dependency appeals. Objecting with specificity. I understand that LPS Conservatorship matters strive to be “non adversarial”, but so does dependency court. I’d like to see more of (a dependency issue), forfeiture and objections covered for LPS case law. We hear a lot about overzealous counsel stating that “for the record mother/father objects to termination” but not the legal basis as to why. This sets up for a poor result with an appeal later as the record does not indicate the basis for appeal. Dependency court strives for non-adversarial resolution of conflicts and for both parties to work towards the best interest of the child. This case I will cover is a case coming out of dependency court but I expect that the same issues are happening somewhere in an LPS Conservatorship court.
A recent case law that came out once more covers this issue of objecting with specificity is in re Daniel B., 231 Cal. App. 4th 663, 180 Cal. Rptr. 3d 26, 26–28 (2014).
In this case several issues were at hand, but the main focus will be the fact that the trial court deemed that the mother did not make a timely and specific objection. When dealing with appellate matters, general objections are insufficient to preserve issues for review. Objections made by counsel must state the grounds upon which the objection is based. Object with specificity. If counsel fails to do so, they risk forfeiture.
In this case there were issues of drug abuse and DV that brought the child to the attention of the juvenile court. The court detained the child under § 300, for (a), (b), and (j) counts and ordered that the mother participate in DV weekly meetings. The mother at some point during the making of the dispositional orders objected to the DV orders but the court stated that there was a need based on history and that no suitable alternative existed. Mother’s counsel after dispositional orders were made noted “Mother's objection to the jurisdictional and dispositional findings”. Mother filed a timely appeal.
The department on appeal contended that mother forfeited her right to appeal citing that she did not raise a timely appeal, nor did she appeal with specificity. The department cites
“[A] reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected. (In re S.B. (2004) 32 Cal.4th 1287, 1293. In addition, “[g]eneral objections are insufficient to preserve issues for review. The objection must state the ground or grounds upon which the objection is based. (In re E.A. (2012) 209 Cal.App.4th 787, 790.)
The appellate court returned citing that it found that mother did raise a timely appeal to ordered services and that the trial court record demonstrated that she did raise a specific objection to the ordered services.
Using counsel’s own recitation of the law the appellate court noted that mother’s objection at the time allowed the court to consider any errors it may have made. When faced with this objection to possible error, the trial court instead asserted its opinion that it had considered alternatives to the ordered services and that it had found no suitable alternatives to DV treatment. It also doubled down and stated that it would not place a time limit on participation. Based on these two facts, the appellate court found that if mother had made another objection no further action could have been taken as the juvenile court was given enough time to consider the matter, made its decision, and proffered its reasoning.
Going back to the first point, now that the appellate court gave this reasoning, the objection “Mother's objection to the jurisdictional and dispositional findings” does not appear as out of line as it did without context. However, without the trial court record in front of us, we do not know exactly how the objection to services was raised and stated, but the trial court record must have been sufficient for the appellate court to make this ruling.
Other issues were discussed in this case but for now the issue of objecting with specificity will be the only topic covered.
231 Cal.App.4th 663
Court of Appeal, Second District, Division 7, California.
IN RE DANIEL B., et al., Persons Coming Under the Juvenile Court Law.
Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,
Angela B., Defendant and Appellant.
Filed October 22, 2014As Modified November 17, 2014
Background: County child welfare agency filed dependency petition. The Superior Court, Los Angeles County, Sherri Sobel, Juvenile Court Referee, declared two children dependents of the court, removed them from the custody of their father, and released them to mother with family maintenance services. Mother appealed. Reversed in part and remanded. (Super. Ct. No. DK00453)
A lesser known hospital in San Diego is Aurora Behavioural Health. This hospital includes outpatient and inpatient treatment. One of the reasons many persons may not know of this hospital is that it is located pretty far out. Its located at 11878 Avenue of Industry, San Diego, CA 92128 which is roughly close to Poway. This hospital has 95 licensed beds. There is a pediatric (under 18) unit and an adult unit. Like most hospitals this one offers recreational activities for the patients, psycho education, meals, psychiatric care by nurses and psychiatrists, and arts and crafts.
More specific details for Aurora
Phone: (858) 487-3200
Beds: 95 beds
Rooms are same sex and units are coed
Intake can be done either at the ER or the intake/referral department
Medical and psychiatric evaluation after intake
Therapy groups four times a day
Family sessions with the doctor, social worker, and other care providers for discharge planning and outpatient treatment
They do some LPS referrals but not many
Mostly serves the Poway and surrounding suburbs
Outpatient chemical dependency unit
Conservatorship and Bifurcation of issues
Food for thought.....
In re Conservatorship of Moore (1986) 185 Cal.App, The Moore Court held that “conservatees are not, by reason of their conservatorship, automatically considered incompetent" which seems to be additionally "cosigned" by the Keyhea v. Rushen (1986) 178 Cal.App decision which also determined that LPS conservatees have a statutory right to refuse Psychotropic drugs absent judicial determination of incompetence. (closely related to Qwai hearings but these are for NGRI, MDO, etc) Given that case law should be used to influence future legal decisions, shouldn't more courts take this into consideration. Regardless most legal decisions are made to deal with limited resources and staffing.
However, I will like to say given that these cases exist the OPG is still rubber stamping LPS matters with giving the public conservator powers of medication (8 and 8a in LA county). I understand that most LPS Conservatees need medication, however, there are patients who are conserved unnecessarily. I'm sure the operative issue of getting treatment and limited resources leads to this rubber stamping of medication powers.... but in a perfect world the trial courts would bifurcate the hearings into establishment hearings and adjudication of mental incapacity for refusal of medication.
But this is totally normal as we are supposed to be bifurcating our dependency (juris/disp hearings) but routinely do not.... so I do not see why LPS matters would be any different. But I would like to see this change in the future.
In Re. D.P- failure to state the facts supporting removal was not harmless error
Court of Appeal, Second District, Division 3, California.
IN RE D.P.,
Cal.App. 2 Dist.
Cal. Rptr.3d 313
This case covers a new issue of removing children without stating the facts supporting an emergency removal. The mother appeals on the grounds that the department removed the children without consideration of alternative means as under Welf & I C § 361 (e). She contends that if the trial court had appropriately applied the law then it would have discovered a less restrictive alternative than removal and that withholding the facts that lead to removal was not a harmless error. The court of appeal reversed the trial court’s order removing the children but did sustain the order ordering that the mother participate in services and have visits modified in needed.
The mother was suffering from mental health issues and medication noncompliance around the time the petition was filed. When approached by the social worker she demonstrated aggressive behaviour and was verbally abusive. The father opined that when she did not take her medication she was more aggressive and broke things in the house. The son endorsed the father’s statements and cited that she hit the father and tried to kill him. The mother addressed these concerns by stating that she was the victim of DV and that the father was the one to start the fights. Also the mother denied substance use, but did have alcohol use problems. The father soon sought a restraining order against the mother. In the same vein the mother sought one against the father. Because of the two orders, the department ordered that the child live with the paternal grandparents. ordered that a restraining order be filed and that the two parents live separately.
Soon after, the Department filed a nondetention dependency petition. The petition cited that both parents had a history of domestic violence that the minors at risk Welf & I C § 300, (a), (b)), there was moderate substance abuse, and that the mother had mental disorders that posed a serious risk of detriment to the minors. The juvenile court ordered the minor to stay in the father’s care. The court
The trial court offered the reasoning for removal:
“pursuant to Dependency Court Order 415, the terms of which are contained in the minute order” and “release[ ] [him to] home of father.”
“It is reasonable and necessary to remove the child from the mother, as such removal is defined in 45 CFR 1356.21(k)(1)(ii), and the care, custody, and control of the parent(s)/legal guardian(s) from whom the child is are [sic] being removed because there is a substantial danger to the physical health, safety, protection, or physical or emotional well-being”
“and there are no reasonable means by which the child’s physical health can be protected, without removing the child from the home and the care, custody, and control of that or those parent(s)”
The court then ordered that the mother participate in alcohol treatment, a 12-step program, mental health services and medication compliance, a DV program, and counseling.
The mother filed a timely appeal. The following opinion was issued by the appellate court partially affirming the trial court’s orders and ordering reversal of the removal order.
Mother contends the juvenile court’s rubber stamp decision and reference to Dependency Court Order 415 violated Welf & I C § 361(e), which mandates that “[t]he court shall state the facts on which the decision to remove the minor is based.” The appellate court agreed with the mother and offered its reasoning.
The appellate court cites in re Ashly F. (2014) 225 Cal.App.4th 803, 810, “The requirement for a discussion by the child welfare agency of its reasonable efforts to prevent removal, and a statement by the court of the facts supporting removal, play important role” in preventing the department from unilaterally deciding to remove a child without providing sufficient cause.
Although the courts can use Dependency order 415, the appellate court reminded the court that such an order should not a replacement or rubber stamp in lieu of a statement of the facts supporting the court’s decision for removal. Dependency Court Order 415 serves as a legal basis for removal but there must be a statement of facts supporting removal.
In response to the department’s objections that even if the error was made, it passes the harmless error test as the mother’s history and noncompliance proved detriment to the child. The appellate court dissented providing the following reasoning:
“removing [the] offending parent [mother] . . . from the home” was sufficient to keep the minor safe.
The trial court relies on Michael S which stated that “even if removing a parent from the home [can be done it may not be] necessarily be sufficient to protect the child in all cases even if ordered.” Michael S., supra, 3 Cal.App.5th at p. 984.
The appellate court believes that the trial court misconstrued Michael S and stated that this case doe not rely on an abstract possibility of harm but has solid evidence that the child would benefit from placement with father.
The appellate court deemed that if the juvenile court had made a factual finding about the reasonable alternatives to removal, then it would have probably found an alternative result more favorable to the mother.
In regards to visitation and services the court found that the trial court did properly exercise its judgement. The appellate court reversed the decision removing the child and affirmed the judgement ordering the mother to comply with services.
IN RE D.P., a Person Coming Under the Juvenile Court Law.
Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,
J.P., Defendant and Appellant.
Filed 1/8/2020SynopsisBackground: Child dependency proceeding was commenced. Following combined jurisdiction and disposition hearing, the Superior Court, Los Angeles County, No. 18CCJP07818B, D. Brett Bianco, J., removed child from his mother's physical custody and returned him home to father's custody. Mother appealed.
Holdings: The Court of Appeal, Egerton, J., held that:
1 court's error in removing child from mother's custody without stating the facts supporting removal was not harmless;
2 court could restrict mother's visits with dependent child to monitored visits;
3 evidence was sufficient to support order that mother participate in a full drug and alcohol program; and
4 evidence was sufficient to support order requiring mother to participate in a domestic violence program.
Affirmed in part and reversed in part
I’d like to address Britney's conservatorship because this is becoming an issue with the #freebritney movement on the rise, misconceptions are trickling into my area of LPS conservatorship. While placing a call to determine the status of a LPS Conservatorship petition there was a strong assertion by a professional in charge of a facility that a family member was going to get the same conservatorship as Britney Spears. When pressed about it the professional doubled down and said yes the LPS Conservatorship was the same kind of conservatorship that Spears is currently fighting. This family member became a bit confused and thought the LPS Conservatorship could be easy to get and “indefinite” like a probate conservatorship. This family member then began to incorrectly assert things such as it being easy to get a mental health conservatorship, she herself could petition to get mental health conservatorship over her son, or that the public guardian didn’t need to be involved. Allow me to clarify….
Spears is under a probate conservatorship of her person and estate. She has been under the LPS act when she was under a 5150 hold and a 14 day 5250. But she was not under an LPS Conservatorship nor is she fighting one currently. There are several key differences. First to look at the courthouse and judges. Spears’s conservatorship is being heard by Judge Brenda J. Penny at the Stanley Mosk Courthouse in Dept 004. This courthouse handles probate matters.
The mental health court recently moved from Department 95 at 1150 N. San Fernando Rd to Hollywood Courthouse 5925 Hollywood Blvd Los Angeles, 90028 (fax 442-247-3972)
STATE, COUNTY OFFICIALS JOIN PRESIDING JUDGE KEVIN C. BRAZILE TO REOPEN HOLLYWOOD COURTHOUSE Closed in 2013, Courthouse Reopens to Exclusively Handle Mental Health Cases
The judges who hear mental health matters are:
Bianco, James Judge 203
Harrison, Robert S. Judge 113
Jaskol, Lisa R. Judge 103
Kaye, Ronald Owen Judge 213
According to the new notice to attorneys
Judge Harrison and Judge Kaye handle LPS Conservatorship matters. Harrison has been serving for a while and Kaye is newly appointed. Regardless these are the only two judges listed for LPS Conservatorship matters which are handled in this courthouse unique to LPS Conservatorship and other mental health matters. To clarify probate conservatorships can be used for mental health but for LPS law specific matters the hearings occur in the Hollywood courthouse.
Next, Spears’s court papers that have leaked are named accordingly, GC350 and GC 310. These are letters of conservatorship of the person and estate and petition for conservatorship of person and estate. These are probate forms. Some counties use probate forms for LPS Conservatorship matters but LA county has specific forms for LPS Conservatorship like: MH041, MH027, MH04.
They appear similar but the mental health forms are to be used specifically for LPS Conservatorship not probate matters.
Finally if Spears was even on an LPS Conservatorship, she is no longer presenting as gravely disabled as she does care for herself properly, care for her children, and lives successfully with the help of other persons in her life. Thus by LPS statute she cannot be held under LPS Conservatorship as the standard, current grave disability beyond a reasonable doubt, is required for LPS Conservatorship renewal. Probate conservatorships require a lower burden of proof for review.
Additionally, if she were on LPS Conservatorship, you’d be hearing more about the public guardian in the news as they play a mandatory role in the re-establishment of LPS Conservatorship regardless of who is private conservator. Private parties, family members, or other persons cannot petition for LPS conservatorship. Only the public guardian can petition for LPS temporary conservatorship. Probate conservatorships do allow for any party to petition for conservatorship.
This should be cleared up and stopped because there are people out there who may be told yes you will get the same conservatorship as Spears, go look her case up, think their conservatorship is easier to get and doesn’t face as strict renewal criteria, and mess up their LPS Conservatorship case. Moving forward lets keep this in mind shall we? Spears does not need a probate conservatorship and in a bad abusive situation in my opinion but as she fights her case lets not get the two conservatorships conflated as LPS Conservatorship is still far more prohibitive than a probate conservatorship.
Just a quick update.....
In regards to those wondering about medication compliance and placements in IMDs... IMD's usually prefer to see their patients medicated and compliant. Alpine intake paperwork specifically states that they do not tolerate noncompliance. When managing clients on LPS conservatorship, the letters and orders stipulate that the LPS conservator has the right to order involuntary psychiatric medication. However, in reality most IMDs in San Diego and LA do not engage in daily forced medication administration; rather, they use verbal encouragement to make the patient more compliant. Alpine Special Treatment Center has been known to be the IMD to use the least amount of restraint and involuntary medication administration.
What more realistically plays out is that the hospital will hold the patient until they are stable and ready for transfer to an IMD. They want to see the patient who has some degree of insight and willingness to adhere to medication before discharge. Once discharged to the IMD the patient will do their activities and therapies in the IMD. If noncompliance becomes an issue, then the IMD will try verbal techniques to encourage med compliance. If verbal deescalation does not work and too many emergency IM injections are required then the IMD can transfer the conservatee back to the facility for stabilization and med compliance. The hospital may also transfer the conservatee back to a different facility if the previous facility is unable to take back the patient.
The IMDs have changed in that they are less hands on and work to preserve the patient's rights. Because of this IMDs try and use less restrictive methods of encouraging med compliance. They can also work on having the patient transition to a long acting IM shot to encourage med compliance without daily struggle of oral medication. Invega sustenna/trinza and Abilify Maintena are two commonly used long acting IM injectables.
Now within the world of hypothetical legal scenarios...
Would IMD return the conservatee to acute inpatient hospital or would there be a hearing to modify placement to move conservatee to a higher level of care such as Metropolitan Adult Acute LPS Unit/ Atascadero? (San Diego county supposedly contracts only a limited number of beds in the state hospital system and most of those are for murphy conservatorships)
Given that the current legal authority mandates that a “long-term Lanterman–Petris–Short Act conservatee possesses the right to refuse antipsychotic medication absent a determination of incompetence” In re Welf. & Inst.Code § 5000 et seq/ in re Keyhea v. Rushen (1986) 178 Cal.App.3d 526, 542 there would need to be a showing that the conservatee does lack capacity at an evidentiary hearing.
Assuming that this required prior determination of incompetence would be satisfied upon the imposition of disabilities under §§ 5357-5358 where the conservator has the power to require the conservatee to receive mental health treatment related to remedying the grave disability would these disabilities suffice for Metropolitan hospital to forcibly give routine daily antipsychotic medication/monthly IM depot meds.
Should state hospital not consider the § 5358 powers in the letters of LPS Conservatorship valid then would state hospital petition to ask a court to make a Qawi order, which authorizes state hospital to involuntarily administer daily nonemergency antipsychotic medication. In re Qawi, 32 Cal. 4th 1, 81 P.3d 224 (2004)? And although Qawi orders are for mental disordered offenders and the like, could there be a case where one is written for an LPS conservatee to enforce daily anti psychotics?
I doubt it but still.... pure speculation
Juvenile Dependency and